Perry, R (on the application of) v London Borough of Hackney & Ors [2014] EWCA Civ 1372

Case No C1/2014/1942[2014] EWCA Civ 1372
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QBD, ADMINISTRATIVE COURT
Mrs Justice Patterson
CO/1377/2014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 23 rd October 2014
Before
LORD JUSTICE UNDERHILLLORD JUSTICE SHARPLORD JUSTICE BRIGGS
Between
THE QUEEN ON THE APPLICATION OF PERRYAppellantLONDON BOROUGH OF HACKNEY and OTHERSRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
PHILIP COPPEL QC and ALEX GOODMAN (instructed by RICHARD BUXTON ENVIROMENTAL AND PUBLIC LAW) for APPELLANTWILLIAM UPTON and EMMALINE LAMBERT (instructed by LONDON Borough of Hackney) for RESPONDENTREUBEN TAYLOR QC(instructed by Berwin Leighton Paisner LLP) for INTERESTED PARTYHearing Hearing date : Friday 19 th September 2014
Judgment
[1]This is Mr. Perry’s oral renewal of an application for permission to appeal (with appeal to follow) against Paragraph 5 of the Order of Patterson J, made on 23rd May 2014, by which she refused his application for specific disclosure of documents for the purposes of two applications of his for judicial review, for one of which she gave permission by the same Order, and both of which she ordered to be heard together.[2]Mr. Perry’s application for permission to appeal was refused on the papers by Sullivan LJ on 29th July 2014, on the ground that, in his view, the judge was plainly correct in her conclusion that disclosure of the documents requested was not necessary for the purpose of deciding the issues raised by either of the applications for judicial review. On 2nd September Patten LJ directed that Mr. Perry’s oral renewal be heard, with appeal to follow if permitted, urgently in the vacation, in order to ensure, as far as possible, that the issue as to disclosure would be resolved in good time before the planned hearing of the judicial review applications in October.[3]Mr. Perry’s application for disclosure raised issues both as to necessity (in the sense described above), and as to the alleged commercial confidentiality of the documents in question. In ruling against Mr. Perry’s disclosure application, the judge dealt with both of those issues.[4]It seemed to us, early in the hearing of Mr. Perry’s oral application, that he needed first to surmount the difficulties in his way represented by Sullivan LJ’s adverse conclusion in relation to necessity, before any detailed analysis of the judge’s approach to confidentiality need be addressed. Accordingly, we heard at length from Mr. Coppel QC for Mr. Perry, and briefly from Mr. Upton for the respondent, the London Borough of Hackney, and from Mr. Taylor QC for the interested party, Newmark Properties Limited, on the necessity question alone. Having considered those submissions, and counsel’s detailed and helpful skeleton arguments, we concluded that the absence of any real basis for the assertion that disclosure of the documents in question was necessary for the purpose of dealing with the issues raised by the judicial review application was fatal to Mr. Perry’s appeal. Accordingly, and in view of the urgency of the matter, we announced our decision to refuse him permission to appeal, stating that our written reasons would follow. This judgment contains my reasons for that conclusion.[5]It was broadly agreed between counsel that, in applications for judicial review, disclosure of documents would not be ordered unless it could be shown to be necessary to do so for the purpose of a just and fair determination of the issues. Mr. Coppel labelled that a ‘relevance test’ but he readily acknowledged, in response to a question from the court, that relevance meant necessity in the sense described above (rather than, for example, relevance in the sense that the word was understood in relation to discovery issues under the Rules of the Supreme Court, where it had, at least potentially, a wider meaning). Although considerable reference was made by counsel in their skeleton arguments to decided cases about disclosure in judicial review proceedings, the broad consensus between them as to the applicable test for present purposes made it unnecessary to review the reported cases either during the hearing, or in this judgment.[6]The issues to be determined in the conjoined judicial review applications are, as might be expected, identifiable by reference to the parties’ statements of case, to which I shall shortly turn after a brief summary of the factual and procedural background. The two applications for judicial review seek respectively to quash successive planning permissions granted by Hackney on 8th August 2013 and 14th February 2014 in respect of a proposed development at Wilmer Place, London N16, comprising some 50 flats and a supermarket. It was, among other things, incumbent upon Hackney as planning authority to consider what if any requirement as to affordable housing should be included within the development, its relevant policy including a target, subject to viability, of 50% of the proposed housing. The documents of which disclosure was sought consisted, first, of viability assessments by G.L.Hearn, consultants engaged by the interested party as developer, and two successive reviews of the Hearn reports by Jones Lang LaSalle, consultants engaged by Hackney. As is apparent from a redacted copy of one of the Hearn Reports now made available, the reports both concluded that not more than 17% of affordable housing was viable (in the sense that a higher proportion would render the development uneconomic for the developer).[7]The Hackney planning sub-committee which determined both applications was not shown any of the requested documents. Rather, for both applications the case officer’s report informed the committee of the receipt of the developer’s viability report, its review by the council’s external consultants, and of the 17% threshold which the viability assessment identified, and the council’s consultants confirmed. Substantially the same procedure was adopted by the council’s case officer in relation to both planning applications.[8]Mr. Perry’s Statement of Facts and Grounds in support of his first judicial review application (“JR1”) contained, at paragraph 5, the following concise summary of Ground 3:
“By Ground 3 the Claimant challenges as flawed and unfair the council’s approach to weighting compliance with its fifty percent affordable housing target on the basis that a maximum provision of seventeen percent on site was viable without making available to public inspection or challenge any of the material upon which that assessment was based.”
