The information rights hearing that took place over four days in June/July was a consequence of Millwall Football Club (MFC) asking Lewisham Council (LBL) to publish details of the deals and arrangements it has entered into with Renewal, a private property developer.
Concerns have been expressed in the national and local press, and within LBL itself, about the arrangements between LBL and Renewal. Those arrangements include the conditional sale to Renewal of publicly-owned land surrounding The Den, the home of MFC. The local community and MFC obviously have a strong interest in knowing the details of those deals.
The request for information was made by Katherine Bergen, a freelance journalist who has taken an interest in the Surrey Canal Triangle/New Bermondsey proposed development. On behalf of MFC she asked Lewisham Council for certain information relating to the arrangements with Renewal, under the Freedom of Information Act/Environmental Information Regulations. That request led to a decision by the Information Commissioner and to two appeals to the Information Rights Tribunal.
The Information Rights Tribunal has recently handed down its decision on the two appeals. Like the Information Commissioner, it found that the land sale price can continue to be withheld from the public. However, it ordered the Council to publish further information contained in a report about Renewal prepared by PricewaterhouseCoopers (PWC).
Overall, the information request and appeals process has forced LBL to publish a considerable amount of information which it had previously refused to disclose. That is a good outcome for increased public transparency, and it demonstrates that the original request for information was justified.
We are naturally disappointed that the Tribunal decided that the land sale price should remain confidential. We do not think that a local authority should be able to enter into a conditional land sale agreement to dispose of public land without having to disclose the price at which the land is to be sold. We believe that the citizens and taxpayers of Lewisham have a right to see the full details of the deal. Otherwise, they are left to draw their own conclusions in circumstances where there was no open tender process or auction for the land and the same land valuer represented both LBL and Renewal when the agreement was concluded.
We are also disappointed about certain observations in the Tribunal’s judgment concerning the conduct of the appeals and the motives for the information request. We consider these to be incorrect and we are considering them further with our legal team.
LBL has also applied for payment of a six-figure sum of legal costs. This would be paid to Renewal, who funded LBL’s appeal. We consider that the Council/Renewal’s application is unjustified and not in keeping with the intent of the information rights regime. We are considering matters with our legal team and we expect to robustly oppose the application to pay the Council/Renewal’s legal costs.
We believed from the outset that it was right for the public to know the details of LBL’s agreements with Renewal. This process has ultimately ensured that most of the key report by PWC, which is critical of Renewal, has been disclosed to the public, along with almost all of the details of the conditional land sale agreement, other than the price. This has happened despite the extensive efforts of LBL and Renewal to keep these documents confidential.
Further background to the information request is set out below.
1. MFC has always favoured in principle the regeneration of the area around the stadium and the creation of a new, vibrant community in a deprived part of the Borough. That is why MFC participated in securing outline planning permission in conjunction with LBL and Renewal at its own expense and supported the original s106 agreement. We did not oppose that planning application: our support and involvement in 2011 and 2012 was because, consistent with the discussions we were having with LBL and Renewal, we expected to be active participants in the regeneration project.
2. Subsequently, MFC was excluded from the regeneration project and the Council decided to sell the freeholds of the land we lease from them to Renewal, and give Renewal exclusive rights over the whole development. We believed, and continue to believe, that those decisions were detrimental to the interests of the Football Club and its neighbouring Millwall Community Trust (MCT), and not in the best interests of the local community. We made it clear in writing to LBL that we would be interested in buying and developing the land in the event that the land around the Den was for sale. We had been told by LBL that it was not intending to sell its freehold interests.
3. We firmly believed, and still do, that the taxpayers and electorate of Lewisham, as well as our supporters inside and outside the Borough, are entitled to know what agreements are in place between LBL and Renewal and on what basis LBL effectively gave exclusivity to Renewal to undertake the entire development. We therefore asked Katherine Bergen, a freelance journalist, to make an information request to LBL for disclosure of the conditional land sale agreement it had entered into with Renewal in December 2014, as well as the due diligence that had been carried out on Renewal by PricewaterhouseCoopers (PwC). Ms Bergen made that request on behalf of MFC because, under the information rights legislation, it makes no difference who the requester of information is, or what their motives are: information is disclosed to the world at large if it is in the public interest to do so, in accordance with the legislation. The identity of the requester is irrelevant.
4. The information requests were made in March and May 2014. The Council refused to disclose the conditional land sale agreement or any of PwC’s report on Renewal (which had been used by LBL’s Mayor and Cabinet when it resolved to sell its land to Renewal in September 2013 and sought a compulsory purchase order (CPO) indemnity agreement from Renewal).
5. Questions asked under the Freedom of Information Act should be answered within 20 working days, however LBL prevaricated over nearly 120 working days and only disclosed limited information after being ordered to do so by the Information Commissioner (ICO). Ms Bergen first referred the matter to the ICO in December 2014 and it took the ICO over a year to extract the information it required from the Council before deciding in February 2016 that the whole of the PwC report of September 2013 should be disclosed, and that the land sale agreement should be disclosed but with the price withheld.
6. LBL partially disclosed the PwC report at that point, but in a heavily redacted form, so that the majority of it provided little meaningful information. LBL also filed an appeal against the ICO’s decision to disclose the full contents of the PwC report. Katherine Bergen, again on behalf of MFC, appealed against the ICO’s decision to allow the price of the land to remain confidential.
7. At that time, and until December 2016, MFC and Ms Bergen proceeded without lawyers acting on their behalf. We believed that the right to information under the information rights regime was a matter that did not require the additional costs of a legal team. The ICO had ruled in our favour on all aspects of our request other than the price of the land. Meanwhile, however, LBL/Renewal had appointed external lawyers and a QC to help them resist having to disclose the information that the ICO had ordered should be made public. The hearing was originally scheduled for November 2016 but was postponed at the request of LBL. At that time it became apparent that, given the efforts the Council/Renewal was going to, and the complexity of the procedures and requirements of the Information Tribunal, we too would need lawyers to represent our interests properly. We expressed our disappointment at that time that a legislative regime designed to allow the layman to access information from public bodies did not realistically enable the layman to pursue a request without legal representation.
8. By this time, the Council had released a further version of the PwC report, most of which was unredacted. A separate FoI request was submitted on behalf of MFC to see the additional PwC report of August 2016, which was relied on by Lewisham Council when its Mayor and Cabinet resolved to exercise CPO powers over the Millwall land in September 2016. That report was provided largely unredacted.
9. Revelations from the 2013 and 2016 PwC reports have prompted widespread interest, notably as to the fact that PwC was not able to carry out due diligence on Renewal’s parent companies in 2013 and that PwC’s scope, access to management, access to information, and clarity of information were all graded at the lowest possible level: “limited, none, limited, poor”. LBL officers stated in public that full financial due diligence would be required on Renewal for a CPO to proceed, yet did not identify to the Mayor and Cabinet in September 2016 that PwC had only been able to undertake due diligence at a desktop level.
10. The information request and appeals process has provided the public with access to a considerable amount of information regarding the LBL/Renewal arrangements, which the Council had previously, wrongly, refused to disclose. Although we consider that there are further details which should be in the public domain, there can be no doubt that this process has increased the transparency around the arrangements and allowed a greater level of accountability and scrutiny of the Council’s actions.