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

1. MRS JUSTICE LANG: This is a renewed application for permission to apply for judicial review of the decisions of the defendant on 9 January 2025 to grant outline permission for residential-led mixed developments in Villages 1 to 6 (which I will refer as "V1 to 6") and Village 7 (which I will refer to as "V7"), which are to be built on former greenbelt land, known as the "Gilston area", and forming part of the Harlow & Gilston Garden Town ("HGGT").

2. The allocation policies for the development are in Policy GA1 of the District Plan 2018 and also the Gilston Area Neighbourhood Plan. The application for V1 to 6 (8,500 homes) was made by the first interested party ("IP1") and the application for V7 (1,500 homes) was made by the second interested party (IP2).

3. On 28 February 2023, the Defendant's Development Management Committee ("the Committee") resolved to grant planning permission for V1 to 6, subject to a planning obligation. A similar resolution was passed in respect of V7 on 23 March 2023.

4. Planning permissions were issued for both applications on 9 January 2025, accompanied by a single agreement under section 106 Town and Country Planning Act 1990 (" TCPA 1990 ") for both schemes.

5. Officers’ delegated decision reports were published on the same day, concluding that the planning permission should be issued without further reference back to the Committee.

6. The claimants are the owners of Hunsdon House, a Grade 1 listed residence in the Gilston area.

7. Permission to apply for judicial review was refused on the papers by Mould J on 5 June 2025, applying the principles as set out in R(Mansell) v Tonbridge and Malling BC [2019] PTSR 1452 at [42]. I agree that is the correct legal approach to follow. Broadly I agree with Mould J's conclusions and the submissions made by the defendant in the summary grounds of resistance ("SGR") and supported by the submissions in the SGRs filed by IP1 and IP2. Grounds 1 and 2 - affordable housing and viability Ground 1

8. Under Ground 1, the claimants submit that the defendant failed to consider the relevant material which showed that 40% of affordable housing was viable. Policy HOU3 in the District Plan provides: "Affordable housing provision will be expected on all development sites that propose development that falls within Class C3 (dwelling houses) as follows: … (c) up to 40% on sites proposing 15 or more additional dwellings. … Lower provision may be permitted if it is demonstrated that the … 40 % referred to … cannot be achieved due to viability reasons or where it would prejudice the need to secure other infrastructure priorities ,,, Applicants seeking to justify a lower percentage level of affordable housing ... will be required to provide a financial viability assessment. … Where an agreement is not reached, external independent consultants agreed by both the Council and the applicant will be appointed by the developer to undertake further independent viability assessment."

9. The applications were originally submitted with 40 % affordable housing but subsequently reduced to 23 per cent on the grounds of viability. The claimants submit that the Committee report did not take into account the Strategic Viability Update by HDH Planning Consultants ("HDH") for the HGGT board in 2022, which showed that infrastructure costs had fallen by some £70 million since the original Strategic Viability Assessment was produced by HDH in 2019, meaning that the schemes were more viable and could support 40 % affordable housing.

10. Moreover, the HGGT Infrastructure Delivery Plan Update produced in September 2023 stated that costs remained similar to those tested in 2019 and so the Strategic Viability Assessment could continue to be relied upon. The delegated reports referred to the Update, but did not acknowledge that the figures contradicted the applications.

11. The defendant points out that both IP1 and IP2 submitted detailed independent viability appraisals, which were revised during the application process. The defendant also commissioned a review of those appraisals from an independent consultant, BPS. BPS produced three reports in relation to V1 to 6 and two in relation to V7. The BPS reports took account of the HDH's Strategic Viability Assessment and Strategic Viability Update, but, nonetheless, accepted the viability appraisal submitted by IP1 and IP2. IP1's and IP2's viability appraisals were thoroughly scrutinised by BPS with the assistance of BPS' expert costs consultant. It was accepted eventually that a minimum of 23 % affordable housing exceeded the maximum reasonable amount.

