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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.”

 

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.

 

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.”

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