South Devon AONB Unit Protected Landscape specialist opinion on the application of paragraph 172 NPPF 2018 in respect of 3475/17/OPA Land South of Townstal Road, Dartmouth.
( Changes in wording of paragraph 172 NPPF 2018 see below )
Introduction
1. South Hams District Council Development Management requested that the South Devon AONB Unit prepare a protected landscape specialist opinion in respect of application 3475/17/OPA Land South of Townstal Rd and paragraph 172 NPPF 2018 in advance of obtaining a legal opinion from Counsel.
2. The following document summarises the AONB unit position and should be read in conjunction with: our consultation response dated 31 July 2018; the consultation response of SHDC Landscape Specialist dated 20th July 2018; the South Devon AONB Management Plan and its Planning Guidance Annex (Version 1, May 2017). This document addresses the following three matters: a. The South Devon AONB Unit opinion on interpretation and intent of paragraph 172 NPPF 2018 in the context of the revised framework and statute. b. South Devon AONB Unit protected landscape advice to SHDC on the circumstances of Land South of Townstal Road in the context of matter a. c. The South Devon AONB Unit view on the 15th August legal opinion provided by Clarke Wilmott on behalf of the 3475/17/OPA applicant in relation to paragraph 172 NPPF 2018.
Principal Issues for consideration
3. Given that there are notable deletions and additions to NPPF 2018 in comparison to the earlier NPPF 2012 version, the published 2018 framework text relating to Areas of Outstanding Natural Beauty (AONBs) raises a number of significant questions over meaning, intent and interpretation. Paragraph 172 of the revised framework together with footnote 55 are of particular interest in guiding decision-taking on major development that could impact the natural beauty of AONBs.
4. It is our understanding that as to date there is very limited planning case law directly related to the new framework, elements that have not markedly changed should be interpreted with relevant planning case law in mind connected to the previous version of the framework. However, where marked changes do occur, meaning, intent and consequent interpretation must be examined afresh.
5. Our analysis of the wording changes and the specificity of matters in footnote 55 in combination with the Government’s 25 Year Environment Plan and AONB statute leads to questioning whether a different interpretation of what constitutes paragraph 172 NPPF 2018 major development should now be applied, versus earlier para 116 NPPF 2012 major development.
6. Whilst we accept that changes to text in the paragraph in question and the introduction of footnote 55 have divided opinion over meaning and intent, we believe our interpretation is in line with the statute law on AONBs and therefore has merit in being considered.
Changes in wording of paragraph 172 NPPF 2018
115. 172. Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty these issues. The conservation and enhancement of wildlife and cultural heritage are also important considerations in all these areas, and should be given great weight in National Parks and the Broads.2554 The scale and extent of development within these designated areas should be limited. 116. Planning permission should be refused for major developments55 in these designated areas except other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of:
a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
b) the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and
c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.
55 For the purposes of paragraphs 172 and 173, whether a proposal is ‘major development’ is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined.
Our interpretation of paragraph 172 NPPF 2018
7. In NPPF 2012 the policy relating to AONBs was contained in paragraphs 115 and 116, with reference made to both paragraphs in footnote 9 to paragraph 14. The revised NPPF 2018 policy relating to AONBs is contained in paragraph 172 and its footnote 55, with reference made to it in footnote 6 to paragraph 11 (the equivalents of previous paragraph 14 and footnote 9).
8. The ambiguity regarding the interpretation of paragraph 172 arises from the facts that: (i) the revised equivalent first sentence of paragraph 116 now omits the explicit text “in these designated areas”; (ii) the two relevant NPPF 2012 paragraphs 115 and 116 are now contained in a single paragraph 172, being linked by a new sentence. This sentence reads: “The scale and extent of development within these designated areas should be limited.”; and (iii) the way to evaluate whether a proposal is ‘major development’ for the purposes of paragraphs 172 and 173 has changed, and has been set out for the first time in national planning policy in footnote 55. This approach is discrete from the definition of ‘major development’ to be used in the context of the rest of the Framework.
