You win some, you lose some.
Nick Perry, the claimant in the legal battle, reports from the Court of Appeal.
We reached the end of a particularly hard-fought battle last Tuesday (21 April 2015) when we failed to get permission in the Court of Appeal to pursue my challenge to the planning permissions for Wilmer Place.
In a brief 45-minute hearing, The Chancellor of the High Court, Sir Terence Etherton, sitting as a Lord Justice of Appeal, commended our lead barrister Philip Coppel QC for his detailed written submissions and clear oral presentation of new evidence. However, Sir Terence then proceeded to dictate a judgment in which, despite finding some errors in the earlier High Court judgment and merit in our new evidence, he refused permission for us to appeal. In his view we had “no realistic prospect” of convincing three lord justices to overturn the earlier decision.
It was a cruel blow. The faces of my more learned colleagues said it all – thunderous anger.
The legal professionals who guided me through 20 months of legal challenges, really believed this permission stage was solid. In fact they thought the whole appeal had a 70% chance of success, and that was before “the revelation”.
Separately to the court battle, I’d been pursuing a complaint with the Information Commissioner’s Office (ICO). The ICO regulates requests made under rights in the Freedom of Information Act and the Environmental Information Regulations (EIR). It is under the latter that I’d sought access to the secret financial viability assessments (FVA) that Newmark Properties had submitted to the Council with their planning applications. These FVAs allegedly justify the poor provision of so-called “affordable” homes – just 9 out of 53 (17%) – despite a borough-wide target of 50%. It’s a common ploy and perfectly legal for a developer to claim their development would be “unviable” if they were forced to include so many affordable homes, provided they can “prove” it through the magic of FVAs. I call it the “viability con” and it’s an insidious threat to the social diversity of London. No sooner had the Government introduced the viability “get-out”, than chartered surveyors created an entire industry dedicated to reducing developers’ commitments to affordable housing and other community benefits.
Councils are ill-prepared and badly resourced to challenge developers. And to ensure the game is totally slanted towards the developer the reports are submitted in confidence so no one, not even the councillors who make the decision, gets to see these reports, apart from certain council officers. Each of the three times Wilmer Place was put to the Planning Sub-committee, councillors were told that the developer’s own FVA had been scrutinised by officers and reviewed by independent surveyors, Jones Lang Lasalle, on behalf of the Council. And each time they had concluded that 17% was the most that the developer could afford. This independent, expert assurance is surely one of the reasons councillors don’t press to see the reports for themselves, despite having multiple rights in law to do so.
Only, it turns out out that on one of those three occasions, it was a lie. There was no such independent report.
I didn’t find this out until February of this year – over a year and a half after the event. Since then I’d lodged our first judicial review (JR), a third identical planning application was granted permission, I’d requested the viability reports and the independent assessments and been refused, gone unsuccessfully to the Court of Appeal to seek disclosure of the reports, launched a second judicial review (JR), had both judicial reviews dismissed by the High Court and launched an appeal against that decision. And at no stage in any of those detailed proceedings did the Council correct their assertion that the independent report existed.
It is just about plausible that officers made a genuine mistake when they misled councillors during the second application – despite the fact that I and supportive local councillors made quite a big fuss about the affordable housing. But in my view it is unconscionable to think that officers did not realise their mistake during any of the subsequent planning meetings or court proceedings. The Planning Sub-committee, the High Court and the (earlier) Court of Appeal all used the existence of this independent assessment, in some part, to justify their decisions. All took it on trust that the report existed and supported the developer’s claim.
Fortunately, the ICO takes a different approach. When a complaint is made to them, the Commissioner asks the local authority for the disputed documents so he can decide for himself if they should have been disclosed. The FOI/EIR process is a slow one, and councils can delay it with little penalty. In fact in the (now very many) cases where the ICO and Information Tribunal have demanded disclosure of FVAs, it has typically been two years since the related planning applications were granted and so of little practical use, save to bring the harsh realities of the viability con into sharp relief.
