Kemnal Manor Memorial Gardens Ltd v First Secretary of State & Anor [2004] EWHC 2638 (Admin)

[2004] EWHC 2638 (Admin)

Case No CO/2384/2004

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16 November 2004

Before

THE HONOURABLE MR JUSTICE KEITH

Between

Kemnal Manor Memorial Gardens Ltd.Claimant

(1) First Secretary of StateDefendants

(2) London Borough of BromleyDefendant

Mr Jonathan Clay (instructed by Brachers) for Claimant

Mr Christiaan Zwart (instructed by the Treasury Solicitor) for First Defendant

Mr Timothy Leader (Director of Legal & Democratic Services, London Borough of Bromley) for Second Defendant

Hearing Hearing dates: 5-7 October 2004

Judgment

Introduction

[1]The Claimant, Kemnal Manor Memorial Gardens Ltd. (“the developer”), wants to turn a site in the Metropolitan Green Belt into a cemetery and crematorium. It applied to the Second Defendant, the London Borough of Bromley (“Bromley”), for planning permission to do so. Bromley refused planning permission, and the developer appealed against that refusal to an inspector appointed by the First Defendant, the First Secretary of State. The inspector dismissed the appeal, and the developer now applies for the inspector’s decision to be quashed, and for the appeal to be reconsidered by a different inspector. All references in this judgment to sections of an Act are references to sections of the Town and Country Planning Act 1990. The appeal to the inspector was under section 78, and the current application is under section 288.

The site

[2]The site comprises about 30 hectares of land within the Metropolitan Green Belt. It is immediately south of the A20, which is the Sidcup by-pass, and is a dual carriageway at that point. That part of the A20 marks the northern boundary of Bromley with the London Borough of Bexley.

[3]The northern part of the site is known as Flamingo Park. It is privately owned. It consists of a sports ground and playing fields. It has a large sports pavilion with a height equivalent to four storeys, together with five football pitches, a disused bowling green and disused tennis courts which are now used for parking. Access to Flamingo Park is direct from the A20. The playing fields are in active use at weekends and are used for car boot fairs about 14 times a year. The pavilion is also used for functions of various kinds.

[4]The southern part of the site is much the larger part of the site. It was once the estate of Kemnal Manor, which has now been demolished. This part of the site is mostly overgrown woodland, parkland and ornamental grounds. The estate is within the Chislehurst Conservation Area, and part of the grounds of the estate is proposed to be designated as a Site of Importance for Nature Conservation. The estate is unmanaged, and is used for informal recreational purposes by local residents, even though there are no public rights of access apart from the footpath running along the southern boundary of the estate.

The developer’s proposals

[5]The developer’s proposals would result in the northern part of the site no longer being used as a sports ground or playing fields. The pavilion would be demolished, and it would be replaced by a building to be used as a chapel and a crematorium. Its floor space would be slightly smaller than that of the pavilion, and the inspector thought that it would be set back about 80 metres from the A20 (though the illustrative drawings suggest that it would be no further from the A20 than the pavilion currently is). There would be a car park with a capacity of 140 vehicles (not 170 vehicles as the inspector thought), and a new access would be provided from the A20, allowing the existing access to be used to form a one-way system and an exit road. A Garden of Remembrance would be created on the site of the manor’s original walled garden, and the remainder of the site (except for those areas where woodland is to be protected) would be used as burial grounds, including some woodland burial grounds.

[6]The illustrative drawings show that the crematory with its six cremators would be in the basement of the building. Two chapels catering for both cremations and funerals would be on the ground floor with waiting and other rooms and some offices, and there would be other offices and function rooms on the first floor. No chimneystack is shown on the elevation plan, although the position of the flue shows that it would stand separately at the rear of the building. It would need to be a minimum of 12 metres high or 3.5 metres above the height of the building to comply with the Siting and Planning of Crematoria (LG1/232/36).

The nature of the developer’s application for planning permission

[7]The application made by the developer was a hybrid one. It was a full application for permission for the change of use of the site, but in other respects it was an application for outline planning permission only, i.e. “planning permission for the erection of a building, which is granted subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters” (Art. 1(2) of the Town and Country Planning (General Development Procedure) Order 1995 (SI 419/1995)). “Reserved matters” means “any of the following matters in respect of which details have not been given in the application, namely –(a) siting,

(b) design,

(d) means of access,

(e) landscaping of the site” (ibid.). The developer’s application was limited to siting and means of access. Design, external appearance and landscaping of the site were therefore reserved matters. That is why the drawings were illustrative only. They illustrated only the developer’s current intentions. In short, the developer wanted to get the go-ahead for the building of a crematorium and chapels (which would be used for funerals as well as cremations) on the site at the location and with the means of access illustrated in the illustrative drawings, before having its more detailed plans for the design of the building, its external appearance and the landscaping of the site as a whole considered by Bromley.

[8]Since “planning permission is required for the carrying out of any development of land” (section 57(1)), it is necessary to remind ourselves what constitutes development. Unless the context otherwise requires, section 55(1) provides that it means “….. the carrying out of building, mining or other operations in, on, over and under land, or the making of any material change in the use of any buildings or other land.” The developer’s application engaged both limbs of this definition: it involved the carrying out of building operations on the land, and the making of a material change in the use of the land.

