Mrs Heini Wathen-Fayed v Secretary of State for Levelling Up, Housing and Communities

Hearing date: 20 March 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 10 th May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The granting of planning permission for a development in the Green Belt is almost inevitably going to excite controversy. The decision of a Planning Inspector appointed by the Secretary of State for Levelling Up, Housing and Communities (“the Secretary of State”), following a local Inquiry, to allow an appeal by the First Interested Party (“Horizon”) against the refusal by the District Planning Authority, the Second Interested Party (“Tandridge”) of its application for planning permission for such a development on land in the parish of Tandridge, near Oxted, Surrey, proved to be no exception.

The proposed development comprises a crematorium with a ceremony hall, memorial areas, a garden of remembrance, and associated parking and infrastructure. The development site comprises 4.5 hectares of open fields adjacent to the A25, previously used for grazing horses. Although not itself within an area designated of landscape importance, the Surrey Hills Area Of Outstanding Natural Beauty is to the north, and its elevated chalk escarpment can be seen from the section of the A25 fronting the site. The proposed crematorium would be on the eastern side of the site, served by a new access road, and both the crematorium and its operational areas would be set within the lower part of the site, with woodland planting screening the sides that would otherwise be visible from the surrounding roads. The western third of the site is to be kept free of development, and managed as meadow.

The site lies within an area designated as flood risk Zone 1 by the Environment Agency, meaning that annually it has a low (less than 1 in 1,000) probability of flooding from a river. However the flood risk zones are only concerned with the risk of flooding from rivers (or where relevant, the sea), so the fact that land falls within the lowest designated flood risk zone, whilst important, does not address the risk of flooding from other sources. A Level 1 Strategic Flood Risk Assessment (“SFRA”) report was prepared for Tandridge in December 2017. This identified a number of areas which were assessed as being at risk of groundwater flooding. The site lies in one such area.

In support of its planning application, Horizon submitted a site-specific flood risk assessment prepared on its behalf by a firm of consulting civil and structural engineers (“the Flood Risk Assessment”). They expressed the view that: “based on the review of available information, the site is not at risk of flooding. The proposals to develop the site will not have a significant impact on the current surface water regime”.

It was common ground before the Inspector that, under the policies in the National Planning Policy Framework, the most recent version of which was published on 20 July 2021, (“the Framework”), the proposed development was inappropriate development in the Green Belt, by definition harmful to it, and thus should not be approved except in very special circumstances. The Inspector found that the overall degree of harm in respect of Green Belt purposes to prevent encroachment and preserve openness would be moderate, and that there was also a moderate degree of further harm to the character and appearance of the area. However, all that harm was outweighed by the benefits that he identified, including the provision of facilities which would meet an essential, growing, and currently unfulfilled community need. He found that very special circumstances existed justifying the development, and that it satisfied both local Green Belt policy (DP10 in the Detailed Policies of the 2014 Tandridge District Local Plan) and the policy in the Framework.

The Inspector stated, in paragraph 8 of the Decision Letter, that “the main crematorium building comprises three pitched-roof sections linked by flat-roofed walkways. Located quite centrally within the site, its siting and design conform with the various laws and regulations governing crematoria”. He specifically referred to section 5 of the Cremation Act 1902 (“the 1902 Act”) at paragraph 34, when addressing local need for such a facility, commenting that the statutory requirement (in that section) that crematoria normally need to be located at least 200 yards away from the nearest dwelling and 50 yards away from a public highway “make a Green Belt location difficult to avoid in this part of Surrey, given the extent of its coverage outside of built-up areas.”

Subject to conditions, the Inspector found no substantiated objection to the proposal on grounds of flood risk. He granted planning permission subject to 18 conditions which included a requirement, in condition 6, that the development should not commence until details of the design of a surface water drainage scheme had been submitted to and approved in writing by Tandridge. The development would have to be carried out, and ground infiltration of surface water drainage thereafter would only be permitted, in accordance with the approved drainage scheme.

The appellant, Mrs Wathen-Fayed, is a local resident and a member of the Oxted and Limpsfield Residents Group, which had objected to the proposed development. Her claim for statutory review of the Inspector's decision under section 288 of the Town and Country Planning Act 1990 was dismissed by Timothy Mould KC (as he then was), sitting as a Deputy High Court Judge (“the Judge”). She now appeals against his order, dated 3 February 2023, on four grounds.

The first two grounds, which are inextricably linked, concern the proper construction, application and effect of the 1902 Act. In essence, it is contended that the proposed development could not be constructed on the site without contravening the restrictions in section 5, and that the Inspector and the Judge were wrong to find the contrary. The infringement of the statutory prohibition and its impact on the deliverability of the proposed development was a material consideration (insofar as it was capable of undermining the case for “very special circumstances”) which the Inspector failed to take into account: see London Historic Parks and Garden Trust v Minister of State for Housing and others[2022] EWHC 929 (Admin); [2022] JPL 1196, at paragraphs 107 to 111.

The third and fourth grounds, also inextricably linked, concern surface water flood risk. The appellant contends that the Inspector misinterpreted or failed to properly understand and apply the relevant policies of the Framework and relevant Planning Practice Guidance (“the PPG”). In the appellant's skeleton argument it is said that the “short point” is that:

“in the face of evidence of 11 alternative sites with less flood risk and recent information of flood risk on the site, to which the Inspector was bound to have regard, one way or another the Inspector fell into error because his decision was not an available option on a correct interpretation of the relevant national policy and guidance, given that evidence”.

Despite the reference to 11 alternative sites, the Judge found at [126] that there was no evidence that the objectors ever advanced the candidacy of any potential alternative site other than the one at Farleigh (referred to in paragraph 31 below) and it was not suggested to us that he was wrong about that. It is further contended that the Judge erred in upholding the Inspector's approach and/or in holding that the Inspector had not been “misled” by Horizon's Flood Risk Assessment.

This Court recently considered a very similar argument on the correct interpretation of the relevant policies and provisions of the Framework and the PPG relating to flood risk, when dismissing an appeal against the refusal by Lang J of a claim for judicial review of the grant of development consent for proposed onshore development associated with two nationally significant infrastructure projects at Friston in Suffolk: R (on the application of Substation Action Save East Suffolk Ltd) v Secretary of State for Energy Security and Net Zero[2024] EWCA Civ 12 (“ Substation Action”).

Despite the engaging and articulate way in which Mr Patrick Green KC (who did not appear in the court below) presented the case for the appellant, for the reasons set out in this judgment, I would dismiss this appeal. In summary:

(1) Although my reasons differ slightly from those of the Judge, I agree with his conclusion that the proposed development on this site would not inevitably contravene the requirements of the 1902 Act. The Inspector properly addressed that objection, and reached a decision that he was entitled to reach.

(2) So far as the risk of flooding from surface water is concerned, the judge and the Court of Appeal in Substation Action interpreted the...