As Safe As CLEUDs?
A recent decision handed down by Mr Justice Jay underlies the need for caution when relying on a Certificate of Lawfulness of Existing Use or Development (CLEUD). The case concerned a CLEUD for use (inter alia) as a caravan site granted in 2008 in the New Forest National Park. In 2019 the new owners of the Site sought to rely on the CLEUD to turn the site into a caravan park for around 80 caravans.
Following Holgate Jās judgment in R (Ocado) v Islington Borough Council [2021] EWHC 1509 which clarified the width of the power to revoke certificates of lawful use, the National Park Authority took the decision to revoke the CLEUD. At the heart of the revocation process was an allegation that the application for the CLEUD had represented that caravan use had been spread across the entire site and the NPA gathered evidence showing this was not the case including aerial photographs and local resident evidence.
Key Facts of the Case
- š CLEUD granted: 2008 ā for caravan use in the New Forest National Park
- š Site plan (2019): New owners sought to expand to ~80 caravans
- ā Revocation: Initiated after Ocado v Islington clarified legal powers
- šø Evidence: Aerial photos & local testimony showed limited caravan use
- š§ Complications: Original evidence and witnesses no longer available
- ā Ruling: Revocation upheld ā misrepresentation deemed material
- š Next steps: Owner seeking permission to appeal
- š§āāļøBarristers: James Findlay KC and Clare Parry represented the National Park Authority
A Complicated Case
The case had complications, many of which were aired in the High Court challenge by the owners to the revocation. Given the passage of time some of the evidence on the application process for a certificate had not been retained. Individuals involved in the grant of the certificate could no longer remember the application and were not able to fill in the gaps.
Despite this the judge accepted that the NPA were entitled to accept that there had been a misrepresentation. They were also entitled to conclude that the representation had been material and that the NPA had lawfully exercised their discretion to revoke the certificate including considering the prejudice to the new owners of doing so.
The case contains a useful discussion of when a misrepresentation (or withholding of information) in an application can be considered material-particularly in circumstances where the authority may have known something which might have led to lines of inquiry calling the evidence into question at the time.
Need For Caution
This case again shows the need for caution both on behalf of applicants for CLEUDs and those seeking to rely on a CLEUD. This is particularly the case where the CLEUD was obtained based on very limited evidence.
The owner is seeking permission to appeal so it is possible that the approach to revocation may ultimately be considered by the Court of Appeal.
James Findlay KC and Clare Parry represented the National Park Authority.
