Town and country planning – Planning permission – Valued landscape – Claimant appealing against non-determination of planning application for housing development – Inspector dismissing appeal and refusing planning permission on basis of harm to character of landscape – Claimant applying to quash decision – Whether inspector misinterpreting national planning policy on protection of landscape – Application dismissed
The claimant applied to the interested party district council for planning permission for up to 175 dwellings and associated development on land adjoining Wendover in Buckinghamshire. The application was not determined in the allotted time and the claimant appealed to the defendant secretary of state. Following an inquiry, an inspector appointed by the defendant dismissed the appeal. The inspector found that the local authority did not have a five-year supply of housing land, so that para 14 of the National Planning Policy Framework (NPPF) applied and, applying the “tilted balance” required by para 14, permission was to be granted for sustainable development unless the adverse impacts significantly and demonstrably outweighed the benefits. However, taking into account para 109 of the NPPF dealing with the protection of landscape, and local plan policies implementing its provisions, there would be harm to character of the landscape including the irrevocable loss of part of a valued landscape. Therefore, the adverse impacts of the development would significantly and demonstrably outweigh the benefits.
The claimant brought an application pursuant to section 288 of the Town and County Planning Act 1990, challenging the inspector’s decision on the ground, amongst other things, that para 109 of the NPPF, properly understood, required the development site itself to have the characteristics of a “valued landscape” and the inspector had misinterpreted para 109 because she had failed to identify any features of the development site itself which could make it “valued landscape” for the purposes of para 109.
Held: The application was dismissed.
(1) The judgment in Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin) decided that the concept of “valued landscapes” in para 109 in the NPPF was not confined to landscapes which had a particular designation; and cases were almost always decided on the basis of their facts and the arguments presented. There was no general principle that the judgment of “valued landscape” had to be reached by examining the “demonstrable physical attributes” of the development site alone, regardless of any wider area of which it formed part. The question of whether the inspector, in Stroud, had erred in law in his judgment that the site was not a “valued landscape”, albeit not designated, was argued on the very basis that he ought to have found that the site itself did possess “demonstrable physical attributes”. The concept of “demonstrable physical attributes” was simply the phrase adopted by the inspector in the Stroud case. It would be bizarre if the way in which the red line was drawn, defining the site on whatever basis was appropriate, and which need have nothing to do with landscape issues, crucially affected landscape evaluation. It would be equally bizarre to adopt a wholly artificial approach to landscape evaluation where, in most cases, a development site was but part of a wider landscape. In the present case, the inspector had analysed the issue of valued landscape in para 109 and reached the correct conclusion: Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin) explained.
(2) Had it been necessary to decide the point, when judging the “tilted balance” under para 14, which required harm and benefit to be measured against the NPPF policies, greater weight could rationally be given to harm which breached its policies than to harm which only breached local plan policies. However, once a local plan policy and the harm arising was given its due weight because of the fullness to which it reflected the obligation in para 109 of the NPPF to produce such policies, to give the policy, or the harm under it, greater weight because of the NPPF policy, was to use the NPPF policy twice over which would be as irrational as “double-counting” harm.
James Strachan QC and Ned Helme (instructed by Clyde & Co) appeared for the claimant; Tim Buley (instructed by the Government Legal Department) appeared for the defendant; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
