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

A mixed development proposal in the green belt must be assessed as a whole. It is not appropriate development merely because some elements are appropriate. The distinct questions are whether the proposal is appropriate in principle, the harm it would cause to green-belt objectives, and whether very special circumstances clearly outweigh that harm.

A planning inspector’s decision letter must be read as a whole and in the context of the issues and arguments before the inquiry. Concise reasoning may suffice where a point was effectively conceded. A benefit already reflected in the assessment of green-belt harm cannot also be counted as a very special circumstance.

The appellant sought planning permission for a cemetery and crematorium on metropolitan green-belt land in Bromley. The proposed chapel and crematorium building, access road, car parking and garden of remembrance would replace an existing sports pavilion. The local planning authority refused permission and the appellant appealed to a planning inspector under Town and Country Planning Act 1990, section 78.

The inspector dismissed the planning appeal. He held that the proposal was inappropriate development in the green belt, would harm its openness, and was not justified by very special circumstances. Keith J dismissed the appellant’s statutory challenge under section 288. The appellant then appealed to the Court of Appeal, principally alleging inadequate reasoning on green-belt appropriateness and very special circumstances.

1. Appeal dismissed. Lord Justice Keene held, with whom Lady Justice Arden and the Vice-Chancellor agreed, that the inspector’s green-belt reasoning was adequate and disclosed no error of law.

2. The inspector was entitled to treat the proposal as a single development. Although cemetery use was appropriate in principle, the crematorium was a material and integral part of the project, including for its viability. It was therefore wrong to regard the scheme as acceptable merely because some parts could serve the cemetery. The separate question of the particular scheme’s harm to green-belt openness was properly addressed by the inspector. His conclusion that the increased activity, access road, walled garden and chimney stack would reduce openness was a finding of fact.

3. The court applied the established approach to decision letters. They are read as a whole, in the context of the parties’ arguments, and an inspector need not expressly address every factor. The inappropriateness point had effectively been conceded at the inquiry, so brief reasoning on that issue was sufficient.

4. The inspector had not overlooked the proposed demolition of the existing pavilion. His reference to a reduction in openness showed that he had compared the existing and proposed situations. It would have been double-counting to treat that same demolition again as a very special circumstance. The inspector was entitled to find that the asserted need and landscaping benefits, separately or cumulatively, did not clearly outweigh the green-belt harm.

5. The valid green-belt objection independently justified refusal. Even if there had been an error concerning playing fields or recreational open space, the court would not quash the decision because no useful purpose would be served. The defendant was awarded its costs.

• Court of Appeal (Civil Division): dismissed the appeal: [2005] EWCA Civ 835.
• High Court, Queen’s Bench Division: Keith J dismissed the appellant’s application under section 288 of the Town and Country Planning Act 1990.
• Planning inspector: dismissed the appellant’s section 78 planning appeal against the local planning authority’s refusal of planning permission.