Our Council stand accused of planning to muzzle the
infamous planning committee Wednesday evening in a move described as "disgraceful" by Opposition Leader Stephen Cowan.
They plan to introduce a Protocol which will empower Council officials to deny access to information about property developer's plans to radically re-shape the local area in which we live. Using phrases like "need to know" and stipulating that opposition councillors must justify their requests for information by explaining "the uses to which it will be put" while warning that "no reference to it can be made in public" - it is a disturbing document.
Earlier this week I was emailed a copy of the meeting's agenda, complete with highlights, by the local Liberal Democrats who smelt a rat. In it the Council are asking the Planning Applications Committee (PAC) to approve what it says is an "urgent" Protocol which would restrict councillors from seeing certain documents relating to planning applications from property developers on the grounds of "commercial confidentiality".
I have to say this would have completely passed me by if they hadn't, but I did some digging and it does appear there is something afoot here, about which the Labour opposition are up in arms.
Before I go any further let's be clear why this is important for local democracy, and for the local area as a whole. As any reader of this blog since I started it 3 years ago will know, this Council has some serious form when it comes to over-riding local residents on the side of property developers. On rare occasions the residents win out, and force a retreat,
as hapenned over the Ashchurch Grove decision in June last year. But most of the time the Council simply steamroller all before them, such as the
Goldhawk Block in September 2009, at a Planning Applications Committee meeting I still remember vividly for being
hot, stormy and frankly bizarre. But not democratic.
So the fact that this ammendment, which will restrict councillors ability to see the financial modelling which lies behind planning decisions being put forward really does matter. Mainly because the financial modelling contains the information on whether or not social housing will be provided as part of residential developments. This is frequently not the case, or at the very least left vague, such as
the row over the redevelopment of the White City area next to Westfield I reported in April this year.
The local Tories are often charecterised by their political opponents here as nothing better than Dame Shirley Porter, who infamously engineered the removal of poorer people from Westminster who she suspected of voting Labour. Ken Livingstone repeats this claim, usually in the same breath
as calling for them to be jailed.
I don't go along with that. For what it's worth I think our local Council are yes, very right-wing, but then that's what they were elected on by local people. And I think their agenda is one more of impatience to transform the borough in ways that they think are in the best interests of stimulating growth, as Council Leader Greenhalgh
outlined to a debate I attended at the Conservative Party conference in Manchester earlier this year. At that meeting it was clear he felt frustrated at not being able to do more, and faster, rather than the other way around! Those are not inherently bad intentions.
But the criticism I do think is very valid of changes like this, being pushed through without any publicity either from them or the local media, is that it will fundamentally restrict the visibility of their decisions. In future they may well be able to simply ignore questions about why there are not more plans to build affordable local housing by using some "commercial confidentiality" clause, instead of laying the figures out for all to see. And question. Including the local residents who will have their lives affected.
As Councillor Cowan said to me earlier today:
"It's happening to disguise why H&F Conservatives' don't grant permission for any genuinely affordable social housing. It is a disgraceful undermining of the role of the Planning Applications Committee (PAC) and Cllr. Alex Chalk (Con) the Chair should be ashamed of himself for not having championed his committee's rights".
"This has come about because the Conservative Administration keeps using the "Three Dragons" financial modelling to explain why it is able to ignore H&F Council's planning policies and the Mayor's London Plan so it can avoid forcing developers to include affordable social housing in their schemes. Given that H&F Conservatives haven't granted permission for a single rented affordable social home since coming to power, five and a half years ago, it's hard to see the use of this model as anything other than a cynical manipulation of the planning processes for party political purposes".
"At the PAC on the 23rd September 2011, Labour’s there PAC members asked to see the calculations behind the Three Dragons financial model for the St. George's Fulham Reach scheme - which predictably had no affordable social housing. My colleagues rightly said that the PAC members needed to consider this critical information when making such a controversial decision and they had a right in law to view it. The planning officers had previously refused to send this info for other schemes but now agreed that PAC councillors did in fact have a right see it. They said it should have been requested in advance but would send it. However... they prevaricated, resisted sending it (despite further requests in writing) and now argue that because the decision has been made the PAC members no longer need to see that information for that scheme".