Each of these matters is addressed in detail below.
Matter i) omission of “in these designated areas” 9. Reproduced below are the relevant extracts of the two equivalent sentences, the original paragraph 116 (NPPF 2012) and the revised paragraph 172 (NPPF 2018).
“116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest.” (Underlining and emphasis added); and
“172. Planning permission should be refused for major development other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest.” (Underlining added).
10. One interpretation of the removal of the four words “in these designated areas” is that it brings the approach in the NPPF correctly in line with the s85 CROW Act statutory duty which applies to public bodies including local planning authorities taking planning decisions. The duty’s underlying legal principle places emphasis upon conserving and enhancing the natural beauty of an AONB and requires regard to be had during the exercise of a public body’s functions ‘in relation to’ or ‘so as to affect’ the natural beauty of an AONB. This clearly places the emphasis of the duty upon consideration of impacts on the natural beauty of an AONB, regardless of the location of the activity from which those impacts arise.
11. For completeness, section 85(1) of The Countryside and Rights of Way Act 2000 states: “In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty.” (Underlining added).
12. Therefore, granting permission for development occurring outside of the AONB which may affect it, is subject to the identical duty of regard as granting permission for developments within the AONB. It cannot reasonably be argued that some activities outside a designated area could not cause an impact inside a designated area.
Matter ii) merging of paragraphs 115 and 116, linked by the new sentence 13. The Courts and National Planning Practice Guidance confirmed that paragraph 115 is applicable to development both within and outside a designated area1 and to non-major and major development 2 and, to plan-making and decision-taking. Given the parity of substantive intent between paragraph 115 and the equivalent sentences of revised paragraph 172 there is no reason to consider that the case law does not continue to apply to 172.
14. Whereas, the Courts confirmed that paragraph 116 is confined to decision-taking. And, by its use of the phrase “in these designated areas” was clearly confined to developments in AONBs.
15. Therefore, the merging of paragraphs 115 and 116 has no bearing on the interpretation of 115’s application to development in and outside designated areas, nor to either paragraph’s application to plan-making or decision-taking, or to the scale of development that they apply to.
16. The new sentence inserted between old paragraphs 115 and 116 reads: “The scale and extent of development within these designated areas should be limited.” This wording can clearly apply to both major and non-major development, and to both plan-making as well as decision-taking. Given that the NPPF needs to be interpreted as a whole, support for this interpretation is found in the treatment of AONBs in paragraph 11, through the application of footnote 6. This means for plan-making AONBs are a matter which can restrict “…the overall scale, type or distribution of development within a plan area.” And, for decision-taking AONBs are matters that can restrict the presumption in favour of development. Neither plan-making nor decision-taking are limited to the consideration of major development.
17. Therefore, this new sentence does not indicate that the following sentences only apply to development in these designated areas, because it is clearly also relevant to plan-making and decision-taking and to both non-major and major development.
18. For the purpose of interpretation, the construction of paragraph 172 can be broken down into three distinct parts. The first part is the old paragraph 115 equivalent, which relates to planmaking and decision-taking, developments in and outside AONBs, and to major and non-major development. The second part, the new sentence, which relates to plan-making and decisiontaking, and major and non-major development. And finally, the third part, the old paragraph 116 which relates exclusively to decision-taking.
19. The only part of paragraph 172 which relates exclusively to decision-taking does not now state that it relates to development in an AONB.
Matter iii) evaluating whether a proposal is ‘major development’ for the purposes of paragraph 172 20. For the first time in the NPPF, major development is now defined. It has done so using two distinct approaches, one specifically for the purposes of paragraphs 172 and 173 and one for purposes other than paragraphs 172 and 173 (i.e. the rest of the Framework).
