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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> XPL Ltd, R (On the Application Of) v Harlow Council [2016] EWCA Civ 378 (15 April 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/378.html Cite as: [2016] EWCA Civ 378 |
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ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR RHODRI PRICE LEWIS Q.C.
Strand, London, WC2A 2LL |
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B e f o r e :
Lady Justice King
and
Lord Justice Lindblom
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R. (on the application of XPL Ltd.) |
Appellant |
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- and - |
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Harlow Council |
Respondent |
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Mr Wayne Beglan (instructed by Holmes & Hills LLP) for the Respondent
Hearing date: 10 February 2016
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Crown Copyright ©
Lord Justice Lindblom:
Introduction
The issues in the appeal
XPL and its depot
"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."
She acknowledged that "the proposed use, with its associated comings and goings of coaches and drivers' vehicles, would result in a higher level of activity on the site than present, given that [it] is currently vacant". But in her view the proposed use would not be "significantly materially different, in terms of noise and disturbance, from that associated with a general industrial (B2) use, such as the extant permission for a Food Production Factory". The site was on a business park, where such "employment uses are expected to be located". The "operations likely to be carried out from any future building associated with the coach depot, such as repairs, servicing, etc. would fall within the type of operations generally carried out on a motor repair/service site, which falls within a B2 use class". She noted the "views of the residents relating to hours of operations of the use", and therefore suggested that if planning permission were 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".
Condition 4
"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."
Section 187A of the 1990 Act
"(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.
(5) A breach of condition notice shall specify the steps which the authority consider ought to be taken, or the activities which the authority consider ought to cease, to secure compliance with the conditions specified in the notice.
(9) If the person responsible is in breach of the notice he shall be guilty of an offence.
."
The breach of condition notice
"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 when the vehicles are being moved onto the site to park) outside the permitted hours specified within condition 4. This includes the running of engines in association 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."
The period for compliance was 28 days, beginning on the date on which the notice was served.
"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 the 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."
Ms Fitzgerald's letter repeated Mr Gatland's previous comments about checks being undertaken on vehicles while their engines were running.
Mr Keir's evidence
What does condition 4 mean?
"When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 [of the Electricity Act 1989] consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent."
In his judgment Lord Carnwath said this, at paragraph 66:
" I do not think it is right to regard the process of interpreting a planning permission as differing materially from that appropriate to other legal documents. As has been seen, that was not how it was regarded by Lord Denning in the Fawcett case [1961] [A.C. 636]. Any such document of course must be interpreted in its particular legal and factual context. One aspect of that context is that a planning permission is a public document which may be relied on by parties unrelated to those originally involved. "
Is the breach of condition notice lawful?
Conclusion
Lady Justice King
Lord Justice Jackson