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Section 11 – Conserving and enhancing the natural environment

NPPF 109-125

 

NPPF 109

Stroud District Council [2015] EWHC 488 (Admin), Ouseley J

“There is no question but that this land has no landscape designation. It does not rank even within the landscape designation that is designed to protect the boundaries of the AONB and apparently its setting, which is NE9, a policy derived from the Structure Plan. It is not a Local Green Space within policies 75 and 76 of the NPPF. It has no designation at all. The Inspector, if he had concluded, however, that designation was the same as valued landscape, would have fallen into error. The NPPF is clear: that designation is used when designation is meant and valued is used when valued is meant and the two words are not the same.” [13]

“the site to be valued had to show some demonstrable physical attribute rather than just popularity.” [14]

 

Forest of Dean DC [2016] EWHC 2429 (Admin), Hickinbottom J

Gwion Lewis appeared for the Secretary of State

“it was common ground between the parties before the Inspector that the relevant landscape was not designated; and, following Stroud , the issue for the Inspector was whether the landscape was "valued" in the sense that it had physical attributes which took it out of the ordinary.” [31]

 

Cawrey Limited [2016] EWHC 1198 (Admin), Gilbart J

Tim Buley appeared for the Secretary of State

“NPPF undoubtedly recognises the intrinsic character of the countryside as a core principle. The fact that paragraph [109] may recognise that some has a value worthy of designation for the quality of its landscape does not thereby imply that the loss of undesignated countryside is not of itself capable of being harmful in the planning balance” [49]

 

Preston New Road Action Group [2017] EWHC 808 (Admin), Dove J

Rupert Warren QC and David Blundell appeared for the Secretary of State

Nathalie Lieven QC and Yaaser Vanderman appeared for the Third and Fourth Defendants

“I am unable to accept that paragraph 109 should be interpreted as providing that any harm, including temporary harm other than for a wholly insignificant or de minimis period, is a breach of this policy. I see no difficulty in interpreting the policy as contemplating that valued landscapes could be protected and enhanced by temporary, short-term and reversible development which might either leave the landscape restored and unharmed at the end of the development process, or, alternatively, enhanced by the augmentation of its landscape features, for instance (if appropriate), by hedgerow or tree planting. In my view the defendant was correct to submit that the phrase “protecting and enhancing valued landscapes” is a phrase which, properly interpreted, calls for an overall assessment of harm to the landscape, including short-term harm and any longer-term resolution of that harm or beneficial effects, in order to reach a planning judgment based on that overall assessment as to whether or not the valued landscape has been protected and enhanced. That interpretation places the policy in its proper context, namely, that it is a policy expressing a broad, strategic objective for the planning system.

In submissions Dr Wolfe QC made reference to the approach taken to the Framework in R (on the application of Boot) v Elmbridge Borough Council [2017] EWHC 12. He accepted, in my view correctly, that the analogy between paragraphs 87–89 of the Framework and paragraph 109 of the Framework was not precise. That case involved the proper interpretation of paragraph 89 of the Framework in relation to whether or not development in the Green Belt was inappropriate. That question, which is binary in character, is both by its nature, and also in terms of the language used within those paragraphs of the Framework, very different from the policy contained in paragraph 109. Firstly, paragraphs 87–89 are directly concerned with policy expressly for decisiontaking, as opposed to policy which provides an overarching strategic context for the planning system as a whole. Secondly, as I have already observed, paragraphs 87–89 of the Framework lead to a binary outcome: they lead to a determination of development being either appropriate or inappropriate in the Green Belt. That is different from the language used in paragraph 109 which plainly calls for an overall judgment as to whether or not a valued landscape has been protected and enhanced. Thus, there is nothing in the decision in Boot which dissuades me from reaching the conclusion that the first claimant’s interpretation of paragraph 109 as being an absolute requirement even in relation to any temporary impact is not sustainable.” [92]-[93]

 

NPPF 112

Smyth v SSCLG [2013] EWHC 3844 (Admin)

James Maurici QC appeared for the Secretary of State

Rhodri Price Lewis QC appeared for the Third Interested Party

A decision that a development is not significant in terms of the amount of agricultural land which will be taken is entirely a matter of planning judgment: [213].

