R (on the application of Monkhill Ltd) v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Sir Gary Hickinbottom |
| Judgment Date | 28 January 2021 |
| Neutral Citation | [2021] EWCA Civ 74 |
| Docket Number | Case No: C1/2019/1955/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2021 |
and
[2021] EWCA Civ 74
Sir Keith Lindblom, SENIOR PRESIDENT OF TRIBUNALS
Lady Justice Andrews
and
Sir Gary Hickinbottom
Case No: C1/2019/1955/QBACF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(PLANNING COURT)
THE HONOURABLE MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Banner Q.C. and Matthew Fraser (instructed by Penningtons Manches Cooper LLP) for the Appellant
Richard Moules (instructed by the Government Legal Department) for the First Respondent
Hearing date: 3 November 2020
Approved Judgment
The Senior President of Tribunals:
Introduction
On many occasions since the National Planning Policy Framework (“the NPPF”) was first published by the Government in March 2012 its provisions have had to be considered by the courts. These cases have formed a large part of the work of the Planning Court since it came into being in 2014. Several have come before this court. Two – Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 W.L.R. 1865 and R. (on the application of Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3 – have reached the Supreme Court. This is another in that series. It invites the court to determine the meaning of the policy relating to development in an Area of Outstanding Natural Beauty (“AONB”) in the revised version of the NPPF published in July 2018, and the relationship of that policy to the “presumption in favour of sustainable development”.
With permission granted by Flaux L.J., as he then was, the appellant, Monkhill Ltd., appeals against the order of Holgate J., dated 24 July 2019, dismissing its application under section 288 of the Town and Country Planning Act 1990 for an order to quash the decision of an inspector appointed by the first respondent, the Secretary of State for Housing, Communities and Local Government, dismissing Monkhill's appeal under section 78 of the 1990 Act against the refusal of planning permission by the second respondent, Waverley Borough Council, 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 Longdene House to provide a new dwelling. Most of the site is in the Surrey Hills AONB. The remainder is within an Area of Great Landscape Value (“AGLV”). The inspector's decision, in a decision letter dated 10 January 2019, was a re-determination of the section 78 appeal. The previous decision was quashed in April 2018.
Although the version of the NPPF published in July 2018 has now been superseded by a further revised version published in February 2019, the policies we are concerned with were reproduced in the same form, and I shall therefore refer to them in the present tense.
The issue in the appeal
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.
Paragraph 11 of the NPPF
In chapter 2 of the NPPF, “Achieving sustainable development”, under the heading “The presumption in favour of sustainable development”, paragraph 11 states in its relevant part:
“11. Plans and decisions should apply a presumption in favour of sustainable development.
…
For decision-taking this means:
c) approving development proposals that accord with an up-to-date development plan without delay; or
d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date 7, granting permission unless:
i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed 6; or
ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.”
Footnote 6 states:
Footnote 7 states:
Paragraph 12 acknowledges that “[the] presumption in favour of sustainable development does not change the statutory status of the development plan as the starting point for decision making”.
The original policy for the “presumption in favour of sustainable development”, in paragraph 14 of the 2012 version of the NPPF, was in different terms:
“14. At the heart of [the NPPF] is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
…
For decision-taking this means:
• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
– specific policies in this Framework indicate development should be restricted. 9”
Footnote 9 stated:
Paragraph 172 of the NPPF
In chapter 15 of the NPPF, “Conserving and enhancing the natural environment”, paragraph 170 states that “[planning] policies and decisions should contribute to and enhance the natural and local environment by … a) protecting and enhancing valued landscapes … (in a manner commensurate with their statutory status or identified quality in the development plan) … .” The relevant statutory provision for Areas of Outstanding Natural Beauty is in section 85(1) of the Countryside and Rights of Way Act 2000, which provides that “[in] exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty”.
Paragraph 172 of the NPPF states:
“172. Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to these issues. The conservation and enhancement of wildlife and cultural heritage are also important considerations in these areas, and should be given great weight in National Parks and the Broads. The scale and extent of development within these designated areas should be limited. Planning permission should be refused for major development 55 other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of:
a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and
c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.”
Footnote 55 states:
Paragraph 173 states:
“173. Within areas defined as Heritage Coast (and that do not already fall within one of the designated areas mentioned in paragraph 172), planning policies and decisions should be consistent with the special character of the area and the importance of its conservation. Major development within a Heritage Coast is unlikely to be appropriate, unless it is compatible with its special character.”
The inspector's decision letter
The council's case before the inspector was based on its first reason for refusing planning permission, which was that “the proposal, 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”.
In his decision letter the inspector identified three main issues: first, “the effects of the proposed development on … [the] character and appearance of the area and the AONB”; second, its effects on “highway safety”; and third, its effects on the “[supply] of housing land” (paragraph 9). Having summarised the content of the relevant provisions of the development plan, he referred to relevant policies in the NPPF, noting that “[paragraph] 11 of [the NPPF]… sets out how decisions should apply a presumption in favour of sustainable development”, and 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” (paragraph 15).
On the first main issue, the inspector found that although the proposal was not for “major development” in the AONB, it “would result in significant overall harm to the character and appearance of the area” (paragraph 31). His assessment led him to this conclusion (in paragraph 33):
“33. … I consider that the outline proposal … would be likely to result in a scheme that had a significant adverse effect on the character and appearance of the area. This would not conserve or enhance the landscape and scenic beauty of the AONB. The resultant harm, in accordance with [the NPPF], should be given great weight in the planning balance. The proposal would not...
To continue reading
Request your trial
-
Worthing Borough Council v Secretary of State for Levelling Up, Housing and Communities
...beauty” in paragraph 176 of the Framework. 136 In Monkhill Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 74, [2021] PTSR 1432, which concerned the 2018 version of paragraphs 176 and 177 of the Framework (then numbered paragraph 172 and in slightly ......
-
R Penelope James v Dover District Council
...policies were considered by the Court of Appeal in Monkhill Ltd v Secretary of State for Housing Communities and Local Government [2021] EWCA Civ 74, per Sir Keith Lindblom SPT, at [32] – [34]: “32. I agree. The most important point here, however, as Holgate J. recognised (in paragraph 53 ......
-
The King on the application of Bellway Homes Ltd v Kent County Council
...the policy is plainly restrictive or negative (see Monkhill Limited v Secretary of State for Housing Communities and Local Government [2021] PTSR 1432). Even where development meets those criteria, the protective or restrictive constraints which the policy imposes are simply overcome. This ......
-
Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities
...issue were adopted by Protect Dunsfold, submits that Monkhill Ltd v Secretary of State for Housing Communities and Local Government [2021] EWCA Civ 74, [2021] PTSR 1432 shows that the effect of the first sentence of §176 of the Framework is that where a decision-maker finds harm to the AO......