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LDC Revocation
Roderick Morton • 1 July 2021
R (oao Ocado Retail Limited) vs LB Islington and others [2021] EWHC 1509
An industrial unit in Tuffnell Park was given permission with (what is now) B2 use conditioned. Units were constructed. The freeholder said that, for more than 17 years, the units were used together as B8 storage, and that the fact that they were currently unoccupied didn’t change the breach as use had not been abandoned. The freeholder obtained an LDC from Islington Council confirming that the breach of condition had become immune and that B8 use was lawful. Ocado leased the property and started operating a 24hr distribution centre. At the prompting of local residents, Islington revoked the LDC. Ocado and the freeholder sought judicial review of this decision.
The “headline” legal point relates to the extent to which the breach of condition must be continuing at the date of the LDC application. But there are a number of other points which are, if anything, more interesting than the headline point in terms of the way that LDC applications and revocations should be assessed by enforcement teams and planners.
Under s193(7) TCPA 1990, an LDC certificate can be revoked if, in the application, a statement was made or document used which was false in a material particular or if any material information was withheld. Under s194, it is a crime to knowingly make a statement which is false or misleading in a material particular or to withhold information with intent to deceive.
Islington’s three main reasons for revocation were (a) that there had in fact been large gaps in the use of one or more units (a 5 year gap in the middle of the period and 4 or more years at the end) making the freeholder’s evidence of 17 years’ use false; (b) that the breach of condition needed to be continuing at the date of the application and it wasn’t; and (c) that the planning units had changed through the breach period as the units were not linked and had been marketed separately (again making the evidence of a single unchanged planning unit false). There were other reasons.
The headline point in this case related to whether the breach must be continuing at the date of the LDC application. Islington said yes. Based on Thurrock and Swale, they could only enforce against a continuing breach of condition so, if the breach of condition had ceased, any future operation in breach of the condition would be a new breach allowing further enforcement; hence the LDC could not have been properly granted. Ocado said no. Once breached for 10 years, the land use in breach of the condition became lawful and their right to use it could only be lost by abandonment etc. It had not been abandoned and B8 use remained lawful.
On this point, the judge sided with Ocado and held that the question was whether the use in breach was lawful at the date of the application. The use in breach of condition became lawful after 10 years continued breach (s171B(3) and s191(3)). Once lawful, it could only cease to be lawful if extinguished, for example by abandonment or change of use. Islington’s focus on enforceability was misguided; it was not the lack of a current breach preventing Islington from enforcing, it was the acquired lawfulness of the use.
As an aside, it is worth noting that this is the same as the position which applies to enforcement notices against development breaches, last considered in, ironically enough, Islington vs Maxwell Estates. The confirmation that the same analysis applies to breaches of conditions as applies to operational development breaches and material changes of use breaches is welcome if, perhaps, not particularly surprising.
The judge also considered a number of other points in relation to the power to revoke.
First, it was held that there was no requirement for the false or misleading facts or documents to have been deliberately or dishonestly false in order to require revocation. It was enough that the information was simply wrong. In this case, the freeholder’s evidence for the LDC application was “minimalist”, skated over some gaps and made assertions about use which were not backed by knowledge. But there was no evidence that the planning consultant who prepared the application did so with any intention to deceive the LPA.
The judge also held that there was a requirement for candour in presenting a certificate case; if the applicant only presents one side of their case and doesn’t present information which goes against their case, that could constitute withholding information for the purpose of the revocation power.
The judge offered the observation that the less information an applicant puts forward in support of the application, the more a certificate is open to revocation. A “minimalist” application is therefore risky for the applicant (and those who own the land thereafter).
The materiality test (false or misleading in a material particular) is based on whether the correct information could have affected the decision, not whether it would have. It is enough for revocation that, as here, the LPA would have wanted to make further investigations into the correct facts before issuing a certificate had it known the true position.
There is no power to revoke simply due to error of law. Islington got the law wrong on the headline legal point. Had that been the only reason for their decision to revoke, the judicial review claim would have succeeded.
