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Court of Appeal rules on French challenge to basement development in Kensington & Chelsea

DATE: 12 Jun 2017

The Court of Appeal handed down judgment today on the Government of France’s application for judicial review of two Certificates of Lawfulness relating to the proposed development of a basement at 10 Kensington Palace Gardens, next door to the French Ambassador’s residence.  The judgment provides important guidance on the use of section 192 Town and Country Planning Act 1990 to certify that a planning permission has been implemented, and on the difference between section 192 and certificates of lawfulness under section 26H of the Listed Building Act.

The owners of 10 Kensington Palace Gardens, Mr and Mrs Jon Hunt, had obtained both planning permission and listed building consent for a large basement extension.  In 2011, certain internal works were carried out in order to implement the two consents, and in 2015 the Hunts applied for and were granted certificates of lawfulness under section 192 and section 26H, on the basis that, as the planning permission and the listed building consent had been implemented, and were therefore still extant, the remainder of the development could be completed.

At first instance, Holgate J refused France permission to seek judicial on all grounds except one, relating to the Council’s failure to notify its decision on the register, in respect of which he granted declaratory relief.  However, Laws LJ subsequently granted permission, and ordered that the substantive judicial be heard by the Court of Appeal.  Before Patten and Hickinbottom LJJ, France argued (inter alia) that:

  1. Both certificates issued were ultra vires because those provisions only authorised the Council to issue certificates of lawfulness of proposed use/development, whereas the certificates were based on the conclusion that the planning permission and listed building consent had been  implemented, i.e. on past works.  France argued that such certification could only be given under section 191 TCPA 1990;

  2. The section 26H certificate was ultra vires, because section 26H can only be used to certify works on the grounds that the Council is satisfied that the proposed alteration or extension of a listed building will not affect the character of that building as a building of special architectural or historic interest.  Section 26H cannot be used to test whether a listed building consent that had been implemented.

  3. The Council had erred in applying the test for implementation applicable for determining a section 192 certificate to the section 26H certificate.  The tests are different.

  4. The Council failed to take reasonable steps to obtain information required to give properly informed (and, thus, lawful) decisions on the applications for the certificates, and was reached without any prior consultation with, or notification of the applications to the Claimant.

The Court of Appeal upheld the section 192 Certificate, but quashed the section 26H Certificate.  In so doing, the judgment establishes the following points of principle:

  1. An applicant is entitled to use section 192 to obtain a certificate relating to the completion of works pursuant to a planning permission, on the basis that those works are lawful because the planning permission has been implemented, without first obtaining a certificate under section 191 that the works of implementation were themselves lawful.  A section 191 certificate is merely evidence of the lawfulness of the implementing works, but this is not the only way in which that lawfulness can be demonstrated for the purposes of section 192.

  2. Section 26H can only be used to certify that works to a listed building are “lawful” in the sense identified in section 26H(2), i.e. that they do not affect the character of the listed building as a building of special architectural or historic interest.  It is therefore not possible to use section 26H to certify that a listed building consent has been implemented and therefore remains extant.

  3. The test for implementation of a listed building consent is the same as that for implementation of a planning permission.

  4. There is no statutory or general duty on a local planning authority to consult a neighbour on an application for a lawful development certificate, merely because the neighbour may be affected.

  5. Although a decision-maker has an obligation to take reasonable steps to obtain information relevant to any decision he is required to make, the decision as to what steps are required can only be challenged on public law grounds.

The decision is reported as Government of the Republic of France v. Royal Borough of Kensington and Chelsea [2017] EWCA Civ  429.  A copy of the judgment can be found here.

Paul Brown QC acted for Mr and Mrs Hunt, the Interested Parties.