Kemnal Manor Memorial Gardens Ltd v First Secretary of State & Anor

In assessing development in the Green Belt, an inspector must consider both whether the proposal is inappropriate development and whether it accords with the development plan. The intensity of a proposed use may reduce the openness of the Green Belt even where the principal building has limited physical impact. Under PPG17, an assessment of open space must consider possible alternative uses which preserve its essential open-space character, not merely demand for existing playing fields. Developers should also consult the local community and demonstrate wide support, although that guidance is not an absolute condition of planning permission. For playing-field development, a robust assessment under PPG17 may be undertaken by the local authority or the developer. Where it is deficient, the additional safeguards for playing fields remain engaged.

The claimant sought planning permission to convert land in the Metropolitan Green Belt into a cemetery and crematorium. Bromley refused permission. An inspector appointed by the First Secretary of State dismissed the claimant’s appeal under section 78 of the Town and Country Planning Act 1990.

The claimant applied under section 288 of that Act to quash the inspector’s decision. The central issues were whether the proposal was inappropriate development in the Green Belt, whether very special circumstances existed, and whether the proposed loss of playing fields complied with PPG17.

1. Application dismissed. The inspector’s decision was not legally flawed.
2. The inspector was entitled to treat the proposal as inappropriate development in the Green Belt. The proposal had to be considered as a whole. The crematorium would generate intensive day-to-day activity, and the access road, Garden of Remembrance, chimneystack and landscaping would reduce openness and contribute to encroachment into the countryside. The inspector had therefore addressed the relevant Green Belt considerations, including the physical and operational effects of the proposal.
3. The inspector was entitled to conclude that no very special circumstances outweighed the Green Belt harm. The existence of a larger sports pavilion, the largely below-ground crematorium and the absence of conflict with some Green Belt purposes did not prevent the combined physical and intensive-use effects from being significant.
4. A new argument could be raised in a section 288 challenge even if it had not been advanced before the inspector. However, it would not normally be appropriate where deciding it required further factual findings or planning judgment. Applying R (on the application of Newsmith Stainless Ltd.) v Secretary of State for Environment, Transport and the Regions [2001] EWHC 74 (Admin), the court considered the argument because the inspector had expressly addressed the issue.
5. Under paragraph 10 of PPG17, an assessment had to address whether the site could be used for another purpose while preserving its essential open-space character. An assessment dealing only with demand for playing fields and the availability of pitches elsewhere was insufficient. The local community also had to be consulted about, and the developer had to demonstrate wide support for, the proposed alternative use.
6. The requirement of wide community support was guidance rather than an absolute legal requirement. The inspector was entitled to attach substantial weight to its absence. A robust assessment under paragraph 15 could be undertaken by either the local authority or the developer, but the claimant’s assessment did not satisfy paragraph 10. Paragraph 15 was therefore engaged, and its conditions were not met because the lost playing fields were not to be replaced.
7. The approach in Pehrsson v Secretary of State for the Environment (1990) 61 P. & C.R. 266 had been overtaken by section 54A. Consideration also had to be given to conformity with the development plan. The parties were left to agree costs, with any unresolved issue to be determined on written representations.

Bromley refused planning permission. The claimant appealed under section 78 of the Town and Country Planning Act 1990, but the inspector dismissed the appeal. The Administrative Court dismissed the claimant’s section 288 challenge.