Town and country planning – Appeal – Procedure – First respondent applying for permission to erect illuminated advertising hoarding – Second respondent local authority refusing application – Planning inspector appointed by appellant secretary of state dismissing appeal following reasoned recommendation of appeal planning officer – High Court allowing application for statutory review – Appellant appealing – Whether inspector failing fairly to determine planning appeal – Appeal allowed
The first respondent ran an agency for clients wishing to place advertisements. He applied for consent to erect an illuminated advertisement on Shoreditch High Street in London. Consent was refused by the second respondent local planning authority on the ground that the proposed advertisement hoarding and associated lighting would adversely affect visual amenity by reason of its size, design and location.
The first respondent appealed to the appellant secretary of state pursuant to section 78 of the Town and Country Planning Act 1990. An inspector was appointed to determine the appeal in accordance with schedule 4 to the 1990 Act under the written representations procedure provided by Part 2 of the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009.
An appeal planning officer (APO) was assigned to the appeal, working under the guidance of the inspector. The APO made a site visit on behalf of the inspector, after which they discussed the appeal and reviewed the documents. The APO provided a reasoned written recommendation that the appeal be dismissed on the sole ground of visual amenity. The APO expressed the view that the illuminated advertisement would not preserve the character and appearance of the area, and would result in harm to the visual amenity of the area contrary to the development plan. The inspector subsequently dismissed the appeal.
The High Court granted the respondent’s application for statutory review of that decision. The judge held that the process was unfair as the APO had not restricted her role to reporting on facts, evidence, issues and contentions but had formed an evaluative planning judgment on whether the appeal should be allowed: [2022] EWHC 3209 (Admin); [2022] PLSCS 205. The appellant appealed.
Held: The appeal was allowed.
(1) In determining the role that might be played by APOs in the process for determining certain types of appeals by planning inspectors, the starting point was that the decision whether or not to allow the appeal was taken by the inspector. He was the person appointed to take the decision and he did, in fact, decide to dismiss the appeal. In doing so, he read the documentation, considered the photographic evidence and read the reasoned recommendation of the APO, which described the site and gave her reasons for considering that the proposed advertisement would have an adverse effect on visual amenity. There was no question of unlawful delegation, ie of the decision being taken by a person other than the appointed decision-maker.
(2) Therefore, the next question was whether the process adopted by the decision-maker was fair. It was for the decision-maker to decide on the procedure to be followed provided that the procedure was fair and provided the decision-maker with the material necessary to make a decision: R (Reckless) v Kent Police Authority [2010] EWCA Civ 1277 and Harris v Secretary of State for Communities and Local Government [2014] EWHC 3740 (Admin) considered.
In the present case, there was nothing unfair in the APO carrying out a site visit and reporting on the facts, evidence and contentions of the parties. Similarly, there was nothing objectionable in principle in the APO making a recommendation whether the appeal should be allowed and providing reasons for that recommendation. The decision remained that of the inspector. It was for the inspector to determine whether he agreed with the recommendation and the reasons. If the inspector did not agree, or considered that the reasoning was not adequate, he would not accept that recommendation or rely on that reasoning. There was no reason why, as a matter of procedural fairness, an APO could not provide reasoned recommendations as part of the decision-making process.
(3) There was no evidential basis for the judge’s conclusion that the APO was seriously unqualified to exercise the evaluative professional planning judgment on visual amenity. She had an undergraduate degree in a relevant subject and had received training on the categories of appeals with which she was dealing. Furthermore, it was not a matter for a court exercising supervisory functions by way of judicial or statutory review to determine the appropriate level of qualifications for APOs. More significantly, the ultimate decision on whether to allow or dismiss the appeal was for the inspector. If he considered that the APO’s reasoned recommendation was inadequate (for whatever reason), he would not have relied upon it. Therefore, it was difficult to see on what basis considerations of qualification or training justified a conclusion that the process was unfair.
There was 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 did not give rise to procedural unfairness. Nor did it assist to refer to the APO providing “a powerful steer” or to suggest that the APO was determining the key issue of visual amenity, albeit on a provisional basis and subject to the inspector’s decision whether to agree or disagree with her judgment. That was not a correct analysis of what happened. More accurately, as part the written representations process, an internal officer carried out a site visit and described the site, reviewed the documentation and made a reasoned recommendation. It was up to the inspector to decide whether to accept the recommendation. The APO was not deciding any issue.
(4) In the present context, the principles of procedural fairness did not require the reasoned recommendation of the APO to be provided to the parties for comment prior to the inspector taking his decision. Under the written representations procedure, the APO was part of the internal machinery within the planning inspectorate for enabling the inspector to deal with that appeal. She was not a witness or a party giving evidence or making representations. The inspector considered the written representations, documents and photographs supplied, and the appeal planning officer’s written reasoned recommendation, to reach a decision. In those circumstances, there was no procedural unfairness in her reasoned recommendation not being disclosed to the parties for comment.
Paul Brown KC and Leon Glenister (instructed by the Government Legal Department) appeared for the appellant; Katherine Traynor (instructed by Thomson, Snell and Passmore LLP) appeared for the first respondent; the second respondent did not appear and was not represented.
Eileen O’Grady, barrister