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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Dignity Funerals Ltd v Breckland District Council  EWHC 1492 (Admin) (23 June 2017)
Cite as:  EWHC 1492 (Admin)
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QUEEN'S BENCH DIVISION
THE PLANNING COURT
Strand, London, WC2A 2LL
B e f o r e :
| DIGNITY FUNERALS LIMITED
|- and -
|BRECKLAND DISTRICT COUNCIL
|- and -
|THORNALLEY FUNERAL SERVICES LIMITED
Christopher Lockhart-Mummery QC and Zack Simons (instructed by the Solicitor to Breckland District Council) for the Defendant
Hearing dates: 7th June 2017
Crown Copyright ©
Mr Justice Holgate:
"Our client has agreed commercial terms for the acquisition of land between Weeting and Brandon. The land is a short distance to the north of Brandon station; it is screened by existing trees and hedgerow, it has access to public transport (bus and train services) and is close to the A11 corridor and accessible to Watton and Swaffham via A 1065. This site is a far more sustainable location for a crematorium compared to the application site at Scoulton. Our client will be preparing a planning application for consideration by the council over the coming weeks; pre-application discussions will be held with the Council Officers very shortly."
The objection also contended that the Interested Party's proposal conflicted with policies SS1, CP11, CP13, DC1, DC12 and DC16 of BDC's Core Strategy and Development Control Policies (adopted in 2009) and also that the proposal did not represent sustainable development within the National Planning Policy Framework ("the NPPF").
(i) Relevant planning policies
(ii) The Officer's report to the Planning Committee
(iii) The grounds of challenge
(iv) General legal principles
(v) Ground 1
(vi) Ground 2
(vii) Ground 3
Relevant Planning Policies
"Breckland comprises seven types of place:
- The Key Centre for Development and Change; Thetford
- The Market Town for Substantial Growth; Attleborough
- The three market towns; Dereham, Swaffham and Watton
- The Local Service Centre Villages
- The Snetterton Heath Employment Area
- The rural settlements; and,
- The countryside"
The policy indicates in broad terms the level and distribution of development across the whole district as between these seven types of place.
"In addition to the rural settlements, Breckland contains large areas of predominantly un-developed agricultural land. Sustainability Appraisal indicates that these areas do not represent a sustainable option for development.
Minimal development predominantly comprising the diversification of rural enterprises will be accommodated in the countryside. Some other employment uses may be accommodated in the countryside where a rural location is necessary for the functioning of the business or it utilises a particular attribute and is a sustainable solution to an identified need."
"The landscape of the District will be protected for the sake of its own intrinsic beauty and its benefit to the rural character and in the interests of biodiversity, geodiversity and historical conservation. Development should have particular regard to maintaining the aesthetic and biodiversity qualities of natural and man-made features within the landscape, including a consideration of individual or groups of natural features such as trees, hedges and woodland or rivers, streams or other typographical features.
The release of land in Breckland will have regard to the findings of the Council's Landscape Character Assessment (LCA) and Settlement Fringe Landscape Assessment to ensure land is released, where appropriate, in areas where the impact on the landscape is at a minimum. Development should also be designed to be sympathetic to landscape character, and informed by the LCA.
High protection will be given to the Brecks landscape, reflecting it's role as a regionally significant green infrastructure asset. Proposals within the Brecks Landscape Character Areas will not be permitted where these would result in harm to key visual features of the landscape type, other valued components of the landscape, or where proposals would result in a change in the landscape character."
As paragraph 24 of the Claimant's skeleton notes, the application site lies within the Wayland Plateau LCA.
"New growth in Breckland will be delivered to promote accessibility improvements. This principle is promoted through the balanced distribution of housing and employment throughout the District, but will also be delivered through the following mechanisms set out below …
In addition to education facilities, health, community, sports and recreation facilities (including public open space) will also need to be provided to meet the needs of the growing population. These developments should also be sited in areas that allow for ease of access by a variety of methods."
