England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)

		Royal Courts of Justice Strand London WC2 Monday, 15th July 2002

Monday, 15th July 2002

1. LORD JUSTICE SCHIEMANN: Before the court is an appeal by the Secretary of State from an order of Collins J quashing a refusal by the Secretary of State to grant two planning permissions. There is no need for present purposes to distinguish between the two sites which were near one another. They were some miles to the east of Gatwick Airport. The airport is to the west of the M23. The sites are to the east of the M23.
2. The background is as follows. The applications are for permission to make a material change of use of land to use for car parking. The development had already been carried out without planning permission. Application was made for retrospective permission to be granted. The applications were for temporary permissions lasting five years. The local planning authority were minded to grant them, but the Secretary of State called the applications in for his decision. His reasons were that he was concerned to examine whether any grant of permission conflicted with his policies to safeguard the Green Belt and to reduce the amount of parking to the minimal required for operational purposes. An inquiry was held in January 2001. There was opposition to the proposals from some local authorities and from local residents but the local planning authority supported the application. The Inspector recommended refusal. The Secretary of State accepted that recommendation and refused the applications. Collins J quashed those decisions. The Secretary of State appeals to this court.
3. The sites are in the Green Belt. It was common ground that car parking was an inappropriate development in the Green Belt and that various planning policy documents made clear that the decisive issue was whether there were any very special circumstances sufficient to overcome the general presumption against inappropriate development in the Green Belt. The Inspector and the Secretary of State answered this question in the negative.
4. The Secretary of State said this, in his decision letter in the Terning Wheel site. His decision letter in relation to the other site is in very similar terms:

"8. The Secretary of State agrees that the proposal constitutes inappropriate development in the Green Belt, which is, by definition, harmful. He therefore agrees with the Inspector that the main consideration in determining the application is whether any very special circumstances exist that are sufficient to overcome the general presumption against inappropriate development in the Green Belt.

9. The Secretary of State agrees with the Inspector that the most important attribute of Green Belts is their openness, and the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open. The Secretary of State agrees with the Inspector that the fundamental aim of Green Belt policy would be materially compromised by this proposal for the reasons he has given in paragraph 140 of his report.

10. The Secretary of State has considered whether the very special circumstances put forward by the applicant, set out in paragraph 181 of the Inspector's report, are sufficient to justify this inappropriate development. The Secretary of State agrees with the Inspector, for the reasons he has given in paragraphs 182 to 191 of his report, that the various matters advanced as very special circumstances in favour of granting planning permission for this scheme do not amount to very special circumstances sufficient to overcome the presumption against inappropriate development in the Green Belt.

11. The Secretary of State agrees with the Inspector that the issue is whether, having regard to the needs of the airport's passengers and the potential alternatives available, providing the proposed parking would promote sustainable transport choices in accordance with PPG13.

12. The Secretary of State also accepts that locating long-term parking on-airport also avoids the potential environmental and other effects associated with airport related traffic using local roads. The Secretary of State therefore agrees with the Inspector's conclusion on sustainability in paragraph 199 of his report.

13. The Secretary of State therefore agrees with the Inspector that the proposal is contrary to RPG9.

14. The Secretary of State generally agrees with the Inspector's conclusion that the proposal is contrary to the development plan and the emerging plans for the reasons he has given in paragraphs 174 to 176 of his report, subject to the comments below about draft policy RE14.

18. The Secretary of State considers that the main issue in this case is whether the very special circumstances submitted in support of the application justify this inappropriate development in the Green Belt. The Secretary of State agrees with the Inspector that they do not. He therefore considers that the proposal conflicts with PPG2. It also conflicts with Green Belt policies in the development plan and the emerging structure and local plans.

19. The Secretary of State also accepts that it is likely to be more sustainable to locate any additional parking for Gatwick on or very near the airport. In this regard, the proposal conflicts with ppg13 and RPG9.

20. The proposal also conflicts with the development plan and the emerging structure plan which encourage the location of airport-related development within the boundary of the airport. "

5. The legality of this decision was challenged before the judge. The essence of the challenge was that the Inspector had failed to take account of the unchallenged evidence of need led by the applicants, or, alternatively, had failed to give adequate reasons for rejecting that evidence.
6. We have been shown the evidence which was led by the applicant. Taking it at its highest it established that: in two strategy documents prepared on behalf of the BAA by Gatwick Airport Limited, the relevant local company, it appeared that they wished by the year 2008 to carry out development on the airport site using up to 62.5 hectares. The total land available on the airport site was only 59 hectares, therefore the airport did not have sufficient land for its planned needs, quite apart from any further need for car parking. In the year 2000 the number of parking spaces on and off-airport with planning permission did not match demand. In the year 2001 the demand was likely to be up to what had been envisaged by the BAA for the year 2008, thereafter there would be further growth. If not enough parking spaces were supplied to cope with demand then drivers would park in all sorts of unsuitable places, which is why the Local Planning Authority supported the application, and there were policy objections to using any land off-airport: if there was not a Green Belt objection then there was an objection on some other ground such as the policy that further parking should be provided on-airport.
7. The reasons why the judge quashed the decision of the Secretary of State are set out in paragraphs 50 to 52 of his judgment:

