Dignity Funerals Ltd v Breckland District Council

The Claimant, Dignity Funerals Limited, challenges the decision of the local planning authority, Breckland District Council (“BDC”), dated 22 December 2016 to grant planning permission for the erection of a new crematorium, car park, gardens of remembrance, access roads and ancillary buildings on land at Norwich Road, Scoulton (“the site”). At its meeting held on the 17 October 2016 BDC’s Planning Committee resolved to accept a recommendation by its Officers to grant permission.

The site is owned by the Interested Party, Thornalley Funeral Services Limited. The Claimant is the owner and operator of Norwich Earlham Crematorium and Norwich Saint Faith Crematorium. It is also promoting a new crematorium on a site located between Weeting and Brandon within Breckland District (“the Weeting site”).

The Interested Party’s planning application was originally submitted to BDC on 13 November 2014. The Claimant made an objection to the application. On 27 August 2015 BDC granted planning permission pursuant to a resolution of its Planning Committee. The Claimant then issued a claim for judicial review challenging BDC’s decision on the grounds of a failure to interpret planning policy correctly. BDC stated that it would not contest the claim and the planning permission was quashed by the High Court by consent. Accordingly the planning application fell to be re-determined by BDC.

On 13 January 2016 BDC once again granted planning permission for the development following a resolution of its Committee. This decision was the subject of a second claim for judicial review, brought on this occasion by a local resident. In May 2016 BDC indicated that it would not contest the claim and the council’s decision was again quashed by an order of this Court by consent. Accordingly, the planning application had to be determined by BDC for a third time.

It is submitted by Mr Strachan QC that the Court should take a cautious approach to the grounds of challenge in this third judicial review in view of the failure by BDC to reach lawful determinations of the planning application on two previous occasions, one of which involved misinterpreting a policy in the development plan. However, the parties have not thought it appropriate to show the court either of the two earlier quashing orders, because they agree that the grounds upon which the earlier decisions were quashed are irrelevant to the legal issues raised by the present claim.

On 17 June 2016 the Claimant submitted a further objection to the planning application. It raised concerns on such matters as the absence of any pedestrian access to the proposed development, the failure by the applicant to carry out any proper search for alternative sites closer to larger centres of population, and the existence of a number of potential areas in the vicinity of Thetford which would provide a more suitable and sustainable location for a new crematorium. However, at that stage the Claimant did not identify any alternative sites.

In September 2016 BDC’s Planning Officer produced a lengthy and detailed report to the Planning Committee recommending that approval be granted. On 16 September 2016 consultants acting for the Claimant wrote to BDC elaborating upon their client’s objections. They contended (inter alia) that BDC was obliged to consider alternatives to the location proposed by the Interested Party and they put forward the Weeting site as an alternative. On this point the objection letter simply stated:-

“Our client has agreed commercial terms for the acquisition of land between Weeting and Brandon. The land is a short distance to the north of Brandon station; it is screened by existing trees and hedgerow, it has access to public transport (bus and train services) and is close to the A11 corridor and accessible to Watton and Swaffham via A 1065. This site is a far more sustainable location for a crematorium compared to the application site at Scoulton. Our client will be preparing a planning application for consideration by the council over the coming weeks; pre-application discussions will be held with the Council Officers very shortly.”

The objection also contended that the Interested Party’s proposal conflicted with policies SS1, CP11, CP13, DC1, DC12 and DC16 of BDC’s Core Strategy and Development Control Policies (adopted in 2009) and also that the proposal did not represent sustainable development within the National Planning Policy Framework (“the NPPF”).

In October 2016 a revised version of the Officer’s report together with an addendum was issued. At its meeting on 17 October 2016, the Committee again resolved to grant planning permission for the proposed development. Following that decision the application was referred to the Secretary of State to enable him to consider whether the application should be called in. He subsequently informed BDC that he would not recover the application for determination under section 77 of the Town and Country Planning Act 1990 (“TCPA 1990”).

This judgment is set out under the following headings:

The Core Strategy contains three types of policy. Chapter 2 sets out the spatial strategy for the whole district and contains one policy SS1. This is followed by chapter 3 which contains fourteen core strategy policies or “CP” policies. Chapter 4 sets out the strategy’s Development Control policies or “DC” policies of which there are twenty one.

Paragraph 2.33 of the Core Strategy states that the “Spatial Strategy identifies the different types of place within the District and how they will develop. It shows how and where the growth in housing, employment and retailing will be accommodated and sets out priorities for areas that will be protected from development pressures. It explains how the different places of the District will be shaped over the period to 2026”.

Policy SS1 sets out the spatial strategy at some length. The opening text states:-

“Breckland comprises seven types of place:

•

The Key Centre for Development and Change; Thetford

•

The Market Town for Substantial Growth; Attleborough

•

The three market towns; Dereham, Swaffham and Watton

•

The Local Service Centre Villages

•

The Snetterton Heath Employment Area

•

The rural settlements; and,

•

The countryside”

The policy indicates in broad terms the level and distribution of development across the whole district as between these seven types of place.

Under the heading “the Countryside”, policy SS1 states:-

“In addition to the rural settlements, Breckland contains large areas of predominantly un-developed agricultural land. Sustainability Appraisal indicates that these areas do not represent a sustainable option for development.

Minimal development predominantly comprising the diversification of rural enterprises will be accommodated in the countryside. Some other employment uses may be accommodated in the countryside where a rural location is necessary for the functioning of the business or it utilises a particular attribute and is a sustainable solution to an identified need.”

