England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th December 2014

Mr Justice Wyn Williams:

Introduction

1. On 6 June 2013 the Third Defendant applied to the Second Defendant for planning permission for the construction of a new crematorium, associated car park, access road, garden of remembrance and the provision of a new car park for an existing cemetery upon an area of land (hereinafter referred to as the "Appeal Site") at Countesthorpe, Leicestershire. The planning application was supported by a number of detailed documents and drawings which included a planning statement, a transport assessment, a need assessment and a flood risk assessment.
2. The proposed development generated a good deal of local opposition. The Second Defendant received 58 individual letters of objection and 234 template letters of objection.
3. On 5 December 2013 a Planning Committee of the Second Defendant considered the application. In order to assist its deliberations the Committee had before it a detailed report from an officer or officers from its planning department. The report recommended that the Committee should grant conditional planning permission. Contrary to the recommendation, however, the Committee resolved to refuse permission.
4. The notice of refusal is dated 11 December 2013. The single reason for refusal was:-

"The proposed crematorium would represent inappropriate development in the countryside, contrary to policy CS18 of the Blaby District Core Strategy 2013 and policy C2 of the Blaby District Local Plan 1999, due to its impact on the character of the area and the highway network and because the area of the site, at 1.8 hectares, falls below the area suggested by paragraph 5 of the Siting and Planning of Crematoria – Department of The Environment Guidance Document 1978."

5. On 16 December 2013 the Third Defendant appealed against the refusal of planning permission. It did so by completing the standard planning appeal form and sending it to The Planning Inspectorate. In section G of the form it specified that it wished the appeal to be conducted by written representations. The appeal form was accompanied by all the relevant documentation required by the relevant Regulations.
6. In due course the appeal was determined under a procedure known as the written representations procedure. By a decision letter dated 26 March 2014 an Inspector duly appointed by the First Defendant allowed the appeal and granted conditional planning permission for the development sought.
7. In these proceedings, pursuant to section 288 of the Town and Country Planning Act 1990, (hereinafter referred to as "the Act" or "the 1990 Act") the Claimant seeks an order quashing the Inspector's decision. The Claimant is a company which operates a number of crematoria within the UK and was, at the time of the appeal, contemplating submitting a planning application for the development of a new crematorium on a site at Kilby, Leicestershire which lies approximately 1½ miles south east of the appeal site. The Claimant objected to the Third Defendant's planning application and also participated in the appeal as an interested person by submitting written representations to the Inspector.
8. Two grounds are relied upon in support of the Claimant's contention that the Inspector's decision should be quashed. First, it is said that the Inspector erred in law by determining the appeal under the written representations procedure. Second, the Claimant complains that the Inspector acted unlawfully in his consideration of preferable alternative sites for development of the type proposed.

Events following the refusal of planning permission and leading to the determination of the appeal

9. Following receipt of the appeal from the Third Defendant, the Planning Inspectorate issued a standard form questionnaire for completion by the Second Defendant. One of the questions asked of the Second Defendant was whether it considered that the appeal could be dealt with by the written representations procedure. Before the Second Defendant had replied, the Inspectorate sent it a letter dated 19 December 2013 in which it informed the Second Defendant that it considered that the written representations procedure was suitable for the appeal and that it intended to "determine this appeal by this procedure." On 23 December 2013 the Second Defendant completed the questionnaire and confirmed that it considered that the appeal was suitable for determination in this way. On the same date the Second Defendant's planning and economic development group manager wrote to the Claimant's solicitors as follows:-

"Memoria Limited has appealed to the Secretary of State against the Council's decision to refuse the planning application for the above development. The appeal will be determined following the submission of written representations. The procedure to be followed is set out in Part 2 of the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009.

We have forwarded all representations made to us in the application to the Planning Inspectorate and the appellant. These will be considered by the Inspector when determining the appeal."

