Khodari, R (On the Application Of) v Royal Borough of Kensington And Chelsea

A planning authority is not required to treat a building as a non-designated heritage asset unless it has identified it as such. It must nevertheless consider the proposal’s effect on any conservation area. Internal works which do not require planning permission do not engage principles concerning the control of unauthorised works.

A parking-permit covenant is not a valid planning obligation under section 106 where it does not restrict development or use, require specified operations, or require the land to be used in a specified way. A section 106 agreement cannot ordinarily impose a monitoring fee, save in very limited exceptional circumstances. Where such obligations were crucial to the grant of permission, their invalidity required the permission to be quashed.

The claimant challenged two planning permissions granted by the Royal Borough of Kensington and Chelsea for the conversion of a property in a conservation area. The first permission authorised conversion from five flats to eight and was conditional upon a section 106 agreement securing additional units as parking-permit-free. The second authorised conversion to five new flats.

The claimant alleged failures to consider the property and its interior as a non-designated heritage asset, and relied on authorities concerning works requiring planning permission. He also challenged the validity of the section 106 agreement and its monitoring-fee provision. The court considered whether the heritage grounds were arguable and whether the first permission could stand in light of the agreement.

1. Grounds 1 and 2. The defendant had not identified 31 Egerton Gardens as a non-designated heritage asset under the NPPF and PPG. Whether a building has that status was a matter of planning judgment for the authority, not the court. The defendant had considered the property’s contribution to the conservation area and the relevant external appearance. There was no obligation to consider the property as a non-designated heritage asset in its own right.
2. The internal works did not require planning permission. Accordingly, the authorities relied on by the claimant concerning works requiring planning permission were irrelevant. The claims were unarguable and permission was refused. It was also highly likely that the outcome would not have been substantially different, engaging section 31(3D) of the Senior Courts Act 1981. No exceptional public-interest reason justified disregarding that requirement under section 31(3E).
3. Parking-permit covenant. Section 106 permits obligations restricting development or use, requiring specified operations or activities, requiring land to be used in a specified way, or requiring payment of specified sums. The covenants did not fall within those categories. The additional provisions concerning implementation and title did not convert them into valid planning obligations. In any event, the covenants purported to bind only the current owners and not successors in title. The parking obligation was therefore invalid.
4. Monitoring fee. The principle in Oxfordshire County Council v Secretary of State applied. Other than in very limited exceptional circumstances, a monitoring fee could not be imposed through a section 106 agreement. This was a routine development, so the council had to bear the expense itself.
5. The parking obligation was a crucial element of the grant of the first permission. The invalidity of the section 106 agreement therefore required the decision dated 20 March 2015 to be quashed. The application for judicial review succeeded in relation to that decision. The second claim failed. The claimant received £12,000 on account of costs, with detailed assessment if not agreed; the defendant’s costs were limited to the previously assessed £1,500 acknowledgment-of-service costs.

First-instance judicial review proceedings. The applications concerning the heritage grounds were heard as renewed permission and rolled-up hearings. Permission to appeal against the judgment was refused because there was no real prospect of success.