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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> GPS Estates Ltd v Secretary of State for Communities And Local Government [2014] EWHC 806 (Admin) (28 February 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/806.html Cite as: [2014] EWHC 806 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		28 February 2014

1. MR JUSTICE COLLINS: This is an appeal against the decision of an Inspector who upheld an Enforcement Notice which had been issued on 24 July 2012 against the Appellants. The notice in question was issued by Luton Borough Council and the breach of planning control was the unauthorised use of a site for open airport-related parking and vehicles. There were spaces for 200 such vehicles.
2. Permission to appeal was granted by Lang J on 17 October 2013. It was subject to an application to amend the grounds of appeal and the learned judge decided that that application should be made to and considered by the judge who tried the appeal.
3. Mr Whale, who appeared on behalf of the Respondent, the Secretary of State, did not seek to argue against the amendment since, as he accepted, he could deal with the appeal as amended and he could argue if necessary that the Appellant was not entitled to rely on grounds which had not been raised before the Inspector. I do not need to make any final decision on that point, although I will refer to it later in this judgment.
4. The airport in question, to which the notice referred, is Luton Airport. The reasons for issuing the notice are of importance and they read as follows:

"It appears to the council that the above breach of planning control has occurred within the last ten years."

5. There is no issue about that. It goes on:

" . . . Policy LLA2 of the Luton Plan (2001 to 2011) states that planning permission for airport related car-parking will not be supported unless it is on a designated site or within the parameters of London Luton airport.

In March 2006, pursuant to Local Plan Policy KR1, the council approved an outline proposal to redevelop a very large site near the airport (the mostly redundant Vauxhall Plant) known as the Napier Park Scheme. It included provision of an area for 5,000 off-airport car parking spaces and these spaces are expected to provide a considerable contribution to meeting the projected airport parking needs until approximately 2015 to 2030.

The current use of the site is therefore contrary to provisions within Local Plan Policies LLA2 and KR1 on the grounds that it cannot meet all the conditions set out in the Local Plan."

6. An argument was raised as to the applicability of those policies on the basis that the plan was not entirely up-to-date and, therefore, the NPPF was to be applied. It was not accepted by the Inspector and, indeed, I am entirely satisfied that, so far as this aspect is concerned, that is to say the issue of off-airport parking, it is to be regarded as up-to-date.
7. LLA2 is under the heading "Airport - Related Parking". So far as the narrative is concerned, all that I think is necessary to refer specifically to is paragraph 9.76, which reads:

"Car parking demand is directly related to a growth in passenger throughput. Increased on-site car parking could provide additional capacity. Studies have shown that major expansion may require additional off-site car parking, even if there is a switch in emphasis from road to rail access. It is essential that such off-site facilities are located close to the strategic road network and away from residential areas to avoid the creation of traffic congestion and damage to the physical environment."

8. This is the last paragraph of the narrative before the policy itself and that reads as follows:

"The Borough Council will not grant planning permission for airport-related car parking that is not at London Luton Airport (identified as such on the Proposals Map) unless it can be demonstrated that:

[A] there is a long-term need for the development

That cannot be met on the airport; and

[B] it is in accordance with the most recent Surface Access Strategy; and

[C] it is well-related to the existing road network; and

[D] there will be no unacceptable impact upon the residential amenity; and

[E] it will not exacerbate traffic congestion."

9. Each of those conditions has to be met before an application can properly fall within the policy.
10. There is an additional policy under this heading which is specific to the Kimpton Road area, that is to say the former Vauxhall car plant, and that is policy KR1 which, so far as material, provides:

"Planning permission will be granted for the comprehensive mixed-use redevelopment and/or re-use of the former Vauxhall car plant . . . "

11. With various provisos. One of those is that:

"(b) up to a maximum of 20% of the area for long-stay airport-related car parking which is in accordance with Policy LLA2 . . . "

12. Thus there is scope within KR1 for airport-related car parking to be permitted, but it must accord with policy LLA2.
13. In March 2006 outline permission was granted by the Council for a possible 5,000 vehicle parking within the Kimpton Road development. It is that permission which is referred to as the reason for the issuing of the Enforcement Notice.
14. The Council produced a Local Transport Plan in March 2011 which gave some forecasts of the passenger movements likely at the airport, for which some parking or transport arrangements would be needed. So far as material for the purposes of this appeal, this stated:

