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Appeal Decision

Inquiry opened on 29 June 2010 Site visit made on 30 June 2010 by Jennifer Vyse
DipTP DipPBM MRTPI

The Planning Inspectorate 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Bristol BS1 6PN 0117 372 6372 email:enquiries@pins.gsi.g ov.uk Decision date: 12 August 2010

an Inspector appointed by the Secretary of State for Communities and Local Government

Appeal Ref: APP/N5090/A/10/2122850 Edgwarebury Cemetery, Edgwarebury Lane, Barnet, London HA8
• • • • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission. The appeal is made by the Trustees of Belsize Square Synagogue against the decision of the Council of the London Borough of Barnet. The application No H/04617/08, dated 12 December 2008, was refused by a notice dated 13 October 2009. The development proposed is described on the application form as ‘Change of use from agricultural land to a cemetery to allow extension of existing Edgwarebury Lane Cemetery. Creation of three access points across Clay Lane. Associated landscaping, boundary treatments, internal access arrangements and the reconfiguration of existing car park to provide a further 18 spaces and 8 staff spaces.’

Application for Costs 1. At the Inquiry an application for costs was made by the appellant against the Council. That application is the subject of a separate Decision. Procedural Matters 2. The Inquiry opened on 29 June 2010 and sat for four consecutive days. The site visit, which was undertaken on an accompanied basis, took place on the afternoon of the second day. 3. Subsequent to submission of the application to the Council in 2008, and following a lengthy period of negotiation, the scheme was amended such that the number of access points across Clay Lane was reduced from three to one. In addition, it was confirmed that none of the trees on the site, with the possible exception of a single dead specimen, would need to be felled. At the start of the Inquiry, it was requested that I consider further revised plans contained within the proof of Mr McInerney (Listed as Plan B). 4. Those opposing the development objected to the substitution on the basis that the scheme was materially different from that considered by the planning committee. The objection was based on the belief that the plans presented to the committee proposed the felling of a significant number of trees, whereas the revised plans show retention of all but one. However, notwithstanding that the first reason for refusal includes reference to potential loss of trees and hedgerows, the plans agreed as comprising those on which the Council’s decision was based clearly show (with the exception already referred to) that it was not intended to fell any trees and neither, other than a short stretch to facilitate the proposed access, would any hedgerow be removed. It was also re-confirmed by both the appellant and the Council (and it is apparent from the committee report) that the scheme before the committee did not involve the felling of trees. On the contrary, it showed significant additional planting of trees and hedgerows.

Appeal Decision APP/N5090/A/10/2122850

5. The revised plans provide amended information in relation to the planting and seeding proposals, and to landscape and ecology management, the main differences being that the planting scheme is extended around the whole of the appeal site, as opposed to around only the southern part, and it includes root protection areas for the retained trees which would be permanently fenced off and seeded with wild flowers. I am satisfied that the amendments are not materially different from the scheme considered by Members and that no parties’ interest would be prejudiced were I to accept them as a substitution. I shall proceed on this basis. 6. The proposal involves works to Clay Lane, a former ‘Road used as a Public Path’, now a restricted byway. Were the appeal to succeed, the byway would need to be closed off for a temporary period whilst works to create a formal crossing are carried out. That can only be achieved by way of a Traffic Regulation Order under the provisions of the Road Traffic Regulation Act 1984. In addition, a separate consent would be required from the Highway Authority for the works. Whilst these matters may have implications for implementation were the appeal to succeed, I have made my decision only on the planning merits of the case. I am also aware that the London Wildlife Trust Barnet Group has applied to have Clay Lane included on the Register of Town and Village Greens. At the time of the Inquiry however, that application had not been determined. Whilst designation of the Lane as a Village Green may, given the need to cross the Lane to access the appeal site, have implications for implementation were the appeal to succeed, I would reiterate that I have made my decision only on the planning merits of the case. 7. The Council’s Decision Notice sets out two reasons for refusal, one of which refers to the absence of a formal undertaking to meet additional highway costs arising from the development and which would secure mitigation proposals necessary to protect identified species of importance. Such an Undertaking was, however, submitted to the Inquiry. Accordingly, at the commencement of the proceedings, it was confirmed that the Council would not be pursuing the second of the reasons for refusal, subject to appropriate conditions. Inspector’s Decision 8. For the reasons that follow I allow the appeal, and grant planning permission for change of use from agricultural land to a cemetery to allow the extension of the existing cemetery, the creation of one access point across Clay Lane, associated landscaping, boundary treatments and internal access arrangements, together with the provision of 8 new staff parking spaces and the reconfiguration of the existing car park to provide a further 18 parking spaces, at Edgwarebury Cemetery, Edgwarebury Lane, Barnet, London, in accordance with the terms of the application, No H/04617/08, dated 12 December 2008, subject to the conditions set out in the attached Schedule. Main Issues 9. I consider the main issues in this case to be: whether the proposal would be inappropriate development for the purposes of Planning Policy Guidance (PPG) 2 ‘Green Belts’ and development plan policy;

