Gemma Watton v Cornwall Council

A planning authority must interpret and apply development-plan policies according to their terms and must reach a lawful conclusion on whether a proposal accords with the development plan as a whole. An officer’s report must not materially mislead the committee and must give intelligible reasons on the principal controversial issues. Where detailed expert objections are raised, the report should identify and address their principal points.

Private views are capable of being material planning considerations where they form part of residential amenity, although the decision-maker may give them little or no weight. Conditions must secure the mitigation on which the planning judgment depends. A condition expressed only as requiring lighting to be designed to minimise light spill was insufficient where the assessment depended on a specific maximum lux level.

Cornwall Council granted planning permission for a large crematorium, associated buildings, access, landscaping and infrastructure at Poundstock. Gemma Watton and Jonathan Cameron, local residents, brought separate judicial review claims challenging the officer’s report, the Council’s reasoning, several policy assessments, ecological conclusions and planning conditions.

The claims concerned, among other matters, need and viability, the interpretation of policy 5 of the Cornwall Local Plan, landscape and visual impact under policy 23, the statutory development-plan duty under section 38(6) of the Planning and Compulsory Purchase Act 2004, protected bats, lighting controls, private views and the proposed bus shelter.

1. Outcome. The decision to grant planning permission was quashed.
2. Officer’s reports and reasons. The principles in Mansell required the report to be read fairly and as a whole, but did not excuse a material error or omission. Because the Council expressly adopted the report as its reasons, those reasons also had to satisfy Porter. In the circumstances, fairness required intelligible reasons addressing the principal important controversial issues and at least brief express consideration of the principal points made by objectors supported by detailed reasoning or expert evidence.
3. Viability. Viability was a material planning consideration. The report failed to explain the planning risks of an unviable or only partly viable crematorium, including pressure for later alternative development or use. Its statement that viability was ultimately a matter of commercial interest was materially misleading and unlawful.
4. Policy 5. Policy 5.1(c) contained two alternative limbs. The first required the development to be of a scale appropriate to its location. Need and benefits were not part of that limb and no balancing exercise was permitted within it. The second required an overriding locational and business need to be in that location. The report did not lawfully address either limb, including the scale of the proposal, the extent of need met, alternatives and the need for a building capable of accommodating several cremators.
5. Policy 23 and section 38(6). The report failed to reach a clear conclusion on compliance with the landscape parts of policy 23. It also treated policy 23 as substantially a policy against significant harm, rather than as a positive policy requiring the natural environment to be sustained, protected and, where possible, enhanced. The errors meant that the Council did not reach a lawful conclusion under section 38(6) of the Planning and Compulsory Purchase Act 2004.
6. Travel and emissions. The report identified benefits from reduced travel and emissions but failed to acknowledge that diverted and direct cremations could involve longer journeys and increased emissions. The benefits were therefore significantly overstated, including in the ecology-related public-interest assessment.
7. Ecology. The Council had properly directed itself to the derogation issues and was entitled, on the evidence, to conclude that there was no satisfactory alternative, favourable conservation status could be maintained and imperative reasons of overriding public interest existed. However, the erroneous emissions assessment affected that balance. Condition 11 did not secure the maximum 0.5 lux level on which the ecological assessment depended. The permission therefore also failed because the condition did not achieve the basis on which permission had been granted.
8. Private views. Private views were not legally immaterial. They could form part of residential amenity, although the Council could rationally give them no weight. The error was immaterial on the facts because the outcome would highly likely have been the same.
9. Other grounds. The challenges concerning the unpublished ecology report, the bus shelter land, the extent of the AGLV and stack height failed or would not have justified relief. The claim concerning the electric cremator also failed because the report made clear that the final choice remained unresolved and was controlled by condition 15.