The Queen (on the application of Khodari) v Royal Borough of Kensington and Chelsea Council Cedarpark Holdings Inc. (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice McCombe,Lord Justice Davis |
| Judgment Date | 11 May 2017 |
| Neutral Citation | [2017] EWCA Civ 333 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 May 2017 |
| Docket Number | Case Nos: C1/2015/4101, C1/2016/1493, C1/2016/1494 & CO/3358/2105 |
[2017] EWCA Civ 333
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
PLANNING COURT
His Honour Judge Sycamore
(sitting as a Judge of the High Court)
CO/1734/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lord Justice Lewison
and
Lord Justice McCombe
Case Nos: C1/2015/4101, C1/2016/1493, C1/2016/1494 & CO/3358/2105
and
Mr Meyric Lewis (instructed by Blake Morgan LLP) for the Appellant
Mr Jonathan Wills (instructed by Tri Borough Shared Legal Services) for the Respondent
Hearing date: 5 April 2017
Approved Judgment
31 Egerton Gardens, in the Royal Borough of Kensington and Chelsea ("RBKC"), was built in the late 1880s in the red-brick Queen Anne Revival style. It was converted into three flats and two maisonettes in 1948 under a temporary planning permission, which was made permanent in 1962. Mr and Mrs Khodari are the leaseholders of Flat 4. On 23 March 2015 RBKC granted planning permission for the conversion of the building from 5 flats to 8. The approved conversion consists of internal works only. There is considerable pressure on parking in the borough, and RBKC required the additional three units to be "permit free"; that is to say that it required the developer to enter into an obligation that no one who occupied the additional units would apply for a resident's parking permit. It also required the developer to agree to pay a one-off monitoring fee designed to enable RBKC to police the "no permit" obligations. A second and alternative application was made for planning permission for the reconfiguration of the building from 5 flats in their existing form to 5 flats of different sizes. Permission for that development was granted on 5 June 2016. Since there was no increase in the number of dwellings no obligations about parking were involved. If either development goes ahead, Mr and Mrs Khodari's lease is liable to be terminated under a redevelopment break clause and they will lose their home. Understandably, therefore, they object to both developments.
They challenge the grant of the planning permissions on two essential grounds:
i) RBKC failed to have regard to the fact that 31 Egerton Gardens either was or should have been identified as an undesignated heritage asset, and failed to take into account the fact that the development would destroy important interior features of the building.
ii) In the case of the first planning permission the purported imposition of the obligation not to apply for resident's parking permits was outside RBKC's statutory powers.
The first of these challenges, which relates to both planning permissions, failed before HHJ Sycamore in the Planning Court; but the second, which relates only to the first planning permission, succeeded. He therefore quashed the grant of the first planning permission. RBKC now appeal against that order. Mr Khodari appeals against the judge's refusal to quash the second permission.
While the planning applications were under consideration Mr and Mrs Khodari instructed architects to assess the quality of 31 Egerton Gardens, and also applied to English Heritage (now Historic England) to have the building listed. Mr and Mrs Khodari's architects, Ettwein Bridges, prepared a comprehensive history and report not only on 31 Egerton Gardens itself, but also on the Henry Smith's Charity and Thurloe Estates of which it formed part. They concluded that 31 Egerton Gardens was a heritage asset which was "also designatable according to the criteria and guidance issued by DCMS and English Heritage".
However, English Heritage disagreed. Their assessment was that 31 Egerton Gardens stood out from its immediate environs in terms of its decorative and architectural sophistication. It was a bespoke design, used higher quality materials and had more lavish ornament than its neighbours. This was originally matched in the interior, but because of the subsequent conversion the original scheme "no longer survives in anything like its original state." They drew attention to the panelled billiard room, the stair hall, stained glass and other interior features. Although the building was a better than average example of its type it was neither innovative nor the work of even a moderately well-known architect. They recommended against listing, largely because the architectural quality of the building was not high enough to outweigh the loss of so much of the interior. They did however comment that the building was "of some architectural quality and strong local interest (in particular, given the treatment of its façade and surviving original interiors)".
The officer's report to RBKC's planning committee informed members that the building was not individually recognised as a heritage asset, but was a heritage asset as being part of a conservation area. It pointed out that the only works involved were internal works which, of themselves, would not require planning permission. The case officer, who had visited the building, considered that the heritage significance of the building was its external appearance rather than its interior. The overall assessment was that the proposals would not alter the external appearance of the building, thereby preserving the character and appearance of the conservation area.
Mr Lewis, appearing for Mr and Mrs Khodari, says that this was an error of law. He argues that RBKC ought to have considered whether 31 Egerton Gardens was a "non-designated" heritage asset; that is to say one that is not a listed building or part of a conservation area.
A "Heritage asset" is defined in the glossary to the National Planning Policy Framework ("NPPF") as follows:
" Heritage asset: A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing)."
A "Designated heritage asset" is also defined by the glossary:
" Designated heritage asset: A World Heritage Site, Scheduled Monument, Listed Building, Protected Wreck Site, Registered Park and Garden, Registered Battlefield or Conservation Area designated under the relevant legislation."
31 Egerton Gardens is not, individually, a designated heritage asset as defined because it is not a listed building. In a narrow sense, 31 Egerton Gardens is not a non-designated heritage asset either because it has not been "identified" as such by RBKC. It does not, therefore, fall within the definition in the glossary. That was the basis on which the judge decided to reject this challenge. However, Mr Lewis says that this is not the end of the matter.
He has drawn our attention to paragraph 039 of the National Planning Practice Guidance ("NPPG") on Conserving and Enhancing the Historic Environment. That says:
"Local planning authorities may identify non-designated heritage assets. These are buildings, monuments, sites, places, areas or landscapes identified as having a degree of significance meriting consideration in planning decisions but which are not formally designated heritage assets. In some areas, local authorities identify some non-designated heritage assets as 'locally listed'.
A substantial majority of buildings have little or no heritage significance and thus do not constitute heritage assets. Only a minority have enough heritage interest for their significance to be a material consideration in the planning process." (Emphasis added)
This statement is framed as a power rather than a duty. However, paragraph 41 of the same document says:
"When considering development proposals, local planning authorities should establish if any potential non-designated heritage asset meets the definition in the National Planning Policy Framework at an early stage in the process. Ideally, in the case of buildings, their significance should be judged against published criteria, which may be generated as part of the process of producing a local list." (Emphasis added)
Mr Lewis accepts that policy guidance on its own cannot change the law, so as to impose a legal duty on a local planning authority. However, he argues that paragraph 41, being part of government policy, identifies a material consideration to which a local planning authority must have regard in making planning decisions. If, as he says, RBKC failed to have regard to that paragraph and its recommendation then their decision to grant planning permission was unlawful.
I do not accept this submission. It is true that RBKC did not explicitly consider whether 31 Egerton Gardens should be formally identified as a non-designated heritage asset, but in substance RBKC considered the merits of its interior. Moreover, underlying this point is the proposition that whether an asset has the requisite "degree of significance" to satisfy the definition of "heritage asset" is a value judgment. In the case of a designated heritage asset the decision whether an asset has sufficient significance to be, say, entered on the register of listed buildings will be made by a national body: in the case of listed buildings in England by Historic England (formerly English Heritage). Whether any particular asset has sufficient significance to merit consideration in planning decisions is likewise a question of planning judgment. In the case of a non-designated heritage asset that judgment is that of the local planning authority. In the planning appeal relating to the Cross Keys, 1 Lawrence Street SW3 5NB (APP/K5600/A/12/2172342) on which Mr Lewis...
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