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

The Court of Appeal allowed the Secretary of State's appeal against Kerr J's finding that the process adopted in determining an advertisement appeal was unfair. The court held that an inspector appointed under section 78 of the Town and Country Planning Act 1990 and Schedule 4 to that Act lawfully may be assisted by an appeal planning officer (APO) who carries out a site visit, reports factual matters, and provides a reasoned recommendation under the written representations procedure in the 2009 Regulations. The inspector remained the decision-maker and was free to accept or reject the APO's recommendation.

The court rejected the High Court's conclusion that the APO was "seriously underqualified" and that her provisional evaluative judgment infected the process with unfairness. The court held there was no unlawful delegation and no requirement, as a matter of procedural fairness in this context, to disclose the APO's reasoned recommendation to the parties for comment before the inspector reached his decision.

Background and parties: The respondent applied for consent to erect an illuminated advertisement. The local planning authority refused consent and the respondent appealed to the Secretary of State under section 78 of the Town and Country Planning Act 1990. The appeal was determined under the written representations procedure in the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009. An inspector (Mr Taylor) was appointed and an appeal planning officer (Ms Long) carried out a site visit, prepared a reasoned recommendation to dismiss the appeal on visual amenity grounds, and provided a decision template for the inspector.

Procedural history: Kerr J in the Planning Court concluded the process was unfair because the APO had formed an evaluative planning judgment and was "seriously underqualified" to do so; he concluded the inspector had failed, or appeared to fail, to determine the appeal independently. The Secretary of State appealed to the Court of Appeal.

Nature of claim and issues: The respondent had sought statutory review (judicial review) of the inspector's decision on the ground that the inspector adopted in full the APO's recommendation and thereby failed to determine the appeal independently and with transparency. The Court of Appeal was invited to determine whether the process was unfair and whether an APO may lawfully provide a reasoned evaluative recommendation which the inspector may accept.

Court's reasoning: The court began from the proposition that the inspector read all materials, considered the photographs, and had regard to the APO's reasoned recommendation, but remained the appointed decision-maker. There was no unlawful delegation. The court accepted that APOs may perform site visits, report facts, marshal evidence, and may give reasoned recommendations; those tasks form part of internal decision-making machinery under the written representations procedure. Relying on authorities cited in the judgment, the court held that providing a reasoned recommendation does not in itself amount to procedural unfairness. The court found no evidential basis for the judge's assertion that the APO was "seriously unqualified" and emphasised that it is not for a supervisory court to determine the appropriate qualifications of APOs. Finally, the court held that, in the factual context of a written representations appeal, procedural fairness did not require disclosure of the APO's recommendation to the parties for comment before the inspector decided the appeal.

Subsidiary findings: The court accepted that APOs should confine themselves to appropriate tasks (site visits, factual reporting and recommendations) but rejected a categorical rule that APOs must avoid any evaluative planning judgment; what matters is that the inspector remains the decision-maker and applies his own judgment.

The Court of Appeal allowed the Secretary of State's appeal. The court held that the inspector remained the decision-maker under section 78 and Schedule 4 of the Town and Country Planning Act 1990, that an appeal planning officer may lawfully carry out site visits, report facts and provide a reasoned recommendation under the written representations procedure, and that in the circumstances there was no unfairness or unlawful delegation and no requirement to disclose the APO's recommendation to the parties before the inspector decided the appeal.

Appeal from the High Court (Planning Court), Kerr J: [2022] EWHC 3209 (Admin); allowed by the Court of Appeal [2023] EWCA Civ 514.