1 Stroud District Council v Secretary of State for Communities and Local Government & Gladman Developments Limited [2015]EWHC 488 (Admin), paragraph 26
2 National Planning Practice Guidance Paragraph: 005 Reference ID: 8-005-20140306 Revision date: 06 03 2014
21. For purposes other than paragraphs 172 and 173 there is a specific threshold based definition in the Annex 2 Glossary. Whereas, the approach to evaluate whether a development is major development for the purposes of paragraphs 172 and 173 is set out in footnote 55.
22. Footnote 55 states: “55 For the purposes of paragraphs 172 and 173, whether a proposal is for ‘major development’ is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined.”
23. Under this new and distinct approach ‘major development’ in relation to an AONB means development which could have a significant adverse impact on the conservation and enhancement of the natural beauty of that AONB.
24. As such the potential for significant adverse impacts on the natural beauty of the AONB should now be foremost to the evaluation of whether development is major or not. There is nothing inherent in the approach set out in footnote 55 that would mean it could not be applied to development both inside and outside an AONB. In fact, this would be in conformity with the section 85 CROW Act 2000 duty.
25. The legal purpose of AONBs is the conservation and enhancement of their natural beauty. This is much wider than the issues to be given great weight in the determination of applications, under paragraph 172. Therefore, when evaluating whether a proposal is major development, all aspects of natural beauty, not solely landscape and scenic beauty, are to be considered when screening for whether the development could have significant adverse impacts.
26. This screening does not require an in-depth consideration of whether the development will in fact have a significant adverse impact. Instead, the inclusion of “could” in footnote 55 requires a prima facie assessment of the potential for such an impact, taking into account the development’s nature, scale and setting is sufficient. Where a significant adverse impact cannot be confidently ruled out, the development should be treated as major.
Protected Landscape advice to SHDC in respect of 3475/17/OPA Land South of Townstal Rd
27. Given the above interpretation of para 172 and footnote 55 NPPF 2018, the following matters are considered to apply in this case:
28. The nature of the proposal:
• A large scale housing development, and public open space on an unallocated site of the adopted development plan, in an environmentally sensitive location that makes an important and substantial contribution to the natural beauty of the South Devon AONB;
• The introduction of development in an exposed location that breaches the skyline and extends a substantial distance down a steepening field system;
• The introduction of development that would occupy a site linked by topography and landscape with the rural coastal landscape of Stoke Fleming and Strete Parishes despite being of a form more associated with modern estate development on the outskirts of Dartmouth and Townstal;
• Development that would result in a marked change in character of the site from agricultural fields to uncharacteristic and extensive urban form;
• Development that would introduce an overly dominant urbanising character into a landscape that is fundamentally rural with coastal links;
• Site topography that results in significant levels of intervisibility with the AONB including close PROW views and middle distance views from a SW Coast Path vantage point;
• The main features of the development proposal which are likely to result in landscape and visual effects are: o change of use from arable/pastoral fields to a residential site; o introduction of buildings into publicly accessible views of the site; o hedge removal within the site; o site establishment, surface clearance and building activities during the construction; o occupational features of the completed development such as vehicle movements o and street lighting; and o the effects of proposed planting on landscape character and views.
• On site mitigation cannot fully obviate adverse impacts upon the natural beauty of the South Devon AONB
29. The scale of the proposal:
• a very large housing scheme in the context of the South Devon AONB, particularly this part of the AONB, spread across 6 fields;
• In combination impacts of this proposal with the previously consented Millwood Homes Phase 1 scheme immediately adjacent and north of this proposal site resulting in circa 400+ homes in total;
30. The setting of the development:
• The proposal is not topographically linked with Dartmouth, the Dart estuary or Townstal but the rural parishes of Stoke Fleming and Strete;
• The proposal site lies in close proximity to the South Devon Area of Outstanding Natural Beauty and the village of Stoke Fleming;
• The development could be perceived from within the AONB as Dartmouth town spilling out over the ridgeline into the neighbouring rural area irrevocably changing the character and tranquillity experienced within the AONB itself;
• The depth of the AONB in this part of the designated area is at its most narrow, being circa 1.3km wide along this coastal stretch. As such this section of the AONB is highly vulnerable to the impacts of large scale housing development within the AONB and its visual envelope. Substantive adverse change to the character of land to the north of Stoke Fleming bounded on two sides by land within the South Devon AONB is likely to affect perception of the natural beauty of the AONB itself through an awareness of the developments presence and out of character nature;
• Cumulative impacts of housing development throughout Stoke Fleming Parish.
