Morris, R (on the application of) v Wealden District Council

Planning permission for development affecting an Area of Outstanding Natural Beauty requires careful application of the development plan as a whole. A recreational benefit is a material consideration, but it justifies departing from a protective policy only if it carries sufficient weight to outweigh that policy. Where the plan permits development in an AONB only if it conserves or enhances the landscape, that policy is the primary consideration. The statutory duty to have regard to conserving and enhancing natural beauty, together with the National Planning Policy Framework requirement to give great weight to landscape and scenic beauty, reinforces the protection afforded by the plan. The weight required is fact-sensitive and depends on the degree of harm. A planning committee must demonstrate that it applied that approach.

The claimant sought judicial review of a planning permission granted by Wealden District Council to Wadhurst Tennis Club for nine poles and floodlighting on two tennis courts in the High Weald Area of Outstanding Natural Beauty. Earlier permissions for substantially the same proposal had been quashed following previous judicial review challenges.

The renewed permission was challenged on grounds including failure to apply the relevant development plan policies, failure to give proper weight to the AONB, and inadequate reasons. The central issue was whether the committee lawfully balanced the environmental harm against the recreational and community benefits.

1. The planning permission was quashed. The relevant policy, EN6, allowed development in the High Weald AONB only if it conserved or enhanced the natural beauty and character of the landscape. The floodlighting did neither and caused acknowledged harm, although the harm was relatively slight.
2. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the authority had to consider the development plan as a whole. Regina v Rochdale Metropolitan Borough Council [2001] 81 P & CR 27 explained that relevant policies may pull in different directions and that breach of one policy does not automatically make development inconsistent with the plan. That principle did not make the recreational policies relied upon inconsistent with EN6.
3. Recreational and community benefits were material considerations. However, they could justify permission contrary to the protective policy only if they carried sufficient weight to outweigh it. The committee’s reasoning did not show that it recognised EN6 as the primary consideration or that the recreational benefits had to outweigh the policy protection.
4. Section 85(1) of the Countryside and Rights of Way Act 2000 required regard to the purpose of conserving and enhancing the natural beauty of the AONB. Paragraph 115 of the NPPF required great weight to be given to conserving landscape and scenic beauty. As explained in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] 1 P & CR 22, the weight is assessed in light of the degree of harm. Here, the combined policy and statutory protection meant that a considerable degree of advantage was needed to outweigh the harm.
5. Parliament had removed any general requirement to give reasons for granting planning permission. The court could not reintroduce such a requirement through the common law. Nevertheless, the committee’s voluntary reasons were relevant evidence that it had adopted the wrong legal approach. Costs were to be agreed or subject to detailed assessment, subject to the applicable Aarhus costs limit. Permission to appeal was refused.

The judgment records that earlier permissions for substantially the same development had been quashed on previous judicial review challenges, including a decision of a Deputy High Court Judge concerning environmental impact assessment. The present claim challenged the permission issued on 24 December 2013. The court quashed that permission and refused permission to appeal.