Planning can be a tricky area for consultors to manage, particularly when the planning application in question relates to heritage sites. Back in May the High Court dealt with an interesting case about the disclosure of information and internal responses to planning consultations. It emerged from a planning application to convert the former London Chest Hospital into residential accommodation, accompanied by a listed building consent application to make changes to the fabric of the Grade 2 listed structure.

On 9^th October 2020, the local council (Tower Hamlets Borough Council) granted the planning permission, which would allow the developer to demolish the south wing of the main building, the roof and all current extensions to the rear of the site. The original chimneys would be rebuilt in different locations, and a new rear extension would be built, along with a full internal refurbishment. As they so often are, the decision was intensely controversial in the locality, and the claimant was a prominent objector to the permission being granted.

The case was brought on multiple grounds, the first of which is of particular interest to the diligent consultor. The ground of interest revolved around the listing and publication of a document characterised by the claimant as an internal consultation response that was required to be made public under s.100D of the Local Government Act 1972 (LGA). The defendant disagreed with this characterisation, instead arguing that the document that had been provided to the claimant’s solicitor as part of the pre-case research was merely the draft of the ‘Heritage’ section of the report to the planning committee, and therefore not required to be made public under s.100D.

The question of how much and what information to publish is a frequently occurring one for consultors, with the general suggestion that any immediately relevant information should be published. In this particular case, the argument revolved around the characterisation and actual status of the document. S.100D LGA requires the publication of ‘background documents’, documents which “disclose any facts of matters on which… the report of an important part of the report is based… and have…been relied on to a material extent in preparing the report”.

The document here shared many features with the final ‘Heritage’ section of the report, with most changes being merely fixed typos or other minor amendments, and in the event the judge agreed with the Council that it did not constitute a background document, but rather an early draft, left open for collaborative working, of the final section of the report. He highlighted that drafts of reports are not usually held to fall under the requirements of s.100D, although he acknowledged that on the face of it, such a document could fall under the “disclose any facts or matters” wording of the statute. It would be wrong however to suggest that this was Parliament’s intent in writing this section, and if such a meaning was intended, the judge expressed expectations that this would have been made explicit.

It’s not the first time this year that we have seen the status of ‘background documents’ come under scrutiny in the courts. The same set of lawyers were also active earlier in the year in R (Kinsey) v LB Lewisham, where one of the issues was whether a response to an internal consultation with the Senior Conservation Officer of the Council constituted a ‘background document’. In that case, the Court determined that it did, as it was a response that had informed the final report. The distinction between the two is interesting, and it’s not beyond the realms of possibility that we might see it coming up again, possibly in more ambiguous circumstances.

Documentation and how much information to share are a constant challenge for consultors, and any clarification of the law should be welcomed. This was one of those cases that, though it did not significantly advance the law, should provide further reassurance to planning authorities that sometimes the common-sense read of the law is the correct one. It joins the increasing canon of judgments that help us identify what information is necessary to make public in order to ensure a fair consultation.