Valued Landscapes – A Legal Perspective

Tue, 03 Jul 2018

Peter Goatley, Planning and Environment Group

Introduction

“Valued landscapes” have become a frequent and significant feature in planning decision making since the advent of the National Planning Policy Framework (the “NPPF”).

Previous Policy

1. Part of the reason for this is, that prior to the NPPF, planning policy was directed to “protecting and enhancing the natural and historic environment, the quality and character of the countryside…”[1] and with the objective of the “continued protection of the open countryside for the benefit of all, with the highest level of protection for our most valued landscape and environmental resources”[2] with “the Government’s overall aim is to protect the countryside for the sake of its intrinsic character and beauty, the diversity of its landscapes…”[3]. 

1. This general restriction on development in the countryside was reinforced in PPS 7 paragraph 15, but with a noted differentiation between national landscape designations (such as National Parks and AONB) and local landscape designations.  In respect of those it was said “the Government recognises and accepts that there are areas of landscape outside nationally designated areas that are particularly highly valued locally”[4] but the Government favoured criteria-based policies such as Landscape Character Assessment without the need for rigid local designations.

1. This followed the previous approach in earlier Government guidance in PPG1 and PPG7 which again looked to protect and enhance the countryside for its own sake by reason of its intrinsic beauty. 

The NPPF

1. The NPPF represented something of a departure from that.  Paragraph 17 (bullet point 5) provides, 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; …”. 

1. Section 11 of the NPPF deals with “conserving and enhancing the natural environment”.

1. Paragraph 109 provides “The planning system should contribute to and enhance the natural and local environment by:

• Protecting and enhancing valued landscapes, geological conservation interests and soils; …”

1. Paragraph 113 of the NPF provides “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,[5] 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”.

1. Paragraph 114 deals with a positive approach to networks of biodiversity and green infrastructure and the maintenance of “the character of the undeveloped coast, protecting and enhancing its distinctive landscapes, particularly in areas defined as Heritage Coast, and improve public access and enjoyment of the coast”.

1. Paragraph 115 and 116 of the NPPF deal with the areas having the highest status of protection in relation to landscape and scenic beauty, namely the National Parks, the Broads and Areas of Outstanding Natural Beauty.  Paragraph 115 indicates that “great weight should be given to conserving landscape and scenic beauty” in these areas.  Paragraph 116 indicates the high level of constraint in such designated areas in that “planning permission should be refused for major developments” in them “except in exceptional circumstances and where it can be demonstrated that they are in the public interest”.  Even then, that is then subject to three deliberately highly restrictive criteria before such development is allowed to proceed.

1. Hence, the concept of a “valued landscape” is a novel creature of planning policy contained in the NPPF.  One may have anticipated that it would be defined in the glossary to that document.  It is not.  Nor is any assistance given in the PPG.  It too is silent in providing any greater guidance let alone any specificity as to what a valued landscape comprises.

1. Hence it has been left to case law to describe its essential features.

The Stroud case

1. The Stroud case[6] 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.  The Council sought to contend that the site represented “a valued landscape” for the purposes of paragraph 109 of the NPPF.  Having heard the evidence of expert landscape architects appearing on behalf of both the Appellant and the Council the Inspector rejected that view and said that the site had no “demonstrable physical attributes” to justify it being considered a “valued landscape” for the purposes of paragraph 109 of the NPPF.  The Council challenged that view in the High Court and Ouseley J rejected the challenge in the following terms:

“It is then said that the land represents a wedge of countryside extending right into the hearts of the settlement.  But that issue itself was considered in relation to coalescence.  It is a feature of the land but it is impossible to see that the Inspector would not have had that aspect in mind if he thought it was something that demonstrated its attributes.  It was crisscrossed by well used public footpaths and from those public footpaths it is evident that you can see the escarpment of the Cotswolds AONB and that the housing development on the site was going to impose considerable limitations.  But the Inspector was entitled to regard that sort of factor as falling below the level required for demonstrable physical attributes in order for countryside to be "valued" but not designated countryside.  The Inspector did not specifically refer to those factors in this context but I have no doubt that in paragraph 18, in his description of demonstrable physical attributes needing to be shown rather than just popularity, he was not remotely persuaded that the points made by Ms Kirby demonstrated that it had attributes that took it out of the ordinary, but did not warrant formal policy designation”.

