Court of Appeal judgment given in appeal on PINS’ use of Appeal Planning Officers

The Court of Appeal has now handed down judgment in Secretary of State for Levelling Up, Housing and Communities v Smith [2023] EWCA Civ 514, which considered the role that may be played by Appeal Planning Officers (APOs) in the process of determining certain types of planning appeal. The Court indicated it would allow the appeal at the oral hearing on 4 May 2023 with judgment to follow (see post here).

Facts leading to the appeal

The respondent applied to the London Borough of Hackney for consent to erect an illuminated advert on Shoreditch High Street. This was refused and the respondent appealed to the Secretary of State. It was determined by the written representations procedure.

The appeal was allocated to an inspector, and an APO was assigned to the case. The APO discussed the case, reviewed the documents and discussed a site visit with the Inspector. The APO then provided a written recommendation and decision template for the Inspector, with the recommendation to dismiss the appeal. The Inspector set out under the recommendation that he had “considered all the submitted evidence and the Appeal Planning Officer’s report and on that basis the appeal is dismissed”.

At first instance, Kerr J concluded the process was unfair and therefore unlawful as the APO had formed a planning judgment in the case which they were “not professionally equipped to exercise”. He considered that fairness required that the APO “refrain from exercising judgments and that their role should be restricted to reporting on fact, evidence, issues and contentions”.

The Court of Appeal’s judgment

The Court first found there was no question of unlawful delegation. The Inspector took the decision, and in doing so had considered the photographic evidence and read the reasoned recommendation of the APO.

On the key issue, the Court considered there was nothing unfair about the APO carrying out the site visit, reporting on the facts and evidence, and then making a recommendation as to whether or not the appeal should be allowed:

“19. 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. 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.”

It considered the Judge at first instance was wrong. In particular:

• There was no evidential basis for the conclusion the APO was “seriously underqualified to exercise the evaluative professional planning judgment on visual amenity”. In any event, it was not a matter for the Court to determine the appropriate level of APOs. The ultimate decision on the appeal was the Inspector’s and if he considered the APO’s recommendation was inadequate he would not have relied upon it.
• There was no reason to restrict the APO to address facts, and avoid planning judgments. There is nothing in principle objectionable to an APO providing a reasoned recommendation and it does not give rise to procedural unfairness.
• Procedural fairness did not require the reasoned recommendation of the APO to be provided to the parties for comment prior to the Inspector’s decision. This was a written representations case, and part of the internal machinery within PINS for enabling the Inspector to deal with the appeal.

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.