High Court upholds Council’s decision to revoke a certificate of lawfulness where false information submitted in respect of the location of piling work

Public Law and Judicial Review, Planning and Environment, Local Government

In R(Mehta) v Royal Borough of Kensington and Chelsea [2024] EWHC 1986 (Admin), the High Court has dismissed a claim for judicial review of a decision by the Council to revoke a certificate of lawfulness. The effect of the certificate, prior to revocation, had been to confirm that a planning permission for the erection of a single dwelling with a two-storey basement had been lawfully implemented and could be built out.

Jack Parker acted for the successful Council.

The case concerns the proper approach to revocation where works of implementation are found to be contrary to approved plans following the grant of a certificate of lawfulness. It is a useful application of the relevant legal principles (most recently comprehensively summarised in R (Ocado Retail Ltd) v Islington LB [2021] EWHC 1509 (Admin)). It also emphasises the importance of ensuring that works of commencement are carried out in accordance with approved plans, where required as a matter of condition.

In this case, the plans attached to the planning permission showed the walls of the development to be 1.1m away from the wall of an adjacent building and there was a condition requiring the development to be carried out “in complete accordance” with the approved plans. The 1.1m gap between the two buildings was required to facilitate what was described in the planning application as an ‘exclusion zone’ enabling a Thames Water pipe to be relaid.

Shortly before the deadline for implementation, various piling works were undertaken. The piles were described in the application as being “part of” the contiguous piled wall of the basement and shown on various drawings as such. The application for the certificate of lawfulness was granted on the basis that the piling works formed part of the development, were carried out in accordance with the approved drawings and were sufficient to constitute the implementation of the permission.

However, the Council subsequently received representations from several parties including a neighbouring restaurant, Core by Clare Smyth (who also became an interested party to the proceedings), suggesting that, among other things, the piling works were not in accordance with the approved plans. The Council’s subsequent investigation established that the piles were only 0.75m away from the adjacent wall, rather than 1.1m.

The Council determined that the information submitted with the application for the certificate of lawfulness was false because it stated that the piles (which were stated to form “part of” the walls of the development) were constructed in accordance with the approved drawings (which required the walls to be 1100mm away from the wall of the adjacent building) when in fact they had been constructed less than 1100mm away from the adjacent wall.

That information was considered to be material to the decision to grant the certificate. Had the Council known that the piling that was to form part of the walls was only 0.75m away from the adjacent wall, rather than 1.1m as required by the planning permission, that could have made a difference to whether the Defendant would have been satisfied that the piling work was ‘comprised in’ the development for which planning permission had been granted.

The Council thereafter exercised its discretionary power under s.193 of the Town and Country Planning Act 1990 to revoke the certificate on the basis that, as a result of changes in planning policy, planning permission was unlikely to be granted for a two-storey basement, were permission now to be sought.

The Claimant challenged the decision to revoke the certificate on the basis that, as the foundations of the building were not shown on the approved plans, there was no question of those foundations departing from the approved plans. The Claimant alleged that the Council had (1) misinterpreted the planning permission; (2) irrationally misunderstood the application for the certificate of lawfulness; and (3) irrationally found that the piles were not comprised in the development.

The Court dismissed the claim. The Council had properly understood the planning permission as requiring the walls of the development to be 1.1m away from the wall of the adjacent building. It was not irrational for the Council to find that the application for the certificate contained false information. By asserting that the piling work which formed “part of” the walls had been carried out in accordance with the approved drawings, the application was asserting that the works were at least 1.1m away from the walls of the adjacent building, which was false. The Court upheld the Council’s decision to revoke the certificate.

The case highlights the proper approach to be taken where a certificate of lawfulness is granted by reference to works of implementation which are subsequently discovered to be contrary to approved plans. It makes clear that a certificate may be liable to revocation where works of implementation are stated to be in accordance with approved plans and are subsequently determined not to be. The case is a cautionary tale for those seeking to implement planning permissions shortly before the deadline for doing so. Not only must great care be given to ensuring that works accord with the permission but, as it was put by Mr Justice Holgate in Ocado, the developer “assumes a risk (which passes to or affects successors in title) that any certificate he obtains may be revoked if it turns out that materially inadequate or false information was provided on the application”

An application for permission to appeal to the Court of Appeal was refused by the Judge.

Jack Parker acted for the Council, instructed by Donna Lee and assisted by Carolyn Goddard, Planning Enforcement Team Leader at RBKC.

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