R. (on the application of XPL Ltd) v Harlow Council [2016] EWCA Civ 378

01 Jan 2018

Planning and Environment

The Court of Appeal has upheld a breach of condition notice issued by Harlow Council in relation to the hours of operation of a sui generis coach depot.

The relevant words of the BCN were directed at “the running of engines of any passenger carrying vehicles (i.e. coaches and buses) at the site and associated with the coach park/depot (except when the vehicles are being moved onto the site to park) outside the permitted hours specified within condition 4”.  Condition 4 and it’s reason provided:

“No repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches and other vehicles associated with the Coach Park/Depot hereby permitted) shall take place at the site except between the hours of 8.00 am and 6.00 pm on Mondays to Fridays, 8.00 am to 1.00 pm on Saturdays, and not at any time on Sundays or public holidays, unless otherwise agreed in writing with the Local Planning Authority. REASON: To ensure that any industrial operations associated with the use do not prejudice the amenity of neighbouring residents and to accord with Policy BE17 of the Adopted Replacement Harlow Local Plan, July 2006.”

In dismissing the appellant’s appeal the court:

  1. Rejected the suggestion that the ejusdem generis principle was applicable to the construction of planning conditions,
  2. Held that the proper construction of the condition, whilst it might have severe commercial implications for the appellant, did not render the planning permission unworkable in breach of the principle in Kent County Council v Secretary of State for the Environment and Burmah Oil [1977] 33 P. & C.R. 70
  3. Found that the activity of starting and running an engine was a commercial activity in the context of a planning permission for a coach depot.
  4. Found that there was no ambiguity between the condition and the reason given for its imposition. Accordingly, there was no justification for going in search of extraneous material – such as the officer’s report or any model condition – as an aid to interpretation.

Wayne Beglan represented Harlow Council.