The letter went on to inform the Claimant's solicitors that the Claimant was entitled to make written representations and that the same should be sent to the Inspectorate by 23 January 2014. The letter was received by the Claimant's solicitors on 8 January 2014 or, at least, it is date stamped on that day.

10. The Second Defendant must have written in similar terms on or about the same date to other known objectors. I say that since on 23 December 2013 the Chairman of Countesthorpe Parish Council sent an email to the Planning Inspectorate indicating his personal opposition to the development proposal and asking the Inspectorate to consider determining the appeal by way of a local inquiry.
11. Over the weeks which followed 23 December 2013 opposition to the Third Defendant's appeal gathered momentum. In early January the local MP, Andrew Robathan, wrote to the Planning Inspectorate in connection with the appeal. His letter is not in evidence before me but I do have the reply sent by the Chief Executive of the Planning Inspectorate. The letter is dated 9 January 2014 and the material parts read:-

"The appeal will be determined on the basis of written representations, which involves an exchange of written statements followed by a site visit, the purpose of which is to enable the appointed Inspector to see the site at first hand and assess the likely impact of the appeal proposal on the surrounding area before reaching a decision on the appeal proposals. In addition, written representation from interested parties will be taken fully into account by the appointed Inspector.

I will ensure that your constituents' representations are placed before the Inspector. As is customary, copies will be sent to the appellant and the local planning authority for their information and comment. You may wish to be aware that the deadline for accepting written comments from interested parties on this appeal is 23 January 2014……

We are aware from the representations received to date that there is strong local feeling that the appeal should be determined by way of a local inquiry. I can confirm that in accordance with procedure, the continuing suitability of the written representations procedure will be reviewed on receipt of the local planning authority's and the Appellant's statement at the six week stage."

12. On or about 16 January 2014 there was an exchange of emails between the Third Defendant's solicitor and the Planning Inspectorate about the process for the appeal. It seems likely that the Third Defendant's solicitor was enquiring whether there was a possibility that the mode of appeal would be changed in view of the public interest in the appeal. I say that because of the terms of the reply which was sent by the Inspectorate to the Third Defendant's solicitors. The reply is worth quoting in full:-

"As you are aware, the continuing suitability of a particular procedure by which an appeal is determined is one for the Inspectorate to take by applying the appropriate criteria. Whilst the level of public interest is one such consideration in determining or reconsidering the suitable procedure, this is one of many which can be found in Annex K of our guidance booklet, 'Procedural Guide: Planning Appeals – England', dated 3 October 2013.

The case has been reviewed by a Senior Inspector Manager. Consideration has been given to the level of public interest in this appeal, however, on the evidence currently before us, it has been decided (at this stage) that an oral event is not suitable. It is considered third party representations can appropriately be dealt with by the appointed Inspector without the need to ask questions and therefore the appeal should proceed to be determined through written representations.

Nevertheless, we will carry out a full procedural review at the five week stage (23 January 2014) when more information will be before us, and we will be fully aware of the case the Council intends to put forward. In the meantime I would seek to reassure that both you and the local planning authority will be given a full opportunity to comment, before any final decision to change the procedure on this appeal is taken.

I should advise that, whilst these views are based on the material and evidence currently before us, the appointed Inspector ultimately has the power to review the appropriateness of the written representation procedure and can invoke the provisions of section 319A of the Town and Country Planning Act 1990 (as amended) to arrange a hearing or inquiry."

