Monkhill in the Court of Appeal: what is a “clear reason for refusal” policy in NPPF para. 11(d)(i)?

In Monkhill Ltd v SSHCLG [2021] EWCA Civ 74, handed down on 28 January 2021, the Court of Appeal (Sir Keith Lindblom, Senior President of Tribunals, Andrews LJ and Sir Gary Hickinbottom) considered the meaning of paragraph 11(d)(i) of the National Planning Policy Framework ("NPPF").

NPPF para. 11(d) provides that, where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, the presumption in favour of sustainable development requires permission to be granted unless either:

i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed [6]; or

ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.

Footnote [6] sets out the relevant policies in the NPPF, including policies “relating to … land designated as … an Area of Outstanding Natural Beauty”.

In a single ground of challenge brought under section 288 of the Town and Country Planning Act 1990 against the decision of an Inspector appointed by the Secretary of State, the Appellant submitted in the High Court that the first part of NPPF para. 172, which provides that “great weight” should be given to conserving and enhancing landscape and scenic beauty in, inter alia, AONBs, cannot – of itself – constitute a “clear reason for refusal” when applied.

The Appellant argued that the application of a policy is only capable of providing a “clear reason for refusal” of itself, thereby avoiding the wider paragraph 11(d)(ii) assessment “against the policies in the Framework taken as a whole”, if that policy contains its own self-contained criteria or test, the failure of which will, or will normally, be fatal to a planning application.

Holgate J. dismissed the claim in July 2019, and the Court of Appeal has dismissed an appeal against the High Court’s decision.

The Senior President of Tribunals, with whom the other judges agreed, held at [28]-[30]:

“28. The crucial question in this appeal is whether, on its true construction, the policy in paragraph 11d)i of the NPPF includes the application of the policy in the first part of paragraph 172, because the application of that policy is capable of providing a "clear reason for refusing" planning permission. In my opinion, as Holgate J. held, it does. The sense of the word "provides" in paragraph 11d)i is that the application of the policy in question yields a clear reason for refusal – in the decision-maker's view, as a matter of planning judgment … . It is not that the policy itself contains some provision expressed in words one might expect to see in a local planning authority's decision notice. And I do not accept that a policy, when applied, can only provide a "clear reason for [refusal]" if it includes its own self-contained criteria or test, failure of which will be, or will normally be, fatal to the proposal. That is not what the policy in paragraph 11d)i says, and it is not to be inferred from the policy. Nor is there any indication in footnote 6 that this was what the Government intended. Nowhere is it suggested that the footnote includes only some parts of the policies to which it refers, or that only a policy formulated in a particular way will qualify as relevant for the purposes of paragraph 11d)i.

29. In my view, as Mr Richard Moules submitted for the Secretary of State, the policy in the first part of paragraph 172, which refers to the concept of "great weight" being given to the conservation and enhancement of landscape and scenic beauty in an AONB, clearly envisages a balance being struck when it is applied in the making of a planning decision in accordance with the statutory regime under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act … . It is, as the judge recognised, a balance between what can properly be seen, on one hand, as a breach of, or conflict with, the policy and, on the other, any countervailing factors. To speak of a breach of the policy when the development would harm the AONB, or of a conflict with the policy in those circumstances, seems entirely realistic.

30. This, in my view, is plain on a straightforward reading of paragraph 172 in its context, having regard to its obvious purpose. The policy is not actually expressed in terms of an expectation that the decision will be in favour of the protection of the "landscape and scenic beauty" of an AONB, or against harm to that interest. But that, in effect, is the real sense of it – though this, of course, is not the same thing as the proposition that no development will be permitted in an AONB. If the effects on the AONB would be slight, so that its highly protected status would not be significantly harmed, the expectation might – I emphasise "might" – be overcome. Or it might be overcome if the effects of the development would be greater, but its benefits substantial. This will always depend on the exercise of planning judgment in the circumstances of the individual case.”

 A copy of the judgment is available here.

Matthew Fraser acted for the Appellant (led by Charles Banner QC), instructed by Penningtons Manches Cooper LLP. 

Richard Moules acted for the Secretary of State, instructed by the Government Legal Department.

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