Government of The Republic of France v Royal Borough of Kensington and Chelsea Crown Estate Commissioners (1st Interested Parties) Mr. and Mrs. Jonathan Hunt (2nd Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 27 November 2015 |
| Neutral Citation | [2015] EWHC 3437 (Admin) |
| Docket Number | Case No: CO/2629/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 November 2015 |
[2015] EWHC 3437 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holgate
Case No: CO/2629/2015
Robert Griffiths QC and Nicola Strachan (instructed by Gordon Dadds LLP) for the Claimant
Tom Cosgrove (instructed by Legal Department Royal Borough of Kensington and Chelsea) for the Defendant
The First Interested Parties did not appear and were not represented
Paul Brown QC (instructed by Mischon de Reya) for the Second Interested Parties
Hearing dates: 10 and 11 November 2015
Introduction
The Claimant seeks permission to apply for judicial review of two certificates issued by the Royal Borough of Kensington and Chelsea ("the Council") in respect of 10 Kensington Palace Gardens, London, W8 4QP. In summary, the effect of those certificates was as follows:-
(i) A certificate issued on 2 April 2015 to the Second Interested Parties, Mr. and Mrs. Jonathan Hunt, under s.26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act 1990") that as at 13 February 2015 the works authorised by the listed building consents granted on 14 August 2008 and 1 November 2010 (for the "renovation, alteration and extension to the existing dwelling, including basement excavation and garden landscaping") may lawfully be carried out under those consents;
(ii) A certificate issued on 24 April 2015 to the Second Interested Parties under s.192 of the Town and Country Planning Act 1990 ("TCPA 1990") that as at 12 February 2015 the development authorised by the planning permission granted on 14 August 2000 (for the "renovation, alteration and extension to the existing dwelling, including basement excavation and garden landscaping") may lawfully be carried out under that permission.
The freehold owners are the Crown Estate Commissioners. They are the First Interested Parties but are taking no part in these proceedings. On the other hand Mr and Mrs Hunt have taken an active part in resisting the claim and it is convenient to refer to them instead as "the Interested Parties".
10 Kensington Palace Gardens is a vacant, large, detached four storey building with a basement and undercroft, set in 0.3 hectares of grounds. It became a Grade II listed building in April 1969 because of its architectural merits. The building was designed by Philip Hardwick in 1846. It was originally used as a private residence for almost a century until the Crown Estate granted a lease to the Russian Soviet Mission in 1941. It has been empty for about 15 years since the mission relocated. The Crown lease is now owned by the Interested Parties who, over the last 10 years or so, have applied for and obtained various planning permissions and listed building consents from the Council for the redevelopment and refurbishment of the property.
Kensington Palace Gardens runs north south between Bayswater Road and Kensington High Street. The street includes Foreign Embassies and large single family dwellings. 11 Kensington Palace Gardens is occupied by the Ambassador of France as her official residence. It too is subject to a Crown Estate lease held by the Government of the Republic of France ("the Claimant"). The properties lie within a Conservation Area and also an Area of Metropolitan Importance. The street lies adjacent to Kensington Palace Gardens which is designated as an Area of Metropolitan Open Land.
The claim form was issued on 5 June 2015. It was therefore issued just within the six week time limit stipulated by CPR 54.5(5) as regards the s.192 certificate, and outside that time limit by 22 days in relation to the s.26H certificate.
On 14 July 2015 the application for permission to apply for judicial review was considered on the papers by Patterson J. She ordered the application to be listed in Court as a rolled-up hearing and so the matter came before me. In the order she stated that challenge to the s.26H certificate was out of time, but that other matters in relation to the s.192 certificate might be arguable and that it was sensible for full argument to be heard to enable all issues to be resolved comprehensively.
Subsequently, a witness statement by Gareth Hughes dated 18 September 2015 was filed on behalf of the Claimant in order to explain the delay in the challenge to the s.26H certificate. Mr. Hughes is a director and barrister with Jeffrey Green Russell, who has been acting on behalf of the Claimant in respect of the planning issues with which this case is concerned since 2011.
