AC-2024-MAN-000347 - [2025] EWHC 2630 (Admin)

Permission to proceed with this claim for judicial review was granted on 25 July 2024. The Defendant filed detailed grounds of defence on 18 September 2024. On 8 April 2025, one day prior to the filing of the Claimant’s skeleton argument and some three weeks prior to the hearing of the claim on 30 April 2025, the Claimant filed an application to amend its grounds of claim. The proposed amendment was to add a further ground of challenge, contending that in deciding to grant the planning permission the Defendant had erred in its interpretation and application of the Sandford principle.

The Claimant made no attempt in its application form to explain or to justify the obvious lateness of the proposed amendment. Mr Brett fairly accepted that there had been no good reason why the Claimant could not have advanced the new ground of challenge in its statement of facts and grounds in support of the claim lodged in June 2024. The amended ground was advanced on the basis that it increased the scope of ground 1. In fact, the amended ground advances a substantial and free-standing new ground of challenge to the Defendant’s decision to grant the planning permission.

It was said that the Defendant suffered no prejudice as a result of the lateness of the application to amend. That is plainly incorrect. As Mr Ned Westaway submitted on behalf of the Defendant, the Defendant had no opportunity to respond to the proposed new ground either in evidence or by way of detailed defence. In the circumstances, it is not for the Claimant to speculate on the extent to which the Defendant might find it necessary or appropriate to file further evidence or to supplement its grounds of defence in response to this further alleged legal flaw in its decision making on the planning application. There is, moreover, force in Mr Westaway’s argument that the new ground may raise wider questions as to how the Defendant approaches the application of the Sandford principle in development management decision making, which the Defendant would have wished to address in evidence.

These are powerful reasons to refuse the Claimant’s application to amend its grounds of claim. They are further reinforced by the lack of substantive merit in the proposed new ground of challenge, as I shall now explain.

The Claimant founds its argument on the planning officer’s analysis in paragraphs 5.79-5.80 and 6.5 of the Report. In those paragraphs, the planning officer found that the development would cause low level harm to the significance of the Lake District World Heritage Site. That harm resulted from the increase in activity within the quarry site, which would also change what she described as the perceptual character of the quarry as a feature of the Lake District’s industrial heritage. In the light of those findings, the planning officer acknowledged that the development would not further the first statutory purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the Lake District National Park. In particular, the development would not further the purpose of conserving the cultural heritage of the National Park. It is pertinent to recall that the planning officer had concluded in paragraph 5.62 that the proposed development would conserve the natural beauty and harmony of the National Park.

In paragraph 5.79 of the Report, the planning officer found the development to have the benefit of offering public access to a heritage asset which is not currently open to the visiting public, in that way furthering the second statutory purpose of promoting opportunities for the understanding and enjoyment of the special qualities of the National Park. In the light of that finding, a conflict had arisen between the two statutory purposes and the Sandford principle was engaged.

The planning officer applied the Sandford principle in paragraph 5.80 of the Report. She stated her conclusion in paragraph 6.5 that, affording greater weight to the conservation of cultural heritage in the National Park, and great weight to the conservation of heritage assets, she nevertheless found that the harm resulting from the development would be outweighed by its public benefits, in particular public access.

Mr Brett submitted that the planning officer’s analysis was erroneous in law. He submitted that the purpose of the Sandford principle, given statutory effect by section 11A(1A) of the 1949 Act, is to resolve the conflict between the two statutory purposes under section 5(1) of the 1949 Act where they cannot otherwise be reconciled. The Sandford principle does so by preferring the first purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of a National Park over the second purpose of promoting opportunities for the understanding and enjoyment of the special qualities of the National Park. Mr Brett submitted that in order for that statutory preference to be given effect, the first purpose must always prevail over the second purpose. As a matter of law, it is inconsistent with the proper application of the Sandford principle for the second purpose to be allowed to prevail on the basis that the benefits which result from furthering the second purpose outweigh the harm which results from failing to further the first purpose. For those reasons, the advice and conclusions of the planning officer failed to give proper effect to the Sandford principle and to the statutory purpose of section 11A(1A) of the 1949 Act in giving effect to the Sandford principle.

