Monkhill Ltd, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government & Anor

Factual and Procedural Background

The appellant, Company A, appealed against an order dismissing its application to quash the decision of an inspector appointed by the Secretary of State for Housing, Communities and Local Government. The inspector had dismissed Company A's appeal against the refusal of planning permission by the local council for a housing development on land at a specified location largely within an Area of Outstanding Natural Beauty (AONB) and partly within an Area of Great Landscape Value (AGLV). The proposal involved constructing up to 29 dwellings and changing the use of an existing building to a new dwelling. The inspector's decision was a re-determination following the quashing of a previous decision. The case concerns the interpretation of national planning policy, specifically the National Planning Policy Framework (NPPF) provisions relating to development in an AONB and the presumption in favour of sustainable development.

Legal Issues Presented

1. Whether the inspector was wrong to interpret the first sentence of paragraph 172 of the NPPF, which requires "great weight" to be given to conserving and enhancing landscape and scenic beauty in an AONB, as a policy capable of providing "a clear reason for refusing" planning permission under paragraph 11d)i of the NPPF.

Arguments of the Parties

Appellant's Arguments

• The inspector misunderstood paragraph 172 of the NPPF by concluding that its first part could satisfy paragraph 11d)i and thus disapply the "tilted balance" under paragraph 11d)ii.
• A policy specifying a degree of weight to be given to a consideration is not capable of providing a "clear reason for refusal". The first sentence of paragraph 172 does not provide a balancing test or criteria for refusal, so it cannot provide a clear reason for refusal.
• Only policies that explicitly state permission should be refused unless certain criteria are met, or that provide their own balancing exercise, can provide a "clear reason for refusal".
• The second part of paragraph 172, which relates to major development, does provide such criteria, but the first part does not.
• The inspector erred in concluding that paragraph 172 provided a clear reason for refusal under paragraph 11d)i instead of applying the tilted balance under paragraph 11d)ii, while still giving great weight to conservation.
• The appellant accepted the inspector's findings that the proposal would cause harm to the AONB and that such harm should be given great weight, but disputed the legal consequence drawn from that.
• The appellant also relied on the Government's consultation document suggesting a deliberate change in policy language from "restricted" to "refused", arguing that the first part of paragraph 172 does not suggest refusal and only indicates weight to be given.

Respondent's Arguments

• The policy in paragraph 172, read as a whole and in context, is capable of providing a clear reason for refusal under paragraph 11d)i.
• The concept of "great weight" to be given to conserving and enhancing landscape and scenic beauty in an AONB inherently involves a planning balance between harm and benefits.
• The application of the policy involves a planning judgment balancing any harm to the AONB against any benefits of the proposal, which can result in a clear reason for refusal if benefits do not outweigh the harm.
• The inspector correctly applied paragraph 172 and paragraph 11d)i, conducting a lawful balancing exercise consistent with statutory requirements.
• Restricting the application of paragraph 11d)i to major development only would undermine the protection intended for AONBs and create an artificial divide between major and non-major developments.
• Policies in footnote 6, including paragraph 172, protect areas of particular importance and their application must be capable of providing a clear reason for refusal to effectively disapply the tilted balance under paragraph 11d)ii.
• Other policies in the NPPF with differing language but similar protective aims are also capable of providing clear reasons for refusal without explicitly stating criteria or tests.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the interpretation of paragraph 172 of the NPPF in the context of paragraph 11d)i, which allows refusal of planning permission where policies protecting areas of particular importance provide a clear reason for refusal. The court emphasized that the phrase "great weight" in paragraph 172 inherently requires a planning balance between harm to the AONB and any benefits of the proposal. The policy does not explicitly state a balancing test but implicitly requires decision-makers to weigh harm against benefits, applying planning judgment.

The court rejected the appellant's argument that only policies containing explicit refusal criteria or self-contained balancing tests could provide a "clear reason for refusal". It found that the application of paragraph 172 can yield a clear reason for refusal as a matter of planning judgment, even if the policy does not explicitly state so.

The court noted that restricting the application of paragraph 11d)i to major development alone would undermine the protection given to AONBs and create an artificial divide. The policy must be capable of realistic application across all scales of development.

The court also stressed that the NPPF policies are to be interpreted practically and straightforwardly, not with the linguistic rigour of statutes or contracts. The policy's purpose is to bring clarity and predictability to planning decisions, which supports a broad and realistic interpretation.

The inspector's decision was upheld as correctly applying paragraph 172 and paragraph 11d)i, conducting a lawful balancing exercise consistent with statutory requirements. The court agreed that the inspector's application of the policy provided a clear reason for refusal, thereby disapplying the tilted balance under paragraph 11d)ii.

Holding and Implications

The court DISMISSED the appeal.

The direct effect of this decision is to affirm that the first sentence of paragraph 172 of the NPPF, requiring "great weight" to be given to conserving and enhancing landscape and scenic beauty in an AONB, is a policy capable of providing a clear reason for refusing planning permission under paragraph 11d)i. This means that planning authorities may refuse permission on this basis without applying the tilted balance of paragraph 11d)ii. The decision confirms that such policies apply to all development scales within AONBs, not only major development, thereby reinforcing the protective status of AONBs in the planning system.

No new precedent beyond the interpretation of the relevant NPPF provisions was established.