Monkhill Ltd v Secretary of State for Housing, Communities and Local Government & Anor (Rev 1)

A policy in the National Planning Policy Framework which requires great weight to be given to conserving and enhancing the landscape and scenic beauty of an Area of Outstanding Natural Beauty is capable, when applied, of providing a clear reason for refusal under paragraph 11(d)(i). The policy need not contain its own express refusal criterion or self-contained test.

Applying paragraph 172 requires a planning balance between harm to the protected area, to which great weight is given, and countervailing benefits. If the benefits do not outweigh the harm, the policy may yield a clear reason for refusal and disapply the tilted balance in paragraph 11(d)(ii). This applies to non-major as well as major development.

Monkhill Ltd appealed against the dismissal of its statutory challenge to an inspector’s refusal of planning permission for up to 29 dwellings at Haslemere. Most of the site lay within the Surrey Hills Area of Outstanding Natural Beauty.

The inspector found a significant shortfall in housing land supply, but also significant harm to the character and appearance of the area and to the Area of Outstanding Natural Beauty. He held that paragraph 172 of the National Planning Policy Framework provided a clear reason for refusal under paragraph 11(d)(i), so that the tilted balance did not apply.

High Court (Planning Court): Holgate J dismissed the challenge: [2019] EWHC 1993 (Admin). The central issue on appeal was whether the first sentence of paragraph 172 was capable of engaging paragraph 11(d)(i).

1. Appeal dismissed. The inspector and Holgate J correctly interpreted and applied paragraphs 11 and 172 of the National Planning Policy Framework.

2. National planning policy is interpreted practically and in context. It is not construed with the linguistic rigour appropriate to legislation or a contract. The court’s task is to identify the policy’s natural and intended meaning without over-interpretation.

3. Paragraph 11(d)(i) asks whether the application of a policy protecting an area or asset of particular importance provides a clear reason for refusal. It does not require the policy itself to state, in express terms, that permission should be refused, or to prescribe self-contained criteria whose non-fulfilment is fatal to a proposal.

4. The first part of paragraph 172 is a protective policy falling within footnote 6 in its entirety. It requires a balance between harm to the landscape and scenic beauty of an Area of Outstanding Natural Beauty, to which great weight must be given, and the proposal’s countervailing benefits. If the benefits are absent or insufficient to outweigh the harm, the outcome of that balance may provide a clear reason for refusal under paragraph 11(d)(i).

5. That conclusion is not confined to major development. Reading paragraph 172 otherwise would create an artificial divide between major and non-major development and weaken the protection accorded to Areas of Outstanding Natural Beauty.

6. A footnote 6 policy must be actually applied; its mere engagement is insufficient. Once its application supplies a clear reason for refusal, paragraph 11(d)(i) disapplies the tilted balance in paragraph 11(d)(ii). The decision-maker must still determine the proposal under the statutory planning regime, including Town and Country Planning Act 1990 section 70(2) and Planning and Compulsory Purchase Act 2004 section 38(6).

7. The inspector had conducted the required balance lawfully. The housing, affordable-housing, economic and biodiversity benefits did not outweigh the harm to the Area of Outstanding Natural Beauty, which attracted great weight. His refusal therefore stood.

• Court of Appeal (Civil Division): Dismissed Monkhill’s appeal and upheld the interpretation of paragraphs 11(d)(i) and 172 of the National Planning Policy Framework.
• High Court (Planning Court): Holgate J dismissed Monkhill’s application under Town and Country Planning Act 1990 section 288 to quash the inspector’s decision: [2019] EWHC 1993 (Admin).
• Planning inspector: Dismissed Monkhill’s section 78 appeal against Waverley Borough Council’s refusal of planning permission, by decision letter dated 10 January 2019.