13. On 20 January 2014 the Claimant's solicitors wrote a detailed letter to the Planning Inspectorate asking the Inspectorate to review its decision to determine the appeal by written representations and instead hold a local inquiry. The Claimant's solicitors received no reply.
14. On the same date Mr Adrian Clifford, acting on behalf of Countesthorpe Community Action Group and Countesthorpe Residents, sent the Inspectorate a petition signed by more than one thousand people. The heading to the petition complained that the appeal site was not fit for purpose, was inadequate in size, was situated on a dangerous bend and flooded regularly in winter months. The petition also called for a "dialogue" between neighbouring authorities so as to identify an appropriate site. In the following days a number of other persons signed the petition and their signatures were forwarded to the Inspectorate.
15. On 23 January 2014 the Claimant's solicitors wrote again; the substance of the letter set out the Claimant's detailed objections to the proposed development but the letter also made reference to the request for the appeal to be determined by way of a public inquiry. Again there was no reply.
16. On 29 January 2014 the Inspectorate wrote to the Second and Third Defendants indicating that it had decided that the appeal would proceed on the basis of written representations. That decision was justified on the grounds that the planning issues were not complex and that they could be understood from the appeal documents. It was asserted, too, that third party representations could be dealt with appropriately by the Inspector without the need to ask questions. The letter went on to reiterate that the Inspector, himself, had the power to review the appropriateness of whether the appeal should be conducted by way of written representations or at an inquiry. This letter was not copied to any of the objectors.
17. The Inspector issued his decision letter on 26 March 2014. At paragraph 3 he identified "procedural matters and main issues". The paragraph reads:-

"3. Many respondents requested that a public inquiry should be held in order to allow local organisations and residents to explain their opposition to the proposal. Having considered the issues and following my visit to the site I am satisfied that I have sufficient information to determine this appeal without prejudice to the interests of any party. The main issues in this case are the effect of the proposed development on the character and appearance of the area, the highway network and whether the proposal would be consistent with relevant guidance."

Statutory Provisions and Guidance

18. Section 319A of the 1990 Act provides:-

"(1). The Secretary of State must make a determination as to the procedure by which proceedings to which this section applies are to be considered.

(2). A determination under subsection 1 must provide for the proceedings to be considered in whichever of the following ways appears to the Secretary of State to be most appropriate – (a) at a local inquiry;

(b) at a hearing;

(c) on the basis of representations in writing.

(3). . ………

(4). A determination under subsection 1 may be varied by a subsequent determination under that subsection at any time before the proceedings are determined.

(5). The Secretary of State must notify the appellant or applicant (as the case may be) and the local planning authority of any determination made under sub section (1).

(6). The Secretary of State must publish the criteria that are to be applied in making determinations under subsection (1).

(7) This section applies to ………

b. an appeal under section 78 against a decision of a local planning authority in England;"

19. Parliament has made regulations which govern the written representations procedure; they are the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009. The First Defendant and the Second Defendant duly complied with all relevant regulations. In particular the Second Defendant gave proper notice to objectors as to (a) the appeal itself and (b) the method by which it was to be conducted.
20. In accordance with section 319A (6) the First Defendant has published criteria to be used when determining the procedure by which an appeal is to be decided. In October 2013 the First Defendant published criteria which were contained within the document referred to in the email of 16 January from the Planning Inspectorate – see paragraph 12 above. By the time of the Inspector's decision another document "Annex L" had been issued. Apparently yet further guidance was published shortly after the decision letter was issued. For all practical purposes there is no material difference between any of the documents published so far as this case is concerned and so I will quote from the document which was first in time and which was used probably by both the Planning Inspectorate and the Inspector when decisions were being made about the mode of appeal.

Annex K specifies that written representations "would be appropriate" if:

the planning issues raised……can be clearly understood from the appeal documents and a site inspection…..or

the issues are not complex and the Inspector is not likely to need to test the evidence by questioning or to clarify any other matters ……"

The guidance suggests that an inquiry "would be appropriate" if:-

there is a clearly explained need for the evidence to be tested through formal questioning by an advocate; or

the issues are complex; or

the appeal has generated substantial local interest to warrant an inquiry as opposed to dealing with a case by a hearing….

The guidance contains a number of footnotes. Footnote 15 provides as an example of when issues are complex the situation "where large amounts of highly technical data are likely to be provided in evidence". Footnote 16 refers to the situation where an appeal has generated substantial local interest. It reads:-

"Where the proposal has generated significant local interest a hearing or inquiry may need to be considered. In such circumstance the local planning authority should indicate which procedure it considers would be most appropriate taking account of the number of people likely to attend and participate at the event. We will take that advice into account in reaching the decision as to the appropriate procedure."

