FREE SAMPLE from ‘A Practical Guide to Planning Law and Rights of Way in National Parks, the Broads and AONBs’ by James Maurici QC, James Neill et al

CHAPTER ONE – INTRODUCTION

James Maurici QC and Nick Grant

1. NATIONAL PARKS, AONBS AND THE BROADS: AN INTRODUCTION

    1. We are extremely fortunate in this country to enjoy some truly magnificent landscapes, ranging from towering peaks to lowland fens. We are, rightly, proud of these landscapes, such that their protection, and our rights to roam in them, are of the utmost import.

    2. The system that has developed for their protection depends on the designation of those landscapes as a National Park (“NP), Area of Outstanding Natural Beauty (“AONB), or as part of the Norfolk and Suffolk Broads. At present, approximately 24.5% of England is currently covered by NPs, the Broads, or AONBs.1 In Wales, as Planning Policy Wales explains “…a quarter of the land area of Wales is designated as either a National Park or Area of National Outstanding Beauty (AONB)”2. It is beyond the scope of this book to consider the many local landscape designations that exist in Development Plans. Nor, as we are barristers qualified in England & Wales and Northern Ireland, does this book cover Scotland.

    3. In the remainder of this chapter, we briefly outline the legislative history of NPs, AONBs and the Broads, looking at their statutory underpinning, government guidance, and potential for reform. We then examine, in detail, their role in the planning system (Chapters 2-3), before looking at the application of national policy and guidance (Chapter 4), wildlife and biodiversity issues (Chapter 5), and water issues (Chapter 6). We will conclude by looking at the various rights of way and access rights granted to members of the public (Chapters 7-8).

National Parks, the Broads, and AONBs – a potted legislative history

National Parks

    1. The first Freedom to Roam bill was introduced into parliament by James Bryce MP in 1884. It failed, but the campaign for the right for public access had begun. Over the following years, until 1914, similar bills were introduced and voted down, and regular petitions were presented to parliament. In 1931, the Report of the National Park Committee (1931) (Cmd 3851) recommended, among other things, setting up National Authorities for parks to ensure the preservation of natural beauty in the countryside. That was not, however, implemented, leading to further public pressure. In April 1945, Mr John Dower provided a report to the minister of town and country planning on NPs: National parks in England and Wales (1945) (Cmd 6628). That report provided the foundation for the detailed proposals subsequently prepared by the National Parks Committee, chaired by Sir Arthur Hobhouse. It reported in 1947 with the Report of the National Parks Committee (England and Wales) (1947) (Cmd 7121).

    2. In 1949, Parliament enacted the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”). This allowed for the creation of NPs. Over the following decade, ten NPs were designated. They, and their dates of confirmation, are: the Peak District (1951); Lake District (1951); Snowdonia (1951), Dartmoor (1951), Pembrokeshire Coast (1952), North York Moors (1952), Yorkshire Dales (1954), Exmoor (1954), Northumberland (1956), and the Brecon Beacons (1957).

    3. In 1985, the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (“the 1985 Order”) was published. In 1989, the Nature Conservation and Amenity Lands (Amendment) (Northern Ireland) Order 1989/492 amended the 1985 Order, and established the Council for Nature Conservation and the Countryside. Articles 13 and 14 of the 1985 Order allow the Department of the Environment of Northern Ireland to designate areas as NPs. At the time of writing no such areas have been designated, although the Mourne Mountains is frequently suggested, and significant controversy surrounds the failure to so designate.

    4. In 1995, following the delivery of the report Fit for the Future (Report of the National Parks Review Panel (1991), the Environment Act 1995 (“the EA 1995”) updated the purposes of NPs, and made the National Park Authorities (“NPAs”) independent bodies within local government.

    5. In 2000, the National Parks (Scotland) Act 2000 created a similar scheme for National Parks in Scotland. Two have been designated –Loch Lomond & The Trossachs (2002) and the Cairngorms (2003).

