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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 [2021] EWCA Civ 74, Sir Keith Lindblom, Senior President of Tribunals, Andrews LJ and Sir Gary Hickinbottom
Matthew Fraser appeared as Junior Counsel for the Claimant
Richard Moules appeared for the Secretary of State

“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 (see paragraphs 51 to 53 and 63 of the judgment of Holgate J.). 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.

  1. 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 (see Hopkins Homes Ltd., at paragraphs 21 and 75, and East Staffordshire Borough Council, at paragraph 13). 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.
  2. 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.”

“34.  I accept Mr Moules’ submission that the language of the first part of paragraph 172, read in that context and in the light of that purpose, can perfectly well found a “clear reason for [refusal]”, in accordance with paragraph 11d)i. It embodies the principle that decisions on applications for planning permission, as well as policies in development plans, should work to “[conserve and enhance] landscape and scenic beauty” in AONBs, so that in a relevant case, when the policy is applied, a balance will be struck in which appropriate weight is given to any conflict with that objective, and in striking the balance the decision-maker will have in mind the need to protect the AONB and to limit the scale and extent of development within it. In doing this, the decision-maker will have to exercise planning judgment. The application of the policy necessarily involves a balancing exercise in which any harmful effects of the proposed development on the AONB are given due weight, having regard to what the policy says, and any benefits of the proposal are set against them, leading to a conclusion, as a matter of planning judgment, on whether there is a “clear reason for refusing the development proposed”. If there are no benefits to set against the harm to the AONB, or if there are benefits but they are insufficient to outweigh the harm, the decision-maker might properly conclude that the “application” of the policy does indeed provide “a clear reason for refusing the development proposed”.”

 

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]

 

Swire v Ashford BC [2021] EWHC 702 (Admin), Sir Duncan Ouseley
Heather Sargent appeared for the Claimant

The Judge considered the relationship between the test for likely significant effects under the environmental impact assessment regime.

“90.  The NPPF and EIA tests are not materially different or different in a way which would advance the Claimant’s argument here: “could” the development have “significant adverse effects” and was the development “likely to have significant effects.” “Could” might be a lower threshold than “likely to” or “a serious possibility”, but it is not higher. This is also in line with [65] of the Officer’s Report.

91.  Ms Sargent suggested that the NPPF test was less prescriptive than the test in the EIA Regulations and the more easily passed on that account. The EIA test is more wide ranging and is not confined to landscape and visual effects, nor is it limited to adverse effects. But I conclude that a planning officer addressing his mind to whether development “could have significant adverse effects on the purposes for which the AONB was designated” and concluding that it would not, would be bound to reach the same conclusion, so far as adverse effects on landscape and visual impacts were concerned, as he would if asking himself “whether the development was likely to have significant effects” from that perspective. Ms Sargent acknowledged that if the thinking over “major development” covered the question of “whether there were likely to be significant environmental effects” from a development, that would be fatal to this claim.

 

NPPF 173

 

Monkhill Limited [2019] EWHC 1993 (Admin); [2020] JPL 175, Holgate J
Matthew Fraser appeared as Junior Counsel 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.”

 

R (Hudson) v RB Windsor and Maidenhead [2021] EWCA Civ 592, King, Coulson and Carr LJJ
John Litton QC appeared for the Interested Parties

“59.  At the appeal hearing, Mr Willers ran a new argument that there was another material difference between the two paragraphs. He noted that, whilst paragraph 118 referred to ‘loss’ of veteran trees, paragraph 175 referred to ‘loss or deterioration’ of such trees. It was not, however, clear where this submission went, given the fact that paragraph 175 of the NPPF was referred to in the planning conditions (and it was not suggested that the Council had misunderstood or misapplied that paragraph in coming to their decision).

  1. In any event, it seems to me to be unfairly legalistic to suggest that there was any substantial change in policy to be derived from the use of the phrase “loss or deterioration” in paragraph 175. What both of the paragraphs of the NPPF are intended to do is to prevent harm (whether described as “loss” or “deterioration”) to veteran trees. Moreover, “loss or deterioration” is a phrase that is also expressly used in the superseded paragraph 118, so any difference between the two paragraphs in that respect must be minimal. Although neither paragraph could be said to be well-drafted, it seems clear that it is the balancing factor (which changes from “clearly outweighing” the harm, to requiring “wholly exceptional reasons” for permitting such harm) which represents the policy shift in 2018. Beyond that change, which is of no application to this appeal (because there is no harm at all), these paragraphs appear to me to be very similar in effect. They do not perhaps benefit from granular analysis by over-enthusiastic lawyers.”

 

R (Juden) v LB Tower Hamlets [2021] EWHC 1368 (Admin), Sir Duncan Ouseley
Andrew Parkinson appeared as Junior Counsel for the Claimant
Rupert Warren QC appeared for the First Interested Party
Alistair Mills provided written submissions on behalf of the Secretary of State

“108.  It would not have been unlawful either for Members to have been advised that, although 175c did not apply directly, they could be assured that, even if the tree did die, the strict requirements of 175c had in fact been met. They could have been advised that there were “wholly exceptional circumstances” in the public benefits of the development, and in the effect which retention of the tree in situ would have had on the developability of the site, such as to warrant taking the risk of relocation leading to the death or deterioration of the tree. Members could have been advised that the compensation strategy was a suitable compensation strategy which would meet 175c if the tree actually were lost or deteriorated. But the two aspects, wholly exceptional circumstances and compensation for loss or deterioration, had to be kept separate.”

 

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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