The French government has failed in a judicial review challenge over a mega-basement next to its embassy in London. Paul Brown QC examines the High Court's judgment.
In Government of the Republic of France v Royal Borough of Kensington And Chelsea  EWHC 3437 (Admin) (27 November 2015) the High Court has rejected a challenge by the Government of France to the Royal Borough of Kensington and Chelsea’s decision to grant certificates under sections 192 of the Town and Country Planning Act 1990 and 26H of the Listed Building and Conservation Areas Act 1990 in respect of a basement development at 10 Kensington Palace Gardens, which adjoins the French Ambassador’s home.
The court’s decision provides useful guidance on a range of issues, including the interaction between sections 191 and 192, the principles relating to the incorporation of an earlier planning permission or consent in a later amendment, the scope of the Whitley principle, the entitlement of neighbours to be consulted on a section 192 or section 26H application, and the court’s power to sever parts of a certificate.
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 a certificates under section 192 and 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.
In challenging the council’s decision to grant the certificates, the claimant contended that:
(i) the certificates were ultra vires sections 192 and 26H because those provisions related only to future works, and not to works of commencement which had already been carried out;
(ii) the council had failed to consider whether the works were carried out in fulfilment of the Interested Party’s obligations under their lease, rather than pursuant the permission and the consent;
(iii) the council had failed to consider whether the 2011 works had been carried out in breach of condition;
(iv) the council had breached the claimant’s legitimate expectation related to works of implementation which had already been carried out;
(v) the council had failed to make inquiries of the freehold owner in relation to the applications; and
(vi) the council had failed to enter the lawful development certificate on its planning register.
Grounds (i) to (v) were comprehensively rejected by Holgate J. In his view (i) the council was entitled to consider the lawfulness of the works of implementation as a necessary step in its reasoning relating to the Interested Party’s entitlement to complete the development. There was no obligation to pursue an application under s. 191 of the 1990 Act in relation to the works of implementation before making an application under section 192 in relation to the balance of the planning permission; (ii) the intentions of the parties were irrelevant to the question whether the works which had been carried out were sufficient to implement the planning permission of the listed building consent. In any event, there was no reason why those works could not have been carried in fulfilment of the lease as well as pursuant to the relevant consents; (iii) if there had been a breach of any of the conditions attached to the planning permission, that breach was covered by the first exception to the Whitley principle. In cases covered by the first exception, there was no need to go on and consider the significance of the breach. The 2010 listed building consent was a freestanding consent which did not incorporate the conditions which had been attached to the 2008 consent; (iv) the fact that the claimant had been consulted on the applications for planning permission and listed building consent could not give rise to a legitimate expectation that it would be consulted on the certificate applications. The council was not bound by representations made by a third party which it had not endorsed; (v) the extent of any inquiries was a matter for the council, susceptible to challenge only on normal Wednesbury grounds. The council had not been required to consult anyone else, and it would have made no difference if it had done so.
With regard to ground (vi), it was common ground that the council had not entered the decision on the planning register within the normal 14 day period, and the Court granted a declaration accordingly. However, this did not affect the validity of the section 192 certificate. Holgate J also ordered that an erroneous reference to the 2008 listed building consent (in addition to the 2010 listed building consent) on the section 26H certificate should be severed.