Kent, R (on the application of) v Royal Borough of Kensington & Chelsea & Ors

Planning policies must be interpreted objectively from their language and context. A policy restricting further basement floors may properly distinguish between the scope of basement development and the separate question whether an existing basement storey has been built. The court must identify the policy’s true meaning, but planning judgments and findings of fact are subject to a high threshold of challenge. A disagreement with the planning authority’s evaluation does not establish legal error. The statutory duty to pay special attention to conservation areas requires genuine consideration of their character and appearance; it does not entitle the court to substitute its own planning judgment.

The claimant challenged the Council’s grant of planning permission for works including excavation of a basement and reconstruction of a rear closet wing at a mid-terrace property in two conservation areas. He alleged that the Council had misconstrued Policy CL7 of its Consolidated Local Plan, which restricted basement development and further basement floors, and had failed to comply with the statutory conservation-area duty. He also challenged two planning findings of fact as perverse. The central issues were the proper construction and application of Policy CL7(c), and whether the officer’s report disclosed legal error in relation to heritage considerations.

1. Ground 1 dismissed. The meaning of planning policy is a matter of law. Policy wording must be interpreted objectively according to its language and context, applying the approach in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at [19].
2. Paragraph 34.3.46 defined the scope of Policy CL7 by describing basement development as the construction or extension of accommodation below the prevailing ground level. Policy CL7(c), however, used the distinct expressions “basement floors” and “basement”. In context, those expressions meant basement storeys, not every extension to an existing lower ground floor.
3. Policy CL7(c) was directed to preventing successive applications for cumulative basement storeys from frustrating the dominant one-storey restriction in Policy CL7(b). Subject to the pre-1 July 1948 exception and other express qualifications, the relevant question was whether a basement storey had been built since July 1948, not merely whether an existing storey had been extended. The planning officer had addressed that question and was entitled to conclude that the earlier closet-wing and conservatory works did not create a basement storey.
4. Even if the claimant’s construction had been accepted, the officer’s conclusion concerning the prevailing ground level was open to her, and it was highly likely that the same planning decision would have followed. The alleged minor difference in floor levels did not establish the construction of a new basement storey.
5. Ground 2 dismissed. Under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, the Council had to pay special attention to preserving or enhancing the character and appearance of the conservation areas. The officer’s report identified that duty and Policy CL3 as material considerations, assessed the relevant architectural and visual matters, and reached conclusions within the range of lawful planning judgment.
6. Challenges to planning findings of fact face the high threshold of Wednesbury unreasonableness or legal perversity, as explained in R (Newsmith Stainless Limited) v Secretary of State for Environment, Transport and the Regions [2001] EWHC 74 (Admin) at [7]. That threshold was not met. The claim was dismissed.

First-instance judicial review claim. No earlier decision is stated in the judgment.