“It is considered by Officers that in this finely balanced case, the benefits of the proposal outweigh the identified harm and as such the application is recommended for conditional approval. All other matters raised have been taken into account... but none is considered of such significance as to outweigh the considerations that have led to the conclusion.”
“41. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarize the law as it stands:... (2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer's advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer's advice, the court will not interfere.”
“34. It is also worth recalling some of the basic principles that govern the making of a decision by a planning committee. 35. First, the task of a planning committee is to exercise its own planning judgment, bringing to the decision the members' familiarity with local circumstances and relevant planning policies, in the light of the advice given by the authority's professional planning officers (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 ;[2011] 1 WLR 268 , at paragraph 36, and the leading judgment in this court in Corbett v Cornwall Council[2020] EWCA Civ 508 , at paragraphs 65 and 66). 36. Secondly, the function of a planning officer when producing a report to the committee responsible for deciding whether planning permission should be granted for a proposed development is not to decide the fate of the proposal, but to provide to the members his or her own planning judgment and advice to help them in making the decision (see, for example, the judgment of Sullivan J., as he then was, in R. (on the application of Mendip District Council, ex parte Fabre [2000] J.P.L. 810, at p. 821). And if there is no evidence to the contrary, it may be assumed that when the committee has followed the officer's recommendation they have adopted the reasoning on which that recommendation was based (see the judgment of Lewison L.J. in R. (on the application of Palmer) v Herefordshire Council[2017] 1 WLR 411 , at paragraph 7). 37. And thirdly, the jurisdiction of the court in its supervisory role is to establish whether the authority's decision-making has been vitiated by any error of law (see the speech of Lord Keith of Kinkel in Tesco v Secretary of State, at p.764G-H). The court will review the decision with realism and common sense, avoiding an excessively legalistic approach (see the leading judgment in this court in Mansell v Tonbridge and Malling Borough Council[2017] EWCA Civ 1314 ;[2019] PTSR 1452 , at paragraph 41). It will not focus merely on the precise phrasing of individual sentences or paragraphs in a planning officer's report, without seeking their real meaning when taken in context. Only if the effect of the report is significantly to mislead the members on a material issue will it interfere with the committee's decision (see Mansell, at paragraph 42). In considering that question, the court will read the report fairly, as a whole and with a reasonable degree of benevolence, not forgetting that it has been addressed to an audience of councillors familiar with local circumstances (see, for example, the leading judgment in R. (on the application of Lee Valley Regional Park Authority) v Epping Forest District Council[2016] EWCA Civ 404 ; [2016] Env LR 30, at paragraph 30; and the judgment of Lewison L.J. in Palmer, at paragraph 8).”
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“57. Thus in Oakley the Court of Appeal were entitled in my view to hold that, in the special circumstances of that case, openness and fairness to objectors required the members’ reasons to be stated. Such circumstances were found in the widespread public controversy surrounding the proposal, and the departure from development plan and Green Belt policies; combined with the members’ disagreement with the officers’ recommendation, which made it impossible to infer the reasons from their report or other material available to the public. The same combination is found in the present case, and, in my view, would if necessary have justified the imposition of a common law duty to provide reasons for the decision. 58. This endorsement of the Court of Appeal’s approach may be open to the criticism that it leaves some uncertainty about what particular factors are sufficient to trigger the common law duty, and indeed as to the justification for limiting the duty at all (see the perceptive analysis by Dr Joanna Bell: Kent and Oakley: A Re-examination of the Common Law Duty to Give Reasons for Grants of Planning Permission and Beyond (2017) 22 Judicial Review 105-113). The answer to the latter must lie in the relationship of the common law and the statutory framework. The court should respect the exercise of Ministerial discretion, in designating certain categories of decision for a formal statement of reasons. But it may also take account of the fact that the present system of rules has developed piecemeal and without any apparent pretence of overall coherence. It is appropriate for the common law to fill the gaps, but to limit that intervention to circumstances where the legal policy reasons are particularly strong. 59. As to the charge of uncertainty, it would be wrong to be over-prescriptive, in a judgment on a single case and a single set of policies. However it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the “specific policies” identified in the NPPF - para 22 above). Such decisions call for public explanation, not just because of their immediate impact; but also because, as Lord Bridge pointed out (para 45 above), they are likely to have lasting relevance for the application of policy in future cases.”
