1) Mrs Jean Timmins and Another v Gedling Borough Council Westerleigh Group Ltd (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Green
Judgment Date11 March 2014
Neutral Citation[2014] EWHC 654 (Admin)
Docket NumberCase No: CO/9587/2013 & CO/9276/2013
Date11 March 2014

[2014] EWHC 654 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Birmingham Civil Justice Centre

33 Bull Street, Birmingham

Before:

Mr Justice Green

Case No: CO/9587/2013 & CO/9276/2013

Between:
1) Mrs Jean Timmins
2) A W Lymn (The Family Funeral Service) Limited
Claimants
and
Gedling Borough Council
Defendant

and

Westerleigh Group Limited
Interested Party

Paul Brown QC (instructed by Taylor & Emmet LLP) for the First Claimant

James Strachan QC (instructed by Clyde & Co LLP) for the Second Claimant

Richard Kimblin and Hashi Mohamed (instructed by Helen Barrington, Gelding Borough Council) for the Defendant

Paul Tucker QC (instructed by Hill Dickinson LLP) for the Interested Party

Hearing dates: 14 th February 2014

Mr Justice Green
1

Issues

1

Three issues arise upon this application for judicial review.

2

First, whether pursuant to the Green Belt ("Green Belt") Policy as set out in the March 2012 National Planning Policy Framework ("NPPF") all developments are prima facie inappropriate and can therefore only be justified by very special circumstances unless they fall within the specific exceptions set out in paragraphs 89 and/or 90 NPPF. A related issue is whether the exceptions from the requirement to prove very special circumstances in paragraph 89 NPPF applies to (1) buildings for cemeteries or (2) the cemeteries themselves.

3

Secondly, this application concerns the meaning of "openness" and "visual impact" and the relationship between these two concepts. Are they different? Do they overlap? Can an evaluation of openness take into consideration measures proposed to mitigate the visual perception of the structure in question? Alternatively, is it permissible as part of the very special circumstances balancing exercise to take account of such proposed measures?

4

Thirdly, what is the scope and extent of the duty on planning authorities under the Town and Country Planning (Development Management Procedure) (England) (Amendment No. 2) Order 2012 (hereafter "DMPO"), as from 1 st December 2012, to include a statement on every decision letter stating "how" they have worked with the applicant in a positive and proactive way? The issue arising in this application is whether the Defendant complied with that duty and, if not, what the consequences of that failure may be.

2

The facts

5

The facts may be summarised as follows. This case concerns a dispute over the grant of planning permission for the siting of a crematorium and cemetery in an area known as the "Lambley Dumbles" in Nottinghamshire. This is an area of rolling farmland and deep wooded valleys. It runs from the Mapperley Plains towards the ancient village of Lambley. The area is reputed to have been visited by DH Lawrence. It is an area popular with walkers and constitutes designated Green Belt.

6

In May 2012 Westerleigh Group Limited (hereafter "Westerleigh") made an application to Gedling Borough Council (hereafter "GBC") for planning permission for the construction of a crematorium and cemetery on Catfoot Lane, Lambley.

7

In June 2012 a further application for permission to develop a crematorium within the same area was submitted by A W Lymn the Family Funeral Service Limited (hereafter "Lymn"). Lymn is a family run firm of funeral directors of longstanding in Nottingham, Derby and Mansfield. The Lymn application concerned a proposed crematorium but there was no proposal for an additional cemetery. The proposed siting for the development was at Orchard Farm, 216 Catfoot Lane, Lambley.

8

Both the Westerleigh and Lymn sites are within the Green Belt. Although the proposed crematoria had different designs they are both of a broadly similar size. The Westerleigh proposal entailed a total internal floor space of 536 square metres and the Lymn proposal entailed a total floor space of 555 square metres. These applications were the culmination of a series of earlier, and unsuccessful, applications by other applicants for the development of a crematorium within GBC. The Westerleigh and Lymn applications came before the GBC Planning Committee on 8 th May 2013.

