Town and country planning – Planning permission – Certificate of lawful use or development – Claimant applying for judicial review of certificates issued by defendant local authority for property development – Whether decision to issue certificates being ultra vires – Whether defendants unlawfully circumventing statutory provision – Whether defendants failing unreasonably to obtain required information – Whether claimant having legitimate expectation of being notified or consulted – Application granted in part
The second interested parties owned a lease of 10 Kensington Palace Gardens, London W8, a large, vacant, four-storey, Grade II-listed building with a basement and undercroft. In 2008, they obtained planning permission and listed building consent to develop their property. The freehold owners were the first interested party Crown Estate Commissioners. The claimant held a Crown Estate lease of the property next door which was occupied by the Ambassador of France as her official residence.
The claimant applied for judicial review of two certificates issued by the defendant local authority: (i) under section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990, that works authorised by listed building consents, including basement excavation and garden landscaping, might lawfully be carried out; and (ii) under section 192 of the Town and Country Planning Act 1990, that similar development authorised by planning permission might lawfully be carried out. The High Court dismissed the application: [2015] EWHC 3437 (Admin); [2015] PLSCS 338.
In April 2016, upon consideration of an application for permission to appeal, Laws LJ rather granted permission to apply for judicial review under CPR rule 53.8(5) and retained the claim in the Court of Appeal under CPR rule 52.8(6). The defendants and the second interested parties resisted the application.
The claimant contended, among other things, that: (i) the section 192 certificate was ultra vires because it purported to certify the lawfulness of works already carried out, rather than proposed works, alternatively, in concluding that the proposed works would be lawful, the defendants had unlawfully circumvented section 191; (ii) the defendants had exceeded their powers in allowing section 26H to be used in the context of a listed building consent that had been implemented; (iii) the defendants had failed to take reasonable steps to obtain information required to give properly informed, lawful decisions on the applications; and (iv) there had been no prior consultation with or notification of the claimant in breach of its legitimate expectation.
Held: The application was granted in part.
(1) In applying for the section 192 certificate, the second interested parties had wanted the comfort that they could lawfully complete the development as described in the 2008 planning permission. They were clearly not seeking certification of the existing works and the certificate was expressly issued under section 192. The claimant’s alternative submission would mean that lawfulness of existing works could only be proved by obtaining a section 191 certificate, which was clearly not the case. The lawfulness of existing works was not dependent upon the existence of a section 191(1) certificate, but only on satisfying the requirements of section 191(2). Neither section 191(1) nor (2) expressly restricted how a person might prove lawfulness for those purposes; and no implied restriction was warranted.
(2) In the context of the proposed works, section 26H(2) exhaustively defined “lawful” for the purposes of section 26H, i.e. it could only be used to apply for a certificate that proposed works to a listed building would not affect its character as a building of special architectural or historic interest. That was the natural meaning of the words used; and there was nothing to suggest that those words did not have their ordinary meaning. The section 26H certification procedure was primarily aimed at the many cases where alterations were so small that they could not arguably affect the character of the building as one of special architectural or historic interest. It offered a procedure whereby those who wished to make relatively minor alterations could avoid the need to make a full application for listed building consent. The application under section 26H had been on the basis that that section could be used to test whether proposed works would be lawful because they fell within a listed building consent that had been implemented. The defendants determined it on that basis and exceeded their powers in doing so. Accordingly, the section 26H certificate would be quashed. In any event, the certificate would have been ultra vires on the ground that it only described past works with no reference to future, proposed works.
(3) The defendants had not breached any obligation to obtain further information to enable them to give a properly informed decision. The claimant had not begun to explain why the defendants had acted irrationally in considering that the material before them was sufficient to enable them to determine the two applications.
(4) There was no statutory requirement for a local authority to notify or consult on applications for certificates under sections 192 or 26H. Moreover, there was no general common law duty to consult persons who might be affected by a measure before it was adopted. There was nothing giving rise to a legitimate expectation that the claimant would be notified or consulted and no evidence of an established practice of doing so in relation to planning applications involving the property; even if did have a legitimate expectation, it was not material because the claimant had suffered no prejudice by not being notified or consulted.
Paul Stinchcombe QC and Ned Helme (instructed by Edwin Coe LLP) appeared for the claimant; Tom Cosgrove QC and Robert Williams (instructed by the Royal London Borough of Kensington and Chelsea Legal Department) appeared for the defendants; The first interested parties did not appear and were not represented; Paul Brown QC (instructed by Berwin Leighton Paisner) appeared for the second interested parties.
Eileen O’Grady, barrister
