Define Fair: High Court rules on whether sharing a draft planning report breaches principles of natural justice

“It’s Not Fair!”

I can’t be the only parent who spends much of their time arbitrating issues of fairness. It is always difficult, as the question of what is fair in any particular situation is….. variable…. to say the least…. particularly when it comes to new clothes, the distribution of party bags, or whose turn it is to choose what we watch on TV*.

Thankfully, in a professional capacity at least, I now have some judicial back up!

On Wednesday, the High Court handed down its decision in Davis, R (On the Application Of) v Isle of Wight Council [2026] EWHC 1718 (Admin). A decision which gives provides a great deal of guidance on what “fairness” actually means, in a planning context at least.

The crux of the case can be distilled into a single question:**

“1. Was it unlawful for a local authority’s planning officer privately to seek from the applicant for planning permission, and then incorporate, comments on her draft report to the Council’s Planning Committee?

2. That is the question at the heart of this claim. It entails questions about the fairness of the decision-making procedures adopted in relation to the planning application, about the applicable principles of natural justice, and about the requirements of openness and transparency in the planning system. A subsidiary ground of challenge relates to whether (and, if so, how) the applicant’s comments on the draft report should have been recorded as being part of the background information informing the case officer’s report to Committee.”

On the facts of the case, which are well worth reading, the answer to the question was most definitely “NO”.

How the Court got there, however, was both interesting and rather useful.

The following paragraphs are quoted from the Judgment:

“91. Whether it is apt to describe the planning system as quasi-judicial or not, it is undeniable that the system does not set out to treat all participants in the process equally. Mr Parker described the process as being “asymmetric” – a term which I consider apt to describe the role played by various actors in it, with the applicant for planning permission being at the fulcrum.

92. The DMPO reinforces this asymmetry in a number of ways. It is selective in the third parties it requires to be consulted on a planning application (article 18), on the
requirements to publicise the application (article 15), and on the duty of the local
planning authority to explain whether (and, if so, how) it has engaged positively and
proactively with an applicant for planning permission “based on seeking solutions to
problems arising in relation to dealing with a planning application” (article 35(2), which I have set out in full above).“

“94. There is, as always, a balance to be struck. Asymmetry means that one is not looking for a wholly level playing field. But it does not equate to a licence to adopt procedures which are fundamentally unfair.”

“97.Recognising that there is an asymmetry in the planning process all the way up to when a decision is made, and that this of itself is not illustrative of unfairness, how then should considerations of fairness and natural justice treat the selective sharing of a draft report to Committee (as happened here)?”

“105.Testing the above legal principles against the present facts, I consider that it would be imprudent to try and define an exhaustive set of guard rails for determining when it will be fair or unfair to share a draft report to Committee selectively. That said, there are factors which I do think it relevant to note when considering this specific question.”

“106. As I see it, relevant considerations include at least the following:

a) Firstly, and most importantly, it should be non-negotiable that the officer responsible for the report has exercised some independent judgement in relation to any input received…. some active engagement with the suggestions must be demonstrated by the author. Mere passive or unthinking acceptance of the comments will not be sufficient;

b) An officer’s exercise of discretion might be revealed in how he or she receives and acts upon comments. That may be clear on the face of the evidence, for example if suggestions have been made but have demonstrably been rejected. It may also be explained in a witness statement from the officer in question, applying the requisite degree of scrutiny over such ex post facto evidence (see Ermakov v Westminster City Council [1995] EWCA Civ 42 and R (United Trade Action Group) v Transport for London [2021] EWCA Civ 1197 (“UTAG”))

c) At a more granular level, whether the officer’s view was arrived at unprompted by any comments may also be a relevant factor. To illustrate the shades of grey involved in such an exercise, in oral argument I posited with Counsel two hypothetical scenarios that are closely linked but different. In the first scenario the officer shares a draft report with the applicant, noting about one aspect of it “This is a relevant issue. I propose to tackle it like this. What do you think?”. In the second scenario the request from the officer is “This is a relevant issue. How do you think I should tackle it?”. I do not suggest that one approach is always permissible and the other not, but equally one can see that the former is preferable to the latter in evidencing unprompted thought on the part of the officer;

d) The substance of the comments accepted will also be a relevant factor. Some may be inconsequential, some may be pivotal. Although not an exhaustive list, comments might be offered on the following aspects of a report (in ascending order of significance): (i) correcting typographical errors, (ii) correcting internal inconsistencies clear on the face of the report, (iii) correcting factual inaccuracies which are readily ascertainable from the application documents themselves, (iv) introducing additional material not found amongst the application documents but which is readily ascertainable from public sources – for example ONS data, (v) evaluative comments on particular issues (having regard also to how significant the issue is in the determination of the application), (vi) comments on how the officer conducts the planning balance required by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, and (vii) comments on the substantive recommendation being made to members of the Planning Committee; and

e) The greater the degree of transparency around the assistance obtained, the less arguably unfair its use will be. Revealing that the draft report was shared for comments will go so far, but revealing the comments actually received and showing how many of them were accepted will be better“

107 …there is also .. a need to take a step back and look at the fairness of the decision-making process as a whole. This will entail a number of additional considerations, a non-exhaustive list of which includes:

a) Whether third parties had their own opportunity to comment on the report prior to it being considered by the decision-maker, and

b) Whether third parties had additional opportunities to influence the decision-maker on the decision to be taken (for example, were they afforded the opportunity to make a presentation at the Planning Committee meeting?)“

Applying these considerations to the facts of the case, the Court found that there was no prejudice nor any unfairness in what had transpired. Not least as the claimant had made multiple submissions on the report, once published, and managed to get the application deferred to allow those submissions to be taken into account.

The Court also found that the draft committee report, comments on it, and emails around it, did not constitute background papers under s.100D of the Local Government Act 1972.

So there we have it.

Judicial confirmation that, in the context of the planning system at least, fairness does not mean treating everybody the same.

Now, if only I can persuade my children…..

In other news:

• On 9 July, MHCLG published the English Housing Survey an absolute treasure trove of information for those interested in the state and nature of housing in England. It included the following infographic for 2024 to 2025

• On 6 July MHCLG published guidance on plan making and local government reorganisation that confirmed that it intends to “Publish transitional regulations in due course to deal with the various plan-making complexities arising because of local government reorganisation”
• On 3 July, MHCLG published new National Infrastructure Planning Guidance, new guidance on NSIP cost recovery for PINS and LPAs, the outcome of the consultation on streamlining NSIP processes; The Infrastructure Planning (Rights of Entry Notice) Regulations 2026; and The Infrastructure Planning (Development Consent) (Miscellaneous Amendments) Regulations 2026. All of which are worth reading if NSIPs are your thing

Right, that’s quite enough from me for the day. We are coming up to the Summer recess, which is traditionally a popular time for government announcements, so no doubt you will be hearing from me again soon.

In the meantime, have a brilliant weekend!

and maybe an ice cream or two…

* the answer to this one is nearly always “your Dad’s”, so, frankly, I don’t know why they keep asking….

** which the judge in fact did in the first paragraph of the judgment. It is very well written.