Court of Appeal allows appeal on PINS’ use of Appeal Planning Officers

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The Court of Appeal has allowed the appeal in Smith v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 3209 (Admin), in which the High Court had quashed a Planning Inspector’s decision on the basis an Appeal Planning Officer (“APO”) assisted with the decision making process.

The appeal before the Planning Inspector was against the London Borough of Hackney’s refusal to grant express consent for an externally illuminated advertisement on the side of a building on Shoreditch High Street, London. It was dealt with under the written representations procedure.

PINS allocated an APO to the appeal. The APO was a Chartered Town Planner Apprentice, who was working towards becoming a Chartered Town Planner. Such APOs underwent the same training as Inspectors to the extent it was relevant to their role. In the appeal, the APO assisted the Inspector by carrying out a site visit and providing a recommendation to him. Having considered the appeal documents, the Inspector agreed with the APO’s recommendation and dismissed the appeal.

The Inspector’s decision was challenged on the basis that the APO had been used in the decision making process. Mr Justice Kerr had found that the decision was unfair as the APO was “seriously underqualified” to exercise an evaluative judgment on the planning merits; rather the APO’s role should be restricted to reporting to the Inspector on fact, evidence and contentions.

The Secretary of State appealed the High Court decision. Noting that the Judge at first instance had provided no reasons as to why the APO was insufficiently qualified, or what level of qualification would have been sufficient, the Secretary of State argued that it was for PINS and the individual Inspector, rather than the Court, to form a view on the weight to be attributed to an APO’s recommendation. This was comparable to the process whereby a planning officer provides a recommendation to a Planning Committee in local authority decision making.

Following an oral hearing, the Court of Appeal allowed the Secretary of State’s appeal, with a reasoned judgment to follow in due course.

Paul Brown KC and Leon Glenister appeared for the Secretary of State, instructed by the Government Legal Department. Katherine Traynor appeared for the Respondent on the issue of costs, instructed by Thomson, Snell and Passmore.

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