Sir Jeremy Sullivan speaks to Jess Harrold as he readies himself for retirement after more than two decades as a judge.
“As with anything in life, the most important things almost always happen by chance.”
With that reflection, planning expert Sir Jeremy Sullivan recounts how his long and successful career began. Not in the lecture halls or libraries of London’s King’s College, but with some babysitting.
As friends left their offspring in the student’s care, he was lacking direction, with little idea in which area he wanted to specialise. By the end of the evening, his path had taken a sharp turn after one of the friends’ planning books caught his eye. He found them far more interesting than the law he had studied for three years.
Route to the bench
He joined Grays Inn Chambers, now 4-5 Grays Inn Square, in 1971, took silk in 1982, and diversified from planning into the wider administrative field, as well as undertaking parliamentary work, including the self-described highlight of his career: promoting the Channel Tunnel Rail Link Bill.
“As a train enthusiast, being paid by the government to think, eat, sleep and drink railways for two years was an absolute delight,” he says.
After four years as a deputy judge, he became Sullivan J in 1997, determined to bring a fresh approach: “When I appeared as an advocate there were a number of judges, who will remain nameless, who were, to varying degrees, rather rude, arrogant and bad-tempered. I thought that the odd smile, the odd joke, was the obvious way to get the best out of people.”
Those smiles and jokes are fondly remembered by members of the planning bar, who also praise his incisive ability to know the right answer at the outset, or at least the “crunch question” to focus on.
“I think it’s part of the judicial job to sort out the wheat from the chaff; to identify the really important issues and focus on them,” he says. “It simply should be part of the modern judicial role.”
The quotable judge
Sir Jeremy finds it difficult to identify his own most important decisions, but he sees Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions and another [2001] EWHC Admin 74; [2001] PLSCS 30 cited in almost every skeleton argument in a planning appeal.
In Newsmith he said that you should not use Wednesbury unreasonableness as a “stalking horse” for trying to rerun the merits of the planning argument all over again, and emphasised the critical importance – learned from “bitter experience of the planning bar” – of the inspector’s site visit.
Another pearl of wisdom familiar to anyone who has appeared before him is that an inspector’s decision should not be treated like an examination paper.
While he may have popularised it, it is inherited. He recalls: “In a case when I was trying to construe an inspector’s decision as an examination paper, I had persuaded a High Court judge so to construe the letter. Hoffmann LJ (as he then was) put me right in no uncertain terms and so ever thereafter I have followed his dictum.”
It is notable how rarely Sir Jeremy has been overturned on appeal. He is phlegmatic about the few exceptions, accepting that it “simply goes with the territory”. But he does express frustration that, in appeals, false propositions can sometimes be put in the mouth of the trial judge: “It was slightly irritating if the Court of Appeal said, ‘well if that is what the judge meant then I disagree’. One really wants to jump up and down and say ‘but of course I didn’t say that – only an idiot would have said that’.”
Swift justice
As a High Court judge, Sir Jeremy demonstrated a strong preference for reading out judgments in order to provide the parties with a prompt decision.
“I think our system sometimes loses sight of the fact that what the litigant wants is an answer,” he says. “Of course they want the right answer, but sometimes it seems to me that our system makes them wait for the perfectly right answer.”
In the Court of Appeal, his decisions are sometimes written – but never typed by his own hand. Indeed, his chambers are noticeably lacking a computer. “I’m a complete dinosaur in that respect,” he confesses. “I must be the last inhabitant of the UK who does not have a mobile phone.”
The speed with which he can grasp the issues, and deliver an oral judgment, have led him to earn a reputation for demolishing time estimates. He acknowledges that argument in court is “very, very expensive” and sees it as a responsibility of the judge to keep the timetable as tight as possible. He describes the courts as still operating a “late 19th or early 20th century system”, and in need of improved efficiency.
“I have no doubt that much greater steps could be taken to streamline litigation without compromising standards,” he says. “We ought to proceed not on the basis that an oral hearing is the only fair way to resolve a dispute, but that an oral hearing should be the last resort.” He suggests that a large number of disputes would be capable of resolution online, where the court can be proactive and ask the parties questions, without the need to have everybody present in the same room.
The irony of a judge with no computer advocating an IT revolution is not lost on him: “Maybe it’s simply a classic example of ‘do as I say and not as I do’.”
The institution of the Planning Court has made strides in this direction (see p110), and has “transformed” the experience of litigants at first instance, greatly reducing the delay in cases being heard. In a “virtuous circle”, he says that this in turn reduces the incentive to bring unmeritorious challenges solely as a delaying tactic. But he remains concerned about the time taken in cases that go further, which may ultimately justify a similarly dedicated planning appeal court.