Planning policies

[9]Local planning policies were described by the inspector as follows:

“4. The development plan for the area is the London Borough of Bromley Unitary Development Plan (UDP) 1994. Policy G2 of the UDP aims to prevent inappropriate development in the Green Belt in line with Planning Policy Guidance Greenbelts (PPG). Policy L11 seeks to ensure that there is no loss of private recreational space and to encourage its community use. Policy L12 relates to the preservation of public playing fields. From the supporting text it can be inferred that these include those in private ownership that are in public use. 5. The London Plan (2004) is also an important material consideration in this case given that it is a new Plan that will become part of the development plan following the enactment of the Planning and Compulsory Purchase Bill and will form the base for the production of future development plans in London. Policy 3D.8 of this Plan has similar objectives to policy G2 of the UDP. Policy 3D.15 states that UDP policies should ensure that provision is made for London’s burial needs on the principle of proximity to local communities. Neither the Bromley UDP nor the neighbouring UDPs currently contain policies providing for future burial space in their areas. 6. I have also been referred to the Second Deposit Draft of the Revised Bromley UDP. This emerging Plan is also a material consideration and I give it due weight in accordance with paragraph 48 of Planning Policy Guidance: General Policy and Principles (PPG1). Policy G1 is a similar Green Belt policy to policy G2 of the existing Plan. Policy L7 seeks to prevent the loss of sports grounds or playing fields, except where the Council’s assessment of open space provision has revealed a surplus of playing fields. However, there have been objections to both of these policies in this Draft of the Plan and this limits the weight I can give to them.”

The relevance of these policies is that the effect of sections 27, 54A and 70(2) is to require the local planning authority to determine an application for planning permission in accordance with its development plan and any alterations to it, unless material considerations indicate otherwise.

[10]Relevant national policy is contained in Planning Policy Guidance 2: Green Belts issued in January 1995 (“PPG2”) and Planning Policy Guidance 17: Planning for Open Spaces, Sport and Recreation issued in July 2002 (“PPG 17”). Paras. 1.4 and 1.5 of PPG2 set out the aims of the Green Belt and the purposes of including land in it:

“1.4 The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development ….. 1.5 There are five purposes in Green Belts: - to check the unrestricted sprawl of large built-up areas; - to prevent neighbouring towns from merging into one another; - to assist in safeguarding the countryside from encroachment; - to preserve the setting and special character of historic towns; and - to assist in urban regeneration by encouraging the recycling of derelict and other urban land.”

In addition, para. 2.1 describes “[t]he essential characteristic of Green Belts [as] their permanence. Their protection must be maintained as far as can be seen ahead.” - to check the unrestricted sprawl of large built-up areas; - to prevent neighbouring towns from merging into one another; - to assist in safeguarding the countryside from encroachment; - to preserve the setting and special character of historic towns; and - to assist in urban regeneration by encouraging the recycling of derelict and other urban land.”

[11]Para. 3 of PPG2 relates to the control of development in the Green Belt. It states, so far as is material to the present case: “3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances ….. 3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development. 3.4 The construction of new buildings inside a Green Belt is inappropriate unless it is for the following purposes: ….. - essential facilities for outdoor sport and outdoor recreation, for cemeteries, and for other uses of land which preserve the openness of the Green Belt and which do not conflict with the purposes of including land in it (see paragraph 3.5 below);….. [This is the second of five indents] 3.5 Essential facilities (see second indent of paragraph 3.4) should be genuinely required for uses of land which preserve the openness of the Green Belt and do not conflict with the purposes of including land in it. Possible examples of such facilities include small changing rooms or unobtrusive spectator accommodation for outdoor sport, or small stables for outdoor sport and outdoor recreation.” - essential facilities for outdoor sport and outdoor recreation, for cemeteries, and for other uses of land which preserve the openness of the Green Belt and which do not conflict with the purposes of including land in it (see paragraph 3.5 below);….. [This is the second of five indents]

[12]The relevant passages in PPG17 are paras. 10 and 15. They are included in that part of PPG17 which is headed “MAINTAINING AN ADEQUATE SUPPLY OF OPEN SPACE AND SPORTS AND RECREATIONAL FACILITIES”. Para. 10 states:

“Existing open space, sports and recreational buildings and land should not be built on unless an assessment has been undertaken which has clearly shown the open space or the buildings and land to be surplus to requirements. For open space, ‘surplus to requirements’ should include consideration of all the functions that open space can perform. Not all open space, sport and recreational land and buildings are of equal merit and some may be available for alternative uses. In the absence of a robust and up-to-date assessment by a local authority, an applicant for planning permission may seek to demonstrate through an independent assessment that the land or buildings are surplus to requirements. Developers will need to consult the local community and demonstrate that their proposals are widely supported by them. Paragraph 15 below applies in respect of any applications involving playing fields.”

