XPL Ltd, R (On the Application Of) v Harlow Council

A planning permission and its conditions must be read as a whole, including the reasons, from the standpoint of a reasonable reader. Clear wording receives its natural and ordinary meaning, with extrinsic material relevant only in limited cases such as genuine ambiguity. A condition restricting repairs, maintenance and other industrial or commercial activities is not confined by the ejusdem generis principle where its wording shows a wider intention. Parking means leaving vehicles at the site, not preparing them to depart. Running bus or coach engines before departure, where necessary for commercial operations, is itself a commercial activity or an indispensable part of one. It may therefore be enforced by a breach of condition notice.

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

Following complaints about early-morning engine noise, the council served a breach of condition notice under section 187A of the Town and Country Planning Act 1990. The Administrative Court dismissed XPL’s judicial review claim: [2014] EWHC 3860 (Admin). The appeal concerned the meaning of condition 4 and whether running engines before vehicles departed was an activity restricted by it.

Appeal dismissed. The court unanimously upheld the breach of condition notice.

1. Interpretation of the condition. Planning permissions and their conditions must be construed objectively as a whole, including the reasons for the conditions, by asking what a reasonable reader would understand from the natural and ordinary meaning of the words. Extrinsic material is relevant only in limited circumstances, such as genuine ambiguity. The condition was clear and did not require reference to the officer’s report or other external material. This approach was consistent with Miller-Mead [1963] 2 Q.B. 196, Carter Commercial Developments [2003] J.P.L. 1048 and Trump International Golf Club Scotland Ltd. and Another v Scottish Ministers [2015] UKSC 74.
2. The phrase other industrial or commercial activities deliberately extended beyond vehicle repairs and maintenance. The ejusdem generis principle did not apply. The express exception for parking did not include removing a vehicle from its parking place or preparing it to depart.
3. The running of coach and bus engines before departure was necessary preparation for the commercial use of the vehicles. It was therefore itself a commercial activity, or an indispensable part of one, and fell within condition 4. It also had potential to prejudice neighbouring residents through noise, contrary to Policy BE17.
4. The notice required cessation only of activity prohibited by condition 4 and was therefore lawful under the Town and Country Planning Act 1990. The condition was severe but remained valid, sufficiently precise and enforceable. If the restriction caused commercial difficulty, XPL could seek variation under section 73 of the Act.

• Court of Appeal (Civil Division) — The appeal against the Administrative Court’s order was dismissed: [2016] EWCA Civ 378.
• Administrative Court, Planning Court — The deputy judge dismissed XPL’s judicial review claim challenging the breach of condition notice: [2014] EWHC 3860 (Admin).