31. Could the development impact the conservation and enhancement of the natural beauty of the South Devon AONB? Given the nature and scale of the proposed development, and the elevation of the site, there will inevitably be significant landscape and visual impacts resulting from the development, including impacts within the setting of the South Devon AONB that affect the natural beauty of the AONB itself.
Due to the open and elevated nature of the site, its clear visibility as a high quality, open agricultural landscape on a rolling plateau landform, and its consistency with the key characteristics and valued attributes of the area, the impacts of the development upon landscape character are considered to be significant and adverse. Due to the elevated and sloping nature of the site, these could not be fully mitigated. There would be a fundamental change to the undeveloped landscape quality of the area, a loss of landscape pattern, and an introduction of uncharacteristic urban form in a ridge-top location. The positive landscape characteristics would be overwhelmed by the scale and prominence of the development, resulting in a significant and clearly apparent change to the character of the area.
Impacts of this magnitude are considered highly likely to compromise the character, special qualities and natural beauty of the South Devon AONB
32. Could the development result in an adverse impact?
The proposed development could adversely impact the natural beauty, special qualities and distinctive character of the nearby South Devon AONB, specifically iconic wide panoramic views, tranquillity and the rural largely undeveloped countryside hinterland.
Adverse impact is considered highly likely to arise from the development upon the following Special Qualities that contribute to the natural beauty of the South Devon AONB:
• Iconic wide unspoilt expansive panoramic views;
• Deeply rural rolling patchwork agricultural landscape; and
• Areas of high tranquillity, natural nightscapes, distinctive natural soundscapes and visible movement.
• A variety in the setting to the AONB formed by the marine environment, Plymouth City, market and coastal towns, rural South Hams and southern Dartmoor.
Specific adverse impacts are considered to include the following:
• Large-scale development in this open location would erode rural character and intrude into open panoramic views valued in the AONB;
• Development on the open plateau areas of the site, and that “tipping” down the slopes to the south would be visually prominent across a large area, including the South Devon AONB, eroding tranquillity and the perception of a deeply rolling patchwork agricultural landscape;
• Dense mitigation planting used to screen development would significantly diverge from the simple, open, hedgerow bound field pattern characteristic of the area’s agricultural landscape;
• An extensive area of fields currently absent of lighting will become lit at night. Their prominence on the skyline and orientation toward the AONB will serve to further highlight the presence of lighting, eroding natural nightscapes and the dark night sky resource experienced from the AONB.
Whilst introducing strategic landscaping as indicated on the parameters plan for the proposal would diverge from the prevailing character, not doing so in the context of introducing a large area of built form would result in very substantial visual impacts. Any minor positive impact from strategic landscaping and Devon hedge condition improvements is however markedly outweighed by the unmitigable extensive change in overall character to urbanising built form that results in significant residual adverse impact.
33. Could the adverse impact be considered to be a significant adverse impact upon the conservation and enhancement of the natural beauty of the South Devon AONB?
Proposed mitigation in the form of lowering building density on the development’s southern edges, strategic landscaping and strengthening hedges to filter views of the development’s edges are important elements of mitigation yet result overall in a negligible effect upon lowering landscape and visual impacts or the significant adverse impacts upon the natural beauty of the South Devon AONB.
The underlying principle of AONB legislation and policy is that the natural beauty of land within the AONB should be conserved and enhanced regardless of where any effect upon it arises. In this case, accepting that this is an outline application only and despite the proposed mitigation, significant residual adverse impacts of the proposed development on the conservation and enhancement of natural beauty of the AONB could remain. As it cannot be confidently ruled out that the development could have a significant adverse impact upon the purpose for which the South Devon AONB has been designated, the development must be considered as para 172 NPPF 2018 major development. As such the three assessments as a minimum and two tests must be applied in the decision making.
