New Year hopes and fears

January 10, 2023

John Pugh-Smith rounds up the latest developments in relation to the Planning Inspectorate, including an important High Court judgment on its use of appeal planning officers, and considers the potential for an expanded role for mediation.

As a “planning professional”, both as a long-time practising barrister and now, increasingly, as a neutral dispute resolver, there are occasions when a New Working Year triggers both feelings of cautious optimism and of continuing frustration[1]. Given how much of my time is still spent engaged with the outworkings of the Planning Inspectorate or “PINS” (as we usually refer), their pre-Christmas presents and offerings of Smith v Secretary of State for Levelling Up, Housing & Communities and Hackney LBC [2022] EWHC 3209 (Admin)[2], a Stakeholder Survey, their latest performance statistics, all in the context of the potential outworkings of latest round of amendments to the LURB[3] and NPPF[4] have prompted this article.

The Smith case

In terms of timing, the last working week before Christmas saw the public release of Mr Justice Kerr’s judgment[5]. The case raises an interesting and important legal issue revolving around a PINS’s cost savings initiative of using “Appeal Planning Officers” or “APOs” to address delays and free-up inspectors’ time, one of the Rosewell recommendations[6]. The context was an advertisement appeal.

The principal legal issue, upon which the statutory challenge succeeded, was whether the appointed Inspector, in breach of the requirements of procedural fairness and natural justice, failed to determine the appeal independently of the APO and had unlawfully sub-delegated his functions to an inexperienced junior officer, whose recommendation and reasoning he accepted without alteration. Whilst the relevant legislation did not require a site visit to be carried out, the appeal acceptance letter had stated that a site visit would be carried out by an Inspector or their representative. In the event, the APO had conducted the site visit on behalf of the Inspector, following which she had recommended that the appeal be refused on the sole ground of visual amenity. The Inspector had ‘topped and tailed’ the APO’s decision without adding further reasoning before signing and issuing the decision in his own name, appending the decision of the APO.

Within the Judgment, we are reminded that whilst planning inspectors are not required by law to possess certain qualifications, they are in practice highly qualified professionals. Here, the APO had a university degree and had received some degree of training. Accordingly, Mr Justice Kerr determined that the employment of APOs to assist with reporting, document handling and carrying out site visits as a representative of an inspector was a lawful practice. However, in this case, as the Inspector had unlawfully delegated powers to the APO, such delegation was procedurally unfair because the APO had exercised a professional judgment that she was not professionally equipped to exercise. Mr Justice Kerr also observed that the better practice, to ensure fairness, would be “for the APO to address the facts, avoiding planning judgments and avoiding discussion of the merits with the inspector; for the template to record the APO's findings; and for the decision maker then to fill in the planning judgment parts addressing the merits”.

PINS Stakeholder Survey

The Stakeholder Survey[7], published on 19 December 2022 with a return date of 13 January 2023, has sought to identify (through perhaps through an unhelpful scoring system ranging from “Strongly Agree” to “Strongly Disagree”) the extent to which PINS currently demonstrates each of its stated values of “Impartiality; Fairness; Openness; A customer-focused service”. The survey, using the same scoring process, also asks whether PINS is: “Trustworthy; Professional; Consistent in our processes; Consistent in our communications; Consistent in our decisions”. Bold questions, all the more so now in the context of not only the Smith judgment but also the latest Performance Statistics published on 22 December 2022[8]. At this stage, one can only speculate what form answers will take and how they will be both received and addressed.

PINS latest performance statistics

These advise: “During recent months performance for hearings and inquiries has improved due to additional Inspector resource being used to improve performance in these areas; as a result the number of open written representations cases has increased causing longer decision times." More specifically, PINS closed over 1800 appeal cases in November, higher than most months; but it was still generally receiving more appeals than it could currently decide. The overall number of open cases at the end of November was 14,477. It received 1,821 new cases in November and closed 1,801 (including withdrawn cases). Hearings, inquiries, and site visits saw the highest number in any month in the last two years (1,738); and in most months it was holding more than it did in the corresponding month last year. Nevertheless, median timeliness (i.e. the time taken by the ‘middle’ case if all cases were sorted from quickest to longest) by procedure type was:

Written Representations: 26 weeks (last 12 months); 30 weeks (Nov 2022)
Hearings: 56 weeks (last 12 months); 51 weeks (Nov 2022)
Inquiries: 47 weeks (last 12 months); 41 weeks (Nov 2022)

Enforcement decisions made in November had a median decision time of 52 weeks, with the 12-month median being 44 weeks. The median time for planning appeals decided by inquiry under the Rosewell Process (i.e. housing appeals) was 29 weeks. There were 390 Planning Inspectors employed by the Inspectorate in November 2022 with a full-time equivalent of 348.

