Timmins & Anor v Gedling Borough Council

Under Green Belt policy, development is prima facie inappropriate and harmful and requires very special circumstances unless it falls within the defined exceptions. The exception for facilities for cemeteries concerns buildings serving a cemetery, not the cemetery or change of use itself. Openness is distinct from visual impact: construction harms openness regardless of screening, although visual mitigation may receive modest weight in the very special circumstances balance. A decision notice must explain how positive and proactive engagement occurred; a bare assertion is insufficient. Breach does not automatically require quashing. The permission was quashed for failure to apply the correct test to the cemetery, while the visual-impact challenge failed and declaratory relief was granted for the notice defect.

Two applications for judicial review challenged Gedling Borough Council’s grant of planning permission to Westerleigh Group Limited for a crematorium and cemetery in the Lambley Dumbles Green Belt. Mrs Timmins challenged the development as a local resident. A W Lymn, a competing funeral director, challenged the decision as a disappointed rival.

The claims concerned the meaning and application of Green Belt policy in the National Planning Policy Framework, the relationship between openness and visual impact, and the duty under the Town and Country Planning (Development Management Procedure) (England) (Amendment No. 2) Order 2012 to explain how the authority had worked positively and proactively with applicants.

1. Green Belt policy. Properly construed, section 9 of the National Planning Policy Framework treats development in the Green Belt as prima facie inappropriate and harmful, requiring very special circumstances unless the development falls within the defined exceptions in paragraphs 89 or 90. The paragraph 89 exception for facilities for cemeteries concerns new buildings serving a cemetery, such as ancillary facilities. It does not apply to the cemetery or to a change of use from agricultural land to cemetery use. The court followed Fordent Holdings Limited v Secretary of State for Communities and Local Government [2013] EWHC 2844 (Admin) and applied the approach in Kemnal Manor Memorial Gardens Limited v First Secretary of State [2005] EWCA Civ 835. The planning officers’ failure to apply the very special circumstances test to the cemetery was fundamental and material. The permission was therefore quashed and remitted.
2. Openness and visual impact. Openness concerns the absence of buildings and is conceptually distinct from visual impact. Construction harms openness regardless of whether the building is attractive, screened or unobtrusive. Visual impact remains relevant as a separate consideration in the very special circumstances balance. Mitigation may reduce visual harm, but it cannot remove the harm to openness and can bear only modest weight. Applying Heath & Hampsted Society v London Borough of Camden [2007] EWHC 977 (Admin), the court held that the reports’ loose language was, read as a whole, no more than infelicitous drafting and did not materially mislead the Committee. Ground 2 failed.
3. Positive and proactive engagement. Article 31(1)(cc) of the Town and Country Planning (Development Management Procedure) (England) (Amendment No. 2) Order 2012 requires a decision notice to explain how the authority worked positively and proactively with the applicant. A statement merely asserting that this occurred does not comply. The duty ordinarily requires a concise account of the principal steps taken, not a detailed chronology. The breach did not automatically justify quashing. In the circumstances, declaratory relief was proportionate, particularly because the permission was already being remitted on Ground 1.
4. After-the-event evidence. Courts should be very cautious about later evidence that supplies or alters the reasons for a decision. Such evidence may exceptionally elucidate, correct or add to reasons, but should generally confirm rather than contradict them. The principles in Ermakov v Westminster City Council [1995] EWCA Civ 42, Lanner Parish Council v The Cornwall Council and Coastline Housing Limited [2013] EWCA Civ 1290 and Ioannou v Secretary of State for Communities and Local Government [2013] EWHC 3945 were applied. Mr Morley’s evidence was not used to repair Grounds 1 or 2 and was not decisive on Ground 3.
5. Orders. The applications succeeded on Ground 1. The decision was quashed and remitted for reconsideration. Ground 2 failed. Lymn succeeded on Ground 3 only to the extent that a declaration was granted.