For planning professionals, recent cases have clarified the legal framework and Enhanced Duty in which they operate in regard to England’s Protected Landscapes.
The ‘enhanced duty’
The Levelling-up and Regeneration Act 2023 (LURA), specifically Section 245, has transformed the statutory duties on planning authorities when determining planning applications in National Parks and National Landscapes (AONBs). The duty has changed from one of merely, “having regard to”, the purposes of these designations to actively, “seeking to further” them.
There had been some debate as to what this ‘enhanced’ or ‘strengthened’ duty actually meant in practice, with Natural England (NE) suggesting that mitigation alone was insufficient and that planning authorities must pursue enhancements that aligned with landscape objectives. It was suggested that NE’s advice went beyond DEFRA’s advice on the same duty.
Some had suggested that the new duty presented a bar to development where the purposes of these protected landscapes were not furthered.
The Legal Cases
Two judgments at the High Court have now confirmed the proper interpretation of this duty. In New Forest National Park Authority v Secretary of State, Justice Mould clarified that the duty does not mandate fulfilment of the protected landscape purposes, but that authorities must show how they have considered and justified decisions that may conflict with them. It’s a verdict which emphasises the need for transparent reasoning when granting permissions that could undermine conservation objectives, but retains the planning balance.
In the second case (CPRE Kent v Secretary of State) Justice Mould examined the application of the duty in the context of a major housing development. Dismissing the challenge against the planning permission, he reinforced that the duty in respect of these protected landscapes was not a bar to development, and where the decision maker had properly considered the relevant tests considered then they will comply with the duty, even where some harm is caused.
The position remains, therefore that a planning judgment must be made and the new duty is not an overriding factor in the planning balance.
National Planning Policy Framework (NPPF)
The NPPF does offer guidance as to the application of the planning balance, stating that great weight should be given to conserving and enhancing landscape and scenic beauty in these protected landscapes. Of course, the NPPF also sets out that other factors should be given certain weight in the decision making process, so effects on protected landscape remain one of a number of factors to consider when deciding planning applications.
Conclusion
The new ‘enhanced’ duty is not a bar to development in National Parks and National Landscapes, but their protection remains a key issue in the determination of planning applications.
Most planning applications require a balance of a number of factors, and these two judgments confirm that the enhanced duty must be properly considered, but can be outweighed by other factors.
Next steps
If you would like to discuss how the enhanced duty may impact your planning application or appeal, please contact our Planning team today on 0345 450 5558 or enquiries@stephens-scown.co.uk