Policy CP11 deals with the protection and enhancement of the landscape. It states (inter alia):-

“The landscape of the District will be protected for the sake of its own intrinsic beauty and its benefit to the rural character and in the interests of biodiversity, geodiversity and historical conservation. Development should have particular regard to maintaining the aesthetic and biodiversity qualities of natural and man-made features within the landscape, including a consideration of individual or groups of natural features such as trees, hedges and woodland or rivers, streams or other typographical features.

The release of land in Breckland will have regard to the findings of the Council’s Landscape Character Assessment (LCA) and Settlement Fringe Landscape Assessment to ensure land is released, where appropriate, in areas where the impact on the landscape is at a minimum. Development should also be designed to be sympathetic to landscape character, and informed by the LCA.

High protection will be given to the Brecks landscape, reflecting it’s role as a regionally significant green infrastructure asset. Proposals within the Brecks Landscape Character Areas will not be permitted where these would result in harm to key visual features of the landscape type, other valued components of the landscape, or where proposals would result in a change in the landscape character.”

As paragraph 24 of the Claimant’s skeleton notes, the application site lies within the Wayland Plateau LCA.

Policy CP13 deals with accessibility. It provides (inter alia):-

“New growth in Breckland will be delivered to promote accessibility improvements. This principle is promoted through the balanced distribution of housing and employment throughout the District, but will also be delivered through the following mechanisms set out below …

In addition to education facilities, health, community, sports and recreation facilities (including public open space) will also need to be provided to meet the needs of the growing population. These developments should also be sited in areas that allow for ease of access by a variety of methods.”

Policy CP14 deals with “rural communities”. Under the heading “Employment in the Countryside”, the policy states:-

“The diversification of existing rural enterprises and the development of new enterprises where a rural location is either environmentally or operationally justified will be supported, provided there are no significant detrimental environmental, landscape, conservation or highway impacts.”

Paragraph 3.104 of the explanatory memorandum states:-

“Also allied to the achievement of sustainable rural communities is the support for appropriately located economic development, including rural tourism. The promotion of economic development will need to be tempered against the necessity to protect the countryside and the environment, and promote sustainable modes of transport. Therefore economic development in the countryside will only be supported where the operation of the business necessitates the locations, represents a sustainable solution to an identified need and is in line with national policy. Specific criteria for economic development in the countryside and the diversification of farming enterprises is contained in the Development Control Policies.”

Policy DC1 deals with the “protection of amenity”. It provides that:-

“For all new development consideration will need to be given to the impact upon amenity. Development will not be permitted where there are unacceptable effects on the amenities of the area or the residential amenity of neighbouring occupants, or future occupants of the development site. When considering the impact of the development in terms of the amenities of the area and residential amenity, regard will be had to the following issues; …

f.

Quality of the landscape or townscape.”

Policy DC7 deals with “Employment Development Outside of General Employment Areas”. It was common ground at the hearing that a crematorium does not fall within the definition of “employment development” used in the Core Strategy.

Policy DC12 deals with “Trees and Landscape”. It provides (inter alia) that:-

“Any development that would result in the loss of, or the deterioration in the quality of an important natural feature(s), including protected trees and hedgerows will not normally be permitted. In exceptional circumstances where the benefit of development is considered to outweigh the benefit of preserving natural features, development will be permitted subject to adequate compensatory provision being made. The retention of trees, hedgerows and other natural features in situ will always be preferable. Where the loss of such features is unavoidable, replacement provision should be of a commensurate value to that which is lost.”

Policy DC16 deals with design principles. It provides (inter alia) that:-

“All new development should achieve the highest standards of design. In assessing any proposed development consideration will be given to the following design principles:

Local Character: All design proposals must preserve or enhance the existing character of an area. Particular regard should be given to reinforcing locally distinctive patterns of development, landscape and culture and complimenting existing buildings. Additionally contemporary design, where it enhances sustainability will be encouraged in the District.

…

Form and Character: Development should compliment the natural landscape, natural features and built form that surround it. In considering development proposals consideration will be given to the shape and configuration of a building or buildings, and its or their style, design and arrangement. Regard will also be had to the distinctive features or qualities of a proposed building and its surroundings and the contribution new development makes to these features or qualities.”

Paragraph 109 of the NPPF provides (inter alia) that:-

“The planning system should contribute to and enhance the natural and local environment by:

•

protecting and enhancing valued landscapes, …”

Paragraph 118 of the NPPF provides (inter alia) that:-

“When determining planning applications, local planning authorities should aim to conserve and enhance biodiversity by applying the following principles:

•

if significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused;

…

•

planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including … the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss; …”

The report described the site and surrounding area as follows:-

“12.

The application site is situated within an area of open countryside, around ½ mile from the village of Scoulton and 1 ½ miles from the small town of Hingham. The site forms part of a larger field and is set within an agricultural landscape. The site adjoins the B1108 Norwich Road, but built development in the locality is sparse and dispersed. The nearest residential properties are located around 250-300 metres away. Scoulton Mere, a Site of Special Scientific Interest (SSSI), is located approximately 400 metres to the west.

13.

The site extends to approximately 4.4 hectares, with a frontage of around 220 metres to Norwich Road. The site is under arable cultivation. The land is bounded by further farmland to the south and east, an area of woodland to the west, and by the Norwich Road to the north. The roadside boundary is delineated by an established hedgerow and trees, including two oak trees which are subject to a Tree Preservation Order (TPO).”

