Open market information is commercially confidential, says Council

When the Archery Ground was allowed to add another five flats recently, the Affordable Housing adjustment (compensation) was calculated as £96,667.50. The formula is explained in Policy H3 of Hastings Borough Council (HBC) and the sum is derived from Open Market Value (OMV). A Freedom of Information request on the calculation was refused on the grounds of commercial confidentiality. How can Open Market Value be confidential? Bernard McGinley reports on more evidence of mismanagement.

Recently HOT reported on Archery Ground application HS/FA/24/00549 — yet another variation-of-condition to alter what was previously agreed. Among the many issues was the compensation adjustment to be made for the change in Affordable Housing. Before the planning committee meeting, when the HBC Housing Development Manager was asked to comment on the application, she wrote:

We require 3 x Estate Agent quotes to establish the open market value of the units.

The subsequent committee report stated:

Based on three estate agent valuations for the additional five units, using the formula set out in the Provision of Affordable Housing Interim Advice Note (April 2016), the financial contribution required would be £96,667.50.

The Council’s formula is part of their Policy H3:  Provision of Affordable Housing.  With five extra units, the developers’ contribution is adjusted.

At the planning committee meeting of 12 March, concern about application issues or the history of Archery Ground development was minimal. Praise was stickily hosed on the proposal, and the approval was unanimous. The Council later stated that the matter had been ‘fully reported to the meeting’. This was not true: objections about the treatment of disabled parking, procedural conflict and finagling, and contradiction with HS/FA/17/00439 (for instance), were ignored in the committee report and the meeting. The objections were summarised wrongly. Graphics were used that were not on the casefile, to ease the passing. The meeting was a grubby instance of local democracy.

The draft minutes say there were 20 objections to the proposals. The committee report said 25. The case file has 30 objections, all submitted in time.

Open secret

After the meeting an FOI request was made to the Council for the estate agents’ estimates (on how the compensation contribution for Affordable Housing was arrived at). It was refused on the spurious grounds of commercial confidentiality: exemption under Section 12(5)(e) of the Environment Information Regulations (EIR):

Confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest.

This is ridiculous, careless and incompetent — even stupid. There can be nothing commercially confidential about Open Market Value (OMV). The clue is in the name. Historic OMV is also unconfidential, a matter of record. (Even the response under EIR rather than the FOI Act was odd.)

The government’s National Planning Policy Framework (NPPF) paragraph 59 states:

All viability assessments, including any undertaken at the plan-making stage, should reflect the recommended approach in national planning practice guidance, including standardised inputs, and should be made publicly available.

‘Publicly available’ is clear. ‘Commercial confidentiality’ is not applicable. So are the Council being obstructive? Or unwitting? Perhaps neither. HBC state that the information is held. There is no reason to withhold it. Could it be that the information is not held? That in their abundant confusion they didn’t obtain ‘3 x Estate Agent quotes’ in the matter? A second request will attempt to solve the matter, as there are no legitimate grounds for withholding the open information.

Sometimes evaluation and viability can be contentious: hence all those developers discovering belatedly that they can’t afford affordable housing after all. The procedure however is clear. Examples include the recent applications regarding land beside 777 The Ridge (HS/FA/23/00016 and related cases) which had a number of viability reports relating to the Affordable Housing calculations, published in full.

Dog ate homework?

Administrative standards at HBC are known to be low. The fact remains that ‘Open Market Values’ and ‘commercially confidential’ are flat contradictions. Government policy is for publication, not skulking behind the Environment Regs.

In the current HIP (No 273, p2), an ad by HBC gives its address Aquila House: a minor slip but all too symptomatic of a dysfunctional organisation. It’s as if planners and lawyers needn’t bother with detail (as in Conqueror Road above). Weeks after the Archery Ground committee meeting, the Decision letter has still to be published. Even the recommended Decision is garbled (section 7 of the committee report).

If those ‘3 x Estate Agent quotes’ exist they should be released, and the rest of the calculation of over £96,000 for the ‘commuted sum’. As a contingency, the committee decision has a condition that the sum is not payable

unless it has been conclusively shown that the development would not be viable

but where are the calculations?

Also in: Home Ground

Council waste money, act for developers, and won’t say why »