12. I accept the defendant's submission, supported by IP1 and IP2, that the HDH Strategic Assessment and Strategic Updates were not viability appraisals of the proposed development, with full details of the infrastructure requirements and costs of the Gilston area. Rather they were providing a high-level strategic assessment of the infrastructure requirements needed for the planned growth in the HGGT as a whole.

13. The defendant submits that the HDH Update report could not reasonably have been relied upon and was not intended for decision-making purposes on a planning application which contained full and up-to-date verified infrastructure costs. The broad estimates in the HDH Assessment had been superseded by actual scheme-specific data.

14. In regard to the HGGT Infrastructure Delivery Plan Update, I accept the defendant's submission that it did not contradict what was presented in the detailed Gilson viability appraisals. Furthermore, it was not a replacement for, or an update to, the site-specific and detailed assessments which had been undertaken in the course of the planning applications.

15. With regard to the claimants' submission in the statement of facts and grounds, at paragraph 28, that it was assumed that the site for V1 to 6 would be purchased at one go, thereby increasing interest costs, I accept the defendant's response in paragraph 17 of its SGR that the viability appraisal used an ungeared-rate-of-return approach, not a residual valuation approach, which reflected the fact that the most significant costs would be incurred in the first third of the housing trajectory.

16. In my view, the defendant was entitled, in the exercise of its judgment, to rely upon the independent advice from BPS and the viability appraisals from IP1 and IP2. It was rational for the defendant to conclude that the HDH strategic assessments were not mandatory material considerations for the committee to consider.

17. In my view, for these reasons, the claimants have not established any arguable error of law under Ground 1, therefore, permission is refused. Ground 2 - affordable housing and viability

18. Under Ground 2, the claimants submit that viability documents were not published in advance of the Committee meetings, as required by national and local policy and by sections 100 D and 100E of the Local Government Act 1972 (" LGA 1972 "). Contrary to those requirements, HGGT's 2022 strategic viability update prepared by HDH was not published on the council's website; it was only obtained by the claimants following a freedom of information request.

19. I accept the submissions by the defendant and the IPs that the HDH assessments fell outside the scope of section 100 D 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.

20. The claimants further submit that the BPS V7 reports were not published before the Committee meeting; they were published after the meeting with the date of publication deliberately backdated.

21. According to the defendant, BPS reviewed IP2's viability appraisals in reports dated December 2022 and February 2023. However, those reviews were superseded by further discussions between the Defendant and IP2, which led to an increase in the affordable housing offer. This is referred to in the Committee report at core bundle/15/465 paragraphs 13.4.4 to 13.4.11.

