The Court of Appeal found that the Judge was right to quash the Inspector’s decision to grant planning permission for 475 houses on the basis that he had erred in his treatment of the impact of the development on the setting of the National Park by misapplying the policy in paragraph 176 of the NPPF. The Judge held that having found that there would be a ‘moderate adverse’ impact on particular views from the National Park, the Inspector nonetheless concluded that the setting of the National Park would not be ‘materially affected’. In light of his finding of moderate adverse impacts on key views, the Judge found that it would be irrational for the Inspector to conclude that there would be no adverse effect at all on the National Park. The harm should have been attributed great weight in accordance with paragraph 176 of the NPPF in the overall planning balance, but was not mentioned. As such, the Judge accepted that the Inspector had failed to give any weight to the moderate adverse effects to the setting of the South Downs National Park. The Inspector also failed to discharge his duty under s.11A of the National Parks and Access to Countryside Act 1949 in that he failed to have regard to the statutory purpose of conserving and enhancing the natural beauty of the National Park in his overall planning balance.
The Court of Appeal considered the decision in Bayliss and noted that, whilst the decision maker is entitled to attach different levels of weight to the effect of a development on a National Park, there was no suggestion in that case that there might be a level of harm to a National Park that might not even engage the policy at all. The key question was whether the Inspector’s reasoning demonstrated that he had had regard to the duty to give ‘great weight’ to the conservation and enhancement of the landscape and scenic beauty in the National Park, in accordance with paragraph 176 of the NPPF. There was no doubt that the Inspector did find some level of harm to the setting of the National Park. His conclusion that the setting of the National Park was not ‘materially affected’ was at variance with this. It was not clear how the Inspector had reconciled his conclusions on harm to setting with the requirement to give great weight. Indeed, there was no indication that he gave the harm great weight, or indeed any weight in the planning balance. The Court found that while it did not need to go as far as the Judge in finding that the decision was irrational, it was sufficient that the Inspector’s reasons fell short of what was required in law. They left substantial doubt about the lawfulness of his approach to one of the principal issues in dispute. That was sufficient for the Inspector’s decision to be set aside. Like the Judge, the Court found that the Simplex test was not met and that the Inspector’s decision should therefore be quashed.
A copy of the judgment can be found here.