South Devon AONB Unit response to specific points raised by Caroline Waller of Clarke Wilmott LLP
34. The opinion set out by Clarke Wilmot Solicitors in the letter dated 15th August 2018 is predicated on the premise that the whole of paragraph 172 relates solely to development in an AONB and concludes that to read that the disputed sentence in the same paragraph does not also only apply to development in a designated area is odd. This argument fails on the facts set out below.
(i) The proper context and application of paragraph 172 35. The main sentence that is disputed is “Planning permission should be refused for major development 55 other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest.”
36. The opinion assumes that: “In each of the three sentences preceding the sentence in question, it is made very clear that paragraph 172 relates to developments within National Parks, the Broads and Areas of Outstanding Natural Beauty.” (Underlining added).
37. For clarity the preceding three sentences are:
“Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to these issues. The conservation and enhancement of wildlife and cultural heritage are also important considerations in all these areas, and should be given great weight in National Parks and the Broads.
The scale and extent of development within these designated areas should be limited.”
38. It purports that the first three sentences of paragraph 172 refer only to development in an AONB and concludes that “it would be very odd if the following sentence in the same paragraph was intended to refer to development outside of the designated areas”.
39. The first sentence of paragraph 172 substantively reproduces the wording of paragraph 115 in the NPPF 2012. The two changes are:
(i) The “enhancement” of landscape and scenic beauty must now be given great weight in addition to the conservation of them; and (ii) the words “in relation to landscape and scenic beauty” have been replaced by “in relation to these issues”.
40. Change ii) is clearly for the purpose of brevity only, and has no effect on intent. Change i) alters the intent to conform more closely to the statutory duty towards AONBs which is to ‘conserve and enhance’, but does not alter its manner of application.
41. The application of paragraph 115 both in accepted practice and as tested and confirmed in the Courts is that the first sentence (the requirement to give great weight) applies to the determination of developments both within and outside an AONB, and to major and non-major development3 and also to plan-making.
42. Its substantive purpose is to conserve and, now since the revised NPPF also enhance, the landscape and scenic beauty in AONBs. This interpretation is entirely consistent with the statutory text of the ‘section 85 duty’ placed upon relevant authorities. This duty is set out below:
43. Section 85(1) of The Countryside and Rights of Way Act 2000 states:
“In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty.”
44. Additionally, the Government’s National Planning Practice Guidance (NPPG) clearly requires that great weight applies to developments outside AONBs, and relates this to the impact that such development can have on the designated purposes. It states that:
“The duty is relevant in considering development proposals that are situated outside National Park or Area of Outstanding Natural Beauty boundaries, but which might have an impact on the setting of, and implementation of, the statutory purposes of these protected areas.”4 45. The Government acknowledges in the NPPG that the section 85 duty to have regard also applies to development outside designated areas. To then interpret that the guidance on the level of weight to be given (set out in old paragraph 115 and now revised paragraph 172) regarding the
3 4 Planning Practice Guidance, Natural Environment (Landscape) section, paragraph reference ID 8-003-20140306 http://planningguidance.communities.gov.uk/blog/guidance/natural-environment/ exercise of that duty for planning functions, does not also apply outside designated areas would be absurd.
46. With regards to the fact that the NPPF policies must be given their common sense, natural language meaning, for the avoidance of any doubt, within the first sentence of paragraph 172 the word “in” clearly refers to the whereabouts of the landscape and scenic beauty. This is because the correct grammatical subject of the sentence is “landscape and scenic beauty”, the preposition word “in” and its complement nouns “National Parks, the Broads and [AONBs]” describe where the subject of the sentence is to be found. This is how the Courts have understood this policy. The subject of this sentence is not ‘development’ and so it cannot reasonably be interpreted as referring to the location of development.
