Protected Landscapes

Protected Landscapes are a collective term encompassing the National Parks, the Norfolk and Suffolk Broads, and National Landscapes (also known as areas of outstanding natural beauty, or AONBs). The 44 Protected Landscapes within England alone are estimated to make up almost a quarter of England’s entire land area.

In addition to their natural beauty and cultural significance (think the Cotswolds or the Lake District), Protected Landscapes hold particular environmental significance: they contain nearly half of England’s priority habitats, they contain over half of the Sites of Special Scientific Interest, and they contain peatland and vegetation that comprise a substantial part of the UK’s carbon stores.[i]

The foundations of their legislative safeguarding can be traced back to 1949, when the statutory framework of National Parks was first created.

The statutory purposes and the previous duty

The statutory protection afforded to Protected Landscapes in respect of decision-making was (and still is) distributed across several pieces of primary legislation. The respective legislation contains the statutory purposes applicable to each class of Protected Landscape.

For National Parks, this is the National Parks and Access to the Countryside Act 1949 (“NPACA 1949”), which provides for two statutory purposes:

• Conserving and enhancing the natural beauty, wildlife and cultural heritage of National Parks: section 5(1)(a); and
• Promoting opportunities for the understanding and enjoyment of the special qualities of National Parks by the public: section 5(1)(b).

For the Broads, this is the Norfolk and Suffolk Broads Act 1988 (“NSBA 1988”), which provides for three statutory purposes:

• Conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads: section 17A(1)(a);
• Promoting opportunities for the understanding and enjoyment of the special qualities of the Broads by the public: section 17A(1)(b); and
• Protecting the interests of navigation: section 17A(1)(c).

For National Landscapes, this is the Countryside and Rights of Way Act 2000 (“CRoWA 2000”), which provides for a single statutory purpose of conserving and enhancing the natural beauty of National Landscapes: section 85(A1).[ii]

Prior to LURA 2023, relevant authorities were required to “have regard to” the relevant purposes in exercising or performing any functions in relation to, or so as to affect, land in these Protected Landscapes.[iii]

The Landscapes Review

As part of its 25 Year Environment Plan,[iv] the Government commissioned an independent review of Protected Landscapes in May 2018. The review was led by Julian Glover and supported by an advisory panel. One of the review’s objectives under the terms of reference was to “examine and make recommendations on…the existing statutory purposes for National Parks and AONBs and how effectively they are being met”.

The final report of the review was published in September 2019. Amongst other things, it identified that the existing duty to have regard was “too weak” and recommended that it “should be strengthened to one of ‘furthering’ the…purposes…though precise legal wording should be finessed”.

The Government’s response, published in 2022, accepted the findings and proposed “strengthening the wording of these statutory duties so that they are given greater weight when exercising public functions”. It also committed to “produc[ing] guidance for public bodies on the application of the strengthened duties, making it clearer when and how it should be discharged in respect of public functions”.

The amended duty

This was given legislative effect by section 245 LURA 2023, which amended section 11A NPACA 1949, section 17A NSBA 1988, and section 85 CRoWA 2000.[v] In short, a new duty to “seek to further” the statutory purposes was substituted for the previous duty to have regard for each of those provisions.

At the same time, section 245 also inserted provisions allowing the Secretary of State to make regulations about “how a relevant authority is to comply with the duty…(including provision about things that the authority may, must or must not do to comply with the duty)”.[vi] To date, no such regulations have yet been made.

Section 245 came into force on 26 December 2023.

Judicial consideration

The substance of the amended duty has been considered in a number of High Court decisions. [vii]

The New Forest case

In New Forest National Park Authority v SSHCLG [2025] EWHC 726 (Admin), the claimant authority challenged the Secretary of State’s decision to allow a planning appeal and grant planning permission to a residential extension. The second of the two grounds of statutory review brought by the claimant concerned the Secretary of State’s alleged failure to discharge the amended duty in deciding the planning appeal ([4]).

Mould J dismissed the claim on both grounds. Focusing on his discussion about the amended duty:

• The claimant’s characterisation of it being a “strengthened” duty seemed to him a fair one ([58]).
• At the same time, the duty is expressed in qualified terms and there is no duty necessarily to fulfil the statutory purposes ([62]).
• The language of “further[ing]” the statutory purposes requires a decision-maker to do more than to merely weigh a development’s effect on the purposes in the overall planning balance ([61]).
• To discharge the duty, a decision-maker must first reach a view as to whether a development is consistent with the furthering of the statutory purposes. If it is not, they must then consider whether a decision to grant could be justified. Such a justification may include mitigation or compensation secured by planning conditions and obligations. These are the questions which a Court reviewing a decision would examine ([61]-[62], [66]).

A separate but related issue raised by the claimant related to the notion of enhancement. As can be seen above, the statutory purposes for the Protected Landscapes all adopt the wording of “conserving and enhancing”. The claimant submitted that the amended duty requires a decision-maker to address both the conservation and enhancement of the National Park’s characteristic features ([80]).

Mould J rejected this. Basing his reasoning on the House of Lords’ approach in South Lakeland DC v SSE [1992] 2 AC 141 (at 150B-F)[viii] ([76]-[77]) and that of Collins J in R (Great Trippetts Estate Ltd) v SSCLG [2010] EWHC 1677 (Admin) (at [10])[ix] ([78]-[79]), he found no requirement for a decision-maker to expressly consider enhancement in circumstances where they are already satisfied that relevant attributes were unharmed by the development, which was the case here ([82],[86]).

The CPRE Kent case

By contrast, R (CPRE Kent) v SSHCLG [2025] EWHC 1781 (Admin) considered a situation where planning permission was granted in circumstances where there was some harm to the natural beauty of the High Weald National Landscape.

