The Queen (on the application of XPL Ltd) v Harlow Council
| Jurisdiction | England & Wales |
| Judge | Rhodri Price Lewis |
| Judgment Date | 20 November 2014 |
| Neutral Citation | [2014] EWHC 3860 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 November 2014 |
| Docket Number | Case No: CO/3289/2014 |
[2014] EWHC 3860 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rhodri Price Lewis QC
(sitting as a Deputy High Court Judge)
Case No: CO/3289/2014
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
Rhodri Price Lewis QC:
Introduction
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."
The planning permission was granted on the 6 th 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 ."
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."
The Council served the breach of condition notice ("BCN") the subject of this challenge on the 3 rd 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.
The Claimants issued the claim form seeking judicial review of the decision to serve the BCN on the 15 th July 2014. Mr Justice Lewis granted permission to apply for judicial review on the papers on the 18 th 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
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.
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."
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 18 th 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.
A BCN was first served on the 10 th 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 3 rd 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...
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