47. The second sentence of paragraph 115 merely extends the issues, the conservation of which is important, to include wildlife and cultural heritage, and for National Parks and the Broads, requires that these issues also be given great weight. The only substantive change to this within the revised paragraph 172 is the addition of “enhancement” regarding wildlife and cultural heritage. Again, this change does not alter its manner of application.
48. The policy on AONBs was previously contained in two paragraphs, 115 and 116 of the NPPF 2012. Case law clearly confirmed that paragraph 115 applied to all development affecting an AONB, whether it was located inside or outside, or whether it was determined as non-major, or major. That the previously separate paragraphs now appear as one in the revised NPPF is not a valid argument for interpreting them as now only referring to development in an AONB.
49. The sentences following the disputed sentence certainly cannot imply that the whole of paragraph 172 applies only to development in an AONB merely because they now appear in the same paragraph as the old paragraph 115. This interpretation ignores the settled case law on paragraphs 115 and 116 (NPPF 2012), the NPPG and the statute law on AONBs.
50. Paragraph 172 b) “the cost of, and scope for, developing outside the designated area, or meeting the need in some other way;” in the light of the removal of the words “in these designated areas” from the disputed sentence and the new context under footnote 55 for evaluating whether development is major, can now be interpreted as applying to development inside and outside a designated area. Such that, for development inside an AONB its impact can be reduced either by i) locating it outside the AONB or ii) meeting the need in some other way. Whilst for developments outside an AONB its impact can be reduced by meeting the need for it in some other way. This sentence therefore does not help to elucidate whether this part of 172 applies only to development in an AONB.
51. With regards to the new sentence in paragraph 172, which now links together the paragraphs 115 and 116 (NPPF 2012) into revised paragraph 172, although it explicitly applies to development in a designated area, it applies, like the first two sentences to all scales of development (non-major and major development), and also to plan-making in addition to decision-taking. Therefore, to assume that the disputed sentence which follows it, applies only to development in a designated area is to deny that the new sentence also applies to planmaking and non-major development. To intend that only one of the characteristics of a sentence’s application, but not others, should be impliedly imported into the meaning of a following sentence seems peculiar and particularly unhelpful in terms of clarity. It would seem more appropriate to read these sentences as each having its own manner of application to be determined upon its own reading.
52. Finally, if the Government wished to be concise and if it had wished to change the meaning implied by the first sentence of paragraph 172 from that established for paragraph 115, to one in which it applies only to development in designated areas, it could have made the revision thus: Within National Parks, the Broads and Areas of Outstanding Natural Beauty the conservation and enhancement of landscape and scenic beauty should be given great weight. This wording would correspond to that used in paragraph 173 concerning Heritage Coasts. But it did not, and therefore it is reasonable to presume that it intends that equivalent sentences of revised paragraph 172 (which substantively reproduce those of paragraph 115) are to be read and understood in the same way as in the NPPF 2012.
Evaluating whether a development proposal is for para 172 major development 53. The opinion contends that if the disputed sentence is taken out of context, that is if the whole of paragraph 172 were not treated as relating to development in an AONB, this would mean that: “all applications for major developments, no matter how far away they are from the AONB, should be refused other than in exceptional circumstances. That cannot possibly have been the intention of this sentence.”
54. Firstly, the context within which the opinion sets out the disputed sentence is one in which the whole of paragraph 172 applies only to development in an AONB, and this assertion is clearly refuted by the case law.
55. Additionally, this statement is an oversimplification of the practical result that would follow from applying the disputed sentence in the way in which I suggest it should be interpreted. The disputed sentence cannot be correctly interpreted without reference to the context provided in its footnote 55 which sets out a special approach to evaluating whether a proposal is for ‘major development’ in relation to the application of the latter parts of paragraph 172.
56. Footnote 55 for paragraph 172 states:
“55 For the purposes of paragraphs 172 and 173, whether a proposal is for ‘major development’ is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined.” (Underlining added).