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its effect on the character and appearance of the area and the visual amenities of the Green Belt; its effect on the ecology of the area; and, if the development is inappropriate, whether any harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development. Reasons for the Decision 10. Edgwarebury Cemetery, which was established in the late 1960s, lies to the north of Barnet, on the eastern side of Edgwarebury Lane. The Trustees of Belsize Square Synagogue (the appellant) are one of four Jewish communities1 that bury their dead in distinct areas there. It is accessed directly from Edgwarebury Lane and incorporates three buildings which provide facilities for administration and preparing and conducting burials, a prayer room and toilets. The buildings, together with parking for some 56 vehicles, are located in the southern corner of the site, close to the road. Burial and remembrance areas are located throughout the rest of the site, with burial plots spreading out in a north-easterly direction. The cemetery is bounded by Clay Lane to the north and east, with Broadfields Junior School directly to the south. The appeal site, which comprises two fields extending to almost 3 hectares of agricultural land, lies immediately to the north-east of the existing facility, separated from it by Clay Lane. Land beyond Clay Lane, including the appeal site, comprises open farmland that falls away from the Lane which is, in turn, bounded by the M1 motorway and the Thameslink railway line to the north and east. 11. The land comprising the appeal site has, for the last few years, been subject to a regime of ‘set-aside’, with the consequence that, at the time of the Inquiry, it had the appearance of rough grassland. It is proposed to change the use of the land to create an extension to the existing cemetery. The appeal site would be linked to the existing burial ground via a single access point. The access would, of necessity, cross Clay Lane. It is also proposed to reconfigure the existing parking area to increase the amount of parking available on the site, and to create a small additional area for staff parking immediately to the north of the existing buildings. 12. The appeal site, the existing cemetery, and the surrounding land, lie within the Metropolitan Green Belt. The land also lies within an Area of Special Archaeological Significance, an Area of Special Character, and Watling Chase Community Forest, all as defined in the Barnet Unitary Development Plan. Clay Lane is designated as a Site of Local Importance for Nature Conservation and is included as an area (A6) within a larger Tree Preservation Order (TPO)2. The TPO also includes groups of trees around the perimeter of, and within, the appeal site (G35, G40, G41 and G93). Green Belt/Inappropriate Development 13. Planning Policy Guidance 2 ‘Green Belts’ (PPG2) makes it clear that the general policies controlling development in the countryside apply with equal force in
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Belsize Square Synagogue, Liberal Judaism, the Spanish & Portuguese (Sephardi) and West London Synagogue The London Borough of Barnet (Bury Farm, Edgwarebury Lane, Edgware) Tree Preservation Order 1978

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Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. That presumption is reflected in policy 3D.9 of the consolidated version of the London Plan3. 14. Both the Council and the appellant are of the view that the proposal does not comprise inappropriate development in the Green Belt, with both referring to paragraph 3.4 of PPG2. That paragraph, however, deals specifically with the erection of new buildings in the Green Belt, providing examples of buildings which need not, necessarily, be inappropriate. The development before me involves only a change in the use of the land and additional hardsurfacing. No new buildings are proposed. Visitors to the cemetery would continue to use the existing infrastructure, including the existing buildings, access and parking. 15. Whilst the examples listed at paragraph 3.4 include essential facilities for cemeteries, that paragraph does not state expressly that cemeteries, as a new land use, are not inappropriate. Given the nature of the development proposed, I consider the relevant paragraph of PPG2 under which to consider the proposal, to be 3.12. This advises that the making of any material change in the use of land is inappropriate development unless it maintains openness and does not conflict with the purposes of including land in the Green Belt. In coming to my decision, I am required to have regard, among other things, to national guidance. On opening the Inquiry, I asked the main parties particularly to address the provisions of this paragraph with their witnesses, and I too asked questions on the matter. I am satisfied that the parties had sufficient opportunity to give consideration to this approach and to address the Inquiry accordingly. 16. I accept that the use of land for cemetery purposes need not, necessarily, comprise inappropriate development. Indeed, whilst the advice at paragraph 3.12 is reflected in saved policies O1 and O2 of the Barnet Unitary Development Plan 2006 (UDP), the explanatory text to policy O2 specifically states that cemeteries may be acceptable in the Green Belt. I recognise in this respect, that buildings, which might reduce openness, are not proposed in connection with the appeal scheme. Neither am I convinced by the Council’s argument that the planting proposed would harm the openness of this part of the Green Belt. 17. During my site visit, I saw that the boundaries of the two fields that comprise the appeal site are lined with remnant hedgerow trees. In addition, I saw that the boundary with Clay Lane is defined by a well established band of trees, hedgerows and other vegetation, giving the Lane a very enclosed feel, notwithstanding filtered views into the appeal site. I recognise that those views would be more apparent in the winter, when foliage is less dense. I find however, that the planting proposed would simply reinforce existing boundary planting, rather than introducing planting where none exists at present. I am mindful also, that the planting does not, of itself, comprise development. In coming to this view, I am also aware that the appeal site lies within a substantial swathe of land in the northern part of the Borough, designated as a Community Forest (UDP policy O18). That initiative seeks to increase woodland coverage in the designated area, an area that is, for the most part,
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The London Plan February 2008 (consolidated with alterations since 2004)