Nonetheless, are the statistics really going to get significantly better on a sustained basis without wider and more flexible solutions?

A fresh approach

In the context of this article the Smith judgment[9] is helpful in the following wider respects. It confirms:

If the legislative provisions expressly permit or forbid what happened, that will dictate the result. If the process to be followed is at large and within the decision maker's discretion, it is for him or her to decide on the process, provided it is fair. Whether or not the process is fair is a matter for the court, not the decision maker. The test of fairness is not whether it is rational to have adopted the particular procedure decided upon[10].
The factual context includes the nature of the decision to be taken, the considerations relevant to the decision, the experience and qualifications (both required in law and needed in practice) to be appointed to make the decision; and the characteristics and role played by, respectively, the decision maker and the person giving assistance to the decision maker[11].

Accordingly, while there are now, necessarily, judicially prescribed limits on the deployment of APOs, the foregoing should still give PINS (and DLUHC) hope that more innovative solutions towards helping reduce the backlog of appeals and speed up the process are legally permissible. I suggest that these could swiftly include not only the greater use of technical assessors (e.g. on heritage, design and viability disputes) but also independent mediators (facilitators) to help resolve or limit discrete issues within the appeal and call-in processes, for example, housing land availability, viability and section 106 contributions, mitigation measures.

In this context, it needs to be recalled that the remit of the Independent Review of Planning Appeal Inquiries chaired by Bridget Rosewell OBE was: “To review the use and operation of the planning appeal inquiries procedure to make it quicker and better. The Review will examine the end-to-end process and will make recommendations to significantly reduce the time taken to conclude planning inquiries, while maintaining the quality of decisions”. In a bare 60 pages, it contained pragmatic, pithy phrased insights into the strengths and weaknesses of the inquiries system and provided recommendations for improvement of each stage of the process, including the following passage[12]: “Achieving these targets won’t just need the introduction of technology or improving the availability of suitable inspectors: it also requires a significant culture change on the part of all the main parties involved, led by the Planning Inspectorate, so that a rigorous performance culture is embedded within the behaviours of all parties”.

Regrettably, neither the words “mediation” nor “facilitation” appear in a word search of the Report, all the more so since only 7 years earlier PINS had undertaken a detailed study, under the chairmanship of Leonora Rozee OBE (a former lead inspector) with its resulting and much lengthier report published in June 2010[13]. Within its conclusions the following, equally pithy, observation was made: “The culture of the planning system tends to be based on knowledge of the system and reflects different players’ sense of their rights rather than their responsibilities. Whilst this is starting to change it often leads to a confrontational approach to dealing with planning issues and an imbalance between those ‘in the know’ and those outside (especially more marginalised groups in society). The more consensual approach required for effective mediation is not embedded.[14]”

Further, the Rozee recommendations embraced the following three headings: (1) developing and building a market to include: developing awareness, assessing the value of mediation, developing practice, selling the idea and assessing the effectiveness; (2) providing advice and guidance to include: developing understanding; quality assurance; (3) developing skills and creating capacity to include: providing a framework, developing the infrastructure to support the use of mediation, developing the skills and knowledge of all players in the planning system.

Indeed, when the Government planning reforms of 2011 were originally envisaged, one of the aims had been to try to put an end to the “us and them” character of the planning system. Accordingly, it came as no surprise that the Government’s Killian Pretty Review of 2008 recommended the greater use of alternative dispute resolution or ADR to try to end the adversarial approach of planning and provide a speedy alterative to appeals, and, that both The Department of Communities and Local Government (as it then was) and the PINS responses in 2010 endorsed that approach together with “A Mediation Guide” endorsed by the then Planning Minister, Bob Neill MP. However, save for the 2011 S106 Brokers Initiative for ‘stalled developments’ and the 2021 Enforcement Pathfinder Initiative both Central Government and PINS have not achieved further tangible and sustained progress.

