A Planning Court judge recently rejected a challenge to a council’s decision to revoke a Certificate of Lawful Existing Use or Development (CLEUD). David Forsdick QC explains why.
In R (Ocado) v Islington LBC  EWHC 1509 (Admin), Holgate J considered “important issues of planning law” concerning: (1) the calculation of the 10 year time limit for enforcement and thus the circumstances in which CLEUDs based on the 10 years were justified; and (2) the circumstances in which councils could revoke CLEUDs under s.193(7) on the basis of false information being provided on the application or material information being withheld.
Islington had granted a certificate of lawful use for B8 purposes of former industrial premises in its area (prior to Ocado taking a lease of the premises) based on evidence presented by the freehold owner. In so doing it considered that the legal test was whether there had been 10 years continuous breach of a condition preventing B8 use by 2002 and, if so, had there been any abandonment, change of use or creation of a new planning unit since (“the Original Test”). Ocado took the lease with a view to using the premises for B8 purposes but local residents (alerted to Ocado’s plans) submitted detailed evidence which they contended showed that false information had been provided on the application for the CLEUD and material information withheld. Relying on Ellis v. Secretary of State for Communities and Local Government  EWHC 634 (Admin) they also contended 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.
After having followed the statutory procedures, Islington decided to revoke under s.193(7). In so doing it applied the Ellis test, but also considered the position if the Original Test applied.
Having considered the underlying principles, the statutory language and the wide-ranging case law, Holgate J concluded that the Original Test was the correct one and that Ellis was “clearly wrong”. The decision thus 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 be continuous after the original 10 years has passed.
However, the revocation was upheld. False information had been provided and material information had been withheld. The withholding did not have to be deliberate to trigger s.193(7). The false and withheld material was material to whether the B8 use (which had been carried out 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.