Town and country planning – Certificate of lawfulness of existing use or development (CLEUD) – Land used for 10 years in breach of planning condition – Interested party applying for CLEUD based on immunity from enforcement of planning condition – Defendant local planning authority granting CLEUD – CLEUD subsequently revoked on basis application false in material particular and material information withheld – Claimant lessee applying for judicial review – Whether provision of false information or withholding of material information required to be deliberate or dishonest – Whether use required to continue up to date of application – Whether decision to revoke wrong in law or irrational – Application dismissed
In 2018, the first interested party entered into negotiations with the claimant for a lease of units A-D on the Bush Industrial Estate, Station Road, London N19. It was important to the claimant to find suitable premises for storage and distribution purposes (class B8 in the Town and Country Planning) (Use Classes) Order 1987), from which it could operate 24 hours a day. It was a condition of the negotiations that the premises would have a suitable planning consent allowing such use.
The first interested party said that it would obtain a certificate of lawfulness of existing use or development (CLEUD) for that purpose and applied to the defendant local authority. The defendant granted a certificate for B8 purposes based on the evidence presented by the first interested party as the freehold owner. It considered the legal test to be whether there had been 10 years continuous breach of a condition which prevented B8 use by 2002; and if so, whether there had been any abandonment, change of use or creation of a new planning unit since that time (the original test).
The second interested party, a group comprising local residents opposed to the claimant’s use of the units near a local primary school, asked the defendant to exercise its powers under section 193(7) of the Town and Country Planning Act 1990 to revoke the CLEUD on the grounds that the application contained statements which were false in a material particular or that material information had been withheld. Further, the defendant had applied the wrong legal test: following the decision in Ellis v Secretary of State for Communities and Local Government [2009] EWHC 634 (Admin); [2009] PLSCS 114; [2010] 1 P & CR 21, the certificate should have been issued only if the breach of condition had continued without interruption up to the date of the application for a CLEUD.
The defendant revoked the CLEUD but the claimant applied for judicial review.
Held: The application was dismissed.
(1) Section 193(7)(a) laid down a straightforward, objective test that the material in question was false, in the sense of incorrect. The width of the meaning to be given to “withheld” in section 193(7)(b) depended upon its context. The local planning authority was entitled to be satisfied with the adequacy of the information provided to justify the grant of a certificate. The power to revoke a certificate was an important safeguard for dealing with false information or non-disclosure. It made no sense for ground (a) in section 193(7) to be an objective test, but for ground (b) to be dependent upon the subjective intention of the applicant. They were both concerned to promote reliable decision-making under sections 191 and 192. The positive falsity of a statement might go hand in glove with the non-provision of information.
The objective approach to the meaning of “withheld” in section 193(7) aligned with the onus which the statutory scheme placed on the applicant to justify the grant of a certificate by providing adequate evidence to the decision-maker verifying the information included in the application. The withholding of information referred to in section 193(7)(b) need not be deliberate and the defendant made no error of law in that respect.
(2) The phrases “in a material particular” and “material” in section 193(7) meant that a local planning authority considering whether to exercise the power of revocation under section 193(7) did not have to be satisfied that if false statements had not been made or information withheld, it would have refused to grant the certificate applied for. When a local planning authority determined an application for a CLEUD, it had to act on a correct understanding of relevant legal principles. But beyond that, the application of the law to the circumstances of the case was a matter for the authority. It would involve assessing the evidence submitted in support of the application, weighing the material supplied along with any weaknesses or gaps in it, and making findings of fact and drawing inferences from that material. Those were matters of judgment for the decision-maker in an evaluative process which might only be challenged on Wednesbury principles. The same analysis applied to the evaluation by the authority under section 193(7) of false statements or withheld information and their materiality. The essential legal question was whether its reasoning was irrational.
The local planning authority might have regard to other relevant factors in so far as it considered it appropriate to do so. Where it was shown that an authority did not take a particular consideration into account, that would not give rise to an error of law, unless the consideration was “so obviously material” that it was irrational in the Wednesbury sense not to have taken it into account: R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52; [2021] EGLR 5 considered.
