XPL Ltd, R (on the application of) v Harlow Council

A planning permission and its conditions must generally be read as a whole, using the meaning that a reasonable reader would give them. Ordinary words such as “commercial activities” should receive their ordinary and natural meaning. A condition restricting commercial activities during specified hours may therefore prohibit starting vehicle engines in preparation for departure, even where the permission is for a coach depot and parking is expressly permitted. A benevolent construction does not permit the court to rewrite clear wording or disregard an enforceable restriction. If the restriction causes commercial difficulty, the proper course is an application to vary the permission.

XPL Limited operated a coach park and depot under planning permission granted by Harlow Council. Condition 4 restricted repairs, maintenance and other industrial or commercial activities to specified hours, while permitting the parking of coaches and other associated vehicles.

Following complaints about early-morning engine noise, the Council served a breach of condition notice requiring engines not to be run outside the permitted hours, including for daily checks or preparation for departure. XPL sought judicial review, arguing that the notice prohibited activities outside condition 4, and that the decision-maker had failed to consider the need to run engines to build air pressure before departure.

The central issues were the proper construction of condition 4 and the lawfulness of the Council’s decision to serve the notice.

1. Claim dismissed. The breach of condition notice lawfully identified activities which ought to cease in order to secure compliance with condition 4.
2. Planning permissions are public documents. They must be read as a whole and given the meaning a reasonable reader would give them, without resort to extrinsic material unless an applicable ambiguity or other recognised exception exists. The condition was clear on its face. The court relied on R v Ashford Borough Council ex parte Shepway District Council [1999] P.L.C.R. 12, Carter Commercial Developments v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994 and Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262.
3. The words “industrial or commercial activities” were wide enough to include starting a bus or coach engine in readiness for departure, whether for necessary checks or simply to prepare the vehicle. That activity formed part of operating the permitted commercial depot and was prohibited outside the specified hours. The express exemption for parking did not extend to running engines in preparation for leaving.
4. The eiusdem generis principle was inapplicable. The condition used ordinary language and was not to be confined to activities resembling repairs or maintenance. Nor did the condition make the permission unworkable. A benevolent construction meant one which preserved a reasonable and enforceable meaning, consistent with Dudley MBC v Secretary of State for Communities and Local Government [2009] EWHC 2666 (Admin) and Barnes v Secretary of State for Communities and Local Government [2010] EWHC 1742.
5. The Council’s officer was aware that buses and coaches required warm-up time. The notice lawfully sought to prohibit engine running for whatever reason during the prohibited hours. Any commercial difficulty could be raised in an application under section 73 of the Town and Country Planning Act 1990.

Permission to apply for judicial review was granted on the papers by Mr Justice Lewis on 18 August 2014. The Administrative Court dismissed the claim.