In R (on the application of Ocado Retail Ltd) v Islington LBC and others [2021] EWHC 1509 (Admin), the High Court reviewed two important questions in relation to planning law: 1) could a certificate of lawfulness of an existing use or development be revoked if the breach of condition is not continuous after the original 10 years has passed?; and 2) under which circumstances could the council revoke CLEUDs under section 193(7) of the Town and Country Planning Act 1990 on the basis of false information being provided on the application or material information being withheld?
The main facts of the case are as follows. In 1984, Islington granted a full planning permission to Telereal Trillium Ltd. In 2018, Ocado obtained the lease of Telereal’s units A-D on the basis of a B8 use and, in 2019, at the request of Telereal, Islington granted a CLEUD for B8 purposes of former industrial premises in its area. Telereal argued that those activities had been carried out since 1992. Therefore, the “original test” had been complied with, as there had been 10 years’ continuous breach of a condition preventing B8 use by 2002 and there had been no abandonment, change of use or creation of a new planning unit since.
Ocado submitted a planning application to vary the use and site, which led to the local residents scrutinising the planning history of the site and arguing that Islington should have applied the test set in Ellis v Secretary of State for Communities and Local Government [2009] EWHC 634 (Admin); [2009] PLSCS 114 in deciding the CLEUD in 2019.
In consequence, the CLEUD should have only been granted if the breach of condition had continued without interruption up to the date of the CLEUD application. Furthermore, they submitted evidence to prove that on the application for the CLEUD, false information had been provided and material information was withheld.
In 2020, Islington revoked the CLEUD under section 193(7). Ocado issued a claim for judicial review.
With regard to the 10-year enforcement limit, the High Court concluded that the original test was the correct one and that the Ellis test was not applicable. This decision shows that the breach of condition does not have to be continuous after the original 10 years has passed, as it becomes immune from enforcement and lawful under section 191(3). The accrued right can only be lost by abandonment, subsequent change of use or creation of a new planning unit.
Regarding the second question, the evidence was enough to prove that material information had been withheld and, thus, the court decided to uphold the revocation. Holgate J also added that the withholding of information did not have to be deliberate to trigger section 193(7) and that it was material to whether the B8 use had been abandoned.
This case is an important step forward in reviewing the periods of immunity following a breach of condition and provides clarity on the tests to be applied. Its conclusion is particularly significant and states that the breach of condition does not have to be continuous after the original 10 years has passed. The judgment is positive as it provides certainty on when a local planning authority can revoke CLEUDs.
One final point to note is that the case highlights the importance of providing information in statutory declarations – any false or misleading information contained therein can lead to a prosecution under the Perjury Act 1911.
Stéfano D’Ambrosio Nuñez is a solicitor at Irwin Mitchell
