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Planning

What information does this cover?

Information that relates to planning cases, especially the decisions of the Secretary of State on planning appeals and called-in planning applications. This includes cases where the Secretary of State is considering whether or not to call in an application.

This working assumption should not be confined entirely to the 'Town and Country Planning Act' circumstances, and can be applied to planning decisions made by other Secretaries of State under other legislation (for example, the Transport and Works Act 1992 and the Electricity Act 1989).

Note: the working assumptions are formulated on the assumption that planning information is covered by the Environmental Information Regulations (EIRs). It is important to check that the information requested is Environmental Information as defined by the Regulations. Most planning information will be, but there will be exceptions (for example, the qualifications of Government officials advising the Secretary of State). To ensure that any request for planning information is treated under the correct legislation, please refer to Chapter 3 of Defra's detailed guidance on the EIRs: 'What is covered by the regulations'.

Working assumption

Requests for:

• Release of Planning Inspectors' reports prior to a decision by the Secretary of State
  Withhold - citing EIR regulation 12(4)(e) (disclosure of internal communications).
• Draft decision letters
  Withhold - citing EIR regulation 12(4)(d) (information which is still in the course of completion) - an estimate should be given for the date of the final decision letter.
• Advice from officials to the Secretary of State which informed his or her decision
  Withhold - citing EIR regulation 12(4)(e) (disclosure of internal communications).
• Factual background and statistical information in advice from officials to the Secretary of State which informed his or her decision, after the planning decision has been made
  Release.
• Factual background and statistical information in advice from officials to the Secretary of State, which informed his or her decision, before the planning decision has been made
  Withhold.

Reason for the assumption

Planning Inspectors' Reports

Requests for the release of the report of a Planning Inspector (before the Secretary of State has made a decision) should be refused under regulation 12(4)(e) of the Environmental Information Regulations (concerning the disclosure of internal communication).

Following a planning inquiry, the Planning Inspector prepares a report for the Secretary of State in which he or she sets out the evidence presented at the inquiry, their conclusions on the main issues and makes a recommendation to the Secretary of State. The Secretary of State considers their recommendation, which he or she may choose to accept or reject. Until the Secretary of State has made a decision, the report forms part of internal advice.

Once the decision has been taken, the main parties to the application receive a copy of the Inspector's report with the decision letter and other parties may request a copy. Thereafter, so far as the Town and Country Planning Act regime is concerned, a challenge to a decision can be made within 6 weeks by way of an appeal to the High Court under Section 288 of the Town and Country Planning Act 1990.

The Inspector's report is intended for public release following a decision by the Secretary of State and there is no compelling public interest in the early release of this information given that it is invariably disclosed at a future date.

It is in the public interest to have an efficient and transparent planning system, which is fair to all. If the conclusions and recommendations of the Planning Inspector are released before the Secretary of State has made a decision, there is a risk that this will undermine the efficiency, transparency and impartiality of the planning process, and delay the decision-making process. Individuals might well make further representations on the basis of the report's content that, in the interests of fairness, the Secretary of State might then have to consider and possibly circulate to other interested parties to the inquiry so that they had an opportunity to respond. This might lead to a re-opening of the public Inquiry and a further Inspector's report, making it difficult to bring a case to a close. The existing system balances the need to facilitate public debate and participation in planning decisions against the public interest in an efficient and effective planning system where plans and decisions are made within reasonable timescales.

Drafts of decision letters

For requests for the release of the drafts of decision letters the information should be withheld under regulation 12(4)(d) of the Environmental Information Regulations (information still in the course of completion).

There is clearly a strong public interest in high quality decision-making. Consequently there is often a clear need for planning officials to liaise and consult with colleagues, including legal colleagues, on the wording of Secretary of State decision letters. A draft decision letter is an internal communication only, designed to ensure that all the key legal and policy issues are reflected in the Secretary of State's formal decision, which is publicly available. Draft decision letters can often undergo many changes, and might well be quite different from the final, publicly available version. Release of such drafts risks undermining the way in which planning cases are dealt with, and hinder the ability of officials to have free and frank discussions about how best to ensure that the Secretary of State's final decision is legally robust. For example, the release of drafts may expose key areas on which officials considered that the Secretary of State's decision, and reasoning to justify that decision, was weak. Consequently, there is a risk that the release of drafts would unnecessarily increase the risk of legal challenge to Secretary of State's final decision.

Advice from officials

Advice from officials on whether the Secretary of State should accept a Planning Inspector's recommendations or call in a planning application also constitutes internal advice. In order to protect the free and frank provision of advice and discussion of policy, the information should be withheld under regulation 12(4)(e) of the Environmental Information Regulations (internal communications).

There are strong public interest considerations in withholding advice to ministers on decisions relating to planning matters. The main considerations are:

• It is in the public interest that decision making is based on the best advice available and a full consideration of all the options.
• Ministers and officials need to be able to conduct rigorous and candid risk assessments of the impact of decisions without premature disclosures, which might close off discussion, and the development of better decision making.They need to be able to consider all available options, to debate those rigorously, to expose their pros and cons and to understand their possible implications. The Secretary of State is entitled to go against the advice of his or her officials but may be reluctant to do so if he or she knows this advice will be exposed. The release of the submission to the Secretary of State may therefore curtail, or be seen to curtail, the Secretary of State's discretion in the planning system.
• To protect the impartiality of the civil service which might be undermined if advice was routinely made public as there is a risk that officials could come under political or public pressure not to challenge ideas in the decision making process, or be more constrained if they knew that their advice would subsequently be made public.
• Advice to ministers often contains a strong element of legal advice, which often cannot be separated out from the 'policy advice'. Legal advice may be withheld under Regulation 12(5)(b) of the EIR. It is important that legal advice is protected as its disclosure may affect the ability of the Department to defend itself in any subsequent legal proceedings concerning the Secretary of State's final decision.

Factual background and statistical information from the advice from officials to the Secretary of State

For requests for the release of factual background and statistical information after the planning decision has been made, this material should be released. Such information summarises information already released in the Inspector's report or publicly available as evidence provided to the public inquiry. Release should take place for the following reasons:

• there is a general public interest in disclosure
• as the information upon which it has based its decisions is more widely available and knowledge of the way government works increases, the public contribution to the decision making process is likely to become more informed and effective, with a wider constituency given the opportunity to contribute to the debate
• it demonstrates the evidence base underlying decision making and thereby increases trust in the way decisions are reached.

Referral points

If you propose not to handle a request in accordance with this working assumption, you should refer the case to the Clearing House.