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Since the National Planning Policy Framework (NPPF) was first published in 2012, many cases have come before the courts concerning its interpretation. In the recent case of Monkhill Limited v Secretary of State for Housing, Communities and Local Government  EWCA Civ 74 the Court of Appeal was required to determine the meaning of the policy relating to development in an Area of Outstanding Natural Beauty (AONB) and its relationship with the presumption in favour of sustainable development.
The planning application related to a housing development on land within the Surrey Hills AONB. The developer had its appeal against a refusal to grant planning permission dismissed twice, first by a Planning Inspector followed by the High Court.
The single ground of appeal was whether paragraph 172 of the NPPF which provides that “great weight should be given to conserving and enhancing landscape and scenic beauty in…Areas of Outstanding Natural Beauty” was a policy capable of providing a clear reason for refusing planning permission under paragraph 11(d)(i) of the NPPF. Paragraph 11(d) includes two alternative limbs which, when either is satisfied, allow for a refusal of planning permission despite the presumption in favour of sustainable development. Under limb (i), permission should be granted unless the application of policies in the NPPF that protect areas or assets of particular importance provides a clear reason for refusing the development proposed. This is further clarified by Footnote 6 which sets out the policies referred to, which includes those relating to AONBs. Limb (ii) contains what is known as the “tilted balance” which provides that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole.
The Court of Appeal held that in determining the proper interpretation of the NPPF a straightforward reading should be applied in order to avoid the true meaning and effect of the policy being lost.
Having reached this conclusion, the Court of Appeal found no fault with the resulting balancing exercise applied by the Planning Inspector, who considered that the development would not conserve or enhance the landscape and beauty of the AONB. As this comprised a clear reason for refusing the permission within limb (i), the “tilted balance” under limb (ii) was disengaged.
This case serves as a useful reminder that environmental designations, such as AONB designations, pose a high planning threshold to overcome in respect of development proposals. The judgment recognises that the NPPF does not provide a blanket ban on development in designated areas and that there may be scenarios where the weight of the benefits of a proposal may outweigh the “great weight” given to the protection of such a designated area.
However, the sense of the judgment suggests that these scenarios would be exceptional. Developers would be wise to think twice before embarking on a journey similar to that of the developer in this case.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.
01 March 2021