Planning Conditions

April 19th, 2016 by James Goudie KC

Ejusdem generis has no place in the interpretation of planning conditions, the Court of Appeal has held in R (XPL Ltd) v Harlow Council [2016] EWCA Civ 378, a Judgment on 15 April 2016 on appeal from a first instance decision on 28 November 2014 with respect to a breach of condition notice served by the Council on 3 June 2014.

Lindblom LJ reiterated the principles at paragraphs 16 and 17. The general rule relating to the interpretation of a planning permission that is clear, unambiguous and valid on its face, is that regard may only be had to the planning permission itself, including the conditions, if any, imposed upon it and the reasons given for those conditions in the decision notice itself.  The planning permission and its conditions must be construed as a whole, as a “reasonable reader” would. If there is ambiguity in the wording of the permission, one can look at extrinsic material, including the application, to resolve it. There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission.  It is also relevant to the process of interpretation that a failure to comply with a condition in a public law consent may give rise to criminal liability.

The Court of Appeal found that the planning condition in the Harlow case satisfied the three conditions for validity: relevance to planning, a reasonable relationship to the development permitted, and reasonableness in the sense of its not being perverse. Lindblom LJ said, at paragraph 27, that in interpreting it he did not accept that the “ejusdem generis” principle “has any place” in the interpretation of planning conditions.  He described the suggestion that it did as “novel”.  In any event he saw no need to resort to it.

At paragraph 30 he added:-

“… there is no ambiguity either in the condition itself or in the condition and its reason read together. It follows that there is no need to go in search of extraneous material … as an aid to interpretation.  Conditions and their reasons should be interpreted, if they can be, in a benevolent way, and not in a search for inconsistency or lack of precision …”

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