National Landscape housing development challenge

This was a test case regarding the application of a new statutory duty that authorities in National Landscapes in England (formerly AONBs) ‘must seek to further the purpose of conserving and enhancing the natural beauty of the area’. CPRE Kent argued that the defendant Secretary of State couldn’t comply with this duty by permitting development which was found to be harmful to the landscape and scenic beauty of the High Weald National Landscape. This case provided helpful guidance as to how the enhanced s85 Countryside Rights of Way Act 2000 statutory duty should be applied by planning decision makers seeking to protect England’s National Landscapes and how Courts will treat alleged failures to comply with the duty.

Richard Buxton Solicitors was instructed by the Kent Branch of the Campaign to Protect Rural England to challenge a called-in redetermination by the Secretary of State for Housing, Communities and Local Government to grant permission for 160 houses and associated works in Turnden, near Cranbrook in Kent. The site where the development was proposed is within the High Weald National Landscape (formerly Area of Outstanding Natural Beauty).

The matter has a complex procedural history. The planning committee at Tunbridge Wells Borough Council initially resolved to grant the application, but before a s106 agreement could be agreed with the developer, Berkeley Homes, the application was called-in for a decision by then Secretary of State, Michael Gove, on 12 April 2021. The Secretary of State directed that a planning inquiry be held which led to a planning inspector’s report dated 4 April 2022 which recognised the harm the development would cause to the National Landscape, but considered that on balance, permission should still be recommended. On 6 April 2023, the Secretary of State refused permission against the advice of the planning inspector’s report, which was challenged in a judicial review by the developer, Berkeley Homes, and quashed by an order dated 6 October 2023. After further written submissions from parties to the Secretary of State the decision was re-determined and the SoS granted permission on 22 November 2024.

In the intervening period between the planning inspector publishing his report recommending permission was granted, and the Secretary of State granting permission in November 2024, s85 (A1) of the Countryside Rights of Way Act 2000 came into effect on 1 October 2024. This duty strengthened the former s85(1) duty enhancing the requirement that authorities “have regard to the purpose of conserving and enhancing the natural beauty of an area of outstanding beauty”. The new enhanced duty requires that they “must seek to further the purpose of conserving and enhancing the natural beauty of an area of outstanding beauty”.

As the Secretary of State is a relevant authority for the purposes of the Act, the strengthened duty applies in making decisions to grant planning permission. In re-determining the decision, the Secretary of State agreed with the planning inspector that there would be some limited harm to the landscape and scenic beauty of the High Weald National Landscape. This was an overall finding of harm, taking into account all mitigations and enhancements. While the Secretary of State’s re-determination mentioned the enhanced s85(A1) duty, there was no explanation of how permitting large-scale development which harms the National Landscape could seek to conserve and enhance the natural beauty of the Natural Landscape in line with the enhanced duty.

CPRE Kent alleged that:

1. The Secretary of State failed to apply the strengthened s85(A1) duty by simply giving “great weight” to conserving and enhancing landscape and scenic beauty in the National Landscape, as was required under NPPF paragraph 189. (which had been in place before the enhanced duty was enacted – i.e. this approach represented no change)
2. Additionally, or in the alternative, by merely stating that the duty has been applied, the Secretary of State failed to give reasons for what appears to be an illogical conclusion (that granting permission for a development which harms a National Landscape can be an action that seeks to further the purpose of conserving and enhancing the same National Landscape).

On 2 April 2025 permission was granted to proceed with to a full substantive hearing of the claim. The court recognised that the issue in question was of general significance to the operation of the town and country planning system and joined the claim with another matter relating to similar issues (Wadhurst Parish Council v Secretary of State for Housing, Communities and Local Government and Others) and directed there should be an accelerated timetable to trial.

On 20 May 2025, the Campaign for National Parks were granted permission to intervene in the case on the basis of written submissions.

A hearing took place on 18-19 June 2025. Giving judgment, Mr Justice Mould found that the Secretary of State had done enough to comply with the enhanced s85 CROW Act duty in the decision letter. In considering the scope of the enhanced duty the Court noted that:

• Planning authorities are required to more than merely weigh the effect of the proposed development on the purposes of conserving and enhancing the scenic beauty of the National Landscape in the overall balance.
• The duty is qualified and under the duty, authorities are required to “seek to further” the purpose not to necessarily fulfil those purposes. Nevertheless, in a case where the planning authority determines that a planning application proposes development which is in conflict with the purposes or will undermine their fulfilment, the authority ought both to consider whether and to explain why they have decided that planning permission may justifiably be granted.
• Consideration of each application will be informed by the circumstances of the given case, including the size and scale of the development under consideration and the extent and severity of its conflict with the purposes. These are matters of planning judgment, but a duty ‘to seek to further’ the s85 purposes necessarily invests the planning decision maker with the responsibility to judge, firstly, whether the planning application before them for decision proposes development which interferes with the fulfilment of those purposes; and if it does, whether and if so why the grant of planning permission is justified.
• If the planning authority has found that the proposed development conflicts with the s85 purposes, then they may need to consider whether and if so, how the proposed development may be mitigated in order to address the identified conflict with the statutory purposes. They may need to consider whether any compensatory measures are available which might offset the identified conflict with the statutory purposes. They will need to consider the imposition of conditions or the need to obtain planning obligations to secure such measures.

Emma Dring and Jack Barber of Cornerstone Chambers were instructed as counsel in the case.