Luke Nathan Davis, R (on the application of) v Isle of Wight Council

Fairness in determining a planning application is fact-sensitive. The process is not litigation and need not give applicants and objectors equal opportunities, but its asymmetry cannot justify fundamentally unfair procedure. An authority may share a draft committee report selectively where the officer independently scrutinises the input and the process as a whole gives objectors effective opportunities to participate. Relevant considerations include the nature of accepted changes, transparency and later opportunities to address the decision-maker. A breach of natural justice requires material prejudice. Under section 100D of the Local Government Act 1972, a document must both disclose matters on which the report or an important part is based and have been relied on to a material extent to qualify as a background paper. A marked-up draft report and routine clarification correspondence did not meet that test.

Mr Davis sought judicial review of planning permission granted to Sunny Oaks Renewable Energy Park Limited after the Isle of Wight Council redetermined its application. An earlier permission had been quashed by consent following a challenge by Mr Davis. He alleged that the Council acted unfairly by sharing a draft committee report with the developer alone and that the marked-up report and subsequent email exchange should have been disclosed as background papers under section 100D of the Local Government Act 1972. A separate ground alleging an error concerning flood risk was refused permission and was not pursued. The central issues were whether the selective sharing caused material unfairness and whether either document fell within the statutory definition of a background paper.

The claim failed. Grounds 1(a) and 1(b) were refused.

1. Fairness in planning applications. Subject to statutory requirements and basic natural justice, it is for the decision-maker to set the procedure. A planning application is not litigation, and the system is asymmetric in favour of the applicant. Article 35(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 contemplates that an authority may assist an applicant, although it imposes no absolute duty to do so. Asymmetry does not permit fundamentally unfair procedures.

2. There is no bright-line rule for selectively sharing a draft committee report. Fairness depends on the circumstances and the process as a whole. Relevant considerations include whether the officer actively exercised independent judgement, whether that is evidenced, whether the officer’s views were formed before receiving comments, the nature and significance of accepted changes, transparency, and third parties’ opportunities to comment and address the decision-maker. The court accepted that Ms Wilkinson independently scrutinised the comments, most of which it regarded as factual or clarificatory. Although the exclusive sharing was not disclosed before the decision, Mr Davis had extensive opportunities to make representations, his submissions influenced the updated report, and he addressed the Committee. He therefore suffered no material prejudice. The report’s recognised importance, as explained in R (Trashorfield) v Bristol City Council [2014] EWHC 757 (Admin), did not displace the need to assess the whole process.

3. Background papers. Section 100D(5) of the Local Government Act 1972 requires both that a document disclose facts or matters on which the report or an important part is based and that it be relied on to a material extent in preparing the report. The court applied R (Kinsey) v London Borough of Lewisham [2022] EWHC 1774 (Admin) and R (Juden) v London Borough of Tower Hamlets [2021] EWHC 1368 (Admin). A draft report remains a draft report even when a third party marks it up; section 100D is directed to separate source papers, not drafts showing how the report evolved. The comments did not materially change the report’s direction or emphasis. The 11 April email was routine dialogue clarifying the applicant’s position, not a background paper on which the report was based. Neither document qualified for disclosure.

4. The officer’s consideration of the statutory test could be established by witness evidence consistent with the contemporaneous records. There was no implied duty to record an assessment of every document. As neither document was a background paper, the court did not need to decide prejudice or discretionary relief under section 31(2A) of the Senior Courts Act 1981. The parties were invited to agree the consequential order.

The first permission, granted in April 2024, was quashed by consent after an earlier challenge. The planning application was remitted to the Council and redetermined, resulting in the permission challenged in these proceedings. This first-instance judicial review claim was dismissed.