22. The circumstances in which the BPS reports came to be published are set out in the delegated decision report for V7 at core bundle/20/659, paragraphs 6.3 to 6.12. They provide as follows: "6.3. One FOI (Freedom of Information) request sought to see copies of reports from the council's viability consultant, BPS. In preparing the FOI response, Officers could not find the reports on the portal. This is not unusual because occasionally reports had been recorded with titles that are not always clear, so it was assumed at the time this was the case and Officers uploaded redacted versions of the two reports referred to in the FOI on 7 th August with clear titles in case. Assuming the reports were already on the portal, officers simply included the date the reports were received as 11th January and 7th February, respectively. 6.4. Stuart Miles, on behalf of the owner of Hunsdon House and Town Legal, emailed asking to confirm when documents were uploaded. Officers advised that the reports had been on the portal prior to committee, because Officers believed they had been so, albeit under different titles, notwithstanding that, by that point, officers had uploaded the redacted versions on August 7 th . 6.5 There was no deliberate 'misleading' intended and this is, in fact, not possible because the Uniform system carries clear audit trails of document uploads, amendments and when accessed, so anyone looking for upload dates internally can easily see this information. 6.6. Since receiving the Stuart Miles email, having discussed with the team it has emerged that the reports were not, in fact, uploaded when received, i.e. prior to committee. Email exchanges reveal that officers requested authorisation to do so, but it was decided not to publish the BPS reports while negotiations were ongoing with Taylor Wimpey, especially as the BPS reports were in response to the original viability submission containing 21.6% affordable housing. Dialogue was ongoing with Places for People which reached an agreed offer to deliver a baseline of 23 % affordable housing, despite parties acknowledging that the submissions could only demonstrate 21.6 % was viable and we were negotiating with Taylor Wimpey to increase their affordable housing provision. It was felt it was appropriate to not publish the BPS report during the negotiations. 6.7. As soon as negotiations were concluded, we rapidly turned to negotiating the heads of terms and finalising officer reports and at that point officers were under a huge pressure and, consequently, simply forgot to upload the reports at that time and, when the requests came through some eight months later, Officers had simply lost track of what had occurred. 6.8. The Officer reports, briefings to members and at the committee meeting itself, officers clearly described the history of negotiations and the final position reached, being the baseline of 23% affordable housing which superseded the 21.6 % figure included in the viability reports. The officer report considered viability aspects in appropriate detail, explained (paragraph 13.4.6) that the independent advice of BPS had been sought at each stage of the appraisal and included a clear officer recommendation informed by the BPS advice. The 23% was considered an improvement on the previous position and this was agreed by members, along with the commitment to secure an upwards-only affordable housing review mechanism, whereby viability reviews would be undertaken at agreed points of delivery, with the objective of determining whether it was possible to increase the percentage of affordable housing. 6.9. Officers considered that members of the public and members of the committee were not disadvantaged in not seeing the BPS reports prior to the committee. These were internal technical reports, largely intended to inform officers consideration of the application and their subsequent recommendation to members. Negotiations following the advice had resulted in an improvement to the overall scheme and this was made clear in the Officer report. 6.10. Further Town Legal and any other interested parties have been able to view the documents on the portal since 7 August 2023. Town Legal issued a further three FOI requests relating to various reports held by the council in its consideration of the viability appraisals. Throughout September 2023 to January 2024, the majority of the requests were for materials that were exempt from release as they pertained to internal consideration of the viability material designed to assist officers in fully appraising the implications of the viability submissions rather than formal application material submissions or related to requests to see drafts of the section 106 schedule that were at that time in very early draft form and as such still subject to negotiations. 6.11 As discussed earlier in section 5 (and summarised in appendix D), Town Legal commissioned their own high level viability appraisals by Continuum, sending these reports and two briefing notes directly to members of the committee. The Neighbourhood Plan Group sent letters to the local press off the back of these briefing notes, with another request to the DMC to reconsider the applications at committee. In addition, on 31 January 2024, Town Legal wrote to the Council's legal advisers regarding their position that officers had erred in its handling of the viability submissions and advice to members. Town Legal referred to selected quotes from BPS reports in their letter, so have been able to fully consider their contents for more than a reasonable period of time. 6.12. No queries or requests made through FOI requests were substantive or were considered to comprise material considerations that would be capable of leading members to make a different decision."

23. In my view, the defendant was entitled to withhold the BPS reports from publication at Committee stage for the reasons given by the officers in the delegated decision report. In particular, they had been superseded and there were ongoing sensitive negotiations. The officer's report accurately explained the position to the Committee and that report was available to the public.

24. It is apparent that the defendant intended to publish the BPS reports at a later stage. This was not because they were background papers falling within the scope of section 100 D (5) LGA 1972 . It is usual for a wide range of documents to be published on the portal. It appears that there was an administrative oversight in that the reports were not published and, when they were published pursuant to the FOI request, they were given the original dates. I do not consider that there was deliberate backdating with the implication of an intention to mislead. I consider that the officer's explanation which I have read out is entirely plausible.

25. Alternatively, even assuming for the purposes of this application, in the claimants' favour, that the defendant was under a legal obligation to publish the BPS reports once negotiations had concluded. I do not consider that the claimants were prejudiced by the delay in doing so. They were published in August 2023, which was months after the committee meeting, but also some 18 months prior to the grant of permission. As the delegated reports indicate, the claimants were able to consider the reports and commission their own viability assessments. Officers were able to consider this further material, if appropriate. Such further materials and any recommendations arising from them could have been referred to committee (see the case of Kides referred to under ground 7).

