Viability assessments remain in the spotlight, with July seeing a number of developments in this increasingly fluid area. Whilst nothing has changed as a matter of law or at National Planning Policy level, the voices calling for reform and increased transparency with viability assessments seem to be getting louder. Preserving the confidentiality of the contents may therefore be getting harder.
First, Islington Council has issued a consultation draft supplementary planning document on viability appraisals. The consultation ends on 4 September and represents a shift by Islington towards greater transparency with viability assessments. The consultation states “… the Council considers the information submitted as part of, and in support of a viability assessment, should be treated transparently and be available for wider scrutiny. In submitting information, applicants should do so in the knowledge that this would be made publicly available alongside other application documents”. The consultation goes on to state that Islington foresees that there “would be very few exceptions” to the requirement for transparency. So the door is not completely shut on confidentiality but it seems that strong justification for confidentiality will clearly need to be made out by developers rather than this being the norm. The draft SPD cites recent Information Commissioner (ICO) decisions such as Heygate (Lend Lease) and Greenwich (Knight Dragon) as justification for the change in approach.
The Islington draft SPD follows the trend set by Greenwich who issued a consultation earlier this year on making un-redacted viability assessments a requirement to even get a new planning application validated (where less than the maximum affordable housing is proposed). Islington at least recognise that confidentiality will still be justified in some cases, in contrast with the seemingly absolute position Greenwich are now proposing.
Secondly, at the end of July, the Joseph Rowntree Foundation issued a report “Re-thinking Planning Obligations – balancing housing numbers and affordability”. This is a wide ranging report looking at delivery of affordable housing, which also picks up on the role of viability assessments in the planning process. The report is critical of the general approach being taken with viability appraisals and raises concerns over a number of matters including a lack of agreed guidance on how to assess viability, the range of viability models used, inconsistent valuation approaches as well as lack of transparency.
Thirdly, concerns about the confidential content of viability assessments have been attracting the attention of the media and Parliament. In July, there was a debate prompted by the Bureau of Investigative Journalism held at the Houses of Parliament on housing supply in London, during which current practice with viability appraisals came in for strong criticism from certain quarters.
So it seems developers are coming under increasing pressure from local authorities to disclose un-redacted viability appraisals, although it will be interesting to see the extent to which the approach being proposed by Islington is followed by other authorities within London and elsewhere. Confidentiality is still achievable, but the onus is increasingly on developers to demonstrate clear reasons for maintaining confidentiality and the damage to their economic interests that would result if viability information is released.
If you require any advice on viability assessments and the Freedom of Information Act/Environmental Information Regulations, please contact Tim Smith, Paul Grace or Sam Burstall.