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Court of Appeal hands down ruling on policy for development in Areas of Outstanding Natural Beauty and presumption in favour of sustainable development

The National Planning Policy Framework (NPPF) allows a council to reject a planning application because of an adverse impact on an area of outstanding natural beauty (AONB), the Court of Appeal has ruled.

In Monkhill Ltd v Secretary of State for Housing, Communities and Local Government & Anor (Rev 1) [2021] EWCA Civ 74 Sir Keith Lindblom, Senior President of Tribunals, rejected a case brought by developer Monkhill against the Secretary of State for Housing, Communities and Local Government and Waverley Borough Council.

He said the court had to decide the meaning of the policy relating to development in an AONB and the relationship of that policy to the presumption in favour of sustainable development.

Monkhill applied to build 29 homes on a site in Haslemere in place of a number of existing buildings.

Most of the site is in the Surrey Hills AONB and the rest designated an ‘area of great landscape value’.

Holgate J in July 2019 dismissed Monkhill’s application under section 288 of the Town and Country Planning Act 1990 for an order to quash the inspector’s decision. Monkhill then went to the Court of Appeal.

Sir Keith said: “Monkhill’s single ground of appeal gives rise to one principal issue for us to decide: whether the inspector was wrong to interpret the first sentence of paragraph 172 of the NPPF, which says ‘great weight should be given to conserving and enhancing landscape and scenic beauty’ in an AONB, as a policy whose application is capable of providing 'a clear reason for refusing’ planning permission under paragraph 11d)i of the NPPF.”

Waverley rejected the original application “as a result of the urbanising impact and harm to the landscape character would cause material harm to the intrinsic character, beauty and openness of the countryside beyond the Green Belt, the AONB and the AGLV”.

The inspector upheld Waverley’s decision saying that paragraph 172 "provides that great weight should be given to conserving and enhancing landscape and scenic beauty in AONBs which have the highest status of protection in relation to these issues”.

When the case reached the High Court, Holgate J concluded paragraph 172 “is also capable of sustaining a freestanding reason for refusal in general development control in AONBs, National Parks and the [Norfolk] Broads”.

Monkhill argued that the inspector misunderstood the policy in paragraph 172 by concluding that it could, in principle, disapply the so-called 'tilted balance’ in favour of sustainable development.

Sir Keith said Monkhill’s main contention was that merely giving ‘great weight' to 'conserving and enhancing landscape and scenic beauty’ in an AONB does not provide a clear reason for refusal and that whether planning permission should be refused requires a balancing of all considerations.

The judge said: “Elegantly as those submissions were presented…I cannot accept them.

“They do not, in my view, reflect an accurate understanding of the policies we are considering and the way in which those policies are intended to operate. I think Holgate J was right to reject them, for the reasons he gave. I agree with him that the inspector's decision is not flawed by a mistaken interpretation, or unlawful application, of relevant policy.”

He added that interpreting planning policy involved the court in “seeking to discern the true, practical meaning of a policy issued by the Government, whose purpose is to bring clarity, consistency and predictability to the operation of the planning system.

“It is trite that the court does not adopt the same linguistic rigour in construing a planning policy as it does to the construction of a legislative provision or a clause in a contract.”

Mark Smulian

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