Property Law UK

Interpretation

No "ejusdem generis" rule

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

Summary

The Court of Appeal held that there had been a breach of planning conditions and that the statutory presumption “ejusdem generis” did not apply to the interpretation of planning conditions.

Facts

A Council granted planning permission for a bus company to use a site as a bus depot subject to a condition prohibiting the "repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches and other vehicles)" outside specified hours. The Council later issued a breach of condition notice requiring the bus company to cease the running of engines of coaches and buses outside the specified hours. The bus company applied for a judicial review of that notice. The High Court ruled in favour of the Council. The bus company appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal and found for the Council. One argument of the bus company was that the correct interpretation of the planning condition was that it did not prohibit the activities referred to in the breach of condition notice. It argued that the "ejusdem generis" rule of statutory interpretation applied to the wording of the prohibition. Lindblom J referred to this as, “classically described in section 379 of "Bennion on Statutory Interpretation" (6th edition) as "a principle of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character"”.

On this argument, for example, the prohibition on "repairs or maintenance of vehicles or other industrial or commercial activities" would apply only industrial or commercial activities that were similar to repairing or maintaining vehicles. On this point Lindblom J said:

“I do not accept that the "ejusdem generis" principle has any place in the interpretation of planning conditions. The suggestion that it does is novel. But in any event I see no need to resort to it here. What we have to do is to construe the words the council used in the condition to give it a sensible meaning as a restriction on a use approved by a planning permission.”The Court rejected the submissions of the bus company and held that the deputy judge's approach to construing the condition was right, and his interpretation of it correct.

Comment

Like many other documents in the planning system (officer reports, inspector decision letters etc) the courts are intolerant of any interpretation of a planning condition as if it were a statute.

To interpret a condition the court will look at its words and also its purpose: in this case to ensure that the amenity of neighbouring residents was not harmed by noise caused by industrial or commercial activities whether that be repairs or anything else. Although local planning authorities should not get complacent, it does mean that if planning control is exercised over activity which is contrary to the purpose of the condition, such action will probably be upheld even if the condition is not drafted quite as well as it should be.

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