“Officers consider that it has been demonstrated that there is a qualitative and a quantitative need for a new crematorium, to address the existing and future projected population of North Cornwall. The proposed crematorium would benefit approximately 56,000 people (Natural Catchment Area) by reducing their journey time to the nearest crematorium. With the projected population growth rates, the number of people likely to benefit is expected to increase to 61,600 by 2030 and 65,072 by 2040. It is accepted these figures are significantly less than the average 150,000 figure referenced in many appeal decisions (although this is not set in any legislation or policy); however, the proposal would address a not insignificant proportion of the identified need for north Cornwall. In terms of practical capacity issues identified at existing crematoria, those most positively affected would be Bodmin and Barnstaple, along with a small reduction to Plymouth. The proposal would assist in alleviating some of the identified current pressure at existing facilities, which in turn would lead to qualitative improvements for those living within these new natural catchment areas. This would become apparent in terms of availability of preferred times, reduced delays between death and funerals and congestion at crematoria resulting from facilities needing to reduce the slot times to meet demand. It is, however, noted that the submitted report sets out that even if the proposed development were to be constructed, Bodmin would be likely to be back to an operating level of 120% of Practical Capacity by 2030. In terms of the local residents within the catchment area of the proposed new site, the development would mean that approximately 28,500 people would for the first time live within the industry recognised 30-minute cortege drivetime of a crematorium, which would address over 23% of the current unserved population. They would also benefit from other qualitative improvements resulting from the availability of slots, reduced wait times and additional choice. As has been mentioned by some supporters of the scheme, there would also be more option in regard to more easily holding wakes within the local area to the deceased. Overall, the proposed development would lead to a reduction of travel times for the bereaved, leading to less distress, reduced emissions and the development of more localised provision which is considered to be more sustainable. It is Officers opinion that the qualitative need, and to a lesser extent the quantitative need of this development, are such that the proposed crematorium is, on balance, acceptable in this location.”
“The report sets out that approximately 1,107 cremations take place each year in North Cornwall, with bereaved friends and family (estimated at over 22,000 people based on average attendance levels) having the additional stress of travelling in a cortege for more than 30 mins.”
“69. The proposed crematorium would be the nearest facility for nearly 56,000 people (The Natural Catchment Area - NCA). Of this figure a total of 28,431 (or 23.15% of the unserved population of North Cornwall) would live within a 30-minute cortege drive time of it, which based on average attendances, would equate to nearly 5,000 local people each year not suffering from the stress of long journey in a cortege, which would otherwise be held at less convenient sites. 70. In addition, the NCA of the proposed crematorium, based on average deaths per year, cremation rates, and other factors, would be likely to generate around 504 cremations per year. Most of the population in the NCA - around 65% of it, is currently within the NCA of Bodmin, while 33% is in Barnstaple's NCA. The remainder is currently closest to Plymouth. The report sets out the proposed development would therefore reduce pressure on the existing facilities (particularly Bodmin) and as such assist in addressing both the existing and future quantitative and qualitative need in the area. 71. In regard to the number of cremations likely to be undertaken at the proposed site per year, the need report sets out that there is no agreed threshold number of cremations per annum by which a crematorium would be deemed viable. It does however refer to The Federation of Burial and Cremation Authorities Recommendations on the Establishment of Crematoria 2012 Report which states “Broadly speaking, crematoria undertaking 1000 or more cremations per annum are most likely to be viable, although there are a number of crematoria, mainly serving rural or island communities undertaking fewer than this....”
“Whilst consent was granted... in 1999 for a crematorium north of Holsworthy this has not been delivered and the subsequent development of a livestock market on adjoining land means that the site would no longer meet operational requirements due to issues of odour and noise.”
“90. In terms of population, it is relevant to note that, as referred to in a number of objections to the proposals, there is a general industry guide accepted in appeal decisions that a population of approximately 150,000 would support a new crematorium. In this regard, the submitted report refers to the population for the whole of Cornwall and divides this by the number of existing crematoriums in Cornwall. Whilst this may be a useful benchmark, limited weight is given to this, as it is considered logical that this figure is intended to be an area of population which would be served by a new crematorium. Unlike many other counties, Cornwall has a dispersed population primarily due to its peninsula form. This view is considered to be consistent with a recent Competition and Markets Authority (CMA) Report (Funerals Market Investigation: Final Report 18.122.20) which refers to appeal decisions defining a quantitative need where a new crematorium will be the closest crematorium for between 136,000 and 171,000. Notwithstanding this, the submitted report sets out that there is an estimated current population in north Cornwall of approximately 122,800 that are outside of the industry standard drive time to existing sites and this large geographic area currently unserved is considered to be clearly apparent on the map submitted. [This refers back to the map earlier in the Officer’s Report.] The population is forecast to grow by 9.9% by 2030. 91. In terms of capacity at existing crematoria, it is identified that Bodmin Crematorium is currently operating well in excess of its practical capacity (130% in 2019), as are many of the other crematoriums out of county used by Cornwall's residents. The pressure on the Bodmin facility and those in neighbouring counties will increase before the end of the Cornwall Local Plan Period (2030) and beyond as a result of increased population, an ageing population, increase death rates and an increased rate of preference for cremations.”