"50. It seems to me that so far as the question of the availability of space is concerned, the Inspector has not grappled with the evidence given by Mr Pettitt. His evidence established, if it were accepted, that the problem already existed. It was not a question of looking to the future and it was not a question of the 2000 extra spaces, assuming they were provided for 2001, being sufficient. It seems to me, in any event, he should not have disregarded the strategy. The approach of the airport was clearly that it would not provide on-airport parking because it needed the land for other purposes and it was in its interest, if it could, to use it for other purposes and so it would only provide the car parking to the minimum amount that was absolutely necessary. That is a matter which is referred to in the evidence. In failing to explain why he has decided that he cannot accept the evidence given by Mr Pettitt, he has, in my judgment, not only failed to give adequate reasons, but he has also apparently disregarded the material, or indeed a major part of the material, that was before him.

51. So far as the suggestion that there was no evidence that additional temporary or permanent parking sites could not be found elsewhere, it seems to me that the existence of strong policy presumptions against such development in itself is an indication that there would be at the very least difficulties in identifying or providing for parking on alternative sites. It is in this context, as it seems to me, that the temporary nature of the permission sougth is of materiality. The point is that such land would be needed, if the need was there, quickly. It would appear that no feelers had been put out to see whether any such land might be available in an urban area and that would essentially be likely to mean Crawley. These things cannot be done quickly and, having regard to the policy constraints, and the presumptions against, it was highly unlikely that such land would become available.

52. Accordingly, as it seems to me, albeit this is a detailed and, so far as it goes, well-reasoned report, it does not deal adequately, as Mr Newberry has submitted, with the question of need. And since the Inspector clearly regarded, as I have said, that issue as determinative, as a result his decision, which was accepted by the Secretary of State, cannot prevail."

8. Thus in the judge's view the Inspector did not appreciate the extent of the need, disregarded the strategy and failed to take into account the alleged unwillingness of the British Airports Authority to provide more on-site parking. The judge considered that it was highly unlikely that other off-site land could be found in the near future and therefore this possibility was to be disregarded.
9. When one looks at the Inspector's report it is clear that he examined not only the relevant planning policy documents but also the strategy documents. The policy documents contained the policy that new off-airport parking would only be allowed if there were very special circumstances and that such development should only take place after other alternatives had been considered. National policy requires that there should be less reliance on the private car and an encouragement of alternative means of travel which will have less environmental impact. The strategy documents envisaged a need for significant expansion of the facilities on the airport to deal with anticipated increases in the volume of freight and passengers. The Inspector noted the following aspects of evidence given by Gatwick Airport Limited:

1. Their view that the scale of off-airport car parking provision was a matter for the Local Planning Authorities.

2. The company planned to provide a further 2,000 additional parking spaces.

3. Other options being considered included decking over existing car parks and increasing the number of car parks where cars are block parked rather than self-parked.

4. At present the airport had spare land which could be used for parking.

5. While the land supply situation would become tight the company did not expect to be in a position where it could not continue to meet its car parking commitments.

10. At this juncture it is useful to see what the Inspector said in those passages, with which the Secretary of State expressly agreed. In paragraphs 135 and 136 he said this:

"135. It is common ground that both proposals constitute inappropriate development in the Green Belt. Inappropriate development is, by definition, harmful.

136. In my view the main consideration in determining the applications is whether, in respect of either or both proposals, very special circumstances exist sufficient to overcome the general presumption against inappropriate development in the Green Belt and any other harm arising, including, in particular, harm to the Green Belt over and above harm arising by reason of inappropriateness, harm by way of conflict with the principles of sustainable development, and harm to the environment."

11. In paragraph 140, which is specifically dealing with the Terning Wheel site, he said this:

"I am... firmly of the view that the proposal would compromise the openness of the Green Belt. ... Overall, the use of the site would be intensified, additional traffic would be generated and the level of activity within the site increased."

12. In relation to Cophall Farm he said at paragraph 143:

"Notwithstanding that views into the site are limited, there is no doubt in my mind that the introduction of car parking onto this area has seriously compromised its openness. Development has encroached onto land that was formerly open countryside. The harm to the Green Belt is, to my mind, actual and not, as asserted for the applicant, merely 'harm by definition.'"

13. At paragraphs 174, 175 and 176 he said this:

"174. There is no dispute that, insofar as both proposals constitute inappropriate development in the Green Belt, both would be contrary to adopted and emerging development plans, unless very special circumstances can be shown that outweigh harm.

