Judgments

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

[2014] EWHC 3860 (Admin)

Queen's Bench Division, Planning Court

Rhodi Price Lewis QC sitting as a Deputy High Court Judge

20 November 2014

Judgment

               Ms. Megan Thomas (instructed by Sharpe, Pritchard, Solicitors) for the Claimant

               Mr. Wayne Beglan (instructed by Holmes & Hills LLP) for the Defendant

Hearing dates: 5 November 2014

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               Approved Judgment             

               RHODRI PRICE LEWIS QC :             

                                Introduction                            

  	1.     The Claimant, XPL Limited, is a bus and coach company and seeks judicial review against Harlow Council, the local planning authority for their area, in order to challenge the Council's decision to serve a breach of condition notice on the Claimant alleging a failure to comply with condition 4 of the planning permission granted by the Council for the use of land known as Plot 17, Harlow Business Park, Roydon Road, Harlow as a "coach park/depot."

  	2.     The planning permission was granted on the 6th July 2011. Eight conditions were attached. Condition 4 provides:

  	"No repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches or 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, 8am to 1pm 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."                     

  	3.     Policy BE17 of that Local Plan provides:

  	"Planning permission will be granted if noise sensitive developments are located away from existing sources of noise and potentially noisy developments are located in areas where noise will not be such an important consideration, or adequate provision has been made to mitigate adverse effects of noise likely to be generated or experienced by others."

  	4.     The Council served the breach of condition notice ("BCN") the subject of this challenge on the 3rd June 2014. In the usual form it identifies the relevant land and the relevant planning permission and specifies and sets out the condition which the Council considers has not been complied with. Section 5 of the BCN is headed "What you are required to do" and reads as follows:

  	                       "As the person responsible for the breach of condition specified in paragraph 4 of this notice, you are required to comply with the stated condition by taking the following steps:                     

  	                               (1)                               Cease 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 where the vehicles are being moved onto the site to park) outside the permitted hours specified within condition 4. This includes the running of engines associated with the carrying out of any daily checks that may be necessary before passenger carrying vehicles parked at the site are brought into use to undertake commercial passenger transport services."                             

  	There is no paragraph (2). The period for compliance was 28 days.  

  	5.     The Claimants issued the claim form seeking judicial review of the decision to serve the BCN on the 15th July 2014. Mr Justice Lewis granted permission to apply for judicial review on the papers on the 18th August 2014. In doing so he observed: "The question of the proper construction of the condition in the planning permission, and in particular whether the reference to "other industrial and commercial activities" (following on from the reference to repairs and maintenance) applies to activities connected with driving coaches from the site, is arguable."

                                The facts                            

  	6.      At the time of the grant of planning permission in 2011 the site was vacant and undeveloped and formed part of an industrial estate known as the Harlow Business Park. It is within an area identified for employment uses in the adopted Local Plan. It extends to some 0.45 hectares. The nearest residential dwelling is some 40 metres away from its north-eastern corner. There are no buildings on the site but the Claimant intends to seek planning permission for a building in due course and to move all its operations which currently take place on two sites in Harlow onto this one site. Planning permission had been granted for a food production factory on this site, that use being expressly identified by the Council as a general industrial use in Class B2 of the Use Classes Order but I was told that conditions were attached to that permission controlling noise and hours of operation.

  	7.      When the application for planning permission for the coach depot was under consideration by the Council concerns were expressed about potential noise by a local action group and in letters from local residents but the officer reporting to the members did not see a noise barrier as necessary. He reported: "The views of residents relating to hours of operation are duly noted and it is therefore suggested that if permission is granted a condition should be attached to the permission to restrict the days/hours of operation in respect to any repair or maintenance of vehicles at the site."