Para. 15, which is headed “Playing Fields”, states:

“In advance of an assessment of need, local authorities should give very careful consideration to any planning applications involving development on playing fields. Where a robust assessment of need in accordance with this guidance has not been undertaken, planning permission for such developments should not be allowed unless: (i) the proposed development is ancillary to the use of the site as a playing field (eg new changing rooms) and does not adversely affect the quantity or quality of pitches and their use; (ii) the proposed development only affects land which is incapable of forming a playing pitch (or part of one); (iii) the playing fields that would be lost as a result of the proposed development would be replaced by a playing field or fields of equivalent or better quantity and quality and in a suitable location …..; or (iv) the proposed development is for an outdoor or indoor sports facility of sufficient benefit to the development of sport to outweigh the loss of the playing field.” (i) the proposed development is ancillary to the use of the site as a playing field (eg new changing rooms) and does not adversely affect the quantity or quality of pitches and their use; (ii) the proposed development only affects land which is incapable of forming a playing pitch (or part of one); (iii) the playing fields that would be lost as a result of the proposed development would be replaced by a playing field or fields of equivalent or better quantity and quality and in a suitable location …..; or (iv) the proposed development is for an outdoor or indoor sports facility of sufficient benefit to the development of sport to outweigh the loss of the playing field.”

The issues

[13]The inspector described the two main issues which the appeal raised as follows:

“Firstly, whether the proposal amounts to inappropriate development in the Green Belt, and if so, whether there are any very special circumstances sufficient to overcome the presumption against such development. Secondly, the effect of the proposed development on planning policies intended to preserve local sport and recreational facilities.”

The inspector’s formulation of the Green Belt issue was based on paras. 3.1 and 3.2 of PPG2. It was in accordance with the Court of Appeal’s interpretation of paras. 3.1 and 3.2 in Pehrsson v Secretary of State for the Environment (1990) 61 P. & C.R. 266. At pp.276-277, Staughton LJ said:

“The combined effect of [paras. 3.1 and 3.2] is ….. that one must first determine whether a proposed development is appropriate in a green belt or inappropriate. If it is appropriate, the general presumption applies, so as to favour the grant of planning permission unless it is shown that the development would cause demonstrable harm to interests of acknowledged importance. If, on the other hand, the proposed development is inappropriate, planning permission should not be granted unless the developer can show very special circumstances.”

However, this approach has been overtaken by the enactment of section 54A, which requires the determination of the application for planning permission to “be made in accordance with the [development] plan unless material considerations indicate otherwise”. Accordingly, in addition to consideration having to be given to whether the proposed development is appropriate development within the Green Belt, consideration has to be given to whether the proposed development is in accordance with the development plan.

[14]The inspector’s description of the playing fields issue was the subject of criticism in the course of the hearing. The issues, properly formulated, were whether there was still a need for playing fields in Flamingo Park, whether Flamingo Park had clearly been shown to be surplus to requirements in the sense that it could not be used for any other purpose in a way which preserved its essential feature as open space, whether the proposed development was widely supported by the local community, and whether an assessment of the kind contemplated by para. 10 of PPG17 had been carried out so that para. 15 of PPG17 was not engaged. In truth, the inspector did not attempt to formulate the questions which the playing fields issue raised. He did no more, in effect, than state that PPG17 was in play. In fact, as we shall see, his discussion of the playing fields issue in paras. 23-27 of his decision shows that he addressed the issues which PPG17 raised.

The Green Belt issue

[15]In order to understand the nature of the attack on the inspector’s decision on the Green Belt issue, it is necessary to set out much of the decision in full. In paras. 11 and 12 of his decision, the inspector dealt with whether the proposed development was inappropriate within the Green Belt. They read:

“11. The [developer] reasoned that as the building would have a smaller footprint and mass than the existing building and the crematorium would not take up any above ground space, it would therefore not physically harm the Green Belt or the purposes of the Green Belt. The building could also be regarded as being essential for the use of the site as a cemetery as permitted by Planning Policy Guidance: Greenbelts (PPG2). And its size and that of the car parks etc, would be entirely dictated by the maximum anticipated congregation size, which could equally be for a burial as for a cremation. However, whilst cemeteries are appropriate development in the Green Belt, crematoria are not. Inappropriate development is by definition harmful to the Green Belt and contrary to policies to protect it unless very special circumstances exist. 12. Moreover, the proposed development needs to be considered as a whole. It was accepted that 72% of all deaths involve a cremation-based funeral, and that the viability of the proposal was dependent upon the provision of a crematorium. I also note that, whilst in the appeal referred to by the appellant, my colleague Inspector allowed the appeal to approve details of a chapel for a cemetery in the Green Belt on a site at Halstead (APP/G2245/A/98/293974 and 293981), the Secretary of State earlier dismissed an appeal for a crematorium and chapel on the same site (APP/G2245/A/94/237563-4) on the grounds that it was inappropriate. For the above reasons I conclude that this proposal would also be inappropriate development.”