21. It should be noted, however, that the guidance begins with the following warning written in bold type as below:-

"The criteria for each procedure cannot be fully prescriptive or entirely determinative: they require judgment to be applied using commonsense. More than one criterion may apply."

Grounds of Challenge

Ground 1

22. At the heart of the Claimant's challenge is the contention that the Inspector (and before him, the Inspectorate) failed to act in accordance with the criteria published by the First Defendant by reference to which a decision about the mode of appeal should be made. Put more simply, the Claimant submits that the Inspector and/or Inspectorate failed to follow the guidance published by the First Defendant. That point is elucidated in two ways. First, it is said that no regard was paid to the published guidance and, in consequence, the Claimant was the victim of procedural unfairness. Second, it is argued that if account was taken of the guidance its application first by the Inspectorate and then by the Inspector was unreasonable and/or irrational.
23. Mr Whale opposes the claim on all fronts. At this stage, I should mention a specific point he makes to the effect that the various decisions of the Inspectorate relating to mode of appeal which preceded the Inspector's determination are not susceptible to challenge under section 288 of the 1990 Act. In making that submission he relies upon the decision of Lewis J in Connors and others v Secretary of State for Communities and Local Government and others [2014] EWHC 2358 (Admin) and in particular paragraph 135 of the judgment. I need not dwell on this aspect of the case for reasons which will become obvious although, in my view, Mr Whale is correct. However, even if I am wrong about that, the decisions of the Inspectorate are, nonetheless, clearly important context to the decision taken by the Inspector himself to determine the appeal under the written representations procedure. Inevitably, therefore, they require some analysis.
24. Mr Maurici QC submits that the Inspectorate and then the Inspector failed to follow the guidance in two distinct respects. First, he submits that the Third Defendant's appeal generated substantial local interest which was such as to warrant a local inquiry. Second, he submits that the planning issues raised on the appeal were complex; in consequence, there was a need for the evidence relating to those issues to be tested by formal questioning which could be done only at a local inquiry. Accordingly, he submits that the Inspectorate and then the Inspector erred in law and/or acted unfairly by determining that the appeal should be conducted by the written representations procedure.
25. In order to assess the substance of these submissions it is first necessary to consider whether or not, as a matter of fact, the Inspectorate and in turn the Inspector grappled with or had regard to the strength of the local opposition to the appeal and the complexity of the planning issues which had been identified as important to the resolution of the appeal when they made their respective decisions.
26. The first notification of the Inspectorate's view as to mode of appeal came in its letter of 19 December 2013. In that letter the Inspectorate notified the Second Defendant that it considered it appropriate that the appeal should be determined under the written representations procedure. The Inspectorate wrote:-

"We have applied the criteria and considered all representations received, including the Appellant's preferred choice."

The use of the phrase "applied the criteria" must have been intended to convey that the Inspectorate had applied Annex K, the criteria published in October 2013, when it made its decision.

