GPS Estates Ltd v Secretary of State for Communities And Local Government

Under a planning policy requiring a demonstrated long-term need for off-airport parking, the question is whether there is, or will be, a long-term need that cannot be met on the airport. The policy does not require proof that the precise number of spaces is needed immediately. Existing occupancy figures do not establish available capacity and must not be confused with it. Where policy criteria are interrelated, failure on one criterion cannot automatically determine the outcome without considering the proper application of the others. On a statutory appeal limited to errors of law, a point based on material not before the inspector cannot ordinarily be raised. A point based solely on material that was before the inspector may be raised even if it was not argued below.

GPS Estates Ltd appealed against an inspector’s decision upholding an enforcement notice issued by Luton Borough Council concerning the unauthorised use of land for 200 spaces of open airport-related parking at Luton Airport.

The inspector concluded that the development did not satisfy criteria [A] and [B] of policy LLA2. The appellant argued that the inspector had failed to address the effect of the lapse of a 2006 outline permission for 5,000 spaces at the former Vauxhall plant and had misunderstood the significance of airport parking capacity and occupancy. The court also considered, without needing finally to decide it, whether a point not raised before the inspector could be advanced on a section 289 appeal.

1. Appeal allowed and matter remitted. The inspector’s decision was legally flawed and was remitted to the Secretary of State for rehearing and determination in accordance with the court’s judgment.

2. Policy LLA2 required a long-term need for off-airport parking which could not be met on the airport. Properly construed, it required consideration of whether there was, or would be, a long-term need requiring some off-airport provision. It did not require proof that 200 spaces were needed immediately. A development capable of meeting a future requirement could properly be permitted in advance, subject to the limits of what was appropriate.

3. The inspector had failed to grapple with the significance of the 2006 outline permission. That permission must have been regarded as complying with LLA2, including the long-term-need requirement. Its subsequent lapse did not remove the need to address the difference between the earlier acceptance of long-term need and the inspector’s conclusion in relation to the appeal site.

4. The inspector had also confused capacity with occupancy by treating 25–30 per cent occupancy of existing airport car parks as undermining the claim that available capacity would be insufficient in the long term. That was a serious misdirection. The inspector’s approach to criterion [A] therefore involved a material error of law.

5. Criterion [B], concerning the Surface Access Strategy, could not automatically defeat every proposal for off-airport parking. Criteria [A] and [B] were interrelated. A lawful reconsideration of [A] could affect the evaluation of [B], even if the inspector’s treatment of [B] was not itself shown to be an error of law.

6. As an additional observation, points depending on material not placed before the inspector cannot ordinarily be raised as errors of law on a section 289 appeal. However, where all relevant material was before the inspector, the mere fact that a point was not argued below should not necessarily prevent it being raised on appeal. The court described this view as strictly obiter.

Costs were subject to detailed assessment, with recovery limited to 75 per cent.

• High Court (Administrative Court): Permission to appeal was granted by Lang J on 17 October 2013. The appeal was allowed and the matter was remitted to the Secretary of State for rehearing and determination in accordance with the court’s judgment.