EIR / FOI request for viability information relating to Bishopsgate "Goodsyard"
1:1000 Masterplan model of the Goodsyard proposal
Farrells / Bishopsgate Goodsyard Regeneration Ltd
By Nick Perry
The following correspondence are requests for Financial Viability (FV) information relating to the Bishopsgate Goodsyard development made to the London Boroughs of Hackney (LBH) and Tower Hamlets (LBTH), and to the Greater London Assembly (GLA), plus related complaints to the Office of the Information Commissioner.
See also, our Goodsyard page and the Hackney Society's comments to the planning authorities.
First Requests
Second Requests
Third and Fourth Requests
First request to LBH & LBTH - 4 November 2014
From: Hackney Society Planning Group
To: LB Hackney Information Governance, LB Tower Hamlets FOI Requests
Date: Tuesday 4 November 2014
Re: EIR / FOI request for viability information relating to Bishopsgate "Goodsyard"
(a) Please supply:
- copies of any Financial Viability Assessment(s) ("FVA")
- copies of any reports prepared to assess or verify the above on behalf of either the LPAs or Applicant
in relation to the planning applications with references:
for the site know as "Bishopsgate Goodsyard";
(b) Please also supply, by way of summary:
- a list of document which meet the criteria above (whether or not you provide them to me)
Please acknowledge receipt of this request by return.
Background and information to assist in this request
This request has been addresses simultaneously to the London Boroughs of Hackney and Tower Hamlets as the information is likely to be identical and relates to a single hybrid planning application spanning both local authorities and submitted the the Planning Authorities of both boroughs, simultaneously.
It is likely both authorities will have a substantially similar response so I invite you to consider a joint response, if you can do so quickly, so that in the event that you refuse the request, it can be reviewed easily without duplicating work for the ICO.
It can be gleaned from the "Affordable Housing Statement for The Goodsyard" (published in relation to the above applications) that the document referred to above in (a)(1) is likely to be that prepared by DS2 and referred to in para 1.11:
1.11 A Financial Viability Assessment will be submitted by DS2 on a private and confidential basis which will contain information relating to the calculation of the planning obligations including the provision of affordable housing in accordance with adopted planning policies.
It is possible that the documents referred to in (a)(2), above, are either in preparation or yet to be commissioned, however, in that case, it should be clear to both local authorities, to what extent the documents might engage (or not) any exceptions the authorities will rely upon in granting or refusing this request. So for the sake of our mutual convenience and efficiency, I ask you to consider yet-to-be-produced documents in your response.
In order to help you determine this request speedily, and in a timeframe that is compatible with the ongoing planning consultation process, I would like you to consider the following:
This request is for, amongst other things, "environmental information" as defined by regulation 2(1) (c) of the Environmental Information Regulations 2004 ("the Regulations") which generally favours release in the public interest over any confidentiality. The information requested cannot be said to have the quality of confidence merely by the applicant having submitted it "on a private and confidential basis". Furthermore, it is solely for the authorities to determine this request regardless of the applicant's consent (para 45 of the EIR code).
I anticipate that you may be inclined to rely on exceptions to the Act and the Regulations including s.43 of the Freedom of Information Act 2000 (the Act) and regulations 12(5)(e) and (f) of the Regulations and that you might go on to assess whether, on balance, the public interest in maintaining any exceptions are outweighed by public interest in disclosure.
The offer of affordable housing is incredibly low, on a site of significant scale and capacity. There will be no affordable housing on the Hackney part of the site (with 10% proposed offsite) and only 10% on the Tower Hamlets site. This is significantly below the on-site targets set in policy of 50% and 35% respectively. Therefore a full understanding of the justification for such a low offer is clearly in the public interest.
In assessing the balance you cannot rely on an oft-repeated assertion from developers that if you rule in favour of disclosure, they or others might be reluctant to provide such information to the authorities in the future, without evidence to that effect. It is plainly speculation at best and an egregious threat at worst. And in any case the information is required to determine a planning application where a claim of marginal or no viability is made that reduces any affordable housing offering to below the levels targeted in policy.
Unsurprisingly, a number of rulings from the ICO* which have resulted in total or partial disclosure have done nothing to reduce the willingness of other developers to submit the information, and indeed the eventual disclosure has often revealed significant issues that are patently of significant importance to public participation in the planning process.
The timescale for determining an EIR/FIO request is wholly incompatible with the planning consultation process. Given the extensive learning and experience available to you on requests for similar information, I urge you to come to a conclusion quickly, where you can do so without compromising the thoroughness of your consideration.
If you refuse this request, I request you to undertake an "Internal Review" straight away, and to do so promptly to facilitate engagement with the planning consultation.
I look forward to your prompt response.
Nick Perry
on behalf of The Hackney Society, and The East End Preservation Society
*ICO cases of relevance:
- FER0461281 16 July 2013 LB Southwark ("The Heygate Estate") & EA/2013/0162 9 May 2014
- FER0491596 18 November 2013 RB Kensington & Chelsea ("Earls Court Regeneration")
- FER0449366 27 September 2012 LB Waltham Forest ("Walthamstow Greyhound Stadium")
- FER0508919 8 January 2014 St Alban's C&DC ("Oaklands College")
Refusal Notice from LBTH - 26 November 2014
From: LB Tower Hamlets FOI Requests
To: Hackney Society Planning Group
Date: Wednesday 26 November 2014
Re: SEIR 11761 viability information relating to Bishopsgate 'Goodsyard' 26/11 s:11761
It is the view of the Council that this request falls under the Environmental Information Regulations 2004 as it concerns the built environment.
The viability assessment submitted in respect of the application for Bishopsgate Goodsyard, is marked as private and confidential. It is recognised that merely stamping a document private and confidential does not guarantee it will be confidential. However, the Council has gone on to consider this further and believes the information to possess the necessary quality of confidence coupled with commercial sensitivity such that it should be withheld.
Regulation 12 of the Environmental Information Regulations 2004 (“the Regulations”) sets out two relevant exceptions that must be considered in this instance. Firstly regulation 12(5)(e) provides that the Council may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial and industrial information where such confidentiality is provided by law to protect a legitimate economic interest.
Secondly regulation 12(5)(f) provides that the Council may refuse to disclose information to the extent that its disclose would adversely affect the interests of the person who provided the information to the public authority, where that person (i) was not under a legal obligation to provide it, (ii) did not supply it in circumstances such that the Council or any other public authority is entitled apart from the Regulations to disclose it; and (iii) has not consented to its disclosure.
The exceptions in regulations 12(5)(e) and (f) have been applied in this instance because the information sought relates to a Financial Viability Assessment in respect of the Planning Application for the site at the former Bishopsgate Goods Yard. The Council has a number of regeneration schemes at different stages, and disclosure of the terms of this assessment or any other, could adversely affect future negotiations as it would disclose information that would, or would be likely to prejudice the Council’s ability to obtain the best outcome from this and future developments. This is because it would prejudice the Council’s ability to obtain full viability information from applicants, where the information contained within the assessment is considered to be commercially sensitive. The planning application for this development is still under assessment by the Council. In respect of the information contained within the viability assessment it is considered that the release of this information would give an unfair advantage to the developer’s competitors and would adversely affect the developer’s economic interests by compromising negotiations with commercial tenants, bidders and suppliers. The Council has released a considerable amount of information regarding the proposed development scheme which can be viewed on its website.
Public Interest Test
The factors in favour of disclosure are that there is a clear public interest in disclosure to promote transparency and accountability of public authorities, greater public awareness and understanding of environmental matters, and more effective public participation in environmental decision making, all of which ultimately contribute to a better environment. The factor against disclosure is that the public interest in planning applications for the local area is adequately protected by the planning application process itself. Such interests are safeguarded by the role the Council plays on behalf of the public in reviewing and discussing the application. The information relates to a commercial activity, concerning a development proposal which is currently under assessment and disclosure of such information is likely to be injurious to the commercial and economic interests of the Council, and the developer in securing and negotiating terms for this and future developments, particularly in the competitive environment which now exists. The information requested contains a quality of confidence and is not available in the public domain; it is therefore protected under the common law of confidence in that there is an explicit obligation of confidence.
With the passage of time, the commercial sensitivity of some information decreases, however in this case the timing of the disclosure is of critical importance as the assessment of the proposed development scheme and negotiations are still on-going. The Council considers that disclosure of sensitive information would be likely to prejudice commercial negotiations with other developers if they knew the structure of this negotiation and how their own scheme compared.
Having weighed the factors both for and against disclosure, the Council has concluded that the public interest will not be served by disclosing the information requested as detailed above.
Regulation 13 (personal data)
The requested information also contains the personal data of other people. Regulation 13 of the Regulations sets out an exemption for third party data if disclosure would contravene any of the data protection principles (section Regulation 13(2)(a)(i).
The first data protection principles states that we can only disclose the personal data if to do so would be fair, lawful and meet one of the conditions in Schedule 2 of the DPA (and in the case of sensitive personal data, a condition in Schedule 3). This means that, if the disclosure would not be fair, the information must not be disclosed. It is considered that the provision of this information would not be fair as the person it relates to would not expect the information to be released in this way.
This is an absolute exemption and the information cannot be provided to you. This is an absolute exemption and the information cannot be provided to you. [sic]
I am sorry that your request is not being met on this occasion.
This constitutes a Refusal Notice under the EIR Act.
- (b) Please also supply, by way of summary:
- 1. a list of document which meet the criteria above (whether or not you provide them to me)
The Goodsyard. Bishopgate Financial Viability Assessment dated August 2014
I understand that the London Borough of Hackney have received an identical request and they will respond direct under ref: FOI 14-1106-09373.
Request for Internal Review to LBTH - 2 December 2014
From: Hackney Society Planning Group
To: LB Tower Hamlets Complaints
CC: LB Hackney Information Governance
Date: Tuesday 2 December 2014
Re: Request for LBTH internal review of an EIR/FOIA request ref SEIR 11761 viability information relating to Bishopsgate 'Goodsyard' 26/11 s:11761
Dear Tower Hamlets
I am in receipt of a Refusal Notice dated 26 November 2014 relating to a request for disclosure of Financial Viability Appraisal(s) relating to a current planning application. The substance of my request has been refused under reference SEIR 11761 by Jane Jones in her role as Information Governance Administrative Officer.
I am writing to request an internal review of this refusal. My original request and the Refusal Notice are attached.
You will be aware of an identical EIR request made to the London Borough of Hackney with reference FOI14-1106-09373 which, at the time of writing, has not been determined. I continue to invite you to consider your responses to this request for an internal review, jointly with LB Hackney as the request and information sought are likely to be identical.
As the Refusal Notice has considered the reasons in some detail, I hope you are able to conclude your internal review promptly - and in any case before the expiry of the 20 working days considered reasonably for such reviews.
In my original request, I anticipated that the Council might engage regulations 12(5)(e) and 12(5)(f) of the Environmental Information Regulations 2004 and I said:
- The offer of affordable housing is incredibly low, on a site of significant scale and capacity. There will be no affordable housing on the Hackney part of the site (with 10% proposed offsite) and only 10% on the Tower Hamlets site. This is significantly below the on-site targets set in policy of 50% and 35% respectively. Therefore a full understanding of the justification for such a low offer is clearly in the public interest.
- In assessing the balance you cannot rely on an oft-repeated assertion from developers that if you rule in favour of disclosure, they or others might be reluctant to provide such information to the authorities in the future, without evidence to that effect. It is plainly speculation at best and an egregious threat at worst. And in any case the information is required to determine a planning application where a claim of marginal or no viability is made that reduces any affordable housing offering to below the levels targeted in policy.
- Unsurprisingly, a number of rulings from the ICO* which have resulted in total or partial disclosure have done nothing to reduce the willingness of other developers to submit the information, and indeed the eventual disclosure has often revealed significant issues that are patently of significant importance to public participation in the planning process.
The Refusal Notice relies on these exceptions.
The Notice claims [my emphasis]:
- The Council has a number of regeneration schemes at different stages, and disclosure of the terms of this assessment or any other, could adversely affect future negotiations as it would disclose information that would, or would be likely to prejudice the Council’s ability to obtain the best outcome from this and future developments.
This is a groundless assertion that has no evidential basis. It amounts to nothing more than the conjecture and threat I anticipated. The ability of the Council to negotiate the best outcome is not predicated upon closed discussions. Quite the contrary. Discussions with publicly disclosed figures are likely to enhance the Council's ability to achieve a better outcome as they allow further participation, dissemination and critical analysis and promote the highest standards in preparation of the reports in the first instance. As outlined in the background to my original request, the ICO and First Tier Tribunal have supported disclosure (wholly and in part) in similar circumstances and no such prejudice has been demonstrated by other planning authorities.
The Refusal Notice continues to claim:
- that the release of this information would give an unfair advantage to the developer’s competitors and would adversely affect the developer’s economic interests by compromising negotiations with commercial tenants, bidders and suppliers.
This is an unrealistic assessment. Whilst it might be claimed that the developer would prefer, say, his contractors to not know what value he has put on the construction costs for fear of the contractor 'pricing up' to that level, it is for the Financial Viability Assessment to provide figures that are realistic, and not over inflated. Indeed they ought to be derived from open book values that any contractor could derive for themselves (or from a surveyor, at a price) or know from experience. Likewise, neither tenants nor landlord are disadvantaged by disclosure of open book valuations, which the former, at least, would likely seek to discover for themselves before entering in to a lease, and the latter by dint of a sales agent..
In considering the Public Interest Test, the Refusal Notice says:
- The factor against disclosure is that the public interest in planning applications for the local area is adequately protected by the planning application process itself.
This argument, by extension, says there is no role for public participation in the planning process as any element of it (in this case evaluation of the Financial Viability Assessment) might properly be conducted by officers in camera, because the application process provides adequate protection. That is plainly not the intention of the application process, which safeguards public participation and provides for a public planning register.