175. Both the adopted and emerging plans also contain policy presumptions against airport related development outside the airport, including car parking.

176. The nature of both proposals is such that they would clearly be contrary to the development plan and the emerging local plan. That this is so, is recognised by the Council."

14. At paragraph 181 he says:

"A number of matters were advanced in respect of both applications as very special circumstances, sufficient to overcome the presumption against inappropriate development in the Green Belt. In summary the main matters comprised: ...

The need for additional long term airport parking, coupled with the (asserted) inability to meet that need on-airport or elsewhere and the likely consequences of failure to meet the need."

15. In paragraph 182 he made a point in the applicant's favour, and said:

"There is very little doubt in my mind that the situation in summer 2000 was such that the shortage of authorised sites contributed to the number of cars parked on unauthorised sites and possibly also cars parked on-street. Equally, for a large part of the year, there are spare long term parking spaces available."

16. Next paragraph 183 again begins with points in the applicant's favour:

"As to the emerging picture, it was common ground that, even if the target of 40% passengers using public transport by 2008 is met, additional parking spaces over and above those currently available will almost certainly need to be found by that time. The target itself is recognised by the Airport as 'challenging' and if, for whatever reason, it is not met, then further spaces over and above the 45,000 which the Airport estimate will be required may need to be found. Having regard to the policy context, any additional spaces required should be provided on-airport. Crawley Borough Council, as the planning authority for the airport, would have to be satisfied on the question of need."

17. In paragraph 184 he says:

"This presumption raises the question as to whether the land available within the airport is sufficient to accommodate the likely parking requirement, having regard to the competing need for additional land for other operational purposes. So far, Gatwick Airport Ltd has not addressed this matter in detail, but their witness at the inquiry accepted that the situation by 2008 would be tight and that increased use of decking and/or block parking was likely to be necessary to meet the on-airport long term parking requirements. He was nonetheless confident that the airport would be able to meet its obligations, even if this required some multi-storey provision."

18. In paragraph 185 the Inspector said this:

"The Council, for its part, contend that granting temporary planning permission for additional spaces at The Terning Wheel and Cophall Farm would provide a 'breathing space' during which progress towards increased use of public transport could be monitored and decisions taken about the number and location of additional long-term spaces. It seems to me, however that this approach is flawed as a special circumstance justifying inappropriate development in the Green Belt since:

Insofar as land available at the airport is concerned, there is space available at present for additional parking areas on-airport if these are required (as the Airport's current proposals for 2000 additional parking spaces and the plans contained in the Sustainable Development Strategy demonstrate). Any shortage that might emerge in the future is of very limited relevance to the two applications now being considered, since only temporary planning permissions are proposed.

Even if it were to be concluded that space will not be available on the airport within the timeframe of the permissions to meet the agreed parking requirement (which was not, in my opinion shown to be the case), there is no evidence that additional temporary or permanent parking sites could not be found elsewhere, outside the Green Belt and possibly within the urban areas. In response to questions on this point raised by myself at the inquiry, it was conceded that the reason why (temporary) off-airport parking sites had not come forward in Crawley was mainly as a result of the strong policy presumption against such development, not because potentially suitable sites were not available.

I note in passing that this concession is a concession of some importance.

At paragraph 186 the Inspector said this:

"In summary, I conclude, firstly, that there is no compelling need to provide additional long term off-airport parking at this time, having regard to the potential to meet any requirements on-airport. I conclude secondly, that, even if I am wrong in this regard, there is potential to meet any need for additional temporary off-airport parking at an alternative location outside the Green Belt."

19. Under the heading "Overall Conclusion" the Inspector said, amongst other things, the following, in paragraph 199:

"Reliable data was not available to allow me to reach a definite conclusion as to whether providing additional long term parking for passengers using the airport would in itself lead to less sustainable transport choices. If additional parking is to be provided, however, it is clearly preferable from the sustainability viewpoint to locate it on or, failing that, very close to the airport. In this regard, the application sites are poorly located. Both proposals would, in addition result in some local harm to the environment."

