JUDGMENT SUMMARIES

Background

The proposed crematorium site is about 1km northeast of the Dundee City Council boundary. The site would incorporate an internal one-way road and 124 car parking spaces. The appellant is a close neighbour of the development site and made representations against the granting of planning permission. The application proposed development on greenfield land. 

Submissions

The appellant submitted that:

• The DMRC failed properly to consider whether the development would accord with the development plan.  While reference was made to the statutory test, there was no real analysis of the key issue of conformity with the development plan. 
• The DMRC’s decision not to follow the view of the delegated officer was unreasoned.  Clear reasons had to be given for departing from the officer’s view. On a proper analysis it was clear that the proposal did not accord with National Planning Framework 4 or the relevant local plan policies. 
• There was no explanation as to the investigations carried out in relation to the suitability and availability of brownfield sites.
• There were no material considerations sufficient to justify departure from the development plan
• The conclusions that the road network was sufficient to support traffic likely to be generated by the development and that there would be no significant travel generation were irrational.

The respondents submitted that:

• The DMRC correctly interpreted the development plan policies. The appellant’s complaints all concerned matters of weight and questions of planning judgement.
• The DMRC were correct (or at least entitled) to conclude that the proposed development accorded with the development plan overall.
• The DMRC were entitled to differ from the delegated officer and to use their own experience and judgement.
• All the appellant’s criticisms of the DMRC’s decisions on compliance with the relevant policies amounted merely to disagreements on matters of judgement. 
• It was crucial to understand that the DMRC’s decision had to be read as a whole. Consistency of decision-making was a relevant consideration
• The DMRC gave close consideration to the provision of suitable road access.
• The DMRC’s reasons were adequate and intelligible. They left the informed reader in no doubt as to the grounds for the decision and the basis on which all the main points had been disposed of.
  

Analysis and decision

In its decision the court highlighted the UK Supreme Court case of Tesco Stores v Dundee City Council (2012] UKSC 13; 2012 SC (UKSC) 278). The Supreme Court judgment explained that it has long been established that a planning authority must proceed upon a correct understanding of the development plan.

In the current case it is clear that the DMRC correctly understood the terms and effect of the pertinent policies in the development plan. In their review decision notice of 25 October 2024, they identified the relevant national and local planning policies and proceeded to assess the proposed development against each of the relevant policies. This led them to the ultimate decision that the development was in accord with the development plan.

In considering the DMRC’s decision it is of the utmost importance to read it as a whole and to avoid legalistic or unduly technical analysis. The appellant’s submissions tended not to take a holistic approach; instead, they focused on whether there was compliance with individual policies with no real consideration of whether there was tension between policies which might be capable of being reconciled.

The essential task of the decision-maker is to weigh up, in a balanced way, the various policies and to use judgement and experience in deciding how they should be applied to the particular proposal. Reading the decision as a whole, the court decided it is clear that this was the approach taken by the DMRC.

The court also found that in relation to sustainability and accessibility, the DMRC had regard to the overarching policies of NPF4 on tackling the climate and nature crisis, on climate mitigation and adaptation, and to policy DS2 of ADLP (Accessible Development). 

A point highlighted by the court is that in assessing whether a development is compliant with policy 13 d) of NFP4 ‘which would increase reliance on the private car’ account is to be taken of the specific characteristics of the area. The area here is a rural one. The DMRC had in mind that in such a location the most sustainable modes of travel may not be feasible. 

The court disagreed with the appellant’s argument that the DMRC had taken account of certain irrelevant considerations. The fact that there were no crematoria-specific national or local policies was clearly a matter which it was open to the DMRC to consider in applying the policies set out in the development plan. Similarly, the cost of and demand for cremations in the Angus area were factors that the DMRC could perfectly properly take into account. 

While issues of roads capacity and roads safety were raised in representations, it was very clear from the material before the DMRC that the roads near the development could cope without difficulty with the traffic generated by it.

The appeal was therefore refused.

The full opinion, published on the Scottish Courts and Tribunals Service website, is the only authoritative document.