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

Hearing date:3 December 2014

The main issue in this appeal is whether the creation of a cemetery is "inappropriate development" in the Green Belt, within the meaning of section 9 of the National Planning Policy Framework ("the NPPF"), with the consequence that planning permission should not be granted for it except in very special circumstances.

The issue arises in the following way. The second appellant, Westerleigh Group Limited ("Westerleigh"), made an application to the first appellant, Gedling Borough Council ("the Council"), for planning permission for the development of a crematorium and cemetery in an area of Green Belt known as the Lambley Dumbles, Nottinghamshire. The second respondent, AW Lymn The Family Funeral Service Limited ("Lymn"), made a competing application for the development of a crematorium, without an additional cemetery, in the same area. The first respondent, Mrs Jean Timmins, was an objector to both applications. The Council, acting through its Planning Committee, granted Westerleigh's application and refused Lymn's application. Mrs Timmins and Lymn brought judicial review proceedings to challenge the decision.

During the decision-making process and in the early stages of the judicial review proceedings, all concerned proceeded on the basis that the cemetery element of Westerleigh's scheme was not inappropriate development in the Green Belt. In September 2013, however, in the light of the judgment of the Administrative Court in Fordent Holdings Limited v Secretary of State for Communities and Local Government[2013] EWHC 2844, to which I will return, the grounds of claim were amended to include a ground that the Council erred in treating the application for the cemetery element as not inappropriate development in the Green Belt.

The judicial review claims were heard by Green J who, in a judgment handed down on 11 March 2014, allowed the claims on the inappropriate development ground and quashed the decision: see [2014] EWHC 654 (Admin). He granted permission to appeal on the basis that the issue is one of real importance.

The Council and Westerleigh have both pursued appeals. Their various grounds of appeal raise the following broad issues: (1) is the creation of a cemetery inappropriate development? (2) if so, was there a material error in the Council's treatment of the cemetery in Westerleigh's application, such as to justify quashing the decision?

The meaning of "development"

When considering the policies on inappropriate development in the Green Belt, it is helpful to keep in mind that "development" has the same meaning in this context as in the Town and Country Planning Act 1990 ("the 1990 Act").Section 55 of that Act provides in material part:

"55(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, 'development' means the carrying out of building, engineering, mining or other operations in, over or under land, or the making of any material change in the use of any buildings or other land."

In so far as Westerleigh's application related to a cemetery, the development for which permission was sought consisted in a material change of use of land, as distinct from the carrying out of building or other operations on land.

It should also be noted that "building" is defined by section 336 of the 1990 Act as including any structure or erection and any part of a building as so defined.

The present policy: the NPPF

Section 9 of the NPPF is headed "Protecting Green Belt land". It starts with some broad principles, in paragraphs 79–81:

"79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

80. Green Belt serves five purposes:

• to check the unrestricted sprawl of large built-up areas;

• to prevent neighbouring towns merging into one another;

• to assist in safeguarding the countryside from encroachment;

• to preserve the setting and special character of historic towns; and

• to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.

81. Once Green Belts have been defined, local planning authorities should plan positively to enhance the beneficial use of the Green Belt, such as looking for opportunities to provide access; to provide opportunities for outdoor sport and recreation; to retain and enhance landscapes, visual amenity and biodiversity; or to improve damaged and derelict land."

After paragraphs relating to the establishment of new Green Belts and the defining of Green Belt boundaries in local plans, one gets to the key provisions relating to inappropriate development, at paragraphs 87–90:

"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:

• buildings for agriculture and forestry;

• provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;

• the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

• the replacement of a building, provided the new building is in the same use and materially larger than the one it replaces;

• limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or

• limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.

90. Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:

• mineral extraction;

• engineering operations;

• local transport infrastructure which can demonstrate a requirement for a Green Belt location;

• the re-use of buildings provided that the buildings are of permanent and substantial construction; and

• development brought forward under a Community Right to Build Order."

The previous policy: PPG2

Section 9 of the NPPF replaced previous Government policy on the Green Belt, as set out in Planning Policy Guidance 2: Green belts ("PPG2"). A comparison between the two documents features large in the rival submissions in the present case.

PPG2 contained, in paragraphs 1.4–1.5, provisions broadly corresponding to those of paragraphs 79–80 of the NPPF concerning the fundamental aim of the Green Belt and the purposes it serves. Paragraphs 1.6–1.7 of PPG2 were similar to paragraph 81 of the NPPF, in that they referred to the positive role that Green Belts have to play in pursuing various objectives, including the provision of opportunities for outdoor sport and outdoor recreation near urban areas.

Paragraphs 3.1–3.2 of PPG2 contained the presumption against inappropriate development which is reflected in paragraphs 87–88 of the NPPF:

"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate.

3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should not be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations …."

The last sentence of paragraph 3.1 cross-referred to paragraphs 3.4, 3.8, 3.11 and 3.12 for inappropriate development. There were some differences in the structure and detailed...