A Most Unusual Case: Aarhus, CLEUDs and AI guidance

This is a most unusual case the circumstances of which, it is hoped, are unlikely to be repeated.

That is the opening sentence of the Court of Appeal decision in Ocean One Hundred Ltd, R (On the Application Of) v New Forest National Park Authority [2026] EWCA Civ 493 , the first of two cases I am going to look at in this blog. If I were in charge of granting awards for this type of thing, it would be a strong contender for “The Best Opening Sentence in a Judgment or Planning Appeal Decision”, so I wanted to take a moment to celebrate it.

*takes a sip of coffee and enjoys the moment*

Right, now that is done, lets get on with the rest of blog.

Ocean One Hundred Ltd, R (On the Application Of) v New Forest National Park Authority

Lord Justice Holgate is right, Ocean One Hundred Limited is a most unusual case. So unusual that the word crops up on eight separate occasions in the judgment.

The case centres on a power that is used very rarely – the power of a local planning authority to revoke a certificate of lawfulness under s.193(7) of the Town and Country Planning Act 1990.

A provision which states:

There is no right of appeal against the revocation of a certificate of lawfulness.

I am not going to get into too much detail on the facts of the case, as you can read them for yourselves, but to summarise them briefly:

• In 2007, following an enforcement investigation, the LPA granted a CLEUD for the use of a site in the national park. The certificate stated that the whole of the 2.57 hectare site had a lawful use as a “caravan” site apart from one small area shown hatched blue which had a lawful use for caravan storage.
• The certificate was wrong. The key question at the heart of everything that follows was whether this more likely to be as a result of misleading information from the applicant or a mistake by the Council (as in the latter situation the power to revoke under s.193(7) was not available) but more on that later.
• In December 2018 the site was sold to the Appellant – who started to develop the site as a caravan park. The Council started to enforce against this – although that appeal is currently on hold.
• In November 2023, the LPA revoked the CLEUD that had been granted in 2007 on the basis of an officer’s report that concluded that the original CLEUD application contained either false statements or material information had been withheld. This finding was made in a situation where the LPA had not retained all of the information surrounding the original CLEUD application and parts of the CLEUD application file were missing.
• The revocation was challenged by the Appellant, but was upheld in the High Court – in part because of a finding, which is reported in the Court of Appeal’s decision as follows*:

• “15…The judge was concerned about the officer’s approach to the sensitive, unusual and complex process for deciding whether to revoke the CLEUD, a document which conclusively presumed the lawfulness of the use rights certified. … the judge concluded that because he was not the decision-maker, the apparent bias ground was not made out… but without giving any further legal analysis.

The case then went to the Court of Appeal and succeeded on one of five grounds (the other four failed). The successful ground being that the judge erred in failing to find that the appearance of bias by the case officer rendered the decision unlawful.

The key lesson to take from the decision can be found in the conclusion at paragraph 167 of the judgment. Which I have set out in full below:

“there is no appeal from the decision to revoke a CLEUD, a decision which is likely to have a deleterious and significant impact upon the land owner. A decision to revoke is not made by reference to planning policy but largely, in the application of s193(7), by reference to the circumstances which led to the granting of the original certificate. It is as Jay J said a ‘sensitive, unusual and complex decision making process’ and it is accordingly of the utmost importance that the investigations which proceed the compiling of the officer’s report are seen to be scrupulously fair.”

As Lord Holgate stated at the start, a most unusual case indeed!

Royal Mint Court Residents’ Association, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government & Ors [2026] EWHC 904 (Admin) 

The second decision I am going to refer to is also unusual, primarily as it is not a final judgment but rather the outcome of a case management hearing – in a set of proceedings to determine the lawfulness of the decision to grant planning permission for the new Chinese embassy.

Those proceedings comprise both:

• a statutory appeal against the Secretary of State’s Decision to grant planning permission for the Embassy; and
• a judicial review of the Secretary of State for the Home Department’s decision to provide an extensive range of measures associated with the development to protect national security

The reason I am recommending that you read the decision is because of the analysis as to whether the judicial review proceedings fell into the scope of Aarhus costs protections or not.

The court ultimately followed the position in Venn and Global Feedback stating that the judicial review did not fall within the scope of the Aarhus costs protection regime as “The SSHD was making a decision to support or impose the Mitigation Measures under powers related to national security, not the environment. That was both the focus of her decision and the source of her powers.”

However the discussion that lead to that conclusion stands as a worthwhile reminder of the key principles involved in Aarhus cases.

And finally, we shall end with something completely different.

ICO required to issue guidance on Data Protection, AI and Automated Decision-Making

On 16 April the Government made the The Data Protection Act 2018 (Code of Practice on Artificial Intelligence and Automated Decision-Making) Regulations 2026.

According to the Explanatory Memorandum the regulations:

“requires the Information Commissioner’s Office (ICO), as the
independent data protection regulator, to produce a code of practice providing guidance as to good practice in relation to the use of personal data in artificial intelligence (AI) and automated decision-making (ADM) to assist organisations with their compliance with their data protection obligations. In this instrument personal data refers to any information relating to an identified or identifiable living individual as set out under sections 3(2) and 3(14)(c) of the Data Protection Act 2018. ADM
refers to solely automated decisions regulated by articles 22A-22C of the UK GDPR and sections 50A-50C of the Data Protection Act 2018. Due to the fast-paced nature of AI development, this instrument does not provide a definition of AI to allow the
ICO to be able to consider the latest developments in this technology when developing this code”

Yes, I know that the regulations are not directly planning related. The ICO’s statutory code of practice, however, will be *very* relevant to everyone who uses AI in their day to day work – including planners and planning solicitors.

Not least given the recent news that MHCLG has awarded a £6.9 million contract to Google Cloud to develop an AI-powered tool aimed at speeding up planning decisions.

*albeit I have made some redactions.