    6. Both the 1949 Act and the EA 1995 were subsequently amended by the Natural Environment and Rural Communities Act 2006 (“the NERC Act 2006”).

    7. The New Forest was confirmed as a NP in 2006, the South Downs in 2010.

    8. National Parks England (“NPE”) is an association of the National Parks in England plus the Broads.

The Broads

    1. The Broads comprise over 300 square kilometres of wetland landscapes in east Norfolk and Suffolk. In Howell v Secretary of State for Communities and Local Government [2014] EWHC 3627 (Admin), it was described by the Broads Authority as:

the United Kingdom’s largest protected wetland and boast[ing] a quarter of its rarest species. The broad, shallow lakes are man-made rather than natural. They began as pits dug for peat to provide fuel during medieval times. Over the centuries water levels rose, the peat diggings became flooded and by the 14th century they were abandoned’. The special characteristics of the Broads, as summarised from the Broads Plan 2011, are the wide, open landscape, the winding waterways, the big skies, the abundance and diversity of nature, the sense of space, tranquillity and wildness, the local character of beautiful churches, windmills and quiet villages, and the opportunities for boating and sailing.” (at [37]).

    1. The advent of the protection of the Broads is recounted in R (Harris) v Broads Authority [2017] 1 W.L.R. 567 at paras. 13-14. Very briefly, although listed as a potential NP in the Hobhouse report, designation did not proceed in the 1950s. Following a deterioration of the water quality within the broads in the 1970s, the Countryside Commission resolved in 1978 that the Broads merited the distinction of designation as a NP, but deferred designation to allow steps to be taken locally to establish an executive committee similar to the structures then in place for NPs. Following consultation, it was concluded that, because of particular issues concerning the waterways, a standard NP solution should not be adopted and, instead, a bespoke arrangement pursued. Although initially this took the form of a joint committee of local authorities, the water authority, harbour master and other interests, it was later thought necessary for a bespoke statutory arrangement. In 1988, Parliament enacted the Norfolk and Suffolk Broads Act 1988 (“the NSBA 1988), giving the Broads similar status to the NPs. They were confirmed in 1989. Further powers with regard to the waterways known as the “navigation area” were provided by the Broads Authority Act 2009 (“BAA 2009”).

Areas of Outstanding National Beauty

    1. The 1949 Act also, in section 87, allowed the Countryside Commission to designate areas outside of the NPs as AONBs if they were of “such outstanding natural beauty” that it was desirable. Thirty seven AONBs were designated in England between 1957 and 1995, and five in Wales between 1956 and 1985.3 However, there were concerns that the standards of management between AONBs varied. In 1998, the Countryside Commission produced a report entitled Protecting our Finest Countryside: Advice to Government (CCP 532).4 This contained a number of proposals for ensuring that AONBs were better and more consistently managed. This led to Part IV of the Countryside and Rights of Way Act 2000 (“the 2000 Act”), which currently governs AONBs. It, too, has been amended by the NERC Act 2006.

    2. In Northern Ireland, section 14 of the 1985 Order allows the Department for the Environment to designate an area as an AONB.

    3. The UK currently has 46 AONBs – 33 in England, four in Wales, one crossing the border between England and Wales, and eight in Northern Ireland. Occasionally, the government may decide to expand the area of an AONB. For example, on 07 July 2020 the Suffolk Coast and Heaths AONB was extended by c. 38km2, to include areas such as the Stour Estuary.5

  1. STATUTORY PROVISIONS: A BRIEF OUTLINE

National Parks

The purpose of National Parks legislation

    1. Provision for NPs was made by Part II of the 1949 Act. S. 4A of the 1949 Act provides that Part II also applies in Wales, with the modification that the functions conferred on Natural England in England are conferred on the Natural Resources Body for Wales (“NRBW”) in Wales.

