The Government of the Republic of France v The Royal Borough of Kensington and Chelsea & Ors [2017] EWCA Civ 429
The point in plain English: A section 192 certificate can decide whether future works would be lawful even where that requires the council to decide, as an intermediate question, whether an older planning permission was lawfully begun. The equivalent listed-building certificate under section 26H is much narrower.
What happened
The dispute concerned substantial works at the Grade II listed 10 Kensington Palace Gardens, next to the French Ambassador’s residence. The developer wanted confirmation that earlier planning and listed building consents had been lawfully implemented so that the remaining works could proceed.
The Royal Borough issued both a section 192 planning certificate and a section 26H certificate concerning the listed building.
What the Court of Appeal decided
The Court held that section 192 could be used to certify the lawfulness of proposed future works. In reaching that answer, the authority was entitled to decide whether earlier works had lawfully commenced the planning permission. A section 191 certificate is useful because it creates a conclusive presumption, but it is not the only way in which the lawfulness of earlier works can be established.
The position under section 26H of the Listed Buildings Act was different. That provision is confined to proposed works which would not affect the character of the listed building as a building of special architectural or historic interest. It was not a general route for certifying that an old listed building consent had been implemented. The section 26H certificate was therefore quashed.
Why the case matters
The judgment is useful when an extant permission depends upon proving that a material start was made. It also prevents the planning certificate and listed-building certificate regimes being treated as interchangeable.
See Planning Geek’s guides to extant planning permission and Listed Building Consent.
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