Under BDC’s scheme of delegation, the application was referred to the Planning Committee because it constituted a “major development” and had generated significant community interest. However, the application was screened as not amounting to EIA development because it would not be likely to have significant effects on the environment, a decision which has not been challenged.

Paragraphs 14 to 50 of the report contained a detailed summary of the consultation responses which had been received by BDC.

The report dealt with the need for a crematorium between paragraphs 70 to 74 as follows:-

“70.

There are no crematoria in Breckland. Existing facilities in the wider area are located at Norwich (Earlham and Horsham St Faiths), King’s Lynn and Bury St Edmunds. Permission was granted on appeal last year for a crematorium at Cromer. Travel distances to these facilities are such that large parts of Breckland fall outside the industry standard 30 minute drive-time to a crematorium at cortege speed. This standard is widely accepted as an appropriate guideline for assessing the adequacy of local provision, and has been referenced in a number of appeal decisions.

71.

Taking into account death rates in Breckland, which has a higher than average number of elderly residents, and applying national average cremation rates, it is estimated that around 1,086 potential cremations per annum are likely to be generated within the District. The proposed crematorium would have the capacity to meet this need, and due to its relatively central location, would provide a convenient facility for many residents in Breckland. Whilst the proposal would be unlikely to handle all Breckland cremations, further cremations would be likely to arise from areas close by in South Norfolk.

72.

Evidence has also been provided to demonstrate that existing local crematoria are operating at or over capacity, resulting in extended waiting times and short turn around times for funerals. The additional capacity secured by the proposal would provide a better and more convenient service for local residents, as well as reducing pressure on existing crematoria, thereby potentially improving the experience for mourners at those facilities.

73.

Whilst the need for a crematorium in this location has been questioned by a number of those objecting to the application, no substantive evidence has been provided to contradict that provided by the applicant.

74.

Taking these matters into account, it is concluded that there is currently an unmet need for additional crematorium facilities in the area which the proposal would help to address. This is a material consideration that weighs in favour of the proposal.”

The report dealt with the principle of development in the countryside between paragraphs 56 and 69. Paragraph 56 stated:-

“56.

Policy SS1 of the Breckland Core Strategy & Development Control Policies DPD sets out the overall approach to development in the District, and indicates that the open countryside is not considered generally to represent a sustainable option for development. Accordingly, Policy SS1 makes provision only for minimal development in the countryside outside defined settlements, predominantly comprising the diversification of rural enterprises. Provision is also made for some other employment uses to be accommodated, where a rural location is necessary for the functioning of the business or it utilises a particular attribute and is a sustainable solution to the identified need.”

The Claimant made no criticism of that summary of policy SS1.

Paragraph 58 of the report summarised the effect of paragraph 28 of the NPPF in so far as it was relevant to the determination of the application:-

“58.

The National Planning Policy Framework (NPPF) promotes economic growth in the countryside, stating in paragraph 28 that the sustainable growth and expansion of all types of business should be supported in rural areas. It is also a core principle of the NPPF to recognise the intrinsic character and beauty of the countryside. However, the support for rural economic development applies to development in the open countryside as well as rural settlements. Additionally, the NPPF states as a core principle that planning should deliver sufficient community and cultural facilities and services to meet local needs.”

The Claimant made no criticism of that summary either.

Paragraphs 60 to 61 of the report assessed the need for the development to be in an open countryside location:-

“60.

As far as the need for a countryside location is concerned, the requirements of the Cremation Act 1902 are directly relevant insofar as they stipulate that a crematorium should be at least 200 yards (around 183 metres) from any dwelling and at least 50 yards (43 metres) from a public highway. Published Government guidance entitled ‘The Siting and Planning of Crematoria’ (DoE, 1978) is also of relevance. This says that sufficient land should be available to provide an appropriate setting for a crematorium, adequate internal access roads, car parking and space for the disposal of ashes. Reference is made to sites of 2 to 4 hectares in size and larger, although no minimum is stated. The reasonable expectation of mourners and visitors to gardens of remembrance for a place of quiet contemplation is also an important consideration in relation to site selection.

61.

Given these particular site selection and locational requirements detailed above, it is considered to be most unlikely that suitable land of sufficient size would be found within a defined settlement boundary. This is due to the more or less continuously built up nature of towns and villages in the District. Larger sites that are remote from housing are perhaps more likely to be found within existing and allocated employment areas, but such sites can be discounted due to the busy commercial nature of such areas and the likelihood of conflicting activities. It can reasonably be concluded therefore that a rural location outside a defined settlement is likely to be required for the development of a crematorium.”

Paragraph 62 expressed the Officer’s overall conclusion on the application of policy SS1 and paragraph 28 of the NPPF:-

“On this basis, it is considered that the proposal would not conflict with Policy SS1 … as it has been demonstrated that the proposal would represent a sustainable solution to an identified need. This is considered further below. The proposal would also be fully consistent with the NPPF’s support for the sustainable growth of rural businesses as set out in paragraph 28.”

This conclusion drew upon both the assessment of the sustainability of the proposed development contained in the following paragraphs of the report as well as upon the preceding paragraphs.

The report dealt with the effect of the proposal on the character and appearance of the area between paragraphs 76 to 83. The Officer’s conclusion in paragraph 83 was:-

“For these reasons, it is also considered that whilst the proposal would cause some harm to the rural character and appearance of the area and loss of protected trees in conflict with Core Strategy Policies CP11 and DC12, this effect would be localised and would be mitigated to an extent by sensitive building design and extensive planting. Nevertheless, landscape impact considerations, in part, weight against the proposal. ”

The impact of the proposal on the landscape had been described at paragraphs 78 to 79 of the report:-

“78.

