Government of the Republic of France v Royal Borough of Kensington And Chelsea

Certificates under section 192 of the Town and Country Planning Act 1990 and section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 may determine whether proposed future works are lawful by reference to an earlier permission or consent, including where the authority must decide whether that permission or consent was lawfully implemented before its commencement deadline.

The authority may consider the implementation issue as part of its reasons without requiring a separate certificate for historic works. Whether implementation works are referable to a consent is an objective question; the developer’s motives, including compliance with a lease, are irrelevant. A failure to consult gives rise to relief only where procedural unfairness has caused material prejudice.

The claimant sought judicial review of certificates issued by the Royal Borough of Kensington and Chelsea concerning a listed building at 10 Kensington Palace Gardens.

One certificate under section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 certified the lawfulness of proposed works by reference to listed building consents granted in 2008 and 2010. The other, under section 192 of the Town and Country Planning Act 1990, certified the lawfulness of proposed works and future residential use by reference to a 2008 planning permission.

The claimant argued that the certificates unlawfully certified completed works, that works required by the lease could not implement the permissions, that further inquiries and consultation were required, and that the Whitley principle had been misunderstood. It also challenged the late entry of the section 192 certificate on the planning register.

1. Substantive challenge. Grounds 1 to 5 were rejected and permission to apply for judicial review on those grounds was refused. The applications to quash the certificates were dismissed.
2. Proposed works. Sections 192 and 26H concern the lawfulness of works proposed for the future. They may nevertheless require the authority to decide whether earlier works lawfully implemented an existing permission or consent. That decision is a reason for certifying the future works, not an independent certificate of completed works.
3. Referability and purpose. Whether works are referable to a planning permission or listed building consent is an objective question. The developer’s purpose or mixed motives are irrelevant. Works may implement a consent even though they are also required by a lease or another public or private law obligation.
4. Whitley principle. The authority had to consider whether the works fell within the relevant consent and whether they breached any condition. The first exception applied because the relevant pre-commencement conditions had been discharged before expiry of the permission. It was unnecessary to consider other exceptions. The officer’s report, read fairly and in context, addressed the relevant issue and contained no material legal error.
5. 2010 listed building consent. The 2010 consent was freestanding. It authorised works defined by its own approved drawings and conditions. The 2008 conditions were not incorporated merely because the schedule described the works as amendments to the earlier consent. Incorporation required operative wording sufficient to inform a reasonable reader that the earlier document formed part of the consent. Conditions could not be implied.
6. Consultation and inquiry. No legitimate expectation of consultation arose. In any event, the claimant identified no material prejudice, since the proposed evidence concerning lease obligations was legally irrelevant. A duty to make reasonable inquiries is, in substance, an irrationality challenge and requires an inquiry so inadequate that no reasonable authority could regard its information as sufficient.
7. Register and relief. The Council unlawfully failed to enter the section 192 certificate on the planning register. Permission was granted on that ground and a declaration was made. The court severed the references to the 2008 listed building consent from the section 26H certificate because the remaining text was grammatical, coherent, independent and substantially severable.