27. On or about 16 January 2014 the exchange of emails took place to which I refer at paragraph 12 above. The reply on behalf of the Inspectorate makes it crystal clear that the decision then taken to conduct the appeal under the written representations procedure was taken in the knowledge of and with regard to the published criteria.
28. In their letter of 20 January 2014 the Claimant's solicitors made specific reference to Annex K and the published criteria. They suggested that the level of public interest in the appeal was such that an inquiry should be held and they also asserted that the planning issues with which the appeal was concerned could only be judged following "a full appraisal and testing of all the evidence". The Inspectorate did not reply to this letter. However on 29 January 2014 the Inspectorate wrote to the Second and Third Defendants. The substance of the letter is set out at paragraph 16 above. As it seems to me, the only explanation for the terms of the letter is that the Inspectorate had reached the conclusion that the planning issues involved in the appeal were not complex and that they could be resolved without the need for a local inquiry at which evidence was tested by cross-examination. In other words, the Inspectorate was asserting that the published criteria supported the view that the appeal could be dealt with, appropriately, by the written representations procedure and that there was no demonstrable need, relating to the planning issues raised, for the appeal to be determined after an inquiry.
29. In the light of this history it seems to me to be clear that the Inspectorate took account of the First Defendant's published criteria when making its decisions upon the mode of appeal in this case. Further it asserted that its decisions were supported by the criteria. There is no other sensible interpretation of the letters/email which it sent communicating its decisions to the principal parties.
30. It is against this background that I consider whether it is conceivable that the Inspector paid no regard to the published criteria when reaching his decision that he could determine the appeal by way of the written representations procedure. It is true that he made no express reference to the published criteria in the one paragraph of his decision letter which deals with this issue. Nonetheless, he made a specific reference to the fact that many objectors had requested that a public inquiry should be held and he concluded that as a consequence of his site visit and the written information he had received he had "sufficient information to determine the appeal without prejudice to the interests of any party". I have reached the clear conclusion that in the circumstances prevailing in this case it is inconceivable that the Inspector failed to consider the published criteria before determining that the appeal should be decided under the written representations procedure. I have reached the conclusion that he took account of the nature and/or complexity of the planning issues before him and the level of opposition to the appeal. In the light of all the documentation which had been provided to him and the decisions made by the Inspectorate no other conclusion is possible.
31. I should just repeat that the decisions taken by the Inspectorate about the mode of appeal were not communicated to the Claimant (or other objectors) save for the letter written to the local member of Parliament. It has not been suggested, however, that this lack of communication rendered the procedure unfair, no doubt for eminently sensible reasons.
32. That is not the end of the matter. Even if the Inspectorate and Inspector took account of the published criteria can it be said that their conclusions based upon the same were unreasonable or irrational or otherwise unfair?
33. I do not consider it possible to conclude that either the Inspectorate or the Inspector himself were unreasonable or irrational in their application of the published criteria. The criteria, themselves, contain a clear warning to the effect that they must be applied with common sense and they cannot be regarded as "fully prescriptive or entirely determinative". It must be a matter of planning judgment whether or not the planning issues raised on an appeal are to be regarded as complex, thereby requiring elucidation through a formal process of questioning and cross-examination or alternatively capable of being properly understood from the documentation supplied by the principal parties and other objectors and following an appropriate site visit.
34. It is clear that the Inspectorate received a number of quite detailed written representations from objectors (including the Claimant) about the planning issues in the case. Having scrutinised those representations with care it seems to me that the Inspectorate was fully entitled to conclude that it was reasonable to determine the appeal on the basis of those written representations, the representations made by the Second Defendant, the Claimant's appeal representations and all relevant documentation which had been generated at the planning application stage.
35. The Inspector identified the main planning issues raised on the appeal in paragraph 3 of his decision letter – see paragraph 17 above. Thereafter he analysed those issues in detail in his decision letter. There is no challenge to the substance of his conclusions on any of those issues. In the context of this case, at least, it seems to me that it would be somewhat unreal for me to conclude that notwithstanding the lack of challenge to the substance of the Inspector's conclusions on the main planning issues his decision that he could deal with those issues by consideration of the written representations and after an appropriate site visit was unreasonable, irrational or otherwise unfair.
36. I find myself quite unable to accede to the suggestion that the application of the published criteria, as they related to the planning issues in this case, either by the Inspectorate or the Inspector was unreasonable or irrational. It was for them to make a judgment about the complexity of the planning issues and the need for those issues to be elucidated at an inquiry and I can see no basis for the submission made that their appraisal was unreasonable or irrational. In reaching that conclusion I have paid close attention to the written analysis of the main planning issues which has been undertaken by Mr Maurici QC in his skeleton argument. I here refer to paragraphs 54 to 70 and, in particular, paragraph 61 to 69. However, no useful purpose would be served by me recording that analysis in detail or the response to the analysis undertaken by Mr Whale and Mr Ponter. I say that, essentially, because I accept the point made by Mr Whale, in particular, that the analysis comes very close to being an attempt to argue the planning merits of the development proposal albeit in the context of an argument about the appropriate mode of conducting the planning appeal.
37. I should deal discretely, but shortly, with the point made by the Claimant that the level of public opposition to the appeal was such that the Inspectorate or the Inspector should have determined that the appeal should be by way of an inquiry. I do not read the published criteria as making it mandatory to hold an inquiry simply because an appeal has generated a substantial degree of local interest. The criteria certainly allows for the possibility that an inquiry should be held in those circumstances but, to repeat, upon a sensible interpretation of the criteria there is no requirement that an inquiry be held once the conclusion is reached that an appeal has generated substantial local interest. Judgment has to be exercised and, in the context of this case, I can see no basis for saying that the judgment exercised by the Inspectorate and the Inspector was unreasonable or irrational. As I have said the Inspector referred expressly to the local objectors and their wish to present their case at a local inquiry but concluded expressly that the information before him together with his site visit provided a sufficient basis upon which to determine the appeal.
38. Finally, in relation to this ground of challenge, it is common ground that the First Defendant's duty to observe the rules of natural justice and/or to act fairly is not necessarily discharged by formal compliance with relevant guidance or procedural rules. Claims of unfairness always require close attention to the particular facts or circumstances under scrutiny. That said, I have considered all the relevant circumstances in this case with care and I see no reason to conclude that the Claimant has been the victim of unfairness. I have noted what was said both at first instance and on appeal in Ashley v The Secretary of State for Communities and Local Government and others [2012] EWCA Civ 559 but, in my judgment, there is nothing within those judgments which assists the Claimant to persuade me that the procedure adopted by the Inspector in this case was unfair. Insofar as ground 2 contains a complaint of procedural unfairness that is dealt with separately below.