"The diversification of existing rural enterprises and the development of new enterprises where a rural location is either environmentally or operationally justified will be supported, provided there are no significant detrimental environmental, landscape, conservation or highway impacts."
Paragraph 3.104 of the explanatory memorandum states:-
"Also allied to the achievement of sustainable rural communities is the support for appropriately located economic development, including rural tourism. The promotion of economic development will need to be tempered against the necessity to protect the countryside and the environment, and promote sustainable modes of transport. Therefore economic development in the countryside will only be supported where the operation of the business necessitates the locations, represents a sustainable solution to an identified need and is in line with national policy. Specific criteria for economic development in the countryside and the diversification of farming enterprises is contained in the Development Control Policies."
"For all new development consideration will need to be given to the impact upon amenity. Development will not be permitted where there are unacceptable effects on the amenities of the area or the residential amenity of neighbouring occupants, or future occupants of the development site. When considering the impact of the development in terms of the amenities of the area and residential amenity, regard will be had to the following issues; …
f. Quality of the landscape or townscape."
"Any development that would result in the loss of, or the deterioration in the quality of an important natural feature(s), including protected trees and hedgerows will not normally be permitted. In exceptional circumstances where the benefit of development is considered to outweigh the benefit of preserving natural features, development will be permitted subject to adequate compensatory provision being made. The retention of trees, hedgerows and other natural features in situ will always be preferable. Where the loss of such features is unavoidable, replacement provision should be of a commensurate value to that which is lost."
"All new development should achieve the highest standards of design. In assessing any proposed development consideration will be given to the following design principles:
Local Character: All design proposals must preserve or enhance the existing character of an area. Particular regard should be given to reinforcing locally distinctive patterns of development, landscape and culture and complimenting existing buildings. Additionally contemporary design, where it enhances sustainability will be encouraged in the District.
Form and Character: Development should compliment the natural landscape, natural features and built form that surround it. In considering development proposals consideration will be given to the shape and configuration of a building or buildings, and its or their style, design and arrangement. Regard will also be had to the distinctive features or qualities of a proposed building and its surroundings and the contribution new development makes to these features or qualities."
"The planning system should contribute to and enhance the natural and local environment by:
- protecting and enhancing valued landscapes, …"
"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;
- planning permission should be refused for development resulting in the loss or deterioration of irreplaceable habitats, including … 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; …"
The Officer's Report to the Planning Committee
"12. The application site is situated within an area of open countryside, around ½ mile from the village of Scoulton and 1 ½ miles from the small town of Hingham. The site forms part of a larger field and is set within an agricultural landscape. The site adjoins the B1108 Norwich Road, but built development in the locality is sparse and dispersed. The nearest residential properties are located around 250-300 metres away. Scoulton Mere, a Site of Special Scientific Interest (SSSI), is located approximately 400 metres to the west.
13. The site extends to approximately 4.4 hectares, with a frontage of around 220 metres to Norwich Road. The site is under arable cultivation. The land is bounded by further farmland to the south and east, an area of woodland to the west, and by the Norwich Road to the north. The roadside boundary is delineated by an established hedgerow and trees, including two oak trees which are subject to a Tree Preservation Order (TPO)."
Under BDC's scheme of delegation, the application was referred to the Planning Committee because it constituted a "major development" and had generated significant community interest. However, the application was screened as not amounting to EIA development because it would not be likely to have significant effects on the environment, a decision which has not been challenged.
"70. There are no crematoria in Breckland. Existing facilities in the wider area are located at Norwich (Earlham and Horsham St Faiths), King's Lynn and Bury St Edmunds. Permission was granted on appeal last year for a crematorium at Cromer. Travel distances to these facilities are such that large parts of Breckland fall outside the industry standard 30 minute drive-time to a crematorium at cortege speed. This standard is widely accepted as an appropriate guideline for assessing the adequacy of local provision, and has been referenced in a number of appeal decisions.
