Second challenge to application for new crematorium outside Dundee refused by Inner House

About this case:

• Citation:
  [2025] CSIH 29
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

Appellant Paul Dixon argued that the respondents’ conclusions were irrational and not sufficiently supported by the relevant planning frameworks. A previous application to the court in 2023 resulted in the original decision to grant the application being set aside, with it being remitted to a differently constituted development committee for consideration of new. However, the respondents’ Development Management Review Committee again granted permission on 25 October 2024.

The appeal was heard by the Lord President, Lord Pentland, with Lord Doherty and Lord Ericht. Burney KC and K Young, advocate, appeared for the appellant and J d C Findlay KC and Innes, advocate, for the respondents.

Not every day travel

The relevant planning application was submitted to the respondents by Duntrune Ltd on 14 December 2020. It proposed to build a crematorium building on a 1.98-hectare area of agricultural land located around 1km northeast of the Dundee City Council boundary. An accompanying transportation assessment concluded that the proposed crematorium was expected to primarily serve the Angus Council area with a reasonable proportion of visitors from Dundee.

By the time of the second consideration of the matter, the Scottish ministers had adopted National Planning Framework 4, which placed emphasis on locating developments in locations accessible by means other than private vehicles. The proposed development was to be located on a greenfield site, was accessible mainly by car, and would generate significant vehicle movement in the area. The applicants lodged further submissions in respect of a statement on NPF4 made by the respondents in which they argued that the proposal would not lead to additional vehicle movement as the need for crematorium services was a pre-existing one, and rural Angus residents already required to travel to meet those needs.

In its second decision, the DMRC concluded that the sustainable transport policy of NPF4 was not contravened as the development was not a significant travel generating use and attending a crematorium was not every day travel. The provision of an alternative facility would reduce travel times and therefore CO2 emissions, and the development was considered to be of an appropriate nature and scale for a countryside location.

For the appellant it was submitted that on a proper analysis the proposal did not accord with NPF4 or the relevant local plan policies. Evidence that other local crematorium facilities operated well below maximum capacity was ignored, and there was no rational basis for holding that funeral traffic would generally be off peak.

Senior counsel for the respondent submitted that the DMRC correctly interpreted the development plan policies. The appellant’s complaints all concerned matters of weight and questions of planning judgement. These were for the DMRC and could not be reconsidered on an appeal to this court.

Real-world context

Lord Pentland, delivering the opinion of the court, began by noting: “It has long been established that a planning authority must proceed upon a correct understanding of the development plan. This is essentially for two reasons. First, the authority is required by section 37(2) of the Town and Country Planning (Scotland) Act 1997 to have regard to the provisions of the development plan so far as material to the application; it cannot properly have regard to the provisions of the plan if it fails to understand them. Secondly, the legal status of the development plan means that it is essential that the planning authority correctly understands what the plan means in the context of the application which the authority is called on to consider.”

He added: “In the present 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.”

Considering that the appellant’s submissions did not take a holistic approach to planning policy, Lord Pentland said: “The aims and principles reflected in the multiplicity of applicable planning policies will often pull in different directions when applied to the real-world context of a particular development proposal. 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, it is clear that this was the approach taken by the DMRC.”

He continued: “The fact that the development would not be a significant travel generating use and the constraints which a rural location placed upon the feasibility of the top three methods of sustainable travel were factors which were relevant to the weight which the DMRC gave to the sustainability and accessibility policies in the development plan. Other relevant factors were their finding that the development would reduce the distances which mourners would otherwise have to travel to existing crematoria; that it could reasonably be expected that mourners would car share; and that conditions to be imposed included that the building approved should not be brought into use unless a Travel Plan had been submitted to and approved by the planning authority.”

Lord Pentland concluded: “The standard of reasoning against which the DMRC’s decision notice falls to be judged was set out in West Lothian Council v Scottish Ministers (2023). This approach [applied in that case to planning reporters] applies equally in the case of a decision notice issued by a review body such as the DMRC. Applying that approach, we are in no doubt that the decision notice adequately and intelligibly explains the reasons for the decision.”

Having held that there was no merit in any of the appellant’s challenges, the appeal was therefore refused.