  	8.      Planning permission was granted with condition 4 attached and the Claimant began operations from the site in 2012. The Council received a complaint from a neighbouring resident about noise and fumes coming from the site in June 2012. There was no further complaint until August 2013 when the same resident complained about being woken in the early hours of the morning by shouting and engine noise coming from the site. Complaints about engine noise in the early hours of the morning around 5 am and 6 am were thereafter regular. The environmental health officer of the Council advised the complainant that the noise did not amount to a statutory nuisance and that the Council could not exercise control over the time of day that buses were started on the site. In March 2014 noise recordings were taken by the environmental health department which showed that there was noise coming from the site from 5.30 am which was sufficient to interfere with sleep and to cause disturbance to nearby residents. On the 18th March 2014 a planning enforcement officer wrote to Mr Marino, a director of the Claimant company, advising him that "the starting up and revving of coach engines was regarded by the Authority as a commercial activity associated with the preparation of the coaches for leaving the site to carry out their daily function, and as such the undertaking of such activities before 8.00 am was contrary to the planning permission." Mr Marino was advised that if the company wanted to run vehicles from the site before 8.00am they would need to make an application to vary the condition on the planning permission. No such application has been made. Mr Marino wrote in reply that it would not be possible to run a commuter service which leaves the depot after 8.00 am, that his business was operating "on a 24/7 basis" and that if he had to comply with the condition as the Council explained it to him he would have to close down his businesses.

  	9.     A BCN was first served on the 10th April 2014 but that was withdrawn after taking legal advice and the second BCN which is the subject of these proceedings was served on the 3rd June 2014. A covering letter explained:

  	                       " To ensure there is no misunderstanding as to what the Local Planning Authority requires you to do to comply with the requirement on the notice, I have set out a summary of the operations that we consider are acceptable for the business operating at the site to undertake outside the hours on the condition, and those which should only be undertaken during the specified hours.                     

  	                               1.                               The moving of passenger carrying vehicles (i.e. coaches and buses) onto the site to park is acceptable at any time between Monday and Saturday. This is specifically permitted by the condition.                             

  	                               2.                               The manoeuvring of vehicles around the site in connection with the carrying out of maintenance or repair of vehicles is not acceptable before 8am or after 6pm on Mondays and Fridays or before 8am and after 1pm on Saturdays, or at any time on Sundays and public holidays. The condition specifically rules out repairs or maintenance of vehicles associated with the coach park/depot outside the permitted hours.                             

  	                               3.                               The running of passenger carrying vehicle engines at the site in connection with the carrying out of any daily walk around checks that may be necessary in order to ensure that vehicles are road worthy before they leave the site to carry out commercial bus services, or in connection with the carrying out of any maintenance or repair, is not permitted before 8am or after 6pm on Mondays to Fridays or before 8am and after 1pm on Saturdays or at any time on Sundays and public holidays. The carrying out of checks is part of the commercial bus service operation.                             

  	                              In respect of point 3 above, we are aware that DVSA (the Driver Vehicle Safety Authority) guidance 'Guide to maintaining road worthiness: Commercial goods and passenger carrying vehicles (Revised 2014) states that a person who is made responsible by the operator for running a passenger carrying vehicle has to undertake a daily walk around check before the vehicle is used, and that a number of these checks e.g. the testing of brakes and steering will require the vehicle's engine to be running. The running of engines in association with undertaking these checks is clearly associated with their commercial operation and as such constitutes a commercial activity which is not permitted outside the specified hours on the condition. Vehicles do not need to be left ticking over or revving for long periods simply to park or leave the site. Any ticking over or revving of engines parked at the site will therefore be considered to constitute a commercial or industrial activity as it must either be associated with carrying out of daily DVSA checks or with more in-depth maintenance or repair works which are excluded outside the permitted hours."

                                The Issues                            

  	10.     The case raises the following issues:

  	                           (1)     whether the BCN is unlawful because it requires activities to cease which are not prohibited by Condition 4;

  	(2)     whether the decision of the Defendant to issue the BCN was unlawful because the officer to whom the power was delegated failed to take into account material considerations.