Hackney had delayed this case so much that the ICO issued a formal Information Notice in December of 2014. These rarely issued edicts impose sanctions should the local authority fail to provide the ICO with the information it demands.
By February the case officer asserted the Commissioner would not be reviewing the second independent assessment as part of my complaint, because Hackney had confessed that it did not exist! Astonished, I asked to see the correspondence. It was dated 27 October 2014 and read:
I confirm that you have been provided with all assessments/statements/reports relevant to Mr Perry’s request and that no further viability assessments were submitted or reports commissioned by the Council to consider such assessments between May and August 2013 specifically in relation to planning application 2013/1583.
It is understandable that Mr Perry believes that there is a report commissioned by the Council to assess the May 2013 financial viability assessment as this was stated in the report that went to the planning sub-committee meeting regarding planning applications 2013/1583 and 2013/1584.
However, that part of the report was misleading as the Council’s planning department have confirmed that an assessment of the May 2013 financial viability assessment was not undertaken by external consultants until November 2013.
In that last sentence lies a whole other “mistake” that came to light during the judicial review hearings. The details are less thrilling but suffice to say that when the developer begrudgingly supplied me with a redacted FVA for the third application, it supplied a redacted FVA for the second application instead! But as the redactions covered up every useful number in the report, it was impossible to tell. (If you want to see how useless a redacted FVA is, take a look at me flicking through a redacted FVA for the Bishopsgate Goodsyard scheme.)
A few weeks ago the ICO reached its final judgment and against the precedents set in similar cases in recent months, denied us any further access to the secret FVA. That’s a fight that will continue. However in doing so it rounded on the Council’s behaviour, noting the five months it took to conduct an internal review (instead of the 40 days allowed by law) and criticised Hackney’s poor co-operation – which on reflection was probably an attempt to avoid having to make its confession:
97. The Commissioner considers the council’s overall co-operation and quality of responses has been less than satisfactory throughout the Commissioner’s investigation. This had led to the matter being prolonged unnecessarily and hindered the Commissioner from being in a position to make a decision. An information notice had to be served on the council for the Commissioner to acquire a copy of all the withheld information falling within the scope of the request and it was only after the complainant questioned the council’s interpretation of what information it believed it held that further recorded information was identified.
You might imagine that a council that enjoys parading its delivery of affordable homes as being amongst the best in London would respond with alacrity to requests that might lead to delivery of more affordable housing. But there is none of it. The ICO investigation, like the court proceedings, were marked by a culture of secrecy, obfuscation, defensiveness, digging-in and capitulation with the developer. It was quite content to mislead its own Planning Sub-committee, the Courts and the public.
There was no such delay in the Council submitting its claim for costs this week. Within three days of the Court of Appeal dismissing our claim, the Council submitted its bill for £14,166 and demanded that it be paid within 14 days. We paid within two hours. Meanwhile two further FOI/EIR requests remain unanswered more than eight weeks after they were made – over twice the statutory limit.
The legal team saw the revelation that we had uncovered as a potential killer blow in an already promising appeal case.
But the Council sought to minimise the importance of the lie it had perpetuated. It argued that the second application was only a “few weeks” after the one that had been refused so the earlier appraisal remained valid. It also claimed the difference between the two schemes was “minimal”. You may recall, we characterised the differences as a “spot the difference competition” at the time. Yet months earlier the Council had told the High Court that there were “significant differences between them”. It cynically changed its tune in the Court of Appeal to cover its mistake.
But what ultimately swayed the Lord Justice of Appeal was the third application, identical to the second, which the Council had no obligation to consider and in normal circumstances would reject out of hand. Its sole purpose was to try and sidestep our claims in the first judicial review and render the challenge sterile. In light of the revelations it’s not hard to see why the Council capitulated in allowing the third application to be made.
