FOI request (FOI218407)

Viability statements for affordable housing - Little Acres Farm

Requested Wed 19 July 2017
Responded Wed 19 July 2017

Following the Planning Committee decision to approve application HS/LA/17/00032 for the Discharge of Section 106 Planning Obligation; which has resulted in the loss of 8 affordable housing units.

I note that the new planning application HS/FA/17/00003(| Erection of 32 dwellings, formation of vehicular and pedestrian access, parking spaces and associated landscaping (Amended description) | Little Acres Farm, Frederick Road, Hastings) makes no provision for affordable housing.

It is claimed by the applicants that affordable housing is not viable for this development.

Please provide me with the following documents:

• A copy of the applicants viability documents illustrating why affordable housing is not possible.  
• The Development Viability Report, (Bespoke Property Group 2017) referred to in the officers report
• A copy of the Bruton Knowles assessment provided to the council referred to in the officers report

Please be aware that there have been recent rulings allowing release of viability statements.

Appeals to the ICO have declared that requests for viability statements can be made under EIR regulations.

For example Campaigners for the Heygate development made an EIR request to the council asking for a copy of the viability assessment.

Southwark council rejected the request. An Information Tribunal ruled in May 2014 that the viability assessment (minus 3 of its 22 appendices should be disclosed).

The Tribunal victory is significant because it ruled that viability assessments should be classified as environmental information under the Environmental Information Regulations (EIR) rather than FOI.

Following similar decisions concerning requests for viability information from campaigners in Earls Court & Greenwich Peninsula, the Information Commissioner now appears to have taken a position on the need for disclosure of viability information in planning decisions.

A similar request to obtain details of a viability study on the Heygate development has been reviewed by tribunal where it was decided that such information can be released . Please see http://35percent.org/heygate-foi-eir-tribunal/

The Heygate judgement can be seen at http://www.informationtribunal.gov.uk/DBFiles/Decision/i1279/London%20Borough%20of%20Southwark%20EA.2013.0162%20(09.05.14).pdf

A similar request to obtain details of a viability study on the Knight Dragon development has been reviewed where it was decided that such information can be released . Please see http://www.insidehousing.co.uk/council-ordered-to-publish-viability-study-in-full/7008115.article

and http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=21664:tribunal-tells-council-to-disclose-redactions-from-housing-viability-assessment&catid=1:latest-stories

The Knight Dragon judgement can be seen at https://ico.org.uk/media/action-weve-taken/decision-notices/2014/977128/fer_0524770.pdf

Please take this as a formal request under EIR regulations.

Response

NOTICE OF REFUSAL

Under Environmental Information Regulations the information requested above exempt under Section 12(5)(e) ‘Confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest’

We have considered the following:

• Is the information commercial or industrial
• Is the information subject to confidentiality provided by law
• Is the confidentiality protecting a legitimate economic interest
• Would disclosure adversely affect the confidentiality

Section 12(5)(e) is subject to a public interest test.  This means that a public authority can refuse to disclose information under these exceptions if in all the circumstances of the case the public interest in maintaining the exception outweighs the public interest in disclosing the information.

Factors for disclosure:

1. Transparency and accountability

Factors against disclosure:

1. The viability is based on cost/m2, excluding abnormal items, using BCIS rates that were adjusted downwards to reflect their own historic internal cost information that is specific to The Park Lane Group.

2. The viability included detailed costs for a number of abnormal site costs.  These abnormal items were costed using their own historic rates that they have from previous projects and such rates have been secured through their supply chain of sub-contractors and material suppliers on previous developments/sites.

3. As part of the post submission discussions with the Council and their appointed consultant Park Lane Group provided various additional cost sensitive items, this included amongst others a detailed breakdown of their Sales costs.

Should the viability be made available to competitors, then that information would cause Park Lane harm when tendering/bidding for future sites.  Their competitors would have an unfair advantage in forming an opinion on how they would look to bid on future development sites and consequently this would have a harmful effect on their future business.