Timmins and another v Gedling Borough Council

Planning permission – Change of use – Crematorium – Claimant and interested party submitting rival planning applications for cemetery and crematorium – Defendant local authority granting permission to interested party – Claimant applying for judicial review of decision – Whether defendants misinterpreting paragraphs 89 and/or 90 of the National Planning Policy Framework (NPPF) – Whether defendants wrongly eliding openness and visual impact – Whether defendants in breach of duty to include statement of how they had worked with applicant in positive and proactive way – Application granted The interested party applied to the defendant local authority for planning permission to develop a crematorium and cemetery in Lambley Dumbles, Nottinghamshire, an area of farmland and deep wooded valleys designated as green belt. The second claimant was a rival firm of funeral directors which made an application to develop a crematorium within the same area. Both applications came before the defendants’ planning committee on the same day. The committee had before it reports from the planning officers on the merits of the individual applications which advised that, in principle, one or other of the applications should prevail. Permission was subsequently granted to the interested party, subject to compliance with conditions, for the development of a crematorium and cemetery.The first claimant applied for judicial review of that decision as representative of an opposition group to the grant of any permission for a crematorium in the area. The second claimant also applied for judicial review as the disappointed competitor to the interested party.The issues for the court were: (i) whether, pursuant to the green belt policy in the National Planning Policy Framework (NPPF), all developments were prima facie inappropriate and could only be justified by very special circumstances unless they fell within the specific exceptions set out in paragraphs 89 and/or 90 of the NPPF and whether those exceptions applied to buildings for cemeteries or the cemeteries themselves; (ii) whether the evaluation of openness should take into consideration measures proposed to mitigate the visual perception of the structure in question and was it permissible as part of the very special circumstances balancing exercise to take account of such proposed measures; and (iii) whether the defendants had complied with the duty on planning authorities under article 31 of the Town and Country Planning (Development Management Procedure) (England) (Amendment No. 2) Order 2012 to include a statement on every decision letter stating how they had worked with the applicant in a positive and proactive way. Held: The application was granted.(1) The defendants had clearly erred in their interpretation of paragraph 89. They had construed paragraph 89 as treating cemeteries as appropriate, provided they met the limited test contained therein. However, paragraph 89 was not concerned with cemeteries per se but with the construction of new buildings that provide appropriate facilities for cemeteries. The two were clearly different. The structure of paragraph 89 made it clear that it created a prima facie rule that the construction of new buildings was inappropriate. It then stated that there were certain exceptions which included the provision of appropriate facilities for cemeteries. The defendants had erred in treating the exception as applying to the cemetery as opposed to a new building which provided facilities to serve the cemetery. Further, under section 9 of the NPPF properly interpreted as a whole, as opposed to paragraph 89 specifically, any development in the green belt was treated as prima facie inappropriate and could only be justified by reference to “very special circumstances” save in the defined circumstances set out in paragraphs 89 and 90.In the present case, a change of use from agricultural land to a cemetery constituted a development which was prima facie inappropriate and to be prohibited in the absence of very special circumstances. Moreover, the creation of a cemetery did not fall within one of the exceptions in paragraphs 89 and 90 of the NPPF: Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] EWHC (Admin) 808; [2002] PLSCS 88, R (on the application of Heath & Hampstead Society v Camden London Borough Council [2007] EWHC 977 (Admin); [2007] PLSCS 70, Wychavon District Council v Secretary of State for Communities and Local Government [2008] EWCA Civ 692; [2008] PLSCS 178, Cusack v Harrow London Borough Council [2013] UKSC 40; [2013] 1 EGLR 19, Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government [2013] EWHC 2643 (Admin); [2013] PLSCS 212, Fordent Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 2844 (Admin); [2013] PLSCS 223 considered.(2) The defendants had not misdirected themselves as to the meaning of “openness” when considering the impact of the development. There was a clear conceptual distinction between openness and visual impact. It was therefore wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact. However, when considering whether a development which had an impact on openness was justified by very special circumstances, it was not wrong to take visual impact into account as one of the considerations that formed part of the overall balance. Accordingly, the planning committee had not committed any material error of law in accepting planning officers’ reports on the issue, even though those reports betrayed a certain looseness of language about the nexus between openness and visual impact: R v Selby District Council, ex parte Oxton Farms [1997] PLSCS 105, R v Mendip District Council, ex parte Fabre (2000) 80 P & CR 500; (2000) PLSCS 6 and Heath & Hampstead Society v Camden London Borough Council [2007] EWHC 977 (Admin) considered.(3) The predominant purpose behind article 31 was to promote the efficiency and effectiveness of the application system. An obligation to explain how pro-active engagement had occurred which was directed towards demonstrating that the authority had sought to encourage efficiency might be very different in nature to a disclosure statement intended to satisfy the public that the decision making process had been operated in good faith and without bias and avoiding conflicts of interest. The statement by the defendants had partially complied with the obligation in Article 31 but had not done so fully. Therefore there had been a breach of the article. However, in the circumstances of this case the proper course was to grant declaratory relief only. It would be disproportionate to quash the decision purely upon the basis of a technical breach of the law. The decision had in any event to be remitted and a new statement would in due course need to be adopted. Paul Brown QC (instructed by Taylor & Emmet LLP) appeared for the first claimant; James Strachan QC (instructed by Clyde & Co LLP) appeared for the second claimant; Richard Kimblin and Hashi Mohamed (instructed by Gelding Borough Council) appeared for the defendants; Paul Tucker QC (instructed by Hill Dickinson LLP) appeared for the interested party. Eileen O’Grady, barrister