[2009] EWHC 660 Admin

(We are grateful to No 5 Chambers for providing their Practical Note on which this summary is based)

The case relates to an appeal by the written representations procedure and deals with what an appellant must disclose.

Local residents made representations about a badger sett on the development site. After the exchange of representation had closed, the appellant received a further report which confirmed that there was indeed a badger sett. He gave the information to the local authority and offered it to the Planning Inspector. The authority did nothing and the Inspector refused to take the report.

The badger issue was dealt with in the decision letter which allowed the appeal, without knowing that the appellant now agreed that there were badgers on the site.

The claimant, a third party, claimed that the Inspector was wrong to refuse the report, that the appellant had failed in his duty of disclosure and that there had been a mistake of fact.

The court limited its findings to the written representations procedure and held that there was no general duty of disclosure. The Inspector had discretion to refuse to accept the report. A duty to disclose material adverse to a party's case is only likely to arise in relation to matters of fact on which a party had relied, and the factual basis had subsequently changed.