The Court of Appeal has ruled that a so-called “appeal planning officer” who advised on a planning appeal in Shoreditch, east London, was not underqualified, and her input did not make the procedure unfair.
Appeal planning officers are a new form of junior planning officer designed to deal with a national shortage of planning inspectors. They hold university degrees in a planning-related subject and work with planning inspectors, assisting them with their investigations. In due course, they are expected to become full planning inspectors.
The current case was brought by outdoor adverting company chief executive Stephen Smith. His company had applied for consent to erect an illuminated advertising hoarding on Shoreditch High Street. Hackney council rejected the application in September 2021, so he appealed to a planning inspector.
The case was dealt with by an appeal planning officer working with a planning inspector. The appeal planning officer carried out a site visit, reviewed the documents and wrote a report for the planning inspector recommending that planning permission should be rejected. The planning inspector agreed and rejected the application.
Smith appealed the case to the High Court, arguing procedural unfairness, and in a ruling handed down in December, High Court planning judge Mr Justice Kerr agreed.
The judge held that there could be no objection to appeal planning officers assisting with reporting, document handling and carrying out site visits. Even so, in this case the process had been unfair, and thus unlawful, because the appeal planning officer had formed a judgment on the case.
“If… [the appeal planning officer] had confined her reporting role to ascertaining the facts, marshalling the evidence, documenting the case and explaining the facts, evidence, issues and contentions to the inspector, there could be no objection to her role” the judge said.
“However, I have come to the conclusion that the process was not fair because she was required to exercise a professional judgment she was not, with the greatest respect to her, professionally equipped to exercise.”
He went on to say that while the planning appeal officer was not “unqualified,” she was “seriously underqualified.”
The secretary of state appealed the judgment, and in a ruling earlier this month, a three-judge panel at the Court of Appeal overturned Kerr J’s ruling.
The judges allowed the appeal after a short hearing on 4 May, and they formally handed down their ruling with reasons yesterday (16 May).
In the ruling, Court of Appeal judge Lord Justice Lewis said there was “no question of unlawful delegation”.
The planning inspector, he said, was the person who made the decision. As for Kerr J’s finding that the appeal planning officer should have kept her opinions to herself, Lewis LJ said there was “no reason why… an appeal planning officer cannot provide reasoned recommendations as part of the decision-making process”.
As for Kerr J’s assertion that the appeal planning officer was “underqualified”, there is “no evidential basis” for Kerr J’s finding, Lewis LJ said.
“Furthermore, it is not a matter for a court, exercising supervisory functions by way of judicial or statutory review, to determine the appropriate level of qualifications for appeal planning officers,” Lewis LJ said.
“I do 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,” Lewis LJ said.
“In this case, the appeal planning officer provided reasoned recommendations. She did not take the decision. The inspector did. There is nothing inherently objectionable as a matter of principle in making a reasoned recommendation based on a view of the planning merits of the appeal. That does not give rise to procedural unfairness. I would allow this appeal.”
Secretary of State for Levelling Up, Housing and Communities v (1) Stephen Smith and (2) London Borough of Hackney
Court of Appeal (Lewison LJ, Phillips LJ, Lewis LJ) 16 May 2023
[2023] PLSCS 83