Ground 2

39. The parties agree that the existence of one or more preferable alternative sites upon which a proposed development can take place is capable of being a material consideration leading to the refusal of an application for planning permission. They also agree that the principles governing the circumstances in which it would be appropriate to have regard to an alternative site or sites are summarised by Simon Brown J (as he then was) in Trust House Forte Hotels Limited –v- Secretary of State for the Environment (1986) 53 P&CR 293 at pages 299 – 230. The relevant parts of the judgment read:-

"(1) Land (irrespective of whether it is owned by the applicant for planning permission) may be developed in any way which is acceptable for planning purposes. The fact that other land exists (whether or not in the applicant's ownership) upon which the development would be yet more acceptable for planning purposes would not justify the refusal of planning permission upon the application site.

(2) Where, however, there are clear planning objections to the development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it.

(3) Instances of this type of case are developments, whether of national or regional importance, such as airports…..coalmining, petro-chemical plants, nuclear power stations and gypsy encampments……..Oliver LJ's judgment in Greater London Council –v- Secretary of State for the Environment and London Docklands Development Corporation and CableCross Projects Limited suggests a helpful although expressly not exhaustive approach to the problem of determining whether consideration of the alternative sites is material:

……comparability is appropriate generally to cases having the following characteristics: first of all, the presence of a clear public convenience, or advantage, in the proposal under consideration; secondly, the existence of inevitable adverse effects or disadvantages to the public or to some section of the public in the proposal; thirdly, the existence of an alternative site for the same project which would not have those effects, or would not have them to the same extent; and fourthly, a situation in which there can only be one permission granted for such development, or at least only a very limited number of permissions.

………….

