Town and country planning – Appeal – Procedure – Claimant applying for permission to erect illuminated advertising billboard – Second defendant refusing application – Planning inspector dismissing appeal – Claimant applying for statutory review – Whether inspector entitled to delegate decision-making powers to appeals planning officer – Application granted
The claimant operated an agency for clients wishing to place advertisements. He applied unsuccessfully to the second defendant and local authority for permission to erect externally a large illuminated advertising billboard in Shoreditch High Street, London. The second defendant refused the application on the ground that the advertisement would impact adversely on the visual amenity of the area.
The claimant appealed to the first defendant, the secretary of state. An appeals planning officer (APO) was assigned to the case under a scheme in which planning officers were hired and trained to help inspectors by undertaking site visits and helping to draft decision letters. A planning inspector appointed by the first defendant acted as her mentor.
The inspector subsequently dismissed the appeal. It appeared from the decision letter that the decision setting out the background to the appeal and concluding that the appeal should be dismissed was written by a party unknown to the claimant, described as an APO. The inspector then stated in a single sentence that he agreed with the “recommendation” as set out by the APO and the observations made by her following a site visit. The inspector had not made the site visit but delegated the APO to do so and report back.
The claimant applied for statutory review of that decision. He contended, amongst other things, that the inspector had failed to determine the appeal independently of the APO or failed to determine the appeal with “transparency” by relying on recommendations of an unknown party without the proper qualifications and experience of an inspector; and that the inspector had no power to do so.
Held: The application was granted.
(1) It was for the inspector to decide what process to adopt. The legislation did not specify any particular procedure except that the appellant was entitled to submit written representations and supporting documents. The inspector could simply read the written representations and documents and issue a written decision, without a site visit or any other procedural steps. That would, in principle, be fair and lawful.
However, the inspector was not to exercise his discretion to decide what procedure to adopt in a manner that was unfair. The principles of fairness were not to be applied by rote identically in every situation. What fairness demanded was dependent on the context of the decision, and that was to be taken into account in all its aspects. An essential feature of the context was the statute which created the discretion, as regards both its language and the shape of the legal and administrative system within which the decision was taken (R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 considered).
(2) The question in each case was the extent of permissible delegation by a decision maker who was himself a delegate, appointed by another to make a decision. The maxim delagatus non potest delegare (a delegated authority cannot further delegate) might apply, but the outcome depended on an analysis of the legal and factual context.
The legal context included the applicable provisions and their true meaning. If the provisions expressly permitted or forbade what happened, that would dictate the result. If the process to be followed was at large and within the decision maker’s discretion, it was for him or her to decide on the process, provided it was fair. Whether or not the process was fair was a matter for the court, not the decision maker. The test of fairness was not whether it was rational to have adopted the particular procedure decided upon.
The factual context included the nature of the decision to be taken, the considerations relevant to the decision, the experience and qualifications (both required in law and needed in practice) to be appointed to make the decision; and the characteristics and role played by, respectively, the decision maker and the person giving assistance to the decision maker: Doody followed. Harris v Secretary of State for Communities and Local Government [2014] EWHC 3740 (Admin) distinguished.
(3) Applying those principles in the present case, there could be no objection to the recruitment of APOs to assist with reporting, document handling and carrying out site visits representing the inspector. It was lawful for the APO to carry out the site visit in this case.
If the APO 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. However, the process was not fair because she was required to exercise a professional judgment she was not professionally equipped to exercise.
She was seriously underqualified to exercise the evaluative professional judgment on visual amenity, which was required to determine this appeal. Yet, she was given the task of doing so, albeit on a provisional basis and subject to the inspector’s decision whether to agree or disagree with her judgment.
(4) The process was not fair because she was asked to exercise, and did exercise, a professional judgment she was not professionally equipped to exercise. Fairness would often require, as in this case, that APOs refrain from exercising such judgments. Their role should be restricted to reporting on fact, evidence, issues and contentions. It should not include resolving the issues on their merits. The fruits of their labour might or might not need to be disclosed to an appellant or applicant before the decision was taken. That would depend on the factual context.
The better practice, to ensure fairness, was 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 could then be in the name of the right person.
If the inspector had brought his professional judgment to bear without a prior steer from an underqualified junior colleague, he might have reached a different conclusion. Therefore, the inspector’s decision would be quashed. The appeal would have to be redetermined by a different inspector.
Anne Williams and Angelica Rokad (instructed on a direct access basis) appeared for the claimant; Leon Glenister (instructed by the Government Legal Department) appeared for the first defendant; the second defendant did not appear and was not represented.
Click here to read a transcript of Smith v Secretary of State for Levelling Up, Housing and Communities and another