He describes the pace of change of modern society as the major challenge faced by the field, and feels that one danger is that, if the local planning system cannot keep up, there will have to be “greater direction from the centre”. But he expresses concern that the courts, following Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69, have adopted an approach to interpreting central policy, contained in the National Planning Policy Framework (see p112, that elevates it to the level of an enactment. This comes at the cost of flexibility.
While he praises the NPPF as a “commendable initiative”, he says it is very difficult for policymakers to draft “lawyer-proof policies” and it can be hard to tell where policy has changed, or where it is intended to remain the same.
Modernisation
While some innovations leave him glad he practised when he did – no skeleton arguments meant you “had to be really quick on your feet” with more scope for oral advocacy – he would have enjoyed the new, speedier regime for nationally significant infrastructure projects.
He also welcomes major changes in the way the Planning Inspectorate deals with cases, noting that it has “gradually gained self-confidence”, building up its own model of how to resolve disputes, with the inspector identifying the issues and requiring the parties to focus on them.
He feels that this approach should be considered across the board. “If lawyers are unduly expensive for great swathes of the population then I query the extent to which an adversarial model is sensible or practical,” he says. “I think we have to look at more expert tribunals, so you put the expertise into the tribunal rather than requiring parties to pay for the expertise by bringing along their advocates to slug it out.”
Sir Jeremy, who will also retire from his role as Senior President of Tribunals, describes as a “gleam in his eye” an expanded Lands Tribunal that could deal with planning and environmental matters, something he hopes will come to fruition after his retirement.
Steaming ahead
On stepping down, His Lordship will miss the comradeship of the Court of Appeal, which he describes as a “very happy court”.
But he is glad that, for once, a difficult decision is taken out of his hands as he approaches the compulsory retirement age of 70. Not least because it will give him the chance to indulge his passions, including his steam locomotive, named after his wife, Sandy, on the private track – the Wotton Light Railway – which runs from the garden of his Buckinghamshire cottage.
He of course needed to obtain planning permission for the track, which he found easier than expected when the local authority’s planning officer accepted that it was entirely consistent with countryside policy. Would he, with his judicial robes on, have reached the same conclusion? “I think I’ll reserve my position on that and say I was pleasantly surprised,” he says.
The judgments of Sir Jeremy Sullivan
Richard Harwood QC selects the most important decisions of a long judicial career
Pye v Secretary of State for the Environment and another [1998] 3 PLR 72
The first of a series of judgments which explained how the section 73 provisions on planning permission subject to different conditions contained in the Town and Country Planning Act 1990 worked.
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R v Rochdale Metropolitan Borough Council, ex parte Tew and others [1999] 3 PLR 74 and R v Rochdale Metropolitan Borough Council, ex parte Milne [1999] PLSCS 122
In the Rochdale cases, he first stopped the use of bare outline planning applications in environmental impact assessment cases and then explained how outline applications could still be used in EIA.
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R v Mendip District Council ex parte Fabre [2000] PLSCS 6
Still the best explanation of how planning applications should be reported to and dealt with by a planning committee.
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R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin)
He held that the 2006 government energy review which supported nuclear power was unlawful.
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R (on the application of Majed) v Camden London Borough Council [2009] EWCA Civ 1029
This case extended the doctrine of legitimate expectation to council policies on handling planning applications, in particular in statements of community involvement.
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R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government and another [2011] EWCA Civ 334; [2011] PLSCS 87
This decision abolished the exemption of demolition from planning control.
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East Northamptonshire District Council and others v Secretary of State for Communities and Local Government and another [2014] EWCA Civ 137; [2014] 2 EGLR 85
An emphatic restatement of the protection given to listed buildings and conservation areas.
Reflections from the bar
Planning practitioners offer their memories of appearing before Sir Jeremy Sullivan
“The most important planning judge in decades. Jeremy has been able to explain planning law with utter clarity. Fearless in striking down bad decisions and interpreting the law, even if that has dramatic consequences.”
Richard Harwood QC, 39 Essex Chambers
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“He always knew the answer to the point in question before the oral argument even got under way, which was wonderful if you were on the right side but extremely dispiriting if you knew you were doomed. The tell-tale sign was the ‘Mr Katkowski, I have a couple of questions that I would like you to think about…’ Reassuringly, he was nearly always right. A truly remarkable judicial career and a unique contribution to the modern evolution of planning law.”
Christopher Katkowski QC, Landmark Chambers
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“Very quickly he established himself as the leading planning judge, with a great intellect and integrity, who would quietly tell those in front of him what any fundamental problem with their argument was. Many of us lived in fear of the moment the crunch question was asked – but the once or twice I had an answer to the laser precision of his Lordship’s point, he would smile, accept it and move on. The rareness of successful appeals against him is a testament to the regard in which his judgments are held by the bar and the higher courts.”
David Forsdick QC, Landmark Chambers
For more from Sir Jeremy on the success of the Planning Court and the challenges faced in a fast-changing world, listen to the podcast at http://estatesgazette.libsyn.com
