Court determines planning appeal decision was unlawful

The High Court has recently ruled that the practice of the Planning Inspectorate to allow appeal planning officers to provide written recommendations for approval by an inspector is procedurally unfair and therefore unlawful. Such practice is commonly adopted by the Planning Inspectorate under the ‘written representations’ procedure.

If you have had an adverse appeal decision under this procedure within the last six weeks, you should consider a statutory review of the decision.

The appeal planning officer procedure

Appeal Planning Officers (APOs) are graduates who are likely to have a degree relevant to planning. They receive training by the planning inspectorate and may later become inspectors. The APOs produce written recommendations in their own name, which are included in decision letters and endorsed or rejected by the inspector.

Some APOs are employed by the planning inspectorate on permanent contracts. These are called “Appeal Planning Officer Managers” or APOMs. Or they may be “Chartered Town Planner Apprentices” (CTPAs) employed on temporary three-year contracts. The CTPAs spend 20% on their time on learning and development and the rest on APO work for the PINS. A CTPA often aspires to become a chartered member of the Royal Town Planning Institute, or “MRPTI”.

The case of Smith v Secretary of State for Levelling Up, Housing and Communities & Anor [2022] EWHC 3209 (Admin) concerned a planning inspector’s decision to accept the recommendation of an APO and dismiss an appeal against an advertisement consent refusal by Hackney Borough Council.  The site visit was also undertaken by the APO.

In considering the appeal planning officer procedure adopted by the Planning Inspectorate Mr Justice Kerr stated:

“In my judgment, fairness will often require, and required 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 may or may not need to be disclosed to an appellant or applicant before the decision is taken. That will depend on the factual context […]

“The better practice, to ensure fairness, is 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 can then be in the name of the right person… the unfairness here is the initial planning judgment being made by such a junior and inexperienced person. It provides the inspector with a powerful steer”.

Accordingly, the appeal decision was quashed for reconsideration by an inspector.

Should you challenge a decision on similar reasons?

If you have recently had an adverse appeal decision following the APO procedure then you will likely have good prospects of challenging it’s lawfulness – provided it is still within the six-week statutory review period. Unless the Secretary of State decides to appeal the Smith decision then they will have difficulty resisting any such challenge and the legal costs arising.