The Refusal Notice further claims:
- disclosure of sensitive information would be likely to prejudice commercial negotiations with other developers if they knew the structure of this negotiation and how their own scheme compared.
The planning process is predicated upon a "plan-led" system which seeks to introduce fairness and uniformity to development management. Notwithstanding its not-inconsiderable shortcoming, it seeks to avoid a system whereby individual schemes are subject to unique terms which are implied in this defence. The Council should act fairly and similarly with all applicants such that they bear comparison. In any event, on the granting of planning permission the s.106 agreement, which encompases affordable housing, must be placed on the planning register, including in its draft form, where the terms will be apparent to the public.
Furthermore, I submit that regulation 12(5)(f) is not fully engaged as the applicant has, in effect, a legal obligation to provide the information sought as it is required to justify the significant departure from the policy requirement for affordable homes. It would not be possible for the Planning Authority to grant permission for the application without it.
The Refusal Notice goes on to claim there is personal data in the documents sought. This seems unlikely to be material to any Financial Viability Assessment. If the documents do contain such information, the Council could consider redacting the personal information in order to protect it, and otherwise fulfil the disclosure request.
I look forward to your prompt review and outcome.
Nick Perry
Trustee, The Hackney Society
on behalf of The Hackney Society Planning Group, and East End Preservation Society
Refusal Notice from LBH - 19 January 2015
From: LB Hackney Information Management
To: Hackney Society Planning Group
Date: Monday 19 January 2015
Re: Your request for FOI ref: FOI14-1106-09373
Dear Nick Perry,
I apologise for the lateness in responding to your request for Freedom of Information.
In respond to request, please find attached the response.
Legal, HR and Regulatory Services Directorate
Planning & Regulatory Services
London Borough of Hackney
Our Ref: FOI14-1106-09373
1 December 2014 [*sic]
Dear Mr Perry
Environmental Information Regulations 2004 (EIR)
Freedom of Information Act 2000 (FOIA)
Thank you for your email dated 06/11/2014 requesting the following information under the above Regulations and Act:-
- Financial Viability Assessment (FVA) report, and associated yet-to-be-produced documents, relating to the planning application for the redevelopment of the Bishopsgate Goodsyard site.
As your request is for information relating to the development of land it is considered to be environmental information and so your request has been considered under the EIR rather than the FOIA. However, there is substantial overlap between the two and for the most part the comments below can be taken to relate to both items of legislation. The release of associated yet-to-be produced documents is clearly impossible as they do not yet exist, and I respond to your request for the release of the FVA report as follows:
I can confirm that the Council as Local Planning Authority (LPA) holds the information you have requested, namely the FVA for the Bishopsgate Goodsyard redevelopment, but the LPA refuses to disclose the information on the grounds that this would adversely affect the confidentiality of commercial information. In doing so the LPA relies upon the exception in Regulation 12 (5)(e), which states that, “a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial information where such confidentiality is provided by law to protect a legitimate commercial interest”.
The information relates to the financial aspects of the proposed redevelopment including the associated buying and selling of goods and services and so is clearly commercial in nature. The information has been provided by the applicant that submitted the planning application for the redevelopment of the Goodsyard site, and they are a legitimate commercial interest.
The information is not of a trivial nature, nor is it already within the public domain. The applicant shared the information with the LPA on the explicit understanding that it was confidential, and it is standard practice for FVA reports to be regarded as having a confidential status. It is considered that the information benefits from confidentiality provided by common law.
This confidentiality is protecting a legitimate economic interest, and at this time the information is highly sensitive and would significantly damage the applicant’s interests. The disclosure of the information would also assist the applicant’s competitors in allowing them access to commercially valuable information, including revealing the applicant’s bargaining position for future commercial negotiations. Disclosing the information would clearly adversely affect this confidentiality.
Whilst the disclosure of any information is generally in the public interest, and the disclosure of this information may enhance the public’s awareness of the financial matters associated with the proposed development, there are numerous public interest factors that weigh against disclosure. These are: the public interest in ensuring that companies are able to compete fairly; the lack of public interest in the information per se (what would be of greater public interest is how the LPA takes the information into account in deciding the planning application but no decision has yet been taken); the lack of any suspicion of wrongdoing or failure on the part of the LPA in relation to the information; the release of the information would not greatly add to the public’s understanding of the proposed development or assist their ability to comment on the proposed development, and; at this particular time the information is current and up-to-date and so its release now would lead to significant commercial harm to the applicant.
The LPA’s view that the release of the information would be prejudicial takes into account the view of the applicant that supplied the information and the evidence they provided of the harm that disclosure would cause. Their written response is attached.
Consequently, although the presumption is in favour of disclosure in this case disclosure would lead to extensive and severe harm to the legitimate commercial interest of the applicant.
I hope that the above is of assistance to you.
[* The 1 December 2014 date has been explained as being the date the response was first drafted. Other managers and departments reviewed it and took until 19 January 2015 for it to be finalised.]
Anticipated release of a redacted FVA - 21 January 2015
In further correspondence with LBH planners, they confirmed that, notwithstanding the EIR refusal, Bishopsgate Goodsyard Regeneration Limited (BGRL) intend releasing a redacted FVA, but that the planners were currently pressing for fewer redactions than in the draft they had seen. It will be posted to the LBH website.
Planners also confirmed BNP Paribas have been jointly commissioned by Hackney and Tower Hamlets to produce an analysis of the full FVA and additional costs specialists will also be appointed.
Internal review by LBTH (Refusal Notice) - 30 January 2015
30 January 2015
Dear Mr Perry
Stage 3 Complaint 1-91908265
Review of EIR 11761 viability information relating to Bishopsgate Goodsyard
I am writing to let you know that Richard Carter, Complaints Officer, has completed the investigation into your complaint.
[the refusal notice dated 26 November 2014 is quoted]
2. Request for an internal review dated 2 December 2014
Following the Refusal Notice, Richard Carter wrote to you on 11 December 2014 informing you that the Council required up to 40 working days to consider the application of exceptions on this complex request.
A full review of your request has taken place and I can confirm that the Council is satisfied that the exceptions cited in regulations 12(5)(e) and 12(5)(f) concerning confidentiality of commercial information and the interests of the person supplying the information do apply.
The reasons for the application of these exceptions are set out above in the reply of 26 November 2014, and I would make the following additional comments:
- The Council considers that the request differs from the cases you cite in a number of aspects (including timing, the ownership of land and use of public funds) and also notes that the Commissioner and Tribunals must consider each request on its own merits and circumstances.
- The timing of this request is of considerable significance. The planning application has yet to be considered by the planning committee. Thus, the application has not yet been determined by the Council and the development does not have consent. At this stage, no contracts have been let for the construction of the development.
- The report contains the detailed sensitive and confidential commercial ata of a number of parties. This includes and is not limed [sic] to the Council, the developer, and the developer's partners and advisers.
- Disclosure at this time is considered to be highly likely to impede the effective progress of the application, the funding, negotiation and management of contracts and the overall financial viability of the proposed development
- The document is not supplied at this time as a requirement of the planning process so the application of regulation 12(5)(f) is correctly applied.
Nevertheless, on review, it is considered that the exceptions apply to parts of the document and not the whole document.
As such, a version of the document has been prepared for release to you and this is enclosed.
I consider that the application of regulation 13 under the Environmental Information Regulations 2004 is not engaged and apologise that the initial decision was defective in these two aspects.
The Council has conducted a detailed review of the document's contents and has consulted with the developer and Hackney Council. However, as required under the Environmental Information Regulations 2004, this decision is the decision of this Council.
Please accept this revised decision as a refusal notice for the relevant parts of the document.
[...]
Yours sincerely
David Galpin
Service Head - Legal Services
Redacted FVA - 30 January 2015
A scanned PDF of the redacted Financial Viability Appraisal was supplied on 30 January 2015. It is presumed to be that FVA dated August 2014 and submitted with the planning applications to both boroughs. This version has been processed with Optical Character Recognition by the Hackney Society, for ease of use.
Financial Viability Assessment for The Bishopsgate Goodsyard - August 2014 - Redacted. PDF 2.4MB.
Bishopsgate Goodsyard redacted viability report from Nick Perry on Vimeo.
Nick Perry from The Hackney Society shows the developer's redacted Financial Viability Appraisal (FVA) used to justify just 10% affordable homes on the Bishopsgate Goodsyard site, against a policy set for the site at 35% in 2010.
Request for Internal Review to LBH - 9 February 2015
From: Hackney Society Planning Group
To: LB Hackney Information Management
Date: Monday 9 February 2015
Dear Information Management
I am in receipt of your Refusal Notice (apparently erroneously) dated 1 December 2014 and sent to me on 19 January 2015. For the avoidance of doubt, I consider 19 January 2015 to be the date of the Refusal Notice and I will continue to refer to it as such. Subsequent correspondence with Rob Brew (Planning), has clarified why the dates differ.
I do not agree that the exceptions cited in the refusal notice are engaged. Please conduct an Internal Review of your decision.
By way of further background:
I was also informed by Rob Brew that BGRL (the applicant who supplied the disputed information) was preparing a redacted Financial Viability Appraisal which would be released in due course. In view of the fact that this was said to be available shortly, I have delayed responding to your RN pending its release.
Although LB Hackney has yet to release that redacted FVA to me, LB Tower Hamlets did so on 30 January 2015 (ref SEIR 11761 Internal Review 1-91908265) by way of a further refusal notice following Internal Review of its refusal to release the same information. As this additional information (the redacted FVA) is now in the public domain, your review should focus on the redacted information which remains withheld.
Although it is not possible to tell precisely what has been redacted, it is clear certain figures and information which are referred to elsewhere have been redacted. On the basis of what remains visible, I say the exceptions cited are not engaged.
I am today, simultaneously, asking the ICO to investigate my concern and suggest it deals with whether what remains redacted ought to have been released from each authority, together.
In understand the ICO is likely to deal separately with issues of timing and procedural aspects of determining the FOI/EIR request and may close the investigation as it pertains to Hackney, pending completion of your own Internal Review. It will likely proceed with the substantive issue on the basis of the Tower Hamlets request having already concluded its Internal Review, and there being no further information in the public domain.
I urge you to conduct your review promptly for the reasons I laid out in my original request. I anticipated many of the arguments adopted by the Council in the Refusal Notice and Hackney now has the benefit of sight of the Internal Review conducted by Tower Hamlets.
I attach my "concern" to the ICO by way of information which may assist you in your swift but proper resolution of your Internal Review. Of particular note will be the decision, last Friday, of the Information Tribunal (EA/2014/0122) which dismisses an appeal against an ICO decision directing full release of an FVA relating to the Greenwich Peninsula (FER0524770).
Nick Perry
Chair, The Hackney Society
Concern raised with The Information Commissioner's Office (ICO) - 9 February 2015
To: ICO Casework
From: Nick Perry
Date: Monday 9 February 2015
Dear ICO casework team
Please find enclosed a complete concern form and bundle of correspondence relating to a formal EIR request made jointly to the London Boroughs of Tower Hamlets ("LBTH") and Hackney ("LBH").
On 4 November 2014 (R), I made a request via email, for information relating to two identical major planning applications on land, known as The Bishopsgate Goodsyard, which spans both boroughs. Identical information has been submitted by the applicant and developer (Bishopsgate Goodsyard Regeneration Ltd - "BGRL") to both boroughs and the boroughs have jointly appointed surveyors to critically analyse the information that is the subject of my request.
I made the request on behalf of The Hackney Society (which I chair) and The East End Preservation Society from the email address planning at hackneysociety.org.
The request is at page 1 of the bundle, and includes background information, arguments and my expectations - designed to promote a swift response, rather than to make a complete argument in favour of disclosure. I invited the boroughs to consider the matter jointly. It is not clear to what extent they did so. The timetable suggests they did not, or at the very least were unable to work to the same timetable.
On 26 November 2014 (R+17 working days) LBTH refused the request outright (EIR 11761) in an email Decision Notice. (pp 3-7)
On 1 December 2014 (IR) I asked LBTH to conduct an internal review, advancing further arguments in response to their decision notice. (pp 8-9)
On 3 December 2014 (R+22wd) LBH wrote to me (FOI14-1106-09373) asking for a further 20 days to conduct a public interest test for their part in responding to the original request. (p 10)
On 11 December 2014 (IR+9wd) LBTH requested more than the usual 20 working days to conduct a public interest as part of the internal review. (p 11)
On 19 January 2015 (R+52wd) LBH refused my request outright in an email Decision Notice dated 1 December 2015 which incorporated reasons proffered by solicitors acting for BGYL, but which were not included with the email. (pp12-14).
On 20 January 2015 (R+53wd), in subsequent email discussions with LBH, Rob Brew, South Area Manager, Development Management, the date discrepancy between the refusal notice and it being issued to me was explained as follows:
The reason our letter is dated 1 December and is headed with my name is that I wrote the response on that date, which was later amended by Femi [Head of DM] (in whose name I have found out the response should be sent) and Legal Services. This took a little time, and then there was the pre-Christmas rush and Christmas holidays (we issued more planning application decisions in December 2014 than we have done for any other month in the last 5 years). On behalf of the Council I’m sorry for the delay, but I don’t believe the delay will have caused you, or anyone else, any harm as there is still plenty of time before the Council is likely to decide the planning application for the Goodsyard.
For this reason, I will refer to the LBH decision notice as being dated 19 January 2015 and not 1 December 2014.
