R (Government of the Republic of France) v Kensington and Chelsea Royal London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Patten |
| Judgment Date | 12 June 2017 |
| Neutral Citation | [2017] EWCA Civ 429 |
| Docket Number | Case No: C1/2015/4066 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 June 2017 |
[2017] EWCA Civ 429
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (PLANNING COURT)
THE HON MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
and
Lord Justice Hickinbottom
Case No: C1/2015/4066
and
Paul Stinchcombe QC and Ned Helme (instructed by Edwin Coe LLP) for the Claimant
Tom Cosgrove QC and Robert Williams (instructed by Royal Borough of Kensington and Chelsea Legal Department) for the Defendant
The First Interested Party did not appear and was not represented
Paul Brown QC (instructed by Berwin Leighton Paisner) for the Second Interested Parties
Hearing date: 16–17 May 2017
Approved Judgment
Introduction
This application concerns 10 Kensington Palace Gardens ("10 KPG"), a Grade II listed building, the freehold of which is owned by the First Interested Party ("the Crown Estate") subject to a long lease held by the Second Interested Parties ("the Developers"). The building next door, 11 Kensington Palace Gardens ("11 KPG"), is also owned by the Crown Estate, subject to a long lease held by the Government of the Republic of France ("the Claimant"). It is occupied by the French Ambassador, as her official residence.
The Developers wish to redevelop 10 KPG by, amongst other things, excavating several subterranean levels; and, to that end, over the last ten years, they have made a number of applications for planning and listed building consents which have reflected the evolving proposed development. In August 2008, planning permission and a listed building consent were granted to the Developers by the Respondent local planning authority ("the Council"), for change of use to residential and works designed to restore the property to that use, including basement excavation to five storeys. In November 2010, in respect of a revised scheme with fewer subterranean storeys, the Council granted both a non-material planning permission amendment application and another listed building consent.
In this claim, the Claimant seeks judicial review of two certificates issued in April 2015 by the Council – under section 192 of the Town and Country Planning Act 1990 ("the TCPA"), and section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act"), respectively. To an extent, the scope of these certificates is in issue; but it is the Council's case that it certified that, as at February 2015, the balance of the development/works authorised by the 2008 planning permission and the later listed building consent may be lawfully carried out, because the planning permission and that consent have been lawfully implemented.
I pause there to note that the Claimant's real complaint is about the merits of the decisions with regard to planning and listed building consents for the proposed project at 10 KPG; and especially the adverse effect that the development/works will have upon its ability to conduct the mission's affairs which are dependent upon the facilities at the Ambassador's residence. It considers that insufficient weight has been given to that effect, particularly in the light of article 22(2) of the Vienna Convention on Diplomatic Relations (to which both the United Kingdom and France are signatories) which imposes a special duty on the receiving state to take all appropriate steps "to prevent any disturbance of the peace of the mission or impairment of its dignity". However, in this application, we are concerned with the lawfulness of the two certificates to which I referred, which is dependent upon, not planning merits, but whether, in all the circumstances, the Council had the power to issue those certificates in the form that it did.
On 27 November 2015, Holgate J, with minor exceptions, refused the Claimant's application for permission to proceed with a judicial review of those certificates. On 21 April 2016, upon consideration of an application for permission to appeal, Laws LJ rather granted permission to apply for judicial review under CPR rule 52.8(5), and retained the claim in this court under CPR rule 52.8(6). Thus, the claim for judicial review is now before us. It is resisted by both the Council and the Developers.
Before us, Paul Stinchcombe QC and Ned Helme have appeared for the Claimant, Tom Cosgrove QC and Robert Williams for the Council, and Paul Brown QC for the Developers.
The Law
Section 57(1) of the TCPA provides that, generally, planning permission is required for the carrying out of any "development" of land, defined in section 55 to include any building operations "in, on, over or under land", and any material change in use of buildings or land. Where development is carried out without such permission, then there are various enforcement procedures for breach of planning control which may be taken against the developer and/or the owner.
Section 91 of the TCPA (as amended by section 51 of the Planning and Compulsory Purchase Act 2004) provides that every planning permission granted shall be subject to a condition that the development to which it relates must be "begun" not later than the expiration of three years beginning with the date on which permission is granted, or such other period as the relevant planning authority may direct. If there is non-compliance with that condition, the benefit of the permission will be lost.
For these purposes, section 56 deals with, "Time when development begun". Section 56(1) provides that, where, as in this case, "development of land" consists of both the carrying out of operations and a change of use, it shall be taken as "initiated" at the earlier of the time when the operations are "begun" and the time when the new use is instituted. This application focuses upon the former.
Section 56(2) provides that, for the purposes of section 91:
"… development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out."
"Material operation" is defined in section 56(4) to include any work of construction in the course of erection of a building, any work of demolition of a building and the digging of a trench which is to contain the foundations of a building. Section 56(4) is not exhaustive: development may be begun by material operations not included in that list (see Field v First Secretary of State [2004] EWHC 147 (Admin) at [46] per Sullivan J). However, where material operations contravene planning conditions, they are unlawful and cannot properly be treated as commencing development authorised by the permission ( FG Whitley & Sons v Secretary of State for Wales (1992) 64 P&CR 296: the so-called " Whitley principle" and its exceptions were helpfully considered by Richards LJ in Greyfort Properties Limited v Secretary of State for Communities and Local Government [2011] EWCA Civ 908 at [6]–[9]).
Section 191 of the TCPA (introduced by section 10 of the Planning and Compensation Act 1991) provides a mechanism by which a person may ascertain whether an existing use or development of buildings and land is lawful. So far as material to this application, under the heading "Certificate of lawfulness of existing use or development", it provides:
"(1) If any person wishes to ascertain whether—
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if—
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
(3) …
(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect [i.e. "a section 191 certificate"]; and in any other case they shall refuse the application.
(5) A certificate under this section shall—
(a) specify the land to which it relates;
(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c) give the reasons for determining the use, operations or other matter to be lawful; and
(d) specify the date of the application for the certificate.
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.
(7) …"
In this judgment, references to "section 191" are to that section of the TCPA.
Section 192 of the TCPA 1990 (amended in form, but deriving from the established use certification procedure in section 94 of the Town and Country Planning Act 1971) deals with circumstances in which there may be doubt as to whether planning permission is required. It provides, under...
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