In Forest of Dean District Council v Secretary of State for Communities And Local Government and another [2016] EWHC 2429 (Admin), the local authority failed to quash the grant of permission for 95 homes in the open countryside on appeal. The development was in an undesignated landscape area, but one which – according to the authority – was nonetheless “valued”. As such, NPPF 109 would have required the inspector to approach the question of landscape harm (and the weighing of that harm against scheme benefits) from the starting point of “protection and enhancement” rather than a simple balancing judgment. Valued landscape is that which is “out of the ordinary”, rather than designated or simply popular (Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin)).
The inspector was alleged to have erred by equating “valued landscape” with designated landscape. In concluding that NPPF 109 added nothing to his task in considering the appeal, he noted that there were “no particular landscape features, characteristics or elements that demonstrate that the appeal site is in [landscape assessment] terms representative of the wider landscape, ie a particularly important example which takes this site beyond representing anything more than countryside in general”. He went on to say, however, that “valued landscape” must mean a landscape that is considered to be of value because of particular attributes that have been designated through the adoption of a local planning policy document.
The secretary of state accepted the claimant’s argument, but resisted quashing of the decision on the basis that the decision would have inevitably been the same (applying the threshold applicable to Section 288 challenges under Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] PLR 25 rather than the lower – “highly likely” – threshold applicable to judicial review claims under section 31(2A) Senior Courts Act 1981). The developer resisted the claim on the basis that the Inspector properly found the landscape not to be valued because it lacked the necessary attributes, and so approached the NPPF 109 policy lawfully.
Rejecting the claim, the judgment notes that while the Inspector’s phrasing was in places “less than optimal”, when looked at a whole and in a sensible, flexible and common sense way (Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26) he had properly determined the issue having addressed the critical question of whether the landscape had extraordinary aspects taking it beyond “mere countryside”. Having already applied the correct test before the “unhappy” comments, he would not have reached a different conclusion had he not made them.
Roy Pinnock is a partner in the planning and public law team at Dentons
