To Harm or Not to Harm: How a High Court Ruling Just Raised the Bar for National Park Planning.
We are seeing a landmark shift in how planning applications are judged within National Parks and National Landscapes (formerly AONBs). The introduction of the 'duty to further' their statutory purposes is no longer a soft planning consideration; it's now a hard legal hurdle.
A recent High Court ruling has clarified exactly what this new duty requires of decision-makers and, by extension, of every developer with a scheme in these sensitive areas.
The Core Change: From 'Having Regard' to 'Seeking to Further'
Following the 2023 Levelling Up and Regeneration Act, the legal requirement for Local Planning Authorities (LPAs) when determining planning applications in protected landscapes has changed from merely 'having regard' to actively 'seeking to further' their purposes.
The High Court, in the case of New Forest National Park Authority v Secretary of State for Housing, Communities and Local Government, has provided the first judicial interpretation of this elevated duty.
The High Court's Verdict: 'Unharmed' is the New Benchmark
Justice Mould's ruling makes it crystal clear: to properly 'seek to further' the purposes of a National Park or National Landscape (i.e., conserving and enhancing its special qualities), it is necessary for the decision maker to consider whether the proposed development will leave unharmed the existing state of its:
- Natural Beauty
- Wildlife
- Cultural Heritage
When the LPA is satisfied that these three characteristics will be left unharmed, they can legitimately grant permission.
What This Means for Developers and Landowners
While the duty to comply falls on the decision-maker, it is in the applicant’s interest to demonstrate compliance.
In this new legal landscape, a low-quality application will simply not suffice.
Before: 'Have Regard'
Minimal harm could often be outweighed by other material considerations (e.g., housing need, economic benefit) in the planning balance.
Now: 'Seek to Further' (Must be Unharmed)
Any perceived harm (without good and clear reason) to Natural Beauty, Wildlife, or Cultural Heritage opens the door to legal challenge.
How We Can Help De-Risk Your Project
To meet this higher legal standard and safeguard your scheme against Judicial Review (JR) risk, your submission should be well considered.
At The Urbanists, our integrated approach is specifically designed to meet this enhanced duty:
- Integrated Landscape-Led Design: Our Planning, Urban Design, and Landscape Architecture teams work together from Day One to ensure the design is intrinsically informed by the area’s unique character.
- Evidencing no harm: We build evidence that directly addresses the three 'unharmed' criteria (Natural Beauty, Wildlife, Cultural Heritage) through detailed surveys, contextual analysis, and design evolution.
- Design-Led Compliance: We embed contemporary requirements such as Biodiversity Net Gain and sustainable drainage into the overall landscape strategy, ensuring compliance is an enhancement, not just a tick-box exercise.
The message for developers is straightforward: In National Parks and National Landscapes, planning permission is now a reward for exemplary placemaking that recognises the landscape's and cultural heritage's importance. Don't risk a challenge; build a submission that passes the 'unharmed' test from the outset.
