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

An appointed decision-maker may use an internal officer to assist with the decision-making process, including by carrying out a site visit, reporting on the material and giving a reasoned recommendation on the merits. This does not amount to unlawful delegation where the appointed decision-maker personally considers the material and makes the decision.

Procedural fairness does not generally require disclosure of such an internal recommendation for comment under the written representations procedure. A supervisory court should not prescribe the qualifications required for assisting officers without an evidential basis showing unfairness.

An illuminated advertisement application was refused by a local planning authority on visual amenity grounds. The applicant appealed under section 78 of the Town and Country Planning Act 1990. An inspector appointed under Schedule 4 used the written representations procedure. An appeal planning officer visited the site, reviewed the material and recommended dismissal. The inspector adopted the recommendation and dismissed the appeal.

On statutory review, the High Court held that the process was unfair because the officer had exercised an evaluative planning judgment and was seriously underqualified to do so: [2022] EWHC 3209 (Admin). The Secretary of State appealed. The issues were whether the officer’s recommendation involved unlawful delegation or procedural unfairness, and whether it had to be disclosed to the parties before the inspector decided the appeal.

1. Appeal allowed. The inspector was the appointed decision-maker. He read the documentation and photographic evidence, considered the appeal planning officer’s recommendation, and personally decided to dismiss the appeal. There was therefore no unlawful delegation.
2. The procedure was fair. A decision-maker may determine the procedure, provided that it is fair and supplies the material necessary for the decision: R (Reckless) v Kent Policy Authority [2010] EWCA Civ 1277. It was unobjectionable in principle for the officer to visit the site, report on facts, evidence and contentions, and make a reasoned recommendation on whether the appeal should be allowed. The recommendation remained subject to the inspector’s acceptance or rejection.
3. The High Court’s concerns about the officer’s qualifications did not establish unfairness. There was no evidential basis for describing her as seriously underqualified, and determining the appropriate qualifications for appeal planning officers was not the supervisory court’s function.
4. Fairness did not require disclosure of the recommendation before the decision. Under the written representations procedure, the officer was part of the planning inspectorate’s internal machinery, not a witness or party making representations. The inspector considered the parties’ written material, documents, photographs and the internal recommendation before deciding the appeal.
5. Phillips LJ and Lewison LJ agreed with Lewis LJ’s reasons.

• Court of Appeal (Civil Division): appeal allowed. The court rejected the High Court’s conclusion that the appeal process was procedurally unfair.
• High Court of Justice, Planning Court: on statutory review, the court held that the process was unfair because the appeal planning officer had made an evaluative planning judgment and was seriously underqualified to do so: [2022] EWHC 3209 (Admin).
• Planning appeal: the inspector dismissed the appeal against refusal of advertisement consent under section 78 of the Town and Country Planning Act 1990.