In the same email Rob Brew provided the letter from Hogan Lovells on behalf of BGRL, dated 6 November 2014 - a day after my initial request was received by the authorities. It is evidently written in direct response to my EIR request, which it references. (pp 15-20)
Rob Brew indicated that BGRL were being asked to provide a redacted FVA:
I have a meeting with the developers tomorrow morning to discuss the provision of a redacted version of the viability appraisal, which I hope we can send to you and put on our website with the other application documents. They were initially reluctant to provide one, but it seems that they have subsequently changed their minds. I’ll let you know tomorrow afternoon after my meeting. Whilst a redacted version would not reveal any information that is commercially sensitive it would reveal the methodology the applicants have adopted, which I think would be of interest to you.
On 30 January 2015 (IR+20wd) LBTH concluded their Internal Review (1-91908265) (pp 21-25), revising their initial refusal, and providing a heavily redacted Financial Viability Assessment (pp 26-242).
I take this redacted FVA to be the same which LBH would rely upon, but which at the time of writing, has not been provided by LBH or confirmed by them.
Today, Monday 9 February 2015, I am simultaneously asking LBH to conduct their own Internal Review (p 243) and the Commissioner to investigate the matter which has concluded review at LBTH.
The request:
(a) Please supply:
- copies of any Financial Viability Assessment(s) ("FVA")
- copies of any reports prepared to assess or verify the above on behalf of either the LPAs or Applicant in relation to the planning applications with references:
- LB Tower Hamlets: PA/14/02011 and PA/14/02096
- LB Hackney: 2014/2425 and 2014/2427
for the site know as "Bishopsgate Goodsyard";
(b) Please also supply, by way of summary:
a list of document which meet the criteria above (whether or not you provide them to me)
The concern:
FIRSTY in respect of item (a)(1) - the FVA - the arguments I advanced in support of my original request largely continue to have force in respect of the remaining exception, which I anticipated. My request for an Internal Review to LBTH further expands upon these points.
The redacted FVA has considerable redactions that cannot be justified. In many case it is not just figures that have been redacted but headings and titles which indicate what information has been redacted. It is clear by inference and experience what most, if not all, of the redactions are likely to be - and they are unlikely to be information, the very existence of which is likely to engage the exception relied upon. For instance the titles of several appendices are redacted - these are unlikely to be sensitive information.
It is clear from what has been disclosed that many, if not all, of the redactions relate to information that might be properly gleaned from expert advice and opinion based on the development plans that have been submitted and placed on the public Planning Register.
Furthermore the financial viability model used in the FVA, Argus Developer (para 1.9), is a commercial, off-the-shelf tool whose intellectual property is protected by patent and copyright. It is not a bespoke methodology that needs to be protected through obfuscation.
The ICO and Information Tribunal rulings to which I referred in my request have significant relevance. In relation to previous decisions, much is made by BGRL and the local authorities of the need to consider the circumstances of each case. Whilst they are correct, all of the arguments advanced against disclosure are generic to all EIR requests for information in this class - Financial Viability in development. No reference appears to be made to the specific figures or other information that has been withheld. All of the reasons given against disclosure could apply equally to all requests for FVAs in development, so it is hugely disappointing that previous decisions favouring disclosure have not been given due weight and much time has been spent by the authorities (though notably not the applicant), in delaying a decision which has nothing new and was almost entirely anticipated in my original request.
Additionally, on 30 January 2015 the Information Tribunal issued a decision in relation to the "Greenwich Peninsula" (EA/2014/0122 RB Greenwich v ICO and Brownie). In it, the President of the Upper Tribunal dismisses an appeal against an ICO ruling (FER0524770 April 2014) requiring disclosure of a developers FVA. The principal distinguishing factor in that case from the concern I put to you is that the Greenwich Peninsula development was an application to reduce the affordable housing contribution as previously consented, as opposed to a fresh application in this case. But all of the arguments put to the ICO and Tribunal are familiar and indeed are generally presented in with regards to the class of information - Financial Viability in development - rather than in relation to the specific figures and methodology in the case. The Tribunal robustly refutes many of these arguments in the latest decision and their application to the concern I raise with you are likely to be useful so I will lay some of them out below.
Unless otherwise stated, I am quoting from EA/2014/0122 RB Greenwich v ICO and Brownie - "Greenwich Peninsula".
Both authorities and BGRL refer to the timing of the decision being a critical factor - in that the information requested is current and, they say, it's release now would be more harmful than it might be if it were released some months or years later. Tribunal and ICO rulings have come some time after the initial requests because of due process - not because the requests were made much later. In each case the ICO and Tribunal considered the facts at the time of the request, not at the time of the escalated complaint or hearing. Para 12 of the "Greenwich Peninsula" decision refers:
12. … We have considered the balance of the public interest accordingly looking at the facts as they were in Summer/Autumn 2013, the period during which Greenwich would have been considering the request.
It is the potency of the information that makes it relevant to the planning process. Although use of the information is not a consideration of the Commissioner, per se, it must be borne in mind when understanding how the balance might be in favour of the public interest in disclosing the information. It is in order that the public may participate in the planning process. The Tribunal gives this significant weight in its closing paragraph in the "Greenwich Peninsula" decision:
37. … The objective of the EIR is to allow the public and in this case the affected community to have relevant factual information in time for them to participate effectively in environmental decision making. That intention is served by exposure of sufficient information to allow a fully informed interrogation of the recommendation.
The public cannot do so if the information is delayed until such a time as it is no longer potent as the relevant application will have been determined. Planning applications require current information in order to assess them.
Time is of the essence when asking for environmental information relating to planning applications. A major application has a statutory timeframe of 13 weeks for determination and if the public are to participate in the planning application the information is plainly needed before the application is determined. This particular planning application is still under consideration by the local authorities, but may be determined at any time. The information is complex and will require a period to analyse it.
There is an opportunity in the concern I put to you, to effect a decision that might have lasting impact in future FVA cases. Developers are aware of the EIR obligations and previous decisions - their continued defence is becoming increasingly about gaming the discrepancy between the information rights process and planning timetable, not sound law. The Tribunal notes in "Greenwich Peninsula".
16. … Those who engage with public authorities know that the legislature has enacted terms in relation to freedom of information on which that engagement takes place.
Both authorities claim the information in dispute is not required to be submitted to the authority. This is illusory. An FVA might not be a strict requirement of the planning regime - but only in so far as the regime requires that "viability must be demonstrated" without saying precisely how. It is an overly technical point which has no truck beyond the planning regime. The information has been supplied solely in order that the planning authorities may evaluate viability for the purposes of making a planning decision. The authorities rely upon the viability information and would be unable to determine the application (or at least to consent to it) without it. In the absence of other viability information, it is a de facto requirement of the planning decision making process. The Tribunal covers this in "Greenwich Peninsula".
17. … It is difficult to conceive how developers could make a convincing viability argument without using such quantified information, and we accordingly take a doubtful view of arguments that the information would have to be dragged point by point out of those proposing a variation.
With regards to the sensitivity of the information, the argument is made that in the hands of a rival developer, the information would be damaging to BGRL. It is a point I struggle to understand. The figures used to demonstrate viability must be reasonable. They must to be within the range a development professional would be able to determine from reference values and market experience. Were the details of the planning application not known, the argument would be different. But a planning application, through necessity, requires detailed disclosure of the plans including dimensions, materials and methods of construction. All of these, in the hands of a competent surveyor, would yield information that ought to be in the disputed FVA. Again, from the "Greenwich Peninsula" Tribunal decision:
18. We find it particularly hard to accept that the pricing and other assumptions embedded in a viability appraisal are none of the public’s business. …
19. … It was said that rivals might be able to undercut a developer if more information were freely available. It is by no means clear to us why such market forces are contrary to the public interest …
20. It was also suggested that disclosure might undermine Greenwich’s ability to conduct future negotiations with other developers who might be in a better position to structure their own offers or insist on a comparable reduction in their own levels of affordable housing. We are more doubtful of this. …
22. That said, in the circumstances of this case, it seems to us that there are a number of factors which considerably dilute the potential harm that might result from disclosure. First, as we have indicated, eventual sales prices will always, it seems to us, be dictated far more by the market at time of disposal than by any assumptions recorded in the disputed information. … Second, we should not overlook the amount which competitors will already know. … the size of proposed dwellings, stated to be very sensitive because of the consequences of disclosure, could be deduced from drawings routinely submitted with the planning applications. …
The issue of relevance to the public interest in favour of disclosure is further advance by the Tribunal in a manner that is common to all the FVA disclosure rulings I have cited:
26. Two factors, in our judgement, tell particularly in favour full disclosure.
27. First, the number of affordable homes to be provided on this enormous development, as well as their location, is an important local issue on which reasonable views are held strongly on both sides. …
The discrepancy between the offer of 10% affordable housing (all off-site on the Hackney side) and the local plan (Bishopsgate Interim Planning Guidance 2010) is significant. The latter - a site specific policy, requires a minimum 35% affordable housing subject to viability. It states:
Providing affordable housing
BG21 The development must provide a mix of housing tenures, including market sale, intermediate and social rented housing to meet local needs. In line with current planning policies a minimum of 35% affordable housing (calculated by habitable room) should be provided on site, subject to viability and site circumstances as outlined in the London Plan.
This is analogous to the discrepancy cited by the Tribunal in "Greenwich Peninsula".
28. … We regard this not so much as an additional factor favouring disclosure but as an example of the confusion which can be created by a lack of transparency…
The tribunal goes on to conclude:
29. Having weighed all the evidence and arguments, in our judgement the admittedly important public interests in maintaining the regulation 12(5)(e) exception in this case do not outweigh the public interest in disclosing the information.
and
35. … in our view further disclosure of detail would enrich the debate taking place on an issue agreed by all parties to be of considerable public importance.
The Tribunal usefully dismiss the relevance of other case law, including a recent Judicial Review involving myself and LBH ([2014] EWHC 3499 (Admin) Perry v Hackney) in which the judge studiously avoids dealing with EIR - deferring to the ICOs ongoing consideration of the matter. It is telling that the related case before the Commissioner remains unresolved (ref: FS50538429 Case officer: Samantha Coward), and serves to highlight the discrepancy between the planning and EIR regimes and the need for robust and rapid decisions that can be applied to FVA requests in the future.
SECONDLY neither authority has adequately addressed item (a)(2) of my request to supply "copies of any reports prepared to assess or verify the above on behalf of either the LPAs or Applicant".
Whilst I accept that, at the time of writing, the reports may not exist - they are under consideration and both authorities must consider the public interest test.
Section 1(4) of FIOA, says "The information...which is to be communicated under subsection 1(b) is the information in question held at the time when the request is received...".
EIR reg 12(4) similarly provides that "a public authority may refuse to disclose information to the extent that it does not hold that information when an applicant's request is received."
However in the case of "environmental information" (such as we have here) the public authority must still show that the public interest in maintaining the exception (here reg 12(4)) outweighs the public interest in disclosing the information: see reg 12(1)(b).
I urge the Commissioner to take a robust and clear view that sends a clear signal to local authorities and developers that information in this class will generally be of such importance that the public interest in maintaining the exceptions frequently cited do not outweigh the public interest in disclosure, and to do so rapidly so the effect of the due process to date does not render release impotent.
If i can provide any further assistance, please do not hesitate to ask, and in any case, to keep me informed of progress in this case.
Nick Perry
Chair, The Hackney Society
Clarification sought by the ICO - 30 March 2015
From: ICO Casework
To: Nick Perry
Date: Monday 30 March 2015
ICO ref: FS50570729
Dear Mr Perry
I write further to my email of 16 March 2015, in which I informed you that I had been allocated to consider the complaint made to the Information Commissioner's Office (ICO) about the handling of your request for viability information relating to Bishopsgate Goodsyard.
From a review of the material provided, I note that the same request was submitted to the London Borough of Tower Hamlets (Tower Hamlets) and to the London Borough of Hackney (Hackney). This was because the Bishopsgate Goodsyard project spans part of each borough.
At the time the complaint was made to us, I understand that Tower Hamlets had completed its internal review and provided you with a heavily redacted version of its financial viability assessment. However, you were still waiting for Hackney to conduct an internal review with respect to its decision to refuse your request in its entirety.
From your letter setting out the complaint, I gather that you want the Commissioner to consider whether the extent of the redactions made by Tower Hamlets to the viability assessment was justified under the legislation. Therefore, unless instructed differently, this will form the focus of my investigation and it would be my intention to ask Tower Hamlets to provide me with submissions clarifying its position with respect to the withheld information.
However, to protect against any later confusion, I should be grateful if in the first instance you could confirm whether my understanding of the complaint is correct or if there are issues that you believe should be considered in addition to the one described. It would also be helpful to know if any developments had occurred in relation to your request to Hackney – for example, a greater disclosure of information - which would affect the present case.
I would be obliged to receive a response, and any supporting submissions, by 8 April 2015 at the latest, albeit if you can respond earlier that would be most helpful.
I look forward to hearing from you shortly.
Yours sincerely
Alun Johnson
Senior Case Officer
The Information Commissioner's Office
Clarification response to ICO - 2 April 2015
From: Nick Perry
To: ICO Casework
Date: Tuesday 1 April 2015
Dear Alun
Thanks you for your email of 30 March 2015. Apologies for the brief delay in replying.
Your summary of the complaint is more or less complete, save that I would add my second substantive point in my letter to you needs addressing - the failure to consider the public interest test in providing information which was (apparently) not in the possession of the LPAs at the time of my request (but might be now) - namely any reports commissioned by either LPA to assess the Financial Viability Appraisal (FVA) that has been provided in redacted form.
To elaborate:
The position under FOIA (s 4(1)) regarding information not held at the time of the request, is not the same position under the EIR, which apply in this case.
Regulation 12(1) provides:
“Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—
(a) an exception to disclosure applies under paragraphs (4) and (5); and
(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.”
