Carlyle Group Section 106 Evidence

Max Benwell made this Freedom of Information request to Southwark Borough Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Southwark Borough Council,

Under the Freedom of Information Act 2000 I seek access to
the following information about The Carlyle Group's planning application to Southwark Council (ref:12/AP/3940) :

– The evidence provided by The Carlyle Group that meeting the 35% requirement for affordable housing under Section 106 would have made the project financially unviable in current market conditions

– How the £65m provided by The Carlyle Group as part of their section 106 agreement will be reinvested into affordable housing in Southwark, and where that affordable housing will be.

I would prefer to receive this information electronically. If the
decision is made to withhold some of this data using exemptions in
Act, please inform me of that fact and cite the exemptions used.

If you need any clarification then please contact me at the email
listed. Under your section 16 duty to provide advice and assistance
I would expect you to contact me if you find this request
unmanageable in any way before the 20th working day.

I would be grateful if you could confirm in writing that you have
received this request, and I look forward to hearing from you in
the near future.

Yours faithfully,

Max Benwell

Planning, Southwark Borough Council

Southwark Council - Information request

Our reference: 340385

show quoted sections

Wannop, Laura, Southwark Borough Council

Dear Max Benwell,

Re: Your request for information: 340385

Thank you for your request for information that was received on 6 November
2013 in which you requested:

Under the Freedom of Information Act 2000 I seek access to the following
information about The Carlyle Group's planning application to Southwark
Council (ref:12/AP/3940) :

– The evidence provided by The Carlyle Group that meeting the 35%
requirement for affordable housing under Section 106 would have made the
project financially unviable in current market conditions

– How the £65m provided by The Carlyle Group as part of their section 106
agreement will be reinvested into affordable housing in Southwark, and
where that affordable housing will be.

I would prefer to receive this information electronically. If the decision
is made to withhold some of this data using exemptions in Act, please
inform me of that fact and cite the exemptions used.

If you need any clarification then please contact me at the email listed.
Under your section 16 duty to provide advice and assistance I would expect
you to contact me if you find this request unmanageable in any way before
the 20th working day.

I would be grateful if you could confirm in writing that you have received
this request, and I look forward to hearing from you in the near future.

Your request has been dealt with under the Environmental Information
Regulations 2004.

In relation to the request for the viability justification, the council
acknowledges there is a decision currently under appeal by the council in
relation to the release of the financial viability assessment on the E&C
regeneration programme.  The council has fully considered this request and
maintains this information should not be released for the reasons stated
below. 

The information you requested is being withheld under the Environmental
Information Regulations 2004. The exception that applies to this
information is: Regulation 12(5)(e) where disclosure would adversely
affect or be very likely to prejudice the commercial interests of the
council and / or any third party.

Reliance upon an exemption under the EIR is always subject to the
requirement under Regulation 12(1)(b) that the public interest in
maintaining the exception outweighs the public interest in disclosing the
information.

In this instance, the council asserts that the public interest in
providing this information does not out weigh the likely prejudice to
commercial and economic interests of both the council and the third party.

In arriving at this view, the council has considered the following factors
both for and against the release of information.

Factors in favour of release:

* Regulation 5 of the Environmental Information Regulations states where
a public authority holds environmental information; it shall make it
available on request and, as a starting point, the council is required
to apply a presumption in favour of disclosure.
* The specific request is in relation to a large scale regeneration
scheme covering a large area of the borough and affecting many
residents as a result.  The sheer scale of the plans carries with it
an inherent amount of public interest.

