In R (Ocado) v Islington LBC  EWHC 1509 (Admin), Holgate J considered what he described as “important issues of planning law” relating firstly to the calculation of the 10 year time limit for enforcement and the circumstances in which Certificates of Lawfulness based on 10 years continuous use could be justified and secondly to the circumstances in which local planning authorities may revoke certificates of lawfulness under s.193(7) of the Town and Country Planning Act 1990 (“s193(7)”) where an application was made which involved either information which was false or material information which was withheld.
Islington LBC had granted a certificate of lawful use for B8 purposes of former industrial premises in its area, following which Ocado entered into a lease of the premises. That certificate was based on evidence presented by the freehold owner, Telereal Trillium, and on Islington LBC’s conclusion that there had been 10 years continuous breach of a condition preventing B8 use by 2002 without abandonment, change of use or creation of a new planning unit. Ocado planned to use the premises as its north London storage and distribution hub but local residents, having been alerted to Ocado’s plans, applied to Islington LBC for a revocation of the certification based on detailed evidence which sought to demonstrate that the certificate had been based on false information provided by Telereal Trillium and/or material information which it had withheld. Relying on Ellis v. Secretary of State for Communities and Local Government  EWHC 634 (Admin) they also contended that the wrong legal test had been applied, and that the certificate should only have been issued if the breach of condition had continued without interruption up to the date of the CLEUD application.
Having followed the statutory procedures, Islington LBC decided to revoke the certificate under s.193(7). In so doing it applied the Ellis test, but for completeness also considered the position if Ellis did not apply.
Holgate J concluded that that Ellis was “clearly wrong” and his judgment establishes that once a breach of condition has continued for more than 10 years, the right to use the land in breach of that condition can only be lost by abandonment, subsequent change of use or creation of a new planning unit. The breach of condition does not have to continue after the original 10 years has passed.
Nonetheless, Holgate J upheld Islington LBC’s decision to revoke the certificate because he concluded that false information had been provided and material information had been withheld. The withholding did not have to be deliberate in order for s.193(7) to be triggered. Both the false and withheld material was relevant to whether the B8 use (which had been carried on for 10 years to 2002) had subsequently been abandoned or superseded by another change of use or whether different planning units had been created during the latter period.
The case provides the latest word on the approach to the 10 year rule and is the first detailed consideration of the circumstances in which Councils can revoke certificates and the approach of the Courts on challenges to such revocations.
The judgment can be found here
Richard Wald QC acted for the local residents, first in relation to their application for revocation of the certificate of lawful use and then in the judicial review proceedings which followed.
Richard was instructed by Alec Cropper of Walton & Co. Solicitors