Case No. CO-9102-2010

) v London Borough of Islington [2002] EWHC 2044 (Admin). In that case, the learned judge rejected a similar argument of procedural unfairness to the one in the present case, in relation to the non-disclosure of a confidential financial report concerning the financial position and business plan of the applicant for planning permission. As occurred in the present case, the Council officers did not provide that information to either the public or the members of the Council making the planning decision, on grounds of confidentiality.27.In rejecting the challenge on grounds of procedural unfairness, Ouseley J stated at paragraphs 99 to 101 of the judgment: “Moreover, fairness in the planning process is not confined to a consideration of the interests of the objectors. It also needs to respect the confidentiality of the applicant because it is to its figures rather than to DTZ's general appraisal [the confidential report in question] that the claimants' point is addressed. It has the gist of the appraisal. It is this actual appraisal, and within that Arsenal FC's figures, that the claimants want. This is emphasised by their constant references to a £50 million funding gap drawn from an e-mail in which that is referred to. But it would be unfair to Arsenal FC for the local planning authority to be made to reveal what was handed to its advisers in confidence in the clear expectation that it would have a very carefully restricted circulation. A planning authority needs to be able to examine matters in a confidential manner with applicants, as was done here, and for that purpose to use independent consultants to whom disclosure of the relevant information is made in confidence. This is the same process that the GLA went through. If a local planning authority cannot do that, it will be hindered in its negotiations with developers over the content of publicly beneficial packages such as the extent of affordable housing and other legitimate benefits related to the value of the development and its funding. The public interest would be harmed. It is quite clear that the information is confidential and disclosure of it would be in breach of confidence. There is nothing unfair in the non-disclosure of that document, with the gist of the DTZ appraisal being available.”28.The Council and NFC Ltd submit that the present case is essentially on all fours with the Bedford case, since, as in that case, the Council officers did not disclose the confidential financial information to the public or to the councillors making the planning decision. However, in neither case was the applicant’s financial information simply taken at face value by the Council officers, but they subjected it to independent scrutiny. Furthermore, as in that case, the councillors and the public had the “gist” of the financial report, since they were provided with the conclusions but not the financial detail.29.Mr Richards sought to distinguish the Bedford case, contending that without seeing the financial report or the independent review: (i) the Claimant could not make any meaningful assessment as to whether the proposed development of 28 houses was too many or too few; (ii) it was impossible for anybody who did not have access to the financial model to test the assumption that the “funding gap” being relied upon by NFC Ltd was appropriate and (iii) the Claimant was unable to assess whether other potential sources of funding had been exhausted.30.In his oral submissions. Mr Richards seemed to me to be making much of the first point, pointing out that it was not until towards the end of the meeting that the objectors became aware, from what Mr Furnell said, at that late stage, that whereas the financial report of NFC Ltd had said that the residential development of 28 houses would fill about 50% of the funding gap, the DVS independent review suggested that it could fill as much as 85% of the gap. Mr Richards submitted that this demonstrated that NFC Ltd’s assumptions might be flawed, because in fact, on the hypothesis being advanced by DVS to fill 50% of the gap might require far fewer than 28 houses. 31.Of course, as Mr Village QC pointed out, an argument to that effect was the complete opposite of what Mrs Hodson was arguing on behalf of the Claimant at the meeting, namely that since the financial appraisal by NFC Ltd suggested that the residential development would fill about 50% of the funding gap, this cast doubt on whether the proposed development was sufficient to make the scheme as a whole financially viable. Her point was that NFC Ltd and the FA might come back later and seek planning permission to expand the residential development. It was to answer that argument that Mr Furnell referred to the DVS assessment that the residential development could fill as much as 85% of the funding gap, in other words to demonstrate that the financial viability of the proposed residential development had been verified by DVS and that Mrs Hodson’s argument was not justified.32.Mr Richards contended nonetheless that, because the Claimant and Mrs Hodson had not known about the 85% figure at the time that she explained his objections, they had not known the “gist” of the financial report and the DVS independent review, in contrast with the objectors in the Bedford case. I was not convinced by that