Rolling up her sleeves: The decisions of The Hon Mrs Justice Patterson DBE
This Tuesday is International Women's Day.
Rather than write about planning news this week,* in the spirit of the holiday, I decided to revisit the work of Dame Frances Patterson - an astonishingly effective Planning QC, who served as the Lead Judge of the Planning Court, a Commissioner for Public Law and Head of Kings Chambers at various points in her career.
The quote below, is taken from the Dame Frances Patterson Memorial Lecture, given by Lady Hale in 2019. In that speech, Lady Hale described Frances Patterson as a "distinguished and effective public lawyer" for whom "rolling up her sleeves was her hall-mark – both literally and metaphorically."
The three cases I am going to look at today, are only a very small proportion of the Hon Mrs Justice Patterson's legacy. They are not, by any means, her most important decisions or the most noteworthy. They are simply my favourites**.
If you get the opportunity, please pay close attention to Mrs Justice Patterson's use of language in these decisions. She uses words with almost scalpel-like precision and clarity - which makes her judgments both enlightening and remarkably easy to read.
1. R. (on the application of Orbital Shopping Park Swindon Ltd) v Swindon Borough Council [2016] EWHC 448 (Admin)
Of course, I have to start with Orbital Shopping Centre. In many ways, this is the original CIL case. Its legacy can be seen in the many cases that have followed it from Giordano to Trent.
The facts of the case are quite straightforward. The Developer submitted two separate planning applications to the Council. One for a large retail mezzanine and a second for external alternations to the building to accommodate it. The Council granted both applications separately, but then served a CIL Liability Notice on the Developer, based on the combined effect of the two applications. The Developer judicially reviewed the decision to serve the Liability Notice.
In her typically clear and direct style, Mrs Justice Patterson found for the Developer and quashed the Liability Notice. The first permission did not attract CIL as there was an exemption for retail mezzanines in the regulations. The second permission did not create any additional floor space.
In short, to quote paragraphs 73 of the Judgment:
"73. There is, therefore, no manipulation of the system for any ulterior and/or illegal motive in accordance with the submissions of the defendant. Rather, the claimant has taken advantage of the legislative scheme which permits it to submit, in this case, two separate planning applications for each act of operational development that it wished to pursue. If it was not the intention of the legislature to permit that to occur then it is for the legislature to change it. At present, in my judgment, that is the consequence of the current statutory scheme."
If we are thinking about legacy cases, then Central Bedfordshire is another obvious addition to the list. The case is just one of many High Court decisions centred on the Duty to Cooperate, but it has the distinction of having defined the correct approach for an examining inspector, when determining whether a council has complied with its statutory duty.
The key section of the judgment comes in the middle of paragraph 51 and reads as follows:
"To come to a planning judgment on a duty to co-operate involves not a mechanistic acceptance of all documents submitted by the plan-making authority but a rigorous examination of those documents and the evidence received so as to enable an Inspector to reach a planning judgment on whether there has been an active and ongoing process of co-operation. The key phrase in my judgment is "active and ongoing". By reason of finding there were gaps as the Inspector has set out, he was not satisfied that the process had been either active or ongoing. It follows that ground 1 is unarguable."
If you have the time, and the inclination, I recommend reading this case in full. It is not particularly long (at only 23 pages) but it manages to take the duty to cooperate, which is nebulous and vague at best, and distil it into a few easily comprehensible paragraphs. I must admit, I also really enjoy Mrs Justice Patterson's use of language in this case - which is extremely exact and used to almost brutal effect.
This case is on the list for two reasons: Firstly, it is a really interesting analysis of the consultation requirements for planning permissions that affect world heritage sites; and secondly, the fabulous Claire Petricca-Riding acted for the interested party!
This was a case with a single ground of challenge, namely that the local authority failed to notify the Department of Culture, Media and Sport (DCMS) and through them the World Heritage Committee of UNESCO, of a planning application that had the potential to impact on the 'outstanding universal value' of a World Heritage Site. The claim failed, quite simply, because the Council was not, in fact, under a duty to do so.
It is also noteworthy, however, as a rare example of a judicial review claim involving the cross-examination of a live witness - the Council's urban design and heritage manager - who by all accounts acquitted himself rather well.
My favourite section of this judgment is in paragraph 90:
"90. Although there is a difference between the two tests, in my judgment, the outcome would have been the same whichever is used. The absence of any statutory requirement to consult means that the defendant discharged all that was required of it under statutory guidance. Equally there was no further requirement to consult based upon policy guidance. Further, the stance of Historic England, both in the initial consultation phase and post-resolution phase when they were further consulted by DCLG about calling-in the application, means that there is no basis for concluding that referral to DCMS would have materially affected the outcome of the case."
*quite frankly, I need a break from the sheer bleakness of much of it.
**Yes, I have favourite planning cases.... I am that much of a nerd....
But she was formidably good at it. I am told that one experienced expert witness was heard to warn a rather less experienced expert witness that ‘Being cross-examined by Frances is like being eviscerated by a high-class butcher, and you can tell when she is about to make her first incision when she starts to roll up her sleeves’. Rolling up her sleeves was her hall-mark – both literally and metaphorically.”
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