Town and country planning – Environmental impact assessment– Screening opinion – Defendant local planning authority granting planning permission for development on site of crematorium within green belt– Claimant applying for judicial review – Whether decision unlawful for failure to adopt screening opinion on requirement for environmental impact assessment – Whether proposed development constituting “urban development project” – Whether defendant erring in assessment of need – Application granted
The defendant local authority was the owner and/or occupier of Welwyn Hatfield Cemetery. The site comprised an area of land of 4.24 hectares within the green belt. It was on the edge of open countryside. To the south and east of the site there were fields. A park-and-ride facility was located to the west and there was residential development to the north. There were a number of buildings and/or structures upon the site and within it there were plots for deceased persons who had been cremated. The claimant was the operator of a crematorium situated at Woollensbrook, Hertford Road, Hoddesdon, in the borough of Broxbourne. On the evidence, the distance between the defendant’s and the Broxbourne site was about 10 miles.
On 3 May 2017, acting in its capacity as local planning authority, the defendant granted planning permission for development on the site for the “erection of a new chapel, machinery store and crematory, to include new car parking provision and enhanced landscaping following demolition of existing chapel, machinery store, lodge house and central colonnade”. In proceedings by way of judicial review the claimant applied for an order quashing that planning permission. The claimant argued that the defendant had acted unlawfully when granting the planning permission in that: (i) the defendant failed to consider the need for a screening opinion and/or failed to undertake such screening and record the same on its register of decisions in breach of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011; and (ii) the need for the development proposed on the site given its location in the green belt had not been established because the need assessment undertaken on behalf of the defendant did not take account of the capacity of the Broxbourne site.
Held: The application was granted.
(1) The interpretation of a planning regulation and planning policy were questions of law to be determined objectively by the court. However, the language of policy statements might often be framed in terms which required the exercise of judgment when the words were applied to given facts. Many planning policies were couched in terms which were wide in their ambit or even obscure in their meaning which, inevitably, meant that a degree of judgment would be involved when a decision maker was called upon to apply the policy statement in a particular context. Since judgment was necessarily involved in applying words of a planning regulation or policy which had an imprecise meaning there would be occasions when different decision makers confronted with the same factual circumstances would apply the statutory provision or policy statement differently. That was a common feature of the decision-making process in planning law and was simply an acknowledgment of the difficulties inherent in decision making when the words to be applied by the decision maker were imprecise.
The phrase “urban development project” in Schedule 2 to the 2011 Regulations could not be given a precise meaning. However, at its core the development had to be urban in character. The standard dictionary definition of the word “urban” was “in, relating to or characteristic of a town or city”. Although the phrase “urban development project” was not to be defined strictly by reference to the dictionary definition, it provided a useful starting point. However, a variety of factors would usually be relevant to an assessment of whether development was to be characterised as urban. It would be wrong to seek to lay down an exhaustive set of criteria by which to assess whether a project constituted urban development. No doubt, such factors as its nature, size, location and the use to which it would be put were likely to be relevant in most cases but that was not intended to be an exhaustive list of factors by which to make the relevant judgment. It was simply meant to be an acknowledgment or an indication that a variety of factors would usually need to be considered in any given case before a judgment was reached. Furthermore, it would sometimes be the case that factors under consideration would themselves be imprecise.
In the present case, the planning officer had not acted unlawfully in determining that the development of the site for which planning permission was sought did not constitute an “urban development project”. The planning committee was entitled to conclude and rely upon the assessment that the development was not in an urban area, that it was not of an urban nature when looked at as a whole, and that it would not have a significantly urbanising effect on the local environment. Those factors properly led to the conclusion that permission was not being sought for an urban development project within Schedule 2: R (on the application of Goodman) v Lewisham London Borough Council [2003] 2 PLR 42 and Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 applied.
(2) The planning officer’s report referred to the Broxbourne site in a sentence which identified a number of crematoria in the area which were said to be close to their maximum capacity. The defendant acknowledged that the reference was erroneous and appeared in the section of the report which identified considerations in favour of the development. On any fair reading of the paragraph, the members of the planning committee were being told that all relevant existing crematorium facilities were either close to their maximum capacity or near full capacity. The effect of that paragraph was that members were being advised that a factor to be taken into account and which supported the grant of planning permission was that existing facilities were inadequate, in terms of capacity, to meet the need for crematoria in the area. The effect of the paragraph was to significantly mislead the planning committee about a material consideration. There was no suggestion that the error was corrected at the meeting at which the planning application was decided. Accordingly, following Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council [1997] PLSCS 105, the defendant’s decision to grant itself planning permission for the development on the site was vitiated by legal error. The court was not persuaded that, had the material error not occurred, it was highly likely that the decision as to the grant of planning permission would have been the same.
Peter Goatley (instructed by Irwin Mitchell LLP) appeared for the claimant; Robin Green (instructed by Welwyn Hatfield Borough Council) appeared for the defendant.