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also within Green Belt. The planting proposed would accord with policy O18, a policy that, to my mind, does not conflict with the relevant Green Belt policies and guidance. 18. I do, however, share the concerns of a number of objectors to the proposal, including the CPRE4, the London Green Belt Council, and others, in relation to the impact on openness of the memorial stonework associated with proposal. I am mindful of the proviso in the explanatory text to policy O2 of the UDP that, whilst cemeteries may be acceptable in the Green Belt, it is important ‘to ensure that any associated buildings or memorial stones are not detrimental to the openness of the Green Belt or MOL.’ The appeal site is wholly open at present, containing no buildings or structures, roads or tracks, with the trees and hedgerows being confined to the field boundaries. The use of the land as a cemetery by the Jewish communities that currently use the existing facility, would involve closely placed plinths, stones and slabs (some 800 plots per acre on the evidence of the appellant) with narrow strips of grass in between. From what I saw of the existing cemetery, I am in no doubt that this element of the proposal would materially reduce the openness of this part of the Green Belt. 19. For similar reasons, I find that the development would encroach into the countryside, contrary to one of the stated purposes of including land in the Green Belt. Notwithstanding the position of both the Council and the appellant on this matter, I am of the view, having regard to the guidance in PPG2 and the relevant development plan policies with their supporting commentary, that the proposal comprises inappropriate development in the Green Belt in policy terms. 20. My findings on this matter accord, to some extent, with the reasoning of a fellow Inspector who reported, in July 1998, to the Secretary of State on an appeal against the decision of the Council of the London Borough of Barnet to refuse planning permission for the use of land at Barnet Gate Lane, Arkley, as a cemetery with ancillary chapel and mortuary buildings5. In that case, the view of the Council, which was favoured by the Inspector, was that whilst the use of land as a cemetery may be ‘appropriate’ in principle, the specific nature of the proposal meant that there would be a loss of openness (as well as an adverse visual impact). That loss of openness derived in part from the nature of the gravestones and tombs characteristic of Jewish cemeteries. The Council therefore came to the view, that there are circumstances in which a cemetery is not an ‘appropriate’ Green Belt use6. Character and Appearance of the Area and Visual Amenity of the Green Belt 21. I am in no doubt that the development proposed would, over time, result in a material change to the character and appearance of the appeal site. It would introduce closely placed memorial stone features across the site, in marked contrast to its existing open, natural and undeveloped character. It is important however, to look at the impact of that development on the wider landscape. Although the existing cemetery is an established facility in the locality, the accretion of burial stone is not readily seen as an obvious or intrusive feature in the surrounding area (other than from the air). I also note
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Council for the Protection of Rural England – now Natural England Appeal Decision No APP/N5090/A/97/288876 Paragraphs 7.13 – 7.15 of the previous appeal decision

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that it was no part of the Council’s case that there would be any harm to the Area of Special Character, or to the aims of the Community Forest. In fact, the development would, to my mind, make a positive contribution to the overarching objective to increase tree cover in the Forest area. 22. The appeal site lies within the urban fringe, a transitional zone where the Hertfordshire countryside merges with the edge of the London metropolis. The immediately surrounding area is not notably picturesque and I saw that traditional management and existing landscape features in the agricultural landscape are in decline. Elements such as the M1 motorway and London Gateway service area, the busy Thameslink railway line, and prominent electricity pylons in close proximity, all have an effect on its perceived character. On this basis, I agree with the appellant that, in essence, this is not a landscape that is intrinsically sensitive to further change. 23. When seen from further afield, including from elevated land on the far side of the railway line and motorway, much of which is heavily wooded, the appeal site is not a significant or prominent feature, with views filtered not only by the distance separation involved, but also by existing trees and planting within the landscape. The appeal scheme includes significant planting and landscaping around the perimeter of the site, reinforcing old field boundaries, which would provide additional screening in those views. I consider that what receptors there are in the wider area, would not experience any material visual change as a consequence of the appeal proposal. It was generally agreed that the area that would be most sensitive to change would be Clay Lane. 24. Clay Lane, an ancient green lane, provides a pleasant walk on the urban fringe between Edgwarebury Lane and Broadfields Avenue, a main distributor road through the adjacent residential estate. It lies adjacent to, but does not form part of, the appeal site. At its northern end, the Lane skirts the northern and eastern boundaries of the existing cemetery. It is roughly 3m in width and is contained on both sides by mature oak over a wide under-storey of ash, hawthorn, blackthorn and brambles which, particularly in the summer, give a ‘tunnel’ effect along most of its length and its prevailing character is of a linear walk bounded by vegetation. 25. The tree stock is undoubtedly an important feature of the local landscape, with the trees along Clay Lane being located within a Site of Local Importance for Nature Conservation, and those along the majority of the other boundaries to the site being covered by a TPO. I consider that the perimeter planting proposed would contribute to the visual integrity of existing hedgerows and field boundaries and would reinforce the existing character and appearance of the area, rather than introducing a new character to the Lane. 26. Policy D13 of the UDP requires that development schemes should retain as many trees as is practicable, that existing trees and their root systems are adequately protected during works on site, and that an appropriate level of new tree and shrub planting is provided. All but one of the existing trees and hedgerows on the site would be retained, with Plan EDP278/12a illustrating that the root protection areas of the trees would not be available for burials, being fenced off and seeded with wildflowers. I find no conflict therefore, with policy D13.

