The basics #12 - “valued landscapes” vs. valued landscapes
I tell you. It’s a fool’s game. Trying to write a planning law and policy blog as the Government tumbles, and as the contenders to replace Bo-Jo try to out-BS one another every day with nonsensical claptrap about “banning” all new Green Belt development (looks like we still need to talk about the Green Belt), and ditching those dreadful Stalinist housing numbers introduced by that famous Communist… [checks notes]… Theresa May.
So, rather than try to track this daily chaos, can I interest you in a warm, comforting, BS-free dose of planoraks #basics. Boil the kettle. Put your feet up. This’ll just take 3 minutes. Now then. Let’s begin.
As Wendy Cope didn’t quite put it, bloody planning appeal decisions are like bloody buses. You wait for about a year, and as soon as one approaches your stop, two or three others appear. If you read enough of these blighters, mini-trends start to appear. For instance, just take 3 appeal decisions from the last few weeks of my own case-load:
An approval for 125 homes on the edge of Funtley in Fareham, Hampshire.
An approval for 50 homes in Shepshed, in the borough of Charnwood in Leicestershire.
An approval for 72 homes in Marnhull, North Dorset.
Different schemes. Different Councils. Different Inspectors. Different parts of the country. So what links them? Well, in every case the local authority had alleged that the appeal scheme would cause harm to a “valued landscape”. Sounds simple? Well it isn’t quite. We need to take care. The allegations that “valued landscapes” existed failed in each one of these cases, and indeed in the Shepshed appeal it led to a costs award against the Council. So what’s the deal? What exactly is a “valued landscape”? And - gulp - is a “valued landscape” different from a landscape of value [And they say planning jargon is off-putting to normal people! Perish the thought. Ed.] ?
Let’s take a step back:
In the ollllllld days, our national policy on the countryside lived in PPG7 and then in PPS7. Both national policies talked about protecting all countryside - “for its own sake” and also “for the sake of its intrinsic character and beauty, the diversity of its landscapes, heritage and wildlife, the wealth of its natural resources and so it may be enjoyed by all”.
Things evolved with the 2012 NPPF which introduced a hierarchy at §17. We move on from the idea of “blanket” protection. Now we do not protect and enhance all landscapes. We only protect “valued landscapes” (whatever they are). And for the rest of the countryside, we recognise its “intrinsic character and beauty” as part of the planning balance. This distinction has made its way into current policy in the 2021 NPPF at §174:
“Planning policies and decisions should contribute to and enhance the natural and local environment by:
a) protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils (in a manner commensurate with their statutory status or identified quality in the development plan);
b) recognising the intrinsic character and beauty of the countryside […]”
Does this really add up to a shift in national policy from the pre-NPPF world? Yes it does. As Mrs Justice Lang said in the Telford and Wrekin case at §47, the NPPF no longer includes “a blanket protection of the countryside for its own sake, such as existed in earlier national guidance (e.g. Planning Policy Guidance 7)”, and so the many, many local plan policies which apply that kind of blanket protection to all areas of countryside (irrespective of the value of that countryside) are out-of-date.
OK. So we’re interested in protecting “valued landscapes”. But what exactly are they? They are not defined in the NPPF. In the Stroud case, Mr Justice Ouseley upheld the approach of a planning inspector who had looked for “demonstrable physical attributes which would take this site beyond mere countryside”.
The Stroud case was followed by other High Court judges (see e.g. here at §14) as establishing the ideas that (i) a valued landscape need not be formally designated, (ii) “valued" meant something other than popular, and (iii) landscape was only "valued" if it had physical attributes which took it “out of the ordinary”.
However, since then, Mr Justice Ouseley has had another look at this question in the CEG case. He said that the judgment in Stroud had not intended to lay down any wider point of principle.
The concept of "demonstrable physical attributes" was simply the phrase adopted by the Inspector in the Stroud case. The Inspector’s approach was lawful. But that doesn’t mean it is the only lawful approach.
Nonetheless, it is right that a "valued landscape" need not be designated.
Also, it’s not about the red line of your site. Because another important point to come out of the CEG case was the Inspector’s finding that:
“In coming to a view as to whether or not a site falls to be classified as a valued landscape within the terms of the Framework, it seems to me that one first has to consider the extent of the land which makes up the landscape under consideration before examining whether or not there are features which make it valued. Developments and appeal sites vary in size. For example it is possible to conceive of a small site sitting within a much larger field/combination of fields which comprise a landscape and which have demonstrable physical characteristics taking that landscape out of the ordinary. The small site itself may not exhibit any of the demonstrable physical features but as long as it forms an integral part of a wider 'valued landscape' I consider that it would deserve protection under the auspices of paragraph 109 of the Framework. To require the small site itself to demonstrate the physical features in order to qualify as a valued landscape seems to me to be a formulaic, literal approach to the interpretation of the question and an approach which could lead to anomalies. It could lead to individual parcels of land being examined for physical characteristics deterministic of value. Adjoining parcels of land could be categorised as valued landscapes and 'not valued landscapes' on this basis.”
The judge agreed, saying that:
“It would be bizarre if the way in which the red line was drawn, defining the site on whatever basis was appropriate, and which need have nothing to do with landscape issues, crucially affected landscape evaluation. It would be equally bizarre to adopt a wholly artificial approach to landscape evaluation where, in most cases, a development site is but part of a wider landscape.”
So what do we know? This concept of “valued landscapes” is important. If your site is undesignated, it decides whether or not national policy confers protection on your landscape’s character. But the concept is undefined in national policy or guidance. And all the courts tell us is that:
“Valued landscapes” need not be designated.
They aren’t the same as popular landscapes. Which is why a “valued landscape” may be different from a valued landscape. All landscapes are of value to at least somebody. To merit protection under national policy, you need something more.
You have to be clear about the extent of landscape you’re considering.
As a starter for 10, to fill the void left by national policy and guidance, the Landscape Institute have published a techincal guidance note on “Assessing landscape value outside national designations”. So do have a look there. Nonetheless, even that helpful guidance doesn’t tell us how much value a landscape should have before it’s important enough to be protected as a “valued landscape” under 174(a) NPPF. The Institute does hazard an attempted definition:
“A ‘valued landscape’ is an area identified as having sufficient landscape qualities to elevate it above other more everyday landscapes.”
Which sounds about right. The guidance also notes that (a) ‘everyday’ landscapes may nevertheless have value to people, and (b) the identification of landscape value needs to be applied proportionately ensuring that identification of ‘valued landscape’ is not over used.
Again, very sensible. But I don’t need to tell you. Appreciating the value of any landscape is as much an art as a science. Detailed criteria are important to have a go at making this exercise more objective. But you can’t forget the visceral, emotional reaction of standing at the top of a hill, gazing out over a landscape and feeling something. It may be something intangible. Irrational. But no less real. How is national planning policy supposed to capture that?
One thing we know for sure: we love our landscapes in this country. So these debates will rage on. Maybe it’s another job for the forthcoming NPPF prospectus.
I hope you get a chance for a break from the madness this summer. In our household, our 5-month-old daughter is (whisper it softly) starting to get into the swing of sleeping at night. I’ve probably jinxed it now by mentioning that. But I wish you all a restful summer full of long, uninterrupted, screaming-free and comfortably sub-40 degree night-times. In the meantime, stay well #planoraks. And, through all the chaos… #keeponplanning.
