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Landscape character rulings

Following an intensely busy period for the partners at Tyler Grange, relating to a multitude of appeals, the opportunity to reflect on events, trends and looking towards the future is much needed. 

Gradually, and over many years the inclusion, or even sole reason for refusal, of ‘harm’ to landscape character, has led to an increased workload for landscape practitioners.  

Once, having to make the foray into an inquiry lead to internal competition within practices as to who would get the ‘prize’ of working as an expert witness.  Now, as a practice, the landscape team at Tyler Grange are preparing evidence for in the region of 20 appeals a year. We are not alone. 

The reasons for this are numerous, but notable factors: 

  • It’s easy (and some may say lazy) to cite landscape impacts, as the issue is seen as purely subjective. Therefore, the impacts can be argued in the alternative, regardless of the merits and qualities of the technical assessment submitted with the application. 
  • Planning Officers or committees ‘over-ruling’ or ignoring sound advice from professionally qualified landscape officers, particularly where they support or have no objection.  This sets aside the judgements of all of those qualified to express an opinion.  A situation unlikely to occur where all parties agree on air quality or noise impacts? 

Turning to the appeals process, we are seeing a real mixed bag of outcomes in respect of landscape and visual issues.  

Increasingly, regardless of the analysis, paragraph 109 of the NPPF looms its rather ugly and ill-defined head.  The starting point for objectors is that every parcel of land, however unassuming, is a valued landscape.  

Notwithstanding, the Stroud[1], and Forest of Dean[2] Decisions some inspectors are using historic Village Statements to support a community’s claim that a landscape is valued, in the absence of any physical attributes which take it out of the ordinary. 

The fact that the ‘Valued Landscape’ debate is still raging, despite these decisions, is typified by the Wendover Appeal decision wherein the Inspector drew on the qualities of the surrounding landscape to elevate the value of the Appeal Site (the only parcel of land not the subject of any quality or value designation and acknowledged as not having the necessary physical attributes). 

This has been challenged by the appellants CEG, and we await the outcome of the appeal which is being heard early July.  This hopefully will also address the issue of the value of a site or an indeterminant ‘area’. Additionally, disagreement exists within the legal profession relating to whether a ‘Valued Landscape’ is a Footnote 9 policy constraint[3].  

Undoubtedly this will be explored further through the courts, along with the debate on the weight to be applied to out of date local designations.  The latter has been a significant issue in both the Wolverton Road, Linford Lakes and Hale Road, Hale appeal decisions where acknowledged out-of-date and non-criteria-based designations were given weight and relied upon in determining value. 

Finally, we are seeing appeals dismissed in respect of, amongst other issues, harm to the landscape and countryside even where both parties have agreed no significant harm, or where the Council presents no evidence and the appellant provides comprehensive analysis of the issues.  The outcome is very much dependant on the individual inspector and her/his personal view of the issues, an unpredictable and unhelpful state of affairs. 

Jon Berry and Clare Brockhurst are founding partners of Tyler Grange LLP, a consultancy which offers specialist advice in the areas of arboriculture, ecology and landscape planning and design.

 Visit www.tylergrange.co.uk for more info.

Contact Clare directly on 07540 725 259 or on 01285 831 804, email her on c.brockhurst@tylergrange.co.uk

 

[1] Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin),

[2] Forest of Dean District Council v Secretary of State for Communities and Local Government [2016] EWHC 2429 (Admin) at para 14

[3] SoS Decision in respect of Highthorn (APP/P2935/V/16/3158266) and Lang J. decision in relation to Cornwall Road, Harrogate.