                                The Legal Framework                            

  	11.      Section 187A of the Town and Country Planning Act 1990 provides, so far as is material, as follows:

  	                       "(1) This section applies where planning permission for carrying out any development of land has been granted subject to conditions.                     

  	                               (2)                               The local planning authority may, if any of the conditions is not complied with, serve a notice (in this Act referred to as a 'breach of condition notice') on -                             

  	                                   (a)                                   any person who is carrying out or has carried out the development; or                                 

  	                                   (b)                                   any person having control of the land , requiring him to secure compliance with such of the conditions as are specified in the notice.                                 

  	                               (3)                               References in this section to the person responsible are to the person on whom the breach of condition notice has been served.                             

  	                               (4)                               The conditions which may be specified in a notice served by virtue of subsection (2)(b) are any of the conditions regulating the use of land.                             

  	                               (5)                               A breach of condition notice shall specify the steps which the authority consider ought to cease, to secure compliance with the conditions specified in the notice.                             

  	                               ...                             

  	                           (8)          If, at any time after the end of the period allowed for compliance with the notice -                         

  	                               (a) any of the conditions specified in the notice is not complied with; and                              

  	                               (b) the steps specified in the notice have not been taken, or, as the case may be, the activities specified in the notice have not ceased, the person responsible is in breach of the notice.                             

  	                           (9) If the person responsible is in breach of the notice he shall be guilty of an offence."                          

  	12.     The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself including the conditions (if any) on it and the express reasons for those conditions on its face: Keene J., as he then was, in R v Ashford Borough Council ex parte Shepway District Council [1999] P.L.C.R. 12. None of the exceptions to that general rule are relied upon in this case. 

  	13.     If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: ibid. It was common ground in this case that the application for the planning permission was not relevant to the issues here.

                                The Claimant's submissions                            

  	                                        Issue (i):                                     

  	14.     The Claimant submits that the BCN prohibits activities that are not forbidden by Condition 4 of the planning permission in that it prohibits the Claimant from starting up the engine of a coach or bus outside the permitted hours for the purpose of driving it off the site and that activity does not come within the prohibition on "repairs or maintenance of vehicles or other industrial or commercial activities" outside the permitted hours.

  	15.     The Claimant supports that submission by what Ms Thomas referred to as propositions. Her first proposition is that the words "or other industrial or commercial activities" in Condition 4 must be construed in the context of the preceding words "repairs or maintenance" and that the eiusdem generis principle should be applied so that "other industrial or commercial activities" are to be understood as activities of the same limited character as the category of "repairs or maintenance".  So it is only commercial or industrial activities in the nature of repairs or maintenance which are caught by the condition. 

  	16.     Her second proposition is that the activity of a bus departing from the site is not a "commercial or industrial activity." A commercial activity is one relating to the buying and selling of goods or services so in this case the commercial activity begins when fare-paying passengers board the bus. The departure of a bus is not an industrial activity as it does not involve any industrial process as defined in planning law in the Use Classes Order 1987. So, she submits, the activity of starting up a bus is not an industrial or a commercial activity and so is not prohibited outside the permitted hours by Condition 4.

  	17.     Her third proposition is that a condition cannot lawfully remove the fundamental benefit of the planning permission to which it is attached. She submits that a condition which makes the planning permission unworkable is unreasonable and invalid. She relies in support of that proposition on the case of Kent CC v Secretary of State for the Environment [1976] 33 P&CR 70. She further submits that conditions should be construed in a benevolent manner so that they are not read in a way which renders them imprecise and unreasonable. She submits that the proper reading of Condition 4 is that it prohibits only activities in the nature of repairs or maintenance before 8 am.

  	18.     Her fourth proposition is that the reason for the condition refers only to "any industrial operations associated with the use" with no mention of commercial activities so that the condition should be interpreted as aiming to ensure only that there were no unreasonably noisy repairs or maintenance works before 8 am. She prayed in aid the fact that in the officer's report to members on the application for planning permission she suggested that a condition should be attached restricting the hours of operation "in respect of any repair or maintenance" without any reference to wider commercial activities. She submitted that the officer's report could be looked at as an aid to interpretation because of the ambiguity arising from the condition itself including  "commercial activities" whilst the reason for it referred only to "industrial operations".

