Otterpool Park Update: Release the unredacted Viability Assessment

While transparency reduces corruption, good governance goes beyond transparency in achieving openness. Openness means involving residents and other stakeholders in the decision-making process. Transparency is the right to information while openness is the right to participation.

Once again Folkestone & Hythe District Council are NOT being transparent (quelle surprise).

On the 3rd November 2020, the Planning Inspectorate will begin hearing evidence with regard to the Folkestone & Hythe District Council Core Strategy Review. The timetable can be found here:

• Folkestone and Hythe District Core Strategy Review Examination Timetable

One of the documents submitted to the planning inspectorate was the Otterpool Park Viability Assessment created by Gerald Eve LLP

• Otterpool Park Viability Assessment  Redacted

This document was placed into the public domain on the 21st July at 11am. The Council have unsurprisingly redacted the Viability Assessment. Unfortunately for them they are NOT allowed to do this.

In R (Holborn Studios) v London Borough of Hackney (No 2) [2020] EWHC 1509 (Admin), a judgement handed down on the 11th June, Mr Justice Dove established the public’s right of access to viability assessments.

Justice Dove makes clear the National Planning Policy Framework (NPPF) sets out that viability assessments should be ‘publicly available’ (para 57). The Planning Practice Guidance (PPG) explained the need to publish the entire appraisals, other than in exceptional circumstances where an executive summary could be published, but still containing the ‘benchmark land value including the landowner premium’ (See Paragraphs 10-010, 10-020, 10-021 of the Planning Practice Guidance).

The NPPF and PPG had an important bearing on the consideration of whether or not there is a public interest in disclosing the information contained in a viability assessment (even if it is properly to be characterised as commercially sensitive). Mr Justice Dove said at Para 64 of his judgement:

• “save in exceptional circumstances the anticipation is that viability assessments, including their standardised inputs, will be placed in the public domain in order to ensure transparency, accountability and access to decision-taking for communities affected by development. The interests which placing viability assessments into the public domain serve are clearly public interests, which in my view support the contention that such assessments are not exempt information unless the exceptional circumstances spoken to by the PPG arise and solely an executive summary should be put in the public domain.”

Justice Dove  endorsed the views of Cranston J in R(Joicey) v Northumberland County Council [2014] EWHC 3657 saying:

• the purpose of having a legal obligation to confer a right to know in relation to material underpinning a democratic decision-taking process is to enable members of the public to make well-informed observations on the substance of the decision’ (para 71).

So it is clear, very clear, the Viability Assessment submitted by the Council to the planning inspectorate is NOT compliant with the decision handed down by Justice Dove in his judgement. As such, the Council MUST unredact certain elements and place the document back into the public domain.

Now recently, the Council made Kantion/Gustavia Ltd, the company who recently received planning permission for the Leas Pavillion, place their Viability Assessment into the public domain completely unredacted.

There cannot be one rule for Kantion/Gustavia Ltd and another rule for Folkestone & Hythe District Council, can there?

The Council are NOT above the law. They like all of us must comply with it. As such, we ask them to release the unredacted version of the Viability Assessment for Otterpool Park, in accordance with Justice Dove’s ruling.

We ask all those who will be involved in the Core Strategy Review,  and you the residents to write to the planning inspectors, calling on them to release an unredacted version of the Viability Assessment:

• kevin.ward@planninginspectorate.gov.uk

• philip.mileham@planninginspectorate.gov.uk

To your Cllr – see here ⇒ Cllrs email address

The Chief Exec of FHDC and the Solicitor to the Council

• susan.priest@folkestone-hythe.gov.uk

• amandeep.khroud@folkestone-hythe.gov.uk

Until the Council release the unredacted viability assessment their public mea culpa will not satisfy their critics. Nor will it allow residents who will be affected by the development, to make “well-informed observations on the substance of the decision  to go ahead with Otterpool Park.

The Shepway Vox Team

Journalism for the People NOT the Powerful