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

The Interested Party’s document of 15^th October 2024 was clearly not a background paper for the purposes of section 100D. The Officers’ Report was prepared in advance of its receipt and it did not form the basis of the advice being given to the Committee. It follows that there was no breach of section 100D. It was published on the same day that it was received by the Defendant and it cannot be said that there was any breach of the 2012 Order. Similarly, it cannot be said that there was any unfairness or any prejudice to the Claimant in that document being put before the Committee. It amounted to advocacy in general terms and in large part replicated the Interested Party’s planning statement (which had been published previously) albeit in less formal language. There would have been scope for saying that there was unfairness if the document introduced a new factor which was taken into account and regarded as material by the Committee and upon which the Claimant had no opportunity to comment. That was not the position. It is not suggested that the Committee were advised that the document raised new issues which should be taken into account in addition to those set out in the Officers’ Report. Instead, the position remained that the Committee were being told that the material issues were those addressed in that report.

The Q & A Document was a supporting document supplied by the Interested Party which should have been published in accordance with the 2012 Order. However, as already noted the same approach is to be adopted as that in respect of section 100D and this failure will only invalidate the Decision if it caused significant prejudice to the Claimant. That depends on whether it contained information which was materially different from that in the planning statement such as would have enabled the Claimant to advance a new argument different from those it was already advancing. The question of whether the Q & A Document was materially different from the planning statement also determines the question of whether it was a background paper. If it was not materially different from the planning statement then it cannot have added anything to the reliance on that statement for the purposes of compiling the Officers’ Report. Similarly, there will only have been unfairness to the Claimant if the failure to publish the Q & A Document deprived it of a potentially relevant argument. In addressing this question it is relevant to note that the Q & A Document preceded the planning statement with the latter being the fuller and considered articulation of the Interested Party’s position.

The Claimant says that there are two arguments which could have been advanced if it had seen the Q & A Document.

The first is that the Q & A Document says that the Concordat limited the numbers in any group of users to 20. It can be seen from the planning statement that there were occasions when there were more than 20 participants in the Interested Party’s activities. The Claimant says that if it had known of the limit imposed by the Concordat it would have been able to argue that the Concordat was ineffective as a means of control. This argument does not advance matters and there was no prejudice to the Claimant in the fact that it was not advanced. There are a number of difficulties with the argument. The first is that the planning statement shows that there were only 13 days in a three-year period when there were more than 20 users of the Interested Party’s activities. It follows that the difference is minimal. In addition, the reference in the Q & A Document is to a limit on numbers in a group, whereas the planning statement appears to be referring to the total number of users on a day. It does not, therefore, follow that there was non-compliance with the Concordat. I note, however, that the Interested Party indicated that there were occasions when there were groups of more than 20 and so it does appear that there was not strict compliance with the limit. However, the more significant point is that the argument would be misconceived. It is based on the view that the Defendant was approaching matters on the basis of relying on the Concordat and that in the terms of the conditions it was seeking to give effect to the Concordat. I have addressed that point above and will revert to it when addressing ground 3. For the reasons I have set out there it is based on a misunderstanding of the approach being taken by the Defendant.

The second argument which it is said that the Claimant could have raised is based on the fact that the Q & A Document says that the Interested Party ran a seven day a week operation. The Claimant says that this could have been relied on in support of its contentions as to the degree of intensification of use which might occur if the development were to proceed. It is true that at one point the planning statement does refer to averaging figures “over working days only (250 to a year)”. However, it then goes on to show figures by reference to use throughout the year without reference to working days and talks of activity “each day” in busy periods with some such periods extending up to five days continuously. It is to be remembered that the Interested Party’s operation was a leisure activity and it would be unrealistic to suggest that the members of the Committee were under any doubt that in peak season it would be a seven day a week operation. The Interested Party’s position as set out in the planning statement was that the operation was a full time one but that for many days there was no activity at all. The reference in the Q & A document was not a material change from that nor was it some form of “smoking gun” which would have enabled the Claimant to mount an additional argument or which would materially have altered the force of its existing arguments.

It follows that the Claimant suffered no material prejudice from the failure to disclose the Q & A Document and this aspect of ground 1 fails.