Rajin Mehta, R (on the application of) v Royal Borough of Kensington and Chelsea

Lawful implementation of planning permission requires material operations to be carried out in accordance with the permission and to be more than de minimis. Whether differences from approved plans are material is a matter of fact and degree and, subject to legal error, planning judgment.

A certificate under section 192 of the Town and Country Planning Act 1990 may be revoked where materially false information was submitted or material information was withheld. The authority must identify the false or withheld information, assess its materiality, and then decide whether to revoke. The evaluative findings are reviewable on ordinary public law grounds.

The claimant sought judicial review of the Council’s decision to revoke a Certificate of Lawful Proposed Use or Development relating to a two-storey basement dwelling. The certificate had confirmed that three piles installed before the planning permission expired had lawfully implemented the permission.

Following investigations, the Council concluded that the application had falsely stated that the piles formed part of the contiguous external wall shown on the approved plans and were constructed in accordance with them. The piles were materially closer to the adjoining building than the 1100mm separation shown on the plans. The claimant challenged the decision on three grounds concerning interpretation of the permission, material falsity, and the utility of the piles.

1. The claim was dismissed. The Council had lawfully interpreted the planning permission and was entitled to revoke the certificate.
2. Interpretation of a planning permission is an objective question of law. The court asks what a reasonable reader, equipped with relevant planning knowledge, would understand from the natural and ordinary meaning of the permission, read as a whole and in context. The approved plans required the external wall of the dwelling to be at least 1100mm from the adjoining building at ground level, with a further underground setback. The permission did not prescribe the precise location of foundations, but the Council did not misinterpret it by treating the separation shown for the external wall as material.
3. Under sections 56(2) and 56(4) of the Town and Country Planning Act 1990, implementation requires a material operation comprised in the development. The operation must comply sufficiently with the permission and must not be de minimis. Differences from approved plans are not necessarily fatal; their significance and the substantial usability of the works in the permitted development must be assessed as matters of fact and degree and planning judgment.
4. The application materials stated that the three piles would form part of the contiguous piled wall and had been installed in accordance with the approved drawings. The annotated plan and supporting statement reasonably conveyed that the piles formed part of the external wall in the approved location. Since the piles were materially within the 1100mm separation zone, the Council was entitled to find that the information was false in a material particular.
5. Materiality under section 193(7) is satisfied where the information could have led to a different factual finding or inference and therefore a different decision. The Council had correctly understood the law, assessed the evidence, and reached a planning judgment that the information could have affected whether the works comprised part of the development and implemented the permission.
6. The Council was also entitled to conclude that the proposed engineering sequence would render the existing piles redundant for the relevant part of the development. Its conclusion that the piles were not comprised in the permitted development was not irrational. The discretion to revoke was reasonably exercised, having regard to the policy context and the adverse consequences for the claimant.

First-instance judicial review claim. Permission to proceed was granted on three grounds, all of which were rejected. The court ordered counsel to draw up an order addressing the judgment and costs.