England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/03/2015

Mrs Justice Patterson:


 


Introduction

1. 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.
2. 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.
3. 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.
4. 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

5. 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.
6. The interested party's application was submitted on 17 April 2014 (the Bierton application) accompanied by supporting documents.
7. 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.
8. 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.

9. 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.

10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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 method statement accompanying the licence application will fully detail the mitigation measures that will ensure that the favourable conservation status of great crested newts is maintained.

Should evidence for the presence of European protected species be detected, it would be necessary to consider the development in relation to the "Three Tests" specified by the Habitats Directive and Conservation of Habitats and Species Regulations 2010 and as set out in the Natural England Advice Note: European Protected Species and the Planning Process in respect of protected species.

10.72. These three tests are:

Test 1: the consented operation must be for "preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment";

Test 2: there must be "no satisfactory alternative"; and

Test 3: the action authorised "will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range".

10.73. Test 1: A crematorium conveniently located to serve the people of the area is an acknowledged unmet need. The provision of this facility represents a social and economic benefit. In so far as the development may result in an adverse impact on protected species, it is considered that this impact could be significantly reduced by effective mitigation measures. The provision of a crematorium is considered to be in the public interest and, overall, beneficial to the environment.

10.74. Test 2: The need for a crematorium in the Aylesbury area is established. The selection of the site follows an extensive search for a suitable site. It is considered that there are no more satisfactory alternatives to the site proposed.

10.75. Test 3: Although the presence of protected species has not been established, the applicants are aware that if species are detected, a Natural England licence will be required to allow works to proceed lawfully, and that the licence is required to detail the mitigation measures that will ensure that the favourable conservation status of great crested newts is maintained.

10.76. The Natural England Guidance explains that there are always going to be alternatives to a proposal and in terms of licensing decisions it is for Natural England to determine that a reasonable level of effort has been expended in the search for alternative means of achieving the development whilst minimising the impact on European Protected Species and that a proportionate approach is taken. Natural England will also consider whether the LPA has appropriately discharged its duties in respect of the development proposal when determining whether a specific need is being addressed.

10.77. Paragraph 118 of the NPPF states when determining planning applications, local planning authorities should aim to conserve and enhance biodiversity by applying the following principles:

If significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated or, as a last resort, compensated for, then planning permission should be refused;

Development proposals where the primary objective is to conserve or enhance biodiversity should be permitted;

Opportunities to incorporate biodiversity in and around development should be encouraged;

Planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including ancient woodland and the loss of aged or veteran trees found outside ancient woodland, unless the need for, and benefits of, the development in that location clearly outweigh the loss."

16. The impact of the development on the historic environment was considered a neutral one. No consideration was given to archaeological issues.
17. The overall conclusion in part 12 of the report recommended approval.
18. On 9 July 2014 the committee resolved to delegate to its development manager authority to approve the Bierton application subject to a section 106 agreement and such conditions as she thought fit.
19. On 18 July 2014 a further ecological report was submitted which confirmed the presence of great crested newts at sites within 20 metres and 100 metres of the development and the likelihood that hedgerows within the site would afford them habitats.
20. On 12 August 2014 Buckinghamshire County Council's Place Services wrote to the defendant. The letter advised that the site was of potential archaeological significance because of Bronze Age to Iron Age pits and ditches and a medieval to nineteenth century farmstead. The letter emphasised that the applicant should be required to provide an archaeological assessment and an archaeological geophysical survey followed by trial trenching to assess the archaeological potential of the site prior to the determination of the application. The letter continued:

"Once sufficient information has been received the County Archaeological Service will be able to advise the local planning authority of the likely effect of the development on any archaeological or related historic interest and recommend appropriate action to determine the application. If heritage assets could be adversely affected by the development then the preferred option is normally for the applicant to preserve them within the development. Where substantial harm would be caused to the significance of a designated heritage asset then NPPF paragraph 133 will apply and planning permission should normally be refused."

21. On 16 September 2014 the delegated planning officer responsible for the application wrote to the author of the County Council's archaeological comments as follows:

"I refer to your comments on the proposed crematorium at Cane End Lane, Bierton, which we received on 12 August. This planning application was considered by this Council's Strategic Development Control Committee on 09 July; the proposal received support from the Committee, and the application was delegated to officers for approval subject to the completion of a Section 106 agreement. We are now close to the end of the process of drafting the agreement.

Your comments, received at such a late stage in the process came as a bit of a surprise as we have no record of any archaeological sensitivity on or near this site, and consequently had not carried out a consultation.

Your comments request archaeological investigation, including a geophysical survey and trial trenching, prior to the determination of the application. At this late stage I feel this would be hard to justify (although I do appreciate that having been on leave recently it has taken me a month or so to take this matter on board).