“95. Consideration is also required of the length of time it takes residents of Cornwall to access these services, which primarily due to the current distances involved, is generally accepted as being mainly by car. The time it takes to access the nearest crematorium is one of the considerations in assessing quantitative need. In this regard a Competition Market Authority Report recently identified that appeal decisions have considered that an indicator of this aspect of qualitative need is evident when a population of between 59,000 and 95,000 would benefit from reduced travel time. The submitted report sets out that there is an estimated population of over 122,800 people in North Cornwall living outside of the 30-minute cortege drive time of existing crematoriums. Whilst 30 minutes is an industry ‘rule of thumb,’ a review of appeal decisions demonstrates that it has been acknowledged that in rural areas people are more accustomed to travelling further to access services and facilities and, as such, in some cases a journey time of up to 45 minutes is not considered unreasonable. It is evident however, that there are large areas of North Cornwall where even the 45-minute cortege drive time is significantly exceeded with some areas being in excess of an hour each way. This is considered to be demonstrated and reflected in comments of support included within the submission and those submitted by members of the public, members of the clergy and local funeral directors. 96. A reduction in travelling times and distance would be less distressing for the bereaved and would save fuel costs and carbon emissions. Reduced travel times would, in turn, enable more choice and options in terms of the use of local venues for church services, receptions/wakes and local accommodation for those travelling to the area to attend. 97. Provision of an additional facility would also provide more choice to residents of North Cornwall in respect of location and services, including more flexibility and availability of times and days and shorter waiting periods. 98. It is therefore Officers opinion, when taking into account the projected growth of population within the plan., the existing facilities practical capacity issues, death rates and increased choice for cremation and the extent of the population well outside of accepted cortege drive times, that Quantitative and Qualitative Need for a new crematorium to serve North Cornwall has been demonstrated.”
“convenience and accessibility...does not amount to a compelling need.”
“It does meet a degree of the need quantitatively and there is a qualitative need, which it would address too. So that's the crux of that discussion really, is about whether or not the harm of introducing this kind of development in the countryside location outweighs the benefits.”
“213. Objections have been raised in regard to the scheme not being viable. Reference is made to the Federation of Burial and Cremation Authorities (FBCA) guidance (which is also referenced within the submitted Needs Assessment) and states that ‘Broadly speaking, crematoria undertaking 1000 or more cremations per annum most likely to be viable.’ However, it should be noted that this guidance goes on to state that ‘there are a number of crematoria, mainly serving rural or island communities undertaking fewer than this...’ 214. It is noted that the recent Competition and Markets Authority review, evidence submitted by operators of crematoriums suggests that 800 per annum could be viable, whilst another party suggested 600 per annum would be viable due to the current level of cremation fees. [Paragraphs 215-6 repeat the Consortium need case.] 217. Whilst the concerns in this regard have been considered and it is acknowledged that some of the assertions regarding additional cremations coming from outside of the natural catchment area are subjective, it is nevertheless considered that no such evidence has been presented to contradict the applicant’s position in terms of viability. The development of the site in terms of its financial viability is ultimately considered to be a matter of commercial interest.”
“Yep. Viability to a certain extent to ensure that we wouldn’t want to necessarily issue a planning permission which we didn't feel was viable. There is obviously an additional element here in terms of competition between varying aspects so you are going to get a slight difference of opinion in terms of what one company considers to be viable and what another might not.”
“appropriate in scale”, failing which “overriding need.”
“In terms of the principle of development, officers accepted that, given the provisions of theCremation Act 1902 , the siting of a crematorium within the countryside is acceptable in principle. Whilst there is no specific policy within the development plan for the provision of crematoriums per se, they are all considered to be relevant policies. The proposal, which is considered to constitute a community facility, and would create employment within the area is considered on balance to accord with policies 4 and 5 of the Cornwall Local Plan.”
“In regard to policy 5, the development would provide 5 permanent jobs and 40 temporary jobs during construction. There would also be year-round indirect economic benefits resulting from generation of business for local businesses such as funeral directors, florists, gardeners and within the hospitality industry through booking of wakes and receptions and overnight accommodation for those travelling to attend a funeral. In regard to scale, the [FBCA] Report suggests that most operators aim for a site of at least 4 hectares (10 acres); it is noted that the FBCA recommends a minimum of two hectares (approx. 5 acres) per estimated 1,000 cremations per annum to provide sufficient space for the buildings, gardens, parking and circulation space. Whilst the proposed site is significantly larger than the minimum recommendations, the FBCA report goes on to state that ‘the long-term needs of the area should be carefully assessed at the initial design stage and sufficient land acquired initially to allow for future expansion to accommodate any increased demand for service provision.’ Whilst the site does encompass a large area, much of it is not proposed to be built on but would form natural green spaces and/or gardens and layout has been undertaken in order to locate the buildings at the lowest part of the site to minimise visual impacts. Furthermore, the building itself, whilst substantial, is set out such that it could accommodate additional cremators in the future if required and is not considered to be of such a scale to be inappropriate. On balance, given the identified existing and projected need and the extent of retained green space, the scale of the site is considered acceptable in this countryside location, in accordance with Policy 5 of the Cornwall Local Plan.”
