Those of you who visited the Wilkes Stand at the recent NAFD Expo at Stoneleigh Park will have picked up the Planning Dept’s Briefing Note on Development in the greenbelt which also drew on the recent Watermead PC Case in the Court of Appeal; demonstrating the difficulties in building a crematorium, particularly, in that case, on greenbelt land.
June 2017 saw another crematorium case make the High Court – Dignity Funerals Limited v Breckland District Council. It is a reminder of the duties under section 38 (6) of the Planning and Compulsory Purchase Act 2004 (giving the Development Plan primacy) and also explores the duty to consider alternative sites and other material considerations.
The case concerned a new crematorium development in Breckland, which as you might expect attracted considerable local interest. The planning permission was legally challenged by the Claimant, Dignity Funerals, who sought to promote a competing site.
Technical points were raised with s.38 (6) compliance, which do not raise particularly new or novele points of law. Our team of experienced planning lawyers can advise generally on the importance of s. 38 (6) in any planning application.
In this case the LPA was notified of the Claimant’s alternative site by letter a few days prior to planning committee; that included details of the location of the alternative site and an indicative masterplan.
Importantly it had not been submitted as an alternative during the application / objection process. Such last minute submissions are, of course, not uncommon. Members were informed that details of an alternative site were provided, but that there was insufficient information to assess this further and consequently “limited weight” should be attached to it.
This was a lawful exercise of the LPA’s planning judgment. The Judge rejected any contention from the Claimant that planning policies which, required harm to be “minimised”, implied a duty for alternative sites to be considered to see if the level of harm could be more acceptable.
It is therefore important for developers and local planning authorities to stay ahead of the game and ensure that the planning permissions issued are robust.
Such an approach was adopted by Breckland Council throughout the planning application process to ensure that the consultations; notification duties; decision making processes; screening documents; and committee reports, were legally robust.
Wilkes can advise applicants, planning authorities and / or rival developers of the best way through the planning system to obtain the consents their businesses require.
Early legal advice is always beneficial and valuable to help protect against successful challenge.
For help with any Planning related matter please contact Stuart Tym on 0121 233 4333 or via email on [email protected]