The disputed condition to a permission granted in 2000 stated that the helicopter business should only operate between 7am to 9pm each day, save in an emergency. The council alleged that the condition was regularly breached by flights outside the permitted hours The appellants claimed that they had never complied with the condition, nor ever intended to, so the condition had been continuously breached for more than ten years and they were exempt from enforcement action by virtue of section 171B(3) of the Town and Country Planning Act 1990.
The inspector considered the appellants’ logbook evidence in detail and referred to case law regarding the issue of intent and continuous breaches in Basingstoke and Deane Borough Council v Secretary of State for Communities and Local Government and Stockdale . He accepted that the first breach of the condition had taken place more than ten years before the council served the notice in 2019. However, he considered that breaches in the early years of the business were few and far between and did not reach double figures until 2011.
More importantly, he found a period of six months between 2010 and 2011 during which no breaches of the condition occurred. As a matter of fact and degree, based on the evidence submitted on the number of breaches and their timing and the lack of any previous evidence of intent on the appellants’ part, he concluded that the condition had not been continuously breached.
The inspector was satisfied that the existing condition provided an appropriate balance between business interests and residential occupiers’ amenities. He also held that the harm that would arise from applying a more relaxed condition suggested by the appellants to allow some flights after 9pm each day was not justified, even by the economic interests of a business struggling following the coronavirus pandemic. He upheld the council’s enforcement notice and refused deemed permission.
Inspector: Peter Willows; Written representations