A change of appeal inspector and what fairness requires

A different inspector determining an appeal from the one who heard the evidence is lawful, and whether it is fair depends on what the evidence was and how the change is handled. The Planning Inspectorate will usually offer one of two routes: the replacement inspector reads the inquiry transcript, the written closings and the inspector's notes, or the inquiry is reopened in whole or in part. Where oral evidence and the credibility of witnesses decided the case, reading the papers is rarely enough, and the parties should say so in writing at the earliest opportunity rather than waiting for the decision.

Why an inspector changes part way through

The appointment of an inspector is an administrative act. Appeals are determined by inspectors appointed under Schedule 6 to the Town and Country Planning Act 1990, and nothing in that Schedule ties a particular appeal to a particular person once the event has been held.

Changes happen for ordinary reasons: illness, retirement, a resignation, a conflict of interest emerging late, or a reallocation of workload after an inquiry overruns. They also happen for structural reasons. The Secretary of State may recover an appeal under Schedule 6 so that it is determined centrally, with the inspector reporting instead of deciding. And where a decision has been quashed on a statutory challenge, the redetermination is normally handled by a fresh inspector so that the second decision is not coloured by the first.

Each of these has a different consequence for the parties, so the first step is always to establish which one has happened.

The effect on evidence already heard

Written representations appeals present the smallest problem. The material is documentary, the file is the file, and a new inspector reads the same papers the first would have read. The only real loss is the site visit, dealt with below.

Hearings and inquiries are different. The value of oral evidence lies in how it was given: which concessions were made in cross-examination, which parts of a proof were abandoned, how a witness dealt with a point that undermined their case. A transcript captures words and loses manner. Where a case turned on whether a witness was believed, that gap is the whole issue.

Three categories are worth separating when you assess the prejudice.

• Matters of pure policy interpretation and planning judgement, where the written material carries everything and a fresh reader is at little disadvantage.
• Matters of technical dispute between experts, where the proofs, the statement of common ground and the transcript usually suffice, particularly if the experts produced a joint note.
• Matters of fact resting on the credibility of a witness, which is where the problem sits. Enforcement appeals on the factual grounds are the obvious example, and the evidential burden in a ground (c) enforcement appeal shows why oral testimony can be decisive.

Separate them explicitly in correspondence. A submission that says the whole inquiry must be reopened invites refusal. A submission that identifies two witnesses whose credibility was in issue and asks for those two to be recalled is harder to resist.

Reading the transcript against reopening

The Inspectorate has a practical interest in avoiding a reopened inquiry, which costs everyone money and adds months. The parties have an interest in a decision that survives challenge. Those interests align more often than they look as if they do.

Ask the Inspectorate to confirm in writing what the new inspector will have, in a list: the transcript or the digital recording, all proofs and rebuttals, the statement of common ground, the closings, any site visit itinerary, and the previous inspector's notes if they exist. Notes are the item most often omitted and the one most likely to matter.

Where you agree that a transcript reading is adequate, say so and say why. That agreement is useful later if someone else challenges the decision.

The new inspector's site visit

A replacement inspector should make their own visit to the site. A description of a view in a proof of evidence is a poor substitute for standing in the place, and visual impact cases in particular turn on the visit.

Ask for the same itinerary that was used before, including any viewpoints agreed between landscape witnesses and any accompanied elements. If the first visit was accompanied, the second should be too. Where seasonal screening matters, say which month the first visit took place in and whether the vegetation condition has changed, because an unaccompanied winter visit to a site assessed in July is a point a challenge could be built on.

Objecting to the arrangement

Object in time, in writing, and with a remedy attached. A party that takes the point only after an adverse decision faces the obvious answer that it waived it.

The letter should do five things. Identify the change and the date you were told. Identify the parts of the evidence that cannot be assessed from the papers, by witness and by topic. State the prejudice concretely rather than as a matter of principle. Propose the narrowest adequate remedy, usually a partial reopening or a short round of further written submissions. And ask for a decision on the request before the new inspector begins substantive consideration.

Copy the other main party. A joint position between appellant and authority on how the change should be handled is given real weight, and it also protects both of them against a third-party challenge later. Interested parties have standing to comment too, and the practical limits of third-party involvement in someone else's appeal apply here as elsewhere.

Grounds if the decision is challenged

A decision on a section 78 appeal is challenged by application to the High Court under section 288 of the 1990 Act, within six weeks of the date of the decision. Enforcement appeal decisions go by a different route under section 289, which requires permission.

Procedural unfairness is a recognised ground. The applicant has to be a person aggrieved and has to show either that the decision was not within the powers of the Act, or that a relevant requirement was not complied with and that their interests were substantially prejudiced. The second limb is the live one on a change of inspector, and the word doing the work is prejudice.

Courts are reluctant to interfere where the new inspector had the full material, made their own site visit, and gave the parties the chance to comment on anything they had not already addressed. They are more receptive where oral evidence was decisive, where the request for a partial reopening was refused without reasons, or where the new inspector's reasoning shows a misunderstanding of what a witness actually said.

Use the decision letter itself as the test. If it recites evidence in a way that could only come from having heard it, or conversely misstates a concession recorded in the transcript, that is the material point. Appeal decisions are indicative of approach rather than binding, and the practical use of them is covered in using appeal decisions in a planning application.

What to do in the first week

1. Write to the case officer and ask why the inspector changed and under what arrangement the appeal will be determined.
2. Ask for the list of material the new inspector will receive, and check that the notes and the recording are on it.
3. Review the transcript against your own note of the inquiry and mark every passage where manner, hesitation or a concession mattered.
4. Decide what remedy you actually want, and keep it narrow.
5. Put the request in writing within days, not weeks, and copy the other main party.
6. Diary the six-week period from any eventual decision, so the challenge option stays open.
7. Keep the correspondence in a single bundle, because a challenge on fairness is won or lost on the chronology.

Preparing the appeal documents properly in the first place reduces the exposure, and a planning statement that sets the policy case out in writing gives a replacement inspector something to work from.

Draft your appeal supporting documents, then review them before submission, by browsing the report categories.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.