Dignity Funerals Ltd v Breckland District Council

In applying section 38(6) of the Planning and Compulsory Purchase Act 2004, a proposal may accord with the development plan as a whole even though it conflicts with individual policies. The decision-maker must assess the plan overall and may weigh compliance with policies against non-compliance with others.

Broad strategic planning policies are generally matters of planning judgment, rather than detailed questions of legal interpretation. A planning authority is required to consider an alternative site only where legislation, policy or irrationality makes it legally necessary. An identified alternative may properly receive little weight where the information supplied is too incomplete to permit a meaningful comparison.

Dignity Funerals Ltd sought judicial review of Breckland District Council’s decision to grant Thornalley Funeral Services Ltd planning permission for a crematorium in open countryside at Scoulton. The challenge concerned the interpretation and application of the Council’s spatial strategy, the assessment of landscape and environmental policies, and the Council’s treatment of Dignity’s proposed alternative crematorium site between Weeting and Brandon.

The principal questions were whether the proposal could accord with the development plan despite conflict with some policies, and whether the Council was legally required to assess the Weeting site before determining the application.

1. Ground 1 failed. Policy SS1 was a broad spatial strategy, not a detailed development-control policy prescribing the acceptable scale of each individual proposal. Terms such as “minimal development” described the overall level and purpose of development allocated to the countryside over the plan period. Their application involved planning judgment. The officer’s interpretation was therefore lawful.
2. The comparison between policy SS1 and paragraph 28 of the National Planning Policy Framework involved broad purposive policies and planning judgment. Even if the officer’s assessment that SS1 was more restrictive had been erroneous, it reduced rather than increased the weight given to SS1 and could not justify quashing the permission.
3. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, accordance with the development plan is assessed by reference to the plan as a whole. Conflict with one policy does not make accordance legally impossible. The authority may attach greater weight to compliance with policies promoting sustainable development and avoiding environmental harm than to conflict with a landscape policy. No positive policy specifically supporting a crematorium was legally required.
4. Ground 2 failed. The legislation and policies relied upon did not impose a legal obligation to assess alternative sites. Whether the Weeting site was sufficiently developed and informative to permit comparison was a matter for the Council’s judgment. The Council had not treated it as legally irrelevant; it had taken it into account but gave it limited weight because only a location plan and indicative sketch material had been supplied, without sufficient assessment of planning constraints.
5. Even where an obligation to consider alternatives exists, the authority retains judgment as to the information to seek, the weight to give an alternative and whether to defer determination. The approach adopted was not irrational.
6. Ground 3 failed. There was no inconsistency between finding harm to the rural character and appearance of the area under policy CP11 while finding compliance with design policy DC16. The Council adequately addressed the NPPF provisions concerning valued landscapes and veteran trees through its assessment under the corresponding development-plan policies. The judicial review claim was dismissed. Costs of £34,000 were awarded to the Council, and permission to appeal was refused.

This was a first-instance judicial review. The judgment states that earlier planning permissions had been quashed by consent, but the earlier orders and grounds were not material to the present claim.