Kemnal Manor Memorial Gardens Ltd v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith,MR JUSTICE KEITH |
| Judgment Date | 16 November 2004 |
| Neutral Citation | [2004] EWHC 2638 (Admin) |
| Docket Number | Case No: CO/2384/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2004 |
[2004] EWHC 2638 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Keith
Case No: CO/2384/2004
Mr Jonathan Clay (instructed by Brachers) for the Claimant
Mr Christiaan Zwart (instructed by the Treasury Solicitor) for the First Defendant
Mr Timothy Leader (Director of Legal & Democratic Services, London Borough of Bromley) for the Second Defendant
Introduction
The Claimant, Kemnal Manor Memorial Gardens Ltd. ("the developer"), wants to turn a site in the Metropolitan Green Belt into a cemetery and crematorium. It applied to the Second Defendant, the London Borough of Bromley ("Bromley"), for planning permission to do so. Bromley refused planning permission, and the developer appealed against that refusal to an inspector appointed by the First Defendant, the First Secretary of State. The inspector dismissed the appeal, and the developer now applies for the inspector's decision to be quashed, and for the appeal to be reconsidered by a different inspector. All references in this judgment to sections of an Act are references to sections of the Town and Country Planning Act 1990. The appeal to the inspector was under section 78, and the current application is under section 288.
The site
The site comprises about 30 hectares of land within the Metropolitan Green Belt. It is immediately south of the A20, which is the Sidcup by-pass, and is a dual carriageway at that point. That part of the A20 marks the northern boundary of Bromley with the London Borough of Bexley.
The northern part of the site is known as Flamingo Park. It is privately owned. It consists of a sports ground and playing fields. It has a large sports pavilion with a height equivalent to four storeys, together with five football pitches, a disused bowling green and disused tennis courts which are now used for parking. Access to Flamingo Park is direct from the A20. The playing fields are in active use at weekends and are used for car boot fairs about 14 times a year. The pavilion is also used for functions of various kinds.
The southern part of the site is much the larger part of the site. It was once the estate of Kemnal Manor, which has now been demolished. This part of the site is mostly overgrown woodland, parkland and ornamental grounds. The estate is within the Chislehurst Conservation Area, and part of the grounds of the estate is proposed to be designated as a Site of Importance for Nature Conservation. The estate is unmanaged, and is used for informal recreational purposes by local residents, even though there are no public rights of access apart from the footpath running along the southern boundary of the estate.
The developer's proposals
The developer's proposals would result in the northern part of the site no longer being used as a sports ground or playing fields. The pavilion would be demolished, and it would be replaced by a building to be used as a chapel and a crematorium. Its floor space would be slightly smaller than that of the pavilion, and the inspector thought that it would be set back about 80 metres from the A20 (though the illustrative drawings suggest that it would be no further from the A20 than the pavilion currently is). There would be a car park with a capacity of 140 vehicles (not 170 vehicles as the inspector thought), and a new access would be provided from the A20, allowing the existing access to be used to form a one-way system and an exit road. A Garden of Remembrance would be created on the site of the manor's original walled garden, and the remainder of the site (except for those areas where woodland is to be protected) would be used as burial grounds, including some woodland burial grounds.
The illustrative drawings show that the crematory with its six cremators would be in the basement of the building. Two chapels catering for both cremations and funerals would be on the ground floor with waiting and other rooms and some offices, and there would be other offices and function rooms on the first floor. No chimneystack is shown on the elevation plan, although the position of the flue shows that it would stand separately at the rear of the building. It would need to be a minimum of 12 metres high or 3.5 metres above the height of the building to comply with the Siting and Planning of Crematoria (LG1/232/36).
The nature of the developer's application for planning permission
The application made by the developer was a hybrid one. It was a full application for permission for the change of use of the site, but in other respects it was an application for outline planning permission only, i.e. "planning permission for the erection of a building, which is granted subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters" (Art. 1(2) of the Town and Country Planning (General Development Procedure) Order 1995 (SI 419/1995)). "Reserved matters" means "any of the following matters in respect of which details have not been given in the application, namely – (a) siting, (b) design, (c) external appearance, (d) means of access, (e) landscaping of the site" (ibid.). The developer's application was limited to siting and means of access. Design, external appearance and landscaping of the site were therefore reserved matters. That is why the drawings were illustrative only. They illustrated only the developer's current intentions. In short, the developer wanted to get the go-ahead for the building of a crematorium and chapels (which would be used for funerals as well as cremations) on the site at the location and with the means of access illustrated in the illustrative drawings, before having its more detailed plans for the design of the building, its external appearance and the landscaping of the site as a whole considered by Bromley.
Since "planning permission is required for the carrying out of any development of land" (section 57(1)), it is necessary to remind ourselves what constitutes development. Unless the context otherwise requires, section 55(1) provides that it means
"….. the carrying out of building, mining or other operations in, on, over and under land, or the making of any material change in the use of any buildings or other land."
The developer's application engaged both limbs of this definition: it involved the carrying out of building operations on the land, and the making of a material change in the use of the land.
Planning policies
Local planning policies were described by the inspector as follows:
"4. The development plan for the area is the London Borough of Bromley Unitary Development Plan (UDP) 1994. Policy G2 of the UDP aims to prevent inappropriate development in the Green Belt in line with Planning Policy Guidance Greenbelts (PPG). Policy L11 seeks to ensure that there is no loss of private recreational space and to encourage its community use. Policy L12 relates to the preservation of public playing fields. From the supporting text it can be inferred that these include those in private ownership that are in public use.
5. The London Plan (2004) is also an important material consideration in this case given that it is a new Plan that will become part of the development plan following the enactment of the Planning and Compulsory Purchase Bill and will form the base for the production of future development plans in London. Policy 3D.8 of this Plan has similar objectives to policy G2 of the UDP. Policy 3D.15 states that UDP policies should ensure that provision is made for London's burial needs on the principle of proximity to local communities. Neither the Bromley UDP nor the neighbouring UDPs currently contain policies providing for future burial space in their areas.
6. I have also been referred to the Second Deposit Draft of the Revised Bromley UDP. This emerging Plan is also a material consideration and I give it due weight in accordance with paragraph 48 of Planning Policy Guidance: General Policy and Principles (PPG1). Policy G1 is a similar Green Belt policy to policy G2 of the existing Plan. Policy L7 seeks to prevent the loss of sports grounds or playing fields, except where the Council's assessment of open space provision has revealed a surplus of playing fields. However, there have been objections to both of these policies in this Draft of the Plan and this limits the weight I can give to them."
The relevance of these policies is that the effect of sections 27, 54A and 70(2) is to require the local planning authority to determine an application for planning permission in accordance with its development plan and any alterations to it, unless material considerations indicate otherwise.
Relevant national policy is contained in Planning Policy Guidance 2: Green Belts issued in January 1995 ("PPG2") and Planning Policy Guidance 17: Planning for Open Spaces, Sport and Recreation issued in July 2002 ("PPG 17"). Paras. 1.4 and 1.5 of PPG2 set out the aims of the Green Belt and the purposes of including land in it:
"1.4 The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving...
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R (on the application of the Heath and Hampstead Society) v Camden LBC
...in the Green Belt and how much harm to the Green Belt a particular proposal will do (see e.g. per Keene LJ, Kemnal Manor Memorial Garden v Secretary of State [2005] JPL 1568 para 28). Certain categories of development, such as agricultural buildings, recreational facilities, and cemeteries,......