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 of Judge A dated 24 July 2019, which dismissed its application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector appointed by the first respondent, Secretary of State for Housing, Communities and Local Government. The inspector had dismissed Company A's appeal under section 78 of the 1990 Act against the refusal of planning permission by the second respondent, Local Authority B, for a housing development on land at a specified location within an Area of Outstanding Natural Beauty ("AONB") and partly within an Area of Great Landscape Value ("AGLV"). The development proposed up to 29 dwellings replacing existing buildings and the change of use of a house to a new dwelling. The inspector's decision, dated 10 January 2019, was a re-determination following the quashing of a previous decision in April 2018.

The appeal concerns the interpretation of the National Planning Policy Framework (NPPF) provisions relating to development in an AONB, specifically paragraph 172, and its relationship with the "presumption in favour of sustainable development" set out in paragraph 11 of the NPPF.

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 by concluding it could satisfy paragraph 11d)i and thereby disapply the "tilted balance" under paragraph 11d)ii.
• A policy that only specifies the weight to be given to a consideration cannot provide a "clear reason for refusal" because refusal requires balancing all considerations.
• Only policies that include criteria or tests for refusal or a self-contained balancing exercise can provide a clear reason for refusal under paragraph 11d)i.
• The first part of paragraph 172 does not mention the weight to be given to benefits or other considerations and thus cannot provide a clear reason for refusal.
• The second part of paragraph 172, relating to major development, is different because it explicitly states when planning permission should be refused.
• The inspector erred by concluding that paragraph 172's first part provided a clear reason for refusal and should disapply the tilted balance.

Respondent's Arguments

• The policy in paragraph 172, read as a whole and in context, requires great weight to be given to conserving and enhancing the AONB, which can provide a clear reason for refusal as a matter of planning judgment.
• The application of paragraph 172 involves a balancing exercise where the harm to the AONB is given great weight and weighed against any benefits.
• The "tilted balance" under paragraph 11d)ii is disapplied where policies protecting areas of particular importance, such as AONBs, provide a clear reason for refusal under paragraph 11d)i.
• Restricting the application of paragraph 11d)i only to major development would undermine the protection afforded to AONBs and produce an illogical divide between major and non-major development.
• The first part of paragraph 172 is consistent with other footnote 6 policies that provide clear reasons for refusal without necessarily containing explicit balancing tests.
• The inspector lawfully applied paragraph 172 and the relevant statutory provisions in reaching his decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the interpretation of paragraph 172 of the NPPF in the context of paragraph 11d)i, which sets out that planning permission should be refused where policies protecting areas of particular importance provide a clear reason for refusal. The court agreed with the lower court's reasoning that the first sentence of paragraph 172, 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 refusal when applied.

The court rejected the appellant's argument that a policy must contain explicit criteria or a self-contained balancing test to provide such a reason. Instead, the court held that the application of the policy involves a planning judgment balancing any harm against benefits, with the harm given great weight. This balancing exercise is implicit in the policy and does not require explicit wording.

The court emphasized that paragraph 11d)i disapplies the "tilted balance" of paragraph 11d)ii when such protective policies apply and provide a clear reason for refusal. This ensures that the high level of protection afforded to AONBs is preserved across all development scales, not only major developments.

The court further explained that confining the disapplication of the tilted balance only to major developments would undermine the protection intended by the NPPF and create an artificial policy divide. The court supported the inspector's approach as consistent with statutory duties under sections 70(2) of the 1990 Act and 38(6) of the 2004 Act.

The court also noted that the language of paragraph 172, read in context, reflects the Government’s intention that decisions on planning applications in AONBs must give great weight to conserving and enhancing their landscape and scenic beauty, which can justify refusal of permission where harm outweighs benefits.

In sum, the court upheld the inspector's interpretation and application of paragraph 172 as a policy capable of providing a clear reason for refusal under paragraph 11d)i, and therefore correctly disapplying the tilted balance in this case.

Holding and Implications

The court DISMISSED the appeal.

The decision confirms that the first part of paragraph 172 of the NPPF, which requires 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 refusal of planning permission under paragraph 11d)i. This means that where such policies apply and are engaged, the "tilted balance" in paragraph 11d)ii does not apply. The ruling preserves the high level of protection for AONBs across all scales of development and clarifies the proper approach to applying the NPPF’s presumption in favour of sustainable development in such contexts.

No new precedent was set beyond confirming and clarifying the interpretation of existing NPPF provisions and their consistent application with statutory planning duties.