Gemma Watton v The Cornwall Council
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 04 October 2023 |
| Neutral Citation | [2023] EWHC 2436 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/345/2023 and CO/348/2023 |
and
and
[2023] EWHC 2436 (Admin)
Sir Duncan Ouseley
sitting as High Court Judge
Case No: CO/345/2023 and CO/348/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Ground KC and John Fitzsimons (instructed by Bates Wells) for Ms Watton
Richard Kimblin KC (instructed by Bates Wells) for Mr Cameron
Mr Sancho Brett (instructed by Cornwall Council Legal Services) for Cornwall Council
Hearing dates: 4–6 July 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 4 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Duncan Ouseley, sitting as a High Court Judge:
On 19 December 2022, Cornwall Council granted planning permission to the Atlantic View Crematorium Consortium for the construction of a crematorium, with associated buildings, access, landscaping and infrastructure on land to the west of the A39 in the open countryside at Poundstock, 3 miles or so south of Bude. As the name of the proposal suggests, it was to be within sight of the Atlantic Coast. The proposed crematorium would be one of the largest in the country, according to objectors, and an admittedly large one in the Council's language, in site area and building size. It was a controversial and unusual proposal.
Ms Watton, the Claimant in CO/345/2023 lives at Mill Barn, on higher ground, about 600m to the northwest of where the crematorium and associated buildings are proposed to be sited. She and her husband run a small holiday letting business there, with two of their three units facing south towards where the proposed buildings would be. She provided detailed, reasoned, well-informed letters of objection. Mr Cameron, the Claimant in CO/348/2023 lives at Fursewood with his wife, just at the very south of the development site, and on the south side of Widemouth Manor Road via which access would be gained from the A39 to the site. The site access itself is off the north side of Widemouth Manor Road, almost opposite their property. Mr Cameron, also objecting, instructed experts in relevant topics, notably planning, landscaping, and the need for and viability of the proposed crematorium; he presented their reports to the Council. This was a highly unusual degree of expert assistance for a local resident to deploy. Dr Knight, a local ecologist of distinction, also provided expert evidence in objection to the Council.
Mrs Watton and Mr Cameron bring separate claims; some of their grounds overlap but others are different; they adopt each other's submissions in the overlapping grounds. Their many grounds of challenge focus on the content and reasoning of the Officer's Report to the Council's Planning Committee which recommended that planning permission be granted. Permission was granted, subject to conditions, which are also challenged. The Interested Party, of uncertain legal status, did not appear; I shall call it the Consortium. One of its members owns the main part of the development site, i.e. the part which lies to the north of Widemouth Manor Road.
The decision-making context and process
Before dealing with the grounds of challenge, I should set the context and process for the decision.
The application raised a variety of issues, covered by a number of supporting documents. It was a full rather than outline application. By the time of the Committee meeting, the Council had received many objections, and letters of support too.
Mr Cameron submitted a report from Genesis Town Planning, to which was appended a separate expert's review of the Consortium's need case, with relevant appeal decisions, an expert's review of the Consortium's landscape and visual impact submission, and an expert's report on transport and highways. Mr and Mrs Cameron also wrote more personally in a letter of 14 November 2022, objecting to the amenity impact on their house of construction works, the use and appearance of the entrance to the crematorium site opposite their house, the traffic and lights they would experience, and to the widespread impact of the proposal on the countryside and on views from their home. They also raised what they claimed was their ownership of land upon which the bus-stop and shelter on the south side of Widemouth Manor Road was to be constructed.
Mrs Watton wrote several letters of objection: her 33 page principal letter of objection, in March 2021, addressed with detailed reasoning the need and viability arguments raised by the Consortium, and referred to a specific possible alternative site; her letter of 4 April 2021 again addressed need, this time by reference to the Competition and Markets Authority, (CMA), Report of 2020 on the Funerals Market, which had considered the assessment of quantitative and qualitative need for crematoria, and referred to crematoria appeal decisions of the fairly recent past. Her letter of 6 June 2021 pointed out that the development would have an adverse effect on their holiday business because of its impact on views from that accommodation, which she invited the Council to come and see. This issue was again taken up, in a letter of 17 December 2021, in which she complained that there had been no visual assessment from her premises, or one other holiday letting business, which, with hers, would be the most affected. She thought that this was because these were residential properties, albeit with holiday lettings as a tourist business. Mrs Watton returned to these issues in a letter of 15 March 2022. This took critical aim at a site search appraisal carried out by Kivells on behalf of the Consortium, and at the Consortium's continued refusal to make an assessment of the visual impact on the main living rooms at Mill Barn, which were on the first floor of their house, and from the similarly arranged holiday accommodation; the landscaping works proposed included large mounding and ambitious tree planting in an exposed location. She also raised concerns about bats, in agreement with Dr Knight, a Chartered Environmentalist and more besides, with a longstanding academic and practical interest in bats, pointing to the conflict between lighting for safety and security, and the need of bats for darkness in the hedgerows. Mrs Watton also emailed each member of the Committee on 12 November 2022, with her detailed 30 page critique of the Officer's Report to Committee.
Dr Knight had objected to the proposal in his letter of 31 March 2021, covering environmental grounds as well as criticising the inadequacy of the Consortium's Ecology report in relation to the protection of bats, which were a protected species. After the County Ecologist had commented on the Consortium's report, he wrote on 7 July 2021 pointing out that the further survey data she had sought was inadequate in view of three rare bat species previously recorded on the site, and the impact on them of disturbance to hedgerows.
On 21 July 2022, the Council's Strategic Planning Committee met for a technical briefing by Officers, to examine the need for the development. It was attended, not just by the Committee members, but also by the Consortium's representatives and planning advisers, and by representatives of Poundstock Parish Council, which had instructed Genesis Town Planning for this purpose, and the local Councillor.
The Officer's Report had been prepared for the Strategic Planning Committee, the Committee, in September 2022, but the meeting was postponed to 17 November 2022. The Chairman told the meeting that all the Committee members had read the very large amount of correspondence which they had been sent. The documents sent, including the reports from the Claimants, were not appended to any Officer Report, but were available for reading on the Council's website. The meeting, which lasted 2 hours, then proceeded with Ms Blacklock, the Principal Development Officer and principal author of the Report, presenting the Report, with visual aids. Mrs Watton, Mr Doyle, and a representative of the Genesis Planning, on behalf of Poundstock Parish Council, spoke against the application, as did a Councillor from another local Parish Council. They were asked questions by the Committee. Two were invited to speak on behalf of the Consortium, on need, and on landscape and visual impact; they too were asked questions. Members then spoke, officers responded to Members' questions and, following a full debate, the Committee voted by 7 votes to 4 in favour of granting planning permission. The Minutes record that “The reasons given by the Proposer for wishing to approve the application were as set out in the report and Committee update.”
I shall have to set out considerable parts of the Officer's Report, including the additional reports, when dealing with the various grounds of challenge. But I set the scene for them with a short description of its structure and content. On the front page, it states that the application is not a departure from the development plan. A four page summary of the issues concludes:
“It is considered by Officers that in this finely balanced case, the benefits of the proposal outweigh the identified harm and as such the application is recommended for conditional approval. All other matters raised have been taken into account… but none is considered of such significance as to outweigh the considerations that have led to the conclusion.”
The main body of the Report commences with a description of the 5.8 hectare site and its topography, sloping downhill to the North West where the crematorium building would be, in the lowest part of the site. The site is said to be...
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