England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		8 March 2017

1. JUDGE JARMAN: This is a renewed application for permission to appeal a decision of an inspector appointed by the Secretary of State for Communities and Local Government who heard an appeal under section 78 of the Town and Country Planning Act 1990 by Ace Airport Parking Limited against the decision of Tandridge District Council refusing an application for development which was set out as the change of use of buildings to provide for the storage of cars (a B8 use class) airport parking and the relocation of an "In Autos" car facility, which is a B1/B2 use class.
2. The inspector in his decision letter identified the main issues as (1) whether or not the proposal would (a) result in the use of sustainable modes of transport and (b) minimise private car mileage to Gatwick Airport, and (2) the effect of the proposal upon the use of Church Lane and Bridleway route number 520 in respect of highway safety.
3. The inspector under the heading of "sustainable modes of transport and private car mileage" at paragraph 14 went straight to the Tandridge Core Strategy 2008, which is accepted is part of the development plan. What he said was this:

"Policy CSP16 of the adopted Tandridge Core Strategy 2008 (CS) states that 'the Council will seek to minimise the impact of Gatwick Airport by working with BAA Gatwick, Crawley Borough Council and adjoining local authorities on the development of the airport up to the projected 45 million passengers per annum within the agreed limits of a single runway/two terminal airport. New airport parking and extensions to existing sites will be considered in the light of Green Belt policy and the need to minimise the use of the private car to travel to the airport'."

4. The inspector then referred to paragraph 13.13 of the reasoned justification for that policy, which states that the council wished to see any identified shortfall in the provision of parking provided within the airport and not through the establishment of new car parks or extension of existing sites within the Green Belt, and that restrictions on airport parking will also support the aim of increasing access to the airport by public transport.
5. In the next paragraph, the inspector referred to an objection to the proposal made by Crawley Borough Council, a neighbouring council, which stated that the proposal would not accord with its policy GAT3 of the adopted Crawley Borough Local Plan 2015-2030. The inspector expressly recognised that that plan was not a development plan for the appeal area, but nevertheless expressly found that the comments made by Crawley Borough Council were relevant material planning considerations.
6. On behalf of the appellant, Mr Parkinson submits that that is an error of law and all I need to be satisfied to give permission is that that is an arguable error of law. He points to the fact that, although the inspector recognised that the Crawley Borough Local Plan was not a development plan for the appeal area, at paragraph 16 he said this:

"If the appeal was allowed, it would mean that there would be conflict with Policy GAT3 of the Crawley Borough Council Local Plan."

7. If the matter stopped there then Mr Parkinson may well have some force in his argument. But, in my judgment, it does not stop there. In the very next sentence the inspector said this:

"Consequently, the proposal would not therefore accord with Policy CSP16 of the [Tandridge Core Strategy] in so far that the Council would not then be working with Crawley Borough Council to minimise the impact of Gatwick Airport, including the need to minimise the use of the private car to travel to the airport."

8. That, in my judgment, makes it clear that the inspector was focusing on policy CSP16 and whether the proposal would mean that Tandridge Council would be working or not working with Crawley Borough Council within the meaning of CSP16. In my judgment, the contrary is not arguable.
9. The second ground of appeal is that the inspector did not refer to the development plan and did not either expressly or implicitly reach a view whether the proposal accorded with the development plan as required by section 38(6) of the Planning and Compulsory Purchase Act 2004. It is true that nowhere in the decision letter does he make express reference to that. However, having set out the issues as I have already explained, the inspector went on to deal after sustainable modes of transport with a number of other matters. At the end of that section he said this:

"I acknowledge that if this appeal were dismissed there is a distinct possibility that the extant planning permission would be fully implemented, and hence that there would be an increase in private motor vehicle mileage to and from the appeal site. However, there are very clear and distinct policies and strategies in place which seek to minimise private motor vehicle mileage (and to increase the use of more sustainable modes of transport) in respect of the provision of airport car parking associated with Gatwick Airport. I afford such policies and strategies considerable weight. I therefore conclude that the proposal would not accord with the sustainable transport aims and objectives of Policies CSP1 and CSP16 of the CS; the Surrey Local Transport Plan; the Framework and the GAPS. Harm would also be caused to the Gatwick Airport car parking and sustainable transport aims as outlined in Policy GAT3 of the CBLP."

10. The inspector then goes on to consider highway safety. He again in that context referred to various policies and concluded at paragraph 33 as follows:

"Subject to the imposition of a number of planning conditions, I therefore conclude that the proposal would accord with the highway safety aims and objectives of Policy CSP12 of the CS; Policy DP4 and DP5 of the adopted Tandridge Local Plan Part 2: Detailed Policies 2014 – 2029 (July 2014); the Surrey Local Transport Plan and the Framework."

11. He then went on to deal with other matters and concluded that, subject to the imposition of a number of planning conditions, the proposal would have no worse than a neutral impact upon traffic movements to and from the site when compared to the B8 extant planning permission. Furthermore, the use of the site by predominantly cars rather than larger vehicles from the B8 use of the site would likely lead to some relative highway safety improvements. These are matters which weigh in favour of allowing the development. At paragraph 45 he said this:

"Notwithstanding the above, the proposal is fundamentally at odds with the car parking and sustainable transport aims of the development plan for the area, the GAPS and the Framework. In addition, the airport car parking proposal does not accord with the Gatwick Airport car parking and sustainable transport aims of Policy GAT 3 of the CBLP: this is a very recently adopted policy and is therefore a weighty material planning consideration."

12. Again, if the matter stopped there, Mr Parkinson, in my judgment, may have some force in his submissions that the inspector was having regard not only to the development plan for the area but other matters such as GAPS and the Framework, the CBLP, which were not part of the development plan. However, again the matter does not stop there. At paragraph 46 the inspector went on to say:

"As all of the required airport car parking could be met within the confines of Gatwick Airport, which is a more sustainable location from a transport point of view, on the evidence before me I do not find that there is any compelling reason why the airport car parking proposal should be allowed. Use of the site for airport car parking purposes would result in the use of non-sustainable modes of transport, and, if allowed, would unacceptably increase airport private car mileage. These are matters of overriding concern and are not overcome by my findings in respect highway safety or by the fact that there would be some private motor vehicle mileage associated with the extant use of the site for B8 use class purposes."

13. In my judgment, reading the decision letter as a whole in a down-to-earth manner, it is clear that the inspector did have regard to the development plan in a proper way, and again I am not persuaded that the contrary is arguable.
14. Accordingly, I dismiss this application.
15. MS SACKMAN: My Lord, I rise to apply for our costs in this matter. I am asking simply that your Lordship uphold the order that Mr Purchas made in respect of costs. We seek the costs of preparing the acknowledgement of service in this matter in the sum of £2,479.
16. JUDGE JARMAN: Can you argue against that, Mr Parkinson?
17. MR PARKINSON: No, my Lord, I cannot. Mr Purchas has ordered it.
18. JUDGE JARMAN: I do not need to make an order. The order has already been made, has it?
19. MR PARKINSON: My Lord, yes.