“The scale and extent of development which amounts to 1785 sqm is significantly larger than most crematoria. Given the identified lack of need, no justification has been provided as to why a building of the scale proposed is necessary. Most crematoria are between 400 sqm and 750 sqm. Not only is there insufficient need for the crematorium, but no business case in support of the proposal has been provided which is in direct conflict with Policy 5 of the Local Plan. No alternative site assessment has been carried out.”
“significantly greater than is deemed necessary, and excessively ambitious for the proposed use and anticipated number of cremations. The consequential impact on the character and appearance of the area irrespective of the design approach, will be one of significant change which would be harmful. There is simply no justification for a building of the size proposed to serve the intended purpose or catchment population.”
“Where the scale of development is considered appropriate to its location, there is no need to move onto the second limb.”
“In terms of policy 27, the proposed development would result in a significant reduction in the distance and length of time travelling to existing crematoriums for a large proportion of local residents. Reduced distances also have benefits in reducing carbon emissions and addressing climate change, which is considered to be a positive environmental benefit to be weighted in the planning balance.”
“Policy 27 sets out that major development should be located so that the need to travel will be minimised and the use of sustainable transport modes can be maximised. In terms of minimising travel, the proposed development would result in a significant reduction in the distance and length of time travelling to existing crematoriums for a large proportion of local residents. Reduced travel distance also has benefits in reducing carbon emissions. The table below sets out an example of approximate reductions, comparing the closest current crematorium to that proposed…”
“1. Development proposals will need to sustain local distinctiveness and character and protect and where possible enhance Cornwall's natural environment and assets according to their international, national and local significance.”
“2. Development should be of an appropriate scale, mass and design that recognises and reflects landscape character of both designated and un-designated landscapes. Development must take into account and respect the sensitivity and capacity of the landscape asset, considering cumulative impact and the wish to maintain dark skies and tranquillity in areas that are relatively undisturbed, ....”
“Development within the Heritage Coast and/or Areas of Great Landscape Value [AGLVs] should maintain the character and distinctive landscape qualities of such areas.”
“Adverse impact on European and UK protected species... must be avoided wherever possible (i) subject to the legal tests afforded to them, where applicable (ii) otherwise, unless the need for and benefits clearly outweigh the loss.”
“Development should avoid adverse impact on existing features as a first principle and enable net gains by designing in landscape and biodiversity features and enhancements, and opportunities for geological conservation alongside new development. Where adverse impacts are unavoidable they must be adequately and proportionately mitigated. If full mitigation cannot be provided, compensation will be required as a last resort.”
“The site is located within the countryside within an undesignated landscape. There are, however, a number of designations in the wider area; these include Designated Areas of Great Landscape Value (AGLVs), just being located across the road (and to the Southwest) from the proposed access) approx. 450m from the proposed building); the edge of the Heritage Coast also extends up to the south side of the Widemouth Road (across the road from the site access and extend southwards; and the Cornwall Area of Outstanding Natural Beauty (AONB) is located approx. 1.2km (0.7 miles) to the south-west of the site.”
“121.Whilst it is acknowledged that the development of agricultural fields would inevitably alter the character and appearance of the site; by virtue of its positioning, design and form, use of materials and proposed landscaping Officers consider that the proposed crematorium building would not appear harmfully dominant, intrusive or incongruous within its setting and, as such, it is not considered to be harmful to the character and appearance of the area so as to warrant refusal on this ground. Similarly, the extent of proposed landscaping, base in regard to the cutting into the site to provide ‘ha ha's’ and the fill and tilt of the landform to screen the access roads and parking and the retention and provision of new hedges and soft landscape planting, is such that the associated access drive, hard standing areas (car parking, service area and footpaths), memorial and ornamental gardens, drainage features and landscaping would not appear harmfully incongruous, exposed or an over development of the land upon which they would be built.”
“In this case, the site is clearly not naturally screened by woodland or set in a parkland setting. However, the applicants set out the landscape led approach, which with changes in form and extensive landscaping, along with the retention and framing of the sea views from the chapel and grounds will provide the required sense of enclosure and calm.”
“Notwithstanding these amendments, Officers are in agreement with the Landscape Officer’s comments that the LVIA somewhat overstates the speed at which the tree planting is likely to establish in this location.”
“...that on completion it is more likely to be a neutral impact, it is nevertheless considered that there would be no material adverse impact and that the proposal would conserve and enhance the setting of the AONB.”
“...it is nevertheless considered that there would be no adverse impact on the character and amenity of AGLV and Heritage Coast, and the setting of both would be conserved.”
