Stephen Smith v Secretary of State for Levelling Up, Housing and Communities & Anor

An appointed planning inspector must personally determine the appeal, but may obtain assistance with site visits, document handling, evidence gathering and factual reporting. Where the assistant makes an evaluative planning judgment on the merits, fairness may require that the assistant’s role be confined. The legality of delegation depends on the statutory and factual context, including the nature of the decision, the relevant considerations, and the qualifications and roles of those involved. Procedural fairness is assessed by the court and is not answered merely by showing that the chosen procedure was rational. A provisional recommendation by an underqualified junior officer may unfairly steer the inspector, even where the inspector formally makes the final decision.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of his appeal against refusal of advertisement consent. The appeal concerned an externally illuminated advertisement wrap in Shoreditch High Street.

The inspector delegated the site visit to an Appeal Planning Officer, who also prepared a reasoned recommendation addressing the planning merits. The inspector adopted that reasoning without substantive alteration. The claimant alleged unlawful delegation, procedural unfairness, a legitimate expectation of a personal site visit, and failure to consider all submitted documents. The central issue was whether the inspector had unlawfully and unfairly relied on the officer’s evaluative recommendation.

1. Outcome. The claim succeeded on the first ground. The inspector’s decision dismissing the appeal was quashed. The appeal was to be redetermined by a different inspector. The challenges based on legitimate expectation and late consideration of documents failed.
2. The inspector had discretion as to procedure because the legislation prescribed only written representations and supporting documents. That discretion had to be exercised fairly. The court, rather than the decision maker, determines whether the procedure was fair. Fairness depends on the statutory and administrative context, applying the principles identified in R v Secretary of State for the Home Department [1994] 1 AC 531.
3. There was no objection to an Appeal Planning Officer carrying out a site visit or reporting facts, evidence, issues and contentions. The inspector remained responsible for the decision. The position was different where the officer made evaluative judgments about visual amenity, cumulative advertising, planning weight, consistency and the ultimate merits.
4. The officer was trained and qualified in a general sense, but was seriously underqualified to exercise the professional planning judgment required in the appeal. Her provisional recommendation provided the inspector with a powerful steer. The inspector’s opportunity to revisit or reverse that judgment did not cure the unfairness.
5. The better practice was for the officer to report facts and evidence while avoiding planning judgments and merits discussions. The inspector should then address the planning judgment in the decision. It was unnecessary to decide whether disclosure of a draft report containing evaluative judgments would have cured the unfairness; the court expressed doubt that it would have done so.
6. No clear promise or established practice created a legitimate expectation that the inspector would personally conduct the site visit. The inspector had read all the documents before deciding the appeal, so the order in which he read them did not invalidate the decision.

Not stated in the judgment. This was a statutory review at first instance in the Administrative Court.