The inspector then went on to consider in para. 13 of his decision whether the proposed development would be injurious to the Green Belt. He said:

“13. The number of cremators in the illustrated plan were higher than, and the number of chapels the same as, that of Eltham, the busiest of the nearby crematoria with a peak capacity of 150 cremations a week and a funeral every 15 minutes when operating at this level. It seems to me therefore that there was the potential for a significant increase in day-to-day activity on this site as a result of the comings and goings of funeral processions and visitors to the cemetery and Garden of Remembrance. And that this would be much greater than the occasional disruption the current use of the appeal site for boot fairs caused. In addition, a new access road needed to be constructed, together with a walled Garden of Remembrance and a chimneystack for the crematorium as well as a substantial landscaping scheme. In my view, cumulatively, these would cause a reduction in the openness of the site and encroachment into the countryside. Nor would this be offset by the restoration of the Estate or improved opportunities for public access. I consider the development would therefore be injurious to the Green Belt.”

Finally, the inspector considered, in paras. 14-22 of his decision, whether there were any very special circumstances which outweighed the presumption against inappropriate development. He concluded that there were not.

[16]The attack advanced by Mr Jonathan Clay for the developer on the inspector’s decision on the Green Belt issue followed the inspector’s formulation of the issue. He attacked the inspector’s conclusion(i) that the proposed development amounted to inappropriate development within the Green Belt, and

(ii) that very special circumstances did not exist to overcome the presumption against such development. Mr Clay took a third point, namely that the reasons which the inspector gave for his conclusion that the proposed development amounted to inappropriate development within the Green Belt were inadequate. I shall deal with each of these criticisms of the inspector in turn. (i)Inappropriate development. Mr Clay attacked the inspector’s conclusion that the proposed development was inappropriate development within the Green Belt on a number of grounds. His argument proceeded on the assumption that only paras. 11 and 12 of the inspector’s decision gave the reasons for that conclusion. They were that (a) crematoria (unlike cemeteries) were not appropriate development within the Green Belt per se, (b) the viability of the proposed development was dependent on the crematorium, since so many more people these days are cremated than buried, and (c) the Secretary of State had previously dismissed an appeal relating to a proposed development for a crematorium and a chapel at another site on the ground that the development would be inappropriate development within the Green Belt. It is said that not only were these three reasons either wrong or irrelevant, but also that the inspector’s reasoning ignored the fact that the crematorium was merely a small element in the proposed development. Had the inspector not ignored that, he might well have concluded that the proposed development, when taken as a whole, was appropriate development within the Green Belt.

[18]That last point needs to be expanded. Parts of the site were not to be developed at all (namely, the woodland which was protected), and when one looks at the parts of the site which were to be developed (bar the building housing the chapels and the crematorium, the access road and the car park), they were to be used as a cemetery, which was appropriate development within the Green Belt. Even then, the building housing the chapels, the access road and the car park served the cemetery as much as the crematorium. Indeed, the only part of the crematorium which could not be used with the cemetery and which was above ground would be the chimneystack. Bearing in mind that the proposed development engaged both limbs of the statutory definition of “development”, it is said that the questions which the inspector should have addressed were these. First, to the extent that the development included the carrying out of building operations on the land, the inspector should have asked whether (to use the language of para. 3.4 of PPG2) the building housing the chapels would be an essential facility for the cemetery. The fact that the building housing the chapels also housed the crematorium could be ignored because the crematory and the cremators were all to be below ground level. Secondly, to the extent that the proposed development included the making of a material change in the use of the land, the inspector should have asked whether (again to use the language of para. 3.4 of PPG2) the crematorium, looked at in the context of the whole of the proposed development, amounted to a use of the land which preserved the openness of the Green Belt and which did not conflict with the purposes of including land within the Green Belt as set out in para. 1.5 of PPG2.

[19]One of the problems with these arguments is that it was not argued before the inspector that the proposed development, taken as a whole, was appropriate development within the Green Belt. It was expressly conceded by Mr Clay (who appeared for the developer at the appeal to the inspector) in paras. 1 and 2 of his closing submissions that the only issue remaining unresolved (leaving aside the playing fields issue) was “…..[w]hether there are very special circumstances, including the need for cemetery and crematorium facilities, which outweigh the harm by reason of inappropriateness which could be caused to the Green Belt.” Indeed, this was in accordance with the evidence given by Mr Frederick Robinson, a chartered town planner whose practice prepared the application for planning permission. He claimed that a substantial proportion of the building which housed the crematorium could be regarded as being appropriate development within the Green Belt, because much of the building served the cemetery, and the building could therefore be regarded as an essential facility for the cemetery: see para. 7.5 of his proof of evidence. But he accepted that different considerations applied to what he described, in para. 7.6 of his proof of evidence, as “the additional features which are required over and above those which are necessary to successfully operate the cemetery”. In relation to those additional features, he accepted that there was an obligation on the developer to justify those additional features on the basis of very special circumstances.

