Eliterank Ltd, R (On the Application Of) v Royal Borough Of Kensington & Chelsea

Under section 3(2) of the London Squares Preservation Act 1931, “underground works” means works below the surface of the ground. It does not include an exposed courtyard or lightwell merely because it is below the general ground level. Surface use is permitted only where it is reasonably necessary and proper for the construction or maintenance of underground works or buildings, or for associated entrances, exits or ventilation shafts. The statutory limits concerning material encroachment and serious interference are merits criteria, not validity requirements. A structure serving private access to a protected square is not thereby convenient for the use or maintenance of that square for authorised purposes.

Eliterank Ltd owned a property adjoining Courtfield Gardens West, a protected square under the London Squares Preservation Act 1931. After planning permission had been granted under the Town and Country Planning Act 1990, works were undertaken to create a large rear lightwell, courtyard, bridge and steps giving access to the Gardens.

The Royal Borough of Kensington & Chelsea declined jurisdiction to determine Eliterank’s application for consent under section 3(2) of the 1931 Act, recording it as invalid. Eliterank sought judicial review, arguing that the works were underground works, that the statutory merits criteria could not justify invalidating the application, and that the steps were authorised under section 3(1). The central issues were the scope of section 3(2) and the proper treatment of the application.

1. The claim was dismissed. The court held that section 3(2) of the London Squares Preservation Act 1931 had no application to the works carried out.

2. Section 3(2) permits unrestricted use of the subsoil where the square is unaffected. Where consent is required, surface use must be reasonably necessary and proper for the construction or maintenance of underground works or buildings, temporary buildings, or associated entrances, exits and ventilation shafts. The word “underground” means below the surface of the ground. The courtyard, lightwell, bridge and stairs were exposed surface structures and were not underground works or buildings: paras 40–44.

3. The criteria in section 3(5), including material encroachment and serious interference with amenity or authorised use, concern the merits of an application. They do not determine whether an application is valid. Nevertheless, the Defendant was entitled to treat the application as invalid because the works fell outside section 3(2): paras 45–47.

4. The bridge and stairs were not structures convenient for the use and maintenance of the square for an authorised purpose under section 3(1). Their purpose was to enable occupants of the Property to access the Gardens, which was unrelated to maintenance. The challenge on that ground therefore failed: paras 48–51.

5. The challenge to the proposed enforcement action fell away. The court did not determine the requested declaratory relief concerning any future consent application: paras 52–54.