No second chances

An inspector has issued a certificate of lawfulness for airport parking in west Sussex in a decision which demonstrates that, in planning enforcement, there is rarely a second chance to get things right (DCS Number 400-033-913).

In this case an enforcement notice had been served in 2002. The breach of planning control alleged was ‘the use of land hatched black for airport related parking without planning permission.’ There was a single requirement, namely ‘within 28 days of the date on which this notice takes effect: Remove all airport related vehicles from the land.’ It was common ground that all airport-related vehicles had been removed as required.

The inspector reasoned that the determination of the appeal turned on the interpretation of the notice. Put at its simplest, he said, the question was whether the requirement of the notice set out a step which was required to be carried out once only (the appellant’s position) or whether it imposed a continuing obligation to comply with the notice in perpetuity (the council’s position). 

The inspector took the view that interpretation was quite straightforward. The notice alleged the use of land for airport-related parking, it did not require that use to cease but it did require all airport-related vehicles to be removed within a defined period. To the inspector it seemed perfectly reasonable for the recipient to interpret that as meaning that the notice had been complied with once the airport-related vehicles had been removed. 

In these circumstances, the inspector pointed out, s173(11) of the Act is quite clear. Where a notice could have required an activity to cease but does not do so, when all the requirements have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of s73A in respect of the carrying out of the activities. 

In this case, the inspector reasoned, the council could have explicitly required the alleged use to cease by the inclusion of a requirement to that effect, but did not do so. All the requirements (that is the single one) had been complied with. He concluded, therefore, that planning permission for airport-related parking was treated as having been granted by virtue of s73A of the Act.

Further information about the operation of s173 can be found at section 4.536 of DCP Online.