Planning permission – Material consideration – Crematorium – Defendant local authority granting planning permission to third party for crematorium on agricultural land in open countryside – Claimant owner of alternative site applying for judicial review – Whether planning officers wrongly failing to take planning application back to committee following advice requiring investigatory work – Whether material error in officer report failing to advise committee of alternative site – Whether officer report advice regarding protected species being unlawful – Application granted
The defendant local authority granted planning permission to a third party for a crematorium including a single-storey building, remembrance gardens, 138 parking spaces and other associated development on a 3.7-hectare site on agricultural land in the open countryside to the north of Cane End Road on the edge of Bierton, north of Aylesbury.
The claimant operated a number of crematoria in the UK, both on its own account and for local authorities, primarily through its associated management company and had objected to the planning application. It had also applied for planning permission for another crematorium to the north of Aylesbury, on a site a Watermead, which had been recommended for approval and was with the defendants for the issue of a planning permission. The claimant and the defendants agreed that there was a need for a crematorium in the area but that it was unlikely to support more than one.
The claimant applied for judicial review of the defendants’ decision to grant permission. It contended that: (i) the defendants’ officers had wrongly failed to take the planning application back to committee on receipt of advice from the county council archaeological service that investigatory work should be undertaken prior to determination of the application; and (ii) there was a material error in the officer report which failed to advise the committee that the claimant’s site was an alternative site and in its advice in relation to European protected species.
Held: The application was granted.
(1) Although the response from the county council archaeological service could not reasonably have been anticipated as they were not a formal consultee on the planning application, their concession that that their position could be dealt with by attaching a condition to the planning permission meant that its response did not amount to a new material consideration requiring the planning permission to be taken back to committee: R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66 considered.
There had been no material error in the officer’s report in its advice to committee members on the consideration of the Bierton application about the relevance of the claimant’s alternative site. However, the fact that there was no evidence of European protected species on the alternative site, which consequently did not require derogation from the duty to safeguard protected species, had been a material consideration which should have been brought to the attention of the planning committee in that context: R (on the application of Morge) v Hampshire Country Council [2011] UKSC 2; [2011] PLSCS 14, R (on the application of Prideaux) v Buckinghamshire County Council [2013] EWHC 1054 (Admin); [2013] PLSCS 129 and Cheshire East Council v Secretary of State for Communities and Local Government [2014] EWHC 3536 (Admin) considered.
(4) The fact that there was an alternative site which did not require derogation from the duty to safeguard the protected species was a material consideration and, in the absence of further information from Natural England to the contrary, the court was unable to find that the decision of the planning committee would have been the same been if the error had been corrected. Accordingly, the permission would be quashed.
Alex Goodman (instructed by Clarke Willmott LLP) appeared for the claimant; Clare Parry (instructed by Aylesbury Vale District Council) appeared for the defendants.
Eileen O’Grady, barrister