Regulation 12(4)(a) provides:
“For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—
(a) it does not hold that information when an applicant’s request is received;
(b)-(e) …”
Thus, the fact that a public authority does not hold the requested information when the applicant’s request is received will satisfy reg 12(1)(a), but leaves the public authority still having to satisfy 12(1)(b) if it is to escape disclosure of information first held by a public authority after receipt of the request. The exception in reg 12(4)(a) is no different in this respect than any of the others in reg 12(4) or (5).
This is not an academic point. Such a report will likely exist at some point as we know it has been commissioned by the LPAs and will have no third party claim of confidentiality: see Chichester DC v IC and Friel, FTT, 16 March 2011 at [20]-[24]. The report is critical to the understanding of the FVA and the types of information it will contain are likely already known.
There have been no further disclosures since I made my complaint to you and indeed I have heard nothing from LB Hackney in respect of my request for an Internal Review dated 9 February 2015 save for an acknowledgement on 17 February 2015. Some 39 working days have now elapsed.
The Information Tribunal's decision at Greenwich Peninsular [EA/2014/0122] had just been handed down at the time of my complaint to you and I covered some aspects of its relevance to this case in my complaint. Since then, the extended case at Heygate [EA/2013/1062] has also been back before the Tribunal and offers much relevant law in favour of disclosure. the case history on the latter and other FVA cases in recent years are hugely relevant in this case.
I should add that this is a live planning application and a significant delay in dealing with this matter may render a decision notice requesting disclosure, somewhat pyrrhic. An early decision based on the wealth of decisions in favour of disclosure in FVA request stands a chance of making a meaningful difference in this case.
Nick Perry
Chasing email and further arguments to ICO - 11 May 2015
To: ICO Casework
From: Nick Perry
Date: Monday 11 May 2015
Dear Alun
I've had no update on my complaint since 30 March 2015 when you requested an update from me and clarification of some aspects of my complaint. I replied on 2 April.
As at the time of writing I have still not received any further correspondence from LB Hackney (or any party come to that), of whom I had requested an Internal Review on 9 February 2015. As 63 working days have elapsed without a response, this is a deemed refusal and I should like you to consider it as such in my complaint, and comment upon the Council's conduct.
Furthermore, since my last email to you, the Commissioner has ruled on an unrelated case between myself and Hackney, which was also for an FVA (Financial Viability Assessment) for a scheme that was seeking planning permission. That case has reference FS50538429 and is dated 1 April 2015. It has some direct parallels to the matter before you (a request for an FVA), so it may be helpful if I address some new points that are not brought out in other relevant decisions of the ICO and FTT that I have raised with you previously, but that might arise in the instant case before you:
In his decision (Perry v Hackney FS50538429), the commission considered EIR regulation 12(5)(e) is engaged in respect of four test, two of which are of particular interest:
- the confidentiality provided is required to protect a legitimate economic interest; and
- that the confidentiality would be adversely affected by disclosure.
In the bulk of his judgment, the Commissioner considers that release of the information in the FVA would harm the developer's ability to get the best financial outcome in respect of yet-to-be-negotiated transactions. For instance: building contracts, commercial leases, and any potential wholesale purchase of the site with planning permission.
I have responded fully to these points in an appeal made to the First Tier Tribunal but in summary, these arguments do not lend any weight to engaging the exception in reg 12(5)(e), in the case of requests for FVAs, for (inter alia) two reasons:
- The FVA is not a budget. It does not (indeed it must not) reflect the developer's attitude to risk or ability to bargain. The values in an FVA ought to be benchmark values derived from open market data. If they are not so derived then there is significant public interest in that fact - which alone, ought to favour disclosure. A developer is likely to (legitimately) hold different figures for the purposes of budgeting, investment and marketing which are derived on a different basis (for instance future sales values in an investment profile, as opposed to current sales values mandated in an FVA).
- A competitive market is well capable of ensuring the developer receives the best deal from contractors, purchasers, partners, investors, etc without interference from figures released in an FVA prepared solely for a planning purpose, and at a specific instance in time, to a defined technical standard, and on an open book basis. As the First Tier Tribunal points out in the Greenwich Peninsular decision I have previously cited:
19. … It was said that rivals might be able to undercut a developer if more information were freely available. It is by no means clear to us why such market forces are contrary to the public interest …
A further parallel with Greenwich strikes me in the instant case. The developer entered in to an (undisclosed) land deal with Network Rail, apparently in January 2013 (see http://www.costar.co.uk/en/assets/news/2012/January/HammersonBallymore-hammer-out-Bishopsgate-Goods-Yard-deal/) when the Interim Planning Guidance for the site was firmly established and stipulates significant planning contstraints, including setting the levels of affordable housing at 35% (policy BG21). Like at Greenwich Peninsular, the applicant knew what it was getting into and has to demonstrate strong reasons for deviating from the Interim Planning Guidance. Yet it offers just 10% affordable homes. There is clearly significant public interest in understanding the discrepancy which the FVA claims to justify.
Time is of the essence. I have already highlighted the mismatch between the time constraints of the EIR regime and the planning regime. Although it is expected that the applicants will shortly put forward a revised scheme with a revised FVA, and revised advice commissioned by the Councils, it is vital that the Commissioner rules strongly and rapidly on this matter so all parties can be left in little doubt as to the status of any purported grounds for withholding similar reports in future iterations of this scheme.
I urge you to conclude the matter promptly and not tolerate the kinds of intentional obstruction and poor co-operation that the Commissioner noted from LB Hackney in the matter I cited earlier (FS50538429).
ICO update - 14 May 2015
From: ICO Casework
To: Nick Perry
Date: Thursday 14 May 2015
ICO ref: FS50570729
Dear Mr Perry
Thank you for your email regarding the complaint submitted to the Information Commissioner's Office against the London Borough of Tower Hamlets (Tower Hamlets).
For your information, following receipt of your previous correspondence I contacted Tower Hamlets and requested further clarification on its position under the Environmental Information Regulations 2004. Regrettably, Tower Hamlets has not been able to meet the initial deadline specified, although I do expect to receive its submissions shortly. Once I have had an opportunity to review these, a decision will then be made on the way we should proceed with the case.
With regard to your comments about the London Borough of Hackney (Hackney), please note that a separate case would need to be set up to address your concerns because it involves a different public authority. Before doing so, however, it would be helpful if you could provide me with copies of any correspondence exchanged with Hackney since the request for an internal review was made on 9 February 2015. For the avoidance of doubt, I would also ask whether you consider there are any substantive issues relating to the Hackney request that would not be dealt with as part of the present investigation into the handling of the same request that was made to Tower Hamlets.
I look forward to hearing from you.
Your sincerely
Alun Johnson
Senior Case Officer
The Information Commissioner's Office
Internal Review by LBH (Refusal Notice) - 29 May 2015
John Allen
Assistant Director
Planning and Regulatory Services,
Legal, HR and Regulatory Services Directorate
London Borough of Hackney
Our Ref: FOI14-1106-09373
29 May 2015
Dear Mr Perry,
Matter: Environmental Information Internal Review
Premises: Bishopsgate Goodsyard 2014/2425 and 2014/2427
We refer to your email of 9 February 2015, in which you requested an internal review. An internal review has been undertaken by an Officer in the Council’s Legal Services Department.
The outcome of the Officer’s review is stated below together with the reasons for the decision.
Outcome of Internal Review
You have requested that the Council disclose the remainder of the Financial Viability Assessment it received in connection with planning applications 2014/2425 and 2014/2427 (the “FVA”), following the disclosure of a redacted version of the FVA by the London Borough of Tower Hamlets, and copies of any reports commissioned by the Council to assess or verify the FVA.
Following a review of the remaining withheld information by the Legal Officer, the Council’s Refusal Notice and the reasons given for its decision not to disclose the FVA, the Council remains satisfied that regulation 12(5)(e) of the Environmental Information Regulations 2004 (the “EIR”) applies in respect of this information.
For that reason, the remaining withheld information should not be disclosed.
FOI request and response
On 4 November 2014, you e-mailed the Council and requested information in the following terms:
“(a) Please supply:
- copies of any Financial Viability Assessment(s) (“FVA”)
- copies of any reports prepared to assess or verify the above on behalf of either the LPAs or Applicant
in relation to the planning applications with references:
- LB Tower Hamlets: PA/14/02011 and PA/14/02096
- LB Hackney: 2014/2425 and 2014/2427
for the site known as “Bishopsgate Goodsyard”;
(b) Please also supply, by way of summary:
1. a list of documents which meet the criteria above (whether or not you provide them to me).”
On 19 January 2015, the Council e-mailed you a refusal notice dated 1 December 2014 explaining why it was withholding the FVA in its entirety under regulation 12(5)(e) of the EIR.
On 20 January 2015, the Council e-mailed you a copy of a letter received from solicitor’s acting for the applicant, Bishopsgate Goodsyard Regeneration Limited (“BGRL”), dated 6 November 2014, which was not sent with the refusal notice as intended.
On 30 January 2015, you have said that the London Borough of Tower Hamlets disclosed to you a redacted version of the FVA following the completion of its internal review.
On 9 February 2015, you e-mailed the Council to request this internal review and also e-mailed the Information Commissioner setting out your concerns about accessing information from the London Borough of Tower Hamlets and this Council.
Scope of the internal review
The FVA is held by the Council in respect of planning applications, which the Council confirmed in its refusal notice.
The same FVA was also submitted to the London Borough of Tower Hamlets in respect of the planning applications for the Bishopsgate Goodsyard (the “Goodsyard”) submitted to its planning department as the Goodsyard falls within the area of both this Council and the London Borough of Tower Hamlets.
The London Borough of Tower Hamlets refused to disclose the FVA in its entirety in response to your request for information. Following an internal review of its decision to refuse to disclose the FVA, it disclosed a redacted version of the FVA. It is that redacted version of the FVA that is also held by this Council.
Reports assessing/verifying the FVA
The Council also confirmed in its refusal notice that no reports had been prepared to assess/verify the FVA, or list of documents prepared/provided meeting the criteria in a(1) and (2) of your request for information at the date the notice was sent, when it stated in the refusal notice that the release of associated yet-to-be produced documents was clearly impossible as they did not yet exist.
You state in your e-mail to the Information Commissioner that one of your concerns was that neither this Council nor the London Borough of Tower Hamlets had considered the public interest test when deciding to refuse to disclose information to the extent that it did not hold that information.
It is the case that all the exceptions in regulation 12(4) of the EIR are subject to the public interest test. However, guidance issued by the Information Commissioner states that:
“the Commissioner accepts that if a public authority is refusing a request because it does not hold any information then it will not be able to carry out a meaningful public interest test. Public authorities are not therefore expected to include consideration of the public interest test in a regulation 12(4)(a) refusal notice.”
Redactions unjustified
Another concern you state in your e-mail to the Information Commissioner you have was that the redacted FVA had considerable redactions that cannot be justified. One example you gave was the titles of several appendices being redacted.
It would be inappropriate and impracticable to consider the withheld information on a line-by-line basis. The withheld information contains both financial and descriptive material, which in detail together, describes the costings, land values, etc., for developing the Goodsyard in accordance with the planning applications.
Such information could not be gleaned from the development plans that have been submitted to the Council as you say.
Financial viability model
Your concerns about the financial viability model, Argus Developer, utilised to produce the FVA needing to be protected by obfuscation is not correct as it is not information about the viability model itself that is contained in the withheld information, but the product of using such model.
The costings/values forming part of the withheld information in appendix 15 calculated using Argus Developer are, the Council believed, covered by the exception in regulation 12(5)(e) for the reasons set out below.
Code of Practice
In dealing with your request for information, the Council consulted with BGRL and sought its view as the interested party. The Council provided you with a copy of the correspondence from Hogan Lovells which explains why BGRL considers the information should not be disclosed.
Whilst the Council has considered the submission provided by BGRL, it has also had regard to paragraph 45 of the code of practice issued under regulation 16 of the EIR, which states that:
“In all cases, it is for the public authority that received the request, not the third party, (or representative of the third party) to weigh the public interest and to determine whether or not information should be disclosed under the EIR. A refusal to consent to disclosure by a third party does not in itself mean information should be withheld, although it may indicate interests involved.”
Hogan Lovell’s letter explained that BGRL considered that the relevant tests of the exception in regulations 12(5)(e) and 12(5)(f) of the EIR were satisfied in relation to the FVA.
The Council considered whether both those exceptions applied in respect of the FVA, but concluded that BGRL was under a legal obligation to supply the information to this Council as it is a local validation requirement to provide the same for major developments where a proposed development will not satisfy this Council’s requirements in respect of the provision of affordable housing.
The exception in regulation 12(5)(f) was not therefore engaged the Council concluded, but the exception in regulation 12(5)(e) was for the reasons given in its refusal notice.
This Council also had regard to paragraph 45 of the code of practice when deciding whether to consider your request for information jointly with the London Borough of Tower Hamlets as you suggested.
Your request for information was received by this Council and so as required by the code of practice, it was for this Council to weigh the public interest and determine whether or not the information you requested should be disclosed.
Recorded information held
The Council can only consider your request for information in respect of the recorded information held by it from the date that your request is received until the date that it has responded in respect of such request.
Your request for reports that had been prepared to assess/verify the FVA was received on 4 November last year, however, on 19 January this year when the refusal notice was sent to you, surveyors had been appointed to assess/verify the information in the FVA, but no reports had been received by the Council at that date.
Royal Borough of Greenwich v Information Commissioner and Shane Brownie (EA/2014/0122)
The Information Rights Tribunal’s decision in the Royal Borough of Greenwich case was not given until after the Council sent its Refusal Notice to you this year. However, regard has been had to the Decision of the Tribunal in that case when undertaking this internal review.
Environmental Information Regulations
BGRL’s planning application 2014/2425 is for the construction of a comprehensive mixed use development comprising up to 1,464 residential units, 52,991 square metres of business space, 18,229 square metres of shop/restaurant/café space and 108 square metres of leisure space at the Goodsyard (the “Development”).
