Court of Appeal dismisses the appeal in R (Monkhill Ltd) v Secretary of State and underlines breach of AONB policy as a reason for refusal
The Court of Appeal (Sir Keith Lindblom, Senior President, Andrews LJ and Sir Gary Hickinbottom) [2021] EWCA Civ 74 has dismissed the appeal against Holgate J’s judgment and upheld his analysis of the approach to para. 11 of the NPPF in paras. 39 and 45 of his judgment and his rejection of the criticism made of the inspector’s approach to AONB policy in the NPPF. The importance of the requirement to attach “great weight” to the ANOB was emphasised and the fact that if there was a conflict with the protections it afforded, it could provide a clear reason for refusal under para. 11 d) i). This seems a statement of the obvious and the clarity of the Court's reasoning explained why. The Court repeated yet again the warnings that the construction of policy is not to be approached like a statute or contact.
The Senior President gave the only judgment and held:
“26. When a question of the proper interpretation of national planning policy arises in legal proceedings, one must remember that the court is not construing a statute or contract. It is seeking to discern the true, practical meaning of a policy issued by the Government, whose purpose is to bring clarity, consistency and predictability to the operation of the planning system. It is trite that the court does not adopt the same linguistic rigour in construing a planning policy as it does to the construction of a legislative provision or a clause in a contract (see East Staffordshire Borough Council, at paragraphs 8 and 9).
27. In considering the policies in the revised versions of the NPPF, published in July 2018 and February 2019, the court will bear in mind that when the Government prepared those policies it was able to take into account the ample case law in which their predecessors – the policies in the original, 2012 version of the NPPF – had been the subject of judicial interpretation and comment. ... this certainly applies to the NPPF's policy for "the presumption in favour of sustainable development", which was reformulated in the July 2018 version. At least some of the court's observations on the previous policy seem to have come through (see, for example, East Staffordshire Borough Council, at paragraphs 22 and 23). This does not mean that the court should adopt a less than objective approach to interpreting the new policies, or strain the meaning of the words used to give them a different sense from their natural meaning when read in their proper context. The court's role is merely one of interpreting the policy as written, and in context. Planning policies are meant to be intelligible to a wide audience, not merely to lawyers and other professional people. They should not be subjected to over-interpretation. A straightforward reading of them should always be favoured. Otherwise their true meaning and effect, as intended by the policy-maker, is liable to be lost.
28. The crucial question in this appeal is whether, on its true construction, the policy in paragraph 11d)i of the NPPF includes the application of the policy in the first part of paragraph 172, because the application of that policy is capable of providing a "clear reason for refusing" planning permission. In my opinion, as Holgate J. held, it does. The sense of the word "provides" in paragraph 11d)i is that the application of the policy in question yields a clear reason for refusal – in the decision-maker's view, as a matter of planning judgment (see paragraphs 51 to 53 and 63 of the judgment of Holgate J.). It is not that the policy itself contains some provision expressed in words one might expect to see in a local planning authority's decision notice. And I do not accept that a policy, when applied, can only provide a "clear reason for [refusal]" if it includes its own self-contained criteria or test, failure of which will be, or will normally be, fatal to the proposal. That is not what the policy in paragraph 11d)i says, and it is not to be inferred from the policy. Nor is there any indication in footnote 6 that this was what the Government intended. Nowhere is it suggested that the footnote includes only some parts of the policies to which it refers, or that only a policy formulated in a particular way will qualify as relevant for the purposes of paragraph 11d)i.
29. In my view, as Mr Richard Moules submitted for the Secretary of State, the policy in the first part of paragraph 172, which refers to the concept of "great weight" being given to the conservation and enhancement of landscape and scenic beauty in an AONB, clearly envisages a balance being struck when it is applied in the making of a planning decision in accordance with the statutory regime under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act (see Hopkins Homes Ltd., at paragraphs 21 and 75, and East Staffordshire Borough Council, at paragraph 13). It is, as the judge recognised, a balance between what can properly be seen, on one hand, as a breach of, or conflict with, the policy and, on the other, any countervailing factors. To speak of a breach of the policy when the development would harm the AONB, or of a conflict with the policy in those circumstances, seems entirely realistic.
30. This, in my view, is plain on a straightforward reading of paragraph 172 in its context, having regard to its obvious purpose. The policy is not actually expressed in terms of an expectation that the decision will be in favour of the protection of the "landscape and scenic beauty" of an AONB, or against harm to that interest. But that, in effect, is the real sense of it – though this, of course, is not the same thing as the proposition that no development will be permitted in an AONB. If the effects on the AONB would be slight, so that its highly protected status would not be significantly harmed, the expectation might – I emphasise "might" – be overcome. Or it might be overcome if the effects of the development would be greater, but its benefits substantial. This will always depend on the exercise of planning judgment in the circumstances of the individual case."
Bayliss v Secretary of State [2014] EWCA Civ 347 at para 18 was referred to and the Senior President continued:
"32. ...The most important point here, however, as Holgate J. recognised (in paragraph 53 of his judgment), is that the requirement in the policy in the first part of paragraph 172 for "great weight" be given to the conservation and enhancement of landscape and scenic beauty in an AONB does not prevent its application providing a clear reason for the refusal of planning permission.
33. That it can be so applied is plain from the policy's context and purpose. Its context is a chapter of the NPPF whose objectives, as stated in the chapter heading, are "Conserving and enhancing the natural environment". The central aim of the policies in that chapter, stated in paragraph 170, is "protecting and enhancing valued landscapes", including those in AONBs. This is consistent with the statutory obligation in section 85(1) of the Countryside and Rights of Way Act to "have regard to the purpose of conserving and enhancing the natural beauty of the [AONB]". Paragraph 172 itself is in terms that stress the imperative of protection. Emphasis is placed on "conserving", as well as "enhancing", an AONB's landscape and scenic beauty. AONBs are described there as having "the highest status of protection in relation to these issues", and the "scale and extent of development" within them and the other designated areas, the policy says, "should be limited".
