The Information Commissioner’s report on a complainant’s request for financial information relating to the Elephant and Castle project raises some interesting issues.
One point of principle is that if a Council is asked to rely on a financial justification for waiving a policy requirement then the developer should often expect that material to be public in due course. If the policy is adopted, it is clear, post Cherkeley, that developers cannot challenge its legality/appropriateness. Depending on the nature of the scheme, the choice is stark – either live with the development plan requirement or be prepared for the public to test the justification for departing from it. The decision confirms the overriding importance of the public interest test under the Environmental Information Regulations 2004, which – unlike the Freedom of Information regime – stem from the Aarhus Convention on access to justice in environmental decision-making.
The ICO’s decision is helpful for developers, though, in confirming that Lend Lease’s appraisal information was confidential, how such information needs to be handled and that as a starting point its disclosure would cause commercial prejudice.
Developers should (and in most cases can) submit appraisal material that causes no real disclosure problem, but need to ensure that it is handled properly and where the scheme involves public land, policy breaches or other controversial elements, be aware of the ultimate risks of disclosure.