26. In any event, I am satisfied that it is highly likely that the outcome for the claimants would not have been substantially different if the conduct complained of had not occurred, applying section 31 (3C) to (3D) of the Senior Courts Act 1981 .

27. For these reasons, permission is refused on Ground 2. LATER Grounds 3 and 5 - heritage and Hunsdon House

28. Mould J refused permission on Grounds 3 to 5 which concerned the defendant's assessment of the impact of the proposed developments on the historic environment, in particular the Grade 1 listed Hunsdon House. The claimants now renew their claim on Grounds 3 and 5, but not Ground 4.

29. The claimants helpfully set out the relevant policies and legislation in their Statement of Facts and Grounds (“SFG”) at paragraphs 17 to 22. I also refer to the heritage assessments for H unsdon House which were summarised by the claimants at paragraphs 45 to 62 of the SFG. Ground 3

30. Under Ground 3, the claimants submit that in the V7 application, the defendant failed to have regard to or correctly interpret District Plan Policy GA1, the Heritage impact assessment and the neighbourhood plan, as officers told the committee that the development plan policy accepted heritage harm, when not only was there no general acknowledgement of harm, but, in respect of the exceptionally important Hunsdon House, the policy was that harm could and should have been avoided.

31. Policy GA1 identifies a list of provisions and issues that development in the Gilston area is expected to address: one such matter is "The protection and enhancement of heritage assets and their settings, both on site and in the wider area through appropriate mitigation measures, having regard to the heritage impact assessment". (Policy GA1(0))

32. Paragraph 11.3.9 of the reasoned justification for the Policy provides: "The development will be designed in order to ensure that these assets and their settings are conserved and, where appropriate, enhanced within the context of the overall development through appropriate mitigation measures, having regard to the heritage impact assessment (Montague Evans, October 2017).”

33. The heritage impact assessment identifies that Hunsdon House is well enclosed by trees and subject to suitable buffer and appropriate height constraints. Development is unlikely to have a significant impact on its setting or significance and it is unlikely to be visible from any of the great rooms on the grounds or first floor within Hunsdon House (paragraph 5.34).

34. Neighbourhood Plan Policy H1 provides that development proposals will be supported where it can be demonstrated, amongst other things, that the significance of heritage assets has been considered to avoid or minimise any conflict between their conservation and the proposal.

35. I agree with the defendant's submission that neither Policy GA1 nor the Neighbourhood Plan purports to preclude development that results in any level of harm, no matter how insignificant to heritage assets. Indeed, such an interpretation would be at odds with national policy, which allows for the weighing of heritage harm against public benefits (see National Planning Policy Framework, paragraph 215). The interpretation of Policy GA1 is not altered by its reference to the heritage impact assessment, which found that the development was unlikely to have a significant impact on setting or significance.

36. The claimants refer to a sentence in the V7 Committee report in support of the submission that officers significantly misled members. Paragraph 13.12.44 of the V7 committee report said "[t]he Plan acknowledges that there will be some harm to the wider landscape character and to the setting of heritage assets because of the development leading to a less than substantial harm to the significance of heritage assets”.

37. In my view, that sentence and the oral advice to committee simply sought to convey that the very allocation of the Gilston area for up to 10,000 dwellings was likely to affect the setting of certain heritage assets in a way that may be liable to give rise to some harm. In my view, that was an obvious point to make.

38. Moreover, paragraph 13.12.44 should not be read in isolation. The advice to members in the report and at the meeting included detailed analysis of heritage impacts, reference to the statutory duty in respect of listed buildings, advice on the need to give great weight to heritage harm and the officer's view that the less than substantial heritage harm was outweighed by public benefits.