“137. In terms of the undesignated surrounding area, notwithstanding the proposed extensive landscaping and tree planting, the proposal would remain partially visible from some relatively close up public areas; the most notable two are considered to be from the Widemouth Manor Road and the A39. In terms of the Widemouth Manor Road, the new site access would be clearly visible and there would be fleeting views for users of the Road from the West, as they round the bend next to Higher Widemouth Farm before descending. From here, the upper sections of the crematorium building are likely to be partially visible below the skyline with the traffic of the A39 and a number of residential properties East of the A39 behind it along with the dwelling Furzewood would to the immediate East. 138. In terms of the A39, as a result of the road being at a level above the application site and the proposed level changes and creation of ‘ha-ha’s, views to the sea over the top of the development would remain to users of the A39. Views of the top section of the stone- faced side elevations and the very top of the rear of the crematorium building roof and Porte Cochere will be visible as users of the road pass by the site. The proposed extensive tree planting, the new planted Cornish hedge bank along the entire length of the eastern boundary of the site with the road and the retained and new proposed dividing hedges will in time provide further mitigation in filtering these views. However, as previously noted, given the exposed elevated position of this site, it is considered that the establishment of the tree planting may take longer than is suggested within the LVIA. 139. The proposed development would introduce a permanent new built element and associated activity within the current field system changing the land use and altering the character of a small part of the [Bude Basin LCA.] Given the design of the proposed building, siting of it within the natural dip in the landscape, use of natural sandstone and green roofs in the external materials and the proposed cut and filled to provide ‘ha-ha’s, it is considered that significant efforts have been made by the applicants to minimise and mitigate for any landscape and visual impacts. Notwithstanding this, the proposal would result in a significant increase in activity at the site over and above that existing and would be visible from a relatively small number of public vantage points; the most significant change arguably being apparent when travelling towards the site on the Widemouth Manor Road. There would also be a change to the appearance of the site and some reduction in sea views from the A39. Overall, officers are of the view that the proposal would result in a minor adverse visual impact, reducing to a neutral impact upon establishment of the proposed planting. However the surrounding landscape is considered to have capacity to accommodate such a change within landscape features without disturbing the current typical landscape character of the area. 140. In conclusion... it is considered that although landscape character and visual impact is undoubtedly a key consideration with regard to the proposed development, the landscape and visual impact is not considered by officers to be of such significance so as to warrant refusal of the application on this ground. Nevertheless, this impact will need to be considered in the balance of all other material considerations.”
“In regard to concerns raised regarding visual and landscape impacts and a submission of a Landscape Assessment on behalf of an objector, as set out in earlier in the report, officers are not wholly in agreement with the conclusions of the submitted LVIA (particularly in relation to the length of time it is likely to take for the planting to establish). Officers consider that the potential impacts of this development as seen from different viewpoints is a matter of judgement.”
“194...Subject to such conditions the proposal is considered to accord with policies 23 and 25 of the CLP and guidance contained within ...the NPPF... and the requirements of theConservation of Habitats and Species Regulations 2010 .”
“...the landscape and visual impact is not considered by officers to be of such significance so as to warrant refusal of the application on this ground. Nevertheless, this impact will need to be considered in the balance of all other material considerations.”
“appropriate”, “recognise” and “respect” are positive, and are not the words of avoidance of harmful dominance, intrusion or incongruity, let alone of harm insufficient to warrant refusal. The extent of the proposed landscaping, (cut, fill and tilt), hardstanding, drives, new hedgerows and soft landscaping “would not appear harmfully incongruous, exposed or an over-development....”
“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.”
“In conclusion, Officers consider that there is a need for a new crematorium. The proposed development would not serve the whole identified quantitative need; however it would address a proportion of it and would address qualitative need for the residents within the natural catchment area of the proposal. It would also assist in addressing some of the qualitative need resulting from existing crematoriums, which serve the North Cornwall population, running over practical capacity. The site is located within the countryside and comprises grade 3B agricultural land; however, due to occur constraints associated with the Cremation Act, it is generally accepted that such developments cannot be accommodated within settlements. The site is more divorced from any settlement than might perhaps be preferable. However, it is conveniently located in close proximity to one of the main highway routes through North Cornwall and is on bus routes. On balance the principle of development is therefore considered to be acceptable and in accordance with local planning policy and national guidance.”
“In considering this the courts have emphasised that this burden on the authority is not unduly onerous. That is unsurprising, given that the development cannot proceed without Natural England in fact granting an appropriate EPS Licence; and, if it does proceed without that licence, despite having planning permission for the development, then there is a criminal sanction.”
“If a proposed development is found acceptable when judged on its planning merits, planning permission for it should normally be given unless in the planning authority's view the proposed development would be likely to offend article 12(1) and unlikely to be licensed under the derogation powers.”
“In regard to ecology, surveys demonstrate that a number of species of bat including priority species utilised the site for commuting and foraging. No roosts were identified on site. It is considered that subject to the securing of appropriate mitigation measures via planning condition there would be no significant adverse impact on protected species. No objections are raised by the Council's Ecologist. In terms of Biodiversity Net Gain, given the extent of the proposed landscape planting and creation of new hedgerows, the proposal significantly exceed the policy requirement of 10%, demonstrating 118% on site net gain in habitat and a 42% on site net gain in hedgerows. This is considered to be a positive aspect of the proposal in the planning balance. The provision of the proposed measures would be secured via planning condition.”