[20]There is no general principle that a party to an appeal under section 78 is to be prevented from raising, in a challenge under section 288 to the decision made on the appeal, an argument which had not been advanced on the appeal. But it would not normally be appropriate to permit a new argument to be raised if it required some further findings of fact or the exercise of planning judgment (which is, of course, for the inspector and not the court): see R (on the application of Newsmith Stainless Ltd.) v Secretary of State for Environment, Transport and the Regions

[2001] EWHC 74 (Admin)

. However, the present case was a case in which(a) the inspector regarded the question whether the proposed development was inappropriate development within the Green Belt as a relevant issue (see his formulation of the Green Belt issue), and

(b) the inspector proceeded to decide that issue (see paras. 11 and 12 of his decision). In these circumstances, it would not be right to prevent the developer from arguing that the inspector’s conclusion on the issue was wrong.

[21]I deal first with the assumption that paras. 11 and 12 of his decision contained all the inspector’s reasons for his conclusion that the proposed development was not an appropriate development within the Green Belt. I can see where Mr Clay is coming from. Those paragraphs dealt specifically with the issue of appropriateness, and the issue of appropriateness was not referred to in express terms again in the decision. But I regard para. 13 as also addressing the question whether the proposed development was appropriate development within the Green Belt. It is true that para. 13 concluded with the statement that the proposed development would be injurious to the Green Belt. But whether the proposed development would cause “demonstrable harm” (which was the language used by Staughton LJ in Pehrsson) only arises if the proposed development had been found to be appropriate development within the Green Belt. Since the inspector was finding the proposed development to be inappropriate development within the Green Belt, the question whether the proposed development would be injurious to the Green Belt must have been part of his reasoning for concluding that the proposed development would be inappropriate development within the Green Belt. Moreover, the inspector described the Green Belt issue as follows:

“….. whether the proposal amounts to inappropriate development in the Green Belt, and if so, whether there are any very special circumstances sufficient to overcome the presumption against such development.”

Since his consideration of the second of these two topics began at para. 14 of his decision, what he said before that (including para. 13) related to whether the proposed development amounted to inappropriate development within the Green Belt.

[22]I turn, then, to the three reasons which Mr Clay says the inspector gave in paras. 11 and 12 of his decision for his conclusion the proposed development would be inappropriate development within the Green Belt. First, in para. 11 the inspector said:

“….. whilst cemeteries are appropriate development in the Green Belt, crematoria are not”

. Plainly, the inspector had in mind the reference to cemeteries in para. 3.4 of PPG2, and the absence of a reference there to crematoria. That is entirely understandable, but Mr Clay’s point is that the inspector failed to consider the rest of para. 3.4, namely whether the use of the land as a crematorium was a use which preserved the openness of the Green Belt and which did not conflict with the purposes of including land within it set out in para. 1.5 of PPG2.

[23]I cannot accept this argument. It is difficult to tell whether, when the inspector said that cemeteries are appropriate development within the Green Belt, but crematoria are not, he was referring to the concession made by Mr Robinson, rather than expressing his own view. In the three earlier sentences in para. 11, the inspector was plainly referring to the argument advanced on behalf of the developer. And in using the language which he did, the inspector was following the language of Mr Robinson in para. 7.3 of his proof of evidence, in which Mr Robinson had said:

“Certain types of development are regarded as being appropriate and these are set out in paragraph 3.4 of the guidance. The list include cemeteries but not crematoria.” (Emphasis supplied)

But assuming in favour of the developer that the inspector was expressing his own view, it is not right to say that the inspector did not consider whether the use of the land as a crematorium was a use which preserved the openness of the Green Belt. He addressed that question expressly in para. 13 of the decision. He concluded that the day-to-day activity on the site which would result from a busy crematorium operating on it, when coupled with the new access road, a walled Garden of Remembrance, a prominent chimneystack, and a substantial landscaping scheme, “would cause a reduction in the openness of the site and encroachment into the countryside”. The intensity of the use of a site is something which can affect the openness of the Green Belt. Thus, the inspector asked (and answered) the second of the two questions referred to in para. 18 above which Mr Clay contended that he should have asked.

[24]Secondly, in para. 12 of his decision, the inspector said that, since a greater proportion of people are cremated than buried, the viability of the proposed development was dependent on the crematorium. Mr Clay argued that the dependence of the commercial viability of the proposed development on the revenue generated by the crematorium was an immaterial consideration. What was material was whether, taking the proposed development as a whole, it was appropriate development within the Green Belt. I cannot go along with this argument. Its flaw is that it assumes that the relative importance of the crematorium to the success of the proposed development was a discrete part of the inspector’s reasoning. I do not think that it was. I have already said that in para. 13 of his decision, the inspector was addressing the question whether the proposed development was appropriate development within the Green Belt. So when the inspector said in para. 12 of his decision that “the viability of the proposal was dependent upon the provision of the crematorium”, he was only laying the ground for what he was to develop in para. 13, namely that it was the crematorium rather than the cemetery which would contribute particularly to the intensity of the use of the site. That increased intensity was one of the factors which “would cause a reduction in the openness of the site and encroachment into the countryside”.