  	19.     Her fifth proposition is that the condition expressly allows vehicles to be parked on the site outside the permitted hours and "parking" in this context also includes leaving or "unparking" as they are both parking activities. She pointed out that officer of the Council who had written the report on the service of the BCN had written in an email to the agent of the Claimant that "vehicles do not need to be left ticking over and running for long periods if they are simply being moved onto the site to park, or are leaving the site." She submits that the harm that the Council was seeking to address was the running of engines in the early hours and that a bus simply leaving the site was not a prohibited activity. She submitted that the Council failed to realise that an engine had to be run not to carry out any required checks but simply because air pressure had to be built up before the vehicle could safely leave. 

  	                                        Issue (ii)                                     

  	20.     This ground flows on from that fifth proposition in that it is submitted that the officer in deciding to authorise the service of the BCN failed to understand that an engine has to be run for enough time to produce sufficient air pressure and the vehicle cannot leave immediately. He believed that the ticking over of the engine occurs because of the need for DVSA checks and not because of the nature of the engine and the vehicle and he failed to consider this material matter in deciding to serve the BCN.

  	                   The Defendant's Submissions:                  

  	21.     Issue (i) Mr Beglan on behalf of the Defendant Council submitted that the BCN does prohibit the Claimant from moving its buses out of the depot before 8am, that was the intention and the prohibition is necessary to secure compliance with Condition 4. He submits that there is no ambiguity in the condition. It deliberately prohibits all commercial and industrial activity on the site outside the permitted hours, except parking. The prohibition is not limited to repair and /or maintenance because if that were so the words "or other industrial or commercial activities" would be otiose. The BCN seeks to remedy harm to amenity caused by engines being left running.

  	22.     He submits that in deciding to serve the Notice:

  	(i)     the Council was drawing a distinction between driving onto site to park and the steps required before a vehicle could lawfully or safely be driven off site;

  	(ii)     the Council considered , for proper planning reasons, that those activities were different;

  	(iii)      the Council intended not to prohibit the first but to prohibit the second;

  	(iv)     that is, on a proper construction, the effect of the Notice; and

  	(v)     in terms of section 187A(5) the Council, was entitled in its judgment to specify the activities in the BCN as activities which the authority considered ought to cease in order to secure compliance with the condition.

  	23.     In response to Ms Thomas' five propositions he submitted as follows.

  	24.     (i) The permission and its conditions must be read as a whole and be given the meaning that a reasonable reader would give them: Carter Commercial Developments v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994. The eiusdem generis principle has not been used in any authority before the court to interpret a planning permission. It is primarily a rule of statutory interpretation. The words "repairs or maintenance" in any event do not describe a genus or category and "industrial or commercial activities" are no more general terms and they have meanings understood in the planning context. Parking of vehicles is an activity expressly exempted from the prohibition and must be seen as a commercial activity as is driving off the site.

  	25.     (ii) The phrase "commercial activities" is wide enough to include when the bus is made ready to make the journey upon which passengers will board.

  	26.     (iii) The condition does not make the planning permission unworkable. The site can be put to use as a coach park/depot subject to condition 4 which was imposed for the proper purpose of protecting the amenities of neighbours. A "benevolent" reading of conditions is one which allows the conditions to be understood without being imprecise or unreasonable.

  	27.     (iv) The permission and conditions are clear on their face and not ambiguous.

  	28.     (v) Reliance on emails and reports is not therefore appropriate.

  	29.     Issue (ii) The Defendant was aware that buses and coaches have a warm up time. The Notice was designed to prevent the noise of running engines in the prohibited hours and that is what it lawfully achieves.