contention. When one analyses by reference to the relevant paragraphs of Ouseley J’s judgment (which without setting them out in full here were paragraphs 73, 90 and 97 of the judgment) what he meant by “the gist of the appraisal”, it is fairly clearly no more than that the conclusion had been that the residential development would fill a substantial proportion of the identified funding gap and that that conclusion had been independently verified. In my judgment, the position is no different here.33.As for the suggestion that the Claimant and his advisors should have been told about the DVS 85% figure before the meeting to enable them to run some additional and indeed opposite argument to the one they were running anyway, it seems to me that this is in essence the same sort of submission to the effect: “if only I had seen all the confidential information, there are arguments I could have run” which Ouseley J rejected at paragraphs 74 and 75 of his judgment, in the context of the applications by Counsel for Mr Bedford to cross-examine the Council’s planning officer and for disclosure of the independent report commissioned by the Council. Those applications were not pursued, but Ouseley J indicated that they would have fallen on stony ground. 34.Furthermore, as Mr Machin for the Council pointed out, the 50% and 85% figures were no more than predictions. Whilst I agree with Mr Richards’ submission that it would be wrong for the Court to proceed on the basis of any speculation as to what the financial report or the DVS independent review did or did not contain, except to the extent that was clear from other information available, it is quite clear from the written and oral reports of Mr Furnell to the Planning Committee that both figures were obviously estimates which might or might not be correct. The Claimant had the opportunity to challenge the viability of any such estimates from the information available before the meeting, which amounted to the gist of the financial appraisal. 35.Equally, even without the 85% figure, it would always have been open to Mrs Hodson to argue at the meeting and in correspondence that the 50% figure might be an under-estimate so that the number of houses sought in the development was itself an over-estimate as to what was required by way of “enabling” development. Of course, she might have chosen not to run that argument precisely because it was flatly contrary to the argument she was running on behalf of the Claimant, but the gist of the financial appraisal she and the Claimant had was certainly sufficient to enable that argument to be run if they chose. 36.The second and third grounds of alleged distinction of the Bedford case relied upon by Mr Richards can really be considered together since they both involve the contention that, without access to the full financial report and the DVS review, it is impossible for the Claimant to test whether there is or should be a “funding gap” at all or whether, on the contrary, the FA should be providing the funds out of its central funds. Mr Richards went so far as to suggest in his written submissions that none of the objectors knew that the FA was not proposing to fund the NFC out of its central funds until the recent witness statement of Mr Horne.37.In my judgment, there is nothing in these points. The argument that any “funding gap” was essentially of the FA’s making in the sense that, if it chose, the FA could have funded the NFC scheme from its own not inconsiderable funds not only was available to any potential objector in the position of the Claimant but was in fact made at the meeting. This was precisely the point made by the Burton Civic Society and was reiterated by Councillor Morris during the discussion at the meeting. 38.Thus, in conclusion on the question of procedural fairness, I do not consider that there is anything in the Claimant’s contentions that the non-disclosure of the financial report and the DVE review was unfair. In his application, the Claimant puts forward the alternative submission that, on the basis that the financial information was confidential, in acting fairly the Council should have disclosed suitably redacted copies of both documents to the Claimant. As NFC Ltd points out in its submissions, if there were anything in this point by way of “half way house” between the parties, it would surely have recommended itself to Ouseley J in the Bedford case, particularly since he was at pains to point out that procedural fairness in this situation involves what is a balancing exercise between the public’s entitlement to information and the applicant’s entitlement to maintain confidentiality. 39.In any event, the short answer to this point is that it was never suggested by the Claimant at the time that redacted documents should be disclosed; this is clearly an ex post facto suggestion by his lawyers. There is no merit whatsoever in Mr Richards’ suggestion that it was somehow implicit in the Claimant’s request for disclosure of all the financial information that the Council should provide redacted copies of the information.40.In what I regarded as a somewhat desperate attempt to breathe some life into the redaction argument, Mr Richards revived a submission based upon the recent decision of the First Tier Tribunal (on appeal from the Information Commissioner) in