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Conserving and enhancing the natural environment

Crondall Parish Council [2019] EWHC 1211 (Admin), Dove J
David Elvin QC and Zack Simons appeared for the Secretary of State
Reuben Taylor QC appeared for the Second Defendant

“107. … more recent national planning policy has taken a more nuanced and sophisticated approach to the protection of the countryside, which is also reflected in the 2018 Framework.”

 

NPPF 170

 

Eastleigh BC [2019] EWHC 1862 (Admin), Garnham J
Leon Glenister appeared for the Secretary of State
Christopher Boyle QC and Andrew Parkinson appeared for the Second and Third Defendant

“62.  NPPF 2018 [170] adopts a much more nuanced approach [than a local plan policy].  Instead of the blanked refusal of development subject to limited and specific exceptions, it requires that planning decisions should contribute to and enhance the natural and local environment by meeting a series of objectives.  The Inspector rightly described the latter as a “flexible and balanced approach”.”

 

R (Campaign to Protect Rural England) v Herefordshire Council [2019] EWHC 3458 (Admin) Stuart-Smith J
Paul Brown QC and Katherine Olley appeared for the Claimant
Zack Simons appeared for the Interested Party

“64.  The words “valued landscapes” are not susceptible to precise definition, legal or otherwise. It is customary to refer to the Guidelines for Landscape and Visual Impact Assessment: Third Edition 2013 (“GLVIA3”) which are guidelines and not a prescriptive set of rules. GLVIA3 defines “landscape value” as “the relative value that is attached to different landscapes by society. A landscape may be valued by different stakeholders for a whole variety of reasons.” This advice was apparently prepared before but published after the NPPF. It affords no guidance on what level of value should attract what level of protection.”

 

Nixon [2020] EWHC 3036 (Admin), Lieven J
Matthew Reed QC appeared for the First Claimants
Sasha Blackmore appeared for the Secretary of State

“Ultimately the question of whether or not the area is a valued landscape is a matter of planning judgement. The Inspector applied paragraph 170 correctly by considering whether it was within a statutory designation and whether it had any particular qualities that took it out of the ordinary, which is what [Forest of Dean DC v SSHCLG [2016] EWHC 2429 (Admin)] said she ought to do. When the Inspector says in DL25 that the land is not identified as having any particular quality “that might differentiate it from other countryside”, she is plainly agreeing with the Council and Appellant’s landscape witnesses’ conclusions and applying the test in Forest of Dean at [31]. The Inspector did not fall into the error alleged by Mr Reed of considering that the only relevant matters in determining whether this was a valued landscape were any statutory status or what was specifically identified in the Development Plan.” [54]

 

NPPF 172

 

Monkhill Limited [2019] EWHC 1993 (Admin); [2020] JPL 175, Holgate J
Charles Banner QC and Matthew Fraser appeared for the Claimant
Richard Moules appeared for the Secretary of State

  1. Mr Banner QC accepts that the second part of para.172 dealing with “major development” meets his suggested test because it not only specifies factors to be taken into account, but also states that permission should be refused “other than in exceptional circumstances and where it can be demonstrated that the development is in the public interest”. Mr Banner QC submits that this “major development” policy qualifies to be applied under limb (i) because it refers to the carrying out of a balancing exercise and contains provisions which “constrain” how “the pros and cons” of a proposal are to be weighed against each other in that exercise. By contrast, Mr Banner QC submits that the first part of para.172 does not qualify under limb (i) because it does not state any test for a balancing exercise, and therefore cannot provide a clear reason for refusing the development proposed.
  2. I do not accept these submissions which, with respect, are far too legalistic and fail to interpret the NPPF in a practical, straight forward way capable of being operated by decision-makers up and down the country.
  3. It is necessary to read the policy in para.172 as a whole and in context. Paragraph 170 requires planning decisions to protect and enhance valued landscapes in a manner commensurate with their statutory status and any qualities identified in the development plan. Paragraph 172 points out that National Parks, the Broads and AONBs have “the highest status of protection” in relation to the conservation and enhancement of landscapes and scenic beauty. Not surprisingly, therefore, para.172 requires “great weight” to be given to those matters. The clear and obvious implication is that if a proposal harms these objectives, great weight should be given to the decision-maker’s assessment of the nature and degree of harm. The policy increases the weight to be given to that harm.
  4. 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.
  5. Interpreted in that straight forward, practical way, the first part of para.172 of the NPPF is capable of sustaining a clear reason for refusal, whether in the context of para.11(d)(i) or, more typically where that provision is not engaged, in the general exercise of development management powers.