The Council believes that the construction of the proposed Development is an activity that is likely to affect the state of the landscape as an element of the environment and therefore falls within regulation 2(1)(c) of the EIR.
The FVA was submitted to the Council in support of planning application 2014/2425 for the Goodsyard. The FVA details BGRL’s proposals for the Development and the financial implications and analysis of the same including the provision of affordable housing.
The financial implications and analysis in the FVA is the economic analysis used to assess whether the costs of constructing the proposed Development restricted BGRL from satisfying in full this Council’s requirements in respect of the provision of affordable housing and therefore falls with regulation 2(1)(e) of the EIR.
Your request, is therefore a request for environmental information as defined in regulation 2(1) of the EIR and so the consideration of your request for information under the EIR was correct.
Following the release of the redacted version of the FVA, this internal review has considered whether this Council has correctly applied the exception in regulation 12(5)(e) of the EIR in withholding the balance of the requested information as you suggested.
Background
Planning applications 2014/2425 and 2014/2427 were registered as being received by this Council on 30 September 2014.
Planning application 2014/2427 seeks permission to restore and repair the existing Grade II listed oriel and gates and adjoining historic structures amongst other things at the Goodsyard and so no financial viability assessment/financial information was submitted in respect of that application.
Planning application 2014/2425 was still under consideration at the time of your request and no decision had been made at that time whether to grant planning permission or not.
One of the considerations for this Council in deciding whether to grant planning permission or not, is whether it’s requirements in respect of the provision of affordable housing would be satisfied or not if the proposed Development were constructed.
The economic analysis in the withheld information is therefore essential to the Council’s determination of whether such requirements not being satisfied in full would be acceptable or not.
Reasons for decision
Regulation 12(5)(e) - commercial confidentiality
Regulation 12(5)(e) of the EIR provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect “the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest”.
In addition to considering whether this exception is engaged in respect of the remainder of the withheld information, it is also necessary to consider the public interest for and against disclosure.
The Information Rights Tribunal in Bristol City Council v Information Commissioner and Portland and Brunswick Squares Association (EA/2010/0012) adopted the following four stage test in order to decide whether the exception in regulation 12(5)(e) was engaged:
- Is the information commercial or industrial in nature?
- Is the information subject to confidentiality provided by law?
- Is the confidentiality provided to protect a legitimate economic interest?
- Would the confidentiality be adversely affected by disclosure?
All four elements are required to be satisfied in order for the exception to be engaged.
Is the information commercial or industrial in nature?
For information to be commercial or industrial in nature, it needs to relate to a commercial activity being undertaken by the Council or a third party.
Guidance issued by the Information Commissioner states that:
“the essence of commerce is a trade and a commercial activity will generally involve the sale or purchase of goods or services for profit.”
The FVA was submitted to support the planning application for the proposed Development submitted by BGRL to further its commercial interests. The assessment contains information about BGRL’s methodology, costings, land values, etc., for developing the Goodsyard in accordance with any planning permission granted in respect of the planning application.
As such the Council believed that the withheld information was commercial in nature and the first criterion was therefore satisfied.
Is the information subject to confidentiality provided by law?
Confidentiality may be imposed under a common law duty of confidence, contractual obligation or statute.
There is no statutory bar preventing the disclosure of the information due to its confidential nature.
This Council entered into a non-disclosure agreement in respect of the FVA. The confidentiality clause in this agreement covers the withheld information and the Council was therefore satisfied that confidentiality was imposed under a contractual obligation.
In respect of confidentiality imposed under a common law duty of confidence, guidance issued by the Information Commissioner states that the key issues to consider when deciding whether the common law duty of confidence applies to information are:
- Does the information have the necessary quality of confidence?
- Was the information shared in circumstances creating an obligation of confidence?
Quality of confidence
The guidance also states that information will have the necessary quality of confidence were it is not trivial and is not in the public domain.
The withheld information relating to BGRL’s proposals in the planning application for the Development will, because of its size, including number of residential units and floor space areas, have an effect on the local area.
The FVA has not been published on the Council’s website and has only been considered by a handful of officers and the external consultants appointed by the Council to assess/verify the findings within the FVA.
The withheld information the Council believed was clearly not trivial in nature nor was it already in the public domain for the reasons described above.
Obligation of confidence
The guidance further states that an obligation of confidence may be explicit or implied and may depend on any previous or standard practice regarding the status of the information.
A useful test to consider when determining whether an obligation of confidence should arise the guidance states, is whether a reasonable person in the place of the recipient of the information would have considered that the information had been provided to them in confidence - often referred to as the ‘reasonable person test’ Coco v A N Clark (Engineers) Ltd [1969] RPC 41.
The Information Rights Tribunal in the Bristol City Council case accepted that it was usual practice for all documents containing costings to be provided to a planning authority on a confidential basis even though planning guidance meant that the developer was actually obliged to provide the information as part of the public planning process.
The FVA itself is clearly marked as being private and confidential and the covering letter under which it was sent to the Council made it clear that BGRL considered the FVA to contain commercially sensitive information which was being disclosed to the Council on a confidential basis.
Considering the non-trivial nature of the withheld information, its very limited distribution and access, the confidentiality clause entered into in respect of FVA, and the usual practice of documents containing financial costings and information being provided to a planning authority on a confidential basis, which was confirmed in the covering letter under which the FVA was sent to the Council, it was considered that the withheld information had both the necessary quality and obligation of confidence and the second criterion was therefore satisfied.
Is the confidentiality provided to protect a legitimate economic interest?
The Information Rights Tribunal confirmed in Elmsbridge Borough Council v Information Commissioner and Gladedale Group Ltd (EA/2010/0106) that to satisfy this element of the test, disclosure of the confidential information would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect.
Solicitors acting for BGRL explained in their letter dated 6 November last year that the confidentiality in the withheld information is intended to enable BGRL to retain/improve its market position by ensuring competitors do not gain access to commercially valuable information, and maintain its bargaining position during negotiations with third parties relating to the proposed Development.
Such negotiations had not commenced at the date of your request for information as the proposed Development was still in the planning stage as no decision had yet been made by the Council whether planning permission should be granted.
Value of private residential space
The redactions in sections 2, 4, 7 and 8 and the redaction of appendices 9, 10, 11 and 15 detail the value of the proposed private residential space at the Development. Revealing BGRL’s assessment of private sales values at the proposed Development would adversely impact on its ability to negotiate with purchasers seeking to acquire the whole development site, the completed Development or a particular plot at the site.
For example, development sites such as this would normally be offered for sale either as a whole or part site once planning permission is granted and purchasers would undertake their own due diligence regarding the cost of constructing the proposed Development and sales values for the same. A range of offers would normally be expected and the purchaser who takes the most “bullish” view on sales will often be able to pay the most for the development site or particular plot at the same.
Having BGRL’s assessment about such costs/values made public would inevitably reduce the spread of values and BGRL would therefore be unlikely to achieve the same sale price compared to the situation where purchasers had to arrive at their own assessments on costs/sales values.
It would also adversely impact on BGRL’s ability to negotiate with buyers of the units, especially in respect of off-plan sales - 20% of which need to be completed before construction of the Development commences to meet funding requirements.
For example, potential buyers of the off-plan units could use the information that 20% of sales need to be completed before construction of the Development to negotiate a lower price than they would otherwise contemplate if they did not know of BGRL’s funding requirements.
The Information Rights Tribunal in the Royal Borough of Greenwich case believed that the eventual sales prices of the private houses and affordable housing are more likely to be influenced by the market rate at the time of disposal rather than assumptions recorded in the withheld information and was a factor which considerably diluted the potential harm that might result from disclosure of the withheld information in that case.
Although the Tribunal in the Royal Borough of Greenwich case were of the view that eventual sales prices of the private houses were unlikely to be of value and so there was unlikely to be any harm to the developer is this information was disclosed, it did not express any view regarding the harm that may result from the disclosure of this information in respect of commercial negotiation between the developer and a purchaser.
In London Borough of Southwark v Information Commissioner, Land Lease (Elephant and Castle) Limited and Adrian Glasspool (EA/2013/0162), the Information Rights Tribunal said that the developer’s calculations in respect of matters that are subject to commercial negotiation are commercially of great sensitivity. There is, the Tribunal stated, a real risk that future commercial customers would use the developer’s projections to their advantage in negotiations, which would be damaging to the developer’s profit and risk a knock on effect if not on the viability of the whole project, at least on the delivery of the social content.
There was every prospect of negotiations for the sale of the freehold reversion being entered into in the near future as planning permission had not been granted at the date of your request for information.
The disclosure of the withheld information relating to the value of the proposed private residential space would adversely affect BGRL’s ability to negotiate free, fairly and competitively with buyers/purchasers in the future as explained above to obtain the best possible deal, as they would be able to structure any offer they wished to make to what they considered BGRL would accept as they would know the specific financial information that makes the construction of the proposed Development viable and profitable for BGRL.
Freehold reversion/ground rents
The redactions in sections 2, 7 and 8 and the redaction of appendices 9, 10, 11 and 15 also detail BGRL’s assessment of the value of the freehold reversion and ground rents at the proposed Development. Revealing BGRL’s assessment of the value of the freehold reversion and ground rents would adversely impact on its ability to negotiate with purchasers seeking to acquire the freehold reversion of the proposed Development.
For example, it is common practice for developers to sell on the freehold reversion in their developments. Purchasers would undertake their own due diligence regarding ground rents at the proposed Development resulting in a range of offers being made for the freehold reversion.
The purchaser who takes the most “bullish” view on ground rents will often be able to pay the most for the freehold reversion. However, having BGRL’s assessment about ground rents would inevitably reduce the spread of values and BGRL would therefore be unlikely to achieve the same sale price compared to the situation where purchasers had to arrive at their own assessments on ground rents.
There was every prospect of negotiations for the sale of the freehold reversion being entered into in the near future as planning permission had not been granted at the date of your request for information.
The disclosure of the value that BGRL has put on its freehold reversion/ground rents would restrict its ability to negotiate freely, fairly and competitively with prospective purchasers in the future as explained above to obtain the best possible deal, as such purchasers would be able to structure any offer they wished to make to what they considered BGRL would accept as they would know what values BGRL had calculated in respect of the same.
Build costs
The redactions in sections 2, 3, 9, 10, 12 and 13 and the redaction of appendices 9, 12, 13 and 15 detail the build costs for the proposed Development. Revealing BGRL’s assessment of the cost of building the Development would enable a contractor interested in bidding to build the whole or part of the proposed Development tailoring their own bids to what they considered BGRL would accept, as they would know what costs BGRL had calculated in respect of the same.
BGRL would therefore be unlikely to achieve any cost savings from the construction of the proposed Development compared to the situation where contractors had to arrive at their own assessments on build costs.
There was every prospect of negotiations for the construction of the proposed Development being entered into in the near future as panning permission had not been granted at the date of your request for information.
The disclosure prior to any such negotiations of BGRL’s assessment of the cost of building the Development would restrict its ability to negotiate freely, fairly and competitively with prospective contractors in the future as explained above to obtain the best possible deal, as such contractors would be able to structure any bids they wished to make to what they considered BGRL would accept as they would know what costs BGRL had calculated in respect of the same.
Value of office and retail space
The redactions in sections 2 and 8 and the redaction of appendices 5, 6, 12, 14 and 15 detail the value of the proposed office and retail space at the Development. Revealing BGRL’s assessment of the value of the office and retail spaces would adversely impact on its ability to negotiate with prospective occupiers of the space.
The value of the office and retail space is based on a rent and yield calculation. Revealing BGRL’s assessment of the appropriate yield to apply to rental income would signal to the market that there was a price BGRL would accept for the space.
If that information was not public then some prospective occupiers may make a different assessment of the appropriate rent and yield, and therefore be prepared to pay more for the space.
However, if value of the office and retail space is disclosed then prospective occupiers would be able to structure any offers they wished to make to what they considered BGRL would accept as they would know BGRL’s rent and yield assessment for this space.
There was every prospect of negotiations for the occupation of the office and retail space being entered into in the near future as panning permission had not been granted at the date of your request for information.
The disclosure prior to any such negotiations of BGRL’s rent and yield assessment for the office and retail space would restrict its ability to negotiate freely, fairly and competitively with prospective occupiers in the future as explained above to obtain the best possible deal, as such occupiers would be able to structure any offers they wished to make to what they considered BGRL would accept as they would know BGRL’s rent and yield assessment.
Historic information
The Information Rights Tribunal in the Royal Borough of Greenwich case were of the view that the value of information to any competitor diminishes over time and as more time passes this effect will increase. In that case, the Tribunal’s view was that the value of information almost 12 months old can have been little more than historic.
The withheld information in the FVA was only four months old at the date of the request for information, which is a third of the length of time that the Information Rights Tribunal in the Royal Borough of Greenwich case considered the value of information to be little more than historic.
The withheld information the Council believed was clearly not historic and its value to any competitor not diminished as the information was only four months old at the date of your request for information.
The Council was satisfied that the disclosure of the withheld information in the FVA, and also the redacted FVA, would adversely affect BGRL’s negotiations relating to the proposed Development and its ability to secure the best possible deal as there was still every prospect of negotiations being entered into between BGRL and third parties once planning permission had been granted.
The Council believed that BGRL’s economic interest in the proposed Development, which the confidentiality of the withheld information sought to protect, would be adversely affected if such information was disclosed and the third criterion was therefore satisfied.
Would the confidentiality be adversely affected by disclosure?
The disclosure of truly confidential information into the public domain would inevitably harm the confidential nature of that information by making it publically available.
This would in turn, also harm the legitimate economic interests that have been described above, which the confidentiality provided by law is there to protect.