71. Taking into account death rates in Breckland, which has a higher than average number of elderly residents, and applying national average cremation rates, it is estimated that around 1,086 potential cremations per annum are likely to be generated within the District. The proposed crematorium would have the capacity to meet this need, and due to its relatively central location, would provide a convenient facility for many residents in Breckland. Whilst the proposal would be unlikely to handle all Breckland cremations, further cremations would be likely to arise from areas close by in South Norfolk.
72. Evidence has also been provided to demonstrate that existing local crematoria are operating at or over capacity, resulting in extended waiting times and short turn around times for funerals. The additional capacity secured by the proposal would provide a better and more convenient service for local residents, as well as reducing pressure on existing crematoria, thereby potentially improving the experience for mourners at those facilities.
73. Whilst the need for a crematorium in this location has been questioned by a number of those objecting to the application, no substantive evidence has been provided to contradict that provided by the applicant.
74. Taking these matters into account, it is concluded that there is currently an unmet need for additional crematorium facilities in the area which the proposal would help to address. This is a material consideration that weighs in favour of the proposal."
"56. Policy SS1 of the Breckland Core Strategy & Development Control Policies DPD sets out the overall approach to development in the District, and indicates that the open countryside is not considered generally to represent a sustainable option for development. Accordingly, Policy SS1 makes provision only for minimal development in the countryside outside defined settlements, predominantly comprising the diversification of rural enterprises. Provision is also made for some other employment uses to be accommodated, where a rural location is necessary for the functioning of the business or it utilises a particular attribute and is a sustainable solution to the identified need."
The Claimant made no criticism of that summary of policy SS1.
"58. The National Planning Policy Framework (NPPF) promotes economic growth in the countryside, stating in paragraph 28 that the sustainable growth and expansion of all types of business should be supported in rural areas. It is also a core principle of the NPPF to recognise the intrinsic character and beauty of the countryside. However, the support for rural economic development applies to development in the open countryside as well as rural settlements. Additionally, the NPPF states as a core principle that planning should deliver sufficient community and cultural facilities and services to meet local needs."
The Claimant made no criticism of that summary either.
"60. As far as the need for a countryside location is concerned, the requirements of the Cremation Act 1902 are directly relevant insofar as they stipulate that a crematorium should be at least 200 yards (around 183 metres) from any dwelling and at least 50 yards (43 metres) from a public highway. Published Government guidance entitled 'The Siting and Planning of Crematoria' (DoE, 1978) is also of relevance. This says that sufficient land should be available to provide an appropriate setting for a crematorium, adequate internal access roads, car parking and space for the disposal of ashes. Reference is made to sites of 2 to 4 hectares in size and larger, although no minimum is stated. The reasonable expectation of mourners and visitors to gardens of remembrance for a place of quiet contemplation is also an important consideration in relation to site selection.
61. Given these particular site selection and locational requirements detailed above, it is considered to be most unlikely that suitable land of sufficient size would be found within a defined settlement boundary. This is due to the more or less continuously built up nature of towns and villages in the District. Larger sites that are remote from housing are perhaps more likely to be found within existing and allocated employment areas, but such sites can be discounted due to the busy commercial nature of such areas and the likelihood of conflicting activities. It can reasonably be concluded therefore that a rural location outside a defined settlement is likely to be required for the development of a crematorium."
"On this basis, it is considered that the proposal would not conflict with Policy SS1 … as it has been demonstrated that the proposal would represent a sustainable solution to an identified need. This is considered further below. The proposal would also be fully consistent with the NPPF's support for the sustainable growth of rural businesses as set out in paragraph 28."
This conclusion drew upon both the assessment of the sustainability of the proposed development contained in the following paragraphs of the report as well as upon the preceding paragraphs.