(5) There may be cases where, even although they contain the characteristics referred to above, nevertheless it could properly be regarded as unnecessary to go into questions of comparability. This would be so particularly if the environmental impact was relatively slight and the planning objections were not especially strong; See Sir Brandon Meredith Rhys Williams –v- Secretary of State for Wales and others and Vale of Glamorgan Borough Council –v- Secretary of State for Wales and Sir Brandon Rhys-Williams, both of which concerned the siting of the same sewage treatment works….."

40. In R (J) A Child, –v- North Warwickshire BC [2001] EWCA Civ 315 Laws LJ expressed the view:-

"If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that consideration of alternative sites would only be relevant to a planning application in exceptional circumstances. Generally speaking - and I lay down no fixed rule, any more than did Oliver LJ or Simon Brown J – such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question."

41. The Inspector made reference to two specific alternative sites at paragraphs 19 and 20 of the decision letter. Those paragraphs read:-

"19. A crematorium has also been proposed at Great Glen in the neighbouring district, about six miles east of Countesthorpe. The Applicant was critical of the scheme at Countesthorpe because of omission in information supporting the original application and continues to have concerns regarding the size and character of the site, the adequacy of facilities and conflict with planning policy. Another site at Welford Road, Kilby, some 1½ miles southeast of the appeal site is being marketed by the county council. Representations on behalf of an interested party also point to the limitations of the Countesthorpe site and concerns with highway safety. I have addressed some of these matters previously and I am not persuaded that the modest size of the Countesthorpe site means it would be incapable of meeting the need for additional facilities which it is commonly accepted are required.

20. I appreciate that the alternative sites would serve a similar catchment area so that it would be unlikely that more than one facility was needed. However, the NPPF refers to the presumption in favour of sustainable development which means that planning permission should be granted unless the adverse impacts of development proposals would demonstrably outweigh the benefits. In these circumstances and subject to individual sites meeting relevant local and national planning policy requirements, I consider the market should determine which site or sites will be implemented."

At the time of the Inspector's decision the Great Glen site was under appeal – planning permission having been refused by the Second Defendant. On 8 May 2014 the same Inspector who determined the appeal in the instant case allowed the appeal in respect of the site at Great Glen. On 7 April 2014 the Claimant made an application for planning permission in respect of the land at Kilby which had been promoted by the County Council. The development sought was "change of use of land to form new Crematorium, Ancillary Book of Remembrance Building, floral tribute area, memorial areas, garden of remembrance and associated parking and infrastructure". The Second Defendant refused planning permission for that development and the Second Defendant's refusal is currently under appeal.

42. Mr Whale and Mr Ponter submit that there was no obligation upon the Inspector to consider alternative sites at all. The circumstances in which alternative should be considered are tightly drawn as the decisions in Trust House Forte and J (A Child) demonstrate. The Inspector did not conclude that the appeal proposal gave rise to conspicuous adverse effects and, in the absence of such a finding, there was no obligation upon him to consider alternatives.
43. In my judgment this submission is correct. There is no finding in the Inspector's decision letter to the effect that the appeal proposal gives rise to significant or conspicuous adverse effects yet is justified by reason of the need for the facility. In effect, the Inspector's reasoning was that planning permission should be granted because the alleged planning objections to the appeal proposals, when analysed, did not justify a refusal of permission. In those circumstances it seems to me to be correct that the Inspector was not obliged to consider alternatives.
44. Even if that analysis is flawed, however, I accept the submission of Mr Whale, in particular, that there was insufficient material before the Inspector to allow him to conclude that there was a more appropriate alternative site elsewhere. I develop this point in a somewhat different context in the paragraphs which follow.
45. As I read the skeleton of Mr Maurici QC he does not dispute this analysis. His point is that the Inspector deprived himself of the opportunity to investigate the strength of the planning objections to the appeal proposal and/or the merits of alternative sites by his decision to conduct the appeal by way of the written representations procedure which, in turn led to unfairness to the objectors. Essentially, therefore, Ground 2 becomes a refinement of the argument presented in relation to Ground 1.
46. In this context it is important to consider the nature and extent of the representations which were made about alternative sites in the context of the debate about the mode of appeal. Some of the objectors made express reference to the site at Great Glen and expressed a generalised view that this site was preferable to the appeal site. The petitions submitted by the Countesthorpe Community Action Group and Countesthorpe Residents referred to the possibility of a more appropriate site being identified by neighbouring local authorities through an undefined process but made no specific reference to any of the merits of any potential alternative site.
47. In the Claimant's solicitors letter of 20 January 2014 the reference to alternative sites was in the following terms:-