1. It may be noted that the Secretary of State had elected to consent to judgment and did not contest that hearing.  It was left to the Appellant developer to uphold the Inspector’s decision letter which, Ouseley J, duly did.  The judgment is significant in a number of respects and would repay careful reading.  Part of the argument raised by the Council was that the Inspector appeared “to have equiparated valued landscape with designated landscape”.  Had the Judge considered that the Inspector had concluded that designation was the same as valued landscape he would have fallen into error.  As the Judge went on “The NPPF is clear: designation is used when designation is meant and valued is used when valued is meant and the two words are not the same”.  Hence, what was described as “a verbal infelicity” did not indicate that an unlawful approach had been adopted by the Inspector.  Paragraph 16 of the judgment gives further guidance:

“It is not difficult to see that the sort of demonstrable physical attributes which would take this site beyond mere countryside, if I can put it that way but into something below that which was designated had not been made out in the Inspector’s mind”.  

1. Often sites which are described as “valued landscapes” are not themselves repositories of demonstrable physical attributes but may be near designated landscapes.  As is clear from the earlier paragraphs introducing this decision, the Leonard Stanley site was only 150m from the Cotswolds AONB.  One argument related to views from the AONB looking out and views out looking towards the AONB.  Paragraph 22 of the judgment is notable:

“In my judgment, the Inspector would have been unrealistic in adopting so narrow a view as to ignore for the purposes of paragraph 115 views out of the AONB and the effect of development upon them.  I do not find it easy to accept that those have the same policy significance as views into the AONB from outside.  It seems to me that there is a very considerable distinction to be drawn between the two.  Before I reach the final conclusion on that point, however, I should refer to other policy matters in relation to that point”.

1. The point is ultimately answered in paragraph 26 of the judgement:

“So the question is whether on the proper interpretation of paragraph 115 views of the AONB from outside the AONB fall within its scope.  It is my judgment that that is not what policy 115 is intended to cover.  It certainly covers the impact on the scenic beauty of the land actually within the AONB.  It seems to me that it would be unduly restrictive to say that it could not cover the impact of land viewed in conjunction with the AONB from the AONB.  But to go so far as to say that it must also cover land from which the AONB can be seen and great weight must be given to the conservation of beauty in the AONB by reference to that impact reads too much into paragraph 115.  The effect of Miss Wigley's approach would be to give very widespread protection to land outside the AONB and not significant in views from the AONB.  The Inspector noted that almost everywhere in Stroud District would fall into that category.  That could not be, in my judgment, the correct interpretation of paragraph 115, and the word "in"   If there was an error by the Inspector, it was an error against Mr Goatley rather than an error against Miss Wigley”.

1. It may appear that certain Gloucestershire councils have something of a predilection for seeking to challenge decisions granting planning permission upon this ground. 

1. In Forest of Dean[7] 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. 

1. 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. 

1. 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.  That said, it is clearly desirable if the Inspector deals with the issue of demonstrable physical attributes and does not appear to conflate it with issues of any form of local designation, whether in a development plan or otherwise. 

1. So what else may be relevant to the consideration of whether a landscape is a valued landscape?

1. As was explored during the Leonard Stanley[8] inquiry, and thereafter in Stroud and Forest of Dean, the landscape architects’ assessment utilised Box 5.1 of the Guidelines for Landscape and Visual Impact Assessment (3^rd edition) issued by the Landscape Institute. 

1. Box 5.1 sets out a “range of factors that can help in the identification of valued landscapes”.  It should be noted that this was not drawn up in context of seeking to define the NPPF.  Instead, without seeking to provide an exclusive definition, the Box identifies 8 features: landscape quality (condition), scenic quality, rarity, representativeness, conservation interests, recreational value, perceptual aspects and associations. 

1. Whilst it has been utilised by Inspectors in decision letters such as Leonard Stanley (Stroud), Spencer’s Wood[9], and Tutshill[10] among others, it is not slavishly adhered to.  It has nonetheless been referred to by the Courts in cases such as Stroud, Cheshire East[11], Forest of Dean and Cawrey[12].  For obvious reasons, none as such seek to endorse it as being definitive though it has clearly been helpfully indicative of the sort of considerations that Inspectors have considered for the purposes of making the judgement that a proposed development does or does not comprise a valued landscape within the terms of paragraph 109. 

