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Judge warns against legalistic interpretation of the NPPF

A High Court judge has warned against attempts to make excessively legalistic interpretations of the National Planning Policy Framework (NPPF) in disputes over grants of planning permission.

Mr Justice Holgate found against developer Monkhill and in favour of both Waverley Borough Council and the secretary of state for housing, communities and local government in a dispute over a proposed development near Haslemere, Surrey. (Monkhill Ltd v Secretary of State for Housing, Communities And Local Government [2019] EWHC 1993 (Admin))

He said though the case had raised important issues about the interpretation of the presumption in favour of sustainable development for decision-taking in paragraph 11(d) of the NPPF.

In this case this concerned how paragraph 11(d)(i) should be interpreted so as to determine which policies in the NPPF fall within its scope, and the interpretation of paragraph 172 in relation to development in an area of outstanding natural beauty (AONB) or national park.

Paragraph 11 concerns the NPPF’s presumption in favour of sustainable development.

Monkhill sought to change the use of Longdene House from offices to residential, creating a new dwelling, and to build 28 homes in its grounds. Almost all the area involved fell within an AONB and the remainder in an area of deemed of great landscape value.

After Waverley rejected the scheme it was heard by a planning inspector on appeal, who concluded the scope for siting dwellings to minimise the potential harm to nearby trees would be limited and in the long term there was likely to be further harm through pressure from future occupiers of the proposed development to cut or lop trees to overcome adverse impacts on residential amenity.

The inspector also referred to concerns about the urbanising impact of the proposed cul-de-sac development, and judged the proposed road configuration would not accord with its location within the setting of a former country house in the AONB.

He concluded: “I find that the scheme would have an adverse effect on the landscape character of the area, not just for the site itself, of major significance.”

Holgate J said arguments put to him about misinterpretation of parts of the NPPF were “far too legalistic and fail to interpret the NPPF in a practical, straight forward way capable of being operated by decision-makers up and down the country”.

He said paragraph 172 pointed out that national parks, the Norfolk Broads and AONBs have the highest status of protection in relation enhancement of landscapes and scenic beauty.

“Not surprisingly, therefore, paragraph 172 requires ‘great weight’ to be given to those matters,” the judge said. “The clear and obvious implication is that if a proposal harms these objectives, great weight should be given to the decision-maker's assessment of the nature and degree of harm. The policy increases the weight to be given to that harm.”

He added: “Interpreted in that straightforward, practical way, the first part of paragraph 172 of the NPPF is capable of sustaining a clear reason for refusal.”

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