The proposal would introduce built development into an area of largely undeveloped open countryside. The proposed buildings, together with associated access, parking, servicing areas, pedestrian islands and signage would inevitably result in a loss of openness and increase activity, and would thus have an urbanising effect. This would be harmful to the character and appearance of the area. The removal of existing roadside hedging and trees (including up to two oak trees subject to a TPO) to facilitate access improvements would also cause some harm in itself, as well as opening up short distance views into the site and thereby increasing the visual impact of the proposed development.

79.

However, in medium distance views the proposed development would be well screened by adjacent dense woodland when approaching from the west and roadside and field boundary hedging would filter views of the development when approaching from the east. Close to the site, the development would be clearly visible from the Norwich Road, but would be set well back from the road and would in large part be seen set against a wooded backdrop.”

On the other hand paragraph 82 of the report advised that:-

“82.

Consequently, and for the above reasons, it is considered that the proposal would comply with Policy DC16 in accordance with the design principles detailed therein which seeks, amongst other things, to ensure that new development is built to a high standard of design.”

This conclusion was based upon paragraphs 80 and 81 of the report which commented favourably and in some detail on the design principles of the proposed landscaping and the proposed buildings.

Paragraphs 84 to 93 of the Officer’s report addressed transport, highway safety and accessibility and concluded that if CP13 were to be treated as applicable to the proposed development, the policy was complied with.

Paragraphs 94 to 97 of the report dealt with the effect of the development on residential amenity. In paragraph 97 the following conclusions were drawn:-

“97.

Consequently, it is considered that the proposal would not result in any material harm to the amenities of local residents taking into above the above factors and issues. In terms of effect on the quality of the landscape, such considerations are detailed at paragraphs 76 to 83 above. Whilst it is considered that the proposals may result in some localised harm to the quality of the landscape which weighs against the proposal, it is considered that the scheme complies with Core Strategy Policy DC1 in all other respects.”

Paragraphs 98 to 103 considered the effect of the proposed development on trees and landscaping. Paragraphs 99 to 101 stated:-

“99.

The proposal would result in the loss of some existing trees and hedging at the site frontage, including two oak trees to the east and west of the site frontage that are subject to a TPO. This loss of trees and vegetation is necessary to provide suitable visibility splays in accordance with the recommendation of the Highway Authority.

100.

To compensate for the loss of trees and hedging, replacement planting is proposed together with a comprehensive landscaping scheme. The replacement planting would comprise of a new native hedgerow and 18 trees, including 6 beech trees, 6 oak trees and 6 field maple trees. The proposed landscaping scheme would introduce additional planting by way of tree belts to the site frontage and to the north eastern corner of the site. The tree belts would consist of a variety of species, including field maple, silver birch, hazel, beech, crab apple, native white cherry, English oak, and small leaved lime. …. The Tree Consultant does not support the removal of the TPO trees, but recommends that any new planting should be predominantly of native species to more appropriately respond to the existing landscape character of the locality.

101.

As already noted, the loss of the TPO trees and the remainder of the planting to the site frontage would cause harm to the character and appearance of the landscape. However, it is considered that this particular landscape impact would be ameliorated by the substantial planting proposed by the landscaping scheme. The number and location of the trees, on balance, would be of more than commensurate value, providing an appropriate replacement and additional planting. The proposed landscaping would also mitigate to an extent against the visual impact of the built form on the wider landscape.”

As a result in paragraph 103 of his report, the Officer concluded that:-

“103.

Taking these matters into account, it is considered that the proposal would result in some harm due to the loss of roadside hedging and trees in conflict with Core Strategy Policy DC12. However, such loss of trees and hedging is unavoidable due to access requirements and to achieve the development proposed. Moreover, the harm caused would be localised and mainly short-term, and could be mitigated satisfactorily by a comprehensive scheme of new planting. It is considered that the public benefits of the development as summarised in this report would outweigh this limited harm, and, due to the compensatory provision, it is considered that these amount to exceptional circumstances under this policy.”

Paragraphs 104 to 114 addressed ecological issues. The Officer summarised the information and reports which had been received from the developer and other parties. He stated that there had been no signs of any protected species on the site. Paragraphs 105 and 112 expressed the opinion that the proposal provided opportunities for enhancing biodiversity. Paragraph 114 concluded:-

“114.

Accordingly it is considered that the proposal is acceptable in ecological terms and would not conflict with Core Strategy Policy CP10 or the guidance set out in paragraph 118 of the NPPF.”

Paragraphs 115 to 118 of the report dealt with the effect of the proposal on the historic environment. Paragraph 118 concluded:-

“118.

Consequently the proposal is considered to be acceptable in heritage terms and would not conflict with Core Strategy Policy DC17 or the guidance set out in section 12 of the NPPF.”

Paragraphs 119 to 121 explained why there were no objections to the proposal as regards loss of agricultural land, drainage and ground conditions.

The report dealt with the overall planning balance between paragraphs 122 and 126:-

“122.

The paragraphs above have assessed the individual policies of the development plan. It is considered that Polices SS1, CP10, CP13 (if it applied) DC1 (save for landscape considerations), DC7 (if it applied), DC16 and DC17 are complied with in full. Whilst for the reasons explained above, it is considered that there is some degree of conflict with Policy DC1 and CP11 in terms of landscape impact, the effects of the proposal would be localised and would be mitigated to an extent by sensitive building design and extensive landscaping, as noted in paragraphs 76 to 83. Some harm would also arise due to the loss of trees and hedging, but Policy DC12 is complied with as it allows for the loss of natural features in ‘exceptional circumstances’, such as is the case here where the loss cannot be avoided and compensatory measures are provided, as explained in paragraphs 98 to 103 above. It is therefore considered that the proposals comply with the development plan as a whole.