I understand you have spoken to James Corcoran of Haverstock Architects, who is acting as agent. He advises that you are able to agree to the requirement for investigation to be covered by a condition. Our standard condition in these cases is as follows:

'No development shall take place until a programme of archaeological work/archaeological building recording in accordance with a written scheme of investigation has been submitted by the applicant and approved in writing by the Local Planning Authority. The development shall only be implemented in accordance with the approved scheme. Please also see note no. 6 on the back of this notice. REASON: To record or safeguard any archaeological evidence that may be present at the site and to accord with AVDLP policy GP59 and advice in the NPPF.

I would be grateful if you could confirm in writing (email is fine) that the use of this condition is acceptable to you."

22. In response, by an email dated 19 September 2014, the senior archaeology planning officer with the County Council wrote:

"Being pragmatic a condition as proposed is acceptable in this case, but we would normally expect investigation to be undertaken prior to consent."

23. On 28 October 2014, following agreement of a section 106 obligation, conditional planning permission was granted. Condition 14 provides:

"No development shall take place until a written scheme of archaeological investigation has been submitted by the applicant and approved in writing by the local planning authority. Investigatory works required by the approved scheme shall be carried out as specified by the approved scheme subject to the requirements set out in condition 7…"

The reason was stated to be:

"To record or safeguard any archaeological evidence that may be present at the site and to accord with AVDLP policy GP59 and advice in the NPPF."

24. On 1 December 2014 an officer report was prepared in relation to the Watermead application which recommended approval subject to conditions and subject to the submission of amended details of the flood compensation scheme. As set out the resolution of the committee was to approve that application.
25. On 8 December 2014 the claimant commenced the claim for judicial review.
26. Permission to bring judicial review proceedings was granted by Dove J on 24 January 2014.

Ground One: Did the Response from Buckinghamshire County Council Archaeological Service Require the Planning Application to be Taken Back to Committee?

27. The claimant submits that the response from the County Archaeological Service was unforeseen and unexpected. Despite the opening words thanking the District Council for consulting them it seems as if there was no formal consultation. The response may have been due to the application appearing in the Aylesbury Vale District Council's weekly planning list. The opening sentence in the Buckinghamshire County Council's letter of 12 August 2014 thanking the defendant for consulting them did not reflect the actual position.
28. However, the letter is clear that Bronze Age to Iron Age pits and ditches have been recorded in an excavation close to the application site and might be relevant. Their requirement was for an archaeological assessment and archaeological geophysical survey followed by trial trenching to be carried out to assess the archaeological potential of the site prior to the determination of the application. It was only once results from those exercises had been received that the County Council was in a position to give proper advice on the application. The letter refers in general terms to the NPPF and paragraphs 128, 129, 132 and 133 in particular. That clear advice was never brought to the attention of the members.
29. There was an email exchange between the County Council and the officers of the District Council as set out. The upshot of that was that the County Council agreed to the standard archaeological condition in the following terms:

"No development shall take place until a program of archaeological work/archaeological building recording in accordance with a written scheme of investigation has been submitted by the applicant and approved in writing by the local planning authority. The development shall only be implemented in accordance with the approved scheme. Please see also note 6 on the back of this notice. Reason: to record and safeguard any archaeological evidence that may be present at the site and to accord with AVDLP policy GP59 and advice in the NPPF."

30. Although the Archaeological Service agreed to that draft condition the final condition 14 on the planning permission was different. It was not known whether the Archaeological Service would be content with condition 14 as imposed on the permission.
31. The Archaeological Service had been pragmatic as to what they would accept but ideally they wanted the application to go back to committee. It was a factor to be put into the balance.
32. In R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 the Court of Appeal had considered the circumstances in which after the passing of a resolution by a committee to grant planning permission it was incumbent upon the officer to whom delegation to approve had been given to take the planning application back. Jonathan Parker LJ giving the lead judgment said:

"121. In my judgment a consideration is "material", in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.

122. In my judgment, an authority's duty to "have regard to" material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind – albeit that the application was not specifically placed before it for reconsideration.

123. The matter cannot be left there, however, since it is necessary to consider what is the position where a material consideration arises for the first time immediately before the delegated officer signs the decision notice.

124. At one extreme, it cannot be a sensible interpretation of section 70(2) to conclude that an authority is in breach of duty in failing to have regard to a material consideration the existence of which it (or its officers) did not discover or anticipate, and could not reasonably have discovered or anticipated, prior to the issue of the decision notice. So there has to be some practical flexibility in excluding from the duty material considerations to which the authority did not and could not have regard prior to the issue of the decision notice.

125. On the other hand, where the delegated officer who is about to sign the decision notice becomes aware (or ought reasonably to have become aware) of a new material consideration, section 70(2) requires that the authority have regard to that consideration before finally determining the application. In such a situation, therefore, the authority of the delegated officer must be such as to require him to refer the matter back to committee for reconsideration in the light of the new consideration. If he fails to do so, the authority will be in breach of its statutory duty.

126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a "material consideration" for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision."