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27. Moreover, the long term management of those areas, and indeed the site as a whole, would be secured by the Landscape and Ecology Management Plan, the draft heads of terms for which are set out in the appendices to the evidence of Mr McInerney. It would include all landscape measures and arboricultural/ ecological monitoring required to bring about the successful delivery, establishment and ongoing management and maintenance of the proposals illustrated on plans EDP278/12a and EDP278/37a. 28. The appeal site would be reached from the existing burial ground via a proposed break of some 3.1m in the existing hedgerow to both sides of Clay Lane. Given the overall length of the Lane, I find that the break, which does not involve the felling of any trees, would not harm its established character and appearance. In addition, the proposed gates, details of which could be secured by condition, would be set well back from the edges of the Lane, so they would not be readily apparent to passers-by. The plans also show an area of planting at the entrance to the appeal site, which would filter and screen views of the interior of the extension from the Lane at times when the gates were open. Although not shown on the plans, it was confirmed that a similar arrangement could also be provided on the opposite side of the Lane at the corresponding entrance to the existing cemetery. 29. The Crossing Point Management Plan to be submitted would set out the arrangement for the management of the Clay Lane crossing, to protect the interests and safety of those using the Lane. With regard to its visual impact, I am satisfied, given the apparently often wet and muddy nature of the Lane, that, with the use of appropriate materials, again a matter that could be secured by condition, it would quickly weather in. As such, the crossing itself would not materially harm the character and appearance of the area, or its visual amenity, and it would not materially harm the enjoyment of users of the byway. 30. There would be no lighting within the appeal site, nor any new buildings. Moreover, as this is an extension to an existing facility that abuts the Lane, it is not a totally new land use to the area. The existing cemetery is well screened, without that screening being oppressive or restrictive in any way. In my view, the perimeter planting proposed would make a significant contribution to the visual integrity of the existing hedgerows and field boundaries, and would similarly filter views into the appeal site. The development would not, in my opinion, result in any material change to the character or appearance of the Clay Lane, nor would it harm the visual amenities of the Green Belt as perceived by users of the Lane. 31. With regard to other elements of the proposal, although the development would be unlikely to increase the frequency or intensity of funerals at Edgwarebury, and no increase in staff is anticipated, the existing parking arrangement is of poor quality and is, at times, inadequate, resulting in vehicles double parking within the site and/or increasing pressure for on-street parking in the adjacent residential area. As a consequence, it is proposed to reconfigure and re-surface the existing car park, to enable the provision of an additional 18 spaces. Eight new dedicated staff parking spaces are also proposed on an area of sloping area that is enclosed by existing buildings and fencing. None of these works would have any material impact on the character

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or appearance of the area and would cause no harm to the visual amenity of the Green Belt. 32. Development on the appeal site would take place very gradually, over many years, giving time for the landscaping and planting to mature and take effect before any possible impact from use of the land as a cemetery is likely to become apparent. I recognise that the character and appearance of the appeal site itself would change over time and to that extent, there would be some localised harm. All in all however, I conclude that the recreational enjoyment of users of the Lane, and the ‘taste of the countryside’ that it provides, would not be harmed to any material degree, and the availability of strongly filtered views into the appeal site in winter and what would amount to closed views in the summer, means that there would be little, if any, harm to the overall character and appearance of the area, or to the visual amenities of the Green Belt. There would be no conflict therefore with PPG2, or saved policies GBEnv1, GBEnv4, D2 and D13 of the UDP. Ecology 33. Although not a reason for refusal, a number of objectors, some of whom gave evidence to the Inquiry, raised concerns in relation to the effect of the proposal on the ecological interest of the site. Much of that concern appears to be based on a belief that a significant number of trees on the site would be felled or otherwise threatened by the proposal. As confirmed already, with the possible exception of a single dead specimen, it is not intended to remove any tree within or adjacent to the appeal site. 34. The site is not covered by, nor does it lie adjacent to, any international, national or local statutory designations so far as ecology is concerned. Clay Lane however, is a Site of Local Importance for Nature Conservation, a nonstatutory designation. Having regard to the citation, it appears to have been designated due the range of tree and shrub species, and interesting herbaceous plants. With regard to the ecological value of the appeal site itself, I understand that the fields have reverted to grassland within the last four years. The most notable habitats, therefore, are the hedgerows and trees along the boundary with Clay Lane, and the mature trees along the other boundaries, associated with now defunct hedgerows. 35. The parallel hedgerows along Clay Lane are likely to fulfil the ecological criteria for ‘important’ hedgerows as defined by the Hedgerow Regulations 1997. To facilitate the proposed Clay Lane crossing, only 3.1m of the hedgerow would be removed along the boundary of the appeal site, with a corresponding length removed within the opposite boundary. No hedgerow trees would be affected and the tree canopy above the gaps would be retained. Given the overall length of the hedgerow along Clay Lane, I consider the loss proposed to be insignificant. In any event, it is proposed to re-instate some 400m of new hedgerow around the appeal site, which would more than compensate for the loss. 36. There is confirmed bat activity on the appeal site, although no roosts have been identified. Legal protection for bats is provided primarily through the EU Habitats Directive7, which is transposed in the UK through the Conservation
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92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora

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Regulations8 2010. On the basis of the evidence presented to me, I consider it highly unlikely that any illegal act with respect to bats would occur as a consequence of the development proposed. In addition, ongoing management of the tree stock in future years, pursuant to the Landscape and Ecology Management Plan, would ensure that it could continue to support the ecological interest of the area. 37. Although I understand that a hobby falcon is nesting in the vicinity, the appellant’s most recent survey (Document 11) found no evidence of any nest on the appeal site. The species is not of any conservation concern regionally or nationally, and neither is it listed as a priority species in either the national or local Biodiversity Action Plans (BAPs). It is, however, listed at Schedule 1 to the Wildlife and Countryside Act 1981 (as amended). The only likely effect, consequential upon the development proposed, would be from the activity associated with the creation of the new access onto Clay Lane and from the additional planting and erection of fencing. Any disturbance could be mitigated by sensitive timing of the works, a matter that could be addressed by condition were the appeal to succeed. 38. Slow worms are afforded protection from intentional and reckless killing and injury under the Wildlife and Countryside Act. In addition, whilst not listed in the London BAP, the slow worm is listed as a priority species in the national BAP. Due to the structural characteristics of the sward within the appeal site, the grassland habitat is unlikely to support any significant reptile population, with the most recent survey (Document 11) finding no evidence of such. Nonetheless, I consider that the cemetery extension proposed could be conducive to habitat continuity, a matter that could be addressed by condition. 39. I understand there to be a badger sett within 750m of the appeal site, although surveys of the site revealed no evidence of badger use. At such a distance, there is unlikely to be any immediate impact on that badger clan. Moreover, the sett is separated from the appeal site by the M1 motorway. Accordingly even if did form part of the badgers’ territory, I have no reason to suppose that it is likely to be a significant or critical element of the area. In any event, as noted earlier, the land use change would be so gradual that in the unlikely event that foraging territory is lost, the badgers would have time to adapt and its population status would not be threatened. 40. With regard to local flora, I understand that none of the species referred to by local enthusiasts as being present on the appeal site, is of particular note. None is listed in Schedule B of the Wildlife and Countryside Act 1981, in the UK BAP priority species, or in the London BAP species. All species identified appear to be widespread throughout the UK and do not present a material planning constraint to development of the appeal site. 41. A considerable amount of Inquiry time was spent on the matter of ecology. I am satisfied, based on the detailed information that is before me that there would be no material harm to the ecology of the area, subject to appropriate conditions and the submission and implementation of a Landscape and Ecology Management Plan. I find no conflict in this respect with national guidance in Planning Policy Statement 9 ‘Biodiversity and Geological Conservation’, policies
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The Conservation of Habitats and Species Regulations 2010