"In addition this LTP strategy recognises that passenger throughput at London Luton Airport will also be expected to increase in the period up to 2026. The number of passengers travelling through London Luton Airport has increased from 7.5 million passengers per annum (mppa) in 2004 to 10.1 mppa in 2008, and although this fell to about 9.2 mppa in 2009 and 8.8 mppa in 2010, the overall trend is still rising. Over this period the proportion of passengers arriving at the airport via the shuttle bus to Luton Airport Parkway station has increased from 16% to 22%.

The 2009 Government air travel forecasts assume that passenger throughput at Luton Airport will increase to about 15 mppa by 2015 and then remain static. However, following the coalition Government's announcement in late 2010 that it does not intend to pursue previous proposals for a third runway at Heathrow and a second one at Stansted, and assuming current trends continue, this could result in more optimistic growth at Luton Airport being achieved, possibly reaching 18 mppa by 2021 and around 20 mppa by 2026."

15. It is still in the air (if I may be forgiven that expression) whether there will be any further extension at Heathrow and, indeed, what will be done to provide extra capacity in the south-east. However, it does seem clear that the forecasts for Luton are at least consistent with an increase of up to about 15 mppa in the next ten years or so.
16. It is to be remembered that policy LLA2 under [A] requires that a long-term need for the development is demonstrated. It is obviously important to bear in mind that the outline permission granted in March 2006 must have complied with policy LLA2. Thus the Council must have been satisfied that there was then a long-term need for the development that could not be met on the airport and, secondly, that it was in accordance with the most recent Surface Access Strategy. We do not have evidence as to what in 2006 the Surface Access Strategy provided, but it is unlikely that it was essentially very different from the approach that is now set out, namely an endeavour to persuade that public transport in one form or another should be used and that there should be as little use of private motorcars as possible. Of course, other measures such as car sharing, shuttle buses and so on are material in that respect.
17. I have not dealt specifically with the conditions set out in [C], [D] and [E] because the Inspector was satisfied, despite there being some argument to the contrary by the Council, that those were met. It is therefore necessary to concentrate only on [A] and [B].
18. There was also before the Inspector evidence as to the present position so far as the airport was concerned. The Airport Annual Monitoring Report indicated that there were 7,736 spaces available in the airport and 4,151 off the airport, but the occupancy of the on-site car parks was in the region of only 25 to 30 per cent. That was a matter relied on both by the Council and the Inspector in reaching the conclusion on the appeal.
19. The Inspector considered, in my judgment rightly, that the question before him was essentially whether the development in question, that is to say parking spaces for 200 cars on a meet and greet basis, was one which fell within LLA2 and complied with it.
20. The Appellant had made the point strongly that the fact that the outline permission which had been granted in March 2006, had expired in October 2012 and had not been taken up, destroyed the basis upon which the Enforcement Notice had been issued. That was correct, but the Council continued to maintain and the Inspector to consider whether, notwithstanding that, the development was one which should not continue to be maintained, because the only material ground of appeal was that provided by (a), namely that planning permission should be granted to permit the development in question.
21. There was also a ground relating to the time that had been allowed to comply with the notice, but that is not in issue before me and I need say no more about it. The Inspector did extend the time to a minor extent and allowed the appeal only to that extent.
22. The real point relied on by the Appellant is that the Inspector failed to deal properly or, indeed, at all with the effect of the termination of the outline permission. It had not been taken up and therefore the 5,000 extra spaces that were available would not be available. I should add that there was evidence, too, that the airport had indicated that there was scope for 980 further parking places within the airport; albeit that, again, was a matter which had not been taken up in the sense, as I understand it, that nothing had been done to prepare the necessary ground for those spaces to be made available.
23. Nonetheless, there was that possibility and, of course, there would be no possible basis upon which that application, if it were necessary to be made, would be refused since the whole policy was that parking prima facie should be on-airport rather than off-airport. It may even be, as suggested in the papers, that it was regarded as permitted development in any event. However, that does give the possibility of some 980 further places.
24. There was not before the Inspector any precise evidence as to the forecasts in 2006 of the needs for off-airport parking when the outline permission was granted on the Kimpton Road site. However, as I have said, in order for it to have complied with LLA2, it must have been accepted that there was a long-term need for that development because it would not be able to be met, having regard to the passenger movements and, having regard to what could be expected, however hard one tried to persuade people not to use cars, of the preferred method of travel.
25. It must also, I think, be borne in mind, although this was not a matter specifically raised, that there are likely to be a significant number of passengers who would regard meet and greet as a desirable means of dealing with transport to the airport and it may well be that there is a need for there to be such a service available. However, as I say, that was not specifically gone into or raised before the Inspector and so it can form no part of any conclusion on error of law.
26. The Inspector dealt with the criteria [A] and [B] within LLA2 in paragraphs 6 to 11 of his decision. I do not propose to read the whole of the paragraphs, merely to refer to the more material passages. In paragraph 6 he referred to the possible extension of the existing long-stay car park in the airport and went on:

