Timmins & Anor, R (On the Application Of) v Gelding Borough Council

A material change of use creating a cemetery in the Green Belt is inappropriate development under the National Planning Policy Framework. The exception in paragraph 89 for appropriate cemetery facilities concerns the construction of buildings or structures serving a cemetery. It does not extend to the creation of the cemetery itself.

Paragraph 81 does not alter that conclusion because its positive planning obligations do not include cemeteries. An omission from previous planning guidance cannot be supplied through a strained interpretation, even if the omission may have been unintended. Where a planning authority wrongly treats part of a composite proposal as appropriate, the error is material if the very special circumstances test was not applied to that part and the mistake may have affected a finely balanced decision.

A local planning authority granted Westerleigh Group Limited permission for a crematorium and cemetery in the Green Belt, while refusing a competing application for a crematorium. Mrs Timmins, an objector, and the unsuccessful applicant brought judicial review proceedings.

Green J allowed the claims and quashed the planning decision in [2014] EWHC 654 (Admin). He held that the authority had wrongly treated the proposed cemetery as appropriate development under paragraph 89 of the National Planning Policy Framework and that the error was material.

The authority and Westerleigh appealed. The central issues were whether creating a cemetery by a material change of use constituted inappropriate Green Belt development and, if so, whether the authority's error justified quashing its decision.

1. The appeals were dismissed unanimously. A material change of use creating a cemetery was inappropriate development in the Green Belt. The authority had therefore erred by treating the cemetery element as appropriate development without applying the very special circumstances test.

2. Paragraph 89 of the National Planning Policy Framework concerns the construction of new buildings. “Building” bears the wide meaning given by section 336 of the Town and Country Planning Act 1990. Its exception for appropriate facilities for cemeteries may cover a building serving an existing cemetery, such as a café. It does not cover a material change in the use of land to create a cemetery. The court agreed on this decisive point, consistently with Fordent Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 2844.

3. Paragraph 81 did not assist the appellants because its positive obligations concerning beneficial Green Belt uses do not extend to the provision of cemeteries. Richards LJ considered paragraphs 89 and 90 to be closed lists. Mitting J disagreed as regards paragraph 90 where development fulfils paragraph 81's positive obligations. Tomlinson LJ reserved his view. Whether paragraph 90 is generally a closed list therefore formed no binding part of the ratio.

4. The omission from the Framework of PPG2's general provision concerning material changes of use could not be supplied judicially. It was impossible to determine whether the omission was deliberate. Even if unintended, the proper course was amendment by the Secretary of State, rather than a strained interpretation by the court.

5. The error was material. The documents showed that the very special circumstances test had been applied only to the crematorium, while the cemetery had been treated as an advantage of Westerleigh's finely balanced proposal. It could not be excluded that applying the correct test would have changed the decision.

6. Westerleigh's subsequent section 106 undertaking not to proceed with the cemetery did not cure the error. The undertaking could not reverse the possible influence of the cemetery upon the original decision, and no basis existed for disturbing Green J's exercise of discretion to quash the permission.

1. Court of Appeal (Civil Division): The Council's and Westerleigh's appeals were dismissed unanimously. The quashing order remained in force: [2015] EWCA Civ 10.

2. High Court, Administrative Court: Green J allowed the judicial review claims and quashed the planning decision because the Council had materially misinterpreted the National Planning Policy Framework: [2014] EWHC 654 (Admin).