Constitutional Questions Raised Over Use of Undisclosed Security Material in Planning Decisions

A newly published legal analysis raises constitutional questions about the use of undisclosed security-sensitive material in ministerial planning decisions made under section 77 of the Town and Country Planning Act 1990.

Section 77 allows the Secretary of State to “call in” planning applications for personal determination. Such decisions are typically made following a public inquiry, where evidence is presented and tested in an adversarial and transparent forum.

The analysis examines a specific doctrinal issue: whether the Secretary of State may lawfully rely upon security-related material that was not disclosed to participants in the inquiry process.

While national security considerations may be relevant in certain planning contexts, the article argues that reliance upon undisclosed material within a statutory inquiry framework raises serious questions of procedural fairness.

The common law duty of fairness, articulated in cases such as R v Secretary of State for the Home Department, ex p Doody and reinforced in planning authorities including Bushell and Porter (No 2), generally requires that parties be given an opportunity to address material considerations capable of influencing the outcome.

The analysis notes that planning legislation contains no express mechanism authorising closed material procedures or secret reliance in section 77 determinations. By contrast, where Parliament has intended to permit reliance upon undisclosed material in other legal contexts, it has done so explicitly.

It is argued that, absent clear statutory authority or alternative procedural safeguards (such as structured summaries or “gisting”), reliance upon undisclosed security material risks undermining the adversarial integrity of planning inquiries.

The issue is framed not as a planning merits dispute, but as a broader constitutional question concerning the limits of executive discretion within statutory schemes premised on transparency and participation.

The full doctrinal analysis is available here:
https://open.substack.com/pub/charlieproctorlaw/p/undisclose...

For comment or further information:
CHARLIEPROCTOR79@GMAIL.COM