High Court gives guidance on sharing draft Officer Reports in planning applications

Planning & Environment, Local Government, Judicial Review & Public Law

Today, the High Court has handed down judgment in R (Davis) v Isle of Wight Council [2026] EWHC 1718 (Admin).

At the heart of the judicial review claim was whether it was unlawful for a local authority’s planning officer to share a draft version of her report with the applicant for planning permission, and then incorporate the applicant’s comments into the final report to the Council’s Planning Committee. The High Court dismissed the claim. The judgment provides useful guidance as to the requirements of procedural fairness when sharing draft officer reports.

Background

The development in question was a renewable energy park. A previous grant of planning permission had been quashed by consent following a legal challenge brought by the same claimant.

When the application was reconsidered by the Planning Committee, the local authority’s planning officer (at the applicant’s request) shared a copy of the draft report with the applicant. The applicant’s advisors marked some comments in tracked changes and in comment boxes, some of which were incorporated into the report. There was also separate email correspondence between the applicant and the Council seeking additional factual detail on some issues in the application.

The claim was brought on two bases. First, that sharing a draft version of the report was a breach of the principles of natural justice. Second, that the marked-up version of the report, and the additional email exchange constituted “background papers” within the meaning of section 100D of the Local Government Act 1972 and so should have been published on the Council’s planning register.

Sharing Draft Officer Reports

The Court held, on the facts of this case, that there was nothing unlawful in the sharing of the report but made clear that each case must be considered on its own facts.

The Court usefully outlined some general factors in considering whether it is fair or unfair to share a draft report [106]:

• The officer responsible for the report must have exercised independent judgment into any input received. The exercise of that discretion may be revealed in how she receives and acts upon comments.
• Whether the officer’s view was arrived at unprompted by any comments may also be relevant – it may be “preferable” to approach an issue by asking: “This is a relevant issue. I propose to tackle it like this.  What do you think?”, rather than “This is a relevant issue.  How do you think I should tackle it?”.
• The substance of the comments will be a relevant factor – ranging from correcting typographical errors, up to evaluative comments on particular issues, or comments on how the officer conducts the planning balance.
• The greater the degree of transparency around the assistance obtained, the less arguably unfair its use will be.

One will then also need to consider the fairness of the process as a whole, including whether third parties had had an opportunity to comment on the report prior to it being considered by the decision-maker, and whether they had the opportunity to influence the decision being taken, such as by making a presentation at the Planning Committee [107].

On the facts of this case, the Court noted that there was strong evidence that the officer had exercised independent judgment [109]. The draft report shared did not contain the planning balance, so this section of the final report was “demonstrably” the officer’s own work [118]. Of the 6 specific comments alighted on by the Claimant, none of these revealed anything unlawful or improper [120]. The Claimant had the opportunity to comment “extensively” on the report before it was considered by Committee [123]. The purposes for which the draft report was shared with the Interested Party were sensible and unobjectionable [127].

Background Papers

As to Ground 1(b), the Court accepted the witness evidence from the planning officer that she did consider at the time whether either document in issue in this case was a “background document” [144]. The Claimant could not show that the exercise of that discretion was irrational. In any event, the Court followed R (Juden) v London Borough of Tower Hamlets [2021] EWHC 1368 (Admin), which held that drafts of an officer report do not fall within the scope of s.100D [153]. Further, the comments on the draft report were not relied on to a material extent [155]. As to the separate email exchange, the Judge held that “I see nothing in the statutory language to support the view that such routine exchanges between an applicant and a case officer constitute background papers” [163].

Isle of Wight Council was represented by Jack Parker and Hannah Taylor, instructed by Ben Gard.