Ezzat Jaafar & Anor, R (on the application of) v East Hertfordshire District Council

In a renewed application for permission to seek judicial review of planning permissions, the court held that a planning authority may rely on detailed, scheme-specific viability evidence and independent expert advice instead of high-level strategic assessments. Documents are background papers only where they were materially relied on in preparing the report or decision. Potential planning harm does not ordinarily make consideration of alternatives mandatory; that arises only in wholly exceptional circumstances. Development plan policies protecting heritage assets do not necessarily prohibit development causing any degree of harm, since that harm may be weighed against public benefits. Officers need return delegated matters to committee only where a material change could affect the original decision. For environmental impact assessment, whether developments constitute one project or separate projects is a matter of planning judgment, provided cumulative effects are considered.

The claimants, owners of the Grade 1 listed Hunsdon House, sought permission to challenge East Hertfordshire District Council’s decisions of 9 January 2025 granting outline permission for two residential-led developments in the Gilston area. The permissions concerned Villages 1 to 6, comprising approximately 8,500 homes, and Village 7, comprising approximately 1,500 homes.

Permission had previously been refused on the papers by Mould J. The renewed application raised grounds concerning affordable housing and viability, publication of documents, heritage impacts and alternatives, Quality Review Panel material, the committee’s delegated resolutions, and environmental impact assessment. The central question was whether any ground disclosed an arguable error of law warranting permission for judicial review.

The renewed application for permission to apply for judicial review was refused on every ground.

1. Viability and affordable housing. The council was entitled to rely on detailed, development-specific viability appraisals and independent BPS reviews. The HDH strategic assessments were high-level assessments of infrastructure requirements for the Garden Town as a whole, not full appraisals of the proposed schemes. They were therefore not mandatory material considerations, and it was rational to conclude that the detailed evidence supported 23 per cent affordable housing rather than 40 per cent.
2. Publication and background papers. The HDH assessments and BPS reports did not fall within section 100D of the Local Government Act 1972 because they were not background papers materially relied on in preparing the reports. The delayed publication of the BPS reports was explained by superseded material and ongoing negotiations. In any event, the claimants suffered no material prejudice and the outcome would highly likely have been substantially the same, applying section 31(3C) to (3D) of the Senior Courts Act 1981.
3. Heritage and alternatives. Policy GA1 and the Neighbourhood Plan did not prohibit development causing any degree of heritage harm. The committee had received comprehensive advice on the statutory listed-building duty, the less-than-substantial harm to Hunsdon House, mitigation and public benefits. Availability of alternatives was not a mandatory material consideration merely because planning harm was possible. Under R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2021] EWHC 2161 (Admin) and R (Substation Action Save East Suffolk) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 317, alternatives were material only in wholly exceptional circumstances. None arose.
4. Committee procedure and EIA. The Quality Review Panel material concerned voluntary, private, pre-application design review and matters reserved from the outline permissions. Under R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370, delegated matters required referral back only if a material change could affect the original decision. The 12-month reporting requirement concerned monitoring, not reconsideration of the permissions. Regulation 18(4)(a) of the EIA Regulations 2017 required the environmental statement to be based on the latest scoping opinion, not to comply with it. The council was entitled, applying R (Wingfield) v Canterbury CC [2019] EWHC 1975 (Admin), to treat the schemes as separate projects while considering cumulative effects.

High Court (Planning Court): Mould J refused permission on the papers on 5 June 2025. Lang J refused the renewed application for permission on all grounds.