The Council was therefore satisfied that all four elements required for the purposes of Regulation 12(5)(e) of the EIR existed in respect of the withheld information and so its decision that the exception was engaged was correct.
Public interest test
Having determined that the exception in regulation 12(5)(e) was engaged, it was necessary to consider whether the public interest in maintaining the exception outweighed the general presumption in favour of disclosure.
As the Information Rights Tribunal noted in the Bristol City Council case, regardless of the fact that disclosure of the withheld information would involve a breach of confidence by Bristol City Council, there is nevertheless a presumption that it should be disclosed to the requester and only withheld if, in all the circumstances at the time of the request, the public interest in maintaining its confidentiality outweighed the public interest in its disclosure.
The Information Rights Tribunal in the Royal of Greenwich case stated that a general public interest in the maintenance of confidentiality cannot be the absolute keeping of confidences and could not accept that such a public interest added any significant weight against disclosure. However, the Tribunal did go on to explain that there is a strong public interest in protecting commercially sensitive decisions about price within the public interest in the prevention of harm to economic interests.
Public interest in disclosure
Transparency and participation in decision making
The general public interest in transparency, and decision making and participation, are paramount in environmental decision making to eventually lead to a better environment – first recital of European Directive 2003/4 on public access to environmental information.
The Information Commissioner’s guidance sets out that the Commissioner considers that the particular public interest in full participation in planning matters is likely to carry a significant amount of weight in favour of disclosure in such cases.
A view supported by the Information Rights Tribunal in the London Borough of Southwark and Royal Borough of Greenwich cases.
Enhance the public’s awareness of financial matters
The disclosure of the withheld information enhance the public’s awareness of the financial matters associated with the proposed Development was the Information Rights Tribunal believed in the Royal Borough of Greenwich case central to the public’s understanding of the difference between the viability and non-viability of a proposed development.
The Council was satisfied that there was public interest in disclosing the withheld information for the reasons explained above and the reasons stated in its refusal notice, were therefore correct.
Public interest in maintaining the exception
It was stated in the refusal notice that there were a number of reasons why the public interest in maintaining the exception outweighed the public interest in disclosing the withheld information each of which has been considered below.
Not greatly add to the public’s understanding of/assist their ability to comment on the proposed development
The Information Rights Tribunal in the Royal of Greenwich case stated that the argument that those receiving withheld information would be unlikely to understand it is, in its experience, never a useful objection to disclosure under the Freedom of Information Act or the EIR.
In that case, the requestor stated that he could have commissioned expert advice which the Tribunal accepted as it did in the London Borough of Southwark case, and which the requestor could also do in respect of the remaining withheld information in the FVA.
It is not considered that any weight can be given to this reason as expert advice could have been obtained in respect of the withheld information to increase the public’s understanding of/assist their ability to comment on the proposed development.
Lack of public interest in information per se
It is clear from the decisions of the Information Rights Tribunal in the London Borough of Southwark and Royal Borough of Greenwich cases that information about the provision of affordable homes is an important issue.
The Affordable Housing statement submitted with the planning application for the proposed Development provides that the amount of affordable housing will be 10% rather than this Council’s requirement of 50%.
This Council has received a lot of objections to what is seen as a low provision of affordable housing and it is not considered that any weight can be given to this reason as there is a clear public interest in the withheld information.
Lack of suspicion or wrongdoing or failure on the part of this Council
One of the factors that the Information Rights Tribunal in the Royal Borough of Greenwich case stated in their judgement told particularly in favour of full disclosure was the suspicions surrounding the company’s request to be relieved of a planning obligation freely negotiated by its predecessor immediately after increasing its interest in the proposed development.
BGRL is a joint venture whose partners have other interests in this Council’s area. This Council is not aware of wrongdoing on the part of the joint venture or its partners nor has any information been submitted by the requestor regarding the same.
In addition, this Council is one of the highest performing Councils in London in respect of the delivery of affordable housing.
There is no evidence of any wrongdoing on the part of BGRL or its partners or failure on the part of the Council in respect of the withheld information and this reason in the refusal notice was therefore correct.
Companies able to compete fairly
The Information Rights Tribunal’s view in the London Borough of Southwark was that inevitably considerations of commercial confidentiality and the need to avoid harm to commercial interests must be given full weight when assessing the public interests for and against disclosure when private sector profit making organisations are involved.
The Tribunal decided in this case that the disclosure of the developer’s calculations would damage profits as these calculations are commercially of great sensitivity, and therefore concluded that the public interest in maintaining the exception outweighed the public interest in disclosing the information.
The disclosure of the withheld information would for the reasons explained above restrict BGRL’s ability to compete on a level playing field with its competitors, and so this reason in the refusal notice was correct.
Release of current and update information would lead to significant commercial harm to the applicant
As in the London Borough of Southwark case, the disclosure of the withheld would damage BGRL’s profit as its ability to obtain the best deal and price would be adversely affected as explained above, and this reason in the refusal notice was therefore correct.
The Council is satisfied that there were public interests in maintaining the exception for the reasons given above, and the reasons in its refusal notice were correct, except for the reasons that such information would not greatly add to the public’s understanding of/assist their ability to comment on the proposed development nor that there was a lack of public interest in the withheld information.
Balance of the public interest
Having considered all of the above, the public interest in disclosing the withheld information and the nature and content of the withheld information which is intended to assist a private developer in delivering a commercial mixed development, the Council is satisfied that there is a stronger public interest in maintaining the exception due to the specific circumstances at the time of your request for information and the fact that no commercial negotiations had been entered into between BGRL and third parties.
The withheld information would be very useful to third parties interested in entering into agreements with BGRL in respect of the construction, occupation or purchase of the development site/proposed Development.
The Council is satisfied that the disclosure of the withheld information would adversely affect BGRL's ability to compete fairly in the market place and obtain the best deal and terms it possibly can. Disclosing truly commercial information is not in the public interest as it damages the commercial interests of third parties.
The decision in the refusal notice that the public interest in maintaining the exception outweighs the public interest in disclosure was therefore correct.
Progress chaser to ICO - 1 June 2015
To: ICO Casework
From: Nick Perry
Date: Monday 1 June 2015
Dear Mr Johnson
Thank you for your email in relation to my concern FS50570729. Please accept my apologies for the delay in responding.
The progress in relation to LB Tower Hamlets is noted. As I made clear in my original concern, time is a significant issue in FVA (Financial Viability Matters), and I am concerned that both authorities seem to wish to use all time available to them (and some) contrary to regulation 5(2) which imposes a statutory obligation upon the authorities to provide the requested information "as soon as possible". The delay gives rise to further public interest as it appears to be "gaming" the EIR regime in the hope that it might not conclude before a related planning permission is granted and so render disclosure impotent.
As to Hackney, you say it would need a separate case to address my concerns as the authority is different, although the information sought is the same, and you asked for any further correspondence from Hackney to be forwarded to you.
When I wrote to the Commissioner on 9 February 2015, I simultaneously wrote to to Hackney to request an Internal Review, advancing the arguments made to you in my complaint. I had no further correspondence from LB Hackney in relation to that request until last Friday 29 May 2015, when the authority provided a detailed Refusal Notice which helpfully addresses some of the arguments advanced to in my complaint. That response is attached.
I am not satisfied with the refusal notice from LB Hackney in both substance and timing. I do not accept that the information requested has the necessary quality of confidence (specifically it does, or ought not, protect a legitimate economic interest and it would not be adversely be affected by disclosure) and in any case believe the public interest test ought to favour disclosure. In addition to inviting the Commissioner to comment upon the excessive time taken by LB Hackney to resolve my request (142 days from request to IR resolution), I also ask him to pursue my concern in relation to the substance of the refusal.
Most of the points drawn out in LB Hackney's Refusal Notice, I have anticipated and addressed in my original concern stated 9 February 2015, and further in my emails to you on 2 April 2015 and (in particular) 11 May 2015.
I can, if it is helpful, make a more systematic response to Hackney's Refusal Notice but for the moment wish to address one point about the refusal of the authority to consider the Public Interest Test in relation to the information it did not (at the time) hold. I laid out my argument in my email of 2 April 2015 and LB Hackney quotes ICO guidance:
“the Commissioner accepts that if a public authority is refusing a request because it does not hold any information then it will not be able to carry out a meaningful public interest test. Public authorities are not therefore expected to include consideration of the public interest test in a regulation 12(4)(a) refusal notice.”
I would point out that regulation 12(4) was not drafted and made in error. It anticipates a type of information that an authority may not hold, but for which it could reasonably consider the public interest test. The contents of a report commissioned to consider information which itself has been the subject of a public interest test, can be anticipated in general terms if not in the detail. In fact this particular request is an excellent example of where one might be able to apply the public interest test without considering material - such as a damning conclusion in the report - which may otherwise erroneously persuade the authority to weigh more heavily against disclosure. The report was commissioned by the local authority and it is well capable of examining its scope and considering what it may or may not include so that it can conduct a public interest test and aid speedy resolution any subsequent EIR request for disclosure.
In summary, the request to both authorities are now at a similar position - ie. both have reached the conclusion of separate Internal Reviews.
I ask the Commissioner to consider my complaint in respect of both authorities, and in whichever way he sees fit, being mindful that my original requests were for the same information and invited both authorities to treat the request jointly in the interests of efficiency and convenience. They did not do so.
Regards
Nick Perry
Further progress chaser to ICO - 5 July 2015
To: ICO Casework
From: Nick Perry
Date: Sunday 5 July 2015
Dear Mr Johnson
I have not heard from the Commissioner's Office since 14 May 2015 despite further correspondence from myself on 1 June, which addressed some outstanding questions regarding the nature of my "dual" complaint. Can you please advise me of any progress in the matter without delay. Any delays on the parts of the local authorities are not acceptable, and must not be tolerated by the Commissioner, who has had cause to criticise such delays before (in the case of Hackney). Delays server purely to frustrate my enquiries in the light of an ongoing planning application to which the information relates. For your information, since our last correspondence, the authorities are in possession of new and revised information which would have been captured by my original request had it been submitted today, including:
- a "viability input tracker" supplied by BNPP which would satisfy item (2) of my request
- a further FVA and/or addendum to the first FVA in light of a revised scheme, and/or comments in relation to the BNPP "viability input tracker".
I have, today, submitted a further EIR request to both authorities to capture this additional information. Whilst this must not affect the timely progression of my outstanding complaint, the outcome of my complaint will plainly inform the resolution of the new request. In any event, I invite the Commissioner to conclude his investigation as soon as possible.
Regards
Nick Perry
Further correspondence with ICO - 18 August 2015
To: ICO Casework
From: Nick Perry
Date: Tuesday 18 August 2015
Dear Mr Johnson
I have not heard from the ICO since 14 May 2015. I wrote to you on 1 June 2015 to answer some outstanding questions and again on 5 July 2015 to chase my complaint. I have had no response (save for the automated acknowledgements) to either email. This three month radio silence, whatever the reason may be, is unacceptable. Efforts must be made to conclude the investigation AND in any event to keep me abreast of progress, particularly when requested. In the intervening period, I have had a response from the LB Hackney (an informal update which may be construed in part as a refusal) and LB Tower Hamlets (a formal refusal notice) to my request for closely related information that post-dated my original request, but which assesses it and to which I referred in my 5 July email. If this correspondence is useful to you then I can furnish it on request. In any event, please update me as to the progress of my complaint with 7 calendar days. Nick Perry
Progress update from the ICO - 21 August 2015
To: Nick Perry
From: ICO Casework
Date: Friday21 August 2015
Thank you for your email regarding the request for information relating to Bishopsgate Goodsyard. I would like to apologise for the delay in coming back to you on this matter.
In terms of an update, I can confirm that it is still our intention to produce a decision notice on the case, which will formally set out the Information Commissioner’s determination. As you will no doubt appreciate, viability information cases are complex and require detailed consideration. Notwithstanding this point, I am mindful of the length of time the complaint has already been with us. While I am unable to give you a specific date by when the decision notice should be served, please be assured that we will be making every effort to resolve this matter within a reasonable timeframe.
I trust this letter clearly sets out the current status of the investigation but please let me know if any further clarification is required.
Yours sincerely
Alun Johnson
Senior Case Officer
Second Request
Second request to LBH & LBTH - 5 July 2015 (R2)
To: LBH, LBTH
From: Nick Perry
Date: Sunday 5 July 2015
Re: EIR / FOI request for viability information relating to Bishopsgate Goodsyard (a) Please supply:
- copies of any Financial Viability Assessment(s) ("FVA")
- copies of any reports prepared to assess or verify the above on behalf of either the LPAs or Applicant
- copies of any briefs or instructions in relation to (2), above
in relation to the planning applications with references:
- LB Tower Hamlets: PA/14/02011 and PA/14/02096
- LB Hackney: 2014/2425 and 2014/2427
- Any other application submitted or revised since September 2014
for the site know as "Bishopsgate Goodsyard"; (b) Please also supply, by way of summary:
- a list of documents which meet the criteria above (whether or not you provide them to me), indicating the title, authorship, length in pages, date of publication, date of receipt
- for documents that are not yet in the authority's possession but can be reasonably anticipated, a non-binding indication of when they might be expected and from whom
Please acknowledge receipt of this request by return.
Background and information to assist in this request
A similar EIR request was made on 4 November 2014 for items (1) and (2) above. The request had references FOI14-1106-09373 (LBH) and EIR 11761 (LBTH) and resulted in the part satisfaction of (1) insofar as it applied at the time. Both requests are the subject of an ongoing ICO complaint with reference FS50570729.
It is understood that the applicant has recently submitted a revised FVA in relation to the scheme which was not captured by the previous request. Similarly (2) was refused on the (disputed) ground that the information did not exist at the time of the request. I further understand that documents now exist which satisfy this criteria (apparently authored by BNPP) and more are likely to have been commissioned.
