Planning and Environmental Exempt Information

June 17th, 2022

The statutory framework for access to information at principal local authority meetings, including when the public may be excluded, as in Stride v Wiltshire Council (2022) EWHC 1476 (Admin), is set out in the Local Government Act 1972. Section 101A provides for such a meeting to be open to the public unless excluded by Resolution.

When it is likely, in view of the nature of the business to be transacted, or the nature of the proceedings that, if members of the public were present during that item, there would be disclosure of “exempt information”.

That is defined by reference to Schedule 12A. That includes (paragraph 3) information relating to “the financial or business affairs” of any person.  That includes the authority holding that information.

However, information is NOT exempt information (paragraph 9) if it “relates to proposed development” for which the “local planning authority may grant itself planning permission or permission in principle.”

With respect to this exclusion from the exemption, the Judge said:-

“37. In my judgment the meaning of the words permit both a wide meaning or a narrow interpretation, although perhaps not as wide as Mr Willers QC contends or as narrow as Mr Goudie QC contends. The wording does in my judgment suggest some temporal connection between information relating to a proposed development and the grant of permission for that development. It does not suggest that as soon as an authority as landowner proposes development, then information relating to it cannot be exempt, however far in the future and however unlikely a grant of planning permission may be. On the other hand, it does not suggest that it is only at a meeting where the grant of planning permission will be decided that such information must be disclosed. There may be a meeting of the executive to discuss proposed development on its land where a planning application has already been made, and it is difficult to see why the wording or paragraph 9 should not apply in those circumstances.

38. In my judgment, it assists in this case to have regard to the purpose of the statutory scheme, which is to promote public access on the one hand, but to safeguard the financial and business interests of anyone, including the authority, on the other hand. It is clear that in the interests of transparency, once the authority is applying for planning permission for development on its own land, then such safeguards should no longer apply and the public should have access to relevant financial and business information.

39. In this case, the authority accepts that once that stage is reached, there must be public access to, and hence scrutiny of, such information before planning permission is granted. Given that that will happen, the question is whether in balancing the competing interests of public access and private interest, the purposes will be served by disclosure of such information when the proposals are at any early stage. In my judgment, it is not difficult to see why proposals may be prejudiced by the early disclosure of such information. In this case, that applies in particular to the negotiations and contracting with other landowners.

40. Accordingly, I conclude on ground 1 that paragraph 9 on its proper interpretation did not apply so as to render the information withheld from the public in private session of the meeting as not exempt.  The executive was entitled to proceed on that basis, and did not in so doing act unlawfully.”

The Judge also dismissed consultation challenges. There was “no clear and unqualified assurance”.  In any event the public would have a sufficient opportunity to comment upon the development when formulated. There was no duty to reconsult on the preferred road route. That did not amount to a “fundamental change.”

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