Property law reports

LEGAL UPDATE

Town and country planning: Car parking

Green belt - car parking - special circumstances - judge overturning decision by appellant secretary of state to refuse respondent's planning application for off-site airport car parking on green belt land - whether evidence of compelling need for parking such as to amount to special circumstances outweighing harm of inappropriate development in green belt - whether evidence that no alternative sites available - appeal allowed

R (on the application of Hammond) v Secretary of State for Transport, Local Government and the Regions: CA (Lords Justice Schiemann and Buxton, and Sir Murray Stuart-Smith):

15 July 2002

The respondent applied for temporary planning permission to use two sites in the green belt for five years as off-site car parking for users of Gatwick airport.

The local planning authority backed the application, but the appellant secretary of state called in the application under section 77 of the Town and Country Planning Act 1990.

At the public inquiry, the inspector heard evidence that there was a need for the proposed car parking facility, which, according to the respondent, amounted to a very special circumstance that outweighed the harm that would be caused by inappropriate development in the green belt.

Also before him were strategy documents produced by the airport operator, which, the respondent argued, showed that there would be a shortfall of parking space in the future, since available land at the airport would be required for other purposes.

However, the inspector took the view that there was evidence of sufficient available space at the airport to meet its future parking requirements, and that, accordingly, there was no compelling need for extra car parking.

He further considered that the respondent had failed to show, as planning policy required, that no alternative sites were available for the proposed car parks.

The secretary of state accordingly refused the application.

The respondent's application under section 288 of the 1990 Act to quash the decision was granted.

The judge held that the inspector had failed to address the unchallenged expert evidence as to the existence of a shortfall in parking facilities; explain why he could not accept the evidence; and take account of the strategy documents, which set out the airport's intentions and provided a reasonably dependable forecast as to what was likely to happen in the future.

The judge concluded that the inspector had given inadequate reasons for his decision, and had disregarded a major part of the material before him.

The secretary of state appealed.

Clive Newberry QC (instructed by Hewitson Becke & Shaw, of Northampton) for the claimant; Michael Bedford (instructed by the Treasury Solicitor) for the defendant.

Held: The appeal was allowed.

The judge's criticism of the inspector's decision had been unjustified.

The inspector had clearly grappled with the problem of parking shortages and recognised that there might be pressure on parking in the future.

However, there was evidence before him that there was land available at the airport sufficient to meet future parking needs.

Although the strategy documents suggested that the airport operator had other plans for its spare land, the inspector had dealt with the point.

He had been entitled to find that the operator's plans could change, and that, since the land was presently available, there was no compelling need for off-site parking.

Moreover, the possibility that there might be parking shortages in the future was of limited relevance.

The inspector had also been entitled to find that, even if parking land were needed, the respondent had failed to discharge the burden of showing that no alternative sites outside the green belt were available for it.

The inspector's decision was detailed and well-reasoned, and the judge had had insufficient grounds for setting it aside.

Planning permission: Conditions

Whether motorbikes 'displayed' on forecourt in contravention of planning permission - contravention of permission under section 187A of the Town and Country Planning Act 1990 - appeal allowed

McGahan and another v Windsor and Maidenhead Royal Borough Council: QBD: Administrative Court (Mr Justice Harrison):

11 July 2002

The appellants operated a motorcycle dealership at premises that were the subject of a planning permission dating from 1964.

Condition 6 of the planning permission stated that 'the display or sale of vehicles or goods of any description shall not take place on any part of the site except inside the (proposed) building'.

Motorbikes were regularly parked outside the premises, either by customers visiting the premises or by staff.

Members of staff occasionally used the forecourt in order to demonstrate repaired or upgraded bikes to customers.

In 2001, the local magistrates' court found that the appellants were in breach of condition 6.

The magistrates considered that 'display', for that purpose, was to 'open up to view' or to 'exhibit to the eyes'.

The appellants were accordingly found guilty and convicted under section 187A of the Town and Country Planning Act 1990.

They appealed against that decision by way of case stated, and asked the court to determine the correct meaning of the word 'display'.

The issues for the court were: whether the magistrates were right in their construction of the term 'display', or whether it should, as the appellants contended, include a further element of ostentation; and whether the presence of parked motorcycles outside the premises, even though they were not for sale, constituted a 'display' so as to contravene condition 6 of the planning permission.

The appellants further contended that if the decision regarding the second point were in the affirmative, then the provision of parking, as envisaged under condition 1, would lead to an automatic breach of condition 6 so as to render both conditions inoperable.

Andrew Fraser-Urquhart (instructed by Streeter Marshall, of Croydon) for the appellants; David Lintott (instructed by the solicitor to Windsor and Maidenhead Royal Borough Council) for the respondents.

Held: The appeal was allowed.

It was necessary to consider the purpose for which an article was 'opened up to view' or 'exhibited to the eyes'.

The correct definition of the term was 'to display an object or to put it on show or exhibit it in order to attract people's attention to it'.

Although the primary purpose of such a display would be to promote the sale of those goods, the definition would also cover a situation where some other commercial benefit was envisaged, for example that of attracting passing trade.

In the instant case, when deciding whether the vehicles were 'displayed' in that manner, the magistrates should have considered, on an objective basis, whether the evidence demonstrated that the vehicles were on the forecourt for the purpose of obtaining such a commercial benefit.

Mere parking of vehicles did not, of itself, constitute such a reason.

The questions posed by the magistrates indicated that they were uncertain as to the correct approach to take.

The convictions were quashed and the matter remitted back to the magistrates' court.