Roger James Beaumont, R (on the application of) v East Hertfordshire District Council & Anor

In a renewed application for permission to seek judicial review of planning decisions, a claimant must show an arguable error of law. Planning authorities may attach substantial weight to the benefits of related development where, as a matter of planning judgment, those benefits are sufficiently likely to materialise and a planning condition provides an appropriate linkage. An environmental statement need not assess a merely theoretical scenario which is not likely to occur. Worst-case ecological assumptions may lawfully address gaps caused by lack of access, particularly where mitigation and later verification are secured by conditions. Disagreement between professional experts does not itself establish unlawfulness. Under Civil Procedure Rules 1998, CPR 45.44, a costs cap depends on whether proceedings would be prohibitively expensive, having regard to the claimant’s resources and the circumstances of the case.

The claimant sought permission for judicial review of five decisions made by East Hertfordshire District Council and Harlow District Council concerning planning permission and listed building consent for two river crossings and associated roads in the Harlow and Gilston Garden Town.

The crossings were intended to facilitate planned housing development. The claimant owned land within the Eastern Stort Crossing application area and challenged the decisions on grounds concerning planning conditions, environmental impact assessment, green belt reasoning, heritage assets, ecological surveys, transport assessment and reliance on the benefits of the housing development.

Permission had previously been refused by Sir Ross Cranston on 23 August 2022. The renewed application also challenged the costs orders made at that stage.

1. Permission refused. All renewed grounds were unarguable. The costs orders were varied only in relation to the sum payable to the defendants.
2. Under section 70(1) of the Town and Country Planning Act 1990, the defendants had a broad discretion to impose conditions. It was rational to use condition 4 to link the crossings to the grant of planning permission for Villages 1–6, without requiring implementation or completion of those villages. The authorities were entitled to judge that the crossings were unlikely to proceed without the associated development, particularly because the same developer was involved and the crossings would otherwise be unnecessary.
3. The environmental impact assessment properly treated the crossings and Villages 1–6 as one project. The possibility that the crossings might proceed alone was not likely and was not a serious possibility requiring separate assessment as a likely significant effect.
4. The same planning judgment rationally supported reliance on the benefits of Villages 1–6 in assessing very special circumstances for green belt development and in considering whether harm to protected species was justified. The local plan inspectors had not been asked to exclude the crossing schemes from the green belt and had not considered the soundness of such a proposal.
5. The environmental statement was not legally deficient. In the absence of access for detailed surveys, it used precautionary or worst-case assumptions concerning water voles, otters, reptiles and birds, together with mitigation and provision for refreshed surveys and verification. A professional disagreement over transport modelling did not disclose an arguable error of law where the authorities were entitled to rely on the relevant highways advice.
6. Harlow’s members had received adequate and accurate advice concerning heritage assets, including assets outside its administrative area. In any event, the officers’ advice and the case officer’s presentation identified the cross-boundary relevance of the heritage impacts.
7. Applying CPR 45.44, the £30,000 Aarhus costs cap was neither beyond the claimant’s resources nor objectively unreasonable. The defendants’ reduced costs award of £20,000 remained excessive and disproportionate, and was reduced to £15,000. The £5,000 awards to each interested party were confirmed.

Sir Ross Cranston, sitting as a High Court Judge, refused permission on 23 August 2022. The present court heard and refused the renewed application, while reducing the defendants’ costs award from £20,000 to £15,000 and confirming the £5,000 awards to each interested party.