“Based on the plans submitted, Natural England considers that the proposed development will not have significant adverse impacts on statutorily protected nature conservation sites or landscapes.”
“A good assemblage of bat species commute and forage within the site and therefore there is a need to ensure there is no light spill onto the hedgerows and these dark corridors are maintained.”
“The bat lighting plan 3, shows the hedgerows will be kept dark, yet there are buildings and car parking areas in proximity to these, please can additional information be provided on the measures the applicants/build will need to take to ensure there is no light spill onto the hedgerows. H2 is of particular concern. A Lux level of no more than 0.5LUX is the accepted maximum level. These details can be addressed through condition.”
“198. The surveys have identified that bats and nesting birds may be affected by this application. In accordance with Article 12 of the EU habitats directive, when adopting a precautionary approach, if there is likelihood that ‘disturbance’ may occur which in this case there is, the derogation tests must be undertaken as follows. 199. Reasons for overriding public interest. There are a number of benefits that the proposal would generate for the local communities and the surrounding area. These include the provision of a community facility where there is considered to be an identified need, additional employment, supporting the local businesses and associated economic benefits. 200. No Satisfactory Alternative. The site is not within any designated ecological habitat or landscape. The degree to which alternative sites are more or less ecologically sensitive is not known and is therefore not material to this assessment. The site is available and deliverable. 201. Maintaining a Favourable Conservation Status (FCS). In order to assess whether the FCS test is met with regard to bats and nesting birds, the Council must be satisfied that a sufficiently detailed mitigation strategy is in place. The mitigation measures outlined, above, and detailed in the assessment can be conditioned to further strengthen ecological provisions within the development. It is considered that a Favourable Conservation Status can be maintained. 202. The conclusion reached is that the information submitted does provide satisfactory mitigation and it is considered that this mitigation satisfies the duty placed on the Local Authority in context of the relevant legislation on habitat and species protection. 203. Subject to incorporation of ecological mitigation and management in line with the recommendations of the submitted ecological reports, it is considered that (a) the impact on ecology is low; and (b) this application satisfies the statutory derogation tests. The Council’s Ecologist has reviewed the surveys submitted and raises no objections in terms of their content or findings.”
“Of the concerns raised one required further consideration, namely that the updated ecology report identified that the southern hedgerow should be retained as a dark corridor (as it is a commuting corridor used by a single or small number of greater horseshoe bats). However the landscape master plan hadn't been updated to reflect this and shows it being replaced with a new hedge to allow for the access and the bus shelter near the hedge which may result in additional lighting in the vicinity of the hedge. Further information was therefore sought, and a proposed mitigation strategy was submitted as an addendum to the ecology report. This sets out that the new hedge on the southern boundary will be constructed and planted prior to the commencement of any other development on site, which would (as set out in the submitted strategy) ‘enable bats to become familiar with the new southern flight route and provide for continued bat use of the southern commuting route.’ In addition, a temporary hazel hurdle screen would be erected along the length of the hedge to shield it from light spill from car headlights etc until the hedge has become established and lighting proposed would be low level bollard lighting which would be illuminated only during operating hours.”
‘The hedgerow is mature and does not contain gaps and one of its ecological functions will be the provision of habitat for a range of invertebrates, which would act as a potential foraging source for bats. The greater horseshoe bats (one of which has been recorded commuting/foraging along this hedgerow line) are faithful to their commuting/foraging routes, and the loss of the hedgerow or part of the hedgerow could result in impacts to the bats which use this commuting and foraging corridor. It is reasonable to assume that light spill from the proposed bus stop can be controlled through a planning condition, so as to ensure the newly planted hedgerow and retained sections of the hedge are maintained as a dark corridor during bat activity season. However, whilst it is reasonable to assume there will be an impact to the bat commuting and foraging routes as a result of the loss of a section of hedgerow, in the medium to longer term, it is also reasonable to assume that with the proposed landscaping plan, the site will act as a new source of prey availability with the creation of a variety of different habitats to include ponds, what grassland, scrub and wooded areas, which will support a range of different invertebrates and there is the potential to see an increase in levels of bat activity across and within the application site.’
“The lighting scheme shall include (but not be limited to) details of location, siting, lux levels and design specifications of the lighting and any design features of the bus shelter associated with the proposed lighting. The lighting scheme shall reflect the recommendations set out within [various reports submitted on behalf of the Consortium, including the proposed mitigation strategy to address the removal of the southern hedge within its Ecology Report addendum]. The development and associated bus shelters shall thereafter be constructed and completed in accordance with the approved details prior to first use and retained as such without alteration. No further external lights shall thereafter be installed without the further written approval of the Local Planning Authority.”