"The Council contends that there is no evidence to show that there is an identified need for any further off-airport parking in the short, medium or longer term. The Council emphasises that the Surface Access Strategy (2012 to 2017) seeks to encourage passengers to arrive by public transport and to encourage sustainable travel behaviour."

27. There is then reference to the uptake that I have already referred to on the existing airport sites.
28. He goes on in paragraph 7 to deal with the Appellant's case on the increase in passenger movements and the argument that there was a clear long-term need for additional parking capacity which could not be met within the airport. He continues:

"It is also claimed the capacity for surface parking in the airport is exhausted and the introduction for charging for drop-off/collection illustrates that parking demand exceeds current capacity. With respect to the Surface Access Strategy, it is argued this is not a statutory planning document and should be given limited weight. In any event, it is alleged the provision of 200 spaces on the appeal site would not compromise the targets in the Strategy to increase the use of public transport."

29. He then went on to indicate that in his view the timing of the Masterplan and the figures set out there were not known and it may be that it would not happen, that is to say the passenger movements that were relied on would not be seen. He said that that tended to undermine the argument that there was a clear long-term need for additional parking which could not be met at the airport. He said that all the matters relied on did not "provide a firm basis for quantifying the need".
30. However, it seems to me that that really does not meet the point that on any view there was a firm prognosis of an increase in passenger movement and it had already reached a level of some 10 million, although down a little in more recent years, and there was no reason to believe that it would not increase. Whether it reached 18 million was nothing to the point. It clearly was shown that there would be a need. However, it was not, of course, possible to translate the passenger movements into any precise figure for car travel that they would involve.
31. He went on in paragraph 9 to say that in his view there was:

" . . . a clear risk that the approval of ad hoc, off-airport parking provision would undermine the aim of the Surface Access Strategy to encourage the use of public transport and sustainable travel behaviour."

32. He also stated:

"The claim that parking capacity in the Airport is exhausted also appears to be at odds with the Council's information that the occupancy of the on-airport car parks is only about 25-30%."

33. That sentence is clearly a non sequitur. It muddles capacity with occupancy. The point being made by the Appellant was that the capacity was the existing 7,000-odd, plus the 980, which was the total, and it was that capacity which would not be sufficient to meet the needs in the long term. The fact that the occupancy was only 25 to 30 per cent had nothing to do with capacity and there was a serious misdirection in that sentence.
34. In paragraph 10 he went on:

"The submissions for the appellant also claim the use meets an 'identified and demonstrable' need for additional parking that will no longer be met by the Napier Park scheme. This was evidently approved in 2006 as part of the redevelopment of the former Vauxhall car plant, in the context of site-specific policy KR1. However, this claim does not sit comfortably with a previous assertion that 'within policy KR1 there is no requirement for the provision of airport-related parking; rather this is simply an option for development within the scheme'."