57. Key points to note with regards to correctly interpreting footnote 55 are that:
(iii) the term ‘setting’ here refers to that of the development, not of the designated area; (iv) the use of ‘could’ refers to a threshold of likelihood (not certainty) to trigger treatment as major; (v) ‘adverse’ impacts are the impacts in question, not whether the development will provide positive impacts; (vi) the impact threshold relates to those that could be ‘significant’; and (vii) impacts are to be defined and evaluated in relation to ‘the purposes for which the area has been designated’.
58. In this distinct approach to ‘major development’ described in footnote 55 the decision-taker is now formally directed to focus on the “nature, scale and setting” of the development and whether it“…could have a significant adverse impact on the impact on the purposes for which the area has been designated or defined.”. Whereas, under NPPF 2012 it had the discretion over the matters for consideration. Footnote 55 upholds the position that the protection of the designated must be at the heart of the evaluation of whether a development ought to be treated as ‘major.’
59. This approach does not require an in-depth consideration of whether the development will have such an impact, but a prima facie assessment of the potential for such an impact with regard to the precautionary principle (and the s.85 duty), such that where a significant adverse impact cannot be confidently ruled out, the development should be treated as major.
60. So, footnote 55 sets up a similar ‘screening style’ approach to that used for determining whether a development proposal needs to be subject to appropriate assessment in regards to habitats sites such as Special Areas for Conservation (SAC), Special Protection Areas (SPA) or Ramsar sites. For which the screening test is whether a development is likely to have significant effects on the designated site. If the likelihood of significant effects cannot be confidently ruled out the development must be subject to an appropriate assessment. The purpose of the appropriate assessment is to assess the implications for the site in view of its conservation objectives. Only once the planning authority has ascertained that it will not adversely affect the integrity of the site can it permit the development.
61. Rather than only increasing the number of proposals for development that need to be considered as major, a converse outcome of footnote 55’s proper application is that a development which may be classed as ‘major development’ under the definition of NPPF Annex 2, but for which a significant adverse impact on a designated area can be confidently ruled out, can be determined as non-major. This means that development far away from an AONB is likely to be able to rule out significant adverse impacts, depending of course upon its specific nature, scale and setting.
62. Footnote 55 sets a context in which the intent of this part of paragraph 172 is to restrict development that has a significant adverse impact on the purpose for which AONBs are designated, that is conservation and enhancement of their natural beauty. An interpretation of this part of paragraph 172 that seeks to ensure the conservation and enhancement of a designated area, regardless of where the effect arises from is entirely consistent with the statutory text on AONB’s and, the statutory section 85 CRoW Act 2000 duty placed on local planning authorities.
63. The same footnote 55 context provides for instances where major development as per the rest of the framework outwith paras 172 and 173 and outside of AONBs that results in adverse impacts that are not evaluated as significant adverse impacts on the conservation and enhancement of the natural beauty of an AONB, not to be deemed paragraph 172 major development. To this end it is perverse to claim an interpretation that “… all applications for major developments, no matter how far away they are from an AONB should be refused other than [in] exceptional circumstances [and where it can be demonstrated they are in the public interest]”. Instead the combination of paragraph 172 and footnote 55 place the emphasis on impacts and not the location of the development. A principle that we have repeatedly shown to be consistent with AONB statute.
The position of the NPPF policy on AONBs within the NPPF 64. As the opinion acknowledges, the NPPF is to be interpreted as a whole. This means that it does not matter where in the document the AONB policies are placed. And in fact, the NPPF itself makes clear that the “overarching objectives of sustainability are to be pursued in mutually supportive ways (so that opportunities can be taken to secure net gains across each of the different objectives).” (Underlining added). Clearly therefore, policies relating to, for example, delivering a sufficient supply of homes are not placed above those relating to conserving and enhancing the natural environment merely because they appear earlier in the document. Such a stance would not enable the planning system to contribute to the Government’s aim of achieving sustainable development. Whereas, the appearance of the AONB policy in footnote 6 to paragraph 11, as a matter that can restrict development in both planmaking and decision-taking, elevates its importance above some of the other polices in the NPPF.
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