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Half time realities

In light of the recent Court of Appeal ruling on the Planning Inspectorate’s use of appeal planning officers, and with the continued backlog in planning appeals, John Pugh-Smith calls for greater use of ADR techniques such as mediation.

In my January article entitled “New Year Hopes & Fears”[1] I reviewed the decision of Mr Justice Kerr in Smith v Secretary of State for Levelling Up, Housing & Communities and Hackney LBC [2022] EWHC 3209 (Admin) which had led to a successful challenge of PINS’s cost savings initiative of using “Appeal Planning Officers” or  “APOs” to address delays and free-up inspectors’ time, one of the Rosewell recommendations.[2] I also considered their Stakeholder Survey and PINS latest performance statistics and suggested that the challenges and solutions being faced by the appeal process could benefit from the greater deployment of Alternative Dispute (ADR), particularly the use of mediation and other related techniques to facilitate dialogue and achieve positive outcomes in even the most protracted and ill-tempered disputes.

It is now late June. The Court of Appeal has swiftly, and, unsurprisingly, heard and upheld the Secretary of State’s appeal [2023] EWCA Civ 514. PINS has now published its latest performance targets but it continues to struggle in meeting the new Ministerial targets.[3] The number of planning applications and appeals, particularly for new residential developments, is down due to the current state of the economy and the housing market.[4] What changes? Is it not time for the more holistic approach now being progressed in the Civil Courts for litigation genuinely to be a course of last resort so that greater effort is put into trying to resolve matters by (assisted) negotiation?

The Smith Case 

This litigation arose out of an advertisement appeal determined by the written representations appeal. The principal legal issue, upon which the statutory challenge had succeeded before Mr Justice Kerr, was his finding that the appointed Inspector, in breach of the requirements of procedural fairness and natural justice, had failed to determine the appeal independently of the APO and had unlawfully sub-delegated his functions to an inexperienced junior officer, whose recommendation and reasoning he accepted without alteration. Whilst the relevant legislation did not require a site visit to be carried out, the appeal acceptance letter had stated that a site visit would be carried out by an inspector or their representative. In the event, the APO had conducted the site visit on behalf of the (appointed) Inspector, following which she had recommended that the appeal be refused on the sole ground of visual amenity. The Judge was concerned that, in effect, the Inspector had ‘topped and tailed’ the APO’s decision without adding further reasoning before signing and issuing the decision in his own name, appending the decision of the APO. Subsequently, permission to appeal had been granted on one ground, that the Judge was wrong to conclude that the process was unfair as the appeal planning officer had only provided recommendations for the Inspector. The Inspector had personally considered all documentation and the decision to dismiss the appeal was his own.

Giving the sole judgment of the Court, Lord Justice Lewis said that the starting point was that the decision on whether or not to allow the appeal had been taken by the inspector. He was the person appointed to take the decision and he did, in fact, take the decision to dismiss the appeal. In doing so, he had read the documentation, considered the photographic evidence and also read the reasoned recommendation of the APO which described the site and gave her reasons for considering that the proposed advertisement would have an adverse effect on visual amenity. There was no question here of unlawful delegation, that is, there is no question here of the decision being taken by a person other than the appointed decision-maker.

The next question was whether the process adopted by the decision-maker was fair. It is for the decision-maker to decide on the procedure to be followed provided that the procedure is fair and that it provides the decision-maker with the material necessary to make a decision: see R (Reckless) v Kent Policy Authority [2010] EWCA Civ 1277  at paragraph 29 (per Carnwath LJ). In the present case, as accepted by the Judge, there was nothing unfair in the APO carrying out a site visit and reporting on the facts, the evidence and the contentions of the parties. Similarly, there was nothing objectionable in principle in the APO making a recommendation as to whether or not the appeal should be allowed and providing reasons for that recommendation. Lord Justice Lewis remarks: “The decision remains that of the inspector. It is for the inspector to determine whether he agrees with the recommendation and the reasons. If the inspector does not agree, or if he considers that the reasoning is not adequate, he will not accept that recommendation or will not rely on that reasoning. There is no reason why, as a matter of procedural fairness, an appeal planning officer cannot provide reasoned recommendations as part of the decision-making process. That is consistent with the case-law in this area as appears from the decision in Reckless and the case law summarised at pages 255 to 258 of Wade & Forsyth Administrative Law (12th ed.).”[5]

