Lewisham Council - New Bermondsey Tribunal decision welcomed

New Bermondsey Tribunal decision welcomed

Published on 22 September 2017

The First-tier Tribunal has handed down its decision in the recently heard information rights case involving an appeal concerning a request for information made to Lewisham Council by a journalist, Ms Katherine Bergen, on behalf of Millwall FC. The request related to the development at New Bermondsey.  

The appeal by the journalist and Millwall FC concerned the Council's refusal to reveal the price payable to Renewal, the developer of the scheme, for the disposal of the Council's freehold interest in land surrounding Millwall Football Stadium under a conditional land sale contract entered into in 2013, which the Information Commissioner had previously ruled the Council was legally entitled to withhold. Lewisham Council had also appealed against the Information Commissioner's ruling that a fully unredacted copy of a 2013 PwC (Price Waterhouse Coopers) report produced by way of initial due diligence on Renewal should be disclosed.

The Tribunal:

  • rejected Ms Bergen and the club's appeal in relation to the price under the sale contract and concluded that Lewisham Council had been properly entitled to withhold this information because of the harm that would have flowed from disclosure of this information at the time of the request
  • upheld Lewisham Council's appeal that, aside from a small number of redactions, Lewisham Council was properly entitled to withhold the remaining redactions in the PwC report
  • rejected 14 so called "red flag" factors – allegations about wrongdoing by Lewisham Council and other concerns about the Council's actions, the New Bermondsey development and the Compulsory Purchase Order (CPO) process which were relied on by Ms Bergen and Millwall FC
  • invited Lewisham Council to make applications for costs against Ms Bergen in respect of matters arising during the conduct of the proceedings (the power to make a costs order is a power the Tribunal has where it considers that a party has acted unreasonably in bringing or conducting proceedings). 

The Tribunal reached these conclusions based its on findings that:

  • if disclosed, the disputed information would be used by Millwall FC to attempt to thwart the development, the Tribunal having heard evidence about the club's “sustained press and public relations campaign” opposing it   
  • most of the disputed information in the PwC Report was commercially sensitive and that there was  "limited public interest in disclosure…..and a relatively high risk of harmful "cherry picking" to the detriment of Renewal and of a "chilling effect"  on other developers dealing with Lewisham Council" , so the public interest favoured non-disclosure
  • there was a very narrow category of disputed information in the PwC Report where, although a legal exemption to disclosure applied, having considered the harm that would be caused and public interest, the Tribunal concluded  the public interest favoured disclosure of that information   
  • the "red flag" factors asserted by Ms Bergen and Millwall FC were not based on any credible evidence and were not views which were reasonably arrived at based on the evidence before the Tribunal.   

A spokesperson for Lewisham Council said: 'We are pleased with the decision handed down by the Tribunal regarding information requests about the New Bermondsey development project. After hearing a large amount of evidence, including from seven witnesses in a hearing lasting over four days, the Tribunal concluded we were properly entitled to withhold the sale price because of the harm that would have flowed from disclosing this information.

'The Tribunal also determined that the public interest favoured non-disclosure of the vast majority of disputed information in the PwC report.

'We are committed to openness and transparency and have published hundreds of pages of detailed information about our work with the football club, local businesses and community to bring new investment, homes and jobs to New Bermondsey.'

The full New Bermondsey Tribunal decision will be made available shortly.

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