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

The Court of Appeal held that paragraph 172 of the National Planning Policy Framework (NPPF) — which requires that "great weight" be given to conserving and enhancing landscape and scenic beauty in Areas of Outstanding Natural Beauty (AONBs) — is a protective policy within footnote 6 to paragraph 11 of the NPPF and, when applied, can provide "a clear reason for refusing" planning permission under paragraph 11(d)(i). The court upheld the inspector's approach of applying paragraph 172 as engaging the limb (i) exception to the "tilted balance" in paragraph 11(d), and endorsed the High Court's analysis that the first sentence of paragraph 172 is capable of yielding a clear reason for refusal when the balancing exercise, giving great weight to harm to the AONB, results in refusal.

Relevant statutory provisions addressed included section 85(1) of the Countryside and Rights of Way Act 2000, and the decision-making duties in section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. The court found no error of law in the inspector's reasoning and dismissed the appeal.

The appellant, Monkhill Ltd, sought to challenge the inspector's dismissal of a section 78 planning appeal against Waverley Borough Council's refusal of permission for up to 29 dwellings on land predominantly within the Surrey Hills AONB. The appellant then sought judicial review of the secretary of state's re-determination of the appeal. Holgate J dismissed that claim and Monkhill appealed to the Court of Appeal.

Nature of the application: Judicial review of the inspector's decision (re-determination of a section 78 appeal); the appellant argued that the inspector misinterpreted paragraph 172 of the NPPF and wrongly concluded that the first sentence of paragraph 172 could disapply the "tilted balance" in paragraph 11(d)(ii) by providing a "clear reason for refusing" under paragraph 11(d)(i).

Issues framed:

• Whether the first sentence of NPPF paragraph 172 (requiring "great weight" to conserving and enhancing landscape and scenic beauty in AONBs) falls within the footnote 6 policies in paragraph 11 and, if applied, can provide a "clear reason for refusing" planning permission under paragraph 11(d)(i);
• Whether the inspector misapplied national policy by treating paragraph 172 as capable of disapplying the presumption in favour of sustainable development (the "tilted balance").

Court's reasoning: The court emphasised that interpretation of national planning policy requires a practical and contextual approach. Paragraph 172 sits in a chapter whose objective is conserving and enhancing the natural environment and must be read alongside paragraph 170 and the statutory duty in section 85(1) CROW Act 2000. The court agreed with Holgate J that the first sentence of paragraph 172, although framed as a direction on weight, contemplates a balancing exercise in decision-making. When applied in the statutory decision-making framework (s.70(2) TCPA 1990 and s.38(6) PCPA 2004), the application of paragraph 172 may produce a conclusion that provides a "clear reason for refusing" under paragraph 11(d)(i). The court rejected the appellant's argument that only policies containing self-contained substantive tests or criteria can satisfy limb (i). It also rejected an interpretation that would confine paragraph 11(d)(i) to major development in AONBs, observing that such a reading would produce arbitrary distinctions and weaken the protection afforded to AONBs.

Procedural posture: Appeal from Holgate J's judgment in the Planning Court ([2019] EWHC 1993 (Admin)). The Court of Appeal concluded that the inspector had lawfully applied the NPPF and that there was no error of law in the High Court's dismissal of Monkhill's challenge.

Appeal dismissed. The court agreed with Holgate J that paragraph 172 of the NPPF (the requirement to give "great weight" to conserving and enhancing landscape and scenic beauty in AONBs) is a footnote 6 policy under paragraph 11(d)(i) and that its application can provide a "clear reason for refusing" planning permission. The inspector lawfully applied that policy and the tilted balance in paragraph 11(d)(ii) was correctly disapplied where paragraph 11(d)(i) was engaged.

Appeal to the Court of Appeal from the High Court (Planning Court) decision of Holgate J, [2019] EWHC 1993 (Admin). Permission to appeal was granted by Flaux L.J. The inspector's re-determination decision dated 10 January 2019 (following quashing of the earlier decision in April 2018) was the subject of the judicial review in the High Court.