This week I wasn’t sure whether to write about the Government’s 21 February 2023 response to its consultation on the proposed biodiversity gain regulations or about the Government’s 23 February 2023 action plan for reforms to the nationally significant infrastructure projects process.
But both of these documents, important as they are, are largely self-explanatory – and have been covered in various summaries which are out there. So I ditched those ideas.
Instead I will focus on another interesting recent case, involving one of my favourite buildings (a “megastructure” according to the judge): the Brunswick Centre, Camden.
Lazari Properties 2 Limited v Secretary of State (Lane J, 21 February 2023) is nothing to do with the architecture of the building, but rather the architecture of the planning system itself. Whilst only a preliminary ruling by Lane J as to whether there were arguable grounds of challenge, some interesting practical issues arise as to:
⁃ the need for precision in framing lawful development certificate applications
⁃ the proper interpretation of conditions restricting uses by reference to superseded Use Classes Order descriptions.
The centre “contains 2 linked blocks of 560 flats above a shopping centre with rows of shops at raised ground level. The shops (which include a supermarket) are situated over a basement, which contains car parking, a service area and a cinema. Ramps and steps provide access to the central boulevard from several surrounding streets.”
Uses in the building are controlled in part by condition 3 of a planning permission in 2003 for the centre’s refurbishment:
“”Up to a maximum of 40 percent of the retail floorspace, equating to 3386m2 (excluding the supermarket and eye-catcher), is permitted to be used within Use Classes A2 and A3 of the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.”
Old use classes A2 and A3 are now of course subsumed within the new use class E. So, given that retail uses also fall within class E, does that mean that this condition no longer has any effect such that the whole of the retail floorspace can now be used for any purposes falling within class E?
The owner submitted an application to the local planning application for a certificate of lawfulness of existing use or development (“CLEUD”), with a red line around the whole of the centre and with the proposal described as follows:
“Application to certify that the existing use of the Brunswick Shopping Centre within Class E and without compliance with Condition 3 of Planning Permission: PSX0104561 is lawful”.
Uh oh. I wrote about the perils and constraints of CLEUDs and CLOPUDs (certificates of lawfulness of proposed use or development) in my 12 June 2021 blog post I’m Sorry I Haven’t A CLEUD.
Quite aside from the legal question arising as to whether the references to classes A2 and A3 in the condition should now be read as references to class E, was the description of the existing use sufficiently precise?
The London Borough of Camden didn’t determine the application within the statutory period and the owner appealed. The inspector dismissed the appeal in a decision letter dated 27 July 2022:
⁃ the reference to use class E was not a sufficiently precise description of the existing uses of the units within the centre. Whilst the owner’s objective was clearly to establish that class E use of any of the units would not be in breach of the condition, that was not the role of lawful development certificates: “It is a long established principle that LDCs enable owners and others to ascertain whether specific uses, operations or other activities are or would be lawful. They do not enable anyone to ask the general question, “what is or would be lawful?“
⁃ the reference simply to the whole of the centre, which encompassed various uses plainly not falling within class E, was not sufficiently precise, and was not remedied by a plan excluding defined areas.
⁃ In accordance with case law, condition 3 was to be interpreted having regard to the natural and ordinary meaning of the words used, viewed in their particular context (statutory or otherwise) and in the light of common sense. The inspector considered that the purpose of Condition 3 is “clear from its stated reason. It is to safeguard the retail function and character of the Brunswick Centre. It does this by stating a maximum amount of floorspace that is permitted to be used for A2 and A3 purposes.
“Condition 3 only makes sense if there is an implied exclusion of the Use Classes Order or else it has no purpose. The purpose of Condition 3 is clear and it remains enforceable since the uses that are restricted are known, those being the uses set out as falling within Class A2 and A3 when planning permission was granted.”
Both parties made costs applications against the other. The inspector rejected the owner’s costs application and made a partial award of costs in favour of the council.
So what did Lane J make of all this? Without giving any reasoning, he considered that it was arguable that condition 3 was not to be interpreted in the way arrived at by the inspector. However, he found that the inspector’s conclusions as to the inadequacy of simply describing the existing use by reference to class E, as to the inadequacy of the submitted plans and as to costs were all unarguably correct.
An interesting procedural question as to why it was still appropriate for the interpretation question (referred to as grounds 1 and 2) to go to a full hearing, given the fundamental flaws in the formulation of the CLEUD application and appeal:
“I must accordingly explain why I have concluded that, on the facts of the present case, permission should be granted for grounds 1 and 2 to be determined at a substantive hearing. I accept Mr Taylor’s submission that grounds 1 and 2 are, in effect, severable and that there is a real purpose in permitting the claimant to argue them substantively, so that the High Court can reach a decision on the correct interpretation of condition 3. Given that a fresh application by the claimant under section 191 is highly likely, if not inevitable, and that condition 3 is likely to be relevant to the determination of any such application, it plainly makes sense that the issue of interpretation is settled before such a fresh application is made.