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3D.14 and 3D.15 of the consolidated London Plan, and saved policies O17, D14 and D15 of the UDP. Other Considerations 42. Inappropriate development is, by definition, harmful to the Green Belt. PPG2 makes it clear that such development should not be approved, except in very special circumstances. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. 43. The principle argument in support of the appeal is the urgent and pressing need for additional cemetery space for at least two of the communities (Belsize Square Synagogue and Liberal Judaism) that use Edgwarebury Cemetery. Burial space for those groups will run out in the very near future. The urgency for space for the other two groups is less pressing, but run out it will. 44. Policy CS15 of the UDP states that the Council will seek to identify appropriate sites for cemeteries and crematoria to meet the needs of the community, the supporting text acknowledging that only a limited amount of burial space is available to meet local needs. It goes on to state that the Council will seek to ensure that adequate provision is made in Barnet to meet the burial needs of all sections of the community. In addition, policy 3D.19 of the London Plan requires that DPD policies should make provision for London’s burial needs, including the special needs of certain religious or cultural groups for whom burial is the only option. It adds that provision should be based on the principle of proximity to local communities. 45. Notwithstanding the thrust of those policies, I was advised that there has been no thorough assessment of burial space in London for more than ten years, the latest document being a 1997 report by the LPAC9 entitled ‘Burial Needs in London’ and that Barnet Council has undertaken no consultation on how to meet the burial needs of the local community. I was also made aware that the emerging Core Strategy fails to identify appropriate sites. In the absence of any overall framework for meeting the burial and cremation needs of the local community, applications remain to be determined on an ad hoc basis. 46. It was confirmed in cross-examination, that no robust search had been undertaken by the appellant for any alternative to the proposed extension. In the alternative however, there was no suggestion by either the Council, or other objectors, of a more appropriate site that is currently available, or likely to become available in the near future. In coming to a view on this, I recognise that the specific criteria for any new cemetery to meet the needs of the Jewish communities in the Barnet area would have significant implications in terms of the availability and suitability of any alternative location. 47. Based on the existing facility at Edgwarebury, any site would need to be at least 4 hectares in size. I agree with the appellant that any site of that size within the urban area, even if it existed, given that development land in north London is at a premium, would, in all likelihood, be the subject of competing demands either for housing, commerce or industry and, as a consequence,

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The London Planning Advisory Committee

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would be prohibitively expensive. Thus, any financially viable alternative would need to be located on a greenfield site, beyond the urban area. 48. Furthermore, with the proximity principle in mind, as set out in policy 3D.19 of the London Plan, and given the extent of the Green Belt and the Area of Special Character in Barnet, I have no reason to suppose that any local greenfield site would be any less sensitive than the appeal site in policy terms. Indeed, a separate site, as opposed to the proposed extension could, arguably, be more challenging with regard to Green Belt policy, since it would require its own new, essential facilities, including access and car parking and a substantial services building (assuming that it would be equivalent to the existing facility). Although PPG2 and local development plan policies look favourably on essential cemetery buildings (even were the new use of land as a cemetery accepted as not inappropriate development) such buildings would, in all likelihood, have a greater impact on the openness and visual qualities of the Green Belt than the development the subject of this appeal, which would utilise existing facilities. 49. Objectors suggested that any search should look further afield, possibly beyond the Green Belt, or in neighbouring authorities, but those locations would fail the proximity test set out in the London Plan. Furthermore, there is no guarantee that any such site would be preferable in terms of any impact on the character or visual amenity of its locality. I also bear I mind that, traditionally, the Jewish community wish to be buried with, or close to, their loved ones. A facility in a different location would sever future generations from the past. 50. If the appeal were to fail, the Belsize Square Synagogue and Liberal Judaism communities face a fundamental problem in finding appropriate, proximate facilities in which to bury their dead. It was confirmed during the Inquiry, that every effort had been made to maximise use of the existing space, including burials in depth and in shared graves. It is not possible for the different communities to ‘share’ their respective space for religious reasons. The Jewish religious community is not a single entity - it ranges from the orthodox to the more liberal. Whilst the four communities at Edgwarebury work well together, that is only within the bounds of what the individual religious practices allow. It was confirmed that the Belsize Square Synagogue and Liberal Judaism do not have access to other land within the cemetery. 51. In reaching an overall balance, I must give substantial weight to the policy presumption against inappropriate development in the Green Belt. I have found that the development proposed would affect the openness of the Green Belt and the purposes of including land in it. To this must be added the harm, albeit very limited, to the character and appearance of the area and to the visual amenity of the Green Belt. It seems to me, however, that an alternative to meet the undisputed needs of the appellant is highly unlikely to be feasible, either in terms of availability to the appellant, or in terms of policy restrictions. On the contrary, there are specific benefits to the appeal site, in that there is no need for additional infrastructure or buildings, and given the extensive planting proposed, which would make a positive contribution toward the objectives of the Community Forest. I am satisfied that the combination of these considerations is compelling and that they clearly outweigh the harm by reason of inappropriateness and the other identified harm, and amount to the very special circumstances necessary to justify the development.