The insuperable difficulty which the Claimant faces in pursuing that line of argument is that it simply ignores the clear language of section 11A(1A) of the 1949 Act. In a case in which there appears to be a conflict between the two purposes specified in section 5(1), the obligation placed upon a relevant authority is to 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. Had Parliament intended that in any such case, the purpose conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park must necessarily prevail, it would have been straightforward to enact the Sandford principle in terms to that effect.

In other words, had the legislative intention been to prescribe as the outcome in any such case, that the first purpose specified in section 5(1) must prevail, section 11A(1A) of the 1949 Act could and would have been expressed in those terms. Instead, Parliament has chosen to prescribe the relative weight to be given to the two specified purposes in section 5(1) in any case in which they are found to be in conflict. Parliament has chosen to tilt the balance in favour of furthering conservation and enhancement of natural beauty, wildlife and cultural heritage of the Park over furthering the promotion opportunities for the understanding and enjoyment of the Park’s special qualities. The critical point being that under the clear terms of section 11A(1A) of the 1949 Act, it remains for the relevant authority to strike the balance in the exercise of its evaluative judgment, provided that in doing so the authority gives greater weight to the purpose of furthering the conservation and enhancement of natural beauty, wildlife and cultural heritage of the Park.

In the present case, the function being performed by the Defendant was the determination of a planning application in accordance with section 70 of the 1990 Act. The Defendant was required to take account of all material considerations, including the relevant policies of the development plan. The process of determining a planning application is evaluative. It is trite law that the attribution of weight to material considerations was for the Defendant as the decision maker, in the exercise of its planning judgment. Although section 38(6) of the 2004 Act requires the Defendant to recognise the priority to be given to the development plan, it does not affect the fundamental principle that it is for the Defendant to evaluate the considerations which are material to its decision whether to grant planning permission: see City of Edinburgh Council v Scottish Secretary [1997] 1 WLR 1447, 1458G-H.

Section 11A(1A) of the 1949 Act imposes further obligations which the Defendant is required to fulfil in determining a planning application in relation to any land in the Lake District National Park. In determining any such planning application, the Defendant is required to seek to further the purposes specified in section 5(1) of the 1949 Act: see New Forest National Park Authority v Secretary of State for Housing, Communities and Local Government [2025] EWHC 726 (Admin). In the case of a planning application which appears to give rise to a conflict between those specified purposes, in determining that application the Defendant must give greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the National Park.

However, there is a clear and obvious distinction between an obligation to give greater weight to one purpose and correspondingly, less weight to another purpose; and an obligation to regard the first of those two purposes as determinative. A decision maker who is required to give greater weight to one purpose over another nonetheless retains an element of judgment. In particular, the decision maker is able to judge whether that to which they are required to give greater weight is of such limited significance, and that to which they are required to give lesser weight of such high significance, that the former nevertheless overrides the latter. Otherwise, the decision-making process ceases to be evaluative and instead becomes prescriptive.

As I have said, it would have been open to Parliament to prescribe the outcome in any case in which a conflict appeared to arise between the two purposes specified in section 5(1) of the 1949 Act. It would have been possible to require the decision maker in any such case to give effect to the first specified purpose; or to state that in any such case the first specified purpose shall prevail. Parliament did not enact the Sandford principle in those terms. As Dove J observed in R (Stubbs) v Lake District National Park Authority [2021] PTSR 261 at [39], the starting point must be the statutory language of what is now section 11A(1A) read in the context in which it sits.

The requirement imposed upon the Defendant in the present case was to give greater weight in the process of determining the planning application to the first purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the Lake District National Park. That was precisely what the planning officer did in paragraphs 5.79-5.80 and 6.5 of the Report. For the reasons I have given, it was open to her in law to advise, and for the Defendant’s Committee to conclude, that the benefits offered by the development in providing public access to and appreciation of the quarry as a feature of the Lake District’s industrial and cultural heritage nevertheless overrode the limited harm caused to that heritage asset by increased activity at the quarry site. That analysis and that conclusion involved neither any misinterpretation nor misapplication of the Sandford principle as enacted under section 11A(1A) of the 1949 Act.

I refuse permission to amend the grounds of claim. Had I given permission to amend, I would have found the proposed additional ground to be arguable but would have rejected it for the reasons I have given.