Forest of Dean District Council v Secretary of State for Communities And Local Government & Anor

A landscape need not be designated to qualify as a valued landscape under paragraph 109 of the National Planning Policy Framework. The relevant question is whether its physical attributes take it beyond ordinary countryside. A planning decision must be read as a whole, practically and sensibly, rather than subjected to excessive textual analysis. Where an inspector has made an error in a statutory planning challenge, relief should be refused only where the outcome would inevitably have been the same. An express finding that the site had no attributes taking it beyond ordinary countryside made the grant of permission inevitable on the applicable legal approach.

The Council applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing an appeal under section 78 and granting outline permission for up to 95 dwellings. The Council argued that the inspector had unlawfully equated a valued landscape with a designated landscape when applying paragraph 109 of the National Planning Policy Framework. The Secretary of State and developer accepted that designation and value were distinct, but submitted that the inspector’s findings made the outcome inevitable. The central issues were whether the decision disclosed an error of law and, if so, whether relief should nevertheless be refused.

1. Application refused. The inspector’s decision was not quashed.
2. Paragraph 109 of the National Planning Policy Framework distinguishes a valued landscape from a designated landscape. Following Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin), the issue is whether the landscape has physical attributes taking it beyond ordinary countryside. Absence of designation does not necessarily mean absence of landscape value.
3. The inspector’s wording, particularly the reference to attributes that had been designated, was infelicitous. However, his decision had to be read as a whole and in a practical, common-sense manner. His finding that there were no particular landscape features, characteristics or elements taking the site beyond ordinary countryside showed that he had determined the relevant question. He had therefore not adopted an unlawful approach to paragraph 109. (See paras [31]-[39].)
4. Even if the inspector had erred by eliding designation and value, relief would still be refused. In a section 288 application, the court should refuse relief only where the decision would inevitably have been the same without the error, applying Simplex GE (Holdings) Limited v Secretary of State for the Environment [1988] PLR 25. The inspector’s express and adequately evidenced finding that the site was no more than ordinary countryside meant that, under Stroud, it could not be a valued landscape for paragraph 109 purposes.
5. The inspector was entitled to assign planning considerations such weight as he considered appropriate, subject to rationality. The application was accordingly refused.

The judgment itself was a first-instance statutory challenge to an inspector’s decision.

• Inspector’s decision: George Baird allowed the developer’s section 78 appeal on 14 January 2016 and granted outline planning permission.
• High Court (Administrative Court): The application under section 288 of the Town and Country Planning Act 1990 was refused.