    2. The purposes of that Part are outlined in section 5(1):

(1) The provisions of this Part of this Act shall have effect for the purpose—

(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and

(b) of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.”

    1. There are thus two statutory purposes for NPs: (i) conserving and enhancing natural beauty etc. and (ii) promoting opportunities for public access.

    2. Sub-section 114(2) provides that the conservation of natural beauty of an area includes preservation of conservation of its flora, fauna, geological and physiographical features.

    3. In Northern Ireland, the 1985 Order is in similar terms. Section 12 provides:

12.—(1) Where, in relation to an extensive area of countryside, the Department considers it desirable that measures be taken for the purposes of—

(a) conserving or enhancing the natural beauty or amenities of that area;

(b) conserving wildlife, historic objects or natural phenomena therein;

(c) promoting the enjoyment by the public of the area; and

(d) providing or maintaining public access to the area;

the Department may by order designate the area as a National Park.

Designation of National Parks

    1. Section 5 of the 1949 Act continues:

(2) The said areas are those extensive tracts of country in England as to which it appears to Natural England that by reason of—

(a) their natural beauty, and

(b) the opportunities they afford for open-air recreation, having regard both to their character and to their position in relation to centres of population,

it is especially desirable that the necessary measures shall be taken for the purposes mentioned in the last foregoing subsection.

(2A) Natural England may–

(a) when applying subsection (2)(a) in relation to an area, take into account its wildlife and cultural heritage, and

(b) when applying subsection (2)(b) in relation to that area, take into account the extent to which it is possible to promote opportunities for the understanding and enjoyment of its special qualities by the public.

(3) The said areas, as for the time being designated by order made by Natural England and submitted to and confirmed by the Minister, shall be as known as, and are hereinafter referred to as, National Parks.”

    1. In determining what constitutes “Natural beauty”, section 99 of the NERC Act 2006 provides:

The fact that an area in England or Wales consists of or includes—

(a) land used for agriculture or woodlands,

(b) land used as a park, or

(c) any other area whose flora, fauna or physiographical features are partly the product of human intervention in the landscape,

does not prevent it from being treated, for the purposes of any enactment (whenever passed), as being an area of natural beauty (or of outstanding natural beauty).”

    1. Sections 59 (which inserted section 2A of the 1949 Act) and 99 of the NERC Act 2006 were intended to undo the effects of the High Court’s decision in Meyrick Estate Management Ltd v Secretary of State for the Environment, Food and Rural Affairs [2005] EWHC 2618 (Admin) (affirmed on appeal [2007] EWCA Civ 53).6 That case concerned the registration of the Hinton Estate as a NP under section 5(2). Sullivan J held at paras. 58-61, that, at the time it was enacted, “natural beauty” required “a high degree of ‘relative naturalness’”, such that well maintained historic parkland and well-ordered fields of dairy farms would be the “antithesis” of naturalness. It was not synonymous with “visual attractiveness” or “landscape quality”. Accordingly, a broader range of factors, such as historical and cultural factors, could not be taken into account. He also held, at para. 82, that the opportunities afforded for recreation in section 2(b) did not equate with opportunities that could be afforded – so absent any track record of granting access, desire to do so, or prospect of the public being able to require access under other enactments, there were no more than vague aspirations under that section. An order could not be based on those.

    2. For the purposes of sub-section 5(3), the procedure governing designation of an NP by Natural England or NRBW, and confirmation or variation of that Order by the Minister, is governed by section 7 and the First Schedule to the 1949 Act.

    3. Section 6 of the National Parks and Access to the Countryside Act 1949 then places three distinct duties on Natural England and NRBW with regard to NPs. First, they must, from time to time, consider whether to designate additional areas as NPs. Second, they must consider under both the 1949 Act and the Town and Country Planning Acts what action must be taken for the purposes outlined in section 5(1), and make recommendations to the Secretary of State, NPAs and local authorities. Third, they are placed under a number of duties to advise the Secretary of State or local planning authorities with regard to proposed developments and development plans in NPs.

