Cemeteries and the Green Belt

Timmins v Gedling Borough Council [2014] EWHC 654 (Admin)

James Strachan QC recently appeared in an interesting application for judicial review of the planning permission granted for a crematorium and cemetery in the Green Belt in Gedling. The Council's planning committee had been advised that the crematorium was inappropriate development, but that the cemetery alone was not.

The two key issues were:

  1. Whether all development in the green belt was prima facie inappropriate unless it fell within the exceptions set out in paragraphs 89 and 90 of the NPPF; and
  2. Whether the planning officers had misdirected the committee as to the meaning of "openness" by eliding the concepts of "openness" and "visual impact".

As to the first issue, the NPPF considers any development in the green belt to be inappropriate unless justified by reference to very special circumstances or if the development falls within the circumstances set out in paragraphs 89 and 90 (see Fordent Holdings [2013] EWHC 2844). Mr Justice Green held that the Defendant erred in its interpretation of paragraph 89 (at [23]):

“It is apparent that it construed paragraph 89 as treating cemeteries as “appropriate” (provided they met the limited test contained therein). However, paragraph 89 is not concerned with cemeteries per se but with the construction of “new buildings” which provide appropriate facilities for cemeteries. The two are clearly different. Thus, for example, paragraph 89 might address toilet facilities, or a cafeteria or a car park which serves a cemetery. But it is not concerned with the cemetery itself. The structure of paragraph 89 makes this clear. It creates a prima facie rule namely that the construction of new buildings is inappropriate. It then states that there are certain “Exceptions to this”. Amongst the exceptions are the “...provision of appropriate facilities for...cemeteries...”. In my judgment the Defendant erred in treating the exception as applying to the cemetery as opposed to a new building which provided facilities to serve the cemetery.

This error was considered to be material, with the proper course being to quash the Decision and remit it to be re-taken (see [56]).

Mr Justice Green then considered the lack of specific definition as to openness and held that “any construction harms openness quite irrespective of its impact in terms of its obtrusiveness or its aesthetic attractions or qualities” (at [74]). Further, whilst openness and visual impact were different concepts there was, in Mr Justice Green’s view, no reason why “in logic that [visual impact] cannot properly be taken into account” in assessing very special circumstances. Nevertheless, “since measures to reduce or mitigate visual impact are, as their name suggests, mitigating measures, they can only bear a modest weight in the scales” (at [77]). In summary, therefore, Mr Justice Green held (at [78]) that:

“First, there is a clear conceptual distinction between openness and visual impact. Secondly, it is therefore is wrong in principle to arrive at a specific conclusion as to openness by reference to visual impact. Thirdly, when considering however whether a development in the Green Belt which adversely impacts upon openness can be justified by very special circumstances it is not wrong to take account of the visual impact of a development as one, inter alia, of the considerations that form part of the overall weighing exercise…”