He then states that he does not accept that the reasons identified by the Judge justify a different conclusion. First, there is no evidential basis for the Judge’s conclusion that the appeal planning officer “was seriously unqualified to exercise the evaluative professional planning judgment on visual amenity”. The APO had an undergraduate degree in a relevant subject and had received training on the categories of appeals with which she was dealing. Furthermore, it was not a matter for a court, exercising supervisory functions by way of judicial or statutory review to determine the appropriate level of qualifications for APOs. Secondly, and more significantly, the ultimate decision on whether to allow or dismiss the appeal was the inspector’s. If he considered that the APO’s reasoned recommendation was inadequate (for whatever reason), he would not have relied upon it. It is difficult, therefore, to see on what basis considerations of qualification or training justify a conclusion that the process was unfair.

The Court also did not accept the Judge’s general conclusions that it would “be better practice, to ensure fairness” for the APO to address the facts and avoid planning judgments. In this case, the APO had provided reasoned recommendations. She had not taken the decision. The inspector did. There is nothing inherently objectionable as a matter of principle in making a reasoned recommendation based on a view of the planning merits of the appeal. That does not give rise to procedural unfairness. Nor does it assist to refer to the APO providing “a powerful steer” or to suggest that the appeal planning officer was determining the key issue of visual amenity, “albeit on a provisional basis and subject to the inspector’s decision whether to agree or disagree with her judgment”.

Finally, in the context of this case, the principles of procedural fairness did not require the reasoned recommendation of the APO to be provided to the parties for comment prior to the inspector taking his decision. This was an appeal using the written representations procedure. The APO was part of the internal machinery within PINS for enabling the inspector to deal with that appeal. She was not a witness or a party giving evidence or making representations. Rather, she was part of the process by which the inspector considered the appeal. In those circumstances, there was no procedural unfairness in her reasoned recommendation not being disclosed to the parties for comment.

PINS Latest Performance Statistics

The introduction to the Ministerial Measures: Experimental Statistics 1st June 2023 [6] explains that this report provides information on how PINS has performed against new measures by which Ministers agreed to assess the organisation’s casework performance for appeals. These measures are: (A) Appeals valid on first submission;  (B) How long appeals take - There is also an ambition for more consistent, timely decisions; ( C) Customer satisfaction; (D) Number of cases quality assured. For measure (A) the report covers the twelve months January to December 2022. Information on how long appeal decisions take from valid receipt to decision (measure B) covers the 12 months from May 2022 to April 2023. No information is available on measure (C). Measure (D) covers the three months January to March 2023.  It also notes that this is the fourth time such information has been produced, and work is still in development. Following a review, this series continues with the status of “Experimental”, with updates provided every three months. The next publication is stated to be in August 2023.

In respect of measure (A), for appeals received during October to December 2022, 64.4% were valid first time. This is against an ambition of the proportion rising annually and ambition to reach 100%, rising to at least 85% in 2023/24.

Turning to the more critical measure (B), the report reminds that the ambition is that PINS should work towards a target for appeals decided entirely using written evidence of 16-20 weeks, and a target of 24-26 weeks for appeals decided including at least some evidence through hearing or inquiry. However, the statistics reveal that, over the year ending April 2023, just 27.4 per cent of written representation appeals were decided within 20 weeks, with the largest proportion of such appeals decided within 52 weeks. For appeals partly or wholly involving hearings or inquiries, just 10.3 per cent were dealt with within 20 weeks and 10.7 per cent were dealt with within 26 weeks. Worryingly, some 53.2 per cent took more than 52 weeks. However, the report explains that these are "experimental statistics, with further work required to ensure robust, consistent quality assurance around them".

