The Court of Appeal’s judgment in R (XPL Ltd) v Harlow Council [2016] EWCA Civ 378; [2016] PLSCS 113 confirms the correct approach to interpreting planning conditions. The local authority served a breach of condition notice (“BCN”) under section 187 of the Town and Country Planning Act 1990 in relation to the sui generis use of a business park site as a coach park/depot. The relevant condition restricted the hours during which “repairs or maintenance of vehicles or other industrial or commercial activities” could take place (other than the parking of coaches and other vehicles associated with the permitted depot/coach park use). The site operator needed to run bus engines across its fleet in the early morning outside these hours to ready vehicles for their timetabled service. The BCN required the running engines to cease outside the restricted hours.
The operator sought judicial review of the BCN’s validity (lacking a right of appeal against it). Its grounds included that the revving of engines in connection with the “unparking” of coaches was not an “industrial or commercial activity” contemplated by the condition. The operator also claimed that the condition should not be interpreted to prevent “any meaningful bus service” running from the site. It also relied on the application of the ejusdem generis rule of statutory interpretation (where the construction of general words after specific items should be narrowed to the same class as those specified). Only industrial and commercial activities similar to repairs or maintenance would have been within the ambit of the condition.
The deputy judge upheld the BCN on the grounds that the revving was a commercial activity and was not “parking”. The Court of Appeal agreed and held that the purpose and effect of the condition were sufficiently clear not to warrant reference to extrinsic materials (applying R (Shepway District Council) v Ashford Borough Council [1999] PLCR 12). The judgment confirms rules of statutory interpretation have no place in considering the objective, but reasonable-minded, meaning to be given to planning conditions (applying Trump International Golf Club Scotland Ltd and another v Scottish Ministers [2015] UKSC 74). As a matter of language, “other industrial… activities” simply denoted that the repairs and maintenance were industrial and so reinforced the breadth of the restriction.
The Court of Appeal also rejected the suggestion that the condition was unlawful or incapable of being interpreted in the way required to uphold the BCN (by rendering the operator’s consent unsuitable for use in combination with its timetabling requirements). Use as a depot was possible and the issue of commercial suitability was not a question for the court.
The case is a reminder that authorities should clearly state the reasons for conditions (and supporting policies) and that applicants should ensure they are content with the form of conditions imposed while they have a chance to appeal or apply to modify them.
Roy Pinnock is a partner in the planning and public law team at Dentons
