Monkhill Ltd v Secretary of State for Housing, Communities And Local Government

Under paragraph 11(d) of the National Planning Policy Framework, the decision-maker must consider whether a relevant “Footnote 6” policy provides a clear reason for refusal before applying the tilted balance. The mere engagement of such a policy is insufficient. Where its application provides a clear reason for refusal, the tilted balance must not be applied. Paragraph 172’s requirement to give great weight to conserving and enhancing landscape and scenic beauty in designated areas is capable of providing such a reason. The policy need not contain a linguistically self-contained balancing test. Its application necessarily involves assessing harm, attaching the required weight, and considering countervailing benefits as a matter of planning judgment.

Monkhill Limited challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of its appeal against refusal of permission for housing and the conversion of an office building to a dwelling at Longdene House, Haslemere.

The site lay partly within the Surrey Hills Area of Outstanding Natural Beauty. The Inspector found significant harm to landscape character and applied paragraph 11(d)(i) of the National Planning Policy Framework, relying on the first part of paragraph 172. The central issue was whether that part of paragraph 172 was a policy capable of providing a clear reason for refusal, thereby disapplying the tilted balance in paragraph 11(d)(ii).

1. Claim dismissed. The first part of paragraph 172 of the National Planning Policy Framework qualifies as a policy falling within paragraph 11(d)(i) and can sustain a freestanding reason for refusal in development control.
2. Paragraph 11(d) establishes two alternative routes by which the presumption in favour of sustainable development is overcome. The decision-maker must first consider whether one or more “Footnote 6” policies are engaged and, if so, whether their application provides a clear reason for refusal. The mere engagement of such a policy is insufficient.
3. Where limb (i) provides a clear reason for refusal, the tilted balance in limb (ii) is irrelevant and must not be applied. If no “Footnote 6” policy is engaged, or if its application does not provide a clear reason for refusal, the decision-maker proceeds to limb (ii). The exercise remains subject to section 38(6) of the Planning and Compulsory Purchase Act 2004.
4. The first part of paragraph 172 must be read in its context and applied practically. The requirement to give great weight to conserving and enhancing landscape and scenic beauty increases the weight attached to assessed harm in an Area of Outstanding Natural Beauty, National Park or the Broads. Where there are countervailing benefits, the decision-maker must weigh them against that harm. The policy need not expressly state the complete balancing exercise.
5. The same reasoning applies to comparable policies, including paragraphs 173 and 196 of the National Planning Policy Framework. There is no legal requirement for a policy to contain a linguistically self-contained test or an express statement that permission should be refused.
6. The Inspector was entitled to conclude that the proposal caused significant harm to the character and appearance of the Area of Outstanding Natural Beauty and that applying paragraph 172 provided a clear reason for refusal. It was therefore proper not to apply the tilted balance. The alternative reasons challenge fell away.

The claim was brought against an Inspector’s decision dismissing Monkhill Limited’s planning appeal following Waverley Borough Council’s refusal of permission. The judgment also referred to an earlier decision in the same planning appeal which had been quashed, but gave no citation for it.