Mould J confirmed that the principles he enunciated in New Forest remained applicable ([63]). Further, he rejected the claimant’s construction of the duty which would oblige a planning authority to refuse permission whenever any harm was found ([52]). This “would result in a radical shift in the planning authority’s performance of its statutory functions…replacing an essentially evaluative determination with a single determinative factor” ([58]) – a change that was not properly borne by the language of the strengthened duty (cf. regulations 63 and 64 of the Conservation of the Habitats and Species Regulations 2017, discussed at [61]-[62]).

Other authorities

To date, the amended duty has also been referenced in Friends of the Lake District v Lake District National Park Authority [2025] EWHC 2630 (Admin) ([97]), Wadhurst Parish Council v SSHCLG [2025] EWHC 1735 (Admin) ([39]-[42]), and R (Ticehurst Parish Council) v Rother DC [2024] EWHC 3069 (Admin) ([74]). However, the discussion in these cases is more limited and do not give rise to new points of principle beyond New Forest and CPRE Kent.

Guidance

In December 2024, the Government published its guidance to relevant authorities on the Protected Landscapes duty. According to this guidance, “the duty is an active duty, not passive”, which means a relevant authority seeking to further the statutory purposes “should take appropriate, reasonable, and proportionate steps to explore measures” which achieve this. It “should seek to avoid harm and contribute to the conservation and enhancement” of characteristic features “as far as is reasonably practical”, and it “should be able to demonstrate with proportionate, reasoned, and documented evidence the measures to which consideration has been given”.

A year prior to the publication of the Government’s guidance, Natural England, the Government’s statutory adviser, had expressed its views on the Protected Landscapes duty in its consultation response to the application for the Lower Thames Crossing development consent order (“DCO”) in December 2023. At the time, Natural England had expressed its advice (found at Annex 2) in anticipation of and without prejudice to the Government’s guidance. Though not on all fours with each other, some overlap can be seen between the two.

Other consideration

In addition to the judicial commentary and guidance above, the Protected Landscapes duty has arisen for discussion in a number of recent DCO decisions. In a number of these decisions, satisfaction of the amended duty has turned on the inclusion of a financial contribution from the applicant towards the Protected Landscapes.

A66 Northern Trans-Pennine DCO

The decision letter was issued in March 2024, at a time when the Government’s guidance and judicial commentary did not yet exist. Parties advanced a range of interpretations of the amended duty before the Secretary of State ([303]-[306]), who ultimately concluded that the duty was discharged in light of the lack of viable or less harmful alternatives, along with the steps taken by the applicant ([307]-[309]).

Lower Thames DCO

As the amended duty came into effect during the examination stage, the Examining Authority was unable to reach a final determination on compliance. Following further submissions from parties, the Secretary of State’s decision letter dated March 2025 concluded that “a financial contribution to support the delivery of the Kent Downs AONB Management Plan”, alongside “other mitigation and enhancement measures already agreed” was sufficient and necessary to fulfil the duty. The agreed amount of contribution, however, remained outstanding at the point of the decision. A provision was therefore included in the granted DCO (article 65) providing for the final amount to be agreed ([437]).

London Luton Airport Expansion

The decision letter dated April 2025 noted the Examining Authority’s finding against compliance with the amended duty ([203]). Following further representations from the parties, the Secretary of State arrived at the view that “a financial contribution of £250,000 for projects which further the purposes of conserving or enhancing the Chilterns National Landscape is sufficient and necessary” to discharge the amended duty ([208]).

Gatwick Airport Northern Runway Project DCO

The decision letter dated September 2025 expressly referred to the benefit of judicial guidance from the New Forest case ([290]). The Secretary of State concluded that whilst there was limited harm to National Landscapes, approval was justified. Further, a financial contribution was sought from the applicant “to the nationally designated areas to promote matters set out in their management plans, in particular regarding tranquillity and the dark skies”. A provision was included in the made DCO (article 54) providing for the final amount to be agreed.

What next?

This blog post has sought to bring readers up to speed with the current state of play with the Protected Landscapes duty. Whilst the analysis provided by the New Forest and CPRE Kent cases have offered helpful clarity on the interpretation of the duty, what is evident is that its application on the facts of any particular case leaves room for the exercise of planning judgment that may be a focus of discussion and consideration at the decision-making stage.

As evidenced by recent events concerning the possible removal of the duty, section 245 is likely to remain a highly topical issue at the juncture between development and environmental protection. It seems safe to say that this blog post will hardly be the last word on the Protected Landscapes duty.

Jeffrey Chu is a barrister at Francis Taylor Building.

 

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[i] Protected Landscapes Targets and Outcomes Framework - GOV.UK.

[ii] This was section 85(1) prior to LURA 2023.

[iii] See section 11A(2) NPACA 1949, section 17A(1) NSBA 1988, and section 85(1) CRoWA 2000.

[iv] This was first published in January 2018, and subsequently revised in 2023 by the Environmental Improvement Plan.

[v] For completeness, the Environment Act 1995 was also amended. This falls outside the scope of this blog post.

[vi] See section 11A(2A) NPACA 1949, section17A(1A) NSBA 1988, and section 85(1A) CRoWA 2000.

[vii] Prior to the handing down of the New Forest decision in March 2025, the amended duty had been the subject of a separate challenge brought by the Dedham Vale Society. This concerned a negative screening direction issued in the context of a car park extension in the Dedham Vale National Landscape. In January 2025, however, the Secretary of State conceded the challenge, accepting that its failure to discharge the amended duty when making the screening decision constituted an error of law and the outcome might have been different had it been discharged.

[viii] This concerned section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, which imposed a duty to preserve or enhance the character of conservation.

[ix] This concerned what was formerly section 85(1) (now section 85(1A)) CRoWA 2000.