123.

In addition, and in any event, the proposed development would provide a crematorium facility in the District for which there is a need. The qualitative improvement to service provision provided by the proposal in reduced waiting times for funerals and, in many cases, reduced travelling distances represents a significant public benefit which weighs in favour of the proposal. The proposal would also create some rural employment and would support indirectly other associated business activities in the area. Safe access to the development could also be achieved. The economic and social roles of sustainable development, as defined in the NPPF, would thus be supported.

124.

Although the proposal would not be close to any main centre of population, it would nonetheless be relatively conveniently located for many residents in mid-Norfolk who currently have to travel further afield to access cremation facilities. The proposal would be served by public transport, and whilst most visitors would be likely to arrive by car, travel distances for many local residents would be less than they are currently. Any harm arising in terms of transport sustainability would be small therefore.

125.

In relation to environmental considerations, as detailed above, some harm to the character and appearance of the area would result, but the effects would be localised and would be mitigated by the layout and design of the scheme and proposed landscaping, which would also mitigate fully against the loss of protected trees. The proposal would not result in any significant adverse effects on the amenity of local residents, ecological interests or the historic environment. The proposed development is appropriate in a countryside location due to the nature of the use and the requirements of legislation and Government guidance.

126.

In summary therefore, it is concluded on balance that the proposal complies with the development plan as a whole and would represent sustainable development as defined in the NPPF. In addition, and in any event, there are also a number of other material considerations that support the proposal including meeting the need for a crematorium and other community and economic benefits. It is recommended that the application should be approved therefore.” (emphasis added)

On 2 May 2017 Ouseley J granted permission to apply for judicial review restricted to three grounds, which had been “summarised” by the Claimant as follows (see paragraph 8 of its skeleton):-

“(1)

In advising the Committee that the Development was capable of being acceptable in principle in this location and in accordance with the Development Plan (“DP”) for the purposes of s38(6) Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) the OR fundamentally misdirected Members in three main respects:

(i)

Firstly, the Officer erred in the correct legal interpretation of policies SS1 and DC07 of the Council’s own Core Strategy, which establish the spatial strategy for development in the area. On a proper interpretation of those policies, and of the DP as a whole, the Officer was bound to advise Members that the Development was in conflict with those policies of the DP, and consequently with the DP as a whole, so that the statutory presumption in s38(6) did not apply. These were fundamental errors of approach, which vitiated Members’ subsequent decision to grant the PP.

(ii)

Secondly, the Officer necessarily erred in his direction as to the weight to be given to policy SS1, because he directed that the weight it could carry was reduced due to an alleged inconsistency with paragraph 28 of the NPPF. On a proper legal construction of paragraph 28 of the NPPF and policy SS1, paragraph 28 of the NPPF is entirely consistent with policy SS1. By the same token, it clearly cannot be said that the Committee’s decision would have been “highly likely” to be the same, had it not been misdirected concerning the proper interpretation of policy SS1 and paragraph 28 of the NPPF.

(iii)

Thirdly, whatever the position in respect of the Officer’s advice concerning policy SS1, the Officer also seriously misled Members as to the conformity of the Development with the DP as a whole. Given that the Officer was unable to identify any policies which provided any positive support for the Development, to be balanced against the policies which clearly militated against the grant of permission, he could only lawfully and/or rationally have advised Members that the Development conflicted with the DP as a whole and so did not benefit from the statutory presumption under s38(6) of the 2004 Act (“Ground 1”).

(2)

As a matter of law, the Council was required to have regard to the merits of the Weeting Site as one which would overcome, or at least mitigate, the clear planning objections to locating major development in the open countryside and outside any development boundary, while satisfying an identified, district-wide need for a crematorium: see Derbyshire Dales DC v. Secretary of State [2009] EWHC 1729 (Admin) and R. (on the application of Bovale Ltd) v Secretary of State for Communities and Local Government [2008] EWHC 2538 (Admin). However, despite being urged to consider the Weeting Site, as an identified and available alternative being promoted by a rival commercial operator, Members were unlawfully directed to ignore this alternative location and to determine the application solely on its own merits (“Ground 2”).

(3)

The Officer also fundamentally erred and/or reached inconsistent conclusions, concerning the proper interpretation of other relevant DP policies, specifically policies DC16 and CP11, as well as CP13 and DC12 of the Core Strategy, and/or failed to take into account, properly or at all, paragraphs 109 and 118 of the NPPF. These errors undermined still further the Committee’s conclusion that the development complied with the DP and benefitted from the statutory presumption in section 38(6). They also compound the seriousness of the failure to consider the Weeting Site as a potential alternative, in order to avoid or reduce the harmful impacts of this important development. (“Ground 3”).”

Section 70(2) of TCPA 1990 provides that in dealing with a planning application the authority must have regard to (inter alia) “(a) the provisions of the development plan, so far as material to the application, … and (c) any other material considerations.” Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) further provides that:-

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

It is well established that, in order to comply with these provisions, the decision-maker must proceed upon a proper interpretation of the relevant policies in the development plan (City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, 1459).

In Tesco Stores Ltd v Dundee City Council [2012] PTSR 983 Lord Reed JSC, with whom the other members of the Supreme Court agreed, stated in paragraph 18 that:-

“The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.”