The full statement of Ground 3 (at paragraphs 94 to 102) pleaded the policy setting the 50% affordable housing target, the case officer’s report about, and non-disclosure of, either the Hearn report or the Jones Lange LaSalle review of it, and asserted that the case officer’s reasoning:
“raises numerous questions as to the validity of the appraisal.”
It alleged that by keeping the information and the appraisal wholly confidential, even as to methodology and assumptions employed (as opposed to any financial data), it was impossible to interrogate what on the face of the officer’s report was alleged to be a dubious justification for failing by a very long way to meet the 50% policy target.[9]The main allegation was that the refusal by the council to permit public inspection of those documents was unfair and contrary to the well-recognised need for public participation in the planning process, in circumstances where the council could have chosen to make available either redacted or even un-redacted copies of the underlying documents.[10]The interested party’s summary grounds for contesting the claim asserted (at paragraph 79) that:
“The gist provided by Officers to Committee was more than sufficient to inform the public of the position in relation to financial viability and affordable housing, particularly so in a context where there had been no specific request for disclosure of Newmark’s financial viability appraisals.”
[11]Mr. Perry developed his attack upon the lawfulness of the non-disclosure of the requested documents, either to the planning committee or to the public, in his second judicial review application: (“JR2”).

(b) of his Statement of Facts and Grounds alleged as follows:

“b. The Defendant’s decision to treat the application as complying with its policy on affordable housing, where only 17% was offered against a development plan target of 50%, was flawed, unfair and inadequately reasoned. In particular, individually and cumulatively: i. It misunderstood and/or misapplied Core Strategy policy 20. ii. It misdirected itself as to the supposed confidentiality of the information and the consequences of that confidentiality and failed to consider whether the information would be disclosable under the presumption of disclosure and the public interest override in the Environmental Information Regulations 2004. iii. It failed to consider excluding the public from the meeting so that the committee could consider any claimed confidential material in camera (rather than not see it at all). iv. In relation to a matter which was central to the decision for the committee, the Committee relied wholly and uncritically upon the planning officers’ assertions that the maximum affordable housing had been provided and failed to make their own inquiries so as to enable them to ask or answer the right questions. v. It failed to allow the public to scrutinise, question or test the viability information or the proposed section 106 agreement.” i. It misunderstood and/or misapplied Core Strategy policy 20. ii. It misdirected itself as to the supposed confidentiality of the information and the consequences of that confidentiality and failed to consider whether the information would be disclosable under the presumption of disclosure and the public interest override in the Environmental Information Regulations 2004. iii. It failed to consider excluding the public from the meeting so that the committee could consider any claimed confidential material in camera (rather than not see it at all). iv. In relation to a matter which was central to the decision for the committee, the Committee relied wholly and uncritically upon the planning officers’ assertions that the maximum affordable housing had been provided and failed to make their own inquiries so as to enable them to ask or answer the right questions. v. It failed to allow the public to scrutinise, question or test the viability information or the proposed section 106 agreement.”