"For these reasons, it is also considered that whilst the proposal would cause some harm to the rural character and appearance of the area and loss of protected trees in conflict with Core Strategy Policies CP11 and DC12, this effect would be localised and would be mitigated to an extent by sensitive building design and extensive planting. Nevertheless, landscape impact considerations, in part, weight against the proposal. "
"78. The proposal would introduce built development into an area of largely undeveloped open countryside. The proposed buildings, together with associated access, parking, servicing areas, pedestrian islands and signage would inevitably result in a loss of openness and increase activity, and would thus have an urbanising effect. This would be harmful to the character and appearance of the area. The removal of existing roadside hedging and trees (including up to two oak trees subject to a TPO) to facilitate access improvements would also cause some harm in itself, as well as opening up short distance views into the site and thereby increasing the visual impact of the proposed development.
79. However, in medium distance views the proposed development would be well screened by adjacent dense woodland when approaching from the west and roadside and field boundary hedging would filter views of the development when approaching from the east. Close to the site, the development would be clearly visible from the Norwich Road, but would be set well back from the road and would in large part be seen set against a wooded backdrop."
"82. Consequently, and for the above reasons, it is considered that the proposal would comply with Policy DC16 in accordance with the design principles detailed therein which seeks, amongst other things, to ensure that new development is built to a high standard of design."
This conclusion was based upon paragraphs 80 and 81 of the report which commented favourably and in some detail on the design principles of the proposed landscaping and the proposed buildings.
"97. Consequently, it is considered that the proposal would not result in any material harm to the amenities of local residents taking into above the above factors and issues. In terms of effect on the quality of the landscape, such considerations are detailed at paragraphs 76 to 83 above. Whilst it is considered that the proposals may result in some localised harm to the quality of the landscape which weighs against the proposal, it is considered that the scheme complies with Core Strategy Policy DC1 in all other respects."
"99. The proposal would result in the loss of some existing trees and hedging at the site frontage, including two oak trees to the east and west of the site frontage that are subject to a TPO. This loss of trees and vegetation is necessary to provide suitable visibility splays in accordance with the recommendation of the Highway Authority.
100. To compensate for the loss of trees and hedging, replacement planting is proposed together with a comprehensive landscaping scheme. The replacement planting would comprise of a new native hedgerow and 18 trees, including 6 beech trees, 6 oak trees and 6 field maple trees. The proposed landscaping scheme would introduce additional planting by way of tree belts to the site frontage and to the north eastern corner of the site. The tree belts would consist of a variety of species, including field maple, silver birch, hazel, beech, crab apple, native white cherry, English oak, and small leaved lime. …. The Tree Consultant does not support the removal of the TPO trees, but recommends that any new planting should be predominantly of native species to more appropriately respond to the existing landscape character of the locality.
101. As already noted, the loss of the TPO trees and the remainder of the planting to the site frontage would cause harm to the character and appearance of the landscape. However, it is considered that this particular landscape impact would be ameliorated by the substantial planting proposed by the landscaping scheme. The number and location of the trees, on balance, would be of more than commensurate value, providing an appropriate replacement and additional planting. The proposed landscaping would also mitigate to an extent against the visual impact of the built form on the wider landscape."
"103. Taking these matters into account, it is considered that the proposal would result in some harm due to the loss of roadside hedging and trees in conflict with Core Strategy Policy DC12. However, such loss of trees and hedging is unavoidable due to access requirements and to achieve the development proposed. Moreover, the harm caused would be localised and mainly short-term, and could be mitigated satisfactorily by a comprehensive scheme of new planting. It is considered that the public benefits of the development as summarised in this report would outweigh this limited harm, and, due to the compensatory provision, it is considered that these amount to exceptional circumstances under this policy."
"114. Accordingly it is considered that the proposal is acceptable in ecological terms and would not conflict with Core Strategy Policy CP10 or the guidance set out in paragraph 118 of the NPPF."
"118. Consequently the proposal is considered to be acceptable in heritage terms and would not conflict with Core Strategy Policy DC17 or the guidance set out in section 12 of the NPPF."
