The recent Court of Appeal judgment in Government of the Republic of France v The Royal Borough of Kensington and Chelsea EWCA Civ 429 considered the relationship between planning permissions and listed building consents. Although a number of similarities were noted, the court emphasised that they are distinguishable areas of law.
Certificates of lawfulness
The court drew a distinction between certificates of lawfulness issued with regards to the planning regime, under sections 191 and 192 of the Town and Country Planning Act 1990 (“TCPA”), and certificates of lawfulness issued in relation to listed building consents, under section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“LBA”).
A Section 191 certificate for lawfulness of existing use or development is merely an option for a developer to use; it is not a mandatory means of proving the lawfulness of existing use or development. A Section 192 Certificate – generally considered to be a certificate for the lawfulness of proposed use or development – may be used to certify the lawfulness of existing uses or developments as well.
However, the court adopted a much stricter interpretation of the purposes for which a Section 26H Certificate could be used. Section 26H LBA can only be used to apply for a certificate that proposed works to a listed building would not affect its character as a building of special architectural or historic interest.
The developers’ application for a Section 26H Certificate was used to test whether proposed works would be lawful because they fell within a listed building consent that had been implemented. This application fell outside the purposes of the Section. In addition, it was impossible to construe the certificate as for any proposed works; it referred only to past works. Accordingly, the certificate was quashed. The court stated that the section 26H certification procedure is primarily aimed at cases where alterations are so small that they could not arguably affect the character of the building as one of special architectural or historic interest.
Furthermore, the Court of Appeal found that there is neither a statutory requirement nor a common law duty for local authorities to consult on applications for certificates under either s192 TCPA or s26H LBA. For a local authority to have a duty to consult, they must reasonably believe that a third party has evidence that is not only relevant to the issue the council has to determine, but “material” in that it would affect the outcome of the decision.
Implementation of planning permission and listed building consent
The Claimant stated that, in order to implement a listed building consent, works were required that went beyond “a purely token commencement”, and a higher threshold was required to constitute implementation than under the TCPA. This argument was decisively rejected by the court. There is no reason why material operations within the scope of planning permission and works within the scope of a listed building consent should be subject to separate standards of implementation.
Freestanding permissions and consents
The court also considered the issue of whether the listed building consent, which was for development expressed as an amendment to a previous consent, is freestanding or whether the conditions of the previous consent can be implied. While acknowledging that conditions can be implied into planning permissions or listed building consents, the Court of Appeal stated that the courts should exercise “great restraint” in doing so. A very high threshold will be adopted for the incorporation of conditions not contained in the planning document itself. The court therefore concluded that the consent had its own time condition rather than the time condition from the original permission. However, the court considered it to be noteworthy that the developers had applied for a new consent not merely a variation of conditions to the earlier consent, suggesting that the court may have reached a different conclusion had the application been made under s10 of the LBA (the equivalent to s73 of the TCPA).