French government fails in challenge to lawful development certificates

The government of France failed to overturn two lawful development certificates issued under section 192 of the Town and Country Planning Act 1990 and section 26H of the Planning (Listed Building and Conservation Areas) Act 1990 in relation to works to a grade II building in central London, the High Court concluding that there had been no error in law.

Planning permission and listed building consent had been granted in 2008 and 2010 for alterations and extensions to convert the property into residential use following a long period of vacancy. The property lay adjacent to another residence occupied by the ambassador to France. The French government asserted that the council’s decision to issue the certificates confirming that planning permission and listed building consent could be implemented were ultra vires because the works had been largely carried out. However sections 192 and 26H could only be used to certify proposed works, it was alleged. Moreover the council had failed to have regard to the terms of a lease granted by the Crown Estate Commissioners who owned the freehold of the property and it was claimed no approval of the works under the lease had been obtained. The certificates had been issued without any prior consultation with neighbours and that relating to the listed building consent had been issued in breach of the principles laid down in EG Whitley & Sons Ltd v Secretary of State for Wales (1992), namely that various conditions had not been discharged prior to commencements.

Mr Justice Holgate ruled that sections 192 and 26H enabled a landowner to apply for a certificate so long as the time limit for implementation had occurred before the consents expired. This had occurred in the case before him and the certificates merely confirmed that the remaining works authorised under the consents could be undertaken. Nor in his opinion was there any need for the local planning authority to take into account the terms of the lease. Obtaining further information from the Crown Estate was not necessary for the council to make a decision on the lawfulness of what was proposed. Nor was there any indication that pre-commencement conditions had not been complied with. Leave to appeal was denied.

The judge did rule however that in the absence of any formal public consultation on lawful development certificates it was important that the statutory duty to entre them onto the planning register was complied with. If this was not done a member of the public would be unable to establish what the correct legal position was. The court ruled that the council should take steps to ensure that the two decisions were properly recorded but this failure did not invalidate the decisions.

Government of the Republic of France v Kensington and Chelsea London Borough Council

Date: 27 November 2015

Ref: CO/2629/2015

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