A victory for transparency

Last week (16/07/13), in a remarkable victory for transparency and common sense, the Information Commissioner’s Office have ruled that Southwark Council have to release the “viability assessment“, the “secret” document that formed the basis for their approval of Lend Lease’s planning application for the Heygate Site (12/AP/1092). This is the document that Southwark Council and Lend Lease kept secret even from the councillors on the planning committee who approved the planning permission (see earlier “Rubber Stamped” post below).

Whilst this seems a dry subject, this ruling has very important implications for the Elephant and Castle and for Southwark Council’s future relationships with developers.

The Commissioner makes a number of very clear points which will affect future “disposals” of council-owned land to private developers.

In support of Lend Lease’s planning application, Southwark Council had argued that the “viability assessment” is commercial and confidential – this assessment was used to justify Lend Lease’s many deviations from the Council’s own policy on grounds of “non-viability” (i.e. that adherence to policy would unacceptably reduce the developer’s financial return). This despite it relating to the disposal of a significant site currently held in public ownership in central London.

This viability assessment was used to justify many deviations from current policy including:

a) “affordable” housing – 25% instead of 35% (policy)

b) provision of just 71 social rented units to replace the 1,000 lost

c) car parking – over 600 spaces instead of none (policy)

In particular, the Inspector states: “The Heygate Masterplan proposes to deliver at least 25% affordable housing, falling short of the council’s policy objective. The Commissioner considers that further weight to the public interest in disclosure is added by the fact that the Heygate Estate formerly provided over 1,000 council houses. The Commissioner considers that public understanding of the rationale for the disposal of such assets and the apparent shortfall in the Masterplan’s provision for social housing would be aided by disclosure.”

The Council had also argued that non-disclosure of the “viability assessment” was acceptable because the District Valuer had reviewed the case. Unfortunately the Council also kept the District Valuer’s report secret, a fact noted and taken into account by the Commissioner, who states “In relation to the District Valuer’s report, the Commissioner notes that this has not been published by the council or otherwise been made available to the public.”

Interestingly, given that the council’s Compulsory Purchase Order was signed off the following day, the Inspector rules that “whilst the council has claimed that the development is commercial in nature, it has simultaneously claimed that the scheme is public in nature in order to exercise its compulsory purchase order (CPO) powers. The Commissioner considers that the information is clearly commercial in nature, and has concluded that this element of the exception is satisfied.” By implication this suggests that the CPO decision is also unsound.

Finally, and of importance to this development and others, the report says “the Commissioner considers that there is a growing need for transparency and accountability in authorities’ decision-making and expenditure, not least because many parties which authorities conduct business with will not the mselves be subject to the EIR or FOIA.”

Given the unusual strength and detail set out in the Commissioner’s case for release, we call on Southwark Council to accept this decision now and rapidly release the “Viability Assessment”. This document will give the public, including existing Southwark residents, and former Heygate residents, an insight into the financial deals their elected officers have been doing apparently in the public interest, and could also indicate the value Lend Lease put on the homes of those who have been forcibly rehoused, and allow them to form their own views. As the Commissioner says, “in relation to the general public interest in transparency and accountability, the Commissioner’s general view is that, where this relates to planning matters, there is a strong weighting in favour of encouraging public participation and disclosure is a means of promoting this.” We cannot see how Southwark Council can disagree with this.

If the Council appeal the decision it will be from a position of extreme weakness, and will serve only to emphasise the unnacountable, and thus unacceptable, behaviour of the public officers involved in the Heygate redevelopment.

The Commissioner’s report can be read in full here: HeygateFOICommissionersReport

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