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05/08/2021

Legal landscape: CLEUD up - What planners can learn from Ocado’s judicial review

The headline-grabbing attempt by Ocado to have a refusal of a Certificate of Lawful Existing Use or Development overturned by judicial review has significant implications for future CLEUD applications, say Richard Wald QC and Alec Cropper

3 minute read

It’s unusual for the first sentence of a judgment to declare that the case gives rise to important issues of planning law. However, that is what Mr Justice Holgate said In R (Ocado Retail Ltd) vs London Borough of Islington & Concerned Residents of Tufnell Park. This case focused on attempts to develop a large distribution centre next to a primary school using a Certificate of Lawfulness of Existing Use or Development (“CLEUD”). The key facts were:

  • A building comprising four industrial units (A-D) was granted planning permission in 1987, subject to a condition that it not be used for warehousing;
  • It was purportedly occupied by BT for storage from 1992 for at least 10 years;
  • In 2019, an application for a CLEUD was made seeking confirmation that Units A-D had a lawful B8 use. Evidence in support of that application – described by the court as “minimalist” – included a statutory declaration stating that all four units had been used continuously for storage since 1992. Islington Council granted a CLEUD on this basis;
  • Local residents became aware of the CLEUD and established a campaign group [NOcado.org] to scrutinise matters. Knowing that units A-D had not been continuously in use since 1992, they collated evidence that “carefully explained” how they had been unused to varying degrees since at least 2006;
  • The council revoked the certificate on the basis that the CLEUD application contained false information, and that material information had been withheld. This decision was challenged by judicial review. A key issue was how the 10-year time limit in the Town and Country Planning Act 1990 ought to be approached in the context of breaches of condition. Had immunity in this case potentially arisen from 2002 when the condition had ostensibly been breached for 10 years, or should the CLEUD only have been issued if the breach of condition had been continuous up to the date of the application in 2019?

“It may be sensible for LPAs to voluntarily undertake public consultation on certificate application”

The court clarified that once a breach of condition becomes lawful, that right will not normally be lost even if the breach ceases thereafter. It is lost if there is a relevant supervening event, such as abandonment, change of use or creation of a new planning unit. The court concluded that the false and withheld information in this case were nonetheless relevant and upheld the council’s decision to revoke the certificate. The court also held that the grounds for revoking a certificate in the 1990 act do not require information to be deliberately withheld by the applicant but rather that it is sufficient for material information to have been kept from the authority for any reason, whether by accident or otherwise. The power to revoke certificates may therefore be more far-reaching than previously understood and this judgment has important consequences.

The decision is a reminder that it may be sensible for LPAs to voluntarily undertake public consultation on certificate applications. Local people are often well placed to verify or contest submitted information. Mr Justice Holgate expressed concern that there is currently no statutory obligation for public consultation on certificate applications particularly, given that consultation is part of the appeal procedure.

The case also shows that anyone who thinks a lawful development certificate may have been granted incorrectly should contact their local planning authority. Richard Wald QC of 39 Essex Chambers and Alec Cropper of Walton & Co acted for the local resident group (NOcado) in its application for revocation of the CLEUD and subsequently in the judicial review claim. 

Richard Wald QC of 39 Essex Chambers and Alec Cropper of Walton & Co acted for the local resident group (NOcado) in its application for revocation of the CLEUD and subsequently in the judicial review claim.

Image Credit | iStock

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