33. The claimant submits that there was an error in law in failing to take the application back to committee as the issue raised by the Archaeological Service was material to the determination of the application. The committee were not aware of the new factor. The question was whether the officer could confidently say that the committee would reach the same decision. It was a matter for the committee to grapple with.
34. The claimant disputes the defendant's contention that the County Council's pragmatic concession that the proposed condition was acceptable is a complete answer to this ground. That is because, first, the concession appears to have been based on the defendant officer's assertion that a delay of two and a half months between the resolution to grant permission and the defendant's email would make it hard to justify a request for archaeological investigation before the determination of the application. Second, the imposition of condition 14 did not achieve the objective sought by the County Council and raised the real possibility that the proposed development would cause substantial harm to or loss of significance of a designated heritage asset in breach of the NPPF. Absent an archaeological investigation prior to the determination of the application it is impossible to know whether the heritage assets on site are of limited, moderate or substantial significance. Condition 14 simply requires investigatory works to be carried out but thereafter imposes no obligation on the developer in relation to what should be done in the light of those investigations. If the committee had been informed of the County Council's comments then it is possible, if not likely, that it would have deferred a decision on permission pending the submission of an archaeological assessment notwithstanding the pragmatic concession of the County Council's officer. Accordingly the claimant submits that the defendant unlawfully failed to take into account a material consideration in determining the Bierton application.
35. The defendant submits that the notification from the County Council Archaeological Service came out of the blue. The agent for the applicants spoke to the Archaeological Service who was then spoken to by the defendant. Whether the Service could accept a condition was explored. The County Council could have said that a condition was not sufficient but did not do so.
36. There is a difference in wording between the draft condition discussed with the Archaeological Service and condition 14. However, the difference in wording is such as to make no difference in achieving the objective of the condition.
37. In the case of R (Dry) v West Oxfordshire District Council [2011] 1 P&CR 16 the Court of Appeal emphasised that paragraph 126 of Kides is only guidance as to what is advisable "erring on the side of caution" and the guidance must be applied "with common sense and with regard to the particular facts of the case."
38. In R (Marton-cum-Grafton Parish Council) v North Yorkshire County Council [2014] Env LR 10 the Court addressed the issue as follows:

"13. My task would therefore appear to be to analyse the factual information which is relied on by the Claimant and to decide whether it is a material consideration in accordance with the test set out in paragraph 121 of Kides set out above. I remind myself that this is an objective test and the views of the decision maker are not relevant. This is an issue of law for me to decide and is not a rationality challenge to the decision of the decision maker not to refer the consideration to the planning authority. If I find the information is a material consideration I then have to consider whether the officers or the planning authority discovered or anticipated the consideration or whether they ought reasonably to have done pursuant to paragraph 124 of Kides. Only if they did or could have known of the matter of concern do I then address the threefold test set out in paragraph 126 of Kides. The relevance of Dry it seems to me is to urge the application of common sense to this exercise and not to place too heavy an emphasis on the first part of paragraph 126 which is guidance to planning officers as to what is advisable rather than a strict legal test."

39. On the facts of this case it is clear that the statutory consultee was satisfied with the proposed condition. Inevitably the committee would have applied that condition. In the circumstances, there can be no requirement to return the matter to committee where the County Council were satisfied with the imposition of the condition.
40. Condition 14 requires a scheme to be produced so that it resolved the County Council's concerns by ensuring that there was archaeological investigation prior to work commencing on site. Reference to paragraphs 132 and 133 of the NPPF do not assist as they refer to designated heritage assets and there are no designated heritage assets on site or affected by the development.
41. In the circumstances, it cannot be said that the response from the County Council was a material consideration within the meaning of paragraph 121 of Kides in that it would tip the balance.

Discussion and Conclusions

42. The response from the Archaeological Service of the County Council could not reasonably have been anticipated as they were not a formal consultee on the planning application. The fact that it was asking for investigation prior to determination of the application, had that remained the position, could have amounted to a material consideration. But the fact of the matter is that the position did not so remain. The County Council were content with the condition proposed to be imposed on the planning permission and which they saw. Whether that was for pragmatic reasons or otherwise does not matter.
43. The condition suggested was Grampian in nature, prohibiting development until a programme of work in accordance with a written scheme of investigation had been approved. Development was then to be implemented in accordance with the approved scheme. The County Council concession in the light of such a condition meant that their response was not one that meant that planning permission should be considered for refusal if there was such a condition imposed on the planning permission.
44. Once the County Council made the concession that their position could, in the circumstances of the case, be dealt with by the proposed condition it is clear that their response would not tip the balance in any way let alone some way in relation to the decision as to whether to grant planning permission. The response was not then a material consideration. The condition actually imposed, condition 14, is different in wording to that agreed by the County Council. However, first, it ensured that no development was to take place until a scheme for archaeological investigation had been submitted to and approved by the local planning authority. Second, investigatory works were to be carried out as specified by the approved scheme: that could then relate to the programme of development. Although there is a difference in wording between condition 14 and that agreed to by the County Council, in my judgment, there is no difference in what the condition achieves, namely, archaeological works to be carried out only in accordance with an approved scheme. The extent of the works is for consideration within the scheme that would eventually be approved.
45. It follows, therefore, that the final position reached by the County Council was such that its response did not amount to a new material consideration within the meaning of paragraph 121 of Kides that required planning permission to be taken back to committee.
46. The references to the NPPF do not make a non-material consideration into a material consideration. In short they do not take this matter any further.
47. This ground fails.

