On 16 December 2022 the Planning Court handed down a judgment in relation to a statutory review under Section 288 of the Town and Country Planning Act 1990 (TCPA 1990) that could have wider implications for the delegation of decision-making powers by public bodies.
The appeal, (Smith v Secretary of State for Levelling Up, Housing and Communities & Anor [2022] EWHC 3209 (Admin)), concerned a decision by the Planning Inspectorate (PINS) to dismiss an appeal by the claimant against the refusal by the local planning authority, Hackney Borough Council, of an application for advertisement consent for a large advertising billboard. In reaching the decision the Planning Inspector responsible had enlisted the help of a lower ranking ‘Appeal Planning Officer’ or APO caseworker, and the S.288 application concerned whether this had been done lawfully.
The applicable legal framework, which was not in dispute, required that the planning appeal had to be determined by the appointed inspector (on behalf of the Secretary of State): they were not entitled to delegate their decision-making functions. The main issue is whether the inspector unlawfully sub-delegated his functions to an inexperienced junior officer, whose recommendation and reasoning he adopted without alteration; and whether that was an unfair process.
The Planning Court noted that a recent shortage of planning inspectors had led to a practice of recruiting lower ranking staff to help inspectors by undertaking site visits and helping to draft decision letters. This took place under an initial pilot scheme in 2013-14 and was subsequently rolled out more widely. APOs now act as caseworkers doing preparatory document work for a decision, conducting site visits and producing draft decisions.
In this case a PINS inspector, and an unqualified APO were assigned to the appeal. At the inspector’s request the APO carried out a site visit and provided a detailed reasoned written recommendation and decision template for the responsible inspector. The report included judgements on the main planning issue, the impact on the amenity, and on the weight to be given to these impacts when reaching a conclusion on the merits of the appeal proposals. The APO’s recommendation was to dismiss the appeal, and the inspector accepted this together with the report’s reasoning in full. The inspector “topped and tailed” the decision without adding any further reasoning, signed it electronically, and sent it to the claimant.
The Planning Court Judge held that there could be no possible objection to the use of APOs to assist with assembling facts and evidence, document handling and carrying out site visits representing the inspector. However, in this case the APO were required to exercise a professional planning judgment which they were not professionally equipped to exercise. Mr Justice Kerr found that this was an unlawful delegation of power from the Inspector to the APO which rendered the process unfair to the claimant. The initial planning judgment being made by the junior and inexperienced APO provided the inspector with a powerful steer, such that the inspector failed to determine the appeal independently of the APO.
The immediate result was that the Planning Court quashed the inspector’s decision, which will now need to be redetermined by a different inspector, but the decision potentially has wider implications.
The legal judgement that over-reliance on APOs could render a decision unlawful may have significant implications for previous appeal decisions decided by PINS. However, the number of such decisions is likely to be relatively small, given the statutory time limit of six weeks for challenges under Section 288 TCPA 1990.
Perhaps the more serious impact may be that PINS will have to somewhat shrink the role of APOs in the future, as they will face increased scrutiny of their involvement in decisions. This could well have implications for its ability to deal with high case numbers in a timely fashion over the coming months, the very purpose APOs were intended to serve.
The Planning Court decision should also serve to remind public bodies of the need to comply with legal limits on the delegation of decision-making powers.
Justice Kerr distinguished the use of unqualified APOs in appeals from situations where local planning authority officers write reports advising decision takers on how applications should be determined. The judgement mentions determinations by planning committees, and where a portfolio holder exercise delegated powers, emphasising that these present a different factual and legal context. That is likely to be the case where the case officer writing the report is a qualified and experienced professional, albeit they may less senior and not have been given delegated powers.
However, local planning authorities may wish to review their processes and procedures where senior officers exercise delegated powers to grant or refuse planning permission based on a report written by the most junior inexperienced officers who may not yet have obtained a relevant planning qualification or professional membership. In those cases, it may be prudent to:
With public sector bodies generally facing reduced resources and, like PINS, trying to deploy innovative ways to “do more with less”, recruiting less experienced and unqualified juniors to assist over-worked decision-makers is an obvious way to achieve efficiencies.
Such an approach can also help nurture future talent in-house, indeed the introduction of APOs to PINS was also intended to provide a route for development to inspector to aid longer-term succession planning.
At all times, public bodies should keep in mind the legal context of their decision-making powers and ensure that they exercise administrative powers in a way that is fair in all the circumstances.
Failure to do so in relation to one decision can render that decision unlawful. Where the unfairness is due to a systematically unlawful approach to decision-making the result is that all decisions taken through this approach may be at risk of challenge.
Trainee Solicitor
Alistair.Taylor@brownejacobson.com
+44 (0)330 045 2970
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023.
Announced in September but scrapped on 17 November the investment zone proposals were very short lived. The proposal has now morphed into the proposal for a smaller number of clustered zones earmarked for investment.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
In ‘failure to remove’ claims, the claimant alleges abuse in the family home and asserts that the local authority should have known about the abuse and/or that they should have removed the claimant from the family home and into care earlier.
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
Updates include UK Shared Prosperity Fund, contracts, Subsidy Control Bill, data controller liability, Government Covid-19 procurement and Highway Code revisions.
The complex and rather nebulous transitional subsidy control regime set out in the UK-EU Trade and Co-operation Agreement and the UK’s wider international commitments has made it difficult for public authorities and those working with them to proceed with certainty where subsidies are involved.
Investment zones have been introduced by the Conservative party to get the United Kingdom (UK) ‘working, building and growing’. They are to be designated sites which provide time-limited tax incentives, streamlined planning rules and wider support for local growth to encourage investment and accelerate the development of housing and infrastructure that the UK needs to drive economic growth. Processes and requirements that slow down development will be stripped back with the intention of attracting new investment.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The Procurement Bill (the Bill) has now been with us for about four months, during which time there have been a huge number of amendments proposed in the House of Lords (circa 320). Lately, there has been less mention of it — unsurprising, really, given everything else going on in politics recently — but here’s a summary of some of the key issues and themes so far.
Browne Jacobson has been named as a supplier on Crown Commercial Service’s (CCS) Public Sector Legal Services Framework on Lot 1a – full-service provision (England and Wales) and Lot 2a – general service provision (England and Wales).
Browne Jacobson has been ranked as a Top Tier law firm in 25 key practice areas in Legal 500 UK 2023, the independent directory of comparative law firm performance. The firm also continues to underpin its status as one of the leading law firms in the East Midlands region with 16 Tier 1 rankings.
