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08/06/2021

High Court upholds council’s decision to refuse Ocado’s plans for new depot

Words: Laura Edgar
Campiagning / NOcado

The High Court has dismissed online supermarket Ocado’s judicial review claim against Islington Council’s refusal for its application for a 24/7 online grocery distribution centre in Tufnell Park.

The NOcado Campaign, a community coalition of parents and children at Yerbury Primary School alongside the wider residents and community of Tufnell Park and Archway, had raised concerns about pollution and its effects on the school.

At a hearing in May, the court heard that the council had granted property company Telereal Trillium a certificate of lawful development for the site at Bush Industrial Estate in 2019.

Ocado had entered a lease agreement for the units, having “relied upon the certificate as conclusive evidence that its intended use of the premises was lawful”.

Islington Council told the court “false information” had been provided by Telereal Trillium and “material information withheld” on the nature and extent of the plan as well as the nature of the use and occupation.

In 2018 Telereal, who acquired much of the site from BT in 2002, negotiated with Ocado for a lease of units A-D. Ocado was seeking a distribution centre in the Islington area to store food at chilled temperatures, process customer orders and organise scheduled deliveries 24 hours a day. It was a condition of the deal that the premises would have a suitable planning consent for Ocado’s plans.

In January 2019, Telereal applied to the council for a CLEUD to certify the lawful use of units A to D for B8, storage and distribution purposes. This was granted by an officer acting under delegated powers. The CLEUD did not need to be consulted on.

Early in November 2019, Ocado entered into an agreement for the lease of units A-D relying upon the CLEUD. Later in the month, Ocado submitted a planning application to the council for improvement works to the units, which was subject to consultation.

Campaign group the Concerned Residents of Tufnell Park (CRTP) expressed its objections and became aware of the grant of the CLEUD and took advice on whether it could be challenged. In April 2020, the group, supported by documents mainly relating to the planning history of the estate, “asked the local authority to exercise its powers under s.193(7) of the TCPA to revoke the CLEUD on the grounds that Telereal’s application had contained statements which had been ‘false in a material particular’ or that ‘material information’ had been withheld'".

In June 2020, the council wrote to Ocado and Telereal enclosing the material received from CRTP, to say there appeared to be grounds for revoking the CLEUD. Telereal and Ocado contended that there were no grounds for revocation, but the CLEUD was revoked in October 2020, despite improvement works having been carried out.

On 20 November 2020 Ocado issued its claim for judicial review, which was granted.

Ocado’s grounds for challenge included that the council “erred in law in concluding that the false statements and withheld information they identified were material to the correct identification of the planning unit for the site to which the s.191 application related” and “in exercising its discretion as to whether to make the revocation order Islington failed to take into account material considerations”.

Justice Holgate noted that “public confidence in CLEUDs must extend to the reliability of the information put forward by an applicant to support the grant of a certificate”, something “Islington plainly had in mind”.

“Telereal obtained a certificate to which it was not entitled on the basis of the information it provided and withheld.”

After considering all the grounds, he dismissed the judicial review claim.

Natasha Cox, a parent of the affected school and campaigner, said the decision is a “landmark victory for common sense and the rights of communities”.

“The verdict of Mr Justice Holgate sets a rightful precedent for prioritising children’s health over irresponsible growth of online deliveries. There is a place for distribution centres but it is not a skipping rope away from primary school classrooms.”

Cassie Moss, headteacher of Yerbury Primary School, added: “Ocado can make as many attempts to greenwash as they like, but ultimately this type of facility has no place next to schools and homes. As the children have said all along, Ocado can find another site – we can’t find another school.”

The NOcado campaigning group said it will now lobby for changes to planning law to prevent corporations like Ocado “abusing” the planning system. The group has secured backing to fund a legacy programme to ensure that no other community has to go through this in the future.

In response to a request from The Planner, a spokesperson from Ocado said: “We are disappointed with the judgement. Our proposals for the Bush Industrial Estate are to build the greenest and quietest grocery facility in the UK with a 100 per cent electric van fleet. We remain committed to the Islington community, where we delivered to one in six households in 2020, and will continue to look at how we can deliver a better service to the borough and significantly reduce our emissions.”

Image credit | NOcado

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