1. However, the issue does not end there.  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?

1. This has yet to be the subject of authoritative determination in the Courts but there are a number of appeal decisions (such as Wendover[13]) which have, as a matter of planning judgement, rejected a narrow view, namely that the determination is restricted only to the site itself.  The circumstances in Stroud related to a challenge on the basis that the site represented a valued landscape.  Similarly, in Tutshill.  However, the evidence upon which the Inspectors have proceeded involved an evaluation of land simply beyond the site itself. 

1. Further, paragraph 109 does not indicate that any evaluation is limited only to the site itself[14].  Instead, it is necessary to approach the matter practically. 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 divorce it from its surrounding landscape for the purposes of carrying out any assessment.

1. However, that begs a series of further questions, none of which have authoritatively been determined by the Courts. 

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

1. 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.  However, if it really were so different from the surrounding landscape it may appear somewhat curious for the purposes of representing “representativeness” pursuant to Box 5.1 of GLVIA(3).  

1. 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”[15].

1. Leading Counsel for the Appellant quoted Oscar Wilde’s dictum “We are all in the gutter, but some of us are looking at the stars” so as to suggest that because a landscape of stellar quality (the AONB) can be seen from the site does not make the site itself stellar.  It may be observed that the Inspector, rather acidly, stated in his report, “That may be true, but this site is no gutter”. 

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

1. 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 just 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 (see Linford Lakes DL[16]).  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.  Perhaps that may be the subject of future litigation if a decision were said to turn upon such a judgement. 

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

1. As we know from earlier court judgements in context of the thorny issue of housing land supply (Huntston[17], Gallagher[18]) the process of condensing 1,000 or more pages of policy into 56 pages of the NPPF was not without its difficulty in providing clear policy guidance to decision makers.  It was perhaps for that reason that the more than 1,000 pages of the Planning Practice Guidance was issued to sit alongside the NPPF.  The Secretary of State may think that the PPG is mere guidance and the NPPF is policy and that there is something which turns on the distinction between the two.  The Courts have been rather less than convinced by the significance of the distinction between the two. Sir David Keene said in Hunston:

“4. The Framework was published by the Government in order to set out its planning policies for England, so as to give guidance to local planning authorities and other decision-makers in the planning system.  It was seen by the Minister for Planning as simplifying national planning guidance “by replacing over a thousand pages of national policy with around fifty, written simply and clearly.”   Unhappily, as this case demonstrates, the process of simplification has in certain instances led to a diminution in clarity.  It will be necessary to set out the working of paragraph 47 of the Framework very soon in this judgment.  I have to say that I have not found arriving at “a definitive answer” to the interpretative problem an easy task, because of ambiguity in the drafting.  In such a situation, where one is concerned with non-statutory policy guidance issued by the Secretary of State, it would seem sensible for the Secretary of State to review and clarify what his policy is intended to mean”.

1. What we do know is that paragraph 14 of the NPPF sets out the following tests:

14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking. For plan-making this means that:

• local planning authorities should positively seek opportunities to meet the development needs of their area;
• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
• specific policies in this Framework indicate development should be restricted. 9 ^{For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion.}

For decision-taking this means: 10 ^{Unless material considerations indicate otherwise.}

• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
• specific policies in this Framework indicate development should be restricted.⁹

1. Footnote 9 contains a non-exhaustive list of circumstances in which development should be restricted.  It does not include valued landscapes.  Instead, it makes reference to, so far as is relevant, AONBs, Heritage Coasts or National Parks. 

