PINS' Appeals Planning Officer scheme found procedurally unfair

A High Court judge this month upheld a claimant’s challenge to the model adopted by The Planning Inspectorate in employing Appeal Planning Officers in determining certain planning appeals. Anne Williams and Angelica Rokad explain why.

The Claimant in Smith v Secretary of State for Levelling Up, Housing and Communities & Anor [2022] EWHC 3209 (Admin) had applied for express consent for an advert in Shoreditch, London. The Local Planning Authority refused the application, and an appeal was made to the Planning Inspectorate. As part of the appeal, a site visit was carried out and the matter determined via the written representation’s procedure. Upon receipt of the Decision Letter, it appeared that the decision setting out the background of the matter and concluding that the appeal should be dismissed, was written by a party unknown to the Claimant, described only as an “Appeals Planning Officer”. Thereafter, the Inspector stated in a single sentence that he agreed with the “recommendation” as set out by the Appeals Planning Officer and the observations made by her at a site visit – which he did not attend – but had delegated to her to carry out and report back.

The Claimant subsequently issued a claim for a statutory planning review of the Decision Letter on three grounds – all of which pertained to procedural unfairness/breach of natural justice. On behalf of the Claimant, it was argued that the Inspector had no power under legislation, and in any event, had unlawfully delegated his decision-making to an unknown party, who at this stage appeared to have no known qualifications. In addition, it was argued that there was, in addition, a real lack of transparency in the way in which the decision had been arrived at, with the site visit taking place by the unknown party, rather than the Inspector who was the party appointed by the Secretary of State to determine planning appeals.

Subsequent to the claim being issued, and though various Freedom of Information Requests, it transpired that the Appeals Planning Officer scheme was being used by PINS on a large scale basis for appeals for several years. In addition, the Appeal Planning Officer in the Claimant’s claim had no professional qualifications but had been assisting Inspectors – and crucially – exercising decision making functions, such as making assessments on the planning merits of particular scheme, all of which were matters which Inspectors had close regard to when determining an appeal.

The High Court (Kerr J) upheld the Claimant’s first ground of appeal which focused on the unlawful delegation by an Inspector to an Appeal Planning Officer, which was said to be procedurally unfair and/or a breach of natural justice. In so holding, it distinguished the decision of HHJ Cooke in Harris v Secretary of State for Communities and Local Government [2014] EWHC 3740 (Admin) which discussed an earlier model of the Appeal Planning Officer scheme and considered the ability of an Inspector to delegate the carrying out of a site visit to another party, in that case, also an Appeal Planning Officer.

The decision is a landmark challenge given the implications not just for the Claimant, but the potential impact on several appellants who have also had their appeals dealt with, in some way, by Appeal Planning Officers. The High Court commented that the Appeals Planning Officer scheme, in its current form, breached the requirements of procedural fairness as outlined by Lord Mustill in R (Doody). v. Secretary of State for the Home Department [1994] 1 AC 531. Specifically, the Court went on to hold that:

“[…] the process was not fair because she was asked to exercise, and did exercise, a professional judgment she was not, with the greatest respect to her, professionally equipped to exercise. […] fairness will often require, and required in this case, that APOs refrain from exercising such judgments. Their role should be restricted to reporting on fact, evidence, issues and contentions. It should not include seeking to resolve the issues on their merits. The fruits of their labour may or may not need to be disclosed to an appellant or applicant before the decision is taken. That will depend on the factual context.”

Anne Williams and Angelica Rokad of 6 Pump Court acted for the successful Claimant, Mr Steve Smith, of City Outdoor Ltd, instructed on a direct access basis.