R (on the application of Timmins and another) v Gedling Borough Council

Planning permission – Change of use – Cemetery – Second respondent and second appellant submitting rival planning applications for crematorium – Second appellant’s application also including creation of cemetery – Court quashing grant of planning permission to second appellant – Whether first appellant local planning authority misinterpreting paras 89 and 90 of National Planning Policy Framework – Appeal dismissed The second appellant applied to the first appellant council for planning permission for a crematorium and cemetery on land within the green belt in Lambley Dumbles, Nottinghamshire. The second respondent submitted a rival application for a crematorium on another site in the same area, but without an additional cemetery. The first respondent objected to both applications. The first appellants granted permission for the second appellant’s development and refused it for the second respondent’s scheme. The grant of planning permission was subsequently quashed in judicial review proceedings brought by the respondents. The judge accepted the respondents’ contention that the first appellants had misinterpreted paras 89 and 90 of the National Planning Policy Framework (NPPF) in regarding a cemetery as appropriate development in the green belt. He held that any development in the green belt was prima facie inappropriate by virtue of section 9 of the NPPF and could be justified only by reference to “very special circumstances”, save in the case of the exceptions defined in para 89 and 90 of section 9, which did not include the creation of a cemetery but merely the construction of a new building which provided facilities to serve a cemetery: see [2014] EWHC 654 (Admin); [2014] PLSCS 93. He took the view that the NPPF therefore represented a shift in policy from the previous position under para 3.12 of PPG2, in which the development of a cemetery would have been considered appropriate so far as it maintained openness and did not conflict with the purpose of including land in the green belt. The appellants appealed. Held: The appeal was dismissed. Policy statements like the NPPF should be interpreted objectively in accordance with the language used, read in its proper context. The NPPF was, on its face, a standalone document that should be interpreted within its own terms. In certain respects, it did more than simply carry across the language of the guidance it replaced, although the old guidance remained relevant: Europa Oil & Gas Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 825; [2014] JPL 1259; [2014] PLSCS 181 and Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386; [2014] PLSCS 292 applied. Paragraph 89 of the NPPF was concerned only with the construction of new buildings, which was to be regarded as inappropriate development unless one of the listed exceptions applied. It laid down a general rule that the construction of new buildings in the green belt was inappropriate development, with “building”, for that purpose, having the wide meaning given by section 336 of the Town and Country Planning Act 1990. In the various bullet points that followed, it then set out exceptions to that general rule, which were likewise concerned only with the construction of new buildings. The second bullet point therefore covered the construction of a building as an appropriate facility for an existing cemetery, but did not cover a material change in the use of land so as to create a new cemetery. To the extent that it was relevant to look back at the position under Planning Policy Guidance 2, there was no reason to believe that the equivalent provision in para 3.4 of PPG2 had any different effect. Any general understanding that a new cemetery fell under PPG2 as appropriate development was attributable to the “material change of use” provision in para 3.12, not to the terms of para 3.4. Paragraphs 89 and 90 of the NPPF were properly to be read as closed lists. Para 89 stated the general rule that the construction of new buildings was inappropriate development and set out the only exceptions to that general rule. Para 90 then set out other forms of development that were appropriate provided they preserved the openness of the green belt and did not conflict with the purposes of including land in the green belt. Although it was not stated expressly, it was implicit that forms of development other than those listed in para 90 were inappropriate. The NPPF did not give any scope to local planning authorities to treat development as appropriate if it did not fall within para 89 or 90. In particular, there was no general test that development was appropriate provided that it preserved the openness of the green belt and did not conflict with the purposes of including land within the green belt. Had such a general test been intended, it would have been spelled out in express terms and would also have affected the way in which the specific exceptions were expressed. No different interpretation was justified by reference to PPG2. It was striking that para 3.12 of PPG2 contained a general provision concerning material changes of use, which was not found in the NPPF. Whether the omission of such a provision from the NPPF was deliberate or unintentional, there was no proper basis for reading the provision into the NPPF. If there was a material omission, the proper course was for the secretary of state to amend the policy, not for the court to adopt a strained interpretation of it. The court’s interpretation of the NPPF did not lead to absurdity or to such anomalous consequences as to compel a different interpretation. Even if it produced some odd results, that was not a sufficient reason for reading into the NPPF a general provision which was conspicuously absent from it. Although the second appellant had subsequently entered into a section 106 agreement, by which it undertook not to proceed with the cemetery element of the development, that did not affect the materiality of the first appellants’ error in treating the cemetery element of the application as appropriate development. The error might have affected the decision to allow the second appellant’s application and to refuse that of the second respondent and, accordingly, it was not remedied by an undertaking to proceed with the crematorium element alone.   Richard Kimblin (instructed by the legal department of Gedling Borough Council) appeared for the first appellants; Stephen Sauvain QC and John Hunter (instructed by Hill Dickinson LLP) appeared for the second appellant; Paul Brown QC (instructed by Taylor & Emmett LLP) appeared for the respondents.   Sally Dobson, barrister Click here to read transcript: R (on the application of Timmins and another) v Gedling Borough Council