R (XPL Ltd) v Harlow Council

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The decision to serve a breach of condition notice was judicially reviewed in this case. After hearing arguments concerning the interpretation of the conditions attached to the planning permission, the High Court refused the application and confirmed that the eiusdem generis rule did not apply to the interpretation of planning conditions.

XPL Ltd operated a bus and coach business from their site in Harlow. The planning permission restricted this use, with no “repairs or maintenance of vehicles or other industrial or commercial activities” being permitted outside specified hours.

After noise complaints from local residents, Harlow Council served a breach of condition notice on XPL Ltd requiring them to cease the running of engines at the site outside of these hours.

XPL Ltd sought to judicially review the decision to serve this notice, on the basis that the running of the engines was not prohibited by the condition above. They argued the eiusdem generis rule applied, meaning “other industrial or commercial activities” was to be interpreted in context with the words preceding it. Their argument was therefore that only industrial or commercial activities relating to repair and maintenance would be covered by the condition.

It was held that the wording of the condition was wide enough to cover the running of an engine to prepare the vehicle for its use. It was not appropriate to apply the eiusdem generis principle to planning permissions, which were instead to be read as by the reasonable reader. To apply this principle would, as the defendant pointed out, render the words “or other industrial or commercial activities” pointless, which could not be how a reasonable reader would interpret the condition.

The starting of the engines was a commercial activity connected with the running of the business, so it did not matter whether this was only done to complete necessary checks, or to prepare the vehicle to depart.

They were therefore not allowed to run the engines outside of the set hours, if this caused commercial problems for XPL Ltd, the court stated they would have to apply to vary the conditions under s73.

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