R (Ocado Retail Ltd) v London Borough of Islington [2021] EWHC 1509 (Admin)
Ocado CLEUD revocation is an important Planning Court case on revoking a certificate of lawful existing use, the applicant’s disclosure burden and whether an accrued lawful use can be lost by later non-use.
Ocado won one significant point of law, but the judicial review was dismissed overall because Islington’s revocation remained supported by independent grounds.
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- Neutral citation
- [2021] EWHC 1509 (Admin)
- Court
- High Court, Queen's Bench Division, Planning Court
- Judgment date
- 7th June 2021
- Judge
- Mr Justice Holgate
- Case number
- CO/4316/2020
What Ocado decided
The dispute concerned units at the Bush Industrial Estate in Islington. A certificate of lawfulness had been issued for a B8 warehousing use said to have become lawful through ten years of breach of a planning condition.
After local residents produced further evidence, Islington revoked the certificate under section 193(7) of the Town and Country Planning Act 1990, relying on materially false statements and information which had been withheld.
Ocado challenged that revocation. Mr Justice Holgate dismissed the claim overall.
Withholding information need not be deliberate
The court held that the statutory concept of information being withheld is objective. The authority does not have to prove dishonesty or an intention to mislead.
Information may be material if it could have affected the decision, led to a different certificate or caused the authority to pursue a material line of inquiry.
This places a real burden on an applicant for a Certificate of Lawful Existing Use or Development to present a candid and sufficiently complete evidential case.
The council did not have to rescue a weak application
Ocado argued that the council could have found relevant historic material in its own archives. The court rejected the suggestion that this displaced the applicant’s evidential burden.
A local planning authority is not obliged to carry out an open-ended investigation to make good gaps in an application. That is especially important in certificate cases, where the decision turns on fact and law rather than a planning balance.
An accrued lawful right is not lost by mere non-use
The most important point in Ocado’s favour concerned what happens after enforcement immunity has accrued.
Holgate J rejected the idea that a lawful use acquired through the passage of time is simply lost because the use later stops for a period. Once the lawful right has accrued, mere non-use is not enough to extinguish it.
Loss instead requires something legally significant such as abandonment or a supervening planning event. Planning Geek’s guide to abandonment of use explains that separate test.
Continuity still matters before immunity accrues
The judgment does not remove the need to prove the relevant continuous period before a use or breach becomes immune from enforcement. Interruptions during that period can still be critical.
The distinction is between proving the period required to acquire lawfulness and what happens after that lawful status has already accrued.
The planning unit also mattered
The scope of the lawful use had to be tied to the correct planning unit and to the breach actually proved. A certificate should define the lawful position accurately rather than unnecessarily sweeping away a wider planning restriction.
See Planning Geek’s guide to planning units for the wider Burdle principles.
Why Ocado still lost
Although Ocado succeeded on the legal point about later non-use, that did not undermine the independent findings concerning false or withheld information and the scope of the planning unit.
The revocation therefore remained lawful and the judicial review was dismissed.
Read the full Ocado judgment
The full Planning Court judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Ocado CLEUD Case Law Page Updated: 10th September 2026