39. Paragraph 13.12.27 advised in respect of Hunsdon House as follows: “13.12.27 Hunsdon House - The heritage significance of Hunsdon House, and its sensitivity, is ‘very high’ and the magnitude of change (impact) would be ‘negligible’. There will be change to the rural setting and therefore the character of the asset with the introduction of residential built form into the wider environs (south of the asset). Therefore, there is likely to be a permanent, long-term effect on Hunsdon House that is of minor significance and adverse nature following inherent design mitigation (at the moderate to high end of the spectrum of ‘less than substantial harm’ to the heritage significance of the asset in NPPF terms), owing to changes to its setting. The design mitigation includes restrictions to building locations and heights and controlling the form and quantity of floodlighting in the Football Hub at the detailed design stages. ”

40. Cumulative impacts on the setting of built heritage assets in relation to V1 to 6 were also considered. At 13.12.41, the report advised: “13.12.41 Moderate significant effects are identified for Brickhouse Farm, the moated site at Eastwick Farm and Hunsdon House and St. Dunstan Parish Church. Although the development boundary abuts the edge of Hunsdon House’s boundary to the north and northwest of the house, the built development as set out in the Parameter Plans is much further away approximately 1km to the south east of the House beyond the buffer around the power lines. This open space will provide good buffers between the development and the group of assets around the House. Furthermore, the Development Specification contains inherent mitigation measures to help reduce the impacts on Hunsdon House, such as restricting building height and consideration of visibility from any status rooms within Hunsdon House. ”

41. The permission was also subject to a suite of conditions to control the development at "reserve matters" stage so as to mitigate heritage impacts (see, eg, V7, conditions 10, 11, 31 and 40).

42. In light of the comprehensive advice given, I consider there is no arguable basis for suggesting that, but for the single sentence relied upon by the claimants, the committee's decision might have been different (see the principles set out in the case of Mansell at [42(2)]).

43. For these reasons, I conclude that Ground 3 is unarguable and permission is refused. Ground 5

44. Under Ground 5, the claimants submit that the Defendant failed to consider alternatives to the siting of the sports facilities in V7 which would cause harm to the Grade 1 listed Hunsdon House, in circumstances where the significance of Hunsdon House and the policy to avoid this harm made the consideration of alternatives obviously material.

45. The claimants cite R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2021] EWHC 2161 (Admin ) at [277-290], per Holgate J. and submit that, like Stonehenge, Hunsdon House is an asset of the highest significance within the meaning of National Planning Policy Framework (2024) paragraph 213(b)). The development would cause less than substantial harm would be caused and therefore alternatives had to be considered by the defendant.

46. The claimants rely upon Historic England's concern, as a statutory consultee, at the effect of flood lighting and structures within the football hub on Hunsdon House and advice that alternatives should be considered (see letter of 19 August 2022). The claimants submit significant weight should have been given to Historic England's advice as the Government's heritage advisor, and a statutory consultee on impacts on Grade 1 listed buildings. A departure from Historic England's advice required cogent and compelling reasons.

47. In a table of identified views, the Neighbourhood Plan provided there should be no flood lighting visible in views to and from Gilston Park House and Hunsdon House. The claimants said that the football hub should be moved and buildings lowered to conserve and protect the heritage significance of Hunsdon House; for example Vision Planning, March 2021. Relying on the local plan's conclusions on harm caused by visibility of the development, a wider alternative master plan was also put forward in March 2021.

48. The options considered by the developer in the Gilston Village 7 formal sports provision report kept the football hub in the same place, causing the same heritage harm. The claimants submit that the heritage alternatives raised by the claimants and Historic England, in relation to moving the sports facilities and any higher buildings away from the northern edge of Village 7, are separate and distinct matters from the alternative master plan put forward by the claimants. The defendant's consideration of the master plan's way of delivering the whole project was not dealing with the legal requirement upon it to consider heritage alternatives to avoid or reduce the heritage impacts of the football hub location.

49. In my view, these submissions by the claimants do not give rise to any arguable grounds for challenge, applying the principles in the case of Mansell .

50. The defendant was clearly aware of the relationship of the proposed sports facilities to Hunsdon House and properly took into account the representations made by the claimants and Historic England, among others.