"You should also be aware that this is not the only site which has been identified to serve the needs for South Leicestershire. Harborough District Council recently refused an application by the Co-operative Group for planning permission for a crematorium, woodland burial site and cemetery on land at Great Glen. The applicant in that case has already stated publicly that it will be appealing the refusal. Since that development would serve the same identified need for additional crematorium facilities in South Leicestershire, it would be sensible for the two matters to be considered together at the same Inquiry.

Additionally, after an extensive appraisal exercise, Leicestershire County Council has also identified a further site at Kilby, in respect of which tender applications have recently been considered. It would be sensible in such a situation as this for the Inspector to hear evidence on all three sites and for there to be an opportunity to test that evidence given the reasons for refusal of the Memoria application."

48. In the letter of 23 January 2014 the Claimant's solicitors wrote again about the possibility of alternative sites:-

"In light of the long-recognised need for additional crematorium facilities to serve South Leicester and the surrounding area, Leicestershire County Council (LCC) itself carried out a detailed site assessment. This was based on detailed evidence-based assessments undertaken by LCC's Asset Management Working Group and the Corporate Property Steering Group, supported by advice from specialist consultants. The site selection process identified three potentially suitable sites; the appeal site was not one of those. After further detailed assessment LCC finally determined that a site at Kilby would provide the optimum location to meet all the identified needs and tenders to develop and operate a crematorium on the site have recently been invited.

The assessments carried out by LCC were far more detailed and extensive than those carried out by Memoria to identify a suitable site. The fact that the appeal site was not one of those shortlisted by LCC and is not that now identified by LCC as the optimum site for development is another reason why the appeal should be refused; the site at Kilby is far better placed to provide a development which would adequately meet the needs of South Leicestershire both now and in the future.

The Kilby site is much larger and would comfortably accommodate all the facilities required by the various faith communities in South Leicestershire which it would serve, including adequate space for the parking and manoeuvring of coaches. In addition, access could be taken direct from the A5199, thereby avoiding the need for funeral corteges to travel through the local villages to reach the site. This also in accordance with the Department of the Environment's 1978 Guidance "The Siting and Planning of Crematoria" which states at paragraph 9 that entrances and exits "… ….should be from or to local distributor roads", in contrast to the appeal site which takes its access from a local, unclassified, road.

It is Westerleigh Group's view that since a far superior site exists at Kilby which would better meet the identified needs for additional crematorium facilities in South Leicestershire, there is no requirement for the Memoria appeal to be granted consent."

49. The Claimant's representations were by far the most detailed about alternative sites. However, I do not consider that the Inspectorate and then the Inspector acted unfairly or unreasonably by refusing to hold an inquiry even when one takes these specific representations into account. The reality is that the issue of preferable alternative sites was canvassed by one objector in some detail; other objectors raised the possibility of alternatives without condescending to any detail. In these circumstances I am not prepared to conclude that the Inspector's refusal to order an inquiry but rather to proceed by way of written representations was unreasonable or unfair. Essentially this was an instinctive judgment to be made in the light of all the circumstances prevailing and, in my view, the Inspector's judgment was well within the generous ambit of discretion afforded to him.

Conclusion

50. I have reached the clear conclusion that this challenge must fail.
51. I propose to hand down this judgment at 9. 30am on Thursday 18 December. If an Order consequent upon my judgment can be agreed there will be no need for attendance by Counsel.