    4. In Northern Ireland, the equivalent provisions are much shorter. As outlined above at para. 2.5, if the Department for the Environment considers that designation is desirable for the purposes set out therein, it may by order designate the area. The Department is to be advised by the Council for Nature Conservation and the Countryside.

National Park authorities

    1. Section 63 of the EA 1995 gives the Secretary of State power to establish, by order, a NPA in respect of any land designated as a NP. Section 64 gives him power to reconstitute Welsh National Park planning boards as NPAs. Section 63(7) and Schedule 7 make provision for, among other things, the membership of NPAs.7

    2. The powers of NPAs are provided by sections 65-70 and Schedules 8-9 of the EA 1995. They are explored in more detail in Chapter 2 and so only outlined (very) broadly here. This includes consideration of the duty to have in place a National Park Management Plan: see section 66 of the EA 19958.

    3. The purpose of establishing and providing powers to NP authorities is outlined by section 65(1) the EA 1995:

(1) This Part so far as it relates to the establishment and functions of National Park authorities shall have effect for the purposes specified in section 5(1) of the National Parks and Access to the Countryside Act 1949 (purposes of conserving and enhancing the natural beauty, wildlife and cultural heritage of National Parks and of promoting opportunities for the understanding and enjoyment of the special qualities of those Parks by the public).”

    1. Section 11A(1) of the 1949 Act further provides:

(1) A National Park authority, in pursuing in relation to the National Park the purposes specified in subsection (1) of section five of this Act, shall seek to foster the economic and social well-being of local communities within the National Park and shall for that purpose co-operate with local authorities and public bodies whose functions include the promotion of economic or social development within the area of the National Park.”

    1. In R (Harris) v Broads Authority [2017] 1 W.L.R. 567, Holgate J said this subsection

“…imposes relatively broad duties, which are largely dependent upon the value judgments made by a National Park Authority from time to time. The subsection is directed at the promotion of broad objectives and securing co-operation between public bodies within that context…” (at [75]).

    1. A NPA’s powers include the power to do anything which, in its opinion, is calculated to facilitate, or is conducive or incidental to, the accomplishment of the purposes outlined in section 5(1) of the 1949 Act and (in Wales) the carrying out of any functions conferred on it by any other statute (section 65(5)(a) and (b) of the EA 1995). In England, in place of the powers outlined in section 65(5)(b), general powers and their limitations are provided by Section 65A-D of the EA 1995. It is given authority to do anything it considers appropriate for the purposes of carrying out its functions or for purposes incidental to its functional purposes, anything it considers connected with those functions or incidences, or anything it could do in that capacity for a commercial purpose (see section 65A(1) the EA 1995). The Secretary of State may, however, make regulations restricting the exercise of those powers (sections 65C-D of the EA 1995). Supplemental and incidental powers are provided by Schedule 8 to the EA 1995. A NPA is also made the local planning authority in relation to the NP (see sections 67-69 EA 1995 and section 4A of the Town and Country Planning Act 1990 (“TCPA 1990”)), must develop a National Park Management Plan (section 66 of the EA 1995) and is given further miscellaneous functions by section 70 and Schedule 9 to the EA 1995.

National Parks’ role in the planning system

    1. In contrast to the section 11A(1) duty imposed on NPAs, section 11A(2) of the 1949 Act then places a duty on relevant public authorities (widely defined by sub-sections 11A(3)-(6) to include ministers of the Crown, public bodies and statutory undertakers). Section 11A(2) provides:

[i]n exercising or performing any functions in relation to, or so as to affect, land in a National Park, any relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and, if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park.”

