Establishing the current use for CLOPUD applications

A headline-making High Court decision has confirmed that basement excavation by the founder of Foxtons can continue under existing consents. A s.192 CLOPUD can confirm that a planning permission has been lawfully implemented, and that therefore the remainder of the development may lawfully be carried out.

In Republic of France v RB Kensington & Chelsea, s.192/s.26H certificates of lawfulness of proposed development had been sought and obtained on the basis that:

• A 2008 planning consent and a 2010 listed building consent permitted the works. 
• Although the time for implementation of both consents had now passed, works had been carried out – lawfully – under both consents before their expiry.

The claimant – the neighbour, the French Embassy – challenged the certificates on several grounds, but the Court held that the certificates had been granted lawfully.

The claimant argued that s.192/s.26H certificates could only certify the lawfulness of proposed works, not existing works (which an authority could only certify by a s.191 certificate, and not at all in the listed buildings context). The court rejected that. There is no reason why a s.192/s.26H certificate cannot draw conclusions about the lawfulness of existing works en route to determining that future works under the same consent(s) would be lawful.

The claimant also contended that the works had not implemented the consents, because those works were required by the property’s lease. This too was rejected. A developer’s reasons for undertaking works are irrelevant to whether they implement a consent; there is no reason why works required under a lease cannot also implement a consent.

According to reports last weekend, the Embassy is appealing the decision.