AC-2024-CDF-00018 - [2025] EWHC 2249 (Admin)

Section 100D of the Local Government Act requires that the “background papers” for a report or part of a report for a meeting of a principal council (which includes the Defendant for these purposes) are to be made available for inspection. By section 100D(1)(c) the Defendant as a principal council in Wales was required to publish those documents electronically unless (which is not suggested here) it was not reasonably practicable to do so.

Section 100D(5) defined background papers as:

“…those documents relating to the subject matter of the report which—

(a)

disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and

(b)

have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works.”

In addition, the effect of article 12 of the Town and Country Planning (Development Management Procedure)(Wales) Order 2012 was that the Defendant was required to make available for inspection copies of the documents submitted in support of the Interested Party’s application.

Whether a particular document is a background paper for the purposes of section 100D involves questions both of judgement and of law. It is a question for the judgement of the relevant officer whether the document in question disclosed facts or matters on which the report or an important part thereof was based and whether those facts or matters were relied upon to a material extent in preparing the report. The two aspects of that matter cover essentially the same ground. If the facts and matters were not relied upon to a material extent then the report is unlikely to have been based on them but if they were relied on to a material extent then the report is likely to have been based on them. Those are matters for the judgement of the officer. A conclusion as to whether the report was so based or the facts or matters were so relied upon can only be challenged on the basis of irrationality. However, those are matters where the scope for legitimate differences of opinion will be limited. In addition, the court will often be as well-placed as the relevant officer to assess whether there was such reliance. There will often be little scope for debate as to whether a report was or was not based on the facts and matters in a particular document. Accordingly, the question is one to which there will often only be one possible rational answer. When the conclusion has been reached (whether by way of the officer’s assessment or the court’s conclusion that it is the only rational assessment) that the report was based on the facts or matters and that they were relied on in preparing the report then the document in question is a background paper as a matter of law. There is no further or residual discretion at that stage and the document must be published.

The approach to be taken when considering alleged breaches of the section 100D requirement was explained thus by Lewis LJ in R (Bradbury) v Brecon Beacons NPA [2025] EWCA Civ 489 at [49]:

“… There are two separate questions. The first question is whether the failure to comply with the relevant procedural requirement results in the decision being unlawful, applying the approach in R v Soneji [2005] UKHL 49, [2006 1 AC 340, and A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, [2024] 3 WLR 601. If so, the second question that may arise is whether a remedy should be refused pursuant to section 31(2A) of the 1981 Act or as a matter of discretion on the part of the court. The two questions are analytically distinct and should be considered separately. …”

In determining whether a breach of section 100D renders a decision unlawful the approach to be taken is, therefore, that laid down in Soneji which was considering in this context by Holgate J (as he then was) in R (Worcestershire Acute Hospitals NHS Trust) v Malvern Hills DC & others [2023] EWHC 1995 (Admin) at [140] – [142]. It is apparent from Bradbury at [49] that Lewis LJ regarded Holgate J’s approach as applicable and I note that it also reflects the approach adopted by Lang J in R (Kinsey) v Lewisham LBC [2021] EWHC 1286 (Admin) at [103]. A breach of the section 100D duty does not automatically render the decision in question unlawful or invalid. Whether it will do so depends on all the circumstances. The relevant considerations include in particular whether there was or was not substantial compliance with the requirements of the section and the extent to which any non-compliance caused significant prejudice to those challenging the decision. The nature and purpose of the 2012 Order are closely analogous to those of section 100D. It follows that the same approach is to be taken to breaches of the publication requirements of the Order as to breaches of the requirements of section 100D.

In having regard to the circumstances and in considering the effect of any non-compliance with the publication requirements it is necessary to keep in mind the purpose and importance of those requirements. As Cranston J explained in R (Joicey) v Northumberland CC [2014] EWHC 3657 (Admin), [2015] PTSR 622 at [47] “the very purpose of a legal obligation conferring a right to know is to put members of the public in a position whether they can make sensible contributions to democratic decision-making”. Similarly, in Hale Bank PC v Halton BC [2019] EWHC 2677 (Admin) at [60] Lieven J noted that “proper compliance with section 100D is an important part of maintaining a transparent planning system, in which third parties can be properly informed as to why particular recommendations are being made”. As Lang J put it in Kinsey at [101] a breach of the section 100D requirements will be seen as significant because “access to reports and background papers not only allow the public to be informed but to participate by making written representations to councillors and officers in advance of the meeting and also assisting the preparation of oral representations”.

A separate but closely related requirement is that a planning authority’s procedure in considering an application be fair. Procedural fairness requires that those objecting to a proposal have access to the material on which the decision is to be based. This again is necessary in order to enable them to participate on a properly informed basis so that their submissions can be directed at the relevant material. The requirement is one of substance rather than form. A failure to provide documents will only amount to procedural unfairness such as to invalidate a decision if that failure caused material prejudice. As with section 100D when considering the presence or absence of material prejudice the court must keep in mind the importance both of public participation in democratic decision-making and of such participation being on an informed basis. The court must be particularly cautious before concluding that a party who can show that the representations which would have been made in response to the unpublished information would have been materially different from or additional to those which were in fact made has not suffered material prejudice.