Alistair Mills appeared, led by James Maurici QC, in the Appellant’s appeal against the decision of Patterson J ( EWHC 823 (Admin)), in which Patterson J had found that the Council’s decision to grant planning permission for development within the green belt disclosed an error. Patterson J (in which Alistair also appeared, led by Christopher Katkowski QC) however withheld relief, on the basis that the decision which was made would have been the same in any event. The error concerned whether the housing which would be delivered by the proposed development would make the difference between the Council being able to demonstrate a 5-year housing land supply, and not being able to demonstrate such a supply. Patterson J found that the Council’s housing shortfall as compared to the objectively assessed need was such that the Council would have granted permission in any event.
Before the Court of Appeal (Tomlinson, Briggs and Sales LJJ), the Appellant argued that Patterson J took the wrong approach, and that weight should not be given to a first instance judge’s assessment of the facts in a judicial review case where the Judge will not have heard oral evidence. The Court of Appeal did not accept the submission regarding weight: as a result of CPR Part 52.11, the appeal was not a re-hearing, and weight could be given to the factual findings of the Judge (and the weight to be given would vary on the circumstances of each case). Applying this approach, the Court of Appeal did not accept that Patterson J’s judgment was wrong. Indeed, the Court of Appeal stated that it agreed with Patterson J’s assessment that it was inevitable that the Council would have decided to grant permission even had they been properly advised.