The Ministerial targets also require information on how long appeal decisions take from valid receipt to decision with information provided on various percentiles. It sets an ambition that the decision time for the 50th percentile of all cases should fall and that the decision time for the 90th percentile of all cases should fall faster than the 50th percentile. However, the report reveals that, over the period October 2021-April 2023, both measures were rising rather than falling, and that the gap between them is not reducing. In the October-December 2021 quarter, the decision time for the 50th percentile of cases was 26 weeks, which rose to 29 weeks in the January-March 2023 period. Meanwhile, the decision time for the 90th percentile of cases also rose from 49 weeks in the first period to 62 weeks in the final one. The gap between them also rose, rather then fell, from 23 weeks to 33 weeks over the same timescale

As already mentioned, in respect of measure (c), no data is provided on the customer satisfaction target. However, the report advises that PINS is working with the Institute for Customer Service to conduct a "satisfaction survey". It adds: "The data capture phase was carried out in April and early May 2023. The results will be reported when available." Finally, for measure (D), although there is no specific statistical Ministerial target on quality assurance, the report states that, over the three months January to March 2023, 1,099 appeal cases were quality assured, constituting "between a fifth and a quarter" of all appeal decisions issued over the period. Again, unfortunately, there has been a drop; for according to the previous update, covering the October to December 2022 quarter, 1,257 appeal cases had been  quality assured over that period.

That fresh approach  

In the context of this article the Court of Appeal’s Smith judgment is helpful in the following wider respects. It confirms:

  • As the process to be followed is within the decision maker's discretion, it is for him or her to decide on the process, provided it is fair.[7]
  • The factual context includes the nature of the decision to be taken; the considerations relevant to the decision; and the characteristics and role played by, respectively, the decision maker and the person giving assistance to the decision maker.[8]

Accordingly, with this judicial endorsement of the APO system, PINS (and DLUHC) can surely embrace further innovative solutions towards helping reduce the backlog of appeals and speed up the process are legally permissible. I suggest, again, that these could  swiftly include not only the greater use of technical assessors (e.g. on heritage, design and viability disputes) but also independent  mediators (facilitators) to help resolve or limit discrete issues within the appeal and call-in processes, for example, housing land availability, viability and section 106  contributions, mitigation measures.

So, given the current and likely state of affairs surely now is the time, finally, for such fresh thinking and approaches to be more actively progressed though, not yet, the use of artificial intelligence, please.[9]

John Pugh-Smith a recognised specialist in the field of planning law with related disciplines acting for both the private and public sectors. He is also an experienced mediator, arbitrator and dispute ‘neutral’. He is on the panel of the RICS President’s appointments for non-rent review references, a committee member of the Bar Council’s Alternative Dispute Resolution Panel, an advisor to the All Party Parliamentary Group on ADR, one of the Design Council’s  Experts and a member of its Highways England Design Review Panel. He has been and remains extensively involved in various initiatives to use ADR to resolve a range of public sector issues. including the DLUHC/PINS Enforcement Mediation Pathfinder  Initiative.

[1] New Year hopes and fears (localgovernmentlawyer.co.uk)

[2] https://www.gov.uk/government/publications/independent-review-of-planning-appeal-inquiries-report (published 12 February 2019)

[3] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1159854/Ministerial_Measures_Experimental_Stats_Release_May_23.pdf

[4] https://www.planningresource.co.uk/article/1827376/record-low-applications-threaten-housing-targets-put-pressure-planning-departments?bulletin=planning-daily&utm_medium=EMAIL&utm_campaign=eNews%20Bulletin&utm_source=20230623&utm_content=Planning%20Resource%20Daily%20(263)::www_planningresource_co_u_16&email_hash=

[5] @ para. 19

[6] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1159854/Ministerial_Measures_Experimental_Stats_Release_May_23.pdf

[7] @ Para. 18

[8] @ Para. 19-20

[9] https://thetimeblawg.com/2023/06/24/chatgpt-lawyers-sanctioned/