Sadly for Ocado, that wasn’t the only reason. In particular, the evidence was that the units had been occupied and marketed separately meaning that the planning unit had changed materially over the years. Each time the planning unit changed, the “established by immunity” right to use in breach of the condition was extinguished. Had there been any abandonment (the evidence was not clear), that was also capable of extinguishing the immune use right.
The judge accepted that local residents could judicially review a decision to grant an LDC should it be felt that the information presented in support was simply inadequate to reach a conclusion.
That said, the judge accepted that revocation is a discretion. Despite false or misleading information, the LPA could decide not to revoke for all sorts of reasons. These could, he held, include the effect on subsequent landowners, a lack of planning harm, and even the extent of duplicity.
The judge also pointed out that an LDC based on immunity by continued use in breach of one condition does not mean that other conditions fall away. If an applicant wants to demonstrate continued breach of other conditions, then it is incumbent on them to present evidence of those breaches. It followed that the lawfulness of the B8 in this case remained subject to those conditions.
Ultimately, the judge decided that Islington had got the law wrong but that the decision to revoke remained justifiable and the judicial review was dismissed. It is also worth remembering that there is no limit to the number of LDC applications or planning applications Ocado and its freeholder could make, nor to their ability to dig out further evidence to support these applications.
Certificate revocations are comparatively rare as the distinction between the s193 requirements for revocation (simple false statement/withheld information) and s194 prosecution (knowledge of the falsehood and/or intent to deceive in witholding the information) is often forgotten. It tends to be assumed that it takes a fair amount of bad faith by the applicant to make revocation justified; perhaps this judgment will encourage more.
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LB Richmond upon Thames v the King oao Owolabi Ariyo [2024] EXCA Civ 960
LB Lambeth v SSLUHC [2024] EWHC 1391
LB Barking and Dagenham v Zannat Ara Aziz [2024] EWHC 1212 (Admin)
Caldwell and Timberstore v SSLUHC [2024] EWCA Civ 467
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Pathfield Estates Ltd v LB Haringey [2023] EWHC 1790 (Admin)
Given its portrayal of the planning system so far, it is almost a given that season 3 of Clarkson’s Farm will not accurately present the detail of the Diddly Squat appeal decision. Here is our take. The decision is here. In summary, the LPA won almost all of the enforcement points. But simply being Jeremy Clarkson is apparently a material consideration which alters the planning balance! While he is popular, his celebrity is such that his farm shop will create significant problems beyond those of an ordinary farm shop and the inspector decided that these are problems which have already been accepted in granting his existing permission. Fewer of the harms to the AONB can therefore be attributed to the additional elements of the use. And these harms are outweighed by the economic benefits, benefits which are a result of his celebrity. So permission was granted for his farm shop and café and the associated parking and toilets. Clarkson’s popularity will be re-assessed in 3 years as the permission is time limited. Perhaps the inspector knows something we don’t. As viewers will know, Clarkson’s Farm operates in open countryside in an AONB. As well as agriculture, it has diversified to include a farm shop and a café in a lambing barn. The business tried to open a restaurant in a converted barn located some distance from the shop. The site is obviously used as a filming location. The business has proved popular and it now has significant parking and highway problems. The farm shop (with limited parking) has permission, the construction of the lambing barn (but not its use) has permission and there is permission for limited filming. The council enforced against the material change of use of the land to a mixed agricultural and leisure attraction use, comprising café, restaurant, gift/farm shop, parking and lavatory facilities. The notice was appealed. The appellant also sought (and was refused) permission for additional parking, access, storage and landscaping. This appeal was heard alongside the enforcement appeal. The inspector dealt first with the planning unit. The appellant alleged that there were three separate planning units (shop, café, restaurant), with each having a separate primary use. The council had enforced against a single unit in a mixed use. The inspector took into account that the shop/café was in a different ownership to the farm and that it had its own permission. But its activities clearly spilled out of the permitted area, extending to the proposed restaurant and the wider parking areas. The restaurant used the same parking as the shop. These were fenced/walled off from the remainder of the farm. He concluded that there