Foxton's former owner basement challenge: Court of Appeal clarifies scope of certificate of lawfulness of proposed works for listed buildings

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On 12 June, the Court of Appeal handed down judgement in The Government of the Republic of France v the Royal Borough of Kensington and Chelsea [2017] EWCA Civ 429.  This was in relation to a challenge brought by the French Embassy against the 'super basement' development at neighbouring 10 Kensington Palace Gardens owned by Jon Hunt the former owner of Foxton's estate agency.

Planning permission and listed building consent were granted for the development in August 2008 and works implementing those consents occurred in July 2011.  Subsequently, in April 2015, the council issued a Certificate of Lawfulness of Proposed Works under S26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 and a Certificate of Lawful Proposed Use or Development under S192 of the Town and Country Planning Act 1990.  Both certificates were issued to confirm that future works under the relevant consent would be lawful as the consents had been lawfully implemented.  The French Embassy challenged the grant of both certificates in the high court but was unsuccessful and they lodged an appeal.

The Court of Appeal has now quashed the certificate under S26H of the Listed Buildings Act as they held it to be outside of the powers granted by that section.  S26H provides that a certificate can be issued to confirm works as lawful "if they would not affect the character of the listed building as a building of special architectural or historic interest".  In this instance, the certificate had been issued to confirm the works as lawful because they fell within a lawfully implemented listed building consent.  This was not within the scope of S26H and so the decision to issue the certificate was ultra vires and the certificate was accordingly quashed.

Lord Justice Hickinbottom acknowledged that his narrow construction may not be "optimal for those who wish to have confirmation that a listed building consent that they have obtained has been implemented".  However, it was his view that although an "inconvenience" this was nonetheless the correct interpretation since the primary aim of S26H, which was introduced in the Listed Buildings Act in 2013, was to allow for minor alternations to avoid the need for full applications on each occasion.  It had never been intended to allow for clarification of valid implementation.

The decision also helpfully clarifies common points of confusion as to the correct application of S191 and S192 certificates for existing and proposed use.  Lord Justice Hickinbottom recognised that S191 should be relied upon to establish whether works already carried out have been properly implemented.  However, if a developer is confident that such works have been validly implemented but has doubts about future works not yet carried out then this would require a S192 application.  The French Embassy had tried to argue here that the correct route should have been a S191 application but the judge felt the description was clear on the face of it that the application was aimed at establishing the lawfulness of future works.  This decision emphasises, though, the need for care to be taken when applying for a certificate to ensure the correct route is chosen at the outset for the relevant existing and proposed works and to not muddle the two.