34. I accept Mr Moules' submission that the language of the first part of paragraph 172, read in that context and in the light of that purpose, can perfectly well found a "clear reason for [refusal]", in accordance with paragraph 11d)i. It embodies the principle that decisions on applications for planning permission, as well as policies in development plans, should work to "[conserve and enhance] landscape and scenic beauty" in AONBs, so that in a relevant case, when the policy is applied, a balance will be struck in which appropriate weight is given to any conflict with that objective, and in striking the balance the decision-maker will have in mind the need to protect the AONB and to limit the scale and extent of development within it. In doing this, the decision-maker will have to exercise planning judgment. The application of the policy necessarily involves a balancing exercise in which any harmful effects of the proposed development on the AONB are given due weight, having regard to what the policy says, and any benefits of the proposal are set against them, leading to a conclusion, as a matter of planning judgment, on whether there is a "clear reason for refusing the development proposed". If there are no benefits to set against the harm to the AONB, or if there are benefits but they are insufficient to outweigh the harm, the decision-maker might properly conclude that the "application" of the policy does indeed provide "a clear reason for refusing the development proposed".
35. I see nothing at odds with this understanding of the first part of paragraph 172 in the inspector's relevant conclusions here. He discerned the true meaning of the policy, rightly applied it under paragraph 11d)i, and conducted an impeccable balancing exercise, setting benefit against harm. His conclusions demonstrate a lawful application of the policies in both of those passages of the NPPF, consistent with their correct interpretation, and fully in compliance with the statutory requirements for decision-making in section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. And that is enough to dispose of Monkhill's appeal.
36. If the interpretation urged on us by Mr Banner were right, it would, in my view, produce a result incompatible with the objectives of paragraphs 11 and 172, read together. As Mr Moules submitted, it would prevent the policy in paragraph 172 being given its full potential effect under the policy in paragraph 11d). Here again I agree with the judge's analysis.
37. The "tilted balance", or positive presumption, under paragraph 11d)ii is not available in every case where there are "no relevant policies" of the development plan or the "most important policies" in the plan are "out-of-date". It is deliberately disapplied in the situation provided for in paragraph 11d)i, where policies of the NPPF that "protect areas or assets of particular importance" – the footnote 6 policies – are engaged, applied and found to justify planning permission being withheld (see the first instance judgment in Forest of Dean District Council v Secretary of State for Communities and Local Government [2016] PTSR 1031, at paragraph 28). Otherwise, the "tilted balance" could work against the protection afforded by those policies and undermine them. This would not only be hostile to the evident objective of the policy in paragraph 11d)i. It would also be inimical to the explicit strategy of the NPPF itself for "sustainable development".
38. Under paragraph 11d)i, it is not enough that a footnote 6 policy, restrictive of development, is engaged. The policy in question must actually be applied (see R. (on the application of Watermead Parish Council) v Aylesbury Vale District Council [2018] PTSR 43, at paragraph 45, and East Staffordshire Borough Council, at paragraph 22(2)), and its application must provide a "clear reason for [refusal]". Only then will the "tilted balance" under paragraph 11d)ii be disapplied by the operation of paragraph 11d)i. If the policy in paragraph 11d)i is to be operated effectively, it is therefore essential that policies referred to in footnote 6 are not artificially excluded in the absence of clear words with that effect.
39. That, however, would seem to be a consequence of Mr Banner's suggested interpretation of the first part of paragraph 172. Mr Banner's construction would create a distinction with artificial consequences between proposals for "major development" in an AONB, judged by the approach referred to in footnote 55, and proposals not in that category. The consequence would be that proposals for less than "major development" could only be subject to the "tilted balance" under paragraph 11d)ii. The application of the "tilted balance" under paragraph 11d)ii could depend on the decision-maker's finding on the question of whether the proposal was or was not for "major development". Despite AONBs having the "highest status of protection" under the policies in paragraphs 170 and 172, proposed development in an AONB that was not "major", and regardless of the level of harm, would not be subject to the exercise required under paragraph 11d)i. Such proposals would enjoy the application of the positive presumption under paragraph 11d)ii. To this extent, the protection given to AONBs by government policy would be weakened.
40. As Mr Moules submitted, it makes no sense to read paragraph 172 as confining the possible disapplication of the "tilted balance" under paragraph 11d)ii to "major development". The range in scale of development that might be proposed in an AONB runs from the very small to the very large. The interpretation of the policy in paragraph 172 that I believe is correct allows for the policy it contains to be applied realistically to the whole range of proposals, giving suitable weight to any harm to the AONB on the facts of the case in hand. It avoids a stark divide in policy treatment between two similar proposals on either side of the line – wherever it happens to be – between "major" and non-"major", one gaining the application of the "tilted balance" under paragraph 11d)ii, the other not.
41. Though there are differences of degree and language, there is no material distinction between the protective nature of the policy in the first part of paragraph 172 and the other policies in the NPPF whose application ... is capable of providing a "clear reason for [refusal]" so as to come within the scope of paragraph 11d)i. I do not accept that a material distinction arises from the absence of a clearly stated criterion or requirement against which a proposal must be judged. And there is no other material difference, in principle, between the various policies gathered in footnote 6. What they have in common is that they are all policies of protection for selected interests of "particular importance", even though, individually, they differ in the strength of that protection. There is no single formula used in them all."