I accept that, as matters stand, the claimant has not sought a declaration, which will be needed on the above basis, given that the inspector’s decision should not be quashed. The claimant will need to do so. I do not, however, consider that the claimant’s failure, so far, to seek a declaration should be destructive of its case in respect of grounds 1 and 2.”
Like the judge, I’m not sure that the inspector’s conclusions in respect of condition 3 were necessarily correct and it will be useful to have a final ruling in due course on the issue, which may potentially assist with other interpretation questions arising from the introduction of class E in situations where conditions contain restrictions based on previous use classes. But I’m surprised that the case has gone so far on the basis of such a loose approach to the CLEUD process. Might a simpler approach have been to show all the retail units on a plan and to make a CLOPUD application proposing retail use in respect of each of them? That would have indirectly led to a ruling as to whether condition 3 was legally effective. But as it turns out, maybe the eventual outcome of these proceedings will end up getting to the same position for the owner, albeit at additional expense for all concerned.
Incidentally, if you would like much better summaries than this of planning law cases on a weekly basis, do subscribe to our free Town Library service if you haven’t done so already. Each week my Town Legal colleagues prepare summarise of any rulings handed down the previous week by the Planning Court, together with subsequent appeal rulings. Subscribe here.
Certificates of lawfulness are very useful, but care is still needed, as two recent cases illustrate.
But first, to explain about the two types of certificate provided for under the Town and Country Planning Act 1990 and the consequent jargon about CLEUDs and CLOPUDs.
The “certificate of lawfulness of existing use or development” (“CLEUD”) procedure, under section 191 of the 1990 Act:
“(1) If any person wishes to ascertain whether—
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.”
“(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
“(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”
The “certificate of lawfulness of proposed use or development” (“CLOPUD”) procedure, under section 192 of the 1990 Act:
“(1) If any person wishes to ascertain whether—
(a) any proposed use of buildings or other land; or
(b) any operations proposed to be carried out in, on, over or under land,
would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.”
“(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
“(4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.”
Section 193 (7) “A local planning authority may revoke a certificate under either of those sections if, on the application for the certificate—
(a) a statement was made or document used which was false in a material particular; or
(b) any material information was withheld.”
There is discussion about the distinctions between the two procedures, CLEUD and CLOPUD, in the Government of the Republic of France v Royal Borough of Kensington & Chelsea (Court of Appeal, 12 June 2017) but basically a CLEUD certifies that the development that has already taken place was lawful (i.e. had the benefit of any necessary planning permission) and a CLOPUD certifies that proposed development would be lawful (i.e. would not require any further planning permission).
Either certificate may be revoked by a local planning authority if it was granted on the basis of false information or if material information was withheld. CLOPUDs carry the additional risk that they may no longer be able to be relied upon as determinative of lawfulness if “there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness”.
R (Ocado Retail Limited) v London Borough of Islington (Holgate J, 7 June 2021) concerned the revocation by Islington Council of a CLEUD granted on 26 April 2019 to Telereal Trillium. The effect of the CLEUD was to certify that four of Telereal’s units on an industrial date were in lawful use for storage or distribution purposes, given that they been used for those purposes for at least the last ten years in breach of a condition on a previous planning permission. As is usually the case, the certificate application had been determined without public consultation and by delegated powers. Only when Ocado then made a planning application for works to the property so as to be able to use it as one of their distribution facilities did local residents find out that the certificate had been issued. They provided information to the council which caused it to make the revocation order, relying on the following reasons set out in an officer’s report:
“(i) Telereal’s application had relied on units A-D as “four interlinked units” forming a single planning unit, without mentioning a lack of interconnection between units B and C (paras. 11, 13 and 19); (ii) Telereal had not referred to a statement in the 2011 planning application that units C-D were unused at that time and, being surplus to requirements, had been marketed since 2006 as a separate unit. Telereal had not produced photographs taken in 2011 showing the empty units. This information contrasted with the false statement in the application that between 1992 and 2013 units A-D had been fully operational as a warehouse and also with the reliance placed upon photographs taken in 2006 produced by Mr. Molony. This was not a case where units had simply not been used to capacity (paras. 11, 17 and 18); (iii) The statutory declaration had been false in stating that since 1992 the whole site had been in use as a warehousing/storage depot, that the use had been continuous throughout, and that the photographs submitted were “typical of the uses” (para. 18); (iv) The statutory declaration had withheld the fact that Mr. Molony, who was professing to give first-hand evidence, had not visited the site during Royal Mail’s lease[3] and so could not attest to its use during that period (para.18); (v) The application had failed to refer to Royal Mail ceasing to use the premises by, at the latest, 2015 (paras. 11 and 17); (vi) The application and the decision in 2019 had proceeded on the incorrect legal basis that the issue was whether there had been a 10-year period of continuous use in breach of condition at any time in the past, without that lawful use being subsequently abandoned or suspended. Instead, the law had been correctly stated in Ellis (para.22). In any event, even applying “the wrong legal tests” relied upon by Telereal, the applicant had been required to provide an accurate factual account of the use over time. The false statements and withholding of information were still material to that issue (para.23); (vii) The false assertion about the interlinked nature of units A-D, as well as the lack of use and the separate marketing of units C and D, were relevant to the identification of the correct planning unit (para.28); (viii) On the exercise of the discretion to revoke the CLEUD, the legislation assumes the provision of “correct and complete material information.” Had the false statements not been made and/or material information withheld, Islington “would have been alerted to the need to carry out further investigations in particular as to the planning unit” and “could have come to a different decision” (para.8).
