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Court of Appeal decides that cemeteries are inappropriate in the Green Belt

DATE: 22 Jan 2015

The Court of Appeal’s has today handed down its judgment in R (Timmins and Lymn Family Funeral Service) v. Gedling Borough Council and Westerleigh Group Limited [2015 EWCA Civ 110.  The case concerned the extent to which, following the introduction of the NPPF, the material change of use of land generally (and the use of land as a cemetery in particular) should be regarded as “not inappropriate” in the Green Belt.  

Mrs Timmins (a local resident) and the Lymn Family Funeral Service had challenged the decision of Gedling Borough Council to grant planning permission to the Westerleigh Group for a crematorium and a cemetery on land within the Green Belt outside Nottingham.  In recommending the grant of planning permission, Gedling’s officers had advised members that, while the crematorium was inappropriate development, the cemetery was not.  Accordingly, there had been no consideration of whether there were “very special circumstances” which justified the cemetery.   

In the High Court, Green J agreed with the Claimants that the NPPF had affected a change in the scope of development which was to be regarded as “inappropriate”.  In his view, both paragraphs 89 and 90 were closed lists which identified the only categories of development which were “not inappropriate”.  Unlike PPG2, which had expressly advised that material changes of use of land would not be inappropriate (provided they did not affect the openness of the Green Belt), the NPPF contained no such exception.  The change of use of land to use as a cemetery was therefore now inappropriate, and officer had erred in law in advising the Planning Committee otherwise. 

The Court of Appeal has unanimously upheld that decision, ruling that cemeteries are inappropriate development within the meaning of the NPPF.  However, the Court was divided on the wider question whether this was also true of other changes of use, such as change of use to outdoor sport and recreation.   Richards LJ agreed with Green LJ that both paragraphs 89 and 90 were closed lists, with the result that all material changes of use (other than those specifically identified in para 90) were inappropriate.  Mitting J disagreed, on the basis that this would place paragraphs 89 and 90 in conflict with paragraph 81 of the NPPF, which “imposes a positive obligation on local planning authorities to enhance the beneficial use of the green belt”, inter alia through the provision of opportunities for outdoor sport and recreation.  Since the case before the Court was concerned with cemeteries, rather than outdoor sport and recreation, Tomlinson LJ did not consider it necessary to decide the point.  This question therefore remains live for another day. 

Paul Brown QC acted for Mrs Timmins in the High Court, and for Mrs Timmins and Lymn in the Court of Appeal.