35. That final sentence is a quotation from the Appellant's appeal document.
36. Again, with respect to the Inspector, that paragraph seems to me to miss the point. The point is that in order for the 2006 permission to be granted, there had to be compliance with LLA2 and so it had to be recognised that there was the relevant need existing at that time. Nowhere in his decision does the Inspector grapple with this point, namely that it was regarded that there was long-term need in March 2006, whereas it was his view that that did not apply to the appeal site and the 200 in 2013 when the matter was decided by him.
37. Mr Whale has made the point that [A] required that there was a determination of a long-term need for the development that could not be met on the airport. He submits that that means that one has to ask oneself, and the Inspector had to ask himself, whether 200 cars now was a development that could be permitted on the basis that there was a long-term need for it that could not be met on the airport. The uptake figures showed that there was no need for 200 cars now and it was unlikely that that would ever be the position.
38. In my judgment, that is not a sensible reading of LLA2[A]. What it concerns is that there is or will be a long-term need which will not be able to be met other than by a degree of off-airport parking and, accordingly, a development which will enable the parking requirements to be met in the long term is one that can properly be permitted even now. Of course, there is a limit to what is proper but, if Mr Whale's submission is correct, it seems to me that there never could be permission given for an off-airport parking as long as the uptake figures remain as low as they are. Why they are so low we do not know. It may involve a number of factors, including what the charges are at the airport, whether people prefer to park off the airport and there are, of course, many other possible considerations. We simply do not know.
39. Mr Whale also suggested that 5,000 might succeed, whereas 200 would not on the basis that if one looked to that much higher number, then it could be that that would properly meet what is required for the future. That, as it seems to me, was a somewhat desperate argument to get round the difficulty created by the Inspector's failure to grapple with this particular point. Of course, it flows, too, from the lapse of the permission which had been granted back in March 2006.
40. It seems to me, in those circumstances, that the Inspector has misapplied the policy [A] and, as I say, his failure to deal with the true effect of the March 2006 permission, coupled with its lapsing, is an error of law which clearly was highly material. I am not saying that there may not have been arguments the other way which might have justified the view he took but, on the way the Inspector argued it, his decision on [A] was, as it seems to me, wrong.
41. Mr Whale submits that that leaves still [B] because [B], that is to say the transport aspect, has also to be met. The first point to make is that, while that may indeed be so, it is difficult to see that any off-airport development could prima facie meet what is required in as much as it certainly does not point in the direction of avoiding use of cars. As he says in paragraph 9 of the decision letter:

"There is a clear risk that the approval of ad hoc, off-airport parking provision would undermine the aim of the Strategy to encourage the use of public transport and sustainable travel behaviour."

42. That, surely, applies to every off-airport parking development that is applied for, just as his approach to the question under [A] would be likely to mean, again, that every off-airport parking development application would be refused and that is not, in my view, a correct approach.
43. It seems to me that, in all the circumstances, if the Inspector, when considering the matter properly, could come to the conclusion that in the circumstances [A] was, indeed, met, that would have been a factor which would have influenced him in deciding whether in the circumstances [B] meant that the development could not be permitted to remain. The two cannot be divorced from each other and, indeed, that is clear from the way the Inspector dealt with them together in his decision letter.
44. Accordingly, in my judgment, the failure to comply with [B], even if that failure cannot be impugned as an error of law, does not save the Inspector's decision for the reasons I have indicated.
45. Mr Whale also raised the point which, as I have said, I do not need in the circumstances to decide or to reach any final decision on, that it was not open to an Appellant in a section 289 appeal to raise a point which had not been raised below. He relied on two authorities for this submission. The first is a decision of Mann J in London Parachuting Ltd v Secretary of State for the Environment and South Cambridgeshire District Council [1986] JPL 428. It is not necessary to deal with the details of the case. Suffice it to say that the argument was that there had been a breach of natural justice involved in and about the decision in question. That was not a matter which had been raised below and it depended upon facts being established. What Mann J decided in terms was that it was not open for that point to be taken on a section 289 appeal because it depended upon fact and fact which had not been before the Inspector. Indeed, it is a general principle of error of law, where one is dealing with appeals which depend only upon establishing an error of law, that it is not possible to raise a matter which is based on material which was not put before the Inspector. It is not possible for an error of law to exist if the material upon which that error is founded was not before the Inspector, who obviously cannot be in error to fail to have regard to matters which were not put before him.
46. So far as that is concerned, this case decides nothing that is in any way new. The point made in it by Mann J was that the only way of dealing with this sort of challenge based on a breach of natural justice was to seek Judicial Review because on Judicial Review evidence could be put forward and no doubt could, where appropriate, be disputed and a decision could then be reached by a court. But it was not open, as I say, to be dealt with on appeal.
47. However, it seems that reliance has been placed on this sentence in the report in the JPL -- which, incidentally in the form of the JPL in those days, was not entirely satisfactory because it was not verbatim:

