Ocado has lost its judicial review against Islington's revocation of a lawful use certificate for a warehouse, but all may not be lost as it can now reapply for a further certificate.

In a 49 page judgment the High Court demonstrates that care is needed when dealing with lawful use applications and that the provision of full information is essential.  In summary:

  • The building in question had been granted permission as 4 units in 1987 for industrial use subject to a condition not to be used for warehousing.
  • The 4 units were treated as a single planning unit.
  • The building had been used by BT as a warehouse in breach of the condition from 1992 for a period of 10 years.
  • The building had been leased back to BT for a further 10 years, following the sale of the freehold.
  • The building had then been let to Royal Mail for use as a distribution centre from 2013 until 2017.
  • The building was then empty for a couple of years before Ocado's interest in it.
  • The owner applied for a lawful use certificate for B8 purposes on the basis that the building had been used for B8 use continuously up to 2017 and that use had not been abandoned.
  • That lawful use certificate was granted and the building was let to Ocado.
  • It subsequently came to light that:
    • periods when the building or parts of it had been empty whilst let to BT had not been highlighted in the lawful use application;
    • the surveyor who made the statutory declaration had not visited the premises during Royal Mail's lease and this had not been stated; and
    • there had been no mention that Royal Mail had vacated the building in 2015, despite their lease running to 2017.
  • The Council therefore revoked the lawful use certificate on the basis that material information had been withheld from the application.
  • Ocado challenged the revocation by judicial review.

The judgment clarifies a couple of areas of planning law that planning authorities have wrongly used in the past to refuse lawful use certificates or to justify enforcement action.  However, on the facts of the case, the Court found that material information had been withheld which justified the Council's revocation, as it had been unable to form a view on whether the use had been abandoned, following it becoming lawful.  It did not matter that the information in question had not been deliberately withheld.

So, Ocado have had their lawful use certificate revoked.  Having spent some £2.3M refurbishing the premises they surely now have every incentive to resubmit the application, this time with full evidence addressing any periods of vacancy in order to demonstrate that the building having acquired a lawful use in 2002 that such use had not subsequently been abandoned.