51. IP2, the applicant for V7, submitted to the defendant an assessment that looked at the alternative ways in which the pitches could come forward and which, among other matters, assessed light spill. The officer report for V7 expressly referred to this issue and the design mitigation controlling the form and quantity of flood lighting in the football hub (see V7 paragraph 13.12.27). The configuration of the football hub and its lighting are a matter for control at the detailed design stage through reserve matters (see condition 7). The defendant accepted that the proposal would give rise to less than substantial harm to the significance of Hunsdon House.

52. The availability of alternatives is not a mandatory material consideration wherever there is potential planning harm. The law remains that consideration of alternatives is only material in "wholly exceptional circumstances" (see the Stonehenge case per Holgate J at [406-408]. This was confirmed in R (Substation Action Save East Suffolk ) v Secretary of State for Business, Energy and Industrial Strategy [2202] EWHC 317 at [209-214].

53. On the facts of this case, I consider it is unarguable that there were wholly exceptional circumstances or that there was any other statutory or policy requirement to take alternatives into account.

54. In my view, it is unarguable, that the defendant acted irrationally in failing to take account of unspecified and unparticularised alternative proposals in respect of V7. Insofar as alternatives were properly advanced by the claimants, the defendant considered them and rejected them in the exercise of its planning judgment for the reasons set out in the V1 to 6 officer's report (see paragraphs 13.9.153 to 13.9.164).

55. For all these reasons, I consider Ground 5 to be unarguable and permission is refused. Ground 6 - Quality Review Panel (“the QR Panel”)

56. Under Ground 6, the claimants submit: (a) the defendant failed adequately to report the Harlow and Gilston QR Panel’s comments on the scheme by omitting the most recent and critical comments and failed to have regard to material considerations, which were seriously misleading; and (b) the defendant failed to make available the Panel’s reports as background papers, in breach of sections 100 D and 100E of LGA 1972 , and so prevented them from being relied upon by the public.

57. I accept the submissions of the defendant and the IPs on this Ground. The defendant's Statement of Community Involvement and the Gilston Area Charter SPD explain that the Garden Town QR Panel is a design panel which can review any emerging work relating to the Garden Town, including development proposals from landowners and developers. It is not, as the claimants put it at paragraph 78 SFG: "… established to advise the council on planning applications, such as the Applications". It is not consulted on planning applications. This is a misunderstanding on the part of the claimants. It is a voluntary arrangement that developers can use to act as an independent design review. Meetings are arranged at the request of applicants and are conducted as pre-application discussions. They are private peer reviews enabling open exchanges of ideas. As an independent process, the QR Panel is not governed or administered by the defendant.

58. In this case, the QR Panel was requested to comment on an early draft to the parameter plans and design principles, emerging master plans and, more recently, on the Village 1 primary school emerging design, and first residential RMA parcel in Village 7. The earlier reports from 2018 clearly pre-date the submission of the applications, whilst the 2020 report considered matters relating to master planning principles, which informed amendments submitted in November 2020 by IP1.

59. The QR Panel reports of 2021 relate to the emerging master plan and matters of detailed design which are not material to the determination of the outline applications. Matters of detailed design and the master plans were not before the defendant for approval as part of the outline applications.

60. The QR Panel reports submitted both before and after the making of the application for outline planning permission were addressed in detail in the officer's report for V1 to 6 at paragraphs 3.4 to 3.12. As such, the Committee was fully advised as to the panel involvement in the assessment of the V1 to 6 proposals.

61. The V7 officer's report does not refer to the QR Panel reports in any meaningful detail because that information was not material to the issue to be determined in respect of that outline application.

62. The extent to which any reference to the panel reports was required was a matter of judgment for the defendant to determine. It would not be reasonable to include in an officer report detailed comments pertaining to a panel review of early draft details on matters that are wholly reserved from an outline application.

63. As to alleged "serious criticisms" of the schemes, the QR Panel did express concerns that the master plans were to come forward subsequent to the parameter plans and outline planning permissions for the Gilston area applications. However, the approach to preparing master plans after the outline applications were granted planning permission was agreed through community engagement on the Concept Framework, which was incorporated into the Neighbourhood Plan and the Gilston Area Charter SPD. This was addressed in the V1 to 6 officer report (see paragraphs 3.9 to 3.11).

