R Ocado Retail Ltd v London Borough of Islington
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 07 June 2021 |
| Neutral Citation | [2021] EWHC 1509 (Admin) |
| Date | 07 June 2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4316/2020 |
and
[2021] EWHC 1509 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/4316/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Brown QC (instructed by Mishcon De Reya LLP) for the Claimant
David Forsdick QC (instructed by London Borough of Islington Legal Services) for the Defendant
Richard Wald QC (instructed by Walton & Co) for the 2 nd Interested Party
The 1 st Interested Party was not represented and did not appear
Hearing dates: 05/05/2021 and 06/05/2021
Approved Judgment
Introduction
This claim for judicial review raises some important issues of planning law. How does the 10-year time limit in s.171B(3) of the Town and Country Planning Act 1990 (“TCPA 1990”) for the taking of enforcement action apply to a breach of condition in a planning permission? What is the legal nature of the right which accrues when a breach of condition becomes immune from enforcement and lawful under s.191(3)? Does the subsistence of such a right depend upon it continuing to be exercised? What is the scope of the power in s.193(7) of TCPA 1990 to revoke a certificate of lawfulness of an existing use or development (a “CLEUD”) granted under s.191?
This case has raised some difficult points and at the outset I would like to express my gratitude for the considerable assistance I have received from Mr. Paul Brown QC for the claimant, Ocado Retail Limited (“Ocado”), Mr. David Forsdick QC for the defendant, the London Borough of Islington (“Islington”) and Mr. Richard Wald QC for the second interested party, Concerned Residents of Tufnell Park, (“CRTP”), along with their respective teams.
The claim relates to 4 units A-D on the Bush Industrial Estate, Station Road, London, N.19. This terrace was built pursuant to a full planning permission dated 17 May 1984, which granted consent for an “industrial building to house British Telecom Power Workshops and ancillary buildings for storage, diesel repair and engine-testing, with associated vehicle parking.” Condition 3 stated:-
“The Industrial accommodation shall be used as light or general industrial buildings only, as defined in Classes (3) and (4) of the Schedule to the Town and Country Planning (Use Classes) Order 1972 and General Development Order 1977, and shall not be used without planning permission for any other purpose, including warehousing (Class 10).” 1
The planning application indicated that the premises would provide 5000 sqm of accommodation, including some ancillary office and storage areas. It is unclear whether the permission also authorised the construction of Unit E, lying immediately to the south of Units A to D. This appears to have been used for vehicle maintenance. It was demolished by 5 January 2019 and it is not suggested that it has any significance for the issues now to be determined.
Units A-D lie at the north-eastern end of the Bush Industrial Estate. To the south west lies another range of units 1–10, several of which were occupied by BT for a number of years, and units 11–13 in a separate range, occupied for several years by Royal Mail for storage and distribution purposes (class B8 in the Town and Country Planning) (Use Classes) Order 1987 – SI 1987 No. 764) (“UCO 1987”).
The Industrial Estate occupies a long site oriented from south west to north east. A railway line runs along its long north-western boundary. Employment development and residential properties lie on the other side of that line. To the north east of units A to D
there are some three-storey block of flats. To the south east is the Yerbury Primary School, which is attended by about 450 childrenIt is said that BT was in occupation of Units A-D from the time they were constructed until late 2013. In 2002 the first interested party, Telereal Trillium Limited (“Telereal”) acquired much of BT's property estate, including units A to D, which were then leased back to BT.
On 27 January 2014 Telereal arranged for the grant of a 10-year lease of units A-D to Royal Mail for use, it is said, as a Parcel Force distribution warehouse. The small extract provided from the lease suggests that there were rights to break the term on inter alia 27 January 2017. At all events, Royal Mail did terminate the lease in the early part of 2017. Telereal then marketed the premises for B8 purposes and carried out refurbishment work.
