Approaches to development plan policy

The High Court’s dismissal of a challenge to the grant of planning permission for a crematorium is significant when it comes to the approach to development plan policy, writes Zack Simons.

InDignity Funerals Ltd v Breckland District Council [2017] EWHC 1492 (Admin) Mr Justice Holgate dismissed a challenge brought by Dignity Funerals Ltd to the grant of planning permission by Breckland District Council for a new crematorium in Scoulton.

The judgment raises several important points on the proper approach to development plan policy in light of the Supreme Court’s recent judgment in Hopkins Homes, and there is an extensive discussion on the materiality of alternative sites.

The first ground alleged an erroneous interpretation of a policy which set out in broad terms the spatial strategy for the whole of Breckland.  Holgate J dismissed that point, finding that:

“the language used in policy SS1 has to be understood in the context of its purposes and spirit. The legalistic construction of SS1 advocated on behalf of the Claimant does not accord with the approach to interpretation of policy laid down by the Supreme Court in Tesco and Hopkins, especially for a broad, strategic policy of this kind. It is plain from the judgments in Hopkins that arguments of the kind put forward in the present case are firmly discouraged.”

The claimant also alleged that because the council had found that the proposal conflicted with certain policies, and only “accorded with” others, it was legally impossible for it to conclude that the scheme accorded with the development plan as a whole, unless it identified compliance with one or more policies providing positive support for the scheme. Holgate J rejected that argument, finding that:

“For my part I am unable to accept the Claimant’s approach. It is too mathematical or mechanistic. Conflict with one particular policy may be treated as having an adverse impact and yet of relatively little weight. At the same time, the decision-maker may consider that compliance with other policies designed to secure that development in general takes place without causing significant harm to a range of environmental factors, does involve a greater degree of compliance with the development plan than the non-compliance. The decision-maker is entitled to regard compliance with those policy considerations (even in the sense of simply avoiding harm) as having a greater priority or importance than the non-compliance with a policy designed to protect one other aspect, such as the landscape.” 

The claimant alleged that the council had failed to have regard to an alternative site for a crematorium at Weeting. Holgate J found, on the facts, that the council did indeed have regard to that site. The claimant’s case was that the council should have sought out more information about its site, but Holgate J found that:

“It is well-established that it is for the decision-maker to decide how far to go in seeking or obtaining information on a factor which it has not excluded as legally irrelevant. That decision may only be challenged on grounds of irrationality.”

The council had been under no duty to consider alternative sites in any event, either as a matter of policy, or because alternatives were “obviously material”. Holgate J emphasised Carnwath LJ’s distinction in Derbyshire Dales District Council v SSCLG [2010] 1P&CR 19 between (1) cases where a possible alternative site is potentially relevant so that a decision-maker does not err in law if he has regard to it and (2) cases where an alternative is necessarily relevant so that he errs in law by failing to have regard to it.

On costs, the Judge ordered the claimant to pay the defendant’s costs of both the final hearing and the oral renewal hearing: see §124. Permission to appeal was refused.

Zack Simons is a barrister at Landmark Chambers. Together with Christopher Lockhart-Mummery QC he acted for the successful defendant, instructed by Mike Horn of the Breckland District Council.