The Countryside and Rights of Way Act 2000 and new statutory duty to seek further
The primary legislation relating to National Landscapes is set out in the Countryside and Rights of Way Act 2000 (CRoW Act). This legislation uses the original term for National Landscapes, ‘Area of Outstanding Natural Beauty’ (AONB). The Act includes provisions on the designation of AONBs, sets out requirements for the publication of AONB Management Plans and provides that the single purpose of Areas of Outstanding Natural Beauty is the conservation and natural beauty of the area.
The Levelling-up and Regeneration Act (2023) amended section 85 of the CRoW Act, to create a new duty on relevant authorities to ‘seek to further the purpose of conserving and enhancing the natural beauty of the area’ when discharging their functions in Areas of Outstanding Natural Beauty (now known as National Landscapes). The new duty replaces the previous requirement for relevant authorities to ‘have regard’ to the purpose of AONBs, and is intended as a more proactive and strengthened requirement.
The duty is a statutory one and applies to all relevant authorities when discharging any function that affects an Area of Outstanding Natural Beauty. Relevant authorities include all levels of government and includes government agencies and ministers. Statutory undertakers are also covered by the duty.
It is anticipated that guidance on the new duty will be published by DEFRA soon. In the meantime, the following advice has been provided by Natural England in respect of the new duty* :
Section 245 (Protected Landscapes) of the Levelling Up and Regeneration Act 2023 places a duty on relevant authorities in exercising or performing any functions in relation to, or so as to affect, land in a National Park, the Broads or an Area of Outstanding Natural Beauty (“National Landscape”) in England, to seek to further the statutory purposes of the area. The duty applies to local planning authorities and other decision makers in making planning decisions on development and infrastructure proposals, as well as to other public bodies and statutory undertakers.
It is anticipated that the government will provide guidance on how the duty should be applied in due course.
In the meantime, and without prejudicing that guidance, Natural England advises that:
- The duty to ‘seek to further’ is an active duty, not a passive one. Any relevant authority must take all reasonable steps to explore how the statutory purposes of the protected landscape (A National Park, the Broads, or an AONB) can be furthered;
- The new duty underlines the importance of avoiding harm to the statutory purposes of protected landscapes but also to seek to further the conservation and enhancement of a protected landscape. That goes beyond mitigation and like for like measures and replacement. A relevant authority must be able to demonstrate with reasoned evidence what measures can be taken to further the statutory purpose.
- The proposed measures to further the statutory purposes of a protected landscape, should explore what is possible in addition to avoiding and mitigating the effects of the development, and should be appropriate, proportionate to the type and scale of the development and its implications for the area and effectively secured. Natural England’s view is that the proposed measures should align with and help to deliver the aims and objectives of the designated landscape’s statutory management plan. The relevant protected landscape team/body should be consulted.
The new duty is applicable to all actions of relevant authorities, not just those relating to planning. In undertaking actions that impact or could potentially impact on National Landscapes and their settings, the relevant authority must be able to demonstrate how they have actively sought to further the purpose of conserving and enhancing the natural beauty of the National Landscape. The way in which the purpose of designation might be furthered, or the evidence of the genuine attempt to seek to do so, should be open to scrutiny.
* Advice provided by Natural England to the Lower Thames Crossing DCO Examining Authority on the implications of the new duty to further, Annex 2 of letter dated 15th December 2023
Further advice on the new duty is provided in the following Advice Notes: