The Government of the Republic of France v The Royal Borough of Kensington and Chelsea & Ors

A certificate of lawfulness of proposed development under section 192 of the Town and Country Planning Act 1990 may address whether earlier works lawfully implemented the permission, where that issue supports the conclusion that proposed works may lawfully be completed. A section 191 certificate is an optional evidential route, not the exclusive means of proving existing lawfulness.

Section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 is narrower. It permits certification only where proposed works would not affect the listed building’s special character. It cannot certify proposed works merely because they fall within an implemented listed building consent.

The claimant sought judicial review of certificates issued by the Royal Borough of Kensington and Chelsea concerning the redevelopment of 10 Kensington Palace Gardens, a listed building adjoining the French Ambassador’s residence at 11 Kensington Palace Gardens.

The certificates stated that a 2008 planning permission and a 2010 listed building consent had been lawfully implemented by internal works carried out in July 2011, and that the remaining works could lawfully be completed. Holgate J, subject to amendments to one certificate, refused permission on most grounds in [2015] EWHC 3437 (Admin). Laws LJ later granted permission to apply for judicial review and retained the claim in this court. The central issues were whether the certificates exceeded the statutory procedures, whether the implementation test differed, whether further information or consultation was required, and whether the 2010 consent incorporated the earlier conditions.

1. Section 192 certificate. Read as a whole, the certificate concerned only proposed future works. The reference to earlier works was part of the reasoning that the planning permission remained capable of authorising completion. Even if existing works were included, that part was severable. Section 191 does not make a certificate the exclusive means of proving existing lawfulness: its certification procedure is evidential, while lawfulness depends on the matters identified in section 191(2).
2. Section 26H certificate. Section 26H(2) exhaustively defines lawfulness for that procedure. It permits certification only where proposed alteration or extension would not affect the listed building’s special architectural or historic character. The procedure cannot confirm that an implemented listed building consent remains effective. The certificate was therefore ultra vires. Its schedule also described only past implementation, rather than proposed future works. It was quashed.
3. Implementation. The court rejected the argument that listed building consent required a higher threshold than planning permission. In any event, a test requiring works sufficient to constitute a material start satisfied any such threshold, and the evidence established sufficient commencement.
4. Information, consultation and referability. Whether works are referable to a consent is an objective question. Intention is irrelevant. There was no statutory or established common-law obligation to notify or consult the claimant, no sufficiently clear legitimate expectation, and no failure to take reasonable steps to obtain information.
5. 2010 consent. The later consent was freestanding. Its two stated full conditions were not supplemented by the conditions in the 2008 consent, whether by incorporation or implication.

The court allowed the substantive judicial review concerning the section 26H certificate on Grounds 1A and 1B, quashed that certificate, and refused relief on all other grounds. Patten LJ agreed.

• Court of Appeal (Civil Division): Permission was granted to amend and proceed on Grounds 1B and 2B. The substantive judicial review was allowed concerning the section 26H certificate on Grounds 1A and 1B, that certificate was quashed, and relief was refused on all other grounds.
• High Court, Queen’s Bench Division (Planning Court): Holgate J, subject to minor exceptions and amendment of the section 26H certificate, refused permission on most grounds in [2015] EWHC 3437 (Admin). He granted relief on a separate planning-register ground, which was not appealed.
• Permission stage: Laws LJ granted permission to apply for judicial review under CPR rule 52.8(5) and retained the claim in the Court of Appeal under rule 52.8(6).