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Unilateral Undertaking and Conditions 52. I have considered the Unilateral Undertaking, and the conditions suggested, in the light of comments made at the Inquiry and the advice in Circulars 11/95 and 5/2005. In the event that the appeal should succeed, the Undertaking secures the payment of £60,000 towards the initial construction and ongoing maintenance of the crossing point on Clay Lane, and the submission and implementation of a Landscaping and Ecology Management Plan and a Crossing Management Plan. It also secures the payment of a contribution towards the monitoring of the Undertaking by the Council. 53. Given the value of the tree stock on the site to both character and appearance, and the ecology of the area, and the ongoing and long-term nature of the development the subject of this appeal, the provision of a Landscape and Ecology Management Plan is a necessity. The Crossing Management Plan is required to ensure that there would be no conflict between users of Clay Lane, a public right of way, and users of the proposed crossing. 54. Having regard to the tests set out in Circular 5/2005, I consider that the provisions set out in the Undertaking are relevant and necessary to the development proposed. 55. Moving on to conditions, it was agreed that a number of those originally suggested would be better addressed through the respective Management Plans referred to. It is necessary, however, in addition to the standard time limit on commencement of development, to list the plans to which the permission relates, for the avoidance of doubt and in the interest of proper planning. Conditions are also necessary to ensure that the Management Plans referred to above are submitted to and approved by the Council prior to commencement of development, and that development is carried out in accordance with the provisions of those Plans, in the combined interests of protecting and enhancing the character and appearance of the area, the visual amenity of the Green Belt, and local ecological interests, and in the interest of highway safety. 56. Conditions requiring a detailed specification for any tree pruning/felling, a scheme of soft and hard landscaping, and to ensure that any retained or new trees/shrubs are replaced, are necessary to protect and enhance the character and appearance of the area, the visual amenity of the Green Belt and the ecology of the area. For the same reason, it is important that no lighting is installed on the site. In the interest of visual amenity, a condition is required to ensure that any gates, fences, or other means of enclosure are agreed prior to erection. 57. It is necessary to restrict the creation of any future access points in order to minimise inconvenience to users of Clay Lane, to ensure the safety of those using Clay Lane and those using the crossing, and to protect the ecological habitat value of the site and the character and appearance of the area. For the same reasons, conditions are necessary to ensure that the appellant enters into an agreement under Section 278 of the Highways Act 1980 prior to the commencement of development, that the crossing is sited, constructed and drained in accordance with details to be submitted, including details of timing of the works, and to limit the types of vehicle that may use the crossing. With regard to the alterations to the existing car park and addition of new staff

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parking spaces, conditions are necessary, in the interest of highway safety and visual amenity, to secure details of drainage and surfacing for the parking areas to ensure that those works are carried out prior to first use of the cemetery extension. 58. The evidence of Dr Rowlands includes a condition to secure a reptile strategy for the site. Such a condition is necessary in my opinion, given the importance of the slow worm, and the need to ensure that the appeal site would remain conducive to habitat continuity. A condition was also suggested requiring, prior to the felling or pruning of any tree on the site, the confirmation of an ecologist that the works would not affect the conservation status of any protected species. Although I have found that the initial development would be unlikely to cause any harm to protected species, subject to conditions, I recognise that dependent upon when this permission might be implemented, some time could have elapsed since the various wildlife surveys were carried out. In my opinion, this is a matter that would be better addressed in the Landscape and Ecology Management Plan, which would be submitted prior to the commencement of any development on the site. Conclusion 59. For the reasons set above, I conclude on balance that the appeal should succeed.

Jennifer A Vyse
INSPECTOR

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APPEARANCES FOR THE APPELLANT: S White - of counsel He called D P McInerney BSc(Hons), MLD, CMLI Dr R Rowlands BSC(Hons), PhD, MIEEM, CEnv M Derbyshire BA(Hons), MRTPI Rabbi D Rich F Martin FCA S M Bruck K Conway Instructed by Savills Partner with The Environmental Dimension Partnership Partner and ecologist with The Environmental Dimension Partnership Planning Director with Savills Chief Executive of Liberal Judaism Chairman of the Burial Society of the Spanish and Portuguese Jews Congregation Belsize Square Synagogue Belsize Square Synagogue

FOR THE LOCAL PLANNING AUTHORITY: A Booth - of counsel He called C Townsend Instructed by Mrs C Hayes, solicitor to the Council Principal Planner with the Council

INTERESTED PERSONS OBJECTING TO THE PROPOSAL: Councillor H Rayner Dr S O Natelson C Cohen R Husband Mrs F Broom Council of the London Borough of Barnet On behalf of the Barnet Group of the London Wildlife Trust On behalf of the Barnet Group of the London Wildlife Trust On behalf of the Royal Society for the Protection of Birds

INTERESTED PERSONS SUPPORTING THE PROPOSAL: Councillor B Coleman Rabbi R Mariner Rabbi A Goldstein Rabbi P Tobias J Morris P Summerfield Professor E Moonan R Miller P Berger H Kuttner J D Phillip J Livingston Mrs O Gilbert Professor M Streat Councillor and Member of the London Assembly Belsize Square Synagogue Northwood and Pinner Liberal Synagogue The Liberal Synagogue Elstree

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DOCUMENTS HANDED IN DURING THE INQUIRY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19A 19B 20 21 22 23 24 Council’s letter of notification Bundle of third party letters in support of the proposed development Draft copy of Unilateral Undertaking Policy 3D.19 Burial Space (London Plan) Note of meeting 10 June 2009 Documentation referred to in Mr Cohen’s representations Page 3 of Appeal Decision No APP/N5090/A/97/288876 Appearances for the appellant Opening submissions on behalf of the appellant Rebuttal Statement of Dr Natelson Hobby, reptile and bat survey (2010) – Dr Rowlands UDP policies O18 and CS15 Written statement of Mr Husband Dr Natelson’s summary Morge v Hampshire County Council [2010] EWCA Civ 608 Supplementary evidence of Dr Rowland relating to the legal status of flora and fauna present on the appeal site Signed and dated Unilateral Undertaking Suggested conditions Edits to conditions 1 July 2010 Edits to conditions 2 July 2010 Closing submissions by Mr Husband Closing submissions by Dr Natelson Closing submissions on behalf of the Council Closing submissions on behalf of the appellant Written application for Costs on behalf of the appellant