"122. The paragraphs above have assessed the individual policies of the development plan. It is considered that Polices SS1, CP10, CP13 (if it applied) DC1 (save for landscape considerations), DC7 (if it applied), DC16 and DC17 are complied with in full. Whilst for the reasons explained above, it is considered that there is some degree of conflict with Policy DC1 and CP11 in terms of landscape impact, the effects of the proposal would be localised and would be mitigated to an extent by sensitive building design and extensive landscaping, as noted in paragraphs 76 to 83. Some harm would also arise due to the loss of trees and hedging, but Policy DC12 is complied with as it allows for the loss of natural features in 'exceptional circumstances', such as is the case here where the loss cannot be avoided and compensatory measures are provided, as explained in paragraphs 98 to 103 above. It is therefore considered that the proposals comply with the development plan as a whole.
123. In addition, and in any event, the proposed development would provide a crematorium facility in the District for which there is a need. The qualitative improvement to service provision provided by the proposal in reduced waiting times for funerals and, in many cases, reduced travelling distances represents a significant public benefit which weighs in favour of the proposal. The proposal would also create some rural employment and would support indirectly other associated business activities in the area. Safe access to the development could also be achieved. The economic and social roles of sustainable development, as defined in the NPPF, would thus be supported.
124. Although the proposal would not be close to any main centre of population, it would nonetheless be relatively conveniently located for many residents in mid-Norfolk who currently have to travel further afield to access cremation facilities. The proposal would be served by public transport, and whilst most visitors would be likely to arrive by car, travel distances for many local residents would be less than they are currently. Any harm arising in terms of transport sustainability would be small therefore.
125. In relation to environmental considerations, as detailed above, some harm to the character and appearance of the area would result, but the effects would be localised and would be mitigated by the layout and design of the scheme and proposed landscaping, which would also mitigate fully against the loss of protected trees. The proposal would not result in any significant adverse effects on the amenity of local residents, ecological interests or the historic environment. The proposed development is appropriate in a countryside location due to the nature of the use and the requirements of legislation and Government guidance.
126. In summary therefore, it is concluded on balance that the proposal complies with the development plan as a whole and would represent sustainable development as defined in the NPPF. In addition, and in any event, there are also a number of other material considerations that support the proposal including meeting the need for a crematorium and other community and economic benefits. It is recommended that the application should be approved therefore." (emphasis added)
The grounds of challenge
"(1) In advising the Committee that the Development was capable of being acceptable in principle in this location and in accordance with the Development Plan ("DP") for the purposes of s38(6) Planning and Compulsory Purchase Act 2004 ("the 2004 Act") the OR fundamentally misdirected Members in three main respects:
(i) Firstly, the Officer erred in the correct legal interpretation of policies SS1 and DC07 of the Council's own Core Strategy, which establish the spatial strategy for development in the area. On a proper interpretation of those policies, and of the DP as a whole, the Officer was bound to advise Members that the Development was in conflict with those policies of the DP, and consequently with the DP as a whole, so that the statutory presumption in s38(6) did not apply. These were fundamental errors of approach, which vitiated Members' subsequent decision to grant the PP.
(ii) Secondly, the Officer necessarily erred in his direction as to the weight to be given to policy SS1, because he directed that the weight it could carry was reduced due to an alleged inconsistency with paragraph 28 of the NPPF. On a proper legal construction of paragraph 28 of the NPPF and policy SS1, paragraph 28 of the NPPF is entirely consistent with policy SS1. By the same token, it clearly cannot be said that the Committee's decision would have been "highly likely" to be the same, had it not been misdirected concerning the proper interpretation of policy SS1 and paragraph 28 of the NPPF.