[12]The criticism of the non-disclosure of the documents to the public in JR2 broadly followed Mr. Perry’s plea in JR1. His challenge to the non-disclosure of the documents to the planning committee itself may be summarised as follows: a) The supposed basis for non-disclosure, namely commercial confidentiality, was without substance. b) The Council failed to consider the alternative option of excluding the public from consideration of the information if it was confidential. c) The Council abdicated its function in relation to the important issue of affordable housing by, in effect, delegating the analysis and review of that issue to its officers.[13]In relation to JR2, both the council and the interested party in their respective Grounds for Resisting the Claim alleged that the planning committee had been supplied with a sufficient gist of the viability assessment, broadly as asserted in JR1.[14]I accept Mr. Coppel’s submission that the issues raised by judicial review proceedings need to be identified not only by reference to the applicant’s Grounds, but also in any pleaded Grounds of Resistance. Further, not least because permission to proceed with both JR1 and JR2 has been granted to Mr. Perry on all his grounds of claim, it cannot be said that any of the grounds which I have described are lacking in substance or reality, or fall short of disclosing real issues for determination at a full hearing. Furthermore it is easy to say, in a general sense, that the requested documents are ‘relevant’ to those issues, since they are the very documents the non-disclosure of which, to the planning committee and to the public, is challenged.[15]Conversely, it cannot be said that, at the full hearing of the conjoined judicial review applications, the court will be deprived of an understanding of the general structure of, and methodology used in, the Hearn reports, because the main body of one of them has now been disclosed, albeit with detailed numeric values and figures redacted. Furthermore, the 17% threshold expressed in the Hearn report’s conclusion has not itself been redacted. The fact that, prior to the subcommittee’s deliberations, there had been submitted to the council both the relevant Hearn report, and the professional review of its conclusions, all in writing, and that they were not disclosed either to the planning committee or to the public, are of course centrally relevant facts in the determination of the issues raised by the two judicial review applications.[16]The question however is whether the detailed content of those reports (including the redacted numerical information in the main body of the Hearn reports, and all their appendices), and the whole of the information in the Jones Lange LaSalle reviews is material which the parties need to have, or the court needs to see, for the purposes of a fair determination of those issues. Like Sullivan LJ, I have not been persuaded that any such need is, even arguably, disclosed.[17]Taking Mr. Perry’s points about public participation first, it seems to me entirely irrelevant to the merits of those points what precise input values or calculations appeared in the Hearn reports, or what was the nature and extent of the review of them set out in writing by Jones Lang LaSalle. Those pieces of information may have been long or short, good, bad or indifferent, but the merits of the argument about their non-disclosure to the public in connection with an important aspect of the planning decision seem to me to remain unaffected.[18]The same analysis applies to all the pleaded criticisms of the committee’s alleged failure to call for and scrutinise the requested documents, as part of its decision-making process. Again, I consider that it makes no significant difference to the allegation that the council failed to consider alternative means of protecting any confidentiality, and no significant difference to the outcome of the allegation that, by leaving the detailed analysis of viability to outside consultants and to its case officers, the planning committee abdicated its proper role by inappropriate delegation. Again, the underlying contents of those documents, long or short, good, bad or indifferent, do not bear upon the merits of the pleaded criticisms, which fall to be addressed by an appreciation of the task facing the committee, and close scrutiny of the material actually presented to it by the case officer.[19]It initially appeared that there might be a little more substance in Mr. Coppel’s submission based upon the issue raised in the successive Grounds for Contesting the Claims, namely that, in any event, the committee and the public had been provided with a sufficient gist of the viability appraisal in the case officer’s report. How, asked Mr. Coppel rhetorically, could that question be addressed unless the case officer’s report could be compared with the documents which it purported to summarise? For all Mr. Perry could tell, the gist might have been thoroughly inaccurate, for example because the underlying document contained some glaring mathematical or other obvious error which the case officer had failed to mention.[20]In my judgment the answer to that attractive submission is in two parts. First, there is nothing to suggest that there was any such fundamental error in the underlying documents which had called for special mention by the case officer. If there had been, then it may well be that the council’s duty of candour would have compelled the voluntary disclosure of the document which contained it.[21]Secondly, the summary relied upon as a ‘gist’ by the respondents in their pleadings is only that viability reports containing a 17% viability conclusion had been submitted and that they had been reviewed by the council’s outside consultants. Plainly, the disclosed Hearn report did advise a viability threshold of 17%, as is now apparent from the partly redacted copy of it. Equally it is not and could not sensibly be suggested, without some proper evidential basis, that the Hearn Reports were not viability assessments, or that the successive Jones Lange LaSalle reports did not constitute reviews of them by external consultants, whether good, bad or indifferent.[22]The result is, upon analysis, Mr. Coppel’s ‘gist’ point takes Mr. Perry’s prospects of appeal no further.[23]Finally, Mr. Coppel relied upon the pleaded assertion by the interested party that the case officer’s reports were fair and not misleading which, he submits, cannot properly be assessed otherwise than by comparison with the requested documents. But again, this seems to be no more nor less than an alternative way of putting his ‘gist’ point. The case officer’s reports said nothing of whether the detailed contents of the requested documents were good, bad or indifferent. He simply described them as viability assessments and as reviews by external consultants, and identified the 17% viability threshold which the assessments contained.[24]For those reasons, nothing in this proposed appeal persuades me that Mr. Perry has a real prospect of success in showing that disclosure of anything in the requested documents beyond the redacted body of one of the Hearn reports is needed to enable a fair and just trial of the issues disclosed by the conjoined review applications. It has not been suggested that there is any other compelling reason for giving permission to appeal. I would therefore refuse Mr. Perry’s application.[25]I agree.[26]I also agree.

Cited in 1 later judgment