"They have now rushed through this draft protocol which seeks to diminish the rights of PAC councillors to see all of the financial modeling used to justify ignoring Borough and London planning policies on affordable housing. My colleagues believe they are being bounced. It's disgraceful".
But a Council spokesperson, speaking to me this afternoon said this:
"Our planning application committee operates in the same way as almost all those in other councils, and this protocol is merely a clarification to councillors of the current rules that any information they request must relate specifically to the planning application. The suggestion that this is an attempt to 'muzzle' councillors is absurd."
You be the judge: the draft protocol, which the Council will not thank me for publishing like this, reads:
PLANNING APPLICATIONS COMMITTEE
[DRAFT] DISCLOSURE OF CONFIDENTIAL INFORMATION PROTOCOL
1. Introduction
1.1 This Protocol sets out further guidance in respect of requests by Committee members for information relevant to planning matters submitted in confidence by third parties. It should be read in conjunction with the Local Protocol For Councillors On Access To Information in the Council’s Constitution (page 455-458). This Protocol deals with information which is exempt from disclosure under the provisions of the Freedom of Information Act 2000, the Environmental Information Regulations 2004 and the Local Government Act 1972.
2. The Issue
2.1 Financial viability is a material planning consideration in terms of the likelihood of the proposed development being carried into effect. This can be a very important issue when assessing the acceptability or otherwise of a development proposal, particularly where the proposal may not accord with the targets set by planning policy. The government encourages local planning authorities not to impose requirements on developers which render proposals non-viable unless serious harm would arise. It is frequently the case, particularly in the current economic climate and depressed development market, that a judgement has to be made regarding the viability of a development proposal and the impact on viability of any changes or obligations which the Council wishes to impose. Issues which typically arise and have most impact on viability include the quantum and density of development, the tenure mix of residential schemes and the scale of any planning obligations to be incorporated within a proposed s106 Planning Agreement.
Furthermore, financial viability is a consideration within the statutory development plan in relation to the provision of affordable housing. It is referred to in both London Plan policy 3.12 and Core Strategy policy H2.
2.2 In order for the Council as planning authority to properly determine the effect of planning requirements on development viability, the assessment and negotiation of planning applications frequently involves the consideration of financial and commercial appraisals prepared by developers; such appraisals invariably contain commercially confidential and sensitive information. Where such information is provided by an applicant to the Council on a commercially confidential basis the Council is under a duty to not to disclose that information to anyone else unless allowed or required to do so by law. Should the Council breach this duty it may be liable in damages for any loss caused. A member or officer who breaches confidentiality may also find themselves pursued personally by the person to whom the duty is owed in addition to any disciplinary proceedings which may be brought by the Council. It is therefore essential that all such information is carefully protected and where it is lawfully disclosed e.g. to Members, that such disclosure can be justified and that appropriate measures are taken to ensure the Council complies with its obligations.
3. The Principles
3.1 The legal principles to be applied in relation to a Member’s right to access information held by the Council are established in the leading House of Lords case of Birmingham City Council v. O [1983] and can
be summarised as follows.
(i) A Member does not have a roving commission to have access to any and every document in the Council’s possession.
(ii) Where a Member can establish a “need to know” in order to carry out their functions as a member then they will have extensive rights to access information, including confidential information.
(iii) It is for the Council (though delegation if it wishes) to decide in any given case whether a “need to know” arises subject to the usual Wednesbury principles.
3.2 It should be noted that:-
(i) A Member’s motive and the use to which they intend to put the information are highly relevant to establishing a “need to know”. An improper motive may vitiate a request.
(ii) Each request must be decided on its merits and on the basis of a properly made request.
(iii) In cases where the matter is not clear cut the final decision rests with the Council and the Courts will only interfere with such a decision where it can be shown to be irrational.
(iv) The Council has a duty to balance the rights of its Members with the rights of third parties who have submitted information in confidence.
(v) The right to have access to information does not necessarily confer a right to a copy of the information in permanent form.
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(vi) Under the Council’s Constitution decisions as to whether a “need to know” is established are delegated to the relevant Director (Executive Director following the Tri-Borough restructure).
