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Court of Appeal clarifies law relating to certificates of lawfulness of proposed use or development

The Government of the Republic of France v the Royal Borough of Kensington and Chelsea, the Crown Estate Commissioners & Mr and Mrs Jonathan Hunt [2017] ewca civ 429

Judgment 12th June 2017

In a wide-ranging judgment the Court of Appeal has rejected a judicial review challenge by the French Government to the issuing of a certificate of lawfulness of proposed use and development under s.192 of the Town and Country Planning Act 1990 (the s.192 certificate) and upheld a challenge against the issuing of a certificate of lawfulness of proposed works under s.26H of the Listed Buildings Act 1990 (the s26H certificate). In doing so the Court has clarified the law in a number of important areas.

The case concerned 10 Kensington Palace Gardens ('10KPG'), a listed building that is subject to a long lease held by the Interested Parties Mr and Mrs Hunt ('the IPs'). The building next door is occupied by the French Ambassador as her official residence. The IPs wished to redevelop 10 KPG and had made a number of applications for planning permission and listed building consent. In August 2008 planning permission and listed building consent had been granted. In November 2010 a new listed building consent was granted.

The Court, in summary:

(i) Rejected the contention of the French Government that a s.192 certificate for proposed works was ultra vires merely because the application had relied on showing that past works relating to the 2008 permission had 'begun' so as to allow lawful certification of future proposed works.

(ii) Clarified how sections 192 and 191 of the TCPA 1990 are intended by Parliament to operate together and so rejected the 'fundamental misunderstanding' of the provisions by the French Government.

(iii) Provided important guidance on the construction and use of s.26H LBA 1990. In addressing a new ground (not pursued before Holgate J in the High Court) the CA held that s.26H was to be construed in a restrictive way for use in cases where the only issue to be determined is whether works would affect the character of the building as a building of special architectural or historic interest.

(iv) Clarified what was meant in law by works being 'begun' under section 18 and a 'material start' under s.26H of the LBA 1990.

(v) Explained the extent of the requirements on Councils to consult on applications for certificates and the extent of any duty on a decision maker to take steps to obtain information under s.192 or s.26H. The Court firmly rejected the French Government's claim that it had a legitimate expectation to be consulted in this case and dismissed the suggestion that the Council had acted irrationally or unreasonably in any way.

(vi) Clarified the role of intention in the context of commencement of development and the approach to discerning whether operations were 'referable' to a planning consent.

(vii) Held that the 2010 consent was a freestanding one.

As the Court recognised, the real complaint by the French Government was about the merits of the decisions with regard to the granting of planning and listed building consents and the adverse effects that it considered the works would have upon the residence of the Ambassador. However the Court made clear that it was not prepared to assist the French Government in that regard as the judgment related solely to issues of law and whether there existed power to issue the certificates. But in upholding the s.192 certificate the IP now has a clear affirmation that the building works and use it intends to carry out pursuant to the 2008 planning permission are lawful. The quashing of the s.26H certificate is merely an indication that no power exists in the statutory scheme to issue a certificate in such circumstances because s.26H does not cover the position before the court and was not intended to replicate s.192. The Court was not saying – despite the French Government requesting it to do so - 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. In truth, the new guidance provided as to the meaning of begun in the context of Listed building works will have provided little comfort for the French Government at all in their attempts to prevent development.

Tom Cosgrove QC and Robert Williams appeared on behalf of the Royal Borough of Kensington and Chelsea. A full copy the judgment can be found here.