In Monkhill Ltd v SSHCLG [2019] EWHC 1993 (Admin), handed down on 24 July 2019, Holgate J considered a claim raising important issues about the interpretation of the presumption in favour of sustainable development for decision-taking in paragraph 11(d) 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are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, the presumption in favour of sustainable development requires permission to be granted unless either:
- 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
- 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 Claimant submitted 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 Claimant submitted:
"….a policy which simply specifies a degree of weight to one particular factor is not capable of itself of providing a "clear reason for refusal", since whether planning permission should be refused or allowed requires a balancing of all the considerations in favour and against the proposed development. The application of a policy is only capable of providing a "clear reason for refusal" without proceeding to the application of the tilted balance in NPPF para. 11(d)(ii) if that policy itself provides – in terms – that permission should (or should normally) be refused unless certain requirements or criteria are met."
The Claimant identified a number of paragraphs in the NPPF that satisfied this test, including the second part of NPPF para. 172, which provides that “planning permission should be refused for major development [in an AONB] other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest”.
After setting out at paragraph 39 of the judgment a helpful 15-stage summary of the meaning and effect of NPPF paras. 11 and 12, Holgate J went on to dismiss the claim. At paragraphs 52 and 53 of the judgment, the judge held as follows:
“52. Plainly, in a simple case where there would be harm to an AONB but no countervailing benefits, and therefore no balance to be struck between "pros and cons", the effect of giving great weight to what might otherwise be assessed as a relatively modest degree of harm, might be sufficient as a matter of planning judgment to amount to a reason for refusal of planning permission, when, absent that policy, that might not be the case. But where there are also countervailing benefits, it is self-evident that the issue for the decision-maker is whether those benefits outweigh the harm assessed, the significance of the latter being increased by the requirement to give "great weight" to it. This connotes a simple planning balance which is so obvious that there is no interpretive or other legal requirement for it to be mentioned expressly in the policy. It is necessarily implicit in the application of the policy and a matter of planning judgment. The "great weight" to be attached to the assessed harm to an AONB is capable of being outweighed by the benefits of a proposal, so as to overcome what would otherwise be a reason for refusal.
53. Interpreted in that straight forward, practical way, the first part of paragraph 172 of the NPPF is capable of sustaining a clear reason for refusal, whether in the context of paragraph 11(d)(i) or, more typically where that provision is not engaged, in the general exercise of development management powers.”
A copy of the judgment is available
here.
Charles Banner QC and
Matthew Fraser acted for the Claimant, instructed by Penningtons Manches Cooper LLP.
Richard Moules acted for the Secretary of State, instructed by the Government Legal Department.