 

Borough of Telford and Wrekin [2016] EWHC 3073 (Admin), Lang J

Tim Buley appeared for the Secretary of State

“I agree with Coulson J.'s interpretation of the NPPF [in Forest of Dean District Council v. SSCLG [2016] EWHC 421 (Admin)], but upon applying it here, I have concluded that NPPF 112 cannot be characterised as a policy which indicates that " development should be restricted" within the meaning of NPPF 14.

 

NPPF 114

Forest of Dean District Council [2016] EWHC 421 (Admin), Coulson J

Gwion Lewis appeared for the Secretary of State

David Elvin QC appeared as senior counsel for the Second Defendant

‘I accept Mr Wadsley’s submission that [NPPF 114] is a very general statement of policy. But its inclusion in footnote 9 indicates that the policy is considered to be, even in those general terms, restrictive. In my view, it can be regarded as a policy indicating that “development should be restricted” only because the general presumption in favour of development may not apply in areas defined as Heritage Coast, in consequence of the operation of paragraph 114.’

 

NPPF 115-116

R (Mevagissy Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin), Hickinbottom J

Alex Goodman appeared for the Claimant

“Even if there were an exceptional need for affordable housing in an area, that would not necessarily equate to exceptional circumstances for a particular development, because there may be alternative sites that are more suitable because development there would result in less harm to the AONB landscape.” [52]


Bayliss
[2014] EWCA Civ 347, Laws, Jackson LJJ, Sir David Keene

John Litton QC appeared for the Respondents

“Therefore, insofar as reliance was placed by the DART group and other objectors on paragraph 115 of the Framework, it is to be assumed that the Inspector took account of that guidance unless his decision letter clearly indicates otherwise.

For my part, I cannot see that there is any such contrary indication in his decision letter. There is no doubt that he was not required to use the words “great weight” as if it were some form of incantation. Mr Edwards accepts that. Moreover, that national policy guidance, very brief in nature on this point, has to be interpreted in the light of the obvious point that the effect of a proposal on an AONB will itself vary: it will vary from case to case; it may be trivial, it may be substantial, it may be major. The decision maker is entitled to attach different weights to this factor depending upon the degree of harmful impact anticipated. Indeed, in my view it would be irrational to do otherwise. The adjective “great” in the term “great weight” therefore does not take one very far.” [17]-[18]
 

R (Morris) v Wealden DC [2014] EWHC 4081 (Admin), Collins J

Matthew Reed appeared for the Council

“I think all that Sir David was indicating was that when one looked at “great” in that context, one had to recognise that it, in an individual case, would have to be construed by considering what harm was occasioned by any particular proposal. If, for example, the harm was trivial, then the great weight to be attached could more easily be outweighed by any advantages that accrued from the development in question. In my view, that really is all that he was saying.” [54]

 

Franks v SSCLG [2015] EWHC 3690 (Admin), Ouseley J

Richard Langham appeared for the Claimant

Zoe Leventhal appeared for the Secretary of State

“The question what is the relationship between paragraph 115 and paragraph 116 of the Framework. To my mind, the duty to give great weight to conserving and enhancing the landscape, natural and scenic beauty of the AONB necessarily feeds through to how one should respond to development which fails to conserve or enhance the AONB. Leaving aside how major development is approached, that seems to me to be consistent with the decision of the Court of Appeal in Bayliss v Secretary of State for Communities and Local Government and others [2014] EWCA Civ 347 between paragraphs 18 and 19, in the judgment of Sir David Keene.” [25]

“It seems to me to follow from that that if an inspector correctly applies his mind to paragraph 116, he will in the normal run of events have properly applied his mind to any harm he has found under paragraph 115. In this case the inspector has set out the main issues correctly which include the relevance of paragraphs 115 and 116. He has considered those main issues and he has reminded himself on a number of occasions that he is considering paragraphs 115 and 116, setting out and considering separately the various components of paragraph 116.” [29]



NPPF 116
 
           

R (Cherkley Campaign Ltd) v Mole Valley DC [2014] EWCA Civ 567, Richards, Underhill, Floyd LJJ

Christopher Katkowski QC and Robert Walton appeared for the Second Appellant

Reversed decision of Haddon-Cave J.