So, given the current and likely state of affairs surely now is the time for fresh thinking and approaches?

Challenges and solutions

As somebody long-known as an advocate of deploying mediation within the planning system it would be unrealistic of me not to articulate the challenges in this article; but there is also a need to identify the achievable solutions too; for I am a sufficient pragmatist to recognise that mediation is best deployed in certain situations and not a “one-fit” imposed solution, as is now likely for the smaller claims civil justice system[15].

Addressing the challenges, it needs to be acknowledged at the outset that there is a reluctance within the planning industry, and especially amongst local authorities, either to explore, let alone take up mediation. The anecdotal but consistent evidence suggests that this is due to a mindset that, partly, arises because both mediation and its benefits are poorly understood, and, partly, because of unjustified concerns that mediation is not compatible with decision-making within a statutory framework, and the role of the public interest (in various respects) within the planning system.

However, these challenges can be addressed by education, both formal (such as Government guidance as in Scotland[16]) and informal (such as training run by experienced mediators). However, experience within the civil justice system, shows that it will, almost certainly, be necessary to adopt the incentivisation model, namely, the use (or threat) of cost sanctions for parties that unreasonably refuse to mediate. Indeed, even a small and swift change to the PPG advice on “appeal costs” would, in itself, be an easy solution as well as considerably help change current mindsets.

Furthermore, these initiatives should be accompanied by a series of short training sessions on mediation (webinars / seminars) organised by and delivered through PEBA, and to which local authorities, planning consultants and planning lawyers and other professionals are invited.

Finally, so as to ensure the delivery of high-quality mediation, a public list of qualified, experienced mediators with planning law experience will be maintained by, say, PEBA and/or the RICS[17].

Concluding remarks

As a practising planning professional and mediator it has been my experience that the use of mediation and other related techniques to facilitate dialogue can achieve positive outcomes in even the most protracted and ill-tempered disputes. So, why not become an active participant in this major “sea change” in dispute resolution in the planning context as one New Year resolution?

John Pugh-Smith FSA FICIArb of 39 Essex Chambers is a recognised specialist in the field of planning law with related disciplines acting for both the private and public sectors. He is also an experienced mediator, arbitrator and dispute ‘neutral’. He is on the panel of the RICS President’s appointments for non-rent review references, a committee member of the Bar Council’s Alternative Dispute Resolution Panel, an advisor to the All Party Parliamentary Group on ADR, one of the Design Council’s Experts and a member of its Highways England Design Review Panel. He has been and remains extensively involved in various initiatives to use ADR to resolve a range of public sector issues. including the DLUHC/PINS Enforcement Mediation Pathfinder Initiative.

^[1] Mediation and planning disputes (localgovernmentlawyer.co.uk)

Mediation and planning: here to stay? (localgovernmentlawyer.co.uk)

^[2] https://www.localgovernmentlawyer.co.uk/planning/318-planning-features/52520-pins-appeals-planning-officer-scheme-found-procedurally-unfair

^[3] https://www.gov.uk/government/consultations/levelling-up-and-regeneration-bill-reforms-to-national-planning-policy/levelling-up-and-regeneration-bill-reforms-to-national-planning-policy

^[4] Unfortunately, space dos not allow for a summary of these amendments and proposals: Please further refer e.g. to https://www.localgovernmentlawyer.co.uk/planning/401-planning-news/52573-gove-consults-on-reforms-to-five-year-housing-land-supply-new-flexibilities-to-meeting-housing-needs-as-part-of-planning-overhaul

^[5] Dated 16^th December 2022: https://www.bailii.org/ew/cases/EWHC/Admin/2022/3209.html

^[6] https://www.gov.uk/government/publications/independent-review-of-planning-appeal-inquiries-report (published 12 February 2019)

^[7] https://forms.microsoft.com/r/yDLDKW8a47

^[8] https://www.gov.uk/government/statistics/planning-inspectorate-statistical-release-22-december-2022

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1126183/Planning_Inspectorate_Statistical_Release_December_2022.pdf

^[9] Para. 69

^[10] @ Para. 88