France, the Court of Appeal and certificates of lawfulness
The Court of Appeal in Government of the Republic of France v Kensington and Chelsea Royal London Borough Council [2017] EWCA Civ 429; [2017] PLSCS 129 rejected a judicial review challenge against Kensington and Chelsea’s decision to issue a certificate of lawfulness of proposed use and development under section 192 of the Town and Country Planning Act 1990, and upheld a challenge against the issue of a certificate of lawfulness of proposed works under section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 in respect of a basement development at 10 Kensington Palace Gardens, which is a listed building and is subject to a long lease. The building next door is occupied by the French Ambassador as her official residence.
Planning permission and listed building consent had been granted for the proposed works in 2008 followed by a further listed building consent for an amended scheme in 2010. In July 2011, the interested party carried out initial works and in 2015 applied for certificates under section 192 and section 26H that the remainder of the works which had been authorised could lawfully be completed on the grounds that the works which had been carried out were sufficient to implement the planning permission and the 2010 listed building consent.
Local planning authorities will likely be breathing a sigh of relief over the judgment, as it confirms there is no duty on them to consult a neighbour on an application for a lawful development certificate or to go behind the application and investigate further. This is a reflection of the test contained in section 192 which is simply “on the balance of probabilities”.
The Court of Appeal in Government of the Republic of France v Kensington and Chelsea Royal London Borough Council [2017] EWCA Civ 429; [2017] PLSCS 129 rejected a judicial review challenge against Kensington and Chelsea’s decision to issue a certificate of lawfulness of proposed use and development under section 192 of the Town and Country Planning Act 1990, and upheld a challenge against the issue of a certificate of lawfulness of proposed works under section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 in respect of a basement development at 10 Kensington Palace Gardens, which is a listed building and is subject to a long lease. The building next door is occupied by the French Ambassador as her official residence.
Planning permission and listed building consent had been granted for the proposed works in 2008 followed by a further listed building consent for an amended scheme in 2010. In July 2011, the interested party carried out initial works and in 2015 applied for certificates under section 192 and section 26H that the remainder of the works which had been authorised could lawfully be completed on the grounds that the works which had been carried out were sufficient to implement the planning permission and the 2010 listed building consent.
Local planning authorities will likely be breathing a sigh of relief over the judgment, as it confirms there is no duty on them to consult a neighbour on an application for a lawful development certificate or to go behind the application and investigate further. This is a reflection of the test contained in section 192 which is simply “on the balance of probabilities”.
The case also illuminates the relative isolation of planning as against other property issues which may exist. In this case, some internal works were required under the terms of the lease and, as a result, they were able to rely on these works to evidence implementation of the planning permission. The court clarified that the intention behind the carrying out of the works was irrelevant in determining whether, for planning purposes, the relevant consents had been implemented.
Ultimately, the court upheld the section 192 certificate but quashed the section 26H certificate. The reason for the latter turned on the construction of section 26H(2), which is not a mirror image of section 192 for listed buildings, and clearly not intended to be. Section 26H cannot be used to verify that a listed building consent has been lawfully implemented and remains extant. The court provides some guidance by indicating that the section 26H process is applicable in scenarios where the proposed works are so small that they do not warrant a full application for listed building consent. The court was not saying that the listed building works in issue had not in fact been begun so as to secure the listed building consent. Rather, the court was merely indicating that no statutory power existed to certify that the works were lawful under the listed building consent.
The judgment has also clarified that a section 192 certificate can be granted to establish the lawfulness of proposed works notwithstanding the fact the basis for its issue is reliance on the fact works were undertaken so as to have “begun” the permission so as to enable the permission to be built out. This is a common sense approach, and no doubt has been the basis for many a section 192 certificate. Its endorsement by the Court of Appeal has now somewhat settled the matter.
The court turned also to the test for implementation of a planning permission and listed building consent, with the claimant suggesting the latter should require a higher threshold. This was dismissed by the court, which held the test should be the same.
A further issue arose concerning the listed building consent granted in 2010 as it was referable to the 2008 listed building consent. The 2010 consent was a free-standing consent which did not incorporate the conditions which had been attached to the 2008 consent.
Martha Grekos is partner and head of planning, Howard Kennedy