The Defendant and the Interested Parties maintain that all of the grounds of challenge are unarguable and that the Claimant had not given a proper justification for the extension of time needed in order to challenge the s.26H certificate. Nevertheless, at the hearing all parties agreed that I should hear the parties' submissions on all grounds of challenge in relation to both certificates followed by submissions on the delay issue.
Planning History
In 2005 planning and listed building consents were granted by the Council for alterations and extensions in order to return the property to residential use. These works related to an attic, store extension, two pavilion extensions at the rear, provision of a new subterranean space for leisure facilities to include a swimming pool and conversion of the existing undercroft into a car museum. In 2006 planning and listed building consents were granted for the expansion of the basement below the rear garden to accommodate a car museum and also a new garden layout. That consent also provided for two new pavilion extensions to be added to the garden elevation.
In 2008 the Interested Parties decided to seek consents for enlarged schemes. On 14 August 2008 the Council granted planning permission (ref. PP/08/01322) for development described as "renovation, alteration and extension to the existing dwelling, including basement excavation and garden landscaping", subject to the conditions set out in the Schedule attached to the planning permission and in accordance with the plans submitted. The relevant plans were listed in the Schedule to the planning permission. The Schedule also stated "full conditions, reasons for their imposition and informatives attached overleaf". Condition 1 stipulated that the development permitted should be "begun before the expiration of three years from the date of this permission" in accordance with s. 91 of the TCPA 1990. Accordingly unless the planning permission was implemented beforehand, it would expire on 14 August 2011. Conditions 7, 10, 12, 14 and 15 set out matters for which the Council's approval was required to be obtained before the development authorised by that permission could lawfully be commenced so as to implement the permission and satisfy the time limit in condition 1.
On 14 August 2008 the Council also granted a listed building consent (ref. LB/08/01323) under s. 16 of the Listed Building Act 1990 on an application made by Mr. and Mrs. Hunt under s. The grant of consent reads as follows:-
"The Borough Council, hereby consents to the works to the Listed Buildings referred to in the under-mentioned Schedule, subject to the conditions set out therein and in accordance with the plans submitted, save insofar as may otherwise be required by the said conditions. …"
In the Schedule the "development" was again described as "renovation, alteration and extension to the existing dwelling, including basement excavation and garden landscaping". The approved drawings were listed in the Schedule. At the foot of the Schedule it was stated that "Full conditions, reasons for their imposition and informatives attached overleaf". Condition 1 of the consent imposed the time limit of three years for the commencement of the works authorised thereby, in accordance with s. 18 of the Listed Building Act 1990. Condition 2 reads:-
"The demolition hereby permitted shall not be undertaken before a contract for the carrying out of the remainder of the works hereby permitted has been let."
Condition 3 reads:-
"The works hereby permitted shall be carried out in their entirety exactly and only in accordance with the drawings, and other particulars, forming part of the Consent, …"
The drawings referred to in Condition 3 were those listed in the Schedule to which I have referred.
The Grounds of Challenge in this case also rely upon certain other conditions contained in the 2008 listed building consent, namely:-
"5. Detailed drawings or samples of materials as appropriate, in respect of the following, shall be submitted to and approved in writing by the Local planning authority before the relevant part of the work is begun:
(a) All new architectural elements to main house, to include roof-plan, rooflights, glazed roof areas, bay windows, pavilions, staircases, windows, chimney pieces, decorative plasterwork, and internal joinery. Landscaping designs to rear garden and forecourt.
6. All original fabric shall be retained unless notated otherwise on the approved drawings, including lath and plaster ceilings.
7. Before any work is undertaken in pursuance of this consent to demolish any part of the building, such steps shall be taken and such works carried out as shall, during the progress of works permitted by this consent, secure the safety and stability of that part of the building which is to be retained.
8. Suitable precautions must be taken to secure and protect the interior elements against accidental loss or damage during building work, and no such elements may be disturbed or removed temporarily or permanently...
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