    1. The second part of this clause (prioritising the conservation and enhancement over public enjoyment) implements what is known as the Sandford Principle. It arose in a report of the National Park Policies Review Committee, chaired by Lord Sandford, in 1974, effectively to ensure that excessive enjoyment did not undermine the conservation of natural beauty. It has been considered briefly in R (Harris) at paras 85-87. In Stubbs (on behalf of Green Lanes Environmental Action Movement) v Lake District National Park Authority [2020] EWHC 2293 (Admin), Dove J held that the Sandford Principle and s. 11A(2) could only be invoked when the NPA considered, using its own judgment, that there was an irreconcilable conflict between the two purposes of NPs. He said:

“ … the use of the word “conflict” in section 11A(2) is not to be understood as referring to any conflict or friction between the two purposes set out in section 5. Those purposes will very often be at odds with each other in the absence of any intervention to resolve them (such as the erosion caused to popular paths by walkers, cyclists or horse riders). Thus, something more than simply conflict which is not managed must arise for the provisions of section 11A(2) to be triggered. In truth, it does not appear that this proposition is controversial. Where the National Park Authority judges that the conflict can no longer be satisfactorily mediated through management or stewardship then, in circumstances where it is judged that both purposes cannot be accommodated and the National Park Authority concludes that it must make a choice, section 11A(2) makes clear that it is the first of the purposes which is to be afforded greater weight. Whether this is described as a conflict which is acute, or unresolvable, or irreconcilable is a matter of semantics. However, each of these adjectives properly describes the point at which section 11A(2) comes into play, in order to resolve a conflict which cannot be properly accommodated through management measures when greater weight then has to attach in the decision-taking process to the first purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the national park”. (at [39])

In my view Holgate J was correct [(in Harris)] when he observed that the provisions of section 11A(2) impose “relatively broad duties, which are largely dependent upon the value judgements made by a National Park Authority from time to time”. It is clear that broad and often subjective judgements will need to be formed by a National Park Authority in relation to how the best interests of both of the purposes set out in section 5 are to be served by the decisions which it makes. In addition to these judgments, the question of whether or not there is a conflict which engages section 11A(2) is a further exercise of judgment in relation to the broad duties imposed on the National Park Authority. What is clear from the language of the statute, and the way in which section 5 and section 11A(2) of the 1949 Act interrelate, is that section 11A(2) arises in circumstances where the National Park Authority reaches the judgment that a conflict between the two purposes is such that it cannot be resolved or reconciled and the preference for the first statutory purpose under section 5 of the 1949 Act must arise. Section 11A(2) is a necessary means of breaking the deadlock where the interests of the two purposes cannot be mediated through a management or stewardship solution”. (at [40])

    1. Some key points need elaboration. First, the duty applies where a relevant authority is exercising or performing any functions “in relation to, or so as to affect, land in a National Park”. This is very widely drawn – we think deliberately so.…..

 

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1See Landscapes Review: Final report – summary of findings (25 September 2019) at https://www.gov.uk/government/publications/designated-landscapes-national-parks-and-aonbs-2018-review/landscapes-review-summary-of-findings accessed 26 May 2020.

2See para. 6.32, and see further Chapter 4.

3See the Explanatory Notes to the Countryside and Rights of Way Act 2000, paras. 251-55.

4A digital copy of this is available on the website of the National Association for AONBs, at https://landscapesforlife.org.uk/application/files/6315/5552/1975/CCP-532.pdf (accessed 26 May 2020).

6See paragraphs 167 and 230 of the Explanatory Notes to the NERC Act 2006

7Broadly, paragraph 1 of Schedule 7 provides that a National Park authority shall consist of a specified number of local authority members, (in England) parish members appointed by the Secretary of State, and specified number of other members to be appointed by the Secretary of State. See the National Park Authorities (England) Order 2006/3165 and the National Park Authorities (England) Order 2015/770, the National Park Authorities (Wales) Order 1995/2803, the New Forest National Park Authority (Establishment) Order 2005/421 and the South Downs National Park Authority (Establishment) Order 2010/497. Most have been amended by various other statutory instruments.