"The point here was neither put to nor determined by the Secretary of State and, moreover, depended for its resolution on a determination of facts which was an exercise he had no power to undertake and would not undertake."

48. The "he" there is referring, I think, in the latter part, to Mann J rather than the Secretary of State. It was another problem with the JPL form of reporting that it was in indirect speech and not always entirely clear who was supposed to have said what.
49. Be that as it may, that particular approach has been considered in a more recent case, R (Mata) v Secretary of State for Communities and Local Government [2013] JPL 546, a decision of HHJ Bidder. Mr Whale has reason to recall that case since he was, unfortunately, on the losing side in it and so this point was taken against him.
50. What the learned judge said in relation to this point was, so far as material, as follows in paragraphs 27 and 28:

"27. Additionally it is right to say that the Appellant did not actually contend positively before the Inspector that the use of the building could be restricted by conditions so as to so avoid its demolition. I agree with the submission by Mr Honey, counsel for the Secretary of State, that the Planning Inspector is not bound to make suggestions to the Appellant as to how to save some or all of the work.

28. Mr Mata certainly did not suggest in the appeal before the Inspector that the terms of the Enforcement Notice should be varied to require business use to cease. I have already indicated that that would not have retrospectively affected the finding that the erection of the building was without planning permission, but additionally there is persuasive authority with which I agree and follow that these matters cannot be raised afresh on an appeal to the High Court. The authority for that proposition is the London Parachuting case. The rule in London Parachuting is plainly wider than merely restricting grounds relied on in the High Court appeal to those relied on before the Inspector."