This request is intended to capture that information not previously disclosed under the earlier request. There is considerable correspondence relating to the previous requests and in particular the exceptions relied upon in refusing full disclosure. In view of this, there can be little reason for either authority to need the full 20 working days permitted, and this request should be dealt with "as soon as possible" in line with Regulation 5(2).
Nick Perry
The Hackney Society
Refusal Notice (R2) from LBTH - 10 August 2015
From: LBTH Information Governance
To: Nick Perry
Date: Monday 10 August 2015
Ref: EIR 13314
Dear Sir/Madam
A request for information in relation to the viability assessments related to the redevelopment of Bishopsgate Goods Yard is currently with the Information Commissioner for a ruling. Pending this ruling the Council maintains its previous position with regards to the release of viability assessment information pursuant of part (a) of this FOI request. That is to say
It is the view of the Council that this request falls under the Environmental Information Regulations 2004 as it concerns the built environment.
It is recognised that merely stamping a document private and confidential does not guarantee it will be confidential. However, the Council has gone on to consider this further and believe the information to possess the necessary quality of confidence coupled with the commercial sensitivity.
Regulation 12(5)(e) the confidentiality of commercial and industrial information where such confidentiality is provided by law to protect a legitimate economic interests
Regulation 12(5)(f): Interests of the person who provided the information to the public authority
Section 12(5)(e) and (f) exceptions of the Environmental Information Regulations 2004 have been applied because the information sought relates to a Financial Viability Assessment in respect of the Planning Application for the site at the former Bishopsgate Goods Yard. Tower Hamlets Council has a number of regeneration schemes at different stages and disclosure of the terms of this agreement could adversely affect future agreements as it would disclose information that would or would be likely to prejudice the Council’s ability to obtain best value from this and future development agreements. This development scheme is still ongoing. Disclosure of the terms of the agreement would or would be likely to prejudice the commercial interests of our development partner. The Council has released a considerable amount of information regarding the development project in the Cabinet report which can be viewed on its website
Public Interest Test
The factors in favour of disclosure are that there is a clear public interest in disclosure to promote transparency and accountability of public authorities, greater public awareness and understanding of environmental matters, and more effective public participation in environmental decision making, all of which ultimately contribute to a better environment. The factor against disclosure is that the public interest in planning applications for the local area is adequately protected by the planning application process itself. Such interests are safeguarded by the role the council plays on behalf of the public in reviewing and discussing the application. information relates to a commercial activity, concerning a development scheme which is still ongoing and disclosure of such information is likely to be injurious to the commercial and economic interests of the Council, and the developer in securing and negotiating terms for future developments, particularly in the competitive environment which now exists. The information requested contains a quality of confidence and is not available in the public domain; it is therefore protected under the common law of confidence and contracts in that the contract creates an explicit obligation of confidence.
With the passage of time, the commercial sensitivity of some information decreases, however in this case the timing of the disclosure is of critical importance as the agreement is still on-going. The Council considers that disclosure of sensitive information would be likely to prejudice commercial negotiations with other developers/partners if they knew the structure of this deal and how their own deal compared. Having weighed the factors both for and against disclosure the public interest will not be served by disclosing the information requested as detailed above.
Regulation 13 (personal data)
The requested information also contains the personal data of other people. Regulation 13 of the Environmental Information Regulations 2004 sets out an exemption for third party data if:
disclosure would contravene any of the data protection principles (section Regulation 13(2)(a)(i).
The first data protection principles states that we can only disclose the personal data if to do so would be fair, lawful and meet one of the conditions in Schedule 2 of the DPA (and in the case of sensitive personal data, a condition in Schedule 3) This means that, if the disclosure would not be fair, the information must not be disclosed. It is considered that the provision of this information would not be fair as the person it relates to would not expect the information to be released in this way.This is an absolute exemption and the information cannot be provided to you.
This is an absolute exemption and the information cannot be provided to you. I am sorry that your request is not being met on this occasion.
This constitutes a Refusal Notice under the EIR Act.
Pursuant of part (b) of this FOI request below is the list of documents relating to the FVA, 1 and 6 are the applicant’s viability assessments. 2,3 and 4 are in response to discussions and 5 is BNPP’s review on the initial scheme. If the scheme is revised these documents can reasonably be expected to revised and updated.
- DS2 Financial Viability Assessment August 2014;
- BNPP Viability Tracker dated April 2015;
- DS2 response to the Viability Tracker dated May 2015; and
- DS2 note on Site Value for Viability Purposes dated February 2015.
- BNPP Review of ‘Financial Viability Assessment’ July 2015
- DS2 Amended Scheme Financial Viability Assessment July 2015
Yours faithfully
Jane Jones
Information Governance Administrative Officer
Third Requests
First request to GLA - 22 October 2015 (R3A)
To: Mayor of London
From: Nick Perry
Date: Thursday 22 October 2015
Dear GLA
This is a request made under the Environmental Information Regulations 2004 for information held by the Greater London Authority in relation to two applications for planning permission taken over by the Mayor of London for the site known as the Bishopsgate Goodsyard with the following references:
- GLA Ref No. D&P/1200c&d
- Local Planning Authority Ref. 2014/2425 (Hackney) & PA/14/02011 (Tower Hamlets)
1) Please provide all information held in relation to the above application for planning permission, relating to the financial viability of the proposals and/or used to assess the viability and costs of the development and the provision of affordable housing.
Such information includes but is not limited to:
- A Financial Viability Appraisal (FVA) in support of the application authored by DS2 and submitted to the boroughs in September 2014 - a redacted version of which has already been released to me by the boroughs following a similar EIR request
- The notes of a meeting between the borough and the applicant (and/or its advisers) on 28 November 2014 such as it relates to viability and affordable housing
- A viability tracker apparently authored by BNP Paribas Real Estate (BNPPRE) on behalf of the boroughs and issued on or about 2 April 2015
- A response to the tracker authored by DS2 issued on or about 11 May 2015
- A BNPPRE assessment report of the July 2014 submissions issued on or about 15 July 2015
- A DS2 response to the BNPPRE report issued on or about 29 July 2015
- A revised DS2 FVA for the revised scheme issued on or about 31 July 2015
- Notes of a meeting between the boroughs and the applicant (and/or its advisers) on 3 August 2015 such as it relates to viability and affordable housing
- A revised appraisal issued after the 2 August 2015
- Any assessment on the cost plans by Gardiner & Theobold submitted as part of the FVA(s), apparently undertaken by WT Partnership on behalf of the boroughs.
- Any further reports from BNPPRE expected anticipated October.
2) For any information falling within the scope of (1), whether disclosed or refused, please provide for each document:
- document title / identifier
- date
- authorship
- length in pages
Some parts of this request were captured in requests made to the boroughs and documented at http://hackneysociety.org/page/goodsyardfoi
I ask you to consider the argument I advanced in those requests to the boroughs in considering this request and in view of the considerable public interest and need for participation in the planning process, come to a decision as soon as possible.
Nick Perry
Director, The Hackney Society
Third Request to LBH & LBTH - 28 October 2015 (R3B)
To: LBH & LBTH Information Management, et al
From: Nick Perry
Date: Wednesday 28 October 2015
[request as above, plus]
Background and notes
An identical request was made on 22 October to the GLA. As at the writing of this request it has not been assigned any reference by the GLA.
You are already in receipt of two EIR requests to each borough (four in total) for fundamentally the same information, but made at different times so as to capture the latest additional information. This third request is similarly intended to capture all the latest information relation to the viability of the proposal.
However:
- You will be aware that the Information Commissioner takes a strict, rather than common-sense approach to the scope of a request and considers any information which is not in the possession of the authority at the time of a request as out of scope, and so insists on further requests to capture later information. I maintain this is not wholly consistent with the Regulations which allow for information NOT held at the time of the request to be considered, and I reserve my position on that point, so make this further request for the avoidance of doubt, as an alternative resolution on that point.
- I am aware that it is the view of the High Court that, outside of the FOI/EIR regime, there is no requirement for local authorities to share information supplied to each in confidence (Luton BC v Central Bedfordshire C & ors [2014] EWHC 4325 (Admin) paras 170-196) so it does not follow that the information held by the London Boroughs of Hackney, the London Borough of Tower Hamlets and the Greater London Authority are the same in respect of this request.
For the two reasons above, I ask that you consider this third request in its entirety, as a standalone request.
My previous requests made to the boroughs are partially documented at http://hackneysociety.org/page/goodsyardfoi
- Request 1 - 4 November 2014
- LBH: FOI14-1106-09373 Partially refused after internal review.
- LBTH: SEIR 11761 Partially refused after internal review.
Both requests are Currently with the ICO Reference FS50570729
- Request 2 - 5 July 2015
- LBH: FOI15-0707-14133 addressed informally in emails on 16 July (de facto refusal)
- LBTH: EIR 13314: Refused 10 Aug 2015
I ask you to consider the argument I advanced in those requests in considering this request and in view of the considerable thought already applied to those requests and the public interest and need for participation in the planning process, come to a decision as soon as possible.
Nick Perry
Director, The Hackney Society
Acknowledgement from LBTH - 29 October 2015
To: Nick Perry
From: Rob Brew, LBH
Date: Thursday 29 October 2015 Nick
I have taken on the responsibility of collating the information you have requested and drafting the formal response to your request.
Towards the end of your email you mention your second FOI request, which was for the draft report prepared by BNP Paribas that gives an assessment of the original FVA submitted by the applicants to assist LBH and LBTH in their assessment of the proposed development. As your new request also encompasses that document your new request supersedes your previous request, and I shall close our administrative record of the previous request.
I have so far not been able to get the applicant’s comments on whether they consider any of the contents of the BNP report to be excluded from release by virtue of commercial sensitivity, which is why I have not responded as yet. I don’t think this is a de facto refusal. I note that LBTH refused to release the document, and although my response for LBH has not yet been properly considered I would have thought it likely that there is information in the BNP report that could and should be released.
I hope to collate all the relevant info we have very soon and get comments from the applicant in time to respond within the 20 day target (I will make sure that I give the applicant a deadline for their response to prevent delay).
Regards
Rob
Update from LBH - 10 November 2015
From: Rob Brew, LBH
To: Nick Perry
Date: Tuesday 10 November 2015
Nick
I have almost collated all the relevant viability info for you with just a couple of documents left to find. I will need to send them to the developer to seek their view on confidentiality before we release them (to be balanced against public interest of course). There are some documents that I will also need to seek BNPP’s view on before sending them to the developer as some of the viability info we have has not yet been seen by the developer and BNPP have previously asked us not to send it to them. However, as those documents provided by BNPP may include info taken from the FVA that was redacted from the released FVA version I should check with the developer to see if any commercial confidentiality would be transgressed.
As with everything else with the Goodsyard it’s all a bit complicated, but I am still hoping to get a response to you within the 20 days, which I think is up at the end of next week.
Regards
Rob
Refusal Notice (R3A) from GLA - 17 November 2015
Sent by post - not received until Jan 2016
Nick Perry
Director
The Hackney Society
Our Ref: MGLA231015-7624
17 November 2015
Dear Mr Perry,
Environmental Information Regulations 2004 request
Thank you for your request for information which the GLA received on 22 October 2015. Your request has been dealt with under the Environmental Information Regulations 2004 and we can today provide you with a response to your request. Your request asked for the release of the following information:
[request R3A repeated]
Regulation 12(4)(a) of the Environmental Information Regulations 2004 provides that a public authority may refuse to disclose the requested information to the extent that it does not hold that information when an applicant's request is received.
I can therefore confirm that this information is not held by the GLA because this type of viability information is not normally provided directly to the GLA. Such information is in the possession of BNP Paribas Real Estate who will be providing an independent assessment report in due course. As yet we have not received this report. The notes of meetings you refer to are also not held by the GLA and provision of information relating to such meetings would be the responsibility of Hackney and Tower Hamlets Councils.
The GLA is therefore unable to answer your request.
lf you have any further questions relating to this matter, please contact me, quoting the reference at the top of this letter.
Yours sincerely
Matt Christie
Senior Strategic Planner
Development & Projects
Update from LBH - 27 November 2015
From: Rob Brew, LBH
To: Nick Perry
Date: Friday 27 November 2015
Nick
It has not yet been possible to get all the information collated and screened for the commercial sensitivity/public interest test and so I have to inform you we need the 40 days allowed by the Regs. This takes us up to 23rd December, but we should be able to release the information before then. The list of documents, which has expanded since your FoI request came in, that we are seeking to release is:
Initial FVA appraisal by BNP Paribas dated November 2014;
Viability appraisal input tracker dated 01/04/15;
Email from DS2 dated 11/05/2015 (attached to which is: email dated 22/04/2015 from Ballymore regarding NHBC fees; a non-recoverable VAT estimate dated 27/03/2015; copy of viability input tracker dated 01/04/2015; email from DS2 regarding non-recoverable VAT; copy of revised commercial offer date 15/11/2006; response to BNPP Viability input tracker from DS2 dated 08/05/2015.)
Review of FVA by BNP Paribas dated July 2015;
Response to BNP Paribas Review from DS2 dated 29/07/2015;
An FVA prepared by DS2 for the amended scheme (at the moment we only have a paper copy of this which Russell has with him, but I think it is dated August 2015);
Review of Amended FVA by BNP Paribas dated November 2015.
I’ll be in touch again.
Regards
Rob
Refusal Notice (R3B) from LBTH - 1 December 2015
To: Nick Perry
From: LBTH
Date: Tuesday 1 December 2015
FOI: 2098865
[request repeated]
Environmental Information Regulations 2004
Request Part (1)
It is the view of the Council that this request falls under the Environmental Information Regulations 2004 as it concerns the built environment.
