Planning permission – Condition notice – Compliance – Claimant applying for judicial review of decision of defendant local authority to issue breach of condition notice for non-compliance with planning condition – Whether notice being unlawful as requiring cessation of non-prohibited activities – Whether defendants’ officer failing to take into account material conditions – Application dismissed
The claimant was a bus and coach company which obtained conditional planning permission from the defendant local authority for the use of land at Harlow Business Park, Roydon Road, Harlow, Essex, as a coach park/depot. Condition 4 provided that no repairs or maintenance of vehicles or other industrial or commercial activities should take place at the site at between specified times unless otherwise agreed in writing with the defendants.
The defendants served a breach of condition notice (BCN) on the claimant requiring it to cease the running of engines of coaches and buses at the site outside the permitted hours specified in condition 4.
The claimant was granted permission to apply for judicial review of the decision to issue the BCN on the basis that the question of the proper construction of condition 4 in the planning permission, in particular whether the reference to “other industrial and commercial activities” applied to activities connected with driving coaches from the site, was arguable.
The issues for the court were: (i) whether the BCN was unlawful because it required activities to cease which were not prohibited by condition 4; and (ii) whether the decision of the defendants to issue the BCN was unlawful because the officer to whom the power was delegated failed to take into account material considerations.
Held: The application was dismissed.
(1) Planning permissions and their conditions were public documents available on the planning register, the public record of planning decisions was required by statute to keep: see section 69 of the Town and Country Planning Act 1990. Therefore, it was important that a permission and its conditions had to be read as a whole and be given the meaning that a reasonable reader would give them without any special knowledge and without looking at any extrinsic material: Carter Commercial Developments Ltd 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 considered.
In the present case, the words “no repairs or maintenance of vehicles or other industrial or commercial activities” when read by a reasonable reader were wide enough to cover the activity of starting the engine of a bus or coach in readiness for its use in the business of running a coach park/depot as permitted in the site by the planning permission. That was so whether the engine was started to carry out necessary checks or simply to prepare the vehicle to depart. It was a commercial activity carried out as part of running the business and was therefore prohibited outside the hours specified by condition 4.
It was not appropriate, in this case, to employ the eiusdem generis rule that general words were not to be construed in their widest extent, but held to apply only to things of the same general kind or class as those specifically mentioned. That principle was primarily relevant to statutory interpretation. Given the nature and function of planning permissions and their conditions, it would not be appropriate to use the principle in the interpretation of a planning permission. The documents were to be read by a reasonable reader not one versed in the niceties of statutory interpretation. Repairs, maintenance, industrial activities and commercial activities were all ordinary words in the English language, which could and should be given their ordinary and natural meanings. A benevolent reading was still one that gave the words the meaning a reasonable reader would give them and one that construed the conditions in a way that made them enforceable against the planning mischief they were aimed: Dudley Metropolitan Borough Council 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 (Admin); [2010] PLSCS 193 considered.
(2) The defendants’ officer had fulfilled his task, in deciding whether the defendants should serve the BCN, of determining whether condition 4 was being complied with and, if not, to specify what activities ought to cease to secure compliance with the condition. The defendants had been aware that buses and coaches had a “warm up” time. What the BCN sought to do was to prohibit the running of engines for whatever reason during the prohibited hours and it had lawfully achieved that purpose.
Megan Thomas (instructed by Sharpe Pritchard Solicitors) appeared for the claimant; Wayne Beglan (instructed by Holmes & Hills LLP, of Essex) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read the transcript of R (on the application of XPL Ltd) v Harlow Council
