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11/06/2021

CLEUDs must be reformed to ensure proper community accountability

NOcado protest sign

It took a determined community campaign to highlight flaws in Ocado’s efforts to build a distribution centre next to a primary school in Islington, London. Campaigners Natasha Cox and Bill Eyres outline the campaign and discuss its consequences

Early this week the Ocado Group and M&S joint venture, Ocado Retail Ltd, failed to persuade the High Court to permit its development of a 24/7 online grocery distribution centre immediately abutting Yerbury Primary School in Tufnell Park, N19. The legal win was the culmination of 18 months of determined opposition by our campaign group NOcado, a battle many told us was hopeless against a powerful and well-resourced corporate Goliath. 

So how did this battle get to the High Court and what does it tell us about the strengths and weaknesses of the planning system and the way corporate players can abuse it? In April 2019 Islington Council granted landlord Telereal Trillium a lawful development certificate after it argued that the warehouse units had been used for "storage and distribution" since 1992 providing “evidence” and witness statements to that effect. This decision – effectively confirming that the units had a lawful B8 use – apparently gave Ocado a green light to build their depot under permitted development legislation with no conditions and no community engagement required.

"It was only in late 2019 that the community and school learnt of the plans when Ocado applied for planning permission for additional developments on the site, including diesel pumps"

It was only in late 2019 that the local community and the school learnt of the plans when Ocado applied for planning permission for some additional developments on the site, including operating three diesel refuelling pumps and a diesel tank (and even siting a smoking shelter next to the nursery playground). It was then the full nature of the development became clear and a huge backlash began. At heart, this was about vulnerable young children from 3-11 being exposed to lifelong damage by a polluting and noisy depot literally metres away. 

Ocado, recognising that the attempt to develop the scheme under the radar had failed, agreed to attend a community meeting in January 2020. But by this stage Ocado’s blatant lack of transparency had blown away any trust that the community might have had in this supposedly consumer-friendly brand. Through January and February 2020 members of NOcado thoroughly researched the history of the site and in April, after seeking legal advice, submitted a 154-page pack of evidence refuting Telereal Trillium’s version of events on the site.

Islington Council took a firm stance once the applicant’s misleading approach was exposed (and has remained a consistent advocate for the community ever since). It revoked Ocado’s certificate in October 2020 after Telereal Trillium was found to have used statements in their application that were “false” as well as “material information being withheld”.

Unabashed, Ocado continued building and applied for a judicial review to overturn the decision to revoke the lawful development certificate. However, to provide a smokescreen for using a legal sledgehammer against the concerns of the community, they launched a sham consultation in April 2021 that was high on greenwash and low on honest and comprehensive disclosure (including promising their own impact statements which are yet to materialise). 

This fitted a consistent pattern of misleading behaviour throughout this 18-month battle: Ocado withheld revealing themselves as the users of the site until the last possible moment (fearing popular opposition); they announced themselves as socially responsible neighbours, while making it clear the community had no recourse against their right to exploit the site as they chose. Underlying this behaviour is a cold determination to exploit CLEUDs forcing an unwanted development on a community and its children.

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"Our campaign shows that the current CLEUD framework is flawed as it puts the developer in the driving seat and provides plenty of opportunity for misleading submissions"

 

 

The result of this landmark Judicial Review carries significant implications for the use and misuse of CLEUDS (Certificate of Lawful Existing Use or Development). Legislative reform is vital to ensure proper community transparency and accountability and to prevent corporations like Ocado abusing the system.

Our campaign shows that the current CLEUD framework is flawed as it puts the developer in the driving seat and provides plenty of opportunity for misleading submissions and does not provide for full, effective and transparent community engagement.

The judge’s ruling clearly raises the bar for developers but will be insufficient to prevent misuse. In this case a determined community assisted the council in exposing an abuse of the system and the threat to vulnerable young children. However, this development almost went through under the radar and we were lucky that the truth came out. Given the high profile of this case, the group has secured backing to fund a legacy programme to research and develop vital changes to this area of planning so this cannot happen to vulnerable communities anywhere else.

Natasha Cox and Bill Eyres are campaigners from NOcado

Image credits | NOcado

 

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