• Issue 39

  • Aug 2018

The Source

GUEST EDITORIAL

Valued Landscapes – A Legal Perspective

Valued landscapes” have become a frequent and significant feature in planning decision making since the advent of the original National Planning Policy Framework (“NPPF1”) in 2012. It has become an issue which has been canvassed with greater force by some authorities and objectors who contended that any such designation would have a material bearing on the outcome of any decision on any given proposal, particularly as it was suggested that the “tilted balance” in favour of sustainable development would not be engaged if a development proposal affected a valued landscape.

NPPF1

  • Although now superseded by NPPF2 a number of the decisions based upon NPPF1 are likely to remain relevant in the context of decisions to be taken under NPPF2.
  • NPPF1 represented something of a departure from earlier policy. Paragraph 17 (bullet point 5) provided, as one of the 12 core planning principles, that planning should “take account of the different roles and character of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them, recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it; …”.
  • Section 11 of NPPF1 dealt with “conserving and enhancing the natural environment”. Within that paragraph 109 provided “The planning system should contribute to and enhance the natural and local environment by:
  • Protecting and enhancing valued landscapes, geological conservation interests and soils; …
  • Paragraph 113 of NPPF1 provided “Local planning authorities should set criteria based policies against which proposals for any development on or affecting protected wildlife or geodiversity sites or landscape areas will be judged. Distinctions should be made between the hierarchy of international, national and locally designated sites,[1] so that protection is commensurate with their status and gives appropriate weight to their importance and the contribution that they make to wider ecological networks”.
  • Hence, the concept of a “valued landscape” was a novel creature of planning policy contained in NPPF1 and now NPPF2. One may have anticipated that it would be defined in the glossary to those documents.  It wasn’t in either NPPF1 nor NPPF2.  Nor is any assistance given in the PPG.

The Stroud Case

  • The Stroud case[2] involved a challenge by Stroud DC against the decision of an Inspector to grant permission for 150 houses on land at Leonard Stanley. The site was located only around 150m from the boundary of the Cotswolds AONB and three footpaths crossed the site, one of which led up to the Cotswold Way.  The Council sought to contend that the site represented “a valued landscape” for the purposes of paragraph 109 of NPPF1.  The Inspector concluded that the site had no “demonstrable physical attributes” to justify it being considered a “valued landscape” for the purposes of paragraph 109 of NPPF1.  The Council challenged that view in the High Court and Ouseley J rejected the challenge and upheld the Inspector’s reasoning.
  • In Forest of Dean[3] the Council considered that they were aggrieved by a decision granting permission for some 95 dwellings near Tutshill in Gloucestershire and contended that the Inspector had erred by equating “valued landscape” with a landscape that is designated to have a particular landscape quality.
  • The Secretary of State agreed that the Inspector had erred but sought to contend that the error would have made no difference to the Inspector’s decision. However, the developer, Gladman, contended that the Inspector had not erred but that, properly read, the Inspector found the landscape not to be “valued” because it lacked the necessary attributes and approached the issue of valued landscape correctly.  Looked at as a whole, the Inspector’s analysis and description of the site (and his assessment of it) indicated that he was properly looking for something with particular attributes that took it out of the category of ordinary countryside.
  • The forensic disinterring of the Inspector’s (albeit unhappy) reference to a designation in the local plan did not avail the Council. The challenge was rejected.
  • So, is it just the site itself, that comprises a valued landscape or does it extend to a wider area within which the site is situate, or upon which the site (whether developed or undeveloped) exerts an influence?
  • Paragraph 109 of NPPF1 does not indicate that any evaluation is limited only to the site itself[4]. Nor does NPPF2, paragraph 170(a). Instead, it is necessary to approach the matter practically recognising that it is, ultimately, a matter of planning judgement for the decision maker.  However, unless a site really does represent a pretty secluded and discrete parcel of land it would perhaps seem hard to simply divorce it from its surrounding landscape for the purposes of carrying out any assessment[5].

(1) What if the site itself represents a valued landscape but the surrounding landscape does not? 

  • It seems to me that if the site contains demonstrable physical attributes of the sort identified in the Leonard Stanley DL, and endorsed by the High Court in Stroud, then the judgement may properly be made that it represents a valued landscape. It is, after all, a question of judgement.
  • Sometimes sites are undesignated for some historical planning reasons, despite their quality. In the Leckhampton DL the Inspector recorded his view of the site in question as being a “mosaic of land uses, varied typography, landscape history, dense network of footpaths, small to medium sized fields, mature vegetation, established hedgerows, isolated specimen trees, orchard remnants, streams and frequent glimpses of or views to the AONB which combine to make the whole of this site a memorable landscape[6].

(2) What if the site itself does not represent a valued landscape but it forms part of a wider parcel that does? 