 

Girling v East Suffolk Council [2020] EWHC 2579 (Admin)

“Paragraph 172 of the NPPF requires the need for “major development” in an AONB to be assessed but does not stipulate how that assessment is to be carried out, other than by the partial explanation in limb (a). The word “need” is an ordinary English word and it would be inappropriate in this case for it to be the subject of judicial interpretation. Mr Wolfe QC did not suggest otherwise. It is one of those broad expressions which are to be understood at a high level of abstraction, given the wide range of circumstances to which such policy is to be applied across the country.” [23]
“Here we are dealing with the “exceptional circumstances” test in paragraph 172 of the NPPF for “major development” in an AONB. Nonetheless, I accept that in broad terms the approach summarised in [Keep Bourne End Green v Wycombe Council [2020] EWHC (Admin)] at [146] may be read across to the present context. However, it should be remembered that in development control, “inappropriate development” in the Green Belt is treated as being harmful in itself to Green Belt policy by reason of its inappropriateness (see paragraph 144 of NPPF), quite apart from any additional harm that would be caused by the impact of the particular proposal on the Green Belt and its purposes in that location. It is common ground between the parties that under AONB policy in the NPPF there is no notion of harm simply through development being treated as inappropriate in policy terms. Instead, the issue is what harm to the AONB (if any) would actually be caused by the development in the location proposed. AONB policy is also different from Green Belt policy in that (a) it explicitly requires consideration of whether the development would be in the public interest and (b) it sets out some of the factors which should be addressed, where relevant, in the assessment of whether “exceptional circumstances” exist.” [30]
“In other cases there might be force in Mr Wolfe’s submission that where it is necessary for a planning authority to consider whether there are exceptional circumstances and public interest sufficient to outweigh harm to an AONB, and the developer relies upon a need to carry out advance works in order to speed up the subsequent delivery of the main project, then it may well be “obviously material” for the authority to consider some quantitative information so as to be able to understand approximately how much time would be saved and to decide how much weight to give to that factor as against the net harm actually resulting from those works. However, in the circumstances of this case, where the Council was legally entitled to conclude that, viewed overall, there was no material harm to the AONB, but rather benefits to the AONB, I do not accept that the Council acted irrationally by not requiring a quantitative assessment of the time saving for the SZC project or to consider that matter. I am reinforced in that conclusion by the combination of other factors which the Council accepted as forming part of the overall “exceptional circumstances” case for the proposal, notably the urgent national need for new nuclear power generation endorsed in the NPSs, the identification of the SZC site as potentially appropriate for an additional nuclear power station, the public interest in reducing the risk of overlapping construction programmes for SZC and other substantial infrastructure projects in the area, and the lack of suitable sites outside the AONB (paragraph 8.6.3 of the officer’s report).” [42]

 

NPPF 173

 

Monkhill Limited [2019] EWHC 1993 (Admin); [2020] JPL 175, Holgate J
Charles Banner QC and Matthew Fraser appeared for the Claimant
Richard Moules appeared for the Secretary of State

  1. The first sentence of para.173 provides only two criteria for the determination of planning applications: consistency with the character of the Heritage Coast area and the conservation objective, and “the importance”, the weight, to be attached to that objective. On the claimant’s argument, there is no express reference to a balance or to how any balancing exercise should be carried out. But the straight forward, common sense understanding of this policy is that development which is inconsistent with the character of a Heritage Coast area is harmful, the nature and degree of any harm being a matter of judgment in each case, and that conflict with the conservation objective is to be weighed as an “important” factor. Conclusions of this kind may sustain a reason for refusal. But, of course, it must go without saying that any countervailing factors, such as benefits of the proposal, must be taken into account, to see whether they outweigh the harm to the character of the area and the conservation objective.

 

NPPF 175

 

R (Hudson) v RB Windsor and Maidenhead [2019] EWHC 3505 (Admin), Lang J
John Litton QC appeared for the Interested Parties

“64.  It was common ground that the revision to the policy on veteran trees introduced by the July 2018 edition of the Framework significantly strengthened the protection afforded to aged or veteran trees.”

 

NPPF 183

 

R (Finch) v Surrey County Council [2020] EWHC 3566 (Admin), Holgate J
David Elvin QC and Matthew Fraser appeared for the First Interested Party
Richard Moules appeared for the Second Interested Party

“However, I think it appropriate to add that I do accept the analysis on this part of the case by Mr. Richard Moules on behalf of the Secretary of State. The national policies in question do not purport to limit the scope of ES or EIA under the 2017 Regulations and so there is no question of those policies being unlawful on the grounds of conflict with the EIA Directive or those Regulations. The policies, like the case law which they reflect, do not allow a planning authority (or ES) to disregard a relevant environment effect of a particular development proposal, but do allow an authority to exercise judgment as to the extent to which such an effect should be assessed in the development control process, taking into account the existence of other dedicated regulatory regimes (see eg. Sullivan LJ in An Taisce [2015] PTSR [189] at [47] to [51]). The existence of such regulatory regimes may also inform a planning authority’s judgment as to the extent of the project or of the environmental effects which should be the subject of EIA for a particular planning application (see eg. Lang J in R (Friends of the Earth) v North Yorkshire County Council [2017] Env L.R. 497).”

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