51. It is, as it seems to me, clear (and, of course, this is accepted) that a point that comes out of the Inspector's decision (for example, he has made a fundamental mistake in an issue of fact which has meant that his decision is clearly based upon a misunderstanding) can obviously be taken because it is a point that, as I put it, comes directly out of the Inspector's decision and Mr Whale obviously does not dissent from that. But equally, as it seems to me, it should only be if there is a point sought to be raised which is based on or needs to be based upon material which was not put before the Inspector that the bar can apply. The fact that a point was not argued but could have been argued and all the material was available before the Inspector to enable it to be argued should not, in my judgment, prevent it being argued on appeal. It may be that it was not argued because of a failure of proper representation or, perhaps, even because an Appellant appeared in person. Bearing in mind that a breach of an Enforcement Notice can lead to criminal proceedings and the validity of the Enforcement Notice cannot be challenged in any such proceedings, it seems to me that it would be quite wrong for that sort of point to be prohibited from argument on appeal.
52. It is no doubt correct, and certainly accords with general authority in public law terms, that points which depend upon material which was not before the Lower Tribunal cannot be raised as an error of law but if, as I say, all the material was there but the point was not spotted at the time, that should not prevent it being raised on appeal. On the facts that matter, it does not seem to me that the prohibition upon raising was one which was inappropriate in all the circumstances. It is not necessary to go so far as to say that there can never be a right to rely on a point not taken before the Inspector. That, as I say, is not essential to this judgment and so it may be that what I have said is strictly obiter on this point, but I hope it might be helpful simply to give my views on it.
53. As it is, in my judgment, the appeal succeeds. The result is that, in accordance with the rules that are applicable, I remit this to the Secretary of State for the matter to be reconsidered in the light of this judgment.
54. That is the formal order, is it not, Mr Whale, that I need to make?
55. MR WHALE: If I just get the exact words in front of me, my Lord, task 6 of the authorities bundle, sub 15.
56. MR JUSTICE COLLINS: " . . . remit the matter to the Secretary of State for rehearing a determination in accordance with the opinion of the court."
57. MR WHALE: Indeed, my Lord. I will come to consequential matters in a moment, but I dare say that the first three provisions of the order will be: the application for permission to amend the ground is granted. Number 2, the appeal is allowed. Number 3, the matter is remitted and then you would just record the order of the court, that sub 15 wording. With regards to other consequential matters, I give way to my learned friend for a moment.
58. MR JUSTICE COLLINS: You want some costs, I imagine.
59. MS COLQUHOUN: My Lord, I do, please. I have a schedule and my learned friend has it too. I am afraid it is the only one I have.
60. MR JUSTICE COLLINS: He's seen it, has he? Let me have a look at it. (Handed).
61. MS COLQUHOUN: My Lord, Mr Whale has indicated that he does not accept all the costs and therefore I am simply asking for them. If you have any questions about them, I can of course --
62. MR JUSTICE COLLINS: What do you want me to do? Do you want me to send it for detailed assessment? Mr Whale, would you want that?
63. MR WHALE: I would want that, my Lord. It is no criticism at all because my learned friend is on a public access arrangement, so that perhaps explains why the statement is in this form rather than the usual form, but what it means is that --
64. MR JUSTICE COLLINS: Remind me of what that involves nowadays. I'm not sure I'm entirely up to date on the public access arrangement.
65. MR WHALE: It means that my learned friend can be instructed without an intermediary like a solicitor.
66. MR JUSTICE COLLINS: I beg your pardon, that's all it is. So that avoids some costs.
67. MR WHALE: It does, but what it does mean in these particular circumstances is we're just not in a position to look into the detail --
68. MR JUSTICE COLLINS: I do understand that. It doesn't really have the detail and I think, as you requested, I should say detailed assessment, if not agreed.
69. MR WHALE: My Lord, I'm grateful. That's not, I'm afraid, the end of my submissions on costs because my learned friend will reply in a moment but I'm going to ask that not only is there detailed assessment but there is a discount or a cap, however it's worked out, for the reasons that I will now address you on, if I may. If my Lord will please open the bundle at page 58.
70. MR JUSTICE COLLINS: Mr Whale, in so far as I anticipate to some extent the costs of any amendment, certainly you shouldn't have to pay those.
71. MR WHALE: I am grateful. That is, my Lord, correctly to anticipate part of my submissions. Obviously this case began with some original grounds, then there are the final amended grounds and I just very briefly want to spend a bit of time on them.
72. So page 58 at the top, the first ground pleaded was the supposed failure to apply 38.6. Mrs Justice Lang wasn't impressed by that and that was abandoned but, of course, we had to deal with it at the permission stage. So that's the first point.
73. The second point, the second original ground. There's a claimed failure to give adequate reasons/unreasonable interpretation of policy and this is really all to do with paragraph 9.76 which has not found favour with my Lord.
74. MR JUSTICE COLLINS: No, not as an isolated --
