How the rocketing number of 'valued landscapes' disputes are being determined by decision-makers

The contested issue of valued landscapes is an issue that has increasingly occupied planning inspectors and judges as well as councils and applicants in recent years, Stuart Watson finds.

Since the introduction of the National Planning Policy Framework (NPPF) in 2012, the issue of what constitutes a "valued landscape" has emerged as an increasingly crucial and contentious factor in determining the fate of proposed housing schemes. Whether a landscape is "valued", and if so what weight should be given to the need to protect a piece of ground identified as such, is cropping up frequently as a bone of contention in planning appeals.

The term "valued landscape" was first introduced into planning policy in the 2012 NPPF. The publication of the revised NPPF in July has only intensified the debate. Paragraph 170 states: "Planning policies and decisions should contribute to and enhance the natural and local environment by ... protecting and enhancing valued landscapes … (in a manner commensurate with their statutory status or identified quality in the development plan)." Apart from the addition of the phrase in brackets the wording remains the same as in the 2012 NPPF, but neither document goes on to provide a definition of a "valued landscape". It has been left to inspectors and to the courts to interpret the regulations. The consequence is that there is a large body of precedent and case law constantly being added to and argued over as local planning authorities, developers and their barristers and consultants try to figure out a way of balancing the competing demands to protect the countryside and provide more housing.

Research by Planning, using our COMPASS database, shows that the number of appeal decisions in which "valued landscape" featured has rocketed since the March 2012 NPPF was published. The numbers increased by a factor of more than seven in the five years between 2013 and 2017 (see bar chart, below). In total, 42 per cent of appeals have been allowed and 58 per cent dismissed.

The question of what constitutes a valued landscape and the features that define one have evolved over time. One of the most important early precedents was set by the Stroud District Council v Gladman Developments case of 2014, in which the local authority challenged an inspector’s decision to grant permission for a 150-home scheme in the Cotswolds. The High Court judge agreed with the inspector’s conclusion that "to be valued would require the site to show some demonstrable physical attribute rather than just popularity". Over recent years, the practice has become established of determining whether those attributes are present by referring to box 5.1 of the Landscape Institute’s 2013 Guidelines for Landscape and Visual Impact Assessment, Third Edition (GLVIA3), which sets out eight criteria to be considered when determining the value of landscapes not covered by a national designation, such as area of outstanding natural beauty (AONB) or national park status. 

The criteria are: landscape quality and condition, conservation interest, scenic quality, recreational value, rarity, perceptual aspects, representativeness and associations. While they lack official status, the guidelines have become useful for resolving whether a landscape is valued, argues Jeremy Smith, a director in the landscape architecture team at consultants SLR. "If you follow box 5.1 and the precedents then you can demonstrate a clear weight of evidence," he says. "Inspectors may not apply any of those criteria in their own assessments, which has sometimes caused some confusion, but in the vast majority of cases inspectors want us to use the same tools in the same way." 

While the Stroud case was frequently interpreted as indicating that the site itself must demonstrate certain physical attributes in order to be valued, this July’s ruling in CEG Land Promotions II v Secretary of State for Housing, Communities and Local Government has broadened the scope of what can be considered a valued landscape by taking into account a site’s wider context. In the judgment, Mr Justice Ouseley, who also presided over the Stroud case, supported an inspector’s refusal of 175 new homes on the outskirts of Wendover in Buckinghamshire. 

"The reason for refusal by local planners was that the site was part of a valued landscape," says Joanna Ede, head of landscape at consultants Turley, who worked with Aylesbury Vale District Council to draw up its case. "The High Court found in the council’s favour that indeed you can’t consider the site in isolation, you have to understand its context. While an individual site may not have attributes that are particularly valued, if it forms part of the jigsaw of a valued landscape then it is by definition an area of valued landscape."

Between the box 5.1 criteria and the clarification on the importance of context provided by the Aylesbury Vale case, Smith says some planners had begun to feel that they were able to define a valued landscape with a degree of confidence until the publication of the revised NPPF: "The problem is that NPPF2 has rather blown that out of the water because of the subtlety in the wording. What is new is the bit in the brackets. You could say that is a clarification, but the problem is we don’t have precedents to test how that has been applied. To me it suggests there has to be an identification of factors that define a valued landscape within the development plan."



The revised framework’s bracketed instruction that valued landscapes should be protected "in a manner commensurate with their statutory status or identified quality in the development plan" leads Rebecca Knight, director of landscape planning at Land Use Consultants (LUC), to speculate that it could "result in the re-emergence of local landscape designations". She explains that many councils have stopped designating locally protected landscapes in their development plans in recent years, preferring to carry out comprehensive landscape character assessments instead. That trend could now be reversed: "The question is, can you identify specific sites that are valued across the whole of the local authority area, or do you have to make that judgement in the context of the development being proposed and whatever else is relevant at that time? If you say one piece of landscape is valued and another isn’t, you are effectively saying that all your non-valued landscapes are up for grabs, which could be quite destructive."