To fall within NPPF 116, the development must be “in” the AONB. Only part of the development was in the AONB: and “I do not think that the creation of one fairway and one tee of a golf course could reasonably be regarded as a major development in the AONB, even when account is taken of the fact that they form part of a larger golf course development the rest of which is immediately adjacent to the AONB.” Richards LJ, [44]


Aston v SSCLG
[2013] EWHC 1936 (Admin), Wyn Williams J

Daniel Kolinsky appeared for the Secretary of State

Argument rejected that the definition of ‘major development’ which applies in the Town and Country Planning (Development Management Procedure) Order 2010 (which applies in other provisions) should be incorporated into the definition of ‘major development’ in NPPF 116. “The word major has a natural meaning in the English language albeit not one that is precise.” [93]


R (The Forge Field Society) v Sevenoaks District Council
[2014] EWHC 1895 (Admin), Lindblom J

Lindblom J followed Wyn Williams J in Aston, above. The meaning of “major development” is a matter of planning judgment. [69]

 

Wealden DC [2017] EWCA Civ 39, McFarlane and Lindblom LJJ

Rhodri Price Lewis QC and Scott Lyness appeared for the Claimant

James Maurici QC appeared for the Second Defendant

“The policy in paragraph 116 of the NPPF is a policy for development control. It applies to development of all kinds. Where the proposal in question is a proposal for housing development, it must be read together with the policies for housing need and supply in paragraphs 47 and 49 of the NPPF.” [62]

“I do not think the policy in paragraph 116 of the NPPF obliged the inspector to deal in his decision letter with every potential site for housing in the district, one by one.” [68]

 

NPPF 118

R (Prideaux) v Buckinghamshire County Council [2013] EWHC 1054 (Admin), Lindblom J

David Elvin QC and Richard Turney appeared for the Council

James Maurici QC appeared for the Interested Party

At least for the purposes of that appeal, Lindblom J held that there was no difference between NPPF 118 and the equivalent advice in PPS9, considered by the Court of Appeal in Buglife v Thurrock Thames Gateway Corporation [2009] 2 P &CR 8.

In applying NPPF 118, it would be wrong to disregard the proposed mitigation to the development when deciding whether “significant harm” has been done to biodiversity. [151]

 

Savage v Mansfield DC [2015] EWCA Civ 4, Sir James Munby PFD, Lewison, King LJJ

David Elvin QC appeared for the Interested Party

“It is clear from [footnote 26] that a site does not qualify for protection under the NPPF until the Government has initiated public consultation on the case for its designation.” [10]

“I agree with the Council that the Habitats Regulations, supplemented by the NPPF, do not require a local planning authority to requirement [sic] to undertake a “shadow assessment” or other quasi-appropriate assessment in respect of sites which are not even pSPAs.”

 

NPPF 120

PS by his litigation friend TS v Royal Borough of Greenwich [2016] EWHC 1967 (Admin), Collins J

“the reference to “cumulative effects” in paragraph 120 does not mean more than that a particular development’s effect must be measured against the existing background pollution.” [23]

 

NPPF 123

May v Rother DC [2014] EWHC 456 (Admin), Ian Dove QC

Charles Banner appeared for the Council

The Claimant argued that there was a material difference between the phrase in a Local Plan policy and NPPF 123. The phrase in the NPPF is “mitigate and reduce to a minimum other adverse impacts on health and quality of life arising from noise from the new development”, but that in the Local Plan policy was “unreasonably harm the amenities of joining properties”. The Judge held that there was no “meaningful or practical difference” between the two which would mean that Officers referring members to the Local Plan policy, but not that in the NPPF, had erred. [47]

“Ultimately it has to be recognised that both of these pieces of text are policies which have to be read purposely with an object in mind of ensuring that noise pollution does not imperil a reasonable and appropriate standard of residential amenity for people's homes. They have to be applied in a practical context.” [46]

“I do not accept the submission that there is a different emphasis or indeed a practical consequence to considering a proposal against the yard stick of whether adverse impact from noise are kept to a minimum or the yard stick of whether the noise would have an unreasonable impact on amenity. These are two formulations of essentially the same practical question.” [48]

The Court of Appeal dismissed an appeal against this decision: [2015] EWCA Civ 610.


NPPF 124

William Davis Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin), Lang J

James Maurici QC appeared for the Secretary of State

An increase in NO2 levels does not mean that a development must be ruled out, without having regard to other factors [68].