Development in National Parks. What is the scope of the new strengthened duty for planning decisions to further their purposes?

The Levelling-Up and Regeneration Act 2023 (“2023 Act”) introduced a new strengthened statutory duty on local authorities in relation to decisions that affect national parks. Such duty applies to planning decisions in England, but what is the scope of this new duty? This question was clarified in New Forest National Park Authority v Secretary of State for Housing, Communities and Local Government & Anor [2025] EWHC 726 (Admin).

Legal framework for national parks

Natural England, under The National Parks and Access to the Countryside Act 1949 (“the 1949 Act”), has the power to designate land in England as ‘national parks’ subject to confirmation by the minister.

Land is designated if it is especially desirable for it to be protected by the Section 5(1) purposes discussed below by reason of its natural beauty and the opportunities it affords for open-air recreation, having regard both its character and to its position in relation to centres of population.

The statutory purposes for national parks are set out in Section 5(1) of the 1949 Act and are:

• (a) Of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection
• (b) Of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public. (“the Section 5(1) purposes”).

Section 11A(1A) of the 1949 Act was enacted in its current terms by virtue of section 245 of the 2023 Act. It creates the following new statutory duty in relation to decision affecting national parks in England:

“In exercising or performing any functions in relation to, or so as to affect, land in any national park in England, a relevant authority other than a devolved Welsh authority must seek to further the purposes specified in section 5(1) and if it appears that there is a conflict between those purposes, must 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”

The material change in the duty placed upon relevant authorities in relation to national parks in England is they must now “seek to further” the Section 5(1) purposes whereas previously, and remains the case in Wales, their duty was to “have regard to” those purposes.

Discharge of the statutory duty for national parks

In the New Forest case it was not in dispute that the inspector and the council, in the original decision, were under the above strengthened duty. The issue in the case was whether the inspector discharged that duty.

In Howell v Secretary of State for Communities and Local Government [2014] EWHC 3627 (Admin) at [46] Cranston J said that a duty “to have regard to” a matter means that –

“That matter must be specifically considered, not that it must be given greater weight than other matters, certainly not that it is some sort of trump card. It does not impose a presumption in favour of a particular result or a duty to achieve that result. In the circumstances of the case other matters may outweigh it in the balance of decision-making”.

In contrast, Mr Justice Mould said that as a matter of ordinary English to “further” a stated purpose is to promote or to facilitate that purpose. Therefore, the duty imposed upon a planning authority in England requires more than merely weighing the effect of the proposed development on the Section 5(1) purposes in the overall balance.

To discharge the strengthened duty, the authority must determine whether the proposed development is consistent with the promotion of the Section 5(1) purposes. If the authority determines that the proposed development is in conflict with those purposes or would undermine the fulfilment of them, they must then consider whether the grant of planning permission would be in accordance with their duty to seek to further those purposes.

He continued by noting that the strengthened duty is expressed in qualified terms. The planning authority is required “to seek to further” the Section 5(1) purposes. It is it not under a duty necessarily to fulfil those purposes.

Nevertheless, in any case in which the authority determines that a planning application proposes development which is in conflict with the Section 5(1) purposes or will undermine their fulfilment, the authority ought both to consider whether, and to explain why, they have decided that planning permission may justifiably be granted. These are matters of judgment.

The planning authority may need to consider whether and if so, how the proposed development may be mitigated in order to address the identified conflict with the statutory purposes. They may need to consider whether any compensatory measures are available which might offset the identified conflict with the statutory purposes. They will need to consider the imposition of conditions or the need to obtain planning obligations to secure such measures.

The New Forest National Park Decision

Mr Justice Mould determined that the question to be considered for a judicial review of a planning decision is, therefore, not whether the decision maker gave the desirability of conserving and enhancing these features particular enhanced weight, but whether it took reasonable steps to conserve and enhance those features.

He went on to conclude that where a planning application proposes development of land in a national park – which is found at least to leave the park’s natural beauty, wildlife and cultural heritage unharmed – that provides a proper basis for the decision-maker to conclude the development will further the purpose of conserving and enhancing the park’s characteristic features. This conclusion suffices as a proper discharge of the decision maker’s duty in determining that planning application.

Decision makers will need to be careful when determining planning applications which affect National Parks to ensure they meet the new strengthened duty. Local authorities will likely take comfort that a determination that there is no harm satisfies the duty, but where harm is identified clear reasons will be necessary to defend against any challenge.