  • Once again, it is a matter of judgement for the decision maker, but it would appear counterintuitive as a mater of logic (if not judgement) to elevate the value of a particular parcel above ordinary landscape simply because there are surrounding areas that are of elevated value. That said, if the site in question represents an integral part of a larger area or formed part of a mosaic of features which are of value then such a view may well be sustainable.
  • However, such an evaluation would have to be clearly set out in a decision maker’s reasons as to why a site (which itself did not have demonstrable physical attributes) nonetheless formed part of a wider valued landscape.
  • Something of the sort arose in CEG Land Promotions II Limited v Secretary of State HCLG and Aylesbury Vale DC [2018] EWHC 1799 (Admin) Ouseley J had the opportunity to revisit the issue of valued landscapes in context of a section 288 challenge by a disappointed appellant. He upheld an Inspector’s assessment that “to require the small site itself to demonstrate the physical features in order to qualify as a valued landscape seems to me to be a formulaic, literal approach to the interpretation of the question and an approach which could lead to anomalies. It could lead to individual parcels of land being examined for physical characteristics deterministic of value.  Adjoining parcels of land could be categorised as valued landscapes and “not valued landscapes” on this basis…[7].
  • This confirms that an overly narrow assessment of value limited only to the site itself is not necessarily what paragraph 109 of NPPF1 was seeking to provide for.

(3) Does anything turn upon a decision as to whether a landscape is or is not a “valued landscape”? 

  • In the case of Gladman Developments v Secretary of State and Aylesbury Vale District Council[8], in consenting to judgment in respect of appeal decision, the Secretary of State explicitly conceded that the Inspector erred in his interpretation of NPPF1 in that he found that the first bullet point of paragraph 109 was a restrictive policy.
  • Hence, a finding of a landscape being a valued landscape is not in itself determinative of whether the tilted balance is engaged or disengaged.
  • That said, a finding that a site is a valued landscape nonetheless indicates that weight still can be attributed to that factor in the decision making balance. As we are aware, weight is a matter for the decision maker (and with which the Courts will not interfere save in the rather extraordinary position of Wednesbury unreasonableness).  Indeed, whether or not a landscape is considered to be valued or not would not prevent an Inspector from concluding that the landscape impacts of development are such that permission ought to be refused.

 NPPF2

  • The Secretary of State revised NPPF1 in July 2018. Chapter 15 deals with “conserving and enhancing the natural environment”.
  • Paragraph 170, so far as is relevant, provides “planning policies and decisions should contribute to and enhance the natural and local environment by:

 a) Protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils (in a manner commensurate with their statutory status or identified quality in the development plan)

b) Recognising the intrinsic character and beauty of the countryside, and the wider benefits from natural, capital and ecosystem services – including the economic and other benefits of the best and most versatile agricultural land and of trees and woodland;…

  • Perhaps of more significance is the revision to the new paragraph 11 (replacing paragraph 14) which now contains an exhaustive (rather than a non-exhaustive) list of “policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed”. These are set out in Footnote 6 and whilst it does include, among other things, AONBs, National Parks, the Broads and Heritage Coast, it does not include valued landscapes.  That is to be entirely consistent with the approach that the Secretary of State has most recently adopted both in decision letters and in Aylesbury Vale case[9].

Conclusions

  • Valued landscapes are those which have demonstrable physical attributes which take it beyond mere countryside. By definition, they are unlikely to be the subject of any designation, whether local or national, though it does not mean that locally designated landscapes could not also be characterised as valued.
  • Even if it is found that a landscape is valued for the purposes of paragraph 170 a) (previously paragraph 109) it would appear that it should not be regarded as a landscape that would preclude the operation of the tilted balance under paragraph 11 of NPPF2.
  • However, if a landscape is considered to be valued there must clearly be a prospect that an Inspector may attribute weight to it given that the operation of NPPF1 (and now NPPF2) does not mean that countryside is without protection[10].

 

[1] Circular 06/2005 provides further guidance in respect of statutory obligations for biodiversity and geological conservation and their impact within the planning system.
[2] Stroud DC v Secretary of State and Gladman Developments Limited [2015] EWHC 488 (Admin)
[3] Forest of Dean District Council v Secretary of State and Gladman Developments [2016] EWHC 2429 (Admin)
[4] In short it doesn’t tell you very much by way of definition or scope of any assessment.
[5] See CEG case below
[6] DL para 258
[7] Decision letter paragraph 65.
[8] CO/661/2018
[9] See above
[10] See observations of Gilbart J in Cawrey v Secretary of State [2016] EWHC 1198 (Admin) at paragraphs 49 and 50

 

Peter Goatley, Barrister

No5 Chambers

https://www.no5.com/