Ground Two (a): Failure to Consider Whether the Claimant's Application Might Reduce the Need for the Interested Party's Application

Ground Two (b): Whether the Officer Report Took the Incorrect Approach in Relation to the Three Tests Arising in Relation to the Protected Species of Great Crested Newts

48. The claimant submitted that the committee were entitled to consider in the determination of the Bierton application the fact of the Watermead site. The consequence of their failing to do so meant that there was an omission to take into account a material consideration and that their reasoning was inadequate in a public law sense and/or was irrational.
49. Provided the claimant established that the committee were entitled to consider the Watermead site the advice that was given by the officers was such that it inhibited their consideration. The issue of alternative sites was relevant for both ground two (a) and ground two (b).
50. The case of Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin) dealt with alternative sites. Carnwath LJ considered the law from [14]. He said:

"14. The cases reveal a long-running debate among planning lawyers (going back at least to Rhodes v Minister of Housing and Local Government [1963] 1 All ER 300) as to the relevance of alternative sites to the consideration of individual planning applications. There have been numerous examples of attempts to overturn decisions on the grounds that the decision-maker has refused permission on one site by reference to the merits of another; or alternatively has granted permission without regard to the merits of another. There has also been some debate as to how far, if alternative sites are deemed relevant at all, it is necessary for those relying on the argument to identify specific alternatives.

15. It is not surprising that such challenges have generally failed. Common sense suggests that alternatives may or may not be relevant depending on the nature and circumstances of the project, including its public importance and the degree of the planning objections to any proposed site. The evaluation of such factors will normally be a matter of planning judgment for the decision-maker, involving no issue of law.

16. A useful starting-point is the judgment of Simon Brown J (as he then was) in Trust House Forte Ltd v Secretary of State (1986) 53 P&CR 293, where he sought to summarise the effect of the cases:

"There has been a growing body of case law upon the question when it is necessary or at least permissible to have regard to the possibility of meeting a recognised need elsewhere than upon the appeal site…. These authorities in my judgment establish the following principles:

(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 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… coal mining, petro-chemical plants, nuclear power stations and gypsy encampments… Oliver LJ's judgment in Greater London Council v Secretary of State for the Environment [52 P&CR 158] suggests a helpful though 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.'

(4) In contrast to the situations envisaged above are cases where development permission is being sought for dwelling houses, offices … and superstores …

(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…" (emphasis added)

17. I have highlighted the words "relevant or at least permissible" and "relevant and indeed necessary", because they signal an important distinction, insufficiently recognised in some of the submissions before me. It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it.

18. For the former category the underlying principles are obvious. It is trite and long-established law that the range of potentially relevant planning issues is very wide (Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281); and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision-maker (Tesco Stores Ltd v Secretary of State [1995] 1WLR 759, 780). On the other hand, to hold that a decision-maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered) him to do so."

51. The nub of the point is whether the defendant was entitled or required to have regard to alternative sites. A number of factors are relevant to that issue:

i) Whether there was a need for the development;

ii) Whether there were clear planning objections, which there were here, in that the development involved the taking of the best and most versatile agricultural land.

52. The claimant relied upon the case of Secretary of State for the Environment v Edwards [1995] 69 P&CR 607 where Roch LJ, in giving judgment on alternative sites in the context of rival applications for motorway service areas, referred back to a list of criteria for the materiality of the relevant merits of an application site and other sites as suggested by Oliver LJ (as he then was) in the case of Greater London Council v Secretary of State for the Environment & London Docklands Development Co [1986] 52 P&CR 158 where he said:

"There can be no dispute, in my view, as to the existence of a third and fourth in Oliver LJ's list: the existence of an alternative site for the same project which might have a lesser adverse effect on the countryside, and a situation in which there could only be one permission, or alternatively a limited number of permissions for such development."

In that case a crucial factor was the fact that the other alternative sites had also been the subject of planning applications and were subject to appeals to the Secretary of State. Those other sites were material planning considerations in the circumstances of the case account of which would have created a real possibility that the inspector's decision would have been different.

53. The claimant accepts that there is no specific class of objection which has been considered by the courts to give rise to alternative sites being relevant. However, it is contended that there are a number of additional factors in play here which do. They are:

i) A clear public advantage in the claimant's proposal;

ii) The maturity and realism of a proposal on the alternative site;

iii) The need which the application site is able to meet across a particular catchment;

iv) Where there is national or local guidance that is a factor which can lend emphasis to materiality.

Here paragraph 118 of the NPPF refers to alternative sites. Natural England Guidance on European Protected Species and the Planning Process refers to key principles which are applicable to each licence application including the fact that there are no satisfactory alternatives to delivering or meeting the need in the way proposed.