However, in an October 2018 appeal which concluded that Charnwood Borough Council was justified in refusing planning permission for 66 homes near the Leicestershire village of Rearsby, the inspector did not appear to find the new wording in the NPPF meant that only locally or nationally designated landscapes can be valued. "It is a good early indication of what inspectors will do, although it hasn’t yet been tested in the courts," says Dr Ashley Bowes of Cornerstone Barristers, who acted for the council. "It indicates that because a landscape isn’t statutorily protected like an AONB or a national park and is not in a local plan doesn’t preclude it from being valued."

If a landscape is found to be valued, that does not automatically rule out development. One of the respects in which the revised NPPF is clearer than its predecessor is that it explicitly excludes valued landscape status from its list of circumstances in which development can be restricted even when there is a demonstrable need for housing. When local planning authorities cannot demonstrate a five-year housing land supply, inspectors in appeals have to consider whether to apply the NPPF’s presumption, or "tilted balance", in favour of sustainable development. In such circumstances, inspectors have to weigh up whether the harm caused to a valued landscape is of greater consequence than the benefit provided by the provision of housing.

"I am not aware of any recent decisions where inspectors have decided it is a valued landscape and have then gone on to grant permission," observes Michelle Bolger, director of Michelle Bolger Expert Landscape Consultancy. "Where inspectors are coming to the conclusion that it is a valued landscape, then they are almost at the same time coming to the conclusion that the harm to the landscape will outweigh the benefit."


That has prompted accusations that local authorities are prone to use valued landscapes as an excuse to withhold planning permission. "It is often being used as a reason for refusal in a situation when there is general local opposition to a scheme," says Ede. "Members are finding it relatively easy to use as a reason for refusal because there is no hard definition of what a valued landscape is. It is cropping up quite often and is subjective, which means from our developer clients’ perspective it’s a high risk."

Bolger puts a more positive spin on local planners’ approach. "They see it as a tool in their cupboard. With a lot of schemes that get refused on landscape grounds, planners are looking at the proposals and thinking they aren’t right, then using valued landscape to support their judgement." Peter Goatley, a barrister at No5 Chambers, who has fought many cases in which valued landscape has been at issue, warns that the way in which the policy is being interpreted could have implications for housing delivery: "Something that is not meant to be such a first order restraint is nonetheless being utilised by some inspectors to come to the view that permission ought to be withheld. If that is the approach, it would seem highly surprising given the nature of the land on the edge of our settlements that we are ever likely to meet any housing land supply figure to make a meaningful impression on our chronic shortfall," he argues.

However, one interpretation of the Charnwood decision is that the crux of the issue is inspectors’ interpretation of broader landscape factors. In that case the inspector found that the potential harm to the landscape justified the denial of planning permission, in spite of the landscape displaying insufficient attributes to be valued and the lack of a five-year land supply. "It shows that great weight can be given to landscape harm even though it is not valued, so you might begin to wonder what is the practical consequence of finding that something is a valued landscape any more," muses Bowes. "Whether it was a valued landscape was academic, and I wonder if in future that issue will not have as much prominence as it once did."

RECENT VALUED LANDSCAPE APPEALS IN 2018


SOUTH OXFORDSHIRE

July: A proposal for 95 homes on land off Kennylands Road, Sonning Common was dismissed at appeal. The inspector found that harm to a valued landscape would be significant, since the site played a particularly important role in the setting of the village and an adjoining AONB. The proposal was also in conflict with the neighbourhood plan, which allocated only a small part of the site for 26 houses.



June: An inspector rejected a plan for 135 homes on land east of Park Road on the edge of Didcot despite the lack of a five-year land supply and the relatively featureless nature of the location, which was open fields used mainly for grazing. When assessing the scheme under Landscape Institute guidelines, the inspector concluded that the landscape did not have to rank highly against all criteria to be valued. Considering the site in terms of landscape and scenic quality, conservation interest and recreational value, he found that the development would harm the area’s character and appearance.



MILTON KEYNES

May: The development of 95 homes on the edge of the Buckinghamshire village of Lavendon was permitted when an inspector decided that the land did not constitute a valued landscape despite being designated in the local plan as "an area of attractive landscape". He concluded that the site was not valued because it had no remarkable physical attributes, and that given the limited harm to the character of the area and a small shortfall in five-year housing land supply, the proposal should be considered sustainable development.



April: A scheme for 250 homes at Linford Lakes in Milton Keynes was rejected by an inspector. He found that the area was distinctive, attractive and worthy of being treated as a valued landscape, and that the proposal would also impact negatively on a wildlife corridor. He concluded that those factors outweighed the benefits that the new development would contribute towards making up the district’s housing shortfall.


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