Planning permission for 86-88 Tontine Street was unlawful

Last night (20th Oct) six Cllrs stuck two fingers up to the courts, as did planning officers of Folkestone & Hythe District Council.

Cllrs considered planning application Y19/0016/FH Land Adjoining 86 – 88 Tontine Street, Folkestone, Kent at last night’s planning committee (Orange area below)

The NPPF is itself treated as a “Material Consideration” and provides comprehensive guidance to planning authorities on the handling of individual planning applications such as Y19/0016/FH.

The planning officer mentioned the financial viability assessment for the site, which made it clear the site could not offer any affordable housing as the development would not be financial viable if they did. In short this means the developer paid too much for the land; and, if they offered affordable housing on the site the developer would make less profit.

Viability Assessments are mentioned at Para 57 of the NPPF, so a part of a whole and must be considered. One cannot pick and choose what parts of the NPPF one wishes to follow. It is not pick and mix.

The planning officer mentions the the viability assessment in their report, DC/2022, as such, it was a background paper and Cllrs and the public should have had sight of it.

Once again, Justice Dove’s ruling in R (Holborn Studios) v London Borough of Hackney (No 2) [2020] EWHC 1509 (Admin) makes it clear the Cllrs and the public had to have site of the viability assessment, put forward by the applicant’s agent on behalf of  – HRS Construction Service (KENT) Ltd – owned by Lance Stephen Mckay, who bought the land on the 12th July 2017, for £400,000, according to the land registry.

Developers use companies such as Savills to write their financial viability assessments so as to reduce affordable housing and other planning obligation requirements.

In the case of Y19/0016/FH, no affordable housing was deemed viable on the site. An off-site contribution of £321,000 has been considered the best option.

All the Cllrs of the Committee had sight of was the planning report, DC/20/22, prepared by planning officers. However, there was a background paper – the viability assessment, which, as we said, neither the public or Cllrs were given sight of.

Local authorities are required to make available background papers to committee reports. The Local Government Act 1972, s100D(5) states:

• “background papers for a report are those documents relating to the subject matter of the report which—

• (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and

• (b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works.”

Background papers do not have to be provided if they contain ‘exempt information’ which includes information relating to financial or business affairs of a person (Local Government Act 1972, Schedule 12A, Part 1, para 3) ‘so long, as in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information’ (Schedule 12A, Part 2, para 10).

That said, the Holborn 2 case, the National Planning Policy Framework (NPPF) and the Planning Practice Guidance now override Schedule 12A, Part 1, Para 3 of the LGA 1972 with regards to Viability Assessments, as they are NO longer considered to be exempt information, as of Feb 2019 and June 2020.

The NPPF says that viability assessments should be ‘publicly available’ (para 57). The Planning Practice Guidance explains 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’.

Justice Dove in the Holborn Case, held that the council had failed to provide a list of background papers as required. Some at least of the unpublished viability material constituted background papers. 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:

• “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.”

As such the Viability Assessment for 86 – 88 Tontine Street, Folkestone should have been made available to Cllrs and the public, as it confers a right to know in relation to material underpinning a democratic decision taking process which enables members of the public, and Cllrs alike, to make well informed observations on the substance of the decision

Alas this did not happen. As such the decision was certainly not transparent.  Nor did it give “material consideration” to the NPPF  and the Viability Assessment. As such, we believe the decision is ultra vires, and it strongly appears Justice Dove would agree with us.

Just for the record, Cllrs Collier (Con), Goddard (Con), Hollingsbee (Con), P. Martin (Con), Meyers (UKIP) and Cllrs Wimble (Ind) voted for the application.

Cllrs Fuller (Lib Dem), J Martin (Green), Meade (Lab) and Treloar (Green) voted against the application

The Shepwayvox Team

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