was a single planning unit. As for the use of that planning unit, the inspector took issue with several items listed by the council. “Gift shop” was too ambiguous; a shop is a shop. Similarly, while visitors no doubt came for the experience, the business was not a “leisure attraction”. A leisure attraction required, said the inspector, something which the customer might be expected to pay for. There was no entrance fee here, just a shop and café. (It appears that the inspector was also concerned that any permission for a “leisure attraction” would create a very wide lawful use.) Nevertheless, there were several primary uses in a single unit so the development was a mixed use, in this case a “mixed use comprising agriculture, café, restaurant, farm shop, parking, lavatory facilities.” This put paid to the ground (b) and (c) challenges. The challenge was that the restaurant was a separate planning unit. As it was in the curtilage of the lawful farm shop, the appellant said that Class R permitted a change of use to a flexible use including a restaurant. In the light of his conclusion on the planning unit, the inspector rejected this. He said he would have rejected the Class R argument anyway as the restaurant was not clearly within the curtilage of the farm shop. The remainder of the uses cited in the notice were also challenged on the grounds that they were ancillary to the lawful farm shop use and not primary uses. The inspector concluded that, as the restaurant resulted in a mixed use, there had been a material change of use so it was irrelevant whether the other items were ancillary. As an aside, viewers of the series will recall the scripted glee with which the appellant came up with the “PD loophole” for his restaurant. It is fitting, therefore, that it was the restaurant which was the primary reason the breach was upheld. The inspector nevertheless looked at the extent to which the various alleged ancillary elements (other than the restaurant) were part of the lawful use prior to the breach. This was relevant to the fallback but also to what the extent of the material change of use truly was. He identified that the question was whether any of the elements represented a change in the character of the use. The inspector found that the level or vehicle traffic and parking went far beyond that for which permission had been given. And that the lambing shed was clearly not “by any stretch of reasonableness” being used for the purpose for which it was given permission. Even the toilet facilities went beyond what would be expected for the permitted farm shop. This was not intensification, it was a material change in the character of the use. The LPA even won the merits arguments on ground (a). The number of visitors, the traffic and parking problems, the outdoor seating, catering van and toilets clearly had an adverse effect on the AONB. The parking and landscaping proposed under the s78 application would have a similar effect. This had great weight. In the end though, permission was granted for the mixed use, including the use of the lambing shed as a café and the enforced against parking and toilets. Permission was granted under the s78 appeal for altered parking, storage and landscaping. Only the restaurant was refused. The inspector found that the parking would alleviate the current parking situation and highway safety even though it would not provide a complete solution. He accepted that a number of local suppliers benefited from trading arrangements with the shop and that the shop contributed to the local economy. He accepted that diversification was to be supported. These considerations also had great weight. Key to the decision, though, was the fact that permission had been granted, not just for a farm shop, but for a celebrity’s farm shop. Even if there was no café or restaurant, the popularity of the appellant was such that people would continue to visit the shop in numbers. This reduced to moderate the harm to the AONB caused by the new elements of the use because the permitted use already resulted in significant harm. The appellant’s celebrity might wane. In which case, the weight of the considerations in favour of the development would wane. The permission granted was therefore time limited to 36 months. The decision is well reasoned and fairly logical. The inspector did not say that the character of the use already permitted varied with the identity of the user. But the result seems to imply that the harms associated with the use could vary and that the LPA had accepted them all in granting permission. Yet it is difficult to think that the LPA could successfully have imposed conditions on the farm shop based on the identity of the applicant. The result is therefore troubling.
R oao Devonhurst Investments Ltd v Luton Borough Council [2023] EWHC 978 (Admin)
Muorah v SSHCLG and Brent [2023] EWHC 285 (Admin)
Atwill v New Forest NPA [2023] EWHC 625 (Admin)
McCaffrey v Dartmoor NPA [2023] 2 WLUK 341
Welwyn Hatfield BC v SSLUHC and Kabala [2022] EWHC 3175 (Admin)
Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30
LB Hackney vs JC Decaux (UK) Ltd [2022] EWHC 2621 (Admin)
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