9

In preparation for this meeting the planning officers of GBC had prepared three detailed documents all dated 8 th May 2013. The first was an Introductory Report (hereafter "the Introductory Report") and addressed issues common to the Westerleigh and Lymn applications and conducted a comparative assessment of the two competing applications. The second and third Reports concerned the details of the Westerleigh and Lymn applications respectively (hereafter the "Westerleigh Report" and the "Lymn Report"). The Introductory Report is a 42 page report which covered both planning applications and addressed matters of commonality between the applications. Paragraph 3 to this report identified the two central issues. It stated:

"3. The reason for reporting in this fashion is that Planning Committee needs to consider a number of common issues and reach a view on these before it is able to make either determination. The two most important decisions it must take are to determine:-

i) Whether there is a need for crematoria services in the Borough and if so at what scale.

ii) If this is a situation when, in determining the applications, alternatives to the proposals are a material consideration".

In section 7 of this report the planning officer advised the Committee of the options open to it. These were: (1) refuse planning permission for both crematoriums; (2) grant planning permission for both applications; (3) grant planning permission for one application and refuse the other (see paragraphs [119]–[127] of the Introductory Report). The report provided information to the Committee on the current proposals and the three previous proposals summarising in turn why each had been refused. It provided advice on national and local planning policy. In section 4 it provided legal and evidential advice in relation to the "very special circumstances" test. The report further set out the quantitative and qualitative evidence for "need" for crematoria services within the Borough, including within this section detailed isochronic evidence. The overall conclusion on "need" was in the following terms:

"96. It is considered that the Council has now had the fullest evidence presented to it on this matter. It certainly has more evidence before it than any of the previous Inspectors had. The decision as to whether need has been proven is extremely finely balanced but in terms of meeting the needs of the residents of the Borough it is therefore recommended that it is in the public interest that a single crematorium site is provided in the Borough to serve the Arnold and Carlton areas, and this is sufficient to be regarded as very special circumstances in this instance".

10

The officers also concluded that there were no reasonable alternative sites which had been identified which were capable of performing better in terms of planning policy and meeting the identified needs of the community than the two sites the subject of the Westerleigh and Lymn applications: see Report paragraph [118].

11

As observed above the Committee also had before it reports from the planning officers on the merits of the individual Westerleigh and Lymn applications. When the time came for the Committee to vote the position was hence that the officers were advising that in principle one or other of the applications should prevail. One application proposed a crematorium and cemetery; the other only a crematorium. In short the officer's conclusion, if accepted, placed Westerleigh and Lymn in direct competition with each other for the grant of a single permission.

12

By a decision dated 17 th May 2013 ("the Decision") GBC granted to Westerleigh permission, subject to compliance with conditions, for the development of a crematorium and cemetery.

13

The Decision has triggered litigation on two fronts. First, Mrs Jean Timmins seeks judicial review of the Decision to grant permission to Westerleigh. Mrs Timmins is a 69 year old retired civil servant. She joined an opposition group to the grant of any permission for a crematorium in the Lambley Dumbles area known as the Catfoot Crematorium Opposition Group ("CCOG"). The second application for judicial review was brought by Lymn, the disappointed competitor to Westerleigh. Whilst both Westerleigh and Mrs Timmins challenge the decision of the Defendant both do so of course for very different reasons.

3

Ground 1: Scope and effect of section 9 NPPF on Green Belt policy

(i) Legal Framework

14

Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") requires that planning applications be determined in accordance with the development plan unless material considerations indicate otherwise.

15

It is common ground that the NPPF constitutes "material considerations" and that therefore planning applications must be taken with due regard being paid to that Framework. The Introductory Report purports to apply the NPPF upon the basis that GBC's own development plan is fully consistent therewith. Paragraphs 17 and 18 of the Introductory Report provide:

"17. The publication of the National Planning Policy Framework (NPPF) on 27 th March 2012 has not altered the fundamental legal requirement under Section 38(6) of the Planning and Compulsory Purchase Act 2004 that decisions must be made in accordance with the Development Plan unless material considerations (such as the NPPF) indicate otherwise.

18. However, the NPPF makes clear at paragraphs 214 and 215 that the weight to be given to older development plans not prepared in accordance...

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