1. In the Leckhampton[19] decision the Secretary of State, in accepting the Inspector’s recommendation, concluded that valued landscapes did represent a footnote 9 restriction such that the tilted balance would not be engaged even in circumstances where there was a shortfall in housing land supply.  It would appear that no longer represents the Secretary of State’s interpretation of such matters in that in the Highthorn[20] decision letter (paragraph 43) the Secretary of State agreed that the site was a valued landscape but disagreed with the interpretation that it was a restrictive policy within the terms of paragraph 14 of the NPPF.  He went on:

“On the natural meaning of the words in paragraph 109 it is not a specific policy indicating that development should be restricted; rather it is a general paragraph which sets out the higher-order priorities of the planning system.  As such, paragraph 109 does not impose a restriction on the principle of development.  However, on the ordinary reading of the words, the Secretary of State agrees with the Inspector (IRC139) that paragraph 149 is a restriction on development in principle and a specific policy which could indicate that development should be restricted for the purposes of paragraph 14…”. 

1. Indeed, in the case of Gladman Developments v Secretary of State and Aylesbury Vale District Council[21], in consenting to judgement in respect of appeal decision 3170854, the Secretary of State explicitly conceded that the Inspector erred in his interpretation of the NPPF in that he found that the first bullet point of paragraph 109 was a restrictive policy, pursuant to the second indent of paragraph 14 and footnote 9 of the Framework.

1. Hence, a finding of a landscape being a valued landscape is not in itself determinative of whether the tilted balance is engaged or disengaged. 

1. So much would appear also to be consistent with the views of Lindblom LJ in Preston New Road Action Group v Secretary of State CLG and others [2018] EWCA Civ 9:

“36.     Dr Wolfe’s argument here was similar to his submissions on the previous issue. He submitted that the inspector and the Secretary of State adopted an incorrect interpretation of the policy in the first bullet point in paragraph 109 of the NPPF. The use of the concept of harm in “the long-term” to modify the simple and unqualified terms of the policy for the protection and enhancement of “valued landscapes” in paragraph 109 was, he said, unjustified. There was no such “temporal” restriction. Any harm to such a landscape, of whatever duration, was necessarily a breach of the policy. Having concluded in paragraph 12.154 of her report that there would be “an adverse impact” on a locally “valued” landscape, the inspector ought to have concluded that the proposals were in conflict with the policy. In not doing so, she erred in law.

37.       Dove J. rejected that argument. Having in mind Lord Clyde’s observations on the wide, strategic purpose of national planning policy in his speech in R. (on the application of Alconbury Developments Ltd.) v Secretary of State for the Environment Transport and the Regions [2001] UKHL 23, [2001] 2 A.C. 295 (at paragraph 140), he concluded that the policy for “protecting and enhancing valued landscapes” in paragraph 109 of the NPPF was “to be … understood as a high-order strategic objective of the planning system as a whole”, to be achieved by means of “the planning policies which address the appraisal of landscape impact in the context of particular kinds of development”. It was not to be interpreted “as providing that any harm, including temporary harm other than for a wholly insignificant or de minimis period, is a breach of [it]”. It “calls for an overall assessment of harm to the landscape, including short-term and any longer-term resolution of that harm and beneficial effects, in order to reach a planning judgment … as to whether or not the valued landscape has been protected and enhanced” (paragraph 92). The inspector had “properly understood and interpreted” the policy in her conclusion in paragraph 12.154, and so had the Secretary of State in accepting that conclusion (paragraph 94)”.

1. Lindblom LJ then made quite a telling conclusion as to the context for consideration of “valued landscapes”:

“39.     Paragraph 109 of the NPPF is a broad statement of national planning policy for the “natural and local environment”. The introductory words declare what the “planning system” should do – that it “should contribute to and enhance the natural and local environment”. The objective with which we are concerned is also expressed in general terms – “protecting and enhancing valued landscapes”. The means by which the planning system is to achieve that objective are not stated. But the two ways in which it obviously might do so are plan-making and the determination of planning applications and appeals in accordance with the relevant provisions of the development plan (unless material considerations indicate otherwise). As Lord Clyde said in Alconbury (in paragraph 140 of his speech), “[national] planning guidance can be prepared and promulgated and that guidance will influence the local development plans and policies which the planning authorities will use in resolving their own local problems”. This seems to me a good description of the policy in paragraph 109 of the NPPF. Dove J. recognized this”.

1. 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 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 and it would be incorrect to suggest that just because a landscape is neither valued or designated then it is without protection within the terms of the NPPF: see the judgment in Cawrey v Secretary of State [2016] EWHC 1198 (Admin) where Gilbart J opined that:

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