ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Green
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
MR JUSTICE MITTING
| The Queen on the application of
(1) Mrs Jean Timmins
(2) AW Lymn The Family Funeral Service Limited
|- and -
|Gedling Borough Council
|- and -
|Westerleigh Group Limited
Stephen Sauvain QC and John Hunter (instructed by Hill Dickinson LLP) for Westerleigh Group Ltd
Paul Brown QC (instructed by Taylor & Emmett LLP and Clyde & Co LLP) for the Respondents
Hearing date : 3 December 2014
Crown Copyright ©
Lord Justice Richards :
The meaning of "development"
"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.
The present policy: the NPPF
"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."
"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
"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 ."
3.4 The construction of new buildings inside a Green Belt is inappropriate unless it is for the following purposes:
- agriculture and forestry
- essential facilities for outdoor sport and outdoor recreation, for cemeteries, and for other uses of land which preserve the openness of the Green Belt and which do not conflict with the purposes of including land in it (see paragraph 3.5 below);
- limited extension, alteration or replacement of existing dwellings ;
- limited infilling in existing villages and limited affordable housing for local community needs under development plan policies according with PPG3 ;
- limited infilling or redevelopment of major existing developed sites identified in adopted local plans .
3.5 Essential facilities (see second indent of paragraph 3.4) should be genuinely required for uses of land which preserve the openness of the Green Belt and do not conflict with the purposes of including land in it. Possible examples of such facilities include small changing rooms or unobtrusive spectator accommodation for outdoor sport, or small stables for outdoor sport and outdoor recreation.
Re-use of buildings
3.8 The re-use of buildings inside a Green Belt is not inappropriate development providing:
(a) it does not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it;
(b) strict control is exercised over the extension of re-used buildings, and over any associated uses of land surrounding the building which might conflict with the openness of the Green Belt and the purposes of including land in it ;
(c) the buildings are of permanent and substantial construction, and are capable of conversion without major or complete reconstruction; and
(d) the form, bulk and general design of the buildings are in keeping with their surroundings .
Mining operations, and other development
3.11 Minerals can be worked only where they are found. Their extraction is a temporary activity. Mineral extraction need not be inappropriate development: it need not conflict with the purposes of including land in Green Belts .
3.12 The statutory definition of development includes engineering and other operations, and the making of any material change in the use of land. The carrying out of such operations and the making of any material changes in the use of land are inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt. (Advice on material changes in the use of buildings is given in paragraph 3.8 above)."
The basis of the Council's decision to grant planning permission
"Both applications are for inappropriate development in the Green Belt. It should be noted that even if an application contains elements that on their own would be appropriate development (such as a cemetery), the Courts have held that the whole of the development is still to be regarded as inappropriate [footnote reference to Kemnal Manor Memorial Gardens Ltd v First Secretary of State  EWCA Civ 835].
Therefore in order to be granted planning permission, very special circumstances (VSC) have to be demonstrated which outweigh the general harm .
The very special circumstances referred to by Westerleigh in its planning statement are, in summary:-
- The defined and over-riding need for a new crematorium to serve this part of Nottinghamshire including the benefits of reduction in travel.
- The provision of a further 3 acres of burial land which will relieve pressure on cemetery facilities throughout the District ."
"Development within the Green Belt is inappropriate, unless it is for one of the purposes identified in paragraph 89 of the NPPF or Policy ENV26 of the Replacement Local Plan (RLP).
Policy ENV26 of the RLP states that within the Green Belt planning permission will be granted for appropriate development including, amongst other things, cemeteries .
This is reflected in paragraph 89 of the NPPF .
As stated in the NPPF, where development is deemed inappropriate, the application will need to demonstrate that very special circumstances exist which outweigh the harm to the Green Belt and any other harm caused. Crematoria are inappropriate development and 'very special circumstances' need to be demonstrated .
As such, it is considered that, given the very special circumstances that apply in this case, the proposed development would not unduly harm the openness of the Green Belt and consider that the proposal complies with Policy ENV26 of RLP and paragraphs 80, 87, 88 and 89 of the NPPF.