[25]Thirdly, in para. 12 of his decision, the inspector referred to the dismissal by the Secretary of State of an appeal relating to a proposed development for a crematorium and a chapel at a site in Halstead on the ground that the development would be inappropriate development within the Green Belt. The inspector plainly regarded the Secretary of State’s decision on that appeal as lending weight to his conclusion that the proposed development would be inappropriate development within the Green Belt. Mr Clay criticised the inspector for treating the Secretary of State’s decision on that appeal in that way. He pointed out that the appeal which the Secretary of State dismissed related to an application for outline planning permission only for the erection of a crematorium and a chapel. Although planning permission was alternatively being sought for a chapel and for permission to use the land as a cemetery, the appeal which the Secretary of State dismissed was not an application for planning permission for a crematorium and chapel and an application for permission to use the land as a cemetery. It was an application for the former only. That difference from the proposed development in the present case was said to make the inspector’s reliance on the Secretary of State’s decision in the Halstead case misplaced.

[26]In order to evaluate that argument, it is important to see how the Halstead appeal came to the inspector’s notice. It was referred to in Mr Robinson’s proof of evidence. What was relied on was not the dismissal of the appeal relating to the application for planning permission for the crematorium and chapel, but the success of the appeal relating to the application for planning permission for a chapel in connection with the use of the land for burials. The point which Mr Robinson was making was that such a chapel was regarded as an essential facility for a cemetery within the meaning of para. 3.4 of PPG2. Thus, such a chapel in a building which also housed a crematorium should, so the argument went, also be regarded as an essential facility for a cemetery.

[27]The inspector did not deal with this argument. Indeed, I accept that he did not ask (or answer) the first of the two questions referred to in para. 18 above which Mr Clay contended that he should have asked. But he did not have to consider the issue whether the building housing the chapels would be an essential facility for the cemetery if he concluded that the proposed development amounted to a use of the land which did not preserve the openness of the Green Belt (which was how the inspector answered the second of the two questions which Mr Clay contended that he should have asked). His answer to the second question made any answer to the first question academic.

[28]I return to such use as the inspector made of the Halstead appeal, bearing in mind that he was concentrating on whether the proposed change of use of the land would affect the openness of the Green Belt. In that light, the inspector must be regarded as merely saying that the Halstead appeal lent weight to the proposition that a crematorium, whether accompanied by a cemetery or not, would be inappropriate development within the Green Belt. In the Halstead appeal, the crematorium was not to be accompanied by a cemetery. In the present case, it was. But that made no difference to the support which the inspector derived from the Halstead appeal. In my judgment, it was entirely appropriate for the inspector to approach the Halstead appeal in that way.

[29]The attack on the inspector’s conclusion that the proposed development was inappropriate development within the Green Belt was mounted on a number of bases – that the reasons which he gave for his conclusion were flawed, that he reached his conclusion without considering all relevant considerations, and that he ignored some relevant ones. Many of these points overlapped, and I have dealt with them all in what I have said so far. I do not think that the inspector’s conclusion on whether the proposed development was inappropriate development within the Green Belt was legally flawed.

[30](ii) Very special circumstances. The main thrust of the developer’s argument before the inspector was that there was a pressing need locally for the disposal of the dead, though the developer also relied on other factors which were said to support the contention that there were very special circumstances here which outweighed the presumption against inappropriate development within the Green Belt. In paras. 14-20 of his decision, the inspector considered whether the need for the disposal of the dead justified the development, and he concluded that it did not. One of the developer’s contentions is that the inspector wrongly thought that the only circumstance advanced by the developer which was said to outweigh the presumption against inappropriate development was the need locally for the disposal of the dead.

[31]That is quite wrong. It is true that in para. 14 of his decision, the inspector said that the developer claimed “that the need for the disposal of the dead is such that this alone was supposed to justify the development” (emphasis supplied). But that was no more than a reflection of the developer’s case which was that that factor alone was sufficient to justify the development. It did not mean that the inspector did not appreciate that the developer was saying that other factors were in play as well. Indeed, in para. 21 of his decision, the inspector referred to one of the other factors relied on, namely the landscaping improvements which the proposed development would bring about.

[32]The other argument advanced on the developer’s behalf was that in considering whether there were very special circumstances justifying the development, the inspector gave insufficient weight to the combination of the following three factors:(a) the sports pavilion was already on the site, and it was larger than the building which was proposed on the site,

(b) but for the chimneystack, the crematorium was entirely below ground, and it did not impinge on the openness of the land, and

(c) the use of the land would not conflict with the purposes of including land within the Green Belt set out in para. 1.5 of PPG2.

[33]I do not think that this criticism of the inspector is justified. He was aware of the comparative sizes of the sports pavilion and the building which was to replace it. He was equally aware that, apart from the chimneystack, the features of the building which were attributable to the crematorium only were below ground level. He had referred to these facts in the section of his decision headed “Background”. But even if this meant that the physical impact on the site of the construction of the new building would not be that great, it was the combination of that new construction and the intensive use of the site which a crematorium on it would cause that the inspector regarded as critical. It was that combination of factors which the inspector in para. 13 of his decision regarded as failing(a) to preserve the openness of the Green Belt (as required by para. 1.4 of PPG2) and

(b) to prevent an encroachment on the countryside (as prohibited by para. 1.5 of PPG2). It was, in my opinion, entirely open to the inspector to come to that conclusion.

