Campaign for the Protection of Rural England Kent Branch, R (on the application of) v Secretary of State for Housing, Communities and Local Government & Ors

The strengthened duty under section 85(A1) of the Countryside Act 2000 requires a planning decision-maker actively to seek to further the conservation and enhancement of an Area of Outstanding Natural Beauty. It does not make the absence of harm a precondition to permission, nor does it displace the evaluative planning balance under sections 70 of the Town and Country Planning Act 1990 and 38(6) of the Planning and Compulsory Purchase Act 2004.

Where harm is identified, the decision-maker must consider whether permission may justifiably be granted, explain why, and consider mitigation, compensation, conditions and planning obligations where relevant. Adequate reasons may be demonstrated by a decision letter which addresses the statutory duty, the harm, the benefits, alternatives and relevant planning policy.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 a planning permission granted by the Secretary of State for 165 dwellings in the High Weald Area of Outstanding Natural Beauty.

The application had been called in, considered at a local inquiry and previously determined and quashed. The Secretary of State then made a fresh determination under rule 19 of the Town and Country Planning Inquiry Procedure Rules 2000. The claimant argued that section 85(A1) of the Countryside Act 2000 required refusal where unavoidable harm to natural beauty was found, or alternatively that the Secretary of State had given inadequate reasons for concluding that the duty was satisfied.

The central issues were the interaction between the strengthened protected-landscape duty and the statutory planning balance, and the adequacy of the reasons given.

1. Ground 1 rejected. The section 85(A1) duty is engaged when a relevant authority performs a function affecting land in an AONB. It must be fulfilled in exercising that function, but it does not replace the statutory framework governing the function itself.
2. In determining a planning application, the decision-maker must apply sections 70 and 38(6), identify the development plan and other material considerations, attribute appropriate weight and draw the planning balance. Neither statute gives any single consideration determinative weight.
3. The duty to seek to further conservation and enhancement requires more than merely weighing the effect of development. Where development conflicts with or undermines those purposes, the decision-maker must consider whether permission may justifiably be granted and explain why. Depending on the circumstances, mitigation, compensatory measures, conditions and planning obligations may require consideration.
4. Section 85(A1) does not impose a prohibition on permission for development causing some harm to an AONB. The contrast with regulations 63 and 64 of the Conservation of Habitats and Species Regulations 2017, which contain an express prohibition subject to defined exceptions, confirmed that Parliament had not imposed an equivalent constraint.
5. Ground 2 rejected. The Secretary of State’s decision letter adequately addressed the limited harm, the great weight attached to landscape and scenic beauty, housing need, benefits, alternatives, exceptional circumstances, public interest and the section 85(A1) duty. It sufficiently explained why permission, subject to conditions and planning obligations, was lawful.
6. The claim was dismissed.