Minutes:
Question from Mr Stuart Beniston
“The A W Lymn appeal against refusal of planning permission for a crematorium on Catfoot Lane was turned down on various grounds.
In his report, the inspector highlighted several inadequacies in the way both the Lyumn and Westerleigh applications had been handled by the Planning Department. It therefore seems that the Westerleigh permission was approved by a flawed process. However, that permission was subsequently quashed following a legal challenge by A W Lymn. That decision is now being appealed in a higher court, both by the Council and by Westerleigh, due to be heard in early December.
I was told by one of the planning officers that the Council has appealed in order to resolve wider national planning issues. However, if the appeal succeeds, the Westerleigh permission for a crematorium and cemetary will be automatically reinstated, creating a permanent intrusion into our countryside which may be unjustified.
Is the Council comfortable with adding its weight to the appeal when, according to the Lymn Appeal inspector, the original permission was granted without full and proper consideration of all the issues?
My view is that the Council should now be making every effort to restart the whole process to allow a full evaluation to be carried out, taking account of the Inspector’s comments.
To this end, does the Council agree that its appeal should be withdrawn? In that event, it is likely that Westerleigh will continue with their appeal and the wide planning issue will be resolved anyway. Should that not happen, there will be other opportunities to resolve these issues without saddling the Borough with an intrusive development for with the case has not truly been made. “
Answer from Councillor Pulk, Porfolio Holder for Leisure and Development.
It is correct that the A W Lymn application, which was refused by the Council, was considered at a public inquiry in June 2014. The Inspector upheld the Council’s refusal of that application and dismissed the appeal.
However, it is not correct to conclude that the Inspector highlighted several inadequacies in the way both the A W Lymn and Westerleigh applications were handled by the Planning Department.
I would point out that the inquiry only considered the A W Lymn application – it did not (and had no jurisdiction to) consider the Westerleigh application. The Inspector made this clear both at the time and in his Decision.
However the Inspector did look at the issue of need, which related to both applications and concluded that ‘It may be that there is such a need, but if so, it remains to be demonstrated.’ The Council addressed this at the original Planning Committee by producing a joint report on this one issue. The officer recognised that
“the decision as to whether need has been proven is extremely finely balanced” but came to the conclusion that the evidence was “sufficient to be regarded as very special circumstances in this instance.”
Your question raises separate points:
1. Your view is that the Council should now be making every effort to restart the whole process to allow a full evaluation to be carried out, taking into account the Inspector’s comments.
The ‘whole process’ cannot be re started because, the Westerleigh application is still outstanding. This application was approved by the Council and subsequently quashed by the High Court. The application has therefore been remitted back to the Council for re determination. It is outstanding and will be determined at a future planning committee meeting.
However, I can confirm that when it goes forward for re determination the Inspector’s decision will be taken into account because it is a ‘material consideration’. Indeed the Inspector in his decision states that the Council would not be bound to follow its earlier decision and that ‘any new decision that it might make would have to take account of all the current circumstances, at the time the decision is made…’ In view of this, the applicant is about to submit refreshed evidence to reflect changes in planning legislation and material considerations since the original determination.
All other material considerations, which include any relevant parts of the Inspector’s decision on the Lymn appeal, will be addressed in the report to committee when the Westerleigh application goes forward for redetermination.
There are no further decisions for the Council in relation to the Lymn proposal – that application remains refused and no other application has been submitted.
2. You ask if the Council is comfortable with adding its weight to an appeal when, according to the Inspector, the original permission was granted without full and proper consideration of the issues.
For the avoidance of doubt, the Council is appealing in its own right, not ‘adding weight’ to an existing appeal.
The Inspector did not state that the Westerleigh application was granted without full and proper consideration of the issues – the Inspector was solely concerned with the Lymn application.
The main reason that the Council made the decision to appeal is (as you rightly identify) to resolve wider planning issues. The High Court decision interprets the National Planning Policy Framework, the NPPF, in a way which impacts on all cases where there is a change of use within the green belt. Prior to the NPPF a change of use could be ‘appropriate’ where it maintained the openness of the green belt. Following the High Court decision, the way the NPPF is now interpreted is that any change of use is ‘inappropriate’ (unless it is one of the few exceptions specifically referred to in the NPPF) which places a higher bar for applicants. The effect of this goes beyond applications for cemeteries – for example, a change of use from an agricultural field to a football pitch. Both uses maintain the openness of the green belt but the use as a football pitch would now be deemed ‘inappropriate’.
3. You ask if the Council agrees that the appeal should be withdrawn.
No, the Council does not agree that the appeal should be withdrawn. Counsel’s advice remains that the Council has good prospects of success. The Inspector’s decision at the Inquiry has no impact on the Council’s decision to appeal and nothing else has changed – the reasons for making the decision to appeal remain. In addition, if the Council withdraws now, it will become liable for the costs of the other parties to the appeal.