Great Trippetts Estate Ltd v Secretary of State for Communities and Local Government

In planning decisions affecting an Area of Outstanding Natural Beauty, landscape impact and visual impact are related but distinct. Visual impact is a subset of landscape impact. Lack of public visibility does not by itself remove harm to the intrinsic character of the landscape. Landscaping may mitigate visual harm sufficiently to justify permission despite residual intrinsic harm, but it does not do so automatically, even where screening is total. The issue remains one of planning judgment. An appellate court applying the judicial-review standard must not substitute its own planning balance for that of the inspector. Different developments may properly be treated differently where their effects fall into materially different categories. Each development must be assessed on its own merits.

The appeal and cross-appeal arose from enforcement notices concerning an unauthorised manège, exercise track and tennis court on an estate within the Upper Weald Area of Outstanding Natural Beauty. The inspector upheld enforcement action against the manège and refused permission for the tennis court, while permitting the exercise track.

Collins J quashed the inspector’s decision concerning the manège but refused to quash the decision concerning the tennis court. The Secretary of State appealed against the first ruling, and the estate cross-appealed against the second. The central issues were whether the inspector had applied an impermissible rule concerning screening, wrongly assessed the balance between need and harm, acted inconsistently between developments, or made the same error concerning the tennis court.

1. Disposition. The Secretary of State’s appeal was allowed and the estate’s cross-appeal was dismissed.
2. Appellate jurisdiction. A statutory appeal against a planning decision is akin to judicial review: Seddon Properties Limited v SSE [1978] JPL 835. Matters of planning judgment remain within the exclusive province of the local planning authority or the Secretary of State: Tesco Stores v SSE [1995] 1 WLR 759. The judge could correct an error of law, but could not substitute a different planning assessment.
3. AONB harm. The statutory conservation purpose in section 85(1) of the Countryside and Rights of Way Act 2000 was not confined to public views. Landscape impact and visual impact are distinct, although visual impact is a subset of landscape impact. A development may harm the intrinsic character of an AONB even if it is not visible or is screened from view.
4. Landscaping and screening. There was no absolute rule that landscaping or concealment could never make harmful development acceptable in an AONB. Landscaping may mitigate visual impact sufficiently to justify permission despite intrinsic harm. Whether it does so is a matter of planning judgment, and total screening will not necessarily be sufficient. Properly read, the inspector’s reasoning concerned this particular manège and did not state a general rule.
5. Need and harm. The inspector had considered the evidence concerning the facility’s desirability and alleged necessity, the comparison with other polo establishments, and the ameliorative effects of landscaping. Her comparison that only seven of the twenty leading teams had a facility of this kind was a reasonable matter to consider. The judge was not entitled to strike the balance differently.
6. Comparative treatment and tennis court. The inspector was entitled to distinguish the polo field and exercise track because their effects were materially less obtrusive and better integrated into the landscape. She was also entitled to assess the tennis court on its own merits. Limited visibility did not eliminate harm to the wider character and quality of the AONB, which itself constituted an important public interest.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and dismissed the cross-appeal.
• Administrative Court, Queen’s Bench Division: Collins J allowed the estate’s appeal concerning the manège and quashed the inspector’s decision on it, but refused to quash the decision concerning the tennis court.