Ocado Retail Ltd, R (On the Application Of) v London Borough Of Islington (Rev1)

Once a breach of planning control has continued throughout the applicable immunity period, the resulting lawful planning right is not lost merely because it later ceases to be exercised. The right must still exist when lawfulness is determined, but its loss requires a supervening event such as abandonment.

Under section 193(7) of the Town and Country Planning Act 1990, withheld information need not have been withheld deliberately. Information is material if its disclosure could have produced a different decision, including by prompting a potentially significant line of inquiry. A revocation decision remains evaluative and is reviewable on conventional rationality principles.

A local planning authority granted a certificate of lawfulness of existing use or development for the use of four industrial units for storage and distribution. The applicant had asserted that the use had continued in breach of a restrictive planning condition for more than ten years. The certificate was relied upon during negotiations for the claimant's occupation of the premises.

After local residents supplied further evidence, the authority revoked the certificate under section 193(7) of the Town and Country Planning Act 1990. It relied on materially false statements and withheld information concerning the units' physical relationship, periods of vacancy, separate marketing and the declarant's lack of first-hand knowledge.

The claimant sought judicial review. The principal questions concerned the nature and persistence of a lawful planning right acquired through breach of condition, the meaning and materiality of withheld information, the correct planning unit, abandonment, and the authority's revocation discretion.

1. The claim for judicial review was dismissed. The authority had made an error of law by treating a lawful right acquired through breach of condition as dependent upon continued exercise. That error did not vitiate the revocation because the planning-unit ground was lawful, freestanding and sufficient. The authority would inevitably have reached the same decision.

2. The continuity requirement associated with section 171B of the Town and Country Planning Act 1990 governs the acquisition of immunity. Time runs while the authority can take enforcement action. Once the immunity period expires, enforcement is prohibited and the former breach becomes lawful. The rationale for continuity then ceases to operate.

3. A lawful right arising under section 191(2) or (3) is therefore not lost by mere non-use. It must remain in existence when lawfulness is determined, but need not be actively exercised then or throughout the intervening period. It may be lost by a supervening event such as abandonment or the formation of a new planning unit. Nicholson and Ellis were not followed so far as they required a lawful breach of condition to continue until the certificate application.

4. Section 193(7)(b) imposes an objective test. Information can be withheld inadvertently, mistakenly, carelessly or recklessly; deliberate concealment is unnecessary. This construction reflects the applicant's burden to provide adequate verifying evidence and the safeguard which revocation supplies against unreliable certification.

5. False or withheld information is material where it could, rather than necessarily would, have caused refusal, different certificate terms, a different factual finding, or a relevant line of inquiry capable of affecting the outcome. Materiality may be assessed cumulatively. The authority's factual evaluation and assessment of materiality were reviewable only for irrationality.

6. The evidence about physical interconnection, prolonged vacancy, separate marketing and the declarant's limited knowledge could rationally have prompted further inquiry into whether the four units remained one planning unit and whether an accrued use right had been abandoned. The authority was not required to resolve those factual questions before revoking the certificate.

7. Once section 193(7)(a) or (b) is engaged, revocation remains discretionary. The statute does not prescribe mandatory considerations. The claimant did not show that the authority irrationally omitted reliance, prejudice, public confidence or the planning merits from its assessment.

This was a first-instance claim for judicial review of the local planning authority's decision to revoke the certificate of lawfulness. Lane J had granted permission to apply. No prior merits judgment is stated.