Ocado challenged the revocation by way of judicial review on a series of grounds, a number of which raise interesting and difficult planning law issues, but for the purposes of this blog post it is sufficient to say that the claim failed. Holgate J held that the council was within its powers in deciding to revoke the certificate on the basis of applying the test in section 193 (7).
It is an important judgment for anyone dealing with certificate applications, with some helpful judicial pointers.
As to the drafting of a statutory declaration in support of a certificate application:
“Care needs to be taken in the drafting of any statutory declaration in support of an application for a certificate under s.191 (or s.192). Such a document is intended to have a formal and solemn status in a non-judicial process where oaths are not administered. It is an offence for a person knowingly and wilfully to make a statutory declaration containing a statement which is false in a material particular (s.5 of the Perjury Act 1911). This offence is “triable either way” and so there is no specific time limit on the bringing of a prosecution. Whether or not a statutory declaration is used to provide evidence to a local planning authority, s.194 makes it an offence for a person, for the purposes of obtaining a decision on an application under s.191 or s.192, to make a statement knowingly or recklessly which is false or misleading in a material particular or, with an intent to deceive, to use any document which is materially false or misleading or to withhold material information. In s.194(3) Parliament has expressly disapplied the normal 6-month time limit in s.127 of the Magistrates’ Courts Act 1980 for the bringing of a prosecution in respect of a summary only offence. Section 194(3) is all of a piece with the power of revocation in s.193(7), which is exercisable at any time after the grant of a CLEUD.
To enable an authority to assess the weight to be placed upon a statutory declaration or witness statement, it is good practice for the author to make plain which matters are within his own personal knowledge and, unless it is obvious, how that knowledge was obtained. For each matter outside his own knowledge, he should identify the specific source relied upon. These are essentially the principles applied to witness statements in civil litigation (CPR PD32 para.18.2) and it is difficult to see why the approach should be any less rigorous in the context of s.171B where a declaration may be dealing with continuity over a long period of time.”
As to whether certificate applications should be publicised:
“It is beneficial to the quality of decision-making on s.191 applications, which deal with past events, that persons or bodies with relevant information on the grounds for seeking a CLEUD should be able to be involved, whether supporting or opposing an application. If they are not, there is potentially an increased risk of any certificate granted becoming the subject of an application for judicial review, or revocation under s.193(7), with consequential delays for a landowner wishing to rely upon that decision. If, on the other hand public participation results in the refusal of a CLEUD, the applicant is entitled to pursue the matter on appeal, where the evidence can be examined and tested.
It could be said to be unsatisfactory that whether consultation takes place should depend upon the exercise of discretion by individual planning officers, rather than there being a uniform national procedure. Similar concerns were raised by Collins J in Sumption v London Borough of Greenwich [2008] 1 P&CR 20 at [8]. The point is illustrated by paragraph 008 of the relevant part of the National Planning Practice Guidance, which states that “it may be reasonable for a local planning authority to seek evidence from other sources e.g., parish councils or neighbours, if there is good reason to believe they may possess relevant information about the content of a specific application”. The difficulty is that an authority is unlikely to be able to identify all situations in which members of the public have something material to contribute, either on the decision whether to grant a certificate or the precise scope of any certificate.”
As to the extent of the power to revoke a certificate:
“A CLEUD or a CLOPUD may only be revoked by a local planning authority on the grounds set out in s.193(7). The power of revocation may not be used, for example, because the authority wishes to revisit the merits of the application, or has changed its mind about the findings of fact it has made or the inferences or conclusions it has drawn from the material submitted.”