Thus, the Court held that as a matter of principle statements of planning policy should be interpreted objectively according to the language used, but always reading that language in its proper context. He continued in paragraph 19:-

“That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of fact requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”

This subject was revisited by the Supreme Court in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865. Lord Carnwath JSC, with whom the other members of the Court agreed, stated at paragraph 24:-

“In the first place, it is important that the role of the court is not overstated. Lord Reed JSC’s application of the principles in the particular case (para 18) needs to be read in the context of the relatively specific policy there under consideration. Policy 45 of the local plan provided that new retail developments outside locations already identified in the plan would only be acceptable in accordance with five defined criteria, one of which depended on the absence of any “suitable site” within or linked to the existing centres (para 5). The short point was the meaning of the word “suitable” (para 13): suitable for the development proposed by the applicant, or for meeting the retail deficiencies in the area? It was that question which Lord Reed JSC identified as one of textual interpretation, “logically prior” to the exercise of planning judgment (para 21). As he recognised (para 19), some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis.” (emphasis added)

He continued in paragraphs 25 and 26:-

“25.It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. …

26.

Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matter of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy; and not to elide the two.”

Lord Gill (with whom Lord Newburger PSC and Lord Clark and Lord Hodge JJSC agreed) added that “the proper context” for the interpretation of a planning policy “is provided by the overriding objectives of the development plan and the specific objectives to which the policy statement in question is directed” (see paragraph 72).

Mr Strachan QC urged caution in the present case in the application of one part of paragraph 25 of Lord Carnwath’s judgment in Hopkins where he stated that the Courts should respect the expertise of the specialist planning inspectors and start at least from the presumption that they will have understood the policy framework correctly. He asserted that that presumption should not be taken to apply to decision-making by local planning authorities, but that would appear to conflict with the earlier statement of the Court of Appeal in R (Lensbury Limited) v Richmond upon Thames LBC [2016] EWCA Civ 814 at paragraph 8. At all events, I have not found it necessary to rely upon this presumption in order to resolve the issues raised by the grounds of challenge.

In certain parts of the Claimant’s case it is asserted that BDC acted irrationally. It is well-established that a complaint of irrationality does not give a Claimant an opportunity to revisit the planning merits of the application or of the local planning authority’s decision. “[The] Court must be astute to ensure that such challenges are not used as a cloak for … a rerun of the arguments on the planning merits”; see R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74 at paragraph 6. In planning cases the threshold for Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Cooperation [1948] 1 KB 223) is a high and difficult hurdle for a Claimant to surmount. This is greatly increased in most planning cases because the decision-maker is not simply determining questions of fact, it is also concerned with making a planning judgment or a series of planning judgments. Because a substantial degree of judgment is involved, there will usually be scope for a broad range of possible views by different decision-makers presented with the same materials, none of which could be categorised as unreasonable in the Wednesbury sense; see the Newsmith Stainless Ltd case, at paragraph 7. Against this background, a Claimant alleging that a decision-maker has reached an irrational or perverse conclusion on matters of planning judgment “faces a particularly daunting task”; see the Newsmith Stainless Ltd case, at paragraph 8. However, irrationality challenges are not confined to the relatively rare example of a “decision which simply defies comprehension”. They also include a decision which proceeds from flawed logic: see R v North and East Devon Health Authority ex parte Coughlan[2001] QB 213 at paragraph 65.

The principles to be applied to the review of decisions by local planning authorities and to criticisms of the content of reports by officers to planning committees have been summarised in a number of cases (see for example R (Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) paragraphs 90 to 95; [2015] EWCA Civ 537 paragraph 78; R (Plant) v Lambeth LBC [2017] PTSR 453 paragraphs 66 to 69).

This ground falls into three parts. In the first part, the Claimant submits that the Officer’s report misinterpreted policy SS1 of the Core Strategy. It is common ground that the decision of the Committee was based upon the reasoning and advice given by the Officer in that report. According to paragraph 36 of the Claimant’s skeleton, policy SS1 contains an express restriction on development within the countryside subject to only two limited exceptions. These are said to be firstly, the diversification of rural enterprises and secondly, “some other employment uses” where a rural location is necessary for the functioning of the business or it utilises a particular attribute and is a sustainable solution to an identified need. The Claimant submits that even if a proposal falls within those two exceptions, policy SS1 only permits a proposal which itself represents a “minimal” level of development.

The Claimant submits that, on this interpretation of policy SS1, because the Officer’s report considered the extent of the need for the development, BDC must have treated the proposal as an “employment use” within the second so-called exception. But at paragraph 63 of the Officer’s report, the Committee was advised that the proposal is not an employment use for the purposes of policy DC7 and therefore BDC has misinterpreted policy SS1 by treating its second “exception” as extending to a non-employment use, namely a crematorium. It is also suggested that the term “minimal development” could not apply to the level of development involved in a crematorium.

Mr Lockhart-Mummery QC accepted on behalf of BDC that, according to the definition in footnote 3 to policy DC6 of the Core Strategy, the Interested Party’s planning application did not relate to “employment development”. But he nonetheless submitted that the Claimant’s interpretation of policy SS1 is misconceived. I agree.