64. For these reasons, I consider that the claimants’ sub-ground (a) is unarguable.

65. As to the claimants' sub-ground (b), I do not consider there was any arguable breach of section 100 D(5) LGA 1972 .

66. In relation to V7, they were not background papers nor were they relied upon to a material extent in preparing the report, nor in relation to the recommendation or to the decision,

67. In relation to V1 to 6, although the existence of the panel reports was identified in the officer's report and the substance of the report explain, the reports were not considered to be relevant and not relied upon and, therefore, did not fall within section 100 D.

68. In the alternative, I am satisfied that it is highly likely that the outcome for the claimants would not have been substantially different if the conduct complained of had not occurred and, therefore, section 31 (3C) to (3D) of the Senior Courts Act 1981 applies.

69. For these reasons, permission is refused on Ground 6. Grounds 7 and 8 - the committee resolutions Ground 7

70. Under Ground 7, the claimants submit that Committee members were incorrectly advised that the constitution did not permit the section 106 TCPA 1990 agreement or planning conditions to be returned to the committee once finalised. This was incorrect because, even where such matters had been delegated to officers to determine, the Committee retained general authority to determine such matters under the constitution, and the Committee could revoke the delegated authority if it saw fit. Furthermore, the membership of the committee had changed. The majority of the councillors were not party to the previous decision.

71. In my view, Ground 7 does not disclose any arguable error of law by the defendant. The constitution at paragraph 10.1.55 expressly delegates authority to officers to finalise details of section 106 agreements, where heads of terms have been endorsed by committee members.

72. The recommendations and resolutions for both schemes granted outline planning permission and gave officers delegated authority to finalise conditions and section 106 agreements. This is standard practice within planning authorities and a practice which it can be assumed that Committee members would have been familiar with.

73. The Committee reports included heads of terms for the section 106 agreement and draft planning conditions. They were endorsed by Committee members. The defendant accepts that the committee minutes for the V1 to 6 application do not fully capture, as part of the recorded resolution, paragraph (b) from the recommendation within the officer report, which specified that delegated authority be granted to finalise the detail of the section 106 agreement and conditions. It is clear, however, from the transcript of the Committee meeting that members voted in accordance with the officer recommendation in the officer report. Paragraph (b) was correctly captured in the minutes relating to the resolution for the V7 application.

74. It is a well-established legal principle, as set out in R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 , that if there is a material change which could affect the original decision, then officers are legally obliged to take the matter back to Committee, prior to issuing any planning permission. Otherwise there is no legal obligation to refer delegated matters back to the Committee. I refer to the delegated decision report for V1 to 6 at core bundle/19/595 to 597 and the delegated decision report for V7 at core bundle/20/629 to 631, which correctly set out the legal position and the defendant's compliance with it on this occasion.

75. The point taken by the claimants that the composition of the committee had changed is legally irrelevant as the committee is of the defendant, not of its members,

76. For these reasons, permission is refused on Ground 7. Ground 8

77. Under Ground 8, the claimants submit that the Committee had, in any event, resolved that the applications or any resulting permissions be reported back to the committee within 12 months of the resolutions. In breach of the resolutions, that was not done.

78. I accept the defendant's submission that Ground 8 is unarguable as it is inconsistent with the terms of the resolution in both schemes which stated: "That planning permission be GRANTED; (a) subject to a section 106 legal agreement first being entered into and the proposed conditions set out at the end of the report as amended by table 1; (b) that delegated authority be granted to the Head of Planning and Building Control to finalise the detail of the section 106 legal agreement and draft planning conditions as amended by table 1 including delegated authority to add to, amend or delete conditions); (c) that Officers report back to the Committee in 12 months' time in relation to the subsequent monitoring of the development (unless there was a constitutional reason why this was not possible)".

