R Westerleigh Group Ltd v Aylesbury Vale District Council Chilterns Crematorium Joint Committee (Chiltern District Council; Wycombe District Council; Aylesbury Vale District Council) (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 30 March 2015 |
| Neutral Citation | [2015] EWHC 885 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5712/2014 |
| Date | 30 March 2015 |
[2015] EWHC 885 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Patterson DBE
Case No: CO/5712/2014
and
Alex Goodman (instructed by Clarke Willmott LLP) for the Claimant
Clare Parry (instructed by Aylesbury Vale District Council) for the Defendant
Hearing date: 18 March 2015
Introduction
This is a claim for judicial review of a planning permission granted by Aylesbury Vale District Council, the defendant, on 28 October 2014 for a crematorium including a single-storey building; remembrance gardens; 138 parking spaces and other associated development on a 3.7 hectare site on agricultural land in the open countryside to the north of Cane End Lane on the edge of Bierton north of Aylesbury.
The claimant objected to the planning application. It operates a number of crematoria in the United Kingdom, both on its own account and for local authorities, primarily through its associated management company Crematorium Management Limited. It was also an applicant for planning permission for another crematorium to the north of Aylesbury, on a site at Watermead. That application was recommended for approval, and is the subject of a resolution to approve by the defendant. The approval has been delayed due to a referral to the Secretary of State. During the course of writing this judgment the defendant has been notified that the application will not be called in. The Watermead application is thus with the defendant for the issue of a planning permission.
The interested party is a joint committee composed of members from the defendant, Chiltern District Council and Wycombe District Council. The local authorities joined together as applicants for the impugned planning permission.
The challenge is brought on the following grounds:
i) That the officers wrongly failed to take the planning application back to committee upon receipt of advice from Buckinghamshire County Council Archaeological Service that investigatory work should be undertaken prior to determination of the application;
ii) That there was a material error in the officer report which failed to advise the committee that the Watermead application site was an alternative site to the Bierton site that was under consideration;
iii) That the officer report erred, in that its advice in relation to great crested newts, as a European protected species, was unlawful.
Factual Background
The claimant and the defendant agree that there is a need for a crematorium in the north Aylesbury area. It is also agreed that the need is likely to be met by a single crematorium. It is unlikely that the area could support more than one.
The interested party's application was submitted on 17 April 2014 (the Bierton application) accompanied by supporting documents.
On 30 May 2014 the claimant submitted its planning application for the Watermead site (the Watermead application). That consists of a crematorium building including a chapel with entrance and floral tribute areas, office and administration, landscape garden and 82 parking spaces.
The claimant objected to the Bierton application on 6 June 2014. The objection letter highlighted that there was no need for two crematoria in the area and, therefore, it was important for the defendant to be satisfied that the approved crematorium would provide the best location to meet the needs of Aylesbury Vale. The objection was on the basis that the Bierton site was not the best site to meet the identified need for the following reasons:
i) The majority of the Bierton site was Grade 3A agricultural land and, therefore, classified as the best and most versatile agricultural land;
ii) The majority of the Bierton site is in open countryside which is protected by both the Aylesbury Vale District Local Plan (the Local Plan) and the National Planning Policy Framework (the NPPF);
iii) The Bierton site was a potential habitat for a European protected species, namely, great crested newts.
The claimant submitted that the Watermead site was preferable to meet the identified need because;
i) It was previously developed land. A range of planning policies including paragraph 111 of the NPPF supported the development of previously developed land in preference to areas of open countryside and/or Grade 3A agricultural land; and
ii) The Watermead site did not support any European protected species and was not of high environmental value.
An officer report was prepared for the defendant's Strategic Development Control committee. It noted that there were no policies in the Development Plan addressing crematoria. It affirmed the identified need for a crematorium and noted that previous work undertaken by the defendant had identified that a location to the north of the town was the preferred option.
The report summarised the core principles of the NPPF in paragraph 17 including the objective to encourage effective use of brownfield land. It then considered whether the proposal would constitute a sustainable form of development and evaluated any adverse impacts against the benefits. It noted that the proposed development was designed to minimise adverse landscape impact but that it was evident that the overall character of the site would change from that of agricultural fields as at present. It concluded that the design and layout of the development proposed would not be inappropriate to the local context or the countryside location of the site. Whilst the proposal would represent built development in the countryside, the design quality and sensitivity of the buildings, combined with the extensive landscaping of the spacious site in which they would be set indicated that the impact of the proposed built development on the surrounding countryside and local settlements would amount to an adverse impact to be attributed only moderate weight.
The report noted that the planning statement submitted with the application indicated that the site was selected following an extensive period of investigation of potential sites. The sequential process identified the application site as the most suitable site available.
Under the subheading 'Conserving and enhancing the natural environment' the officer report referred to paragraph 17 of the NPPF and the importance of planning authorities encouraging the effective use of land by reusing land that has been previously developed provided that it is not of high environmental value. It continued that although the site was not subject to any specific designation it lay within the countryside beyond the built-up area of Bierton. The proposals indicated that the development could be achieved without the loss of a significant extent of the existing landscape with the majority of existing hedgerows being retained. The assessment concluded that the scheme would have a beneficial contribution to the local landscape despite the acknowledged loss of open agricultural fields. "…However it would be an inevitable consequence of developing the green field site that there would be an adverse impact on the landscape character of the site itself." The conclusion of the section was that the harm to the character of the landscape would be largely limited to the site itself with little significant impact on the wider landscape given the scale and location of the development, the mitigation proposed and the limited extent to which public views of the site were obtained.
It continued that a section of the site (approximately 2 hectares) was classified Grade 3A agricultural land and hence the best and most versatile agricultural land. Paragraph 112 of the NPPF states that local planning authorities should take into account the economic and other benefits of the best and most agricultural land. The report went on, having set out the requirement for consultation on development that involved the loss of more than 20 hectares of the best and most versatile agricultural land, to conclude that on this topic the magnitude of the loss arising from the proposal was substantially smaller than the consultation threshold. It was considered that the development would only have minimal impact on the national stock of the best and most versatile land.
On ecology the report continued at paragraph 10.69:
"10.69. The removal of the small areas of hedgerow could result in the legislation protecting great crested newts and their habitats from being contravened in the absence of appropriate licensing and mitigation measures. This assessment has been made on the assumption that great crested newts are present within water bodies within a 500 m radius of the site. On-site mitigation and enhancement measures are proposed as part of the report to demonstrate how the status of great crested newts will not be compromised. The creation of ponds, woodland, shrub planting, hedgerow planting, species-rich grassland creation and hibernacula creation will improve the terrestrial habitats present on site in comparison with those that exist at present.
10.70. The report advises that a further survey for great crested newts will be undertaken in order to determine their current status on site to inform whether a licence will be required from Natural England to allow works to proceed lawfully. If a licence is required the...
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Watermead Parish Council v Aylesbury Vale District Council Crematoria Management Ltd (Interested Party)
...originally granted for that site in October 2014 having been quashed by the court in March 2015 ( R. (on the application of Westerleigh Group Ltd.) v Aylesbury Vale District Council [2015] EWHC 885 (Admin)). Another significant consideration here, Mr Elvin submitted, was that the parish co......