That third application, the judge said, did have an independent assessment so the earlier “mistake” was corrected. The judge no more knows if that third independent assessment really exists than we do. Given that the second one turned out to be an illusion, you’d think the Court might be a little more circumspect when taking the Council’s word for it.
To adapt an Ian Hislop quote, “If that’s justice, then I’m a Taste The Difference banana.”
Our superb barristers – Philip Coppel QC, Alex Goodman (the Clissold resident who first offered his legal expertise) and Richard Clarke, together put many, many hours of work into this case at no cost. They stood to recover a portion of their usual fees if we won. But we didn’t, and so their valuable work will go unrewarded. Our expert solicitors Richard Buxton and Carolyn Beckwith were working for us at a significantly reduced rate, and we saved a considerable amount by me preparing and filing many of the substantial court documents myself. As a result, we should end up with a small amount in the bank for the next turn in what is sure to be a continuing saga.
It might be the end of the road for our legal challenge but we’ve learned and achieved a great deal by going through this process. We are better armed for the next battle and able to help other communities, because our fight is being repeated across London.
Two years ago, when the planning officer told me that the viability documents were secret, I took it on trust. It’s only when the learned lawyers got involved that I realised it wasn’t quite so clear cut and I discovered campaigns such as the 35% Campaign (Better Elephant), Mount Pleasant Association, Earl’s Court, and the Battle for Waterloo (The Shell Centre). Those other groups plus a whole bunch of others from across London are in the early stages of forming a campaign network called Reclaim London. It will campaign on many of the issues that are common to us all – the viability con, public participation in planning, rights of appeal, heritage and environmental damage.
For a small portion of our early Stokey Local supporters this was solely about yet another Sainsbury’s; but for most of us this became about a whole lot more. We’ve become an alliance of different people with different concerns and different motives but one common aim: to see a different proposal for the land at Wilmer Place. I’ve personally made a lot of great friends during this fight and been continually impressed by the staying power and continued tenacity of our local community. We got ourselves organized and raised nearly £34,000 – and crucially had a considerable amount of fun doing it. It’s been truly inspirational at times – it’s those moments that make the huge effort worthwhile.
We’ve given the wildlife of Abney another couple of seasons of seclusion and light to grow. We given the businesses and residents on the site a little bit of time to find new homes (though it was sadly too late for some businesses).
A technical knockout?
But perhaps most surprising of all, given our latest loss in Court, we might yet get our wish.
Enough time has passed for Sainsbury’s to consider its role in this development and amid some poor financial results has today confirmed to the Hackney Citizen that they are no longer involved in the project. Sainsbury’s gave up the lease they’ve held since March 2011 in January of this year. Yet, when pressed back in the new year, Sainsbury’s press office had been unhelpfully vague, intimating that it might re-acquire the site or a new lease if the legal challenge went Newmark’s way. That now seems unlikely. And one might optimistically speculate that Sainsbury’s has negotiated a moratorium on any competitor taking up the site. In any case we’ve made our opinions known and it would be a brave retailer who takes on the site knowing the PR that might accompany its arrival.
There are heavy hints (in the ICO’s decision particularly) that Newmark are looking to sell the site with planning permission, to another developer. Land Registry records show it bought the site for £6m, with a loan from Investec Bank, in April 2010. In its official financial accounts for 2013, Newmark valued the property at £7.5m and after planning permission was granted that value rose to £14.75m before the scheme was even built. That’s a cool £8.75m in four years, in spite of a long and expensive legal battle. If Newmark can realise just a fraction of that, they’ll have done OK.
Let’s hope that who or whatever comes next pays respect to what went before and engages the community early and earnestly. As developers go, there are more rapacious ones than Greg Cohen of Newmark. We’re still on polite smiling terms. He is a professional developer who wanted to build a high quality mixed use scheme and didn’t reckon on the local sensitivities. We wanted him to build it somewhere else. And we may just have made him do that.
I’m sure he’ll be thinking the same as me right now: you win some, you lose some.
Nick Perry, 28 April 2015