As to other matters to take into account in deciding whether to revoke:
“By way of example, the local planning authority might take into account the effect of revoking the certificate on affected landowners, particularly if time has elapsed and successors in title demonstrate the harm they would suffer. In that event, it could also be relevant to consider whether a successor in title was involved in, or aware of, the application for a certificate, particularly if it intended to rely upon any certificate granted. Where a local authority has reason to conclude that material information was deliberately withheld at the application stage, or that there has been material concealment of information after the certificate was issued, those matters could be taken into account as weighing in favour of revocation. Although the planning merits of a development or a legitimised breach of condition are irrelevant to whether sub-paragraphs (a) or (b) of s.193(7) are satisfied, a local authority may have regard to that aspect when exercising its discretion whether to revoke a certificate. But it is entirely a matter for the authority whether to consider planning benefits or harm at all and, if so, to what extent, subject only to review on the grounds of irrationality.”
I mentioned the additional risk, with CLOPUDs, that they lose their effect if there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining the lawfulness of the proposed development. There was discussion about this in Croyde Area Residents Association) v North Devon District Council (Lieven J, 19 March 2021).
The case concerned an application for judicial review to quash the grant of planning permission on 27 January 2014 for the use of lodges, static caravans and touring caravans at Ruda Holiday Park, Croyde, Braunton Devon. The judge allowed such a late challenge to be brought, applying the principles in R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council (Court of Appeal, 30 April 2019) (covered in my 18 May 2019 blog post Slow Claim Coming: Limiting JRs) but much of the discussion in the case concerned a CLOPUD which was subsequently granted on appeal on 21 February 2020 once a dispute had arisen as to the extent of land which had the benefit of the planning permission, due to a mistake in the way in which the boundaries of the application had been shown (“…roughly 22 hectares of land were included within the red line which before 2014 had no permission for caravans or lodges to be stationed”).
There is an absolute statutory bar on challenging the validity of certificates granted upon appeal after six weeks but challenges can of course be brought to planning permissions granted by local planning authorities outside that six weeks period (on the principles set out in that Thornton Hall Hotel case). That was why this was just a challenge to the January 2014 permission. The land owner, represented by James Maurici QC, sought to argue that to allow a late challenge to the planning permission, as argued for by the claimant, represented by Richard Turney, would undermine the absolute bar on any legal challenge to the CLOPUD. The judge disagreed:
“I am concerned that Mr Turney’s argument does result in the undermining of the LDC, and therefore might be said to undermine the purpose of the statutory provision. However, in my view there are two answers to this. Firstly, it is clear from Challinor and from s.192(4) that the LDC does not create absolute certainty of the lawfulness of the use going forward in any event. The statute envisages that there may be a material change which removes the certified lawfulness and I see no reason why the subsequent quashing of a planning permission should not be such a material change. Secondly, the mischief that Mr Maurici relies upon can in my view be dealt with by the exercise of the court’s discretion not to quash if on the facts of the case that is the appropriate response. It would be a highly unusual, if not exceptional, situation where the court would quash a planning permission where the effect was to remove the benefit of an LDC. As I explain below, I consider this to be such an exceptional case. However, in the vast majority of cases the existence of the LDC will be an overwhelming reason not to quash the planning permission.”
So the judge assumes that the quashing of the planning permission will amount to a material change in a matter that was relevant to determining the lawfulness of the development certified in the CLOPUD. It is not clear from the judgment whether the development described in the CLOPUD had subsequently already been started – that would of course preclude the operation of section 192 (4). (NB I understand that permission to appeal to the Court of Appeal has been sought).
Lessons:
– Be scrupulously accurate when submitting any application for a CLEUD or CLOPUD, and do not withhold any material information. Otherwise, it may come back to bite you or your successor, by operation of section 193 (7).
⁃ In relation to CLOPUDs, be wary of any potential material changes that may come to undermine your certificate. You are at risk until “the use is instituted or the operations are begun”.
Simon Ricketts, 12 June 2021
Personal views, et cetera
It was a busy Clubhouse Planning Law Unplanned week! Many of you will have tuned into our session on Tuesday in relation to the Lichfields Taking Stock report and/or Thursday’s event arranged at about eight hours’ notice when Duncan Field and Zack Simons led a session on the HCLG Committee’s report on the future of the planning system. This Tuesday 15 June at 6pm we have another amazing session, this time about starting new consultancies, firms and practices, with a series of founders’ stories, including Roger Hepher (hgh Consulting), Paula Carney (CarneySweeney), Kelly Ryder (The Planning Lab), Mark Gimingham (i-Transport), Claire Dickinson (Quod), Rachel Naylor & Abbey Musker (Trium Environmental Consulting LLP ) and tax specialist Mitch Young (Fusion Consulting Ltd). Join us! Invite to app and event here.
SIMONICITY 