In 2018 Telereal entered into negotiations with Ocado for a lease of units A-D. Paragraphs 3 to 5 of the claimant's Statement of Facts and Grounds explain that Ocado was seeking a distribution centre in the Islington area where it could store food at chilled temperatures, process customer orders and organise scheduled deliveries. It was important to the company to be able to find suitable B8 premises from which it could operate 24 hours a day. It was a condition of the negotiations that the premises would have a suitable planning consent allowing for a use, which included B8, a “click and collect” facility and 24 hour use. Telereal said that it would obtain a CLEUD for that purpose.
On 15 January 2019 Telereal applied to Islington for a CLEUD certifying that the lawful use of units A to D was for B8, storage and distribution purposes. The application form stated that the use had begun more than 10 years before the date of the application in breach of condition 3 of the 1984 planning permission and said that the use had started in 1992. The application relied upon a statutory declaration dated 12 February 2019 by Mr. Damian Molony, a chartered surveyor, who had some responsibility for the site, first as an employee of BT and then from 2002 as an employee of Telereal. The application also relied upon a covering letter from Telereal's planning consultants, Union 4 Planning, which enclosed some supporting documents. They included a site boundary plan showing the application area edged in red. The area was said to be 1.9ha. 2
The legislation does not require any public consultation on an application for a CLEUD and none was carried out on this particular application.
In summary, the case put on behalf of Telereal to Islington was that BT had used units A-D for B8 purposes from 1992 to 2013, although not to full capacity in the latter part of that period. Between early 2014 and early 2017 Royal Mail leased the premises for warehousing and since then they had been marketed for that same purpose. The application was presented on the basis that units A-D had constituted a single planning unit throughout that entire period and that once the premises had been used for B8 purposes for a 10-year period in breach of condition, the use right thereby obtained had not subsequently been abandoned. On that basis it was contended that it did not matter
whether B8 activities had continued to take place physically up until the date on which the application for the CLEUD was madeThe application was determined by an officer acting under delegated powers. On 26 April 2019 Islington granted a CLEUD in respect of Units A-D for a B8 use. The accompanying Delegated Report essentially accepted the information and approach presented in Telereal's application.
On 4 November 2019 Ocado entered into an agreement for the lease of units A-D relying upon the CLEUD which had been obtained (paragraph 6 of the Statement of Facts and Grounds).
On 11 November 2019 Ocado submitted a planning application to Islington for the carrying out of various improvements to the premises. Unlike the application for the CLEUD, this was the subject of consultation with landowners and occupiers in the vicinity. It attracted objections from CRTP. The group comprises a number of members of the public living in the vicinity of the Industrial Estate who are opposed to Ocado's use of units A-D. They became aware of the grant of the CLEUD and took advice on whether it could be challenged.
On 23 April 2020 CRTP sent a letter to Islington enclosing a bundle of documents mainly relating to the planning history of the Estate. They asked the local authority to exercise its powers under s.193(7) of the TCPA to revoke the CLEUD on the grounds that Telereal's application had contained statements which had been “false in a material particular” or that “material information” had been “withheld.” The letter carefully explained the particular respects in which the group maintained that those conditions were satisfied.
On 1 June 2020 Islington wrote to Ocado and Telereal enclosing the material received from CRTP, stating that there appeared to be grounds for revocation of the CLEUD and giving the recipients an opportunity to make representations on the matter pursuant to article 39(15) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No. 595) (“DMPO 2015”).
Telereal responded on 25 June 2020 by a letter from its planning consultants enclosing a second statutory declaration by Mr Molony (dated 25 June 2020). That declaration revealed that he had not visited the premises during Royal Mail's lease. Ocado's solicitors also sent a response on the same day, enclosing a Note from the claimant's planning consultants, Gerald Eve. Telereal and Ocado contended that there were no grounds for revocation. Paragraph 1.8 of a Note by Telereal's consultants stated that, in reliance upon the CLEUD, refurbishment and fit out works costing over £2.3m had been carried out, but without any more detail or clarifying who had borne those costs.
On 7 August 2020 Islington wrote to Telereal and Gerald Eve responding to points which had been made, stating that the conditions for exercising the...
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