Factors in favour of withholding:
* The fact that in this instance the council does not own any part of
the site
* The fact the council has no connection with the Carlyle Group outside
its planning application and has not provided any funding for the
scheme
* The fact the Council has not disposed of any land to the Carlyle Group
and nor is it intended to do so as part of the scheme
* The fact the report was considered at Planning Committee on 8 October
2013 – item 6.1:
[1]http://moderngov.southwark.gov.uk/ieList...
and set out in considerable detail, between paragraphs 97 and 141, the
position relating to affordable housing and there was sufficient
information within these paragraphs to enable both members and the
public to have a sufficient understanding of the position in relation
to viability
* The fact the sum provided allows for the delivery of 260 new homes and
has been agreed after very extensive discussions with the District
Valuer.
* The fact that the information sets out commercial assumptions and
calculations applied by the third party, which if disclosed would
adversely affect the third party’s economic interests as well as
placing the third party at a competitive disadvantage in any future
development opportunity
* The fact that within the viability assessment received from the third
party was done so on the understanding that this information would
remain confidential and the council have agreed to maintain the
confidentiality of all such information provided by the third party
(please note, the council acknowledges this is a consideration only
and does not confer the right of absolute confidentiality under EIR
legislation)
* The fact that when releasing information under the legislation it is
considered releasing information to the public as a whole however,
subsequent to this, both parties have a right to negotiate for the
best economic outcome of this or any development free from external
prejudice and potential competitive scrutiny
* The fact that should the calculations, analyses and assessments be
released, it is very likely to prejudice any future negotiations by
the third party, such as disposals and sub-lettings, in relation to
this development which will be very detrimental to the competitive
negotiating position of the third party and, subsequently, prejudice
the viability of the development as a whole
* The fact that to reveal this information would be likely to put the
third party at a competitive disadvantage in the future against rival
developers in similar markets

It is the council’s assertion that the factors in favour of withholding
this very sensitive commercial information outweigh the factors in favour
of release and therefore, in accordance with Regulation 14 of the
Environmental Information Regulations 2004 this letter acts as a Refusal
Notice.

In relation to how the £65m of S106 is to be reinvested, no specific sites
have yet been identified for this money. The council has agreed a Direct
Delivery programme which allows for the pooled sums received to deliver
units throughout the borough.

Please note the first tranche of monies is not anticipated to be available
until 2016 and as a result, funding has not been ring fenced to any
specific sites at this stage. 

An initial report was presented to cabinet on 23 October 2012 – Item 17:
[2]http://moderngov.southwark.gov.uk/ieList...

A subsequent report was presented to cabinet on 22 Oct 2013 – Item 15:
[3]http://moderngov.southwark.gov.uk/ieList...

Together with a report on the issue to the Planning Committee on 17
September 13 – Item 6:
[4]http://moderngov.southwark.gov.uk/ieList...

You are free to use the information provided for your own purposes,
including any   non-commercial research you are doing and for the purposes
of news reporting.   Any other re-use, for example commercial publication,
requires the permission of the copyright holder. 

You may apply for permission to re-use this information by submitting a
request to [5][Southwark Borough Council request email]; you can find details on these
arrangements at [6]http://www.southwark.gov.uk/YourCouncil/...
Detailed advice about the Reuse of Public Sector Information Regulations
(PSI) 2005 is available from the Office of Public Sector Information at:
[7]http://www.opsi.gov.uk/advice/index.htm.

If you have any queries or concerns then please contact us using the above
details.

If you are unhappy with the service you have received in relation to your
request and wish to make an appeal for a review of our decision, please
write to the:

Corporate Freedom of Information officer
The Governance team (2^nd Floor)
PO Box 64529 London.  SE1 5LXP
Email: [8][Southwark Borough Council request email]

If you are not content with the outcome your appeal, you may apply
directly to the Information Commissioner for a decision. Generally, the
Information Commissioner cannot make a decision unless you have first
exhausted our internal appeal procedure and you should contact him within
2 months of the outcome of your internal appeal.

Further information on the Environmental Information Regulations is
available through the Information Commissioner at the:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire.  SK9 5AF
Telephone: 0303 123 1113
Internet: [9]www.ico.org.uk

Kind regards,
Laura Wannop

Departmental coordinator
Chief executive's department
5th floor, hub 4
PO Box 64529, London SE1P 5LX
160 Tooley Street, London SE1 2QH

[10]www.southwark.gov.uk/regeneration

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References

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