Policy SS1 sets out in broad terms the authority’s spatial strategy for the whole of its district, or “the overall approach to development in the district” (see the undisputed summary in the Officer’s report quoted in paragraph 26 above). It is not, for example, a detailed development control policy containing very specific criteria for the assessment of individual proposals. As I have already noted, according to paragraph 2.33 of the Core Strategy, the spatial strategy in policy SS1 identifies “different types of place” or areas within the District and how they will develop. It shows where growth will be accommodated and sets out priorities for areas to be protected from development pressures over the period up to 2026. The seven “areas of place”, arranged as a descending hierarchy, are Thetford, followed by Attleborough, then three market towns, the local service centre villages, the Snatterton Heath Employment Area, the rural settlements and, lastly, “the countryside”. The broad strategy for each of the seven different “areas of place” is then described one by one in policy SS1. It indicates the overall level of development that is distributed to each settlement or type of area as a whole. Read properly in context, policy SS1 does not set out to describe the level of development that could be acceptable on individual application sites.

So in relation to, for example, the penultimate tier in the hierarchy, SS1 states that the “rural settlements” do not represent a sustainable option for “significant expansion”. As with the other tiers, that text describes, albeit using negative language, a level of expansion which would be appropriate for a rural settlement in overall terms. It is difficult to see how a question as to what would or would not amount to “significant expansion”, where that question truly does arise, could be a suitable issue for judicial interpretation or analysis (applying paragraphs 24 and 26 of Hopkins). Instead the scope of that term depends upon the use of judgment by the planning authority in the application of that language to the circumstances of a settlement. That judgment could not be challenged by judicial review unless shown to be irrational, which is a particularly difficult hurdle to overcome. Much the same considerations apply to the expression “minimal development”.

When dealing with “the countryside”, SS1 begins by referring to the Sustainability Appraisal for the Core Strategy, which had explained that these large areas of predominantly undeveloped agricultural land are not a sustainable option for development. That, of course, is a conclusion expressed at a strategic, rather than a site-specific, level. It is in that context, that SS1 goes on to state that “minimal development” will take place in the countryside. Once again, that language is a description of the overall level of development distributed by the plan to the area of “the countryside” over the plan period. That minimal level of development which the countryside will accommodate will “predominantly” comprise the diversification of rural enterprises, but plainly is not limited to such activities. Read properly, that type of development does not represent an “exception” to a policy restriction, but forms part of the broad description of the level and type, or purpose, of development distributed by the spatial strategy to “the countryside”.

SS1 also indicates that the minimal level of development that will be accommodated in the countryside may also include employment uses for which a rural location is necessary for the functioning of a business or a business which (inter alia) involves “a sustainable solution to an identified need”. Here SS1 relies upon the concept of sustainable development as, once again, part of a broad description of the level and purpose of development distributed by the spatial strategy to the countryside, and not as part of a restrictive “exception” as Mr Strachan QC would have it. This purpose or objective is also to be found in several of the more detailed policies in the Core Strategy.

Mr Lockhart-Mummery QC accepted that this part of policy SS1 also operates as a general policy for the protection of the countryside. There is no other policy of that nature in the Core Strategy, for example one containing a specific list of criteria against which individual proposals may be assessed. Instead, this protective purpose of SS1 has been expressed in much broader terms, in the spirit of a policy which explains the overall level and objectives of development which may be accommodated in the countryside.

Thus, the language used in policy SS1 has to be understood in the context of its purposes and spirit. The legalistic construction of SS1 advocated on behalf of the Claimant does not accord with the approach to interpretation of policy laid down by the Supreme Court in Tesco and Hopkins, especially for a broad, strategic policy of this kind. It is plain from the judgments in Hopkins that arguments of the kind put forward in the present case are firmly discouraged.

In my judgment, the advice given to the Committee in the Officer’s report reflected a proper understanding of the strategic, countryside policy in SS1. That area is not a sustainable location for development in general. The report advised that there are large parts of the district which do not have adequate access within a reasonable distance to a crematorium, existing facilities are operating at or above capacity, there is an unmet need for an additional facility and the relatively central location proposed in this case would be convenient “for many residents of the district” (paragraphs 70 to 74). Given the site requirements for a facility of this kind, and the characteristics of Breckland District, a new crematorium would be likely to need a rural location outside a defined settlement (paragraphs 60 to 61). The proposal was assessed to be sustainable in a number of respects (see eg. paragraphs 62, 84 - 85, 93, 97, and 122 - 126). These conclusions all involved judgment in the application of the policy objectives of SS1. It has not been suggested, nor could it be, that any one of those planning judgments was “irrational” in the public law sense.

For these reasons I reject the first part of ground 1.

The second part of ground 1 criticises paragraph 59 of the Officer’s report which stated that policy SS1 should carry less weight because, applying paragraph 215 of the NPPF, it adopted a more restrictive approach to rural development than paragraph 28 of the NPPF, by requiring the need for proposed development to be shown. Mr Strachan QC submits that the legality of this approach depends upon whether both paragraph 28 of the NPPF and policy SS1 have been correctly interpreted when they were compared in the Officer’s report, and that properly understood, the two policies are entirely consistent as a matter of substance. They differ only as to form.

The effect of paragraph 215 of the NPPF was that “due weight” should be given to policy SS1 according to the degree of its consistency with the NPPF, that weight increasing as that consistency increases. Here a comparison was made between two policies expressed in very broad, purposive terms. Mr Lockhart-Mummery QC submits, and I accept, that paragraph 28 of the NPPF distinctly encourages “a positive approach to sustainable new development” in “rural areas” (and does not require need to be shown) in contrast with the more cautiously worded objectives of policy SS1.

A comparison of two policies of this nature, expressed in very broad terms, is not primarily an exercise in linguistic analysis. Planning judgment is involved as to how the policies apply in practice. Even a comparison of the language used may be a matter of impression.