54. Here there are clear planning objections as a result of the use of the best and most versatile land, encroachment into the countryside and adverse impact on the ecological interest of the great crested newts. There is also a public advantage to the claimant's proposal in meeting the acknowledged need. The alternative site at Watermead is without the disadvantages acknowledged in the officer report on the Bierton site. The Watermead site is subject of an extant planning application and was acceptable in planning terms. The identified need could be met by either of the two sites to the north of Aylesbury. There was guidance in the NPPF and the Natural England advice which enjoined consideration of alternative sites. The defendant was, therefore, entitled to have regard to that and, if necessary, was compelled to do so.
55. The officer report acknowledged that a second application for a crematorium had been submitted relating to a site adjacent to Watermead but did not advise members as to whether they were entitled to have regard to it as an alternative site. In contrast, it advised that each individual planning application had to be determined on its own merits. That was a material error of law.
56. The defendant submits that it is wrong to elide the issues arising under ground two (a) and ground two (b). They should be considered separately. In relation to alternatives, under ground two (b) the decision maker had a very limited role. It was to have regard to the habitats regulations and assess the likelihood of a licence being granted by Natural England. That was very different from ground two (a) where there was a more general concern about need being met on an alternative site. Each ground had its own case law.
57. In the committee report the matters are dealt with separately. Paragraphs 10.72 to 10.76 deal with the tests in relation to European protected species and 10.103 dealt with the broader planning point as to whether it was appropriate for an application to be refused on the basis that there is a current proposal for a similar development on an alternative site.

Ground Two (a)

58. As the Development Plan was out of date the claimant submits that the question in the officer report was whether the adverse effects of the development outweighed its benefits. Such an approach followed that in the NPPF. If the development was in line with national policy then planning permission should be granted.
59. On the impact of the development on the countryside the report had concluded:

"It is considered that the design and layout of the development proposed would not be inappropriate to the local context or the countryside location of the site."

As to the impact of the development on landscape the report said:

"It is considered that the wider impact on views from the surrounding areas would be mitigated to a degree that would render the impacts acceptable in an overall consideration of the proposal."

60. On biodiversity the report concluded:

"It is considered that the three tests have been appropriately applied. Subject to the measures detailed in the report, which can be enforced by condition, it is considered that the development would result in no detriment to protected species and habitats, and that a net gain in biodiversity value would be secured." [10.80]

Overall in terms of conserving and enhancing the natural environment the impact was considered to be adverse to which only moderate weight could be attached.

61. Those impacts do not significantly or demonstrably outweigh the benefits of the proposal which therefore is compliant with NPPF at paragraph 17. All of that is significant in considering whether an alternative site is a material consideration.
62. The issue as to whether a site is a material consideration is a matter of planning judgement: see Derbyshire Dales at [15].
63. There is nothing which compelled the requirement of alternative sites (see paragraph 18) nor is there "some special factor which would mean that alternative sites would properly be taken into account": see R (Botley Parish Action Group) v Eastleigh Borough Council [2014] EWHC 4388 (Admin) at [27].

Ground Two (b)

64. As set out the defendant submits that the role of the local planning authority is very limited. It is not required to carry out its own assessment. The question for the defendant was: is it likely that Natural England would refuse a licence? To answer that meant following the advice in the Natural England publication. So long as the local planning authority followed Natural England's guidance in considering the three tests they had complied with their obligation to "have regard" to the interests of the European protected species.
65. That is precisely what the defendant had done: see paragraphs 10.72 to 10.76 above. There is nothing which compels the defendant to carry out its own assessment. Indeed, the case of R (Morge) v Hampshire County Council [2011] UKSC 2 says that is not to be done. If the claimant is right, and their site is a reasonable alternative then that will be considered during the licensing process.

Discussion and Conclusions

Approach

66. It is necessary to start in the consideration of this ground with an analysis of whether there is in fact one ground with two parts as the claimant contends or two separate grounds as the defendant contends. That is important because the approach to be taken to the analysis of what has been referred to as ground two (a) and ground two (b) needs to be clear from the outset.
67. Ground two (a) raises the issue of alternative sites in a broad planning sense. The claimant contends that because of strong planning objections the agreed position on need, namely that there should be only one crematorium means that alternative sites are a material consideration. The situation is distinct from a normal planning application which would be determined on its own merits.
68. Ground two (b) raises the issue of alternative sites in a much narrower context, namely, of dealing with the European protected species of great crested newts. The requirement there is for the decision maker to be aware of the decision of the Supreme Court in Morge and the guidance of English Nature and to apply them.
69. Although both grounds do raise alternative site issues they are in different contexts. Ground two (b) is in the context of a European protected species with the particular concerns and issues that need to be addressed there. Ground two (a) is in the context of all the material considerations that come into play in a planning application. Provided something is material there is no constraint as to what can be taken into account by the decision maker. The jurisprudence on each ground is separate. In my judgment so are the issues which arise because of the different contexts of each ground which I have set out above. I therefore propose to deal with each ground separately which I now do.