It is recognised that merely stamping a document private and confidential does not guarantee it will be confidential. However, the Council has gone on to consider this further and believe the information to possess the necessary quality of confidence coupled with the commercial sensitivity.
Regulation 12(5)(e) the confidentiality of commercial and industrial information where such confidentiality is provided by law to protect a legitimate economic interests
Regulation 12(5)(f): Interests of the person who provided the information to the public authority
Section 12(5)(e) and (f) exceptions of the Environmental Information Regulations 2004 have been applied because the information sought relates to a Financial Viability Assessment in respect of the Planning Application for the site at the former Bishopsgate Goods Yard. Tower Hamlets Council has a number of schemes at different stages of the process and disclosure of the detail of this assessment could adversely affect future developments as it would disclose information that would or would be likely to prejudice
the Council’s ability to secure the best outcome from this and future developments. This development scheme is still ongoing. Disclosure of the terms of the agreement would or would be likely to prejudice the commercial interests of the development.
Public Interest Test
The factors in favour of disclosure are that there is a clear public interest in disclosure to promote transparency and accountability of public authorities, greater public awareness and understanding of environmental matters, and more effective public participation in environmental decision making, all of which ultimately contribute to a better environment. The factor against disclosure is that the public interest in planning applications for the local area is adequately protected by the planning application process itself. Such interests are safeguarded by the role the council plays on behalf of the public in reviewing and discussing the application.
In this case, the application has been called-in by Boris Johnson, the Mayor of London. This means the application will now be determined by the Mayor of London. The council will safeguard the interests of local residents and business by ensuring that the views of the council, as the local planning authority, are submitted to the Mayor of London. The council’s Strategic Development Committee is meeting on 10th December 2015 to agree those comments. The comments will be informed by the views of local residents, businesses and organisations which have been received as part of the council’s consultation process on the application.
Information relates to a commercial activity, concerning a development scheme which is still ongoing and disclosure of such information is likely to be injurious to the commercial and economic interests of the Council, and the developer in securing and negotiating terms for future developments, particularly in the competitive environment which now exists. The information requested contains a quality of confidence and is not available in the public domain; it is therefore protected under the common law of confidence and contracts in that the contract creates an explicit obligation of confidence.
With the passage of time, the commercial sensitivity of some information decreases, however in this case the timing of the disclosure is of critical importance as the agreement is still on-going. The Council considers that disclosure of sensitive information would be likely to prejudice commercial negotiations with other developers/partners if they knew the structure of this deal and how their own deal compared.
Having weighed the factors both for and against disclosure the public interest will not be served by disclosing the information requested as detailed above.
Regulation 13 (personal data)
The requested information also contains the personal data of other people. Regulation 13 of the Environmental Information Regulations 2004 sets out an exemption for third party data if:
disclosure would contravene any of the data protection principles (section
Regulation 13(2)(a)(i).
The first data protection principles states that we can only disclose the personal data if to do so would be fair, lawful and meet one of the conditions in Schedule 2 of the DPA (and in the case of sensitive personal data, a condition in Schedule 3) This means that, if the disclosure would not be fair, the information must not be disclosed. It is considered that the provision of this information would not be fair as the person it relates to would not expect the information to be released in this way.
This is an absolute exemption and the information cannot be provided to you.
Request Part (2)
1. DS2 Financial Viability Assessment August 2014 - 61 pages plus 15 appendices.
2. BNPP Viability Tracker dated April 2015 – 3 pages
3. DS2 response to the Viability Tracker dated May 2015 – 12 pages
4. DS2 note on Site Value for Viability Purposes dated February 2015 - 9 pages.
5. BNPP Review of ‘Financial Viability Assessment’ July 2015 – 19 pages plus 1 appendix
6. DS2 Amended Scheme Financial Viability Assessment July 2015 – 34 pages plus 24 appendices
BNP Paribas’ Review of DS2 Amended Scheme Financial Viability Assessment July 2015 was received on 18th November – 24 pages plus 2 appendices.
This response therefore acts as a refusal notice under regulation 14 of the Environmental Information Regulations.
Updates from LBH - 15 January 2016
From: Rob Brew, LBH
To: Nick Perry
Date: Friday 15 January 10:12 am
[...]
In terms of your second FoI request, I have given the developer until the end of this month to provide agreed redacted versions of the documents I listed in a previous email to you, otherwise we will make our own judgement on the commercial confidentiality/public interest test. I’m sorry it is taking so long, but there is a lot of information involved.
Regards
Rob
PS I know that your requests are EIR requests and not FoI requests but we generically refer to them as FoI requests as that is how they are recorded on our monitoring systems.
From: Nick Perry
To: Rob Brew, LBH
Date: Friday 15 January 12:46 pm
[...]
3. As to my second EIR/FOIA[FOI15-1029-11317] - Inote your response. Obviously I still say that there should be little that can be justified for redaction and to be useful I need to see the documents soon. I encourage you to drip feed them to me (starting with the latest) if that speeds up the process. I would also add that significant details were released orally by Dr Anthony Lee and in the Officer's Report before the planning Sub-committee in December and presumably also before the Tower Hamlets committee - these details are therefore now in the public domain so must not be withheld. You will be aware the ICO takes an overly strict view on the scope of a request with regard to the request date. so for the avoidance of doubt, can you confirm you will be considering material that would satisfy the request were it submitted on the day you answer it? i.e. you will include information after the date of my request (29 October 2015) - including, crucially the final BNPPRE report, and that I do not need to keep making the same request again. Thanks
Nick
From: Rob Brew, LBH
To: Nick Perry
Date: Friday 15 January 14:29 pm
[...]
As for the date of info, I am trying to get all relevant info released, including that which post-dates your request, including the final BNP report. It looks like I’ll be meeting with the developers early next week so I’ll get all documents as and when they are ready.
Have a good weekend
Rob
Request for Internal Review to GLA - 20 January 2016
From: Nick Perry
To: GLA, Mayor of London
Date: Wednesday 20 January 2016
Subject: Request for Internal Review of an EIR request MGLA231015-7624
Dear Sir I am in receipt of a letter dated 17 November 2015 from Matt Christie which constitutes a refusal notice in relation to my EIR request of 22 October 2015 (repeated below).
1. Correspondence
Firstly, I received your decision only by post, however my request was made via email and I expected your response via email (not least because the Directive* places emphasis on 'electronic means').
For various reasons the response did not reach me until mid January 2016. I ask you to conduct any further correspondence by email, or, in extremis, via post to Nick Perry, [redacted]
* the European Council Directive 2003/4/CE on public access to environmental information
2. Request for Internal Review
I am writing to request you review your decision of 22 October 2015 which is a refusal relying on Reg 12(4)(a) which provides that a public authority may refuse to disclose the requested information to the extent that it does not hold that information.
You go on to claim "this information is not held by the GLA", but then state the same information is "in the possession of BNP Paribas Real Estate who will be providing an independent assessment report".
Reg 3(2) of the EIR states:
3. (2) For the purposes of these Regulations, environmental information is held by a public authority if the information—
(a) is in the authority’s possession and has been produced or received by the authority; or
(b) is held by another person on behalf of the authority.
As my emphasis shows, information held by a third party (whether that be BNP Paribas Real Estate, other boroughs, or any other party), for the GLA is within scope of my request and should be addressed accordingly.
The information is necessary for determining the related planning applications which the Mayor of London called in on 23 September 2015. It is plainly the case that the Mayor and officers will be relying on some or all of the information (such as, but not limited to, that held by BNPPRE) described in my request, in order to reach a planning decision. It is, therefore 'held' by the authority for the purposes of this request.
3. Information now in the public domain.
Furthermore, some of the details which are contained in the information captured by my request (and information which would be captured if it the request were made today) have been abstracted and released in to the public domain by the London Boroughs of Hackney and Tower Hamlets in the December Officers' Reports to their respective planning committees and in oral reports to the same.
4. Public interest in favour of disclosure
I again ask you to give due consideration to the arguments advanced in my earlier requests to the local authorities, in particular those made by the First Tier Tribunal in Greenwich v IC which presents a strong case for the public interest in favour of disclosure of viability information in a matter which is on all fours with my request.
5. Scope of my request and a further EIR request.
A common-sense reading of the purpose of the Regulations would require that in considering your response you take into consideration all information first held by the authority before the date of your Internal Review (i.e. beyond merely the date of my request). I am aware that the Information Commissioner and tribunals have on occasion, taken a stricter view and I therefore ask you to consider this email both
a) a request for internal review of my first request dated 22 October 2015;
and
b) a separate request for all the information requested in my email of 22 October 2015 (below) which now falls in scope (i.e. additionally incorporates such information first held after 22 October 2015).
Notwithstanding this, and in the interests of efficiency, I invite you to take a common sense approach when conducting your Internal Review and consider all materials first held by the date of your review.
6. Staying the planning decision
The EIR implement the EU Directive and the Aarhaus Convention. The Directive and the Convention's purpose is to facilitate more effective participation by the public in environmental decision-making. The Directive, plainly requires that the information in my request be provided to me before the relevant planning decision is taken (and with due time to consider the contents of the information disclosed) in order to effect that public participation.
It is therefore imperative that my request is fully resolved and the information is provided before the planning decision is taken, and in any event that the internal review and new request are answered "as soon as possible" (Reg 5(2)).
Regards
Nick Perry
Director, The Hackney Society
Internal Review from GLA (Refusal Notice) - 17 February 2016 (IR3A)
From: GLA, Corporate Management
To: Nick Perry
Date: Wednesday 17 February 2016
Our ref: MGLA210116-3325
Dear Mr Perry,
Freedom of Information (FOI) Internal Review: EIR request for Bishopsgate Goodsyard.
Thank you for your request for an internal review which the Greater London Authority (GLA) received on 21 January 2016. As an individual who was not involved in the initial handling of your request, I have undertaken an independent review of all aspects of this request.
I have considered whether the correct procedures were followed in handling your request and whether the GLA has met its obligations set out under the Freedom of Information Act. The findings of this review are set out below.
Background
[omitted - repeat of the 23 Oct 2015 request]
Your complaint
You requested an internal review on 4 February 2016 [sic] asking:
[omitted 20 Jan 2016 request for internal review - though referred to as 4 Feb 2015]
Internal Review
Having reviewed the response sent to you, I can confirm that we have answered your initial response in line with the provisions of the EIR regulation and we can again confirm that the GLA does not hold the information that you have requested. It was therefore appropriate for the GLA to rely on regulation 12(4)(a) in our response of the 17th November 2016.
In response to your comments about correct interpretation of regulation 3(2) of the EIR (as above), I would respectfully direct you to the following guidance published by the Information Commissioner’s Office regarding this particular provision of the Environmental Information Regulations - https://ico.org.uk/media/for-organisations/documents/1640/information_held_for_the_purposes_of_eir.pdf
In summary, information is not considered to be held on behalf of a public authority where a third party holds that information for their own purposes, and not at the request of the public authority.
In this instance, BNP Paribas Real Estate hold information for their own purposes in order to provide their independent assessment to the GLA when it has been concluded. This information is not being held by then at our request or on our behalf.
An example used in the aforementioned ICO guidance about when information would be considered to be held on behalf of a public authority (and therefore subject to the interpretation of limb (b) of reg.3(2), would be where a solicitor holds certain records on behalf of a public authority as a result of their contractual arrangements to provide legal advice to that authority. Alternatively, another example would be where an external company is responsible for providing archiving and storage services for a public authority. In this case, the archiving holds those archived records on behalf of that public authority, making those records subject to the provisions of the EIR.
The fact that BNP Paribas Real Estate are involved in this matter an may ultimately hold information the relates to this request (and that may subsequently become information held by the GLA), does not automatically open up all of their information to the provisions of either FoIA or EIR.
The considerations surrounding the public interest in disclosure do not apply in this instance. The GLA does not hold the information covered by your initial request and there were no records to consider disclosing.
I would also add that the Greenwich v ICO Tribunal hearing (EA/2014/0122) relates to the very specific and unique circumstances of that particular development where there were exceptional public interest grounds in disclosure that overrode the acknowledged commercial-confidentiality concerns that were engaged by that viability assessment. In any event, this provision is not applicable to this Internal Review because the GLA did not withhold any information subject to your initial request because none was held.
Finally, both the Freedom of Information Act and the Environmental Information Regulations are explicit in that they only apply to information that is held at the time the request is received by a public authority. Neither are designed to be interpreted in such a manner that they would be applied retrospectively to information that a public authority might hold after the time a request has been received.
To this end, we have considered the part of your request that asks for all information now held by the GLA since the 22nd October 2015 as a new request which will be addressed in a separate letter.
On this point, while I can confirm that the GLA does now hold some of the information (i.e. since the 22nd October 2015) we are unfortunately not in a position to provide you with our response at this time.
Regulation 7 of the EIR provides that a public authority may extend the twenty working day deadline by an additional 20 working days when handling particularly complex requests. The complexity of the information covered by your new request has meant that it is impractical for us to be able to provide you our response within the twenty working day deadline
We will continue to try and provide you with our response to your request as soon as possible, and no later than the 16th March 2016.
I hope this letter has helped clarify our initial response, and I am sorry that we are not able to assist you further with your enquiry, but I can only again confirm that the GLA did not hold any of the information you had requested at the time your request was received.
Returning to this Internal Review, if you remain dissatisfied, you may make a complaint to the Information Commissioner and ask him to investigate whether the GLA has complied with the provisions of the Freedom of Information Act. You can contact the Information Commissioner at the following address:
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
SK9 5AF
http://www.ico.org.uk/complaints
If you have any further queries relating to your new request of the Internal Review then please get in touch.
Yours sincerely
Ian Lister
Information Governance Manager
Ian ListerInformation Governance Manager
This page was added on 05/11/2014.