PLANS A Application plans (246 01A Site Survey sheet 1 of 2 and 246 02 Site Survey sheet 2 of 2, 2125-SK-04, SV1 and SV2 site location plans, 2125/101RevM, 2125/SK05 Rev D, LHPL 132993/L003, LHPL 132993\L\004\Rev.i , LHPL 132993\L\009\Rev.c and LHPL 132993\L\010\rev.a) Plans EDP278/12a and EDP278/37a (Proof Plans L4 and L5 in Volume 2 of the evidence of Mr McInerney) Plan showing the site of the Arkley appeal.

B C

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Schedule of Conditions attached to Appeal Decision APP/N5090/A/10/2122850 Edgwarebury Cemetery, Edgwarebury Lane, Barnet, London
1) 2) The development hereby permitted shall begin not later than three years from the date of this decision. The development hereby permitted shall be carried out only in accordance with the following approved plans: 2125-SK-04, 2125/101M, 2125/SK05D, LHPL 132993/L003, and EDP278/12a and EDP278/37a (Proof Plans L4 and L5 respectively, in Volume 2 of the evidence of Mr McInerney). No works in connection with the development hereby permitted, including any site preparation works, shall commence until a Landscape and Ecology Management Plan for the site, based on the draft heads of terms at Appendix L3 to the evidence of Mr McInerney, has been submitted to and approved in writing by the local planning authority. Development shall be carried out only in accordance with such approved Plan. No works, including preparatory works, relating to the Clay Lane crossing hereby permitted, shall commence until a Crossing Management Plan has been submitted to, and agreed in writing by, the local planning authority. Once constructed, the crossing shall thereafter be operated in accordance with the Crossing Management Plan. No development or other operations in connection with the cemetery extension hereby permitted shall commence until a detailed tree felling/pruning specification, in accordance with the provisions of the Landscape and Ecology Management Plan, has been submitted to, and approved in writing by, the local planning authority. Tree felling and pruning works undertaken on the site shall be carried out in full accordance with the approved specification. A scheme of hard and soft landscaping in accordance with the principles shown on plan Nos EDP 278/12a and 278/37a, including details of all trees and hedgerows to be retained and the methods and precautions to be employed to minimise damage during the erection of fencing, gates or other means of enclosure and construction of the Clay Lane crossing, shall be submitted to, and agreed in writing by, the local planning authority prior to commencement of development. All work comprised in the approved scheme of landscaping, shall be carried out in accordance with the approved details prior to first use of the cemetery extension hereby permitted. Thereafter, it shall be managed and maintained in accordance with the provisions of the Landscape and Ecology Management Plan. Any existing tree shown as being retained, or any trees or shrubs to be planted as part of the approved landscaping scheme, which are removed, die, or become seriously damaged or diseased, shall be replaced in accordance with the Landscape and Ecology Management Plan. Prior to commencement of development, details of all fences, gates and other means of enclosure, in line with the principles illustrated on plan

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Nos EDP 278/12a and 278/37a, shall be submitted to and approved in writing by the local planning authority. Any gate, fence or other means of enclosure shall be erected in accordance with the approved details. 10) Prior to commencement of development, a reptile strategy for the site shall be submitted to, and approved in writing by, the local planning authority. Development shall be carried out only in accordance with approved strategy. No lighting shall be installed or provided within the cemetery extension hereby permitted. No access points, either vehicular or pedestrian, shall be formed or created from either the existing cemetery or the extension hereby permitted, other than as shown on plan No EDP 278/12a. No development shall take place until an agreement is place, under the provisions of Section 278 of the Highways Act 1980, to construct the Clay Lane crossing hereby permitted in accordance with the arrangement shown on drawing No 2125/SK05 Rev D. No works, including preparatory works, relating to the Clay Lane crossing hereby permitted, shall commence until details of its exact siting, associated drainage works and construction details, including the timing of the works, and surfacing, have been submitted to, and agreed in writing by, the local planning authority. The crossing shall be provided in accordance with the approved details prior to first use of the cemetery extension hereby approved. In addition to permitted users of Clay Lane, the crossing of Clay Lane at the permitted point shall be limited to golf buggies, motorised wheelchairs, a mini digger and maintenance vehicles. The maximum weight of any vehicle shall not exceed 5 tonnes. Prior to commencement of development, details of the drainage and surfacing of the parking areas shown on plan No 2125/101M shall be submitted to, and agreed in writing by, the local planning authority. The spaces shall be provided in accordance with the approved details prior to first use of the cemetery hereby approved.

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