Ground Two (a): Was There a Material Error in the Advice to Members on the Consideration of the Watermead Application?

70. Members were advised in paragraph 10.103 of the officer report to consider each application independently and on its own merits.
71. That reflects the normal planning position which is, as Simon Brown J (as he then was) said in Trust House Forte (supra) the fact that other land exists upon which the development would be more acceptable for planning purposes would not justify the refusal of planning permission upon the application site. The claimant goes on to submit that there are clear planning objections to the development on the Bierton site. The claimant relies upon the effect upon the open countryside and the taking of best and most versatile land. However, in relation to the first, the conclusion as to the impact of the development is that it will have a moderate effect. In relation to the second, 2 hectares of the best and most versatile agricultural land would be taken up with the development which is an amount which is considerably below the 20 hectare threshold for consultation with the Department of Environment, Food and Rural Affairs. Whilst both are objections to development they are not of the order contemplated in Trust House Forte and, in my judgment, they would come within the description of planning objections not being especially strong.
72. In those circumstances, absent any other special circumstance, the issue of alternative sites which inevitably will be judged on a fact specific basis will not arise. This is not a development proposal which is bound to have significant adverse effects.
73. It needs to be recalled that in Derbyshire Dales Carnwath LJ held that to hold that a decision maker had erred in failing to have regard to alternative sites it was necessary to find some legal principle that compelled (not merely empowered) him to do so. There is no statutory or policy requirement to that effect here.
74. The claimant refers to, and relies upon, the case of Bovale v Secretary of State for Communities and Local Government [2008] EWHC 2538 (Admin). That was a case where there was a clear conflict with policies in the development plan relating to employment, land and affordable housing. The inspector there was required to dismiss the appeal unless he concluded that what was said by the claimant to be the advantages of the proposal outweighed those objections. Sullivan J (as he then was) held that although the degree of conflict with development plan policies and the seriousness of any conflict may well vary from case to case, under the plan led system there can be no doubt that conflict with the development plan is capable of amounting to a clear planning objection to use the phraseology adopted in the Trust House Forte case. He emphasised that each case would turn on its own particular facts.
75. Here, there is no comparable conflict with the Development Plan. The Aylesbury Vale District Local Plan had no specific policies dealing with crematoria. It did have other general policies which were considered consistent with the NPPF. The policies in the emerging Vale of Aylesbury Plan Strategy had been withdrawn after a recommendation from an independent planning inspector. There is, therefore, no up to date Development Plan policy in respect of which it is contended the development proposed is in conflict.
76. That then leaves the position with regard to need for a crematorium in North Aylesbury. That is something which both sites can fulfil. Unusual though it may be to speak about need in the world of crematoria the advice given in the officer report to the committee that it was not the role of the planning system to inhibit competition is correct.
77. In all of the circumstances I do not see any material error in the officer report in its advice to members on the consideration of the Bierton application about the relevance of the Watermead site. As a result this ground fails.

Ground Two (b): Was there a Material Error in Law in Failing to Consider the Watermead Application in Relation to Ecological Considerations?

78. Great crested newts are a European protected species. They are defined as such by regulation 40 in schedule 2 of the Conservation of Habitats and Species Regulations 2010 (the Regulations) which implement into domestic law the Habitats Directive. Under the Regulations it is an offence to destroy or damage the resting place of a European protected species (regulation 41(1)(d)).
79. That works would contravene regulation 41 does not necessarily prevent them from taking place. It is possible to carry out works pursuant to a licence granted under regulation 53. Under regulation 53(9) the relevant licensing body must not grant a licence under this regulation unless they are satisfied:

a) That there is no satisfactory alternative;

b) That the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.

80. The relevant domestic licensing body is Natural England.
81. The role of a local planning authority in relation to European protected species licensing is set out in regulation 9(3) which requires, "a competent authority in exercising any of their functions must have regard to the requirements of the Directive so far as they may be affected by the exercise of those functions."
82. The term "competent authority" is defined in regulation 7(1) to include local planning authorities.
83. In Morge the Supreme Court considered the scope of the duty "to have regard" to the requirements of the Habitats Directive as it applied to planning authorities determining planning applications. The question in issue was the extent of a local planning authority's obligation to consider the tripartite test set out in regulation 53 of the Regulations given that the licensing regime was operated by Natural England and, even after the grant of planning permission, Natural England would be required to apply that test to an application for a licence. Lord Brown of Eaton-Under-Heywood said:

"29. In my judgment this goes too far and puts too great a responsibility on the Planning Committee whose only obligation under regulation 3(4) is, I repeat, to "have regard to the requirements of the Habitats Directive so far as [those requirements] may be affected by" their decision whether or not to grant a planning permission. Obviously, in the days when the implementation of such a permission provided a defence to the regulation 39 offence of acting contrary to article 12(1), the Planning Committee, before granting a permission, would have needed to be satisfied either that the development in question would not offend article 12(1) or that a derogation from that article would be permitted and a licence granted. Now, however, I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigating measures) should not ordinarily be granted save only in cases where the Planning Committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant to the derogation powers. After all, even if development permission is given, the criminal sanction against any offending (and unlicensed) activity remains available and it seems to me wrong in principle, when Natural England have the primary responsibility for ensuring compliance with the Directive, also to place a substantial burden on the planning authority in effect to police the fulfilment of Natural England's own duty.

30. Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that that is so. The Planning Committee here plainly had regard to the requirements of the Directive: they knew from the Officers' Decision Report and Addendum Report (see para 8 above and the first paragraph of the Addendum Report as set out in para 72 of Lord Kerr's judgment) not only that Natural England had withdrawn their objection to the scheme but also that necessary measures had been planned to compensate for the loss of foraging. For my part I am less troubled than Ward LJ appears to have been (see his para 73 set out at para 16 above) about the UBS's conclusions that "no significant impacts to bats are anticipated" – and, indeed, about the Decision Report's reference to "measures to ensure there is no significant adverse impact to [protected bats]". It is certainly not to be supposed that Natural England misunderstood the proper ambit of article 12(1)(b) nor does it seem to me that the planning committee were materially misled or left insufficiently informed about this matter. Having regard to the considerations outlined in para 29 above, I cannot agree with Lord Kerr's view, implicit in paras 75 and 76 of his judgment, that regulation 3(4) required the committee members to consider and decide for themselves whether the development would or would not occasion such disturbance to bats as in fact and in law to constitute a violation of article 12(1)(b) of the Directive."

84. Baroness Hale observed at [45]:

"45. Furthermore, the United Kingdom has chosen to implement article 12 of the Directive by creating criminal offences. It is not the function of a planning authority to police those offences. Matters would, as Lord Brown points out, have been different if the grant of planning permission were an automatic defence. But it is so no longer. And it is the function of Natural England to enforce the Directive by prosecuting for these criminal offences (or granting licences to derogate from the requirements of the Directive). The planning authority were entitled to draw the conclusion that, having been initially concerned but having withdrawn their objection, Natural England were content that the requirements of the Regulations, and thus the Directive, were being complied with. Indeed, it seems to me that, if any complaint were to be made on this score, it should have been addressed to Natural England rather than to the planning authority. They were the people with the expertise to assess the meaning of the Updated Bat Survey and whether it did indeed meet the requirements of the Directive. The planning authority could perhaps have reached a different conclusion from Natural England but they were not required to make their own independent assessment."

85. That there is no need for a local planning authority to carry out its own detailed assessment as to whether a licence would be required and if so whether it would be granted has recently been re-emphasised in Cheshire East Council v Secretary of State for Communities and Local Government [2014] EWHC 3536 (Admin) where Lewis J said:

"61. That then raises the question of the scope of the duty on the inspector under regulation 9(5) of the Regulations and whether he discharged that duty. In my judgment, if an inspector (or the Secretary of State) when exercising the functions of considering an appeal under 78 of the 1990 Act against the refusal of planning permission considers that planning permission should, otherwise, be granted, he is ordinarily entitled to grant planning permission unless, on the material before him, he concludes that (1) the proposed development would be likely to offend Article 12(1) and (2) be unlikely to be licensed pursuant to the derogation powers in Article 16 of the Habitats Directive.

62. The inspector here proceeded on the basis that the proposed development could offend Article 12. It is clear that the inspector also considered whether a licence would be granted and it is implicit, in my judgment, that he did not consider that it was unlikely that any such licence would be granted. He was entitled, on the material advanced before him during the planning inquiry to come to that conclusion. No one was contending that the grant of a licence would be unlikely. The claimant planning authority and the applicant for planning permission considered that any issues relating to the removal of European Protected Species could be adequately dealt with. There is no suggestion that any other person or body advanced any evidence or argument that the grant of a licence, if it ultimately proved necessary to obtain one, would be unlikely. In those circumstances, the inspector was entitled to grant planning permission. In my judgment, he was not required, in the absence of advice from Natural England, to undertake a detailed assessment of each element of Article 16 to determine whether there was a likelihood that those elements would be satisfied so that the likelihood was that the relevant licensing body would grant a licence.

63. I reach that conclusion for the following reasons. First, as a matter of domestic law, the obligation is "to have regard" to the requirements of the Habitats Directive. Secondly, the function of deciding if a licence is necessary and should be granted is for the relevant licensing body not the inspector dealing with the section 78 planning appeal. It is not to be expected or inferred that the need to have regard to the requirements of the Habitats Directive requires a planning inspector to make a detailed assessment of matters that are primarily the responsibility of another body. Thirdly, that approach is consistent with the judgments of Lord Brown and Baroness Hale in Morge and the decision of Lindblom J. in R (Prideaux) v Buckinghamshire County Council and FCC Environment UK Ltd. [2013] EWHC 1054 (Admin) at para. 96."

