Khodari, R (on the application of) v Cedarpark Holdings Inc, Court of Appeal - Civil Division, May 11, 2017, [2017] EWCA Civ 333

Issuing Organization:Civil Division
Actores:Khodari, R (on the application of) v Cedarpark Holdings Inc
Resolution Date:May 11, 2017

Case Nos: C1/2015/4101, C1/2016/1493, C1/2016/1494 & CO/3358/2105

Neutral Citation Number: [2017] EWCA Civ 333




His Honour Judge Sycamore

(sitting as a Judge of the High Court)


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11 May 2017

Before :





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Between :

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MR MEYRIC LEWIS (instructed by Blake Morgan LLP) for the Appellant

MR JONATHAN WILLS (instructed by Tri Borough Shared Legal Services) for the Respondent

Hearing date : 5 April 2017

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JudgmentLord Justice Lewison:

  1. 31 Egerton Gardens, in the Royal Borough of Kensington and Chelsea (``RBKC''), was built in the late 1880s in the red-brick Queen Anne Revival style. It was converted into three flats and two maisonettes in 1948 under a temporary planning permission, which was made permanent in 1962. Mr and Mrs Khodari are the leaseholders of Flat 4. On 23 March 2015 RBKC granted planning permission for the conversion of the building from 5 flats to 8. The approved conversion consists of internal works only. There is considerable pressure on parking in the borough, and RBKC required the additional three units to be ``permit free''; that is to say that it required the developer to enter into an obligation that no one who occupied the additional units would apply for a resident's parking permit. It also required the developer to agree to pay a one-off monitoring fee designed to enable RBKC to police the ``no permit'' obligations. A second and alternative application was made for planning permission for the reconfiguration of the building from 5 flats in their existing form to 5 flats of different sizes. Permission for that development was granted on 5 June 2016. Since there was no increase in the number of dwellings no obligations about parking were involved. If either development goes ahead, Mr and Mrs Khodari's lease is liable to be terminated under a redevelopment break clause and they will lose their home. Understandably, therefore, they object to both developments.

  2. They challenge the grant of the planning permissions on two essential grounds:

    i) RBKC failed to have regard to the fact that 31 Egerton Gardens either was or should have been identified as an undesignated heritage asset, and failed to take into account the fact that the development would destroy important interior features of the building.

    ii) In the case of the first planning permission the purported imposition of the obligation not to apply for resident's parking permits was outside RBKC's statutory powers.

  3. The first of these challenges, which relates to both planning permissions, failed before HHJ Sycamore in the Planning Court; but the second, which relates only to the first planning permission, succeeded. He therefore quashed the grant of the first planning permission. RBKC now appeal against that order. Mr Khodari appeals against the judge's refusal to quash the second permission.

  4. While the planning applications were under consideration Mr and Mrs Khodari instructed architects to assess the quality of 31 Egerton Gardens, and also applied to English Heritage (now Historic England) to have the building listed. Mr and Mrs Khodari's architects, Ettwein Bridges, prepared a comprehensive history and report not only on 31 Egerton Gardens itself, but also on the Henry Smith's Charity and Thurloe Estates of which it formed part. They concluded that 31 Egerton Gardens was a heritage asset which was ``also designatable according to the criteria and guidance issued by DCMS and English Heritage''.

  5. However, English Heritage disagreed. Their assessment was that 31 Egerton Gardens stood out from its immediate environs in terms of its decorative and architectural sophistication. It was a bespoke design, used higher quality materials and had more lavish ornament than its neighbours. This was originally matched in the interior, but because of the subsequent conversion the original scheme ``no longer survives in anything like its original state.'' They drew attention to the panelled billiard room, the stair hall, stained glass and other interior features. Although the building was a better than average example of its type it was neither innovative nor the work of even a moderately well-known architect. They recommended against listing, largely because the architectural quality of the building was not high enough to outweigh the loss of so much of the interior. They did however comment that the building was ``of some architectural quality and strong local interest (in particular, given the treatment of its façade and surviving original interiors)''.

  6. The officer's report to RBKC's planning committee informed members that the building was not individually recognised as a heritage asset, but was a heritage asset as being part of a conservation area. It pointed out that the only works involved were internal works which, of themselves, would not require planning permission. The case officer, who had visited the building, considered that the heritage significance of the building was its external appearance rather than its interior. The overall assessment was that the proposals would not alter the external appearance of the building, thereby preserving the character and appearance of the conservation area.

  7. Mr Lewis, appearing for Mr and Mrs Khodari, says that this was an error of law. He argues that RBKC ought to have considered whether 31 Egerton Gardens was a ``non-designated'' heritage asset; that is to say one that is not a listed building or part of a conservation area.

  8. A ``Heritage asset'' is defined in the glossary to the National Planning Policy Framework (``NPPF'') as follows:

    ``Heritage asset: A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing).''

  9. A ``Designated heritage asset'' is also defined by the glossary:

    ``Designated heritage asset: A World Heritage Site, Scheduled Monument, Listed Building, Protected Wreck Site, Registered Park and Garden, Registered Battlefield or Conservation Area designated under the relevant legislation.''

  10. 31 Egerton Gardens is not, individually, a designated heritage asset as defined because it is not a listed building. In a narrow sense, 31 Egerton Gardens is not a non-designated heritage asset either because it has not been ``identified'' as such by RBKC. It does not, therefore, fall within the definition in the glossary. That was the basis on which the judge decided to reject this challenge. However, Mr Lewis says that this is not the end of the matter.

  11. He has drawn our attention to paragraph 039 of the National...

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