Forget Huawei and Hong Kong.  Is planning enforcement the next geo-political battleground for China?

We report this month on an application in the High Court in Northern Ireland for an injunction against development carried out by the Chinese consulate in Belfast .  The case demonstrates the difficulty of effective planning enforcement against embassies and consulates.

In May 2019, the Chinese consulate applied for planning permission to add a 3m high external wall, two security kiosks and a 16 car carport and wash bay to their listed building situated in a conservation area.  The application was withdrawn in February 2020 but works nevertheless began in April 2020.  The council issued a Tree Preservation Order, a Temporary Stop Notice and a Listed Building Enforcement Notice.  Works continued and the council sought an injunction.  The consulate claimed diplomatic immunity but offered to continue discussions with the council if it accepted this immunity.  The council refused.  The consulate claimed immunity, reinstated its planning application and continued work.

The consulate did not defend or participate in the injunction application on grounds that, as it had diplomatic immunity, it did not recognise the court’s jurisdiction. It did, however, make representations to the council which were made available to the court.

The court’s judgment makes an interesting tour through the provisions of the State Immunity Act 1978.  The court held that, while s1 of this Act makes clear that the Chinese State is not subject to the jurisdiction of the UK courts, s6 makes clear that this does not apply in relation to UK property owned or used by the Chinese State.  However, s13 states that no injunction can be brought against the Chinese State, whether or not it relates to UK property.

The council sought to argue that the property was owned by the Consul General herself, not the Chinese State, as hers was the name on the Land Registry certificate.  The court disagreed.  The court further held that the Act effectively prevented an injunction against the Consul General herself because, in relation to this work, which was done on behalf of the Chinese state, she had diplomatic immunity.  

The case neatly illustrates the difficulty with enforcement against embassies and consulates.  It seems clear that planning enforcement remedies such as an enforcement notice, a listed building enforcement notice, a TSN and a TPO can be applied to consular land.  But the enforcement of those remedies is almost impossible.  Consider the usual enforcement options, prosecution, injunction and direct action: 

• If the state, and its diplomatic staff, are not subject to the jurisdiction of the court, they cannot be prosecuted.  

• An injunction is ruled out by s13.  

• And direct action is presumably an act of war!  

One of the alternative reasons for refusal of an injunction in this case was that it would be, in the judge’s words, “beating the air” as the Consul General could not be brought before the court to answer for non-compliance.  

Which leaves what was described in court as “the nuclear option”.  Enforcement can, it appears, only be handled by way of diplomatic pressure through the Foreign and Commonwealth Office, which handles consular matters on behalf of the UK Government.  The FCO expects other states to respect the laws of the UK, including planning laws, irrespective of immunity.  Guidance has been produced for embassies and, in this case, the FCO appears to have written to the Chinese consulate, demanding compliance.  Ultimately, if the consulate fails to come to an negotiated solution with Belfast City Council, the government has the power to revoke permission to use the premises as a consulate and occupation will have to cease.  

Can’t wait for that headline.  “UK Government uses the nuclear option against the Chinese State in Northern Ireland!”