“Bats do not go into a deep hibernation, they go into torpor, which means that they will wake up and feed regularly throughout the winter, especially if it is mild (which is often the case for Cornwall). I cannot comprehend that a bat ecologist could make this mistake. Either they are being deliberately misleading or very much mistaken. I cannot understand why the Council Ecologist did not pull them up on this - has the Council Ecologist definitely seen this document?”
“ If and so long as copies of the whole or part of a report for a meeting of a principal council are required... to be open to inspection by members of the public or are required... to be published electronically – (a) those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for the report or the part of the report, (b)...in England at least one copy of each of the documents included in that list shall also be open to inspection at the offices of the council...”
“(5) For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which – (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works.”
“As such, it is considered that there are a number of benefits to the use of electric cremators compared with gas. It is, however, noted that the final choice of cremators could change and would usually be determined within the environmental permit process, but as this does not yet consider NOx emissions, it is considered appropriate and necessary in this instance when taking a precautionary approach and in order to future proof development to secure final details via use of a planning condition in line with the Environmental Protection Officer’s comments. Such a condition would ensure that suitable measures are in place in regard to NOx emissions such as the choice of cremators, stack height, abatement technologies and DeNox.”
“be given some weight, where there are no unresolved objections. This means that positive weight may be given to proposals that comply with their requirements, and some policies which extend our existing local plan policies may support refusal, but the policies are not yet robust as a sole reason for refusal at this stage. 185. Objections have been raised in regard to the climate change impacts resulting from the development, both in terms of the cremators and production of car trips...[The proposal would not lead to an increase in cremations, but would re-distribute them geographically]. It is also relevant to note that unlike older existing sites (such as Bodmin) modern crematoriums are required under the permitting regime to include abatement equipment and that, as such, any reduction in the number of cremations taking place at these older facilities would be likely to result in environmental and climate change benefits overall. It is also noted that it is proposed to use electric rather than gas powered cremators, which significantly reduces carbon emissions and offers the opportunity for the use of renewable energy.”
“...as well as Quinceborough Farm, a further visual assessment is carried out from Mill Barn to the west at approximately 0.6km from the nearest site boundary. This property like Widemouth Farm has a direct view of the development site, particularly the northern area where the buildings will be located. I would be grateful if both these additional viewpoints could also be prepared with 1 year and 15 year photomontages.”
“overlooking, unreasonable loss of privacy, overshadowing, overbearing impacts, unreasonable noise and disturbance.”
“177. Whilst it is acknowledged that part of the development would be visible from a number of these properties, private views are not a material planning consideration. Due to the distances involved, use of natural materials on the proposed buildings and the existing and proposed landscaping of the site, it is not considered the proposed development would appear harmfully overbearing or dominant when viewed from residential properties and holiday accommodation sites in the area. 178. Given the separation distances no concerns are raised by officers in terms of overlooking, privacy or loss of light.”
“221. Objections have been received in relation to the lack of viewpoints in the LVIA from Quinceborough Farm and holiday cottages to the North of the site and the dwelling Mill Barn within Lower Widemouth Farm to the West. It is noted that following these objections, the Council's Landscape Officer did request that additional viewpoints be provided from these properties. These have not been submitted as the applicants consider that private views are not a concern for LVIA’s, but rather are a matter of residential amenity. Officers are in agreement in so far as private views are not a material planning consideration. Representative views have been provided from public viewpoints including from the Widemouth Manor Road adjacent to Higher Widemouth Farm (a relatively short distance to the South of Mill Barn which has a similar view of the site). In regard to Quinceborough Farm this has been considered in the residential amenity section of this report in regard to overbearing impact. [No further work had been done because the dwelling faced north and the cottages there looked inwards around the courtyard]. 222. In regard to concerns raised regarding visual and landscape impacts and a submission of a landscape assessment on behalf of an objector, as set out earlier in the report, officers are not wholly in agreement with the conclusions of the submitted LVIA (particularly in relation to the length of time which is likely to take for the planting to establish). Officers consider that the potential impacts of this development as seen from different viewpoints is a matter of judgement.”