Although paragraph 59 of the Officer’s report could have been more felicitously expressed, an application for judicial review does not involve the marking of an examination paper. The thrust of paragraph 59 is that, as a matter of judgment and degree, the terms of policy SS1 are more restrictive than the more pro-active objectives of paragraph 28 of the NPPF. I do not consider that that assessment is open to judicial criticism. However even if I were to be wrong on this point, Mr Strachan QC very fairly accepted that if the challenge under the first part of ground 1 (misinterpretation of policy SS1) were to fail, success under the second part of ground 1 could not justify the quashing of the planning permission, because the commission of this assumed error has only had the effect of reducing, and not increasing, the weight to be given in BDC’s decision to the proposal’s compliance with policy SS1.

The third part of ground 1 challenges the conclusion in paragraph 122 of the Officer’s report that the proposal accorded with the development plan as a whole when applying section 38(6) of PCPA 2004..

In the City of Edinburgh case, Lord Clyde stated (at page 1459E):-

“He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it.”

This question involves an exercise of judgment by the decision-maker (R v Rochdale MBC ex parte Milne (No. 2) [2001] 1 Env LR 22 at paragraph 48). Where policies pull in different directions the decision-maker is entitled to give greater weight to some rather than others (R (Laura Cummins) v Camden LBC [2001] EWHC 1116 (Admin)).

However, Mr Strachan QC submitted that because BDC found that the proposal conflicted with policies DC1 and CP11 as regards its impact upon the landscape, a negative factor, it was legally impossible for the authority to conclude that the proposal accorded with the development plan as a whole, unless it identified compliance with one or more policies providing positivesupport for the type of development proposed, and therefore capable of outweighing the negative effect of the conflict with policies DC1 and CP11 (paragraph 51 of the Claimant’s skeleton). He submitted that BDC was only able to point to compliance with policies which had a neutral effect for the purposes of section 38(6) of PCPA 2004, being policies which simply require that a proposed development should avoid causing harm to the interests they are designed to protect.

Initially, Mr Strachan QC accepted that he was unable to point to any authority to support his argument. Subsequently, he sought to rely upon a dictum of Lord Clyde in City of Edinburgh at page 1459E, but the issue raised by Mr Strachan in his submissions did not arise for decision in that case. The passage cited was simply making the point that the question under section 38(6), whether a proposal accords with the development plan, has to be assessed by reference to the plan as a whole, recognising that in some cases there may be certain points in the plan which support the proposal and other points in the plan which tell against the proposal. So, for example, it cannot be said that a proposal does not accord with the development plan simply because it conflicts with one of the relevant policies in the plan (see also paras 49 – 50 of Sullivan J in ex parte Milne (no. 2). No part of the reasoning expressed by the House of Lords in the City of Edinburgh case can be taken to support Mr Strachan’s novel gloss on the language of section 38(6).

For my part I am unable to accept the Claimant’s approach. It is too mathematical or mechanistic. Conflict with one particular policy may be treated as having an adverse impact and yet of relatively little weight. At the same time, the decision-maker may consider that compliance with other policies designed to secure that development in general takes place without causing significant harm to a range of environmental factors, does involve a greater degree of compliance with the development plan than the non-compliance. The decision-maker is entitled to regard compliance with those policy considerations (even in the sense of simply avoiding harm) as having a greater priority or importance than the non-compliance with a policy designed to protect one other aspect, such as the landscape. As Sullivan J pointed out in the Rochdale case at paragraph 48 (approved in paragraph 21 of SSCLG v BDW Trading Limited [2016] EWCA Civ 493) :

“The local planning authority has to make a judgment bearing in mind such factors as the importance of the polices which are complied with or infringed, and the extent of compliance or breach.” (emphasis added)

The Claimant’s argument is inconsistent with that principle, not least because it fails to allow any proper room for the decision-maker to assess the importance or weight to be attached to any compliance or non-compliance with a particular policy or policies. The above reasons are sufficient to dispose of the third part of ground 1 of the claim.

I would add that the above analysis is even clearer in the case of development plans, such as BDC’s Adopted Core Strategy, prepared in accordance with PCPA 2004 and which are designed to promote sustainable development overall. Section 39(2) of PCPA 2004 requires an authority exercising its plan-making functions to do so with the objective of contributing to the achievement of sustainable development. The authority is also required to carry out a “sustainability appraisal” of the proposals in any development plan they prepare (section 19(5) of PCPA 2004). Generally, sustainable development is referred to as development which meets the needs of the present, without compromising the ability of future generations to meet their own needs. Sustainability has a pervasive effect on most of the development control policies of a modern development plan. It is not limited to those policies which seek to meet the need for specific types of development or to allocate sites for those specific purposes. The Claimant’s insistence that compliance with policies in a post 2004 Act plan designed to promote sustainability by avoiding environmental harm can only be treated, as a matter of law, as having a merely neutral, rather than positive or beneficial, effect, has no legal foundation in the legislation or case law and is unprincipled.

I should also mention that it is incorrect for the Claimant to say that all of the policies with which the proposal was judged to comply simply had a neutral outcome. For example, BDC determined that the development would provide bio-diversity enhancement (see paragraphs 114 and 112 of the Officer’s report and policy CP10). But quite apart from that, I see nothing illogical or irrational in the approach taken by BDC to the application of section 38(6) of PCPA 2004.

For these reasons I reject the third part of ground 1. It follows that the claim cannot succeed under ground 1.