Court of Appeal refusal of permission to appeal paves way for 10,000-home new town in Hertfordshire to proceed

Ezzat and Jaber Jaafar, who own the nearby Grade 1 listed Hunsdon House, brought the case against East Hertfordshire District Council, seeking to overturn its grant of outline planning permissions for the development by social landlord Places For People Developments and housebuilder Taylor Wimpey UK.

In refusing permission, Lord Justice Lewison said that many of the concerns voiced by the claimants could be dealt with at a later stage. The Court of Appeal judge also said that in considering the balance between harm to a heritage asset and public benefit the council was entitled to exercise its own planning judgement.

Lord Justice Lewison said that an appeal would have "no real prospect of success".

Lee Gordon, partner in planning and infrastructure consents at law firm Walker Morris, who acted for East Hertfordshire, said: “The scale of the proposals gave rise to a wide range of complex points which are of relevance to the delivery of multi-phase garden town developments.

“We’re delighted the courts have endorsed the approaches taken, to have helped successfully defend the council's decisions from legal challenge and that the project can now progress without further delay.”

The High Court had in September refused permission for judicial review, as had Lang J on papers in June.

Lang J then heard the further application for judicial review, but said in her judgment that all nine grounds were either incorrect or unarguable.

She refused the Jaafars’ application for judicial review of decisions to grant outline permission.

The first ground argued was that East Hertfordshire failed to consider a requirement for whether 40% affordable housing was viable. The application had reduced this to 23% on grounds of viability.

Lang J said: “In my view, the defendant was entitled, in the exercise of its judgment, to rely upon the independent advice…and the viability appraisals from [Places for People and Taylor Wimpey]. It was rational for the defendant to conclude that [a planning consultant’s] strategic assessments were not mandatory material considerations for the committee to consider.”

The claimants next argued that viability documents were not published in advance of the planning committee meetings, as required by national and local policy.

Lang J said she accepted submissions by the council that these fell outside the scope of section 100D of the Local Government Act 1972 as they were not background papers, nor were they relied upon to a material extent in preparing the reports.

She then rejected a series of grounds concerning the heritage impact on Hunsdon House, an alleged failure to adequately report the quality panel’s comments on the scheme and the way in which the committee reached decisions. Lang J also rejected a ground concerning an environmental impact assessment.

Mark Smulian