Town and country planning – Planning permission – Area of outstanding natural beauty – Local authority refusing planning permission for housing development – Inspector appointed by first respondent secretary of state dismissing appeal by appellant developer – High Court upholding inspector’s decision – Appellant appealing – Whether inspector misunderstanding policy in paragraph 172 of National Planning Policy Framework (NPPF) – Appeal dismissed
The appellant developer applied for planning permission for a development of housing on land at Longdene House, Hedgehog Lane in Haslemere. The proposal was to construct up to 29 dwellings in place of several existing buildings on the site, and for the change of use of the house to provide a new dwelling. Most of the site was in the Surrey Hills area of outstanding natural beauty (AONB).
The second respondent local authority refused planning permission and an inspector appointed by the first respondent secretary of state dismissed the appellant’s appeal under section 78 of the Town and Country Planning Act 1990. The High Court dismissed an application by the appellant under section 288 of the 1990 Act for an order quashing that decision: [2019] EWHC 1993 (Admin).
The appellant appealed. The court was asked to determine the meaning of the policy in paragraph 172 in the 2018 version of the National Planning Policy Framework (NPPF), relating to development in an AONB; and the relationship of that policy to the “presumption in favour of sustainable development” in paragraph 11 of the NPPF.
The appellant argued that the inspector had misunderstood paragraph 172. He misinterpreted the policy in the first part of the paragraph by concluding that planning permission was to be refused because paragraph 11(d)(i) was engaged, namely “the application of policies in this framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed”; thus, disapplying the so-called “tilted balance” under paragraph 11(d)(ii). The judge was wrong to support that interpretation of the policy.
Held: The appeal was dismissed.
(1) On its true construction, the policy in paragraph 11(d)(i) included the application of the policy in the first part of paragraph 172, because the application of that policy was capable of providing a clear reason for refusing planning permission. The sense of the word “provides” in paragraph 11(d)(i) was that the application of the policy in question yielded a clear reason for refusal in the decision-maker’s view, as a matter of planning judgment.
The first part of paragraph 172, which referred to the concept of great weight being given to the conservation and enhancement of landscape and scenic beauty in an AONB, clearly envisaged a balance being struck when it was 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 Planning and Compulsory Purchase Act 2004. It was a balance between what could properly be seen as a breach of, or conflict with, the policy and any countervailing factors.
Although the policy was not actually expressed in terms of an expectation that the decision would be in favour of the protection of the “landscape and scenic beauty”, or against harm to that interest, that was the real sense of it.
(2) The requirement in the first part of paragraph 172 for “great weight” to be given to the conservation etc in an AONB did not prevent its application providing a clear reason for the refusal of planning permission. The language of the first part of paragraph 172, read in context and in the light of its purpose, could found a clear reason for refusal, in accordance with paragraph 11(d)(i). It embodied 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. In a relevant case, when the policy was applied, a balance would be struck in which appropriate weight was given to any conflict with that objective. In striking the balance the decision-maker would have in mind the need to protect the AONB and to limit the scale and extent of development within it. In doing that, the decision-maker would have to exercise planning judgment. The application of the policy necessarily involved a balancing exercise in which any harmful effects of the proposed development on the AONB were given due weight, having regard to what the policy said, and any benefits of the proposal were set against them, leading to a conclusion on whether there was a clear reason for refusing the proposed development. If there were no benefits to set against the harm to the AONB, or if there were benefits insufficient to outweigh the harm, the decision-maker might properly conclude that the application of the policy provided a clear reason for refusing the development proposed.
In the present case the inspector had discerned the true meaning of the policy, rightly applied it under paragraph 11(d)(i), and conducted an impeccable balancing exercise, setting benefit against harm. His conclusions demonstrated a lawful application of the policies in the NPPF, consistent with their correct interpretation, and fully in compliance with the statutory requirements for decision-making in section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.
(3) If the interpretation put forward by the appellant were right, it would produce a result incompatible with the objectives of paragraphs 11 and 172, read together, preventing the policy in paragraph 172 being given its full potential effect under paragraph 11(d). The “tilted balance”, or positive presumption, under paragraph 11(d)(ii) was not available in every case where there were no relevant policies of the development plan or the most important policies in the plan were out-of-date. It was deliberately disapplied in the situation provided for in paragraph 11(d)(i), where policies of the NPPF that protected areas or assets of particular importance were engaged, applied and found to justify planning permission being withheld. Otherwise, the “tilted balance” could work against the protection afforded by those policies and undermine them. That would be hostile to the objective of paragraph 11(d)(i) and inimical to the explicit strategy of the NPPF for sustainable development: Forest of Dean District Council v Secretary of State for Communities and Local Government [2016] EWHC 421 (Admin); [2016] PLSCS 75 considered.
Charles Banner QC and Matthew Fraser (instructed by Penningtons Manches Cooper LLP) appeared for the appellant; Richard Moules (instructed by the Government Legal Department) appeared for the first respondent.
Eileen O’Grady, barrister