(3) The defendant revoked the CLEUD on the basis that, where a breach of planning condition became lawful after 10 years by virtue of section 191(3), the right which thereby accrued was lost if it did not continue to be exercised. The requirement that a breach should continue during the immunity period was based solely on the rationale for the time limits in section 171B, namely that throughout the relevant period the local planning authority had the opportunity to take enforcement action but failed to do so. Time only ran while a breach of planning control, whether a change of use or a breach of condition, was liable to enforcement action.
The correct legal position was that a lawful planning right which had accrued upon the expiry of a time limit in section 171B was not lost merely because subsequently that right was not exercised for a period of time. That conclusion applied just as much to a right legitimising a breach of condition which prohibited a use as to a use right derived from a material change of use. The law did not require that such a right be exercised on the date when an application for a CLEUD was made (or an enforcement notice was issued), or that it had been exercised throughout the intervening period from the time when it accrued; the right had to remain in existence at the date when the lawfulness of what it authorised was in issue. Once a breach of condition had continued for more than 10 years, the right to use the land in breach of that condition could only be lost by abandonment, subsequent change of use or creation of a new planning unit. The breach of condition did not have to be continuous after the original 10 years had passed: Thurrock Borough Council v Secretary of State for the Environment [2002] J.P.L 1278, Swale Borough Council v First Secretary of State [2005] EWCA Civ 1568 (Admin); [2005] JPL 1523 and R (North Devon District Council) v First Secretary of State [2004] JPL 1396 applied. Nicholson v Secretary of State for the Environment, Transport and the Regions (1997) 76 P & CR 191; [1998] 2 PLR 6 and Ellis not followed.
(4) The identification of the correct planning unit was a key factor in determining the existence of a lawful use right and the area to which it applied. A useful working rule was to assume that the unit of occupation was the appropriate planning unit, unless and until some smaller unit could be identified. Where the whole unit of occupation was used by the occupier for a single main purpose to which secondary activities were incidental or ancillary, that should be treated as the planning unit. When a single unit of occupation was used for a mixture of activities and it was not possible to say that one was incidental or ancillary to another (a mixed or composite use), that whole area was a single planning unit. Where within a single unit of occupation two or more physically separate and distinct areas were occupied for substantially different and unrelated purposes, each area used for a different main purpose (together with its incidental and ancillary activities) was a separate planning unit. The application of those criteria, like the question of material change of use, was a matter of fact and degree and only open to challenge on Wednesbury principles: Burdle v Secretary of State for the Environment [1972] 1 WLR 1207 applied.
Occupation was significant because it signified control of an area of land by the occupier. Where, as in the present case, a minimalist approach had been taken to the provision of verifying evidence in support of the application, and there was a lack of detail in the material supplied, the defendant was legally entitled to rely upon those considerations to support its decision to revoke the CLEUD unless that line of inquiry could not rationally have led to any different conclusion on the planning unit issue or was otherwise irrational. Once a lawful use right accrued, its continued existence did not depend upon that right continuing to be exercised. The true question was whether that use right was thereafter abandoned or whether it was lost because of some other supervening event.
Although the decision to revoke the certificate had partly been based on the defendant’s consideration that false statements and/or information withheld went to the issue of whether the B8 use had “continued” after 2002, based on an erroneous view of the law, the defendant had also considered that the false statements and withheld information went to the additional assertion that the B8 lawful use rights had not been abandoned. Its assessment of falsity, withholding and materiality was not irrational on the issue of abandonment. Furthermore, the defendant’s approach to the planning unit issue could not be impugned and that was a freestanding and sufficient basis on which to found the decision to revoke the CLEUD.
Paul Brown QC (instructed by Mishcon De Reya LLP) appeared for the claimant; David Forsdick QC (instructed by London Borough of Islington Legal Services) appeared for the defendant; Richard Wald QC (instructed by Walton & Co of Leeds) appeared for the second interested party; the first interested party did not appear and was not represented.
Eileen O’Grady, barrister