(iii) Thirdly, whatever the position in respect of the Officer's advice concerning policy SS1, the Officer also seriously misled Members as to the conformity of the Development with the DP as a whole. Given that the Officer was unable to identify any policies which provided any positive support for the Development, to be balanced against the policies which clearly militated against the grant of permission, he could only lawfully and/or rationally have advised Members that the Development conflicted with the DP as a whole and so did not benefit from the statutory presumption under s38(6) of the 2004 Act ("Ground 1").
(2) As a matter of law, the Council was required to have regard to the merits of the Weeting Site as one which would overcome, or at least mitigate, the clear planning objections to locating major development in the open countryside and outside any development boundary, while satisfying an identified, district-wide need for a crematorium: see Derbyshire Dales DC v. Secretary of State  EWHC 1729 (Admin) and R. (on the application of Bovale Ltd) v Secretary of State for Communities and Local Government  EWHC 2538 (Admin). However, despite being urged to consider the Weeting Site, as an identified and available alternative being promoted by a rival commercial operator, Members were unlawfully directed to ignore this alternative location and to determine the application solely on its own merits ("Ground 2").
(3) The Officer also fundamentally erred and/or reached inconsistent conclusions, concerning the proper interpretation of other relevant DP policies, specifically policies DC16 and CP11, as well as CP13 and DC12 of the Core Strategy, and/or failed to take into account, properly or at all, paragraphs 109 and 118 of the NPPF. These errors undermined still further the Committee's conclusion that the development complied with the DP and benefitted from the statutory presumption in section 38(6). They also compound the seriousness of the failure to consider the Weeting Site as a potential alternative, in order to avoid or reduce the harmful impacts of this important development. ("Ground 3")."
General legal principles
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
It is well established that, in order to comply with these provisions, the decision-maker must proceed upon a proper interpretation of the relevant policies in the development plan (City of Edinburgh Council v Secretary of State for Scotland  1 WLR 1447, 1459).
"The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department  QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context."
Thus, the Court held that as a matter of principle statements of planning policy should be interpreted objectively according to the language used, but always reading that language in its proper context. He continued in paragraph 19:-
"That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of fact requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."
"In the first place, it is important that the role of the court is not overstated. Lord Reed JSC's application of the principles in the particular case (para 18) needs to be read in the context of the relatively specific policy there under consideration. Policy 45 of the local plan provided that new retail developments outside locations already identified in the plan would only be acceptable in accordance with five defined criteria, one of which depended on the absence of any "suitable site" within or linked to the existing centres (para 5). The short point was the meaning of the word "suitable" (para 13): suitable for the development proposed by the applicant, or for meeting the retail deficiencies in the area? It was that question which Lord Reed JSC identified as one of textual interpretation, "logically prior" to the exercise of planning judgment (para 21). As he recognised (para 19), some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis." (emphasis added)
He continued in paragraphs 25 and 26:-
"25.It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light. …
26. Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case. In that exercise the specialist judges of the Planning Court have an important role. However, the judges are entitled to look to applicants, seeking to rely on matter of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy; and not to elide the two."
"He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it."
This question involves an exercise of judgment by the decision-maker (R v Rochdale MBC ex parte Milne (No. 2)  1 Env LR 22 at paragraph 48). Where policies pull in different directions the decision-maker is entitled to give greater weight to some rather than others (R (Laura Cummins) v Camden LBC  EWHC 1116 (Admin)).
"The local planning authority has to make a judgment bearing in mind such factors as the importance of the polices which are complied with or infringed, and the extent of compliance or breach." (emphasis added)
The Claimant's argument is inconsistent with that principle, not least because it fails to allow any proper room for the decision-maker to assess the importance or weight to be attached to any compliance or non-compliance with a particular policy or policies. The above reasons are sufficient to dispose of the third part of ground 1 of the claim.