With regard to the proposed cemetery, the list of appropriate Green Belt uses within paragraph 89 of the NPPF and Policy ENV26 of the RLP includes cemeteries and, as such, this element of the proposal is acceptable in policy terms, if it were proposed on its own.
In my opinion, therefore, the proposed cemetery constitutes an appropriate form of development within the Green Belt and that, given the nature of the proposed use, its extent and the fact that it would be screened by existing and proposed hedgerows, it would preserve the openness of the Green Belt in this location and would not conflict with any of the purposes of including land within the Green Belt, in accordance with Policy ENV26 of the RLP and paragraphs 89 of the NPPF."
The judgment of Green J
"However that paragraph has not been replicated in the NPPF. This, in my view, was intentional and reflects a deliberate shift in policy towards a tightening of the circumstances in which development could occur within the Green Belt."
The first issue: whether the cemetery was inappropriate development on the proper interpretation of the NPPF
"16. If it had been the Government's intention to make such a significant change to Green Belt policy in the Framework one would have expected that there would have been a clear statement to that effect. Mr Katkowski accepts that there is no such statement. In my judgment, all of the indications are to the contrary:
(i) While there have been some detailed changes to Green Belt policy in the Framework, protecting the Green Belt remains one of the Core planning principles, the fundamental aim of Green Belt policy to prevent urban sprawl by keeping land open, the essential characteristics of Green Belts, and the five purposes that they serve, all remain unchanged. By contrast with paragraph 86 of the Framework, which does change the policy approach to the inclusion of villages within the Green Belt, paragraph 87 emphasises the continuation of previous Green Belt policy (in PPG2) in respect of inappropriate development: 'As with previous Green Belt policy'.
(ii) The Impact Assessment in respect of the Framework published by the Department for Communities and Local Government in July 2012 said that 'The government strongly supports the Green Belt and does not intend to change the central policy that inappropriate development in the Green Belt should not be allowed'. Under the sub-heading 'Policy Changes' the Impact Assessment said that 'Core Green Belt protection will remain in place'. It then identified four proposed 'minor changes to the detail of current policy' which would resolve technical issues, but not harm the key purpose of the Green Belt, 'as in all cases the test to preserve the openness and purposes of including land in the Green Belt will be maintained'. On the face of it, paragraphs 87 and 88 would appear to constitute 'central policy' which the Government did not intend to change.
(iii) That there was no intention to change this aspect of Green Belt policy is confirmed by the Inspector's statement in paragraph 19 of her decision: that the River Club approach to 'any other harm' in the balancing exercise [i.e. the approach under PPG2] is reflected in decisions by the Secretary of State since the publication of the Framework. We were not referred to any decision in which a different approach has been taken to 'any other harm' since the publication of the Framework.
17. I readily accept that these indications are not conclusive. The Framework means what it says, and not what the Secretary of State would like it to mean . However, if the Framework has effected this change in Green Belt policy it is clear that it has done so unintentionally. Mr Katkowski did not submit that there was any material difference between paragraphs 3.1 and 3.2 of PPG2 and paragraphs 87 and 88 of the Framework. He was right not to do so. The text of the policy has been reorganised but all of its essential characteristics remain the same ."
The second main issue: the materiality of the Council's erroneous interpretation of the NPPF
Lord Justice Tomlinson :
Mr Justice Mitting :
i) to look for opportunities to provide access;
ii) to provide opportunities for outdoor sport and recreation;
iii) to retain and enhance landscapes, visual amenity and biodiversity; and
iv) to improve damaged and derelict land. (My emphasis).
Fulfilment of these obligations will normally involve a change of use amounting to development for which planning consent is required. Commonplace examples will include putting land formerly in agricultural use to recreational use; the incorporation of damaged or derelict or agricultural land into a public or private park; and the conversion of a derelict quarry into a fishing or boating lake. It would be a misuse of language to describe such changes of use as amounting to, or occurring only in, "very special circumstances". If, therefore, paragraph 90, like paragraph 89, contains a closed list of changes of use which are "not inappropriate" the only means by which local planning authorities can fulfil the obligations imposed upon them by paragraph 81 is to water down the stringent test set out in paragraph 88.