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

Factual and Procedural Background

This claim concerns a challenge brought by the Plaintiff to quash the decision of the First Defendant's Inspector dismissing an appeal against the refusal of planning permission by the Second Defendant, a local council. The appeal related to a hybrid planning application for redevelopment of land at a site known as Longdene House, located in The State. The application sought outline permission for up to 28 new dwellings and full permission for the change of use and refurbishment of an existing Victorian dwelling from office to residential use.

The appeal site included four areas: Area A (an open field used for horses), Area B (semi-detached cottages), Area C (Longdene House itself), and Area D (existing glasshouses and proposed new dwelling). Most of the site lies within a designated Area of Outstanding Natural Beauty (AONB), with part of Area A designated as an Area of Great Landscape Value (AGLV).

The Inspector’s decision addressed various issues including the impact on the character and appearance of the AONB, housing land supply shortfall, highway safety, and other matters such as ecology and employment benefits. The Inspector concluded that the proposal would cause significant harm to the landscape character and appearance of the area, outweighing the benefits of additional housing and affordable units, and dismissed the appeal.

Legal Issues Presented

1. How paragraph 11(d)(i) of the National Planning Policy Framework (NPPF) should be interpreted to determine which policies fall within its scope as providing a "clear reason for refusal".
2. Whether the first part of paragraph 172 of the NPPF, concerning development in Areas of Outstanding Natural Beauty, National Parks, or the Broads (not involving "major development"), qualifies as a policy falling within paragraph 11(d)(i) of the NPPF.
3. The proper application of the presumption in favour of sustainable development under paragraph 11 of the NPPF, particularly the relationship between limbs (i) and (ii) under paragraph 11(d).

Arguments of the Parties

Plaintiff's Arguments

• A policy can only fall within paragraph 11(d)(i) if it is expressed in language capable of providing a clear reason for refusal, involving a self-contained balancing test or criteria.
• The first part of paragraph 172 of the NPPF, which applies generally to development in AONBs regardless of scale, does not meet this test because it merely requires "great weight" to be given to conserving landscape and scenic beauty without specifying a test for refusal.
• Consequently, the Inspector erred in relying solely on paragraph 172’s first part under limb (i) to disapply the presumption in favour of sustainable development.
• The first part of paragraph 172 should not qualify under limb (i) but may be considered under limb (ii) as part of the overall planning balance.

Defendant's Arguments

• The Plaintiff’s interpretation imposes an unwarranted and overly legalistic gloss on paragraph 11(d)(i) of the NPPF.
• The term "policies" in paragraph 11(d)(i) is plural and may include multiple policies whose combined application can provide a clear reason for refusal.
• Paragraph 172’s first part is capable of sustaining a clear and independent reason for refusal, as it requires "great weight" to be given to landscape protection in areas with the highest status of protection.
• The presumption in favour of sustainable development is properly disapplied if the application of paragraph 172’s first part provides a clear reason for refusal under limb (i), without needing to apply limb (ii).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tesco Stores Limited v Dundee City Council [2012] PTSR 983	Principles governing interpretation of planning policy.	Referenced as part of established principles confirming NPPF policies should be interpreted straightforwardly to guide practical decision-making.
Hopkins Homes Limited v Secretary of State for Communities and Local Government [2017] 1 WLR 1865	Interpretation of planning policies and balancing exercises.	Supported the straightforward interpretation of weighted planning policies.
East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2018] PTSR 88	Clarification on application of paragraph 11(d) limbs (i) and (ii) of the NPPF.	Used to affirm that policies can provide clear reasons for refusal without needing to be linguistically self-contained.
Mansell v Tonbridge and Malling Borough Council [2018] J.P.L 176	Interpretation of planning policies and their application in decision-making.	Referenced in support of the practical approach to policy interpretation.
St Modwen Developments Limited v Secretary of State for Communities and Local Government [2018] PTSR 746	Planning policy interpretation and application of the NPPF.	Used to reinforce the approach to balancing harms and benefits in planning decisions.
Canterbury City Council v Secretary of State for Communities and Local Government [2019] PTSR 81	Interpretation of planning policies and decision-making framework.	Supported the court’s interpretation of paragraph 11(d) of the NPPF.
R (Watermead Parish Council) v Aylesbury District Council [2018] PTSR 43	Interpretative issues around paragraph 14 of NPPF 2012 and its limbs.	Referenced to show the development of limb (i) and (ii) application principles.
Forest of Dean District Council v Secretary of State for Communities and Local Government [2016] PTSR 1031	Relationship between limbs (i) and (ii) in earlier NPPF versions.	Used to confirm that limb (ii) applies only if limb (i) is passed and not otherwise.

Court's Reasoning and Analysis

The court analysed the interpretation of paragraph 11(d) of the NPPF, focusing on the distinction between limbs (i) and (ii). It emphasised that the presumption in favour of sustainable development does not displace the statutory requirement to determine applications in accordance with the development plan unless material considerations indicate otherwise.

The court explained that limb (i) applies when one or more "Footnote 6" policies provide a clear reason for refusal, disapplying the tilted balance in limb (ii). Limb (ii) applies only if limb (i) is not engaged or not satisfied.

Central to the dispute was whether the first part of paragraph 172 of the NPPF qualifies as a "Footnote 6" policy capable of providing a clear reason for refusal under limb (i). The court rejected the Plaintiff’s argument that a policy must be linguistically self-contained or impose a strict test to qualify. Instead, it held that paragraph 172’s first part, which requires "great weight" to be given to conserving landscape and scenic beauty in designated areas, is capable of sustaining a clear reason for refusal.

The court reasoned that the policy increases the weight to be given to harm and that, in a straightforward case, this could suffice as a reason for refusal without further balancing expressed in the policy. Where countervailing benefits exist, the decision-maker must weigh those against the harm, with the harm carrying great weight as required by paragraph 172.

The court noted that this interpretation aligns with other NPPF policies addressing heritage assets and designated landscapes, which similarly require weighted considerations without expressly stating balancing tests. It found no legal basis for requiring a policy to be linguistically self-contained to provide a clear reason for refusal.

The court also confirmed the proper sequential application of limbs (i) and (ii), rejecting any suggestion that limb (ii) should be applied once limb (i) fails. The court agreed with the Defendant’s position that the Inspector correctly applied limb (i) to paragraph 172’s first part and was not required to consider limb (ii).

Holding and Implications

The claim is DISMISSED.

The court held that the first part of paragraph 172 of the NPPF qualifies as a policy to be applied under limb (i) of paragraph 11(d) and is capable of sustaining a freestanding reason for refusal in development control decisions concerning Areas of Outstanding Natural Beauty, National Parks, and the Broads.

The direct effect of this decision is to uphold the Inspector’s dismissal of the appeal. No new precedent was set beyond affirming the practical and straightforward application of paragraph 172’s first part within the existing framework of paragraph 11(d) of the NPPF.