Court of Appeal overturns judgment on use of appeal planning officers

The Court of Appeal has allowed an appeal over a High Court ruling that found the Planning Inspectorate's model of employing appeal planning officers in aiding determination of certain planning appeals was unlawful.

In Secretary of State for Levelling Up, Housing and Communities v Smith & Anor [2023] EWCA Civ 514, Lord Justice Lewis said he did not accept Mr Justice Kerr's conclusions that it would "be better practice, to ensure fairness" for the appeal planning officer to address the facts and avoid planning judgements.

Lewis LJ instead found that the planning inspector took the decision and ultimately decided the process was fair.

The disputed planning application was for express consent for an illuminated advert in Shoreditch, London, initially refused by the London Borough of Hackney as the associated lighting would adversely affect visual amenity because of its size, design and location.

The man behind the planning application, Stephen Smith, then appealed to the Secretary of State pursuant to section 78 of the Town and Country Planning Act 1990, which led to the appointment of a planning inspector to determine the appeal.

The inspector assigned an appeal planning officer to the appeal who reviewed the documents and undertook a site visit on their behalf.

Following the site visit, the planning appeals officer discussed the visit and the documents with the inspector and then provided a reasoned written recommendation for the inspector to dismiss the appeal on the ground of visual amenity.

The inspector then issued a decision letter dismissing the appeal explaining that his decision was the result of considering "all the submitted evidence and the appeal planning officer's report".

Following the planning inspector's dismissal, the claimant lodged a statutory review in the High Court.

The High Court judge, Mr Justice Kerr, found that the process was unfair and therefore unlawful, as the appeal planning officer had formed a judgment on the planning issue in the case.

He concluded that the appeals planning officer "was seriously underqualified to exercise the evaluative professional judgment on visual amenity, which was required to determine this appeal".

"Yet, she was given the task of doing so, albeit on a provisional basis and subject to the inspector's decision whether to agree or disagree with her judgment."

In responding to the argument that the officer's report was only provisional and a recommendation, the High Court judge said: "It did not usurp the function of the inspector, who alone made the final decision. With the greatest respect to [the officer] and other APOs who undoubtedly perform a useful role, the unfairness here is the initial planning judgment being made by such a junior and inexperienced person. It provides the inspector with a powerful steer."

The case then advanced to the Court of Appeal, where permission was granted on one ground. This was that Kerr J was wrong to conclude that the process was unfair as the appeal planning officer had only provided recommendations for the inspector.

Paul Brown KC, with Leon Glenister of Landmark Chambers, acted for the Secretary of State at the Court of Appeal. They submitted that the inspector in the present case had read all the documentation and considered the photographs that had been submitted, and had discussed the case with the appeal planning officer.

The inspector had exercised his own judgment in deciding to dismiss the appeal, they added.

Lewis LJ summarised their submissions, noting that the pair argued that it was permissible for a decision-maker to be assisted in reaching a decision. They relied on R (Reckless) v Kent Policy Authority [2010] EWCA Civ 1277, R (Varma) v HRH Duke of Kent [2004] EWHC 1705 (Admin), and in this context, Harris v Secretary of State for Communities and Local Government [2014] EWHC 3740 (Admin) where the High Court held that it was lawful for an appeal planning officer to conduct a site visit on behalf of an inspector.

Paul Brown KC argued that there was no reason why an appeal planning officer could not provide a reasoned recommendation, setting out his or her evaluation of the planning issues, for the inspector to consider.

He further submitted that there was no proper basis for Kerr J to conclude that appeal planning officers were seriously unqualified to make planning judgments in the category of appeals on which they worked as they had undergraduate degrees in a relevant subject and had undergone training.

He also argued that the requirements of procedural fairness did not require that the appeal planning officer's recommendation be disclosed to the parties for them to comment on it prior to the decision of the inspector. The provision of a reasoned recommendation was all part of the internal machinery for considering an appeal under the written representation procedure.

Counsel for the claimant indicated that he did not contest the appeal, and did not make submissions on the substance of the appeal.

Lewis LJ first turned to the decision on whether or not to allow the appeal was taken by the inspector.

He found that there "was no question here of unlawful delegation".

The Court of Appeal judge noted that the planning inspector was the person appointed to take the decision and, in doing so, he read the documentation, considered the photographic evidence and also read the reasoned recommendation of the appeal planning officer who described the site and gave her reasons for considering that the proposed advertisement would have an adverse effect on visual amenity.

Lewis LJ then considered whether the process adopted by the decision-maker was fair, ultimately finding that: "In the present case, as accepted by the Judge, there was nothing unfair in the appeal planning officer carrying out a site visit and reporting on the facts, the evidence and the contentions of the parties". 

He continued: "Similarly, there is nothing objectionable in principle in the appeal planning officer making a recommendation as to whether or not the appeal should be allowed and providing reasons for that recommendation. The decision remains that of the inspector. It is for the inspector to determine whether he agrees with the recommendation and the reasons. 

"If the inspector does not agree, or if he considers that the reasoning is not adequate, he will not accept that recommendation or will not rely on that reasoning. There is no reason why, as a matter of procedural fairness, an appeal planning officer cannot provide reasoned recommendations as part of the decision-making process."

Lewis LJ went on to conclude that there was no evidential basis for the High Court judge's finding that the appeal planning officer was "seriously unqualified".

He also did not accept the judge's general conclusions that it would "be better practice, to ensure fairness" for the appeal planning officer to address the facts and avoid planning judgments.

Finally, Lewis LJ found that, in the context of the case, the principles of procedural fairness did not require the reasoned recommendation of the appeal planning officer to be provided to the parties for comment prior to the inspector taking his decision.

Lord Justice Phillips and Lord Justice Lewison agreed with Lewis LJ's findings and his decision to allow the appeal.

Adam Carey