75. MR WHALE: Not as an isolated point, but if my Lord will bear with me for a moment, we'll see how finally it all unfolded. So I'll just leave my Lord with that thought.
76. If we look down at original ground 3, paragraph 43, this was a complaint about the failure to give weight to the 15 million mppa, a figure not relied upon, and, as I hear my Lord's judgment, not really a point that has determined this matter. Really the gist of the success is in paragraphs 44 and 45, which is basically the Napier Park point.
77. So of the original three, three and a half, four grounds, being as charitable as one can be, two out of three of those have failed.
78. Then if we come to the amended grounds, for those we have to go to -- probably tab 4 of the most recent skeleton arguments is as good as place as any. Page 33, my Lord.
79. MR JUSTICE COLLINS: I have it separately. Can you give me the paragraph of the amendment?
80. MR WHALE: Yes, paragraph 41, just to make sure we're in the right place.
81. MR JUSTICE COLLINS: Yes.
82. MR WHALE: So we have now, in the final analysis, three grounds of challenge. Under new ground 1, originally ground 2, points are reiterated about paragraph 9.76. One sees it referred to in 42, one sees it referred to 43. 44 is a so-called wrong application of the NPPF which didn't find any favour with my Lord. Paragraph 45, that's the 15 million mppa point again. So just looking at it broadly, I would say that those two grounds failed.
83. MR JUSTICE COLLINS: Well, yes and no. If you look at them purely as isolated grounds in their own right, you can say perhaps that they didn't determine the result, as it were. On the other hand, they're all part and parcel of the whole, I think.
84. MR WHALE: I'm trying not to be too pedantic.
85. MR JUSTICE COLLINS: I understand. There is an element of overkill in the grounds that were put forward, I take your point.
86. MR WHALE: If we go over the page, 46 and 47, that's really, as I say, the gravamen of the basis for the success. We see the reference to the 5,000 parking spaces.
87. Then ground 3, "Failure to give reasons perversity --
88. MR JUSTICE COLLINS: The heading may be slightly off-key but the substance is what matters.
89. MR WHALE: I take that point and if we look through that substance, we see it's a combination -- we have the 5,000 spaces again and then we go back to the 15 million mppa and then we go back to the complaint about the weight given to the local plan. My Lord has found against the appellant on that. Over the page, it's the economic imperative within the NPPF again, which did not find favour in the court. Then there's a point about KR1. Well, the inspector didn't find against the claimant on KR1. 51 is just telling you how the matter evolved. So, of course, one has to look at these matters broadly --
90. MR JUSTICE COLLINS: I was going to say, Mr Whale, it seems to me that the approach I should adopt can only be really a broad brush approach and what I will do, if I'm with you at all, is to consider a proportion of the costs.
91. MR WHALE: That's all I would ask for, my Lord.
92. MR JUSTICE COLLINS: What proportion do you suggest?
93. MR WHALE: 50 per cent. So detailed assessment not more than 50 per cent.
94. The very last point before I sit down for the moment, if you have my skeleton argument --
95. MR JUSTICE COLLINS: Somewhere.
96. MR WHALE: We pick it up at paragraph 17, please. Please don't spend any time on it, but as you go through the pages, you will see I've italicised the effective or the essential point being made, so LLA2 and 9.76 being the first one, the second one criterion [B] and the ASAS and the third one, NPPF and weight. So that is a helpful shorthand to help you gauge the extent of the success and the extent of the failure.
97. So, as I say, detailed assessment but not to exceed 50 per cent of the costs claimed and I factor into that submission the point that my Lord has made about the amendment of the application.
98. MR JUSTICE COLLINS: That will be included in the broad brush approach.
99. MR WHALE: Very well. So those are my submissions.
100. MR JUSTICE COLLINS: Ms Colquhoun, I think you can't resist, so far as the amendment is concerned, that there has to be some amendment there.
101. MS COLQUHOUN: I accept that, my Lord. 50 per cent I find a little stringent.
102. MR JUSTICE COLLINS: I'm not going to go for that. I'm thinking in terms of 75 per cent.
103. MS COLQUHOUN: 75 per cent of our costs?
104. MR JUSTICE COLLINS: Yes, you get 75 per cent, not 25.
105. MS COLQUHOUN: Thank you, my Lord, that's fine. So 25 per cent off.
106. MR JUSTICE COLLINS: Yes.
107. MS COLQUHOUN: My Lord, I can't object to that.
108. MR JUSTICE COLLINS: 75 per cent then.
109. MR WHALE: One last point -- I was going to say I promise but I'm not sure -- I can't ask you for permission to appeal because this is a second appeal. I've spoken to my learned friend about the future, so to speak, and we're agreed, if you are content, that if we are to apply direct, the 21 days is to run from the date we get the transcript of your Lordship's judgment. I hope you endorse that agreement.
110. MR JUSTICE COLLINS: Yes, that's fine. Can you draft the appropriate order and hand it to the associate --
111. MR WHALE: I will do it.
112. MR JUSTICE COLLINS: -- so it covers all the necessary points.
113. Yes, I don't think -- at least, I wouldn't have thought that there was anything this is which is appealable, but there we are. I certainly wouldn't have given you leave to appeal had it been a case where leave was --
114. MR WHALE: It's just to give it that timescale.
115. MR JUSTICE COLLINS: I'm not in any way denying you the right to consider, of course.
116. MR WHALE: Thank you.
117. MR JUSTICE COLLINS: All right. Thank you both.