86. In the other case referred to, namely, that of R (Christopher Prideaux) v Buckinghamshire County Council [2013] EWHC 1054 (Admin) Lindblom J said at [96]:

"As the final decision in Morge makes clear, regulation 9(5) does not require a planning authority to carry out the assessment that Natural England has to make when deciding whether there would be a breach of article 12 of the Habitats Directive or whether a derogation from that provision should be permitted and a licence granted. If a proposed development is found acceptable when judged on its planning merits, planning permission for it should normally be given unless in the planning authority's view the proposed development would be likely to offend article 12(1) and unlikely to be licensed under the derogation powers (see paragraph 29 of Lord Brown's judgment in Morge)."

87. It follows from all of the above that planning permission for a development should normally be granted if it is found acceptable on its planning merits unless in the local planning authority's view the proposed development would be likely to offend article 12(1) and unlikely to be licensed under the derogation powers.
88. Natural England has published a guidance note on the application of the "three tests" to licence applications. That sets out the three tests, namely:

i) Whether a licence can be granted for the purposes of preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment;

ii) That the appropriate authority shall not grant a licence unless they are satisfied that there is no satisfactory alternative;

iii) That the appropriate authority shall not grant a licence unless they are satisfied that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.

89. The guidance goes on to consider no satisfactory alternative in greater detail from paragraph 26. That says:

"It should be recognised that there are always going to be alternatives to a proposal and, in terms of licensing decisions, it is for Natural England to determine that a reasonable level of effort has been expended in the search for alternative means of achieving the development whilst minimising the impact on the EPS. In other words, Natural England expects the applicant to demonstrate that alternatives have been considered, explain what those alternatives were, and provide a justification for their decisions to select their preferred option and discount the others as satisfactory. As part of the process we always require the applicant to have considered the 'do nothing' scenario."

90. A proportionate approach is adopted in considering the feasibility of alternative solutions.
91. The officer report from 10.72 sets out the three tests that have to be satisfied. The relevant test for this challenge is test (ii), that there must be no satisfactory alternative. On that the report said that the need for a crematorium in the Aylesbury area is established, the selection of the site followed an extensive search for a suitable site. It considered that there were no more satisfactory alternatives to the site proposed.
92. The defendant submits that under the guidance from Natural England what is important is whether the applicant has made a reasonable search for alternatives. In normal circumstances that is a fair reading of paragraph 26 of the guidance from Natural England. In normal circumstances, evidence from the applicant will be the only evidence available upon which a consideration of the no satisfactory alternative test can be made.
93. That is not the position here. There was clearly before the committee evidence of the Watermead site. Indeed, it is referred to in paragraph 10.103 of the officer report which I have set out above. Further, as the office report argues, the case for derogation was based upon an acknowledged unmet need. The defendant's acknowledgement of service accepts that the need is likely to be for one crematorium only. In the absence of any contribution from Natural England on the Bierton application (of which there was none) the fact of the Watermead site which did not require a derogation was material to the no satisfactory alternative test.
94. The defendant did not have to carry out its own detailed assessment which would be contrary to the decisions in Morge, Prideaux and Cheshire East but it did have before it information that made it unlikely, in the absence of any input from Natural England, that the application site would be licensed under derogation powers. There was not and there has not been any evidence of European protected species on the Watermead site. In those circumstances the information on the Watermead site should have been brought to the attention of the committee in this context. The committee may have decided to defer its decision on the application to seek further information from Natural England or from the applicants and would then have further reached a view about the likelihood of licensing the application site. Whichever, to close off consideration of the Watermead site on this aspect as the advice to committee did, at paragraph 10.74, significantly misled the members and the matter was not corrected orally.
95. As a result this ground succeeds.

The Issue of Discretion

96. The defendant submits that, if there was an error in the officer report, the error was not material and/or the planning permission should not be quashed. That is on the basis that the job of policing European protected species licences falls to Natural England. If the defendant did approach the likelihood of attaining a licence incorrectly that will have no impact upon whether such a licence will be granted or whether there will be any interference with a European protected species.
97. The defendant argues that the consequence if a local planning authority does have regard to the European protected species but reaches the incorrect conclusion either that a licence is not required or that it will not be granted is one that was not answered in Morge. On the logic of the limited role identified for local planning authorities in Morge such an error will not normally vitiate the local planning authority's decision.
98. What is clear is that this is not a normal case. To have two applications for crematoria development running in parallel on two alternative sites to meet the need in a defined area would seem to me to be unusual. But, even if it were not, the fact that there was an alternative site which did not require derogation from the duty to safeguard the protected species was a material consideration. It may be that further information could and would have been sought from Natural England which affected that position but it was not. In the absence of that I cannot find that the decision on the part of the committee would have been the same even if the error was corrected. In those circumstances I am unable to accede to these submissions made by the defendant and exercise my discretion not to quash the permission.
99. It follows that the claim succeeds on ground two (b) and the permission will be quashed.
100. I invite submissions as to the final order and costs.