Failure to publish background papers leads to quashing of planning permission

The recent ruling of the High Court on R (Wild Justice) v Pembrokeshire Coast National Park Authority [2025] EWHC 2249 (Admin) (available here) shows the dangers of not publishing documents that are materially relied upon in the Officer’s Report and failing to identify environmental impacts affecting protected areas outside the red line boundary of the proposed development.

Background

A judicial review claim was brought by Wild Justice against Pembrokeshire Coast National Park Authority (the “LPA”). The case concerned the LPA’s decision to grant planning permission to Adventure Beyond Limited (‘’ABL’’) for the change of use of an old bus depot into an outdoor adventure centre. 

ABL is an existing provider of “coasteering” activities in the Pembrokeshire Coast. One of the places in which ABL organizes coasteering and kayaking activities is Ceibwr Bay. 

ABL sought planning permission to relocate its base of operations, while continuing providing coasteering activities along the Pembrokeshire Coast. While the proposed development was not directly within an environmentally protected area, the site where they carry out their coasteering activities, Ceibwr bay, is in several environmentally protected areas namely the Cardigan Bay Special Area of Conservation (“SAC”), the West Wales Marine SAC, and the Aberath-Carreg Wylan Site of Special Scientific Interest (“SSSI”).  

Therefore, activities stemming from the proposed development would naturally take place in environmentally protected areas. Additionally, parts of the Ceibwr Bay coastline are owned by the National Trust, and ABL were already subject to certain conditions and restrictions regarding the use of this land. 

Grounds of Challenge

Wild Justice challenged the planning permission on five grounds:

1. Failure to publish key documents: The claimant argued that documents relied on in ‘formulating the Officer’s Report and the Appropriate Assessment’ should have been disclosed by the defendant either by virtue of the duty of fairness to objectors of the application, or pursuant to Section 100D of the Local Government Act 1972. The key documents identified were:

• The National Trust Concordat
• A National Resources Wales Ceibwr Breeding Bird Survey 2024 (“NRW Draft Report”)
• Lobby documents submitted by ABL
• A survey which formed the basis for a position statement 

2. Failure to Consider Impact on Aberath-Carreg Wylan SSSI: The claimant contended that the LPA unlawfully failed to consider the potential impact of the development on the Aberath-Carreg Wylan SSSI. They provided that this is a mandatory relevant consideration under Planning Policy Wales.

3. Inadequate Planning Conditions: The claimant argued that the planning conditions imposed were insufficient to mitigate any negative impact of the development which is deemed necessary under the Habitats Regulations.

4. Flawed Risk Assessment: The claimant alleged that the LPA’s assessment of the risk to the integrity of the Special Area of Conservation (SAC) was legally flawed, and their conclusion was irrational.

5. Unlawful Balancing of Harm and Benefit: It was argued that the LPA unlawfully and irrationally balanced the negative effects of increased coasteering activity against the supposed ‘’long-term public appreciation of the SAC’s special features’’.

Court’s Findings

Ground 1: Section 100D of the Local Government Act 1972 (the “Act”) requires that the "background papers" for a report for a meeting of a principal council are to be made available for inspection. Background papers are defined as "…those documents relating to the subject matter of the report which— (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works."

The court found the failure to disclose the NRW Draft Report breached section 100D of the Act, as it was materially relied upon in the preparation of the officer’s report. This omission caused “significant or material prejudice” to the claimant depriving the claimant of raising “potentially significant” details. 

The Concordat, lobby documents, and survey were not considered background papers under the Act, because they were not relied upon to a material extent by the Officer’s Report. Therefore, their non-disclosure did not amount to unfairness or material prejudice.

Ground 2: Paragraph 6.4.26 of Planning Policy Wales contains a presumption against development which is not within a SSSI, but which is likely to damage the SSSI. As the activities of ABL would take place within the SSSI, the court found that the potential impact to the Aberarth–Carreg Wylan SSSI was a “mandatory relevant consideration” which should have been addressed. Based on this, the court found that the LPA failed to consider the impact on the SSSI in breach of Planning Policy Wales.

Ground 3: The court rejected arguments that planning conditions unlawfully relied on the concordat and the Marine Code. It was held that the Transport and Access Management Plan was sufficient to mitigate environmental risks. 

Grounds 4 & 5: The court found no evidence of a flawed risk assessment under the Habitats Regulations and concluded that the correct approach was applied. Additionally, the court found the LPA’s balancing of risks and benefits was not incorrect, and that the LPA was not suggesting there was any harm that could be weighed against the potential benefits of increased coasteering activity.

Conclusion

The judgment serves as a reminder to Local Planning Authorities to follow requirements under Section 100D of the Local Government Act 1972 and publish all documents that are materially relied upon Officer’s Report before granting planning permission. Otherwise, the decision will be vulnerable to legal challenges. A similar approach has been recently taken by the courts in relation to the prior publication of s106 agreements, as we reported here.

This judgment also highlights that, when areas with environmental protection –such as SSSIs– are nearby a proposed development, then it is important to take into account the environmental impacts that extend beyond the redline boundary and might impact those areas, as these areas are given protection in both legislation and policy.