Secretary of State for Levelling Up, Housing and Communities v Stephen Smith
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Phillips,Lord Justice Lewison |
| Judgment Date | 16 May 2023 |
| Neutral Citation | [2023] EWCA Civ 514 |
| Docket Number | Case No: CA-2023-000071 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 514
Lord Justice Lewison
Lord Justice Phillips
and
Lord Justice Lewis
Case No: CA-2023-000071
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PLANNING COURT
THE HONOURABLE MR JUSTICE KERR
[2022] EWHC 3209 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Brown KC and Leon Glenister (instructed by the Government Legal Department) for the Appellant
Katherine Traynor (instructed by Thomson, Snell and Passmore LLP) for the 1 st Respondent.
The second respondent did not appear and was not represented.
Hearing date: 4 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 16 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This appeal concerns the role that may be played by individuals, known as appeal planning officers, in the process for determining certain types of appeals by planning inspectors. Kerr J. (“the Judge”) held that the process was unfair as the appeal planning officer 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. The Judge concluded that it was unfair for an appeal planning officer to exercise such a judgment when, in his view, she was “seriously underqualified to exercise the evaluative professional judgment on visual amenity” which, in effect, determined the appeal. The appellant, the Secretary of State, appeals against that judgment on the single ground that the Judge was wrong to find that the process adopted in this case for determining the appeal was unfair.
At the conclusion of the hearing, the Court indicated that the appeal would be allowed for reasons to be given in writing. These are my reasons for allowing the appeal.
BACKGROUND
The Application for Planning Permission
The respondent, who runs an agency for clients wishing to place advertisements, applied for consent to erect an illuminated advertisement on Shoreditch High Street. Consent was refused by the local planning authority on 17 September 2021 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 Appeal
The respondent appealed to the Secretary of State pursuant to section 78 of the Town and Country Planning Act 1990 (“the 1990 Act”). An inspector was appointed to determine the appeal in accordance with Schedule 4 to the 1990 Act. The appeal was determined under the written representations procedure provided for by Part 2 of the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009. That provides for the submissions of written representations and documents supporting the appeal. The inspector may also have a completed questionnaire from the local planning authority. The inspector is not required to carry out a site visit but may do so out if, in his discretion, he considers it appropriate. An inspector may also, in his or her discretion, seek further information or receive representations from third parties.
The planning inspectorate has, in recent years, found it difficult to recruit sufficient inspectors. Following a review of the planning appeal inquiry system by Bridget Rosewell, the inspectorate has made arrangements for additional persons to be appointed to assist inspectors with a view to such persons being appointed as inspectors in due course. These persons are known as appeal planning officers. All current appeal planning officers have an undergraduate degree in a subject relevant to planning. They are allocated to work on the two least complex categories of cases (which include appeals in cases involving advertisement) and may work on a third category. They have all received training on the category of cases on which they may work. The inspectorate also employs a small number of individuals, known as apprentices, on a permanent 3 year contract. These apprentices all have an undergraduate degree relevant to planning. The apprenticeship involves them spending approximately 80% of their time undertaking the role of an appeal planning officer. The remaining time is spent undertaking a Masters degree in urban planning during the first two years and then acquiring the knowledge and skills necessary to become a Chartered Member of the Royal Town Planning Institute during their final year.
In summary, in the present case, the inspector was Mr Taylor. Ms Long was assigned to the appeal as the appeal planning officer, working under the guidance of Mr Taylor. They discussed the case, reviewed the documents and discussed a site visit to be undertaken by Ms Long on behalf of Mr Taylor. After the site visit, Ms Long and Mr Taylor discussed the appeal and reviewed the documents.
On 15 March 2022, Ms Long provided a reasoned written recommendation and a decision template for Mr Taylor. The recommendation was to dismiss the appeal on the sole ground of visual amenity. In the reasons for the recommendation, Ms Long described the appeal site, and surrounding area, including the advertisements already displayed in the area. She drew attention to policy guidance on the meaning of “amenity”. She described the proposal, where the illuminated advertisement would be placed, and where it would be visible from. Then in paragraphs 8 to 14 of her written reasoned recommendation, Ms Long set out her views on the effect of the advertisement. In summary, she considered that the illuminated advertisement would be “an obtrusive feature in its immediate area” and “the lighting would further exacerbate the proposal's overly prominent design”. She expressed the view that the illuminated advertisement would not preserve the character and appearance of the area. She dealt with other matters. She concluded that “the proposal would result in harm to the visual amenity of the area” and would be contrary to the development plan and recommended dismissal of the appeal.
The inspector's decision letter is dated 22 March 2022. Paragraphs 1 and 2 provide that:
“ Decision.
1. The appeal is dismissed.
Appeal Procedure
2. The site visit was undertaken by an Appeal Planning Officer whose recommendation is set out below and to which the Inspector has had regard before deciding this appeal.”
Paragraph 3 deals with procedural matters and paragraph 4 identifies the main issue as “the effect of the proposal on the visual amenity of the area.”. Paragraphs 5 to 16 set out the reasoned recommendation of Ms Long. Paragraph 17 is in the following terms:
“ Inspector's Decision
17. I have considered all the submitted evidence and the Appeal Planning Officer's report and on that basis the appeal is dismissed.”
The decision then bears the electronic signature of Mr Taylor.
The Claim for Judicial Review and the Judgment
The respondent applied for a statutory review of the inspector's decision. The material ground of challenge was ground 1 (two other grounds were dismissed and nothing more needs to be said about those grounds). Ground 1 was that the inspector failed, or appeared to fail, to determine the appeal independently when he adopted in full a recommendation by the appeal planning officer and/or failed to determine the appeal with transparency when he relied on that recommendation.
The Judge held that there could be no objection to appeal planning officers assisting with reporting, document handling and carrying out site visits. However, he concluded that the process was unfair, and therefore unlawful, as the appeal planning officer had formed a judgment on the planning issue in the case, that is the effect of the proposed illuminated advertisement on the area. The essence of his reasoning can be seen in the following paragraphs:
“91. Next, if Ms Long 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...
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