79. It is clear that the reference to reporting back to the Committee only concerned the monitoring of the development which was a particular topic of discussion during the Committee meeting. It was not intended that the applications would be returned to the Committee for further consideration.

80. The fact that the resolutions were mistranscribed in the delegated decision report, by the addition of the words "for information purposes" in subparagraph (c) does not indicate any misunderstanding of the meaning of the subparagraph. As a matter of fact, officers did update the committee within 12 months of their resolutions. Both delegated decision reports advised at paragraph 1.5: "1.5. In relation to the addition of recommendation (c) above in response to a question from members, officers prepared a statement for DMC in February 2024 advising members that work was ongoing on the preparation of a Gilston area monitoring framework and, until such time the section 106 had been signed, there was nothing yet to update on in terms of monitoring".

81. For these reasons, permission is refused on Ground 8. Ground 9 - environmental impact assessment ("EIA" )

82. The claimants submit that the EIA of the applications was unlawful as: (a) there were two environmental statements which were not based on the scoping opinion which required a single environmental statement (regulation 18(4)(a) EIA Regulations 2017); and (b) the two applications comprised a single project and had to be assessed as such.

83. The claimants rely upon the defendant's adoption of an undated scoping opinion pursuant to a request dated 26 May 2017. There was an inaccurate reference to a new scoping opinion in the V1 to 6 report which was not repeated in the V7 report. A scoping update was submitted on behalf of IP1 on 3 September 2018, which referred to the split between the two schemes. It was provided by the defendant on 10 September 2024, pursuant to a Freedom of Information request. The defendant sent letters to the applicants on 31 January 2019 acknowledging there would be two outline applications, but did not refer to the scoping update.

84. There is now a single section 106 agreement covering the two schemes. The delegated reports say that this ensures that common infrastructure is secured across the site as a whole and that there are appropriate mechanisms for collaboration between the applicants to deliver or contribute towards delivery as required (paragraph 3.4).

85. However, the delegated reports also confirm that, for assessment for EIA purposes, the two applications are and remain separate projects. The claimants submit that this is mistaken as the schemes are functionally interdependent. They were issued simultaneously: one scheme cannot be pursued independently of the other.

86. The claimants submit that the consideration of cumulative effects in the two environmental statements did not correct these legal errors.

87. I do not accept the claimants' submissions and adopt the submissions of the defendant and the interested parties. The scoping opinion did not require a single environmental statement or a single development. Rather it set out the consultation responses received and indicated the environmental information that ought to be provided.

88. Regulation 18(4)(a) EIA Regulations 2017 states that the environmental statement must be based on the most recent scoping opinion. It does not require the environmental statement to comply with the scoping opinion.

89. The defendant made a valid planning judgment that V1 to 6 and V7 were separate projects, applying the criteria set out in R (Wingfield) v Canterbury CC [2019] EWHC 1975 (Admin) . It found that the two schemes were not functioning interdependently and could each be carried out separately, even if the other one was not progressed. There were sound reasons for a single section 106 agreement, which did not negate or contradict the defendant's conclusion that the schemes amounted to separate projects for EIA purposes (see the delegated decision report for V1 to 6 at core bundle/19/599 paragraph 3.4 and for V7 at core bundle/20/632, paragraph 3.4).

90. The defendant gave full consideration to the likely environmental effects of both developments and their cumulative effects, one with another. The claimants have not identified any environmental effect that has been omitted from consideration.

91. Although the officer report in V7 referred to a potential difference between assessing the schemes as a joint project or two single projects (see core bundle/15/1461 paragraph 5.7), no substantive difference has ever been identified, whether by the defendant or the claimants. So, even if the two schemes had been considered together, I am satisfied it is highly unlikely that the outcome for the claimants would have been substantially different if the conduct complained of had not occurred. Therefore, section 31 (3C) to (3D) of the Senior Courts Act 1981 applies.

92. For these reasons, permission is refused on Ground 9.

93. That concludes my review of the individual grounds. Overall my conclusion is that the renewed application for permission is refused. ___________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]