We have written before (here) about the need for councils to publish section 106 agreements on their websites before issuing a planning decision. That principle has been expanded, so now councils are strongly recommended to publish drafts of the section 106 agreements on the websites in plenty of time prior to issuing the planning decision.
Another cranny in the legislation governing councils is section 100D of the Local Government Act 1972 (LGA72). This piece of legislation contains the requirement to publish committee reports and minutes. Section 100D (1) LGA72 also requires a list of all the background papers for any report and copies of those background papers.
Why is this important now?
This is now front and centre for many councils as a result of The King on the application of Wild Justice v Pembrokeshire Coast National Park Authority v Adventure Beyond Limited [2025] EWHC 2249 (Admin) .
What was a background paper here?
The council had granted planning permission and the officer's report (Officer's Report) for the committee meeting used a draft report about bird breeding from National Resources Wales (Bird Report) to reach its conclusions. The Bird Report was only in draft and had not been published. However, the Court decided that since the conclusions of the Officer's Report were in part due to the Bird Report, the Bird Report was a background paper.
Outcome of the Court case
The ecologist summarised the Bird Report and said that it had informed their conclusion on the possible impacts of the proposal. The claimant couldn't assess the weight (in the planning balance) given to the Bird Report and so couldn't challenge that weight. That caused them significant prejudice.
The planning permission was quashed.
What can be a background paper?
Anything (even, as here, a draft unpublished report) which helps the officer reach their conclusions which are then placed in the officer's report is capable of being a background paper.
If a document has been used to inform the decision and a third party may need to see it to understand how (or why) a decision has been reached; it is a background paper and should be published.
Developers beware
Anything which is used to inform the decision may need to be published. This may also apply to confidential commercial information. Care should be taken when impressing upon an officer why a particular factor means that development should happen in a certain way, as if the information informing this factor is part of the officer's decision-making process, it may need to be published.
This is another example of a procedural requirement which has been routinely ignored by many local planning authorities. Developers may wish to remind local planning authorities of their obligations in this area so that robust challenge free decisions are created in the future.
If you would like further information or to discuss this please contact
Jade.Chalmers@howardkennedy.com
or Bob.Sadler@howardkennedy.com