  	                   Discussion and conclusions                  

  	30.     Issue (i) Planning permissions and their conditions are public documents available on the planning register, the public record of planning decisions which the planning authority is required by statute to keep (see section 69 of the 1990 Act and see Shepway). So it is important that a permission and its conditions must 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 except in particular circumstances which do not arise here. See Carter Commercial Developments and Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262.

  	31.     In my judgment the words " no repairs or maintenance of vehicles or other industrial or commercial activities" when read by a reasonable reader are 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 on this site by the planning permission. That is so whether the engine is started to carry out necessary checks or simply to prepare the vehicle to depart. It is a "commercial activity" carried out as part of running the business and is therefore prohibited outside the hours specified by condition 4. The potential for noise disturbance to neighbours from the operation of this commercial concern at anti-social hours was a consideration that the Defendant Council had in mind when it imposed condition 4. It sought to address that concern by prohibiting a broad range of activities on site including any commercial activities outside the specified hours. 

  	32.     Industrial or commercial activities were expressly prohibited and those words must be given the meaning a reasonable reader would give them. In my judgment they include the activity of starting a bus or coach in readiness for its departure from the depot.

  	33.     In my judgment it is not appropriate to employ the eiusdem generis principle here. It is primarily relevant to statutory interpretation. A Parliamentary draftsman will be aware of it and its implications but a planning officer drafting a planning permission and its conditions may not and a member of the public accessing the planning register may not. No case has been cited to the court where it has been used in the interpretation of a planning permission. In my judgment given the nature and function of planning permissions and their conditions it would not be appropriate to do so. The documents are to be read by a reasonable reader not one versed in the niceties of statutory interpretation. Repairs, maintenance, industrial activities and commercial activities are all ordinary words in the English language which can and should be given their ordinary and natural meanings. I do not accept that a reasonable reader would give commercial activities the limited reading that Ms Thomas invites the court to give.

  	34.     The ordinary and natural reading of the words does not make the planning permission unworkable. A bus depot may still be run from this site but buses and coaches cannot have their engines started before 8 am. If that produces commercial difficulties for the Claimant it can make an application under section 73 of the 1990 Act for a variation of the nature of the activities permitted outside the specified hours. The Defendant can then consider any such arguments on the commercial difficulties and can consider the planning merits of any variation sought including the potential impact on residential amenities. But the planning permission and condition 4 now prohibit the starting of bus and coach engines as part of the business before 8 am. A benevolent reading is still one that gives the words the meaning a reasonable reader would give them and one that construes the conditions in a way that makes them enforceable against the planning mischief they are aimed at: see 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. Reading Condition 4 as I have means it is enforceable.

  	35.     Condition 4 must be read as whole and the absence of the words " or commercial" in the reason for the condition does not mean the prohibition on commercial activities outside the permitted hours in the body of the condition is deprived of its effect. I do not accept there is any ambiguity in the words "industrial or commercial activities" to justify looking at other documents which would not be available to a member of the public looking at the planning register. I do not accept that the exemption of "parking" means that running the engine of a bus or coach on site in readiness for its departure to pick up paying passengers is not a commercial activity caught by the prohibition. They are both commercial activities but parking is  expressly exempted from the prohibition whilst the commercial activity of running the engine in preparation to leaving the site is prohibited outside the permitted hours.

  	36.     Issue (ii): The officer's task in deciding whether the Defendant should serve the BCN was to decide whether Condition 4 was being complied with and if it was not to specify what activities ought to cease to secure compliance with the condition. That is what he did. The Defendant was aware that buses and coaches have a "warm up" time. What the BCN seeks to do is to prohibit the running of engines for whatever reason during the prohibited hours and in my judgment it lawfully achieves that purpose.

  	37.     This claim for judicial review fails therefore in relation to both issues and is dismissed.

  	38.     I invite Counsel to agree a draft order including provision as to costs. If such an order cannot be agreed then I will receive written submission on any matters still in issue.