• The High Court has recently rejected a judicial review challenge by Ocado in relation to Islington Borough Council’s decision to revoke a lawful development certificate. The case demonstrates the complexity and evolving nature of the law relating to planning enforcement and lawful development.

    In the case of R (Ocado Retail Ltd) v London Borough of Islington [2021], Holgate LJ ruled on a number of contentious issues regarding lawful development certificates (LDCs).

    The importance of accurate information in lawful development certificate applications

    Section 193(7) of the Town and Country Planning Act 1990 states that a local planning authority may revoke a lawful development certificate if on the application for the certificate either:

    • a statement was made or document used which was false in a material particular; or
    • any material information was withheld.

    The court held that the withholding of information need not be deliberate to engage s.193(7)(b). Instead it decided that an innocent withholding of information may be sufficient to lead to revocation. The ruling emphasises the need for an applicant for a LDC to carefully investigate the facts and background circumstances being relied upon to justify the grant of a certificate. Failure to do so could leave it vulnerable to being subsequently revoked.

    This is in addition to section 194 of the Act which makes it a criminal offence to either:

    • knowingly or recklessly make a statement which is false or misleading in a material particular
    • with intent to deceive, use any document which is false or misleading in a material particular; or
    • with intent to deceive, withhold any material information

    in order to procure a decision on an LDC application.

    The requirement for reason when revoking a certificate

    The court held that whilst there was no statutory requirement for the local planning authority to give reasons for a decision to revoke an LDC it is under a common law obligation to give reasons.

    Time limits when revoking a certificate

    Perhaps most significantly, the High Court decided that a lawful planning right which had accrued immunity from enforcement on the expiry of the time limit set out in section 171B of the 1990 Act was not lost merely because it had not subsequently been exercised for a period of time after the expiry of the time limit. Instead, the correct question was whether, once the time limit had expired, that use had thereafter been abandoned or lost because of some other supervening event.

    In previous judgements the courts had held that a breach of condition which had become lawful after continuing for ten years did not remain lawful unless that breach continued. However, in the Ocado case the judge moved away from this earlier case law.

    This case demonstrates that even where laws have been in place for 30 years, there is scope for judicial interpretation. Lawyers and others advising developers and land owners will need to keep a close eye on the evolution of planning law.

    For further support on the issues covered in this article, please contact our Planning team today.

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