[34](iii) Reasons. The argument that the inspector gave inadequate reasons for his conclusion that the proposed development amounted to inappropriate development was based on the assumption that only paras. 11 and 12 of his decision gave his reasons for that conclusion. That assumption is wrong. As I have said, para. 13 of the decision addressed the issue of inappropriateness as well. In those circumstances, the premise on which the attack on the adequacy of the inspector’s reasons was based falls away.

The playing fields issue

[35]The inspector dealt with the playing fields issue in paras. 23-27 of his decision. He noted that bowls, tennis and cricket were no longer played at Flamingo Park. Only football was played there, and then only at weekends. Even that had been declining. Indeed, an independent assessment of the demand for playing fields commissioned by the developer had revealed an abundant surplus of sports pitches within a three mile radius of Flamingo Park. It may be that the inspector did not mention what Mr Clay said was the effect of evidence which was not disputed, namely that the local community did not use the playing fields. But he did say that one of the surveys conducted on behalf of the developer revealed that a majority of those using Flamingo Park did not live locally.

[36]However, the inspector said in para. 24 of his decision:

“….. the surveys did not seek public opinion on the scheme as an alternative to the sports field use or properly address other possible open space uses. So in terms of the requirements in para. 10 of [PPG17], it is clear that the assessment and surveys did not properly address the wider open space needs of the community or demonstrate that the proposals were widely supported by them. Nor is there yet a local authority assessment of those needs as required by PPG17, although one is now being carried out.”

The inspector then turned to para. 15 of PPG17. In para. 25 of his decision, he said:

“Para. 15 of PPG17 says that planning permission should not be granted for development involving playing fields in advance of an assessment of need unless certain criteria are met ensuring the continued availability of sports facilities on the site or a replacement of these. This would not be the position in this case. Also, the independent assessment of need cannot be considered as a robust assessment in line with PPG17 and Diagram 1 of ‘Assessing Needs and Opportunities’, a companion guide to PPG17 for the reasons I have explained. Indeed the [developer] has had to modify this diagram so that it fits the assessment that has been carried out.”

The inspector concluded that the justification for the loss of the playing fields had not been demonstrated.

[37]It is important to identify the nature of the assessment which para. 10 of PPG17 required. It was not simply an assessment of the demand for playing fields. The assessment which had to be undertaken was one which addressed the question whether Flamingo Park could be used for a purpose other than playing fields in a way which preserved its essential feature as open space. That is the effect of the first two sentences of para. 10. Playing fields are but one of the many uses to which open spaces can be put, as para. 2 of the Annex to PPG17 demonstrates. The comprehensive assessment which the developer commissioned on the need for Flamingo Park to continue to be used as playing fields and on the local availability of sports pitches elsewhere did not address the question whether Flamingo Park could be used for a purpose other than playing fields in a way which preserved its essential feature as open space.

[38]It follows that the criticism that the inspector failed to consider whether the developer had robustly assessed the need for the retention of playing fields at Flamingo Park misses the point. The inspector did not doubt that there had been a robust assessment of that question: not even Bromley seriously challenged the conclusion that, even allowing for the loss of the football pitches at Flamingo Park, there were enough of them elsewhere to satisfy local demand. But what the inspector was saying was that the assessment had not addressed the other question which para. 10 required the assessment to address, namely whether Flamingo Park could be used for a purpose other than playing fields. That is what the inspector meant when he said that “the surveys did not ….. properly address other possible open space uses”. I appreciate that there was no absolute requirement for there to be an assessment of whether Flamingo Park could be used for a purpose other than playing fields. After all, PPG17 gives guidance only. But it was open to the inspector to conclude that the absence of such an assessment in this case was something to which considerable weight should be attached.

[39]Another criticism of the inspector is misplaced as well. The local community had to be consulted over the extent to which local residents used the playing fields at Flamingo Park. That was an important component of the assessment of the need for the retention of playing fields. But para. 10 required the local community to be consulted over something else:

“Developers will need to consult the local community and demonstrate that their proposals are widely supported by them.” (Emphasis supplied.)

Thus, the local community had also to be consulted over the proposed development. It was only if there was “wide” support for Flamingo Park to be converted into a crematorium and a cemetery that the requirements of para. 10 will have been satisfied. The surveys commissioned by the developer did not involve consultation with the local community on that issue. That was why the inspector said that “the surveys did not seek public opinion on the scheme as an alternative to the sports field use”. That was correct, and in view of the penultimate sentence of para. 10, he cannot be criticised for regarding that fact as significant. Again, there was no absolute requirement for the developer to demonstrate such support for its proposals, but the inspector was entitled to attach such weight as he thought was appropriate to its absence.

[40]Thus, when the inspector said that “the independent assessment of need cannot be considered as a robust assessment in line with PPG17”, he was not doubting the robustness of the assessment about the absence of any local demand for retaining playing fields at Flamingo Park. He was criticising the assessment for not addressing(a) what else Flamingo Park could be used for consistent with the need to preserve its openness and

(b) whether the local community supported the proposal for a crematorium and cemetery on the site.