"29. The law has always distinguished between materiality and weight. The distinction is clear and essential. Materiality is a question of law for the court; weight is for the decision-maker in the exercise of planning judgment. Thus, as Lord Hoffmann stated in a well-known passage of his speech in Tesco Stores Ltd v Secretary of State for the Environment[1995] 1 WLR 759 ; (1995) 70 P. & C.R 184 (at p.657G-H): ‘This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.’ So long as it does not lapse into perversity, a local planning authority is entitled to give a material consideration whatever weight it considers to be appropriate. Under the heading "
“In Wood-Robinson v Secretary of State for the Environment and Wandsworth London Borough Council [1998] JPL 976, Robin Purchas QC, sitting as a Deputy Judge, dismissed an application to quash the decision of a planning inspector who had dismissed an applicant's appeal against the refusal to grant planning permission for the erection of a two storey house. The inspector held that the weight to be given to compliance with development plan policies was outweighed by the undesirable effect the development would have on residential amenity. The applicant contended that the reference to residential amenity in the inspector's decision letter was based on the loss of purely private views from neighbouring dwellings, which it was said was not an issue that was relevant to the public interest. The following passage from the judgment is of particular relevance:- ‘Whether a consideration is capable of being a relevant or material consideration for planning purposes is a question of law for the court. … It is, however, difficult, if not impossible, definitively to resolve the question of relevancy or materiality, as it were, in a vacuum without reference to the facts of the particular case. As a starting point, I accept that the exercise of planning control should be in the public interest. It is not concerned with the creation or preservation of private rights as an end in itself (see Salmon J in Buxton v Minister of Housing and Local Government … and Lord Scarman in Westminster City Council v Great Portland Estates Plc ... I do not, however, accept the distinction in principle that Miss Ellis sought to draw between the effect on the use of land through overlooking or overshadowing and that through deprivation of outlook or aspect. The guiding principle seems to me to be in each case whether the private interest in question requires to be protected in the public interest. In that sense detriment to the amenity of residential user through overshadowing or overlooking is far more likely to be something to be resisted in the public interest than interference with a view. Whether or not protection of a view or private amenity is, in the circumstances of the case, in the public interest would be for the decision-maker to determine. Generally, no doubt, that decision would take into account the number of properties or persons whose view or amenity would be affected and to what degree. I respectfully accept, and adopt, the guidance in the judgment of Cooke J in [Stringer v Minister of Housing and Local Government [1971] 1 All E.R. 65] that:- ‘The public interest … may require that the interests of the individual occupier should be considered. The protection of the interests of individual occupiers is one aspect, and an important one, of the public interest as a whole’.”
“there may be the need for stacks/flues to be increased in height. In advance of any changes to the current permitting scheme, the LAU [Local Authority Unit in DEFRA], have suggested that the LPA consider this at planning stage, particularly in areas of poor air quality, which is not the case in this area....”
“We can then review the data in some years to determine the measures that can be put in place; this may well involve fitting NOx appointment for new crematoria and retrofitting for existing sites. So at the moment, we have not included a requirement for operators to fit NOx abatement... some equipment providers have started to provide a NOx abatement option [which was] quite limited at the moment....Note that while currently, NOx isn't a requirement under the environmental permit the stack height needed for adequate dispersal is affected by NOx emissions.... it is possible that once we have sufficient information to determine an ELV [emissions limit value] for NOx your operator may need to reassess their stack height which might require them to increase the stack height.”
“No development/works above damp-proof course level shall commence until details of the cremators and any proposed associated abatement to be installed have first been submitted to and approved in writing by the Local Planning Authority. The details to be submitted shall include but not be limited to: • the number, type (gas or electric) and model with specification sheets of all cremators; • emissions details for the proposed cremators; details of any proposed additional abatement; • a detailed quality assessment for but not limited to NOx... to confirm the stack height in line with National Government ‘Risk assessments for your environmental permit’ 2022 guidance....” • the number, type (gas or electric) and model with specification sheets of all cremators; • emissions details for the proposed cremators; details of any proposed additional abatement; • a detailed quality assessment for but not limited to NOx... to confirm the stack height in line with National Government ‘Risk assessments for your environmental permit’ 2022 guidance....”
“To ensure that adequate measures are put in place to minimise the impact of development on air quality, as such emissions are not currently included within the permitting regime and in accordance with policies 13, 16 and 23 of the Cornwall Local Plan Strategic Policies 2010 to 2030 and guidance contained within paragraphs 174 and 186 of the National Planning Policy Framework 2021 [NPPF].”
“An objection has been received in regarding the ownership of land across the road from the entrance of the site where it is proposed to install a bus shelter; the objector has stated that this area includes land in their ownership and that no notice has been served on them. In terms of the deliverability of the bus station, this area is publicly maintained highway land and as such the works proposed can be installed as part of a section 278 agreement.”
“The function of the planning authority was to decide whether or not the proposed development was desirable in the public interest. The answer to that question was not be affected by the consideration that the owner of the land was determined not to allow the development so that permission for it, if granted, would not have reasonable prospects of being implemented. That did not mean that the planning authority, if it decided that the proposed development was in the public interest, was absolutely disentitled from taking into account the improbability of permission for it, if granted, being implemented. [He instanced competition between two sites for a single desirable development, only one of which would be granted permission.] But there was no absolute rule that the existence of difficulties, even if apparently insuperable, had to necessarily lead to refusal of planning permission for a desirable development. A would-be developer might be faced with difficulties of many kinds, in the way a site assembly or securing the discharge of restrictive covenants. If he considered that it was in his interests to secure planning permission notwithstanding the existence of such difficulties, it was not for the planning authority to refuse it simply on their view of how serious the difficulties are.”
“Subject to the following provisions of this Act, a local authority may provide and maintain in any highway within their district which is comprised in the route of public service vehicles, or on land abutting on any such highway, shelters or other accommodation at stopping places on the route for the use of persons intending to travel on such vehicles.”