20. As I say all these passages were expressly approved by the Secretary of State.
21. Turning back to the criticisms made by the judge they seem to me to be unjustified. The Inspector did grapple with the problem identified by Mr Pettitt. He accepted that more spaces would be required after 2000 which was the last year for which there was any factual material before the inquiry. He answered the point by saying that there was manifestly a considerable amount of unused land on the airport site. He accepted that land on the airport might well get increasingly under pressure with the passing of the years. He did not accept that this was a reason for granting temporary permission now for a development which was unsatisfactory in a number of ways. He did not accept that the plans under the strategy to use all of the remaining 59 hectares for development other than parking were writ in stone. Companies' plans change, and in any event there might come a point when one desideratum has to give way to another desideratum. The company might not be able to get planning permission for another site for storage, say, for more goods, because the local planning authority of the day took the view that the provision of car parking space was a greater priority. It might be decided to use more resources on policing unlawful parking and thus force more people on to public transport. All this was for the future and could be tackled then. The application was for permission now, and there was enough land now to deal with present need. All this, in my judgment, was well within the bounds of the lawful when considering what to do about a difficult situation.
22. The Inspector went on to consider what should happen if the Secretary of State took the view that the Inspector was wrong in his assessment. He judged there might well be sites which, although car parking there might conflict with policy, were nonetheless better suited for that role than the two sites under consideration. Mr Newberry rightly accepts that the burden was on the applicant to show that there were no such sites. The Inspector took the view that he had not discharged that burden. Having seen the evidence which was adduced to the Inspector and having noted the concession recorded at the end of paragraph 185, it seems to me that this conclusion was well within the bounds within which the Inspector could lawfully operate.
23. I therefore would allow this appeal and set aside the decision of the learned judge.
24. LORD JUSTICE BUXTON: I agree. Since we are differing from the view taken by the judge I venture to add some brief words of my own.
25. The Inspector's crucial finding, in my view, was in paragraph 186 of his report, where he said:

"I conclude, firstly, that there is no compelling need to provide additional long term off-airport parking at this time, having regard to the potential to meet any requirements on-airport."

26. The Inspector was correct to consider that the threshold that had to be crossed was one of compelling need in view of the very strong policy considerations protecting the Green Belt. He was entitled to look with a sceptical eye at the applicant's claim that provision could not be made on-airport in view of, first, the clear planning policy that provision should be made on-airport set out in paragraph 183 of his report; second, the assurances from the airport witness that the airport would be able to meet its obligations even in the year 2008; and third, the very large area of land still unused at the airport which was available for parking if there was the will to use it for that purpose.
27. In that context the Inspector was entitled not to be swayed by Mr Pettitt's evidence, which assumed that planning policy must be governed by the airport's "planned needs in prospect of operational ancillary development proposals."
28. The judge criticised the Inspector for not taking account of the airport's strategy. He said this in paragraph 50 of his judgment:

"It seems to me, in any event, he should not have disregarded the strategy. The approach of the airport was clearly that it would not provide on-airport parking because it needed the land for other purposes and it was in its interest, if it could, to use it for other purposes and so it would only provide the car parking to the minimum amount that was absolutely necessary."

29. But in my view the Inspector did not disregard that evidence, but rather rejected it as a factor that compelled him to reach a different conclusion. He was entitled to take that view. It might have been better had he at least referred in verbal terms to Mr Pettitt's evidence, if only because that might have avoided the present time-consuming proceedings. But in the whole context of the report, as set out by my Lord, it is clear why Mr Pettitt's evidence could not be dispositive.
30. The second point about alternative locations for airport parking is indeed a second point. The Inspector put it in this way in paragraph 186:

"I conclude secondly, that, even if I am wrong in this regard, there is potential to meet any need for additional temporary off-airport parking at an alternative location outside the Green Belt."

31. That was a matter that the Inspector did not need to demonstrate if, as I conclude, he was correct, or at least justified, in the first finding that he made. However, in addressing that second point he was in my view correct, first, to place the burden on this point firmly on the applicants as parties seeking to intervene with inappropriate development in the Green Belt; and second, to conclude as he did that they had not discharged that burden. Mr Bedford effectively demonstrated in his reply before us that the evidence of Mr Kenny relied on by the applicants for that purpose was not nearly comprehensive enough to answer the question that it posed to itself, as required by the Inspector, of demonstrating lack of alternative parking facilities.
32. I am also bound to say, with respect, that the judge, in criticising the Inspector's approach in paragraph 51 of his judgement, may have lost sight of the important issue of burden of proof on this point. He set out the difficulties of identifying other parking possibilities, and then said:

"The point is that such land would be needed, if the need was there, quickly. It would appear that no feelers had been put out to see whether any such land might be available in an urban area and that would essentially be likely to mean Crawley. These things cannot be done quickly and, having regard to the policy constraints, and the presumptions against, it was highly unlikely that such land would become available."

33. But if feelers had to be put out it was for the applicants to put them out, and to do so before they used their land in breach of the planning regulations. If it is said that a breach must be accepted and validated because of surrounding circumstances, it is for those saying that to establish that this was a case where there really was no alternative. That, on the Inspector's finding, was not established.
34. In my judgment, if I may respectfully say so, this was a detailed and well-reasoned report, and the grounds relied on by the judge did not entitle him to interfere with the Inspector's conclusions.
35. I also would allow this appeal and set the decision of the learned judge aside.
36. SIR MURRAY STUART-SMITH: I agree that this appeal should set aside for the reasons given by my Lords.
(Appeal allowed; respondents' costs assessed in the sum of £14,142).