[41]Mr Clay contended that, to the extent that para. 10 really did require the developer to show that its proposals were widely supported by the local community, that requirement was unlawful in that(a) it was inconsistent with para. 60 of Planning Policy Guidance 1: General Policy and Principles (“PPG1”),

(b) it made planning permission dependent on local support,

(d) it imposed far too onerous a burden on the developer. These arguments tend to overlap with each other, and I propose to deal with them together, but I disagree with the premise on which the argument is based. If the requirement to show wide support for the proposal was an absolute requirement, it would be right to say that it made planning permission dependent on local support. But I repeat, PPG17 gives guidance only, and it is for the local planning authority (and on an appeal for the inspector), in any given case to decide what weight to attach to the absence of such support, bearing in mind the guidance that a proposal should not be permitted to proceed without it.

[42]Para. 60 of PPG1 provides that “local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless the opposition or support is founded upon valid planning reasons which can be substantiated”. But that was said in the context of the consideration of planning applications by local planning authorities. Moreover, para. 60 went on to reassert the need to take into account any relevant views on planning matters expressed by local residents, thereby making such views a material consideration for the local planning authority to put into the balance. But the core point is that the requirement on local planning authorities not to regard the absence of local support for a particular proposal as decisive of the application for planning permission has little bearing on whether, as a matter of planning policy, a change of use of an open site ought to be permitted only where there is wide support for that change.

[43]I acknowledge the difficulties which developers can sometimes face in demonstrating wide public support for their proposals. People are unlikely to support a proposal for a development which would attract a greater volume of traffic into the locality and which they would use only rarely. And there are some developments which by their nature are ones for which consultation may be difficult. The people who will be most acutely aware of the adequacy of existing facilities for the disposal of the dead are the recently bereaved, and sensitivity for their feelings may require that they should not be troubled by being asked to answer questions for a survey. But it would not be all that difficult for the views of local community groups to be canvassed, and the flexibility within PPG17 (because it lays down guidelines only) enables local planning authorities to give less weight to the absence of demonstrable public support for some developments than would be appropriate for others. In all the circumstances, I have concluded that the guidance in para. 10 of PPG17 that developers should show that their proposals are widely supported by the local community is not unlawful.

[44]The inspector’s conclusion on the issues raised by para. 10 of PPG17 made his consideration of para. 15 of PPG17 academic, but I ought to comment on it briefly. The inspector thought that where the proposed development was to be on land being used as playing fields, and where the local authority had not undertaken its own assessment of what the land could be used for while preserving its openness, para. 15 requires the application for planning permission to be refused unless the playing fields which are lost by the redevelopment are to be replaced. In other words, the inspector construed the words “a robust assessment of need in accordance with this guidance” as referring only to the local authority’s assessment. That is the only way to make sense of para. 25 of his decision, in view of his criticism of the developer’s need to modify a diagram in a companion guide to PPG17 published in 2002 by the Office of the Deputy Prime Minister.

[45]That needs a little explanation. That diagram set out a flow-chart for the process of decision-making when the redevelopment of an existing open space or a sports or recreational facility is proposed. That flow-chart shows that para. 15 is engaged if the local authority has not undertaken its own assessment of the use to which the land could be put consistent with the need to preserve its openness, and if the land is currently being used as playing fields. The developer’s consultants created their own flow-chart which differed from the flow-chart in the companion guide in order to reflect their contention that para. 15 is not engaged, even though a proposed development relates to land being used as playing fields, provided that an assessment of the kind contemplated by para. 10 has been carried out, whether by the local authority or the developer.

[46]I agree with that contention. In my view, the words in para. 15 “a robust assessment of need in accordance with this guidance” refers to any assessment of the kind contemplated by para. 10, whether carried out by the local authority or the developer. The clue is the words “in accordance with this guidance”. That can only be a reference to the guidance in para. 10, and that guidance refers to an assessment by the local authority, but failing that an assessment by the developer. It was therefore wrong for the inspector to criticise the developer for its use of a different flow-chart.

[47]But that is not to say that para. 15 had not been engaged. The assessment by the developer’s consultants had not been an assessment of the kind contemplated by para. 10, because of the failings referred to in para. 40 above. Thus, para. 15 was engaged for that reason, and since the playing fields which would be lost by the proposed development were not to be replaced (the existing playing fields in the locality being regarded as sufficient), the conditions laid down by para. 15 for the grant of planning permission had not been met.

Conclusion

[48]For these reasons, this application must be dismissed. I do not want to put the parties to the expense of having to attend court when this judgment is handed down, and I leave it to them to see if they can agree costs. This may be a case in which Bromley should not be awarded its costs, in view of the First Secretary of State’s sustained opposition to the application. But if the parties cannot agree an appropriate order for costs within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any representations which are made. If the developer wishes to apply for permission to appeal, that application should be made to me on paper within 7 days of the handing down of this judgment, and I will consider it quickly without a hearing so as to enable any notice of appeal to be filed within the time limit of 14 days.