Dignity Funerals Ltd v Breckland District Council Thornalley Funeral Services Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 23 June 2017 |
| Neutral Citation | [2017] EWHC 1492 (Admin) |
| Docket Number | Case No: CO/497/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 June 2017 |
[2017] EWHC 1492 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Holgate
Case No: CO/497/2017
and
James Strachan QC and Philippa Jackson (instructed by Clyde & Co LLP) for the Claimant
Christopher Lockhart-Mummery QC and Zack Simons (instructed by the Solicitor to Breckland District Council) for the Defendant
Hearing dates: 7 th June 2017
Approved Judgment
Introduction
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:
(i) Relevant planning policies
(ii) The Officer's report to the Planning Committee
(iii) The grounds of challenge
(iv) General legal principles
(v) Ground 1
(vi) Ground 2
(vii) Ground 3
Relevant Planning Policies
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...
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...or character of the landscape.” (iv) Dignity Funerals Limited v. Breckland District Council v Thornalley Funeral Services Limited [2017] EWHC 1492 (Admin), [2017] All E.R. (D) 162 (Jun) at para. 68: “68 …. Conflict with one particular policy may be treated as having an adverse impact and y......