Crematoria Management Ltd, R (On the Application Of) v Welwyn Hatfield Borough Council

A planning authority considering whether a proposal is a Schedule 2 development must first interpret the statutory expressions used in the Regulations. The meaning of an imprecise expression is a question of law for the court, although its application to the facts may leave a range of rational conclusions open to the authority. “Urban development project” is not exhaustively defined. Relevant factors may include the proposal’s nature, size, location and use, but the development must be urban in character. A planning committee must also be properly informed about material considerations. An erroneous statement that existing crematoria were near capacity materially misled the committee about need. The resulting planning permission was unlawful, and the court could not conclude that the outcome would highly likely have been the same without the error.

Welwyn Hatfield Borough Council granted itself planning permission for a replacement crematorium, chapel, machinery store, parking and landscaping at a cemetery in the Green Belt. Crematoria Management Ltd sought judicial review on two grounds.

First, it argued that the Council had failed to consider whether an environmental impact assessment screening opinion was required under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, and had wrongly concluded that the proposal was not a Schedule 2 urban development project. Secondly, it argued that the Council’s assessment of need failed to take account of the capacity of the claimant’s nearby Broxbourne crematorium. The central issues were whether the Council had undertaken the required screening assessment, whether its interpretation was lawful, and whether the planning committee had been materially misled about need.

1. Ground 1 failed. The court accepted the evidence that the Council’s officer had considered whether a screening opinion was necessary and whether the proposal was EIA development, despite there being no contemporaneous written record.
2. Following R (Goodman) v London Borough of Lewisham [2003] Env. L.R. 28, the interpretation of “urban development project” was a question of law. The court was required to correct a legally wrong interpretation. Where the statutory language was imprecise, however, its application to the facts involved judgment and could produce a range of rational outcomes. The approach was consistent with Tesco Stores Ltd v Dundee City Council [2012] PTSR 983.
3. “Urban development project” had no precise or exhaustive definition, but the development had to be urban in character. Its nature, size, location and proposed use would usually be relevant, without constituting an exhaustive list. The officer was entitled to conclude that the proposal was not urban because it was not in an urban area, was not urban in character overall and would not have a significantly urbanising effect.
4. The court also held that the proposal did not exceed the relevant threshold of more than one hectare of urban development. Existing structures to be demolished could not properly be included in that calculation. The court left open whether landscaping could constitute urban development.
5. Ground 2 succeeded. The officer’s report stated that the Broxbourne crematorium was close to maximum capacity, but that was wrong. The report presented existing facilities as inadequate and thereby significantly misled the planning committee about a material consideration relevant to need. Following Oxton Farms and Samuel Smiths Old Brewery (Tadcaster) v Selby District Council 1997 WL 1106106, the grant of permission was vitiated by legal error.
6. Under section 31(2A) of the Senior Courts Act 1981, the court could not say that it was highly likely that the outcome would have been substantially the same without the error. The prospect of spare capacity at Broxbourne might have been significant in a Green Belt case. A quashing order was therefore granted.

First-instance judicial review. The planning permission granted by Welwyn Hatfield Borough Council was quashed.