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Certificate soup: the Court of Appeal on certifying the lawfulness of development


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Summary: This blog explores the importance for developers of using the right form of certificate of lawfulness, a vital tool in unlocking certainty on a range of planning matters.

Certificates and certainty

The forms, permits and certificates of any administrative system often risk becoming “alphabet soup”, not only for the public but also for the public bodies who issue them. Striving to provide certainty for developers, English planning legislation has created a certification regime to confirm the lawfulness of development. And yet, as a Court of Appeal judgment handed down last week shows, local authorities, developers, homeowners and prospective purchasers need to make sure they understand which certificate is to be used when, so as to avoid uncertainty and even legal challenge.

Kensington Palace Gardens

The background to the case of The Government of the Republic of France v The Royal Borough of Kensington and Chelsea is the long-running objection of the Residence of the Ambassador of France to the return of its neighbouring property on Kensington Palace Gardens to residential use, including basement development.

For the purposes of confirming that a planning permission to develop and extend his Grade II listed property had been lawfully implemented, France’s neighbour asked the Council for:

  • a certificate of lawfulness of proposed use or development to confirm that his planning permission had been lawfully implemented and could, if he so wished, therefore be lawfully completed (under Section 192 of the Town and Country Planning Act 1990); and
  • a certificate of lawfulness of proposed works to provide similar confirmation for the related listed building consent (under Section 26H of the Listed Buildings and Conservation Areas) Act 1990.

The Council issues its certificates

A person is never obliged to obtain such certificates to prove that proposed works would be lawful. That is a question of objective fact and law. However the Sections provide the incentive that if a person does obtain these certificates, then their works are “conclusively presumed” to be lawful (subject to certain limitations). This has been why Kensington and Chelsea, like many Councils, often insists on such certificates being in place before determining later applications to vary permissions and listed building consents which applicants consider have been implemented.

After a careful assessment of the evidence, the Council was satisfied that sufficient works had been carried out in accordance with the approved drawings under the planning permission and listed building consent for these to have been implemented. Further works under the permission and consent could therefore be carried out and would be lawful. Accordingly, the Council issued the Section 192 and 26H certificates.

The Court of Appeal

France challenged the Section 192 and 26H certificates at the High Court and, having failed there, appealed to the Court of Appeal. Much of the ruling was highly fact specific. However, wider points of importance for the property industry are set out below.

One certificate to rule them all…well at least no need to duplicate

It is true that Section 192 provides that persons wishing to ascertain whether any proposed use or operations are lawful may apply for a certificate under that Section. Nonetheless, developers who have carried out works to implement a permission, and are really more interested in whether they can complete the remaining development at some later point, can still just make a Section 192 application.

The Court dismissed France’s contention that Parliament could ever have intended for developers in such circumstances (1) first to have to obtain a Certificate under Section 191, so to ascertain whether an existing operation (i.e. the works of implementation already carried out) are lawful, and then (2) take another eight weeks plus to make a separate Section 192 application for confirmation that the remaining proposed operations can be carried out, on the ground that the relevant permission has been implemented by those existing operations. That really would be obtaining unnecessary pieces of paper just for the sake of it.

To avoid challenge, however, developers would do well to make clear on the face of applications for Section 192 certificates the link between the lawfulness of proposed works  and existing works.

Sense and sensibility: heritage assets and lawfulness certificates

The Court noted that Section 26H provides that a person who wishes to ascertain whether proposed works for the alteration or extension of a listed building would be lawful can apply for a certificate under that section. Even so, the only way that the person can evidence that the works would be lawful is if it can be demonstrated that they would not affect the character of the listed building as a building of special architectural or historical interest. The statute simply does not cover other reasons why proposed works to a listed building might be lawful, such as that there is a listed building consent in place and it has been lawfully implemented.

The Court accepted that this meant that the utility of Section 26H is indeed quite narrow. It is primarily for scenarios such as where homeowners of a listed building, wishing to carry out relatively minor alterations such as refurbishing their kitchen, want certainty that they are not committing a criminal offence and would prefer to avoid the time and resources of having to go through an entire listed building application to obtain that confirmation.

However, the Court suggested that developers looking for comfort that their listed building consent has been lawfully implemented, and can be completed, are not left with nothing:

  • They would still benefit from a Section 192 certificate where the works authorised in their planning permission are the same, or substantially the same, as in their listed building consent. This is because the Court was very clear that the threshold for whether a material operation has been carried out for the purpose of implementing a listed building consent is exactly the same as for a planning permission. Arguments that greater sensitivity around heritage matters mean that more work would be needed to implement a listed building consent were rejected.
  • The Court also explained that a Council can still be asked to confirm informally that a listed building consent has been lawfully implemented, even if this confirmation does not carry the same conclusive presumption which one of the statutory certificates would do.

Separately, the Court dismissed the suggestion that a developer’s subjective motives and intentions have anything to do with the threshold for implementing a listed building consent. As with planning permissions, whether operations are in accordance with the drawings approved under a listed building consent is purely an objective question of law. That the same works might be required for some other purpose too, such as under a developer’s lease, is irrelevant.

Were the right certificates used here?

This detailed scrutiny of the lawful ambit of Section 191, Section 192 and Section 26H certificates resulted in the conclusion that the kind of certificate which the Council had used to set out its confirmation for the planning permission at Kensington Palace Gardens, Section 192, was the right format for doing so, and upheld it. However, the Court concluded that the certificate which the Council had issued to set out the equivalent confirmation for the listed building consent, Section 26H, was not, and quashed it.

That said, accepting submissions on behalf of France’s neighbour, the Court set out that this technical clarification of wider administrative procedure to local authorities regarding certificates, which are voluntary, had no effect on the Council’s lawful underlying finding that both the historic planning permission and listed building consent had been lawfully implemented and that the permitted works could be completed.

Wider lessons

This case makes it clear that care is needed in determining applications for  certificates of lawfulness:

  • Local authorities need to be cautious about using the right certificate in the right circumstances, and thinking about what informal format they wish to use to confirm that a listed building consent has been lawfully implemented or completed.
  • Certificates are a critical part of providing certainty to developers eager to make sure that their permissions do not expire before they are ready to fully carry out their scheme. They can also be very helpful in conclusively resolving buyer due diligence issues. And yet this case shows that what one might assume is simply a planning matter may well require appropriate legal advice to support the preparation of applications for certificates of lawfulness.
  • Our recommendation would always be to provide the local authority with a draft form of certificate. This avoids any issues relating to the legality of the certificate on its face. Particularly, where a certificate is required to confirm that future works may be carried out based on past works having been completed, care is needed to ensure that the wording of the certificate falls within the correct statutory provision pursuant to which the application has been made.

Sarah Fitzpatrick, Partner, and Sheridan Treger, Senior Associate, successfully acted for the Interested Party in Republic of France v the Royal Borough of Kensington and Chelsea [2017] ewca civ 429

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