In Smith v Secretary of State for Levelling Up, Housing and Communities and another [2022] EWHC 3209 (Admin), the High Court ruled that an inspector had failed to fairly determine a planning appeal as the decision was not made independently from that of an underqualified appeal planning officer (APO).
The case concerned an application for permission for a large illuminated advertising hoarding. The London Borough of Hackney had rejected the application and the applicant then appealed to the Planning Inspectorate.
As part of the appeal, a site visit was conducted by an APO who then submitted a written recommendation to the inspector. She recommended the appeal be dismissed on the sole ground of visual amenity. The inspector accepted the recommendation in full and signed the document.
It was then left to the Court of Appeal to decide if the above process was fair. The judgment focused on whether such functions should be delegated to junior officers. It was acknowledged that there is a shortage of inspectors, which has led to the recruitment of juniors to assist them. However, ultimately, it was decided that the process was not fair as the APO “was required to exercise a professional judgment she was not, with the greatest respect to her, professionally equipped to exercise”.
While the judge did not agree that site visits must be carried out by the inspector personally, he did conclude that the role of the APO should have been confined to “ascertaining the facts, marshalling the evidence, documenting the case and explaining the facts, evidence, issues and contentions to the inspector”.
The judge stressed that the APO was not “unqualified”, as suggested by the claimant, but held she was “underqualified to exercise the evaluative professional judgment on visual amenity, which was required to determine this appeal”.
He added: “The better practice, to ensure fairness, is 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. The whole decision can then be in the name of the right person.”
Owing to the inspector not reaching his decision independently of his APO, the appeal will now be redetermined by a different inspector.
Elizabeth Mutter is a solicitor in the planning and environment team at Irwin Mitchell
