French government lose a judicial review challenge for basement works

The lessees of a Grade II listed mansion in Kensington originally obtained planning permission and listed building consent for the proposed works in 2008. A further listed building consent was granted in 2010 approving a revised scheme. The lessees started some initial works at their home in 2011.

In February 2015 the lessees applied to the Council for certificates to confirm that "works had been undertaken sufficient to have implemented [the 2008] planning permission and [the 2010] listed building consent and the remainder of the works granted by these permissions can be lawfully completed and thereafter that the building can be lawfully occupied as a residential dwelling.”

In April 2015 the Council granted two certificates confirming that the planning permission and listed building consent had been lawfully implemented, therefore allowing completion of the remaining proposed works.

The French government, which is lessee of the neighbouring property, challenged the validity of these certificates on six grounds. Mr Justice Holgate dismissed five out of the six grounds. He "consider[ed] each of grounds one to five to be unarguable [and] therefore refuses permission to apply for judicial review in relation to those grounds."

The first ground being that the certificates issued were "ultra vires" as they were issued to "certify the lawfulness of works already carried out". The claimant argued that "these provisions may only be used to certify the lawfulness of proposed works."  

The judge said that the lessee was entitled to apply for a certificate to confirm that the works they have carried out fall within the ambit of the relevant planning permission whether the date for commencement had lapsed or not. Mr Justice Holgate confirmed that the focus for the certificate was to confirm if the remaining works could be completed and the Council were entitled to consider this. He held that the Council were "certifying the lawfulness of future works". 

The second ground was that the Council failed to consider if the initial works carried out were to fulfil lease obligations rather than implementing their planning permission and listed building consent.

Following a previous case Mr Justice Holgate found it to be "irrelevant to consider the purposes of a developer in carrying out works of implementation. Equally, it is irrelevant that a developer has or may have mixed motives or purposes when carrying out such works."

Thirdly, the French government argued the Council failed to check if the works were in breach of previous conditions.

The Whitley principle says that works that contravene conditions precedent cannot be taken as lawfully commencing development.  The judge said that the first exception to the Whitley principle would cover any breaches of conditions attached to the planning permission.  In such cases, there was no need to go on and consider the significance of the breach. The 2010 listed building consent was a freestanding consent that was "subject to the conditions set out therein" and did not incorporate the conditions which had been attached to the 2008 consent.

"Accordingly, the claimant’s contention that the [certificate] was granted in breach of the 'Whitley principle', simply because of non-compliance with pre-conditions contained in the 2008 listed building consent, is unarguable," he said.

Other grounds included that the Council had issued the certificates without any prior consultation with either the freeholder or the French Government and acted "in breach of their legitimate expectations".

The French government agreed that there is " no statutory obligation…. to notify [it] of the making of the applications for the certificates, or to give it an opportunity to make representations on the applications or to consult [it] on the applications." Just because the French government was previously consulted on planning applications, this does not give rise to a legitimate expectation that it would be consulted for all applications made under planning legislation.

The final ground was that the Council failed to input the certificate on their planning register. The Council accepted that they had failed to "comply with its obligation to enter the certificate on the planning register" within the required 14 day period.  The Court granted a declaration accordingly and upheld this ground. However, this "administrative error" did not affect the validity of the certificates.

Planning expert Victoria Lindsay of Pinsent Masons, the law firm behind Out-Law.com said: "The court's decision here provides very useful working guidance on a number of issues concerning certificates of lawfulness including the Whitley principle, entitlement of neighbour consultation, effect of planning permission amendments and interaction of sections 191 and 192 of the Town and Country Planning Act 1990."

"This is another case involving a 'mega-basement' extension in Kensington and Chelsea which has sparked controversy in recent years following a huge increase in the number of such extensions from 41 to 450 in 2013. Kensington and Chelsea has since tightened planning control for these mega-basements and seen a drop in applications compared to last year", said Lindsay.