"(i) There is an important distinction between (1) cases where a possible alternative site is potentially relevant so that a decision-maker does not err in law if he has regard to it and (2) cases where an alternative is necessarily relevant so that he errs in law by failing to have regard to it (paragraph 17);
(ii) Following CREEDNZ v Governor-General  1 NZLR 172, Findlay  AC 319 and R (National Association of Health Stores) v Secretary of State for Health  EWCA Civ 154, in the second category of cases the issue depends upon statutory construction or whether it can be shown that the decision-maker acted irrationally by failing to take alternative sites into account. As to the first point, it is necessary to show that planning legislation either expressly requires alternative sites to be taken into account, or impliedly does so because that is 'so obviously material' to a decision on a particular project that a failure to consider alternative sites directly would not accord with the intention of the legislation (paragraphs 25-28);
(iii) Planning legislation does not expressly require alternative sites to be taken into account (paragraph 36), but a legal obligation to consider alternatives may arise from the requirements of national or local policy (paragraph 37);
(iv) Otherwise the matter is one for the planning judgment of the decision-maker (paragraph 36). In assessing whether it was irrational for the decision-maker not to have had regard to alternative sites, a relevant factor is whether alternative sites have been identified and were before the decision-maker (paragraphs 21, 22 and 35 and see Secretary of State v Edwards (1995) 68 P&CR 607 where that factor was treated as having 'crucial' importance in the circumstances of that case)."
Mr Strachan QC accepted that these principles are binding upon the High Court, but he reserved the Claimant's position to argue in the Supreme Court that, by virtue of section 70(2) of TCPA 1990, the Findlay principle does not apply, agreeing with the stance taken by Mr Robert McCracken QC in R (Lucas on behalf of Save Diggle Action Group) v Oldham MBC  EWHC 349 (Admin) at paragraph 86.
What decisions did the Defendant in fact reach and can they be impugned?
"In addition, it is noted from [the] letter of 16 September 2016 (on behalf of Dignity Funerals) that Dignity has identified a site it intends to develop as a crematorium facility between Weeting and Brandon. However, in the absence of sufficient further details, assessment or formal proposals, it is premature to consider this any further at this juncture, and it remains for the current application to be assessed for its suitability."
On the same date, the Claimant submitted through its consultants a formal request for pre-application advice from BDC in respect of its Weeting site. It also submitted a site plan and an initial sketch design.
"these details had not been either formally or informally assessed. Mr Horn further advised that officers were not required to assess this proposal and therefore, had not done so. Accordingly, limited weight should be attached to this proposal, and the current proposal before committee should be assessed on its own planning merits".
A local resident spoke on behalf of herself and a number of neighbours living in the vicinity of the proposed development. She also referred to the Weeting proposal and she urged the planning committee to refuse or to defer their consideration of the Interested Party's application so that the other proposal could be "fully explored". It is apparent from the resolution passed by the members to approve the planning application that they did not consider that it would be appropriate to further defer their decision on the application.
"As at the committee date, the only details received by the Council in respect of your Client's request for pre-application advice were a location plan and an indicative plan of your Client's proposal. For this reason – and taking into account that at the time, the proposal had not been either informally or formally assessed – I believe that both I and the Officer's report were entirely correct to state that limited weight should be attached to the existence of your Client's proposal.
In the intervening period between the Committee date and today, your Client has not made a formal application to the Council for planning permission. The only advancement in this matter so far as your Client's proposal is concerned is that the Council has now completed the pre-application advice process. And having done so, the Council has now informed your Client that its proposal has a number of constraints that make it impossible for Officers at this stage to give an informed view (whether informally or formally) as to whether or not your Client's proposal would be likely to receive Officer support.
This being the case, I conclude that nothing has happened in the intervening period between the Committee date and today which might rationally be regarded as a "material consideration" for the purposes of section 70(2). Accordingly, as I do not consider that there are any new factors that might rationally be regarded as a "material consideration", I do not consider that there is any reason whatsoever now to refer this application back to Planning Committee."
The email concluded by stating that BDC intended to grant planning permission in respect of the Interested Party's application shortly.
Whether there was any legal obligation on the Defendant to assess the Weeting site
The Claimant's application for permission to appeal