4. Financial & Commercial Information & Committee Reports
4.1 As with all Council decision makers, the Committee is under a duty when making decisions to take into account all relevant matters. It follows that sufficient information must be contained in officers’ reports to permit intelligent consideration of all relevant matters. However, public administration would be impossible if Members were required to consider each and every relevant document in full and it is well established that Members may rely on officers to summarise and filter information and to present it in a digestible and readily understandable form.
4.2 For example, in the case of English v. East Staffordshire Borough Council [2010] it was held that it was perfectly proper for the committee to take a decision where the “gist” of the information but not the detail was provided in the report and had been subject to independent scrutiny. The committee had not requested the detailed information and had considered the contents of the report sufficient to enable them to properly consider the application.
4.3 The planning officers’ report to committee must, where relevant to an application under consideration, make explicit how financial viability has been considered in the assessment of the application and the formulation of the officers’ recommendations. In some cases, reliance will have been placed on assessment of viability data by in-house specialist property staff. In other cases external professional advice will have been sought from a valuation / accountancy company instructed by the Council and independent from the developer. As well as the original financial appraisal material submitted by the developer, there may be a written assessment provided by the professional valuation / accountancy advisors drawing conclusions from their independent review of the material provided by the developer. The officers’ report should summarise the gist of such material and independent advice without disclosing any commercially confidential exempt data.
5. Requests for Confidential Information
5.1 Requests by Members for confidential information relating to planning matters should always follow the requirements of the Constitution (page 455) which provides as follows:-
“1.1 All requests for documentation from Councillors should be routed through the Director, or where the Director is not available and the request is urgent, then it should be made to an Assistant or Deputy Director, or Head of Section as appropriate.
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It would be for the Councillor to explain why their particular request needed an urgent response.
1.2 Councillors are requested to:
• Be as specific as possible about the documentation that they
wish to see;
• Normally make the request in writing;
• State the reason for wanting the information, and the purpose to which it will be put.”
5.2 In addition, requests in relation to confidential planning information must always be made in writing and provide full reasons in order that they may be relied upon in any subsequent litigation.
5.3 Where a Member considers that they require the information in relation to an upcoming committee meeting and they consider the treatment of the matter in the published officers’ committee report to be inadequate then they shall provide full reasons for this belief in good time before the meeting, by writing to or e-mailing the Director and they should copy the request to the Chairman who may at his discretion consult with other committee members. In such circumstances the Director shall consult with the Chairman before reaching a decision. The Director shall provide reasons in writing for his decision.
5.4 Where the Director concludes that the information should be disclosed he/she may impose such conditions as he/she considers reasonable in the circumstances to protect the Council including requiring the Member to sign a confidentiality agreement undertaking not to share or disclose any of the information to any other person and allowing inspection of documents only rather than the provision of permanent copies.
5.5 It follows that if a Member has been granted access to commercially sensitive financial information provided to the Council in confidence, no reference to it can be made in public. The nature of the appraisal and the conclusions of any independent assessment or review of it can be discussed at the Planning Applications Committee, but there must be no discussion or disclosure of any of the commercially sensitive material or data contained within it in open session.
Michael Cogher.
Serious credit deserves to go to the Lib Dems for unearthing this, bearing in mind they don't have any councillors and therefore rely on volunteers.
It looks like Wednesday's meeting will be a defining one for Hammersmith & Fulham residents and whether or not our Council shares information with them.
1500 WEDNESDAY UPDATE - The Chronicle, from completely ignoring the story, has now caught up with it
here. I can't imagine what led them to finally publish it. You know where you read it first - and why you can read it elsewhere. Keep sending the stories in folks.
1300 THURSDAY UPDATE - As ever with the Planning Applications Committee, the Council's preferred option was voted through last night, irrespective of the objections that were made by a number of the Labour councillors there. So there we are - information on property developments in H&F is "need to know" - and frankly, the Council don't think you do.
Speaking to me after the meeting Opposition Leader Stephen Cowan said this:
"Last night was a great victory for super rich property speculators and their Conservative Party friends and the ultimate victims were the millions of Londoners in need of a genuinely affordable, decent home for them and their families to buy or rent".
