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1.1 The application site is the curtilage of Field 224502, The Curragh, Ballaugh. There is an access off the highway which is an opening in the existing roadside boundary, this leads on to a fenced off field which is accessed via a timber field gate. There is a letter box and property name attached to the gate and posts. There are two main timber structures on site which are single storey, the two structures are not physically connected. One of the structures measures approximately 3m x 5.5m and the other approximately 3.8m x 5.9m. The smaller of the two buildings has a timber lean-to adjoining the rear elevation, beyond the buildings there is a small shed, and beyond this there is a fenced off section of the field which has a number of trees and a pond.
2.1 The applicant is applying for a Certificate of Lawfulness seeking to demonstrate that the land which forms the site known as "The Callag" has been used for residential use, has become lawful over the passage of time.
3.1 In accordance with the provisions of Schedule 4, Part 1, paragraph 3 of the Town and Country Planning Act 1999 ("the Act"), a development carried out in breach of planning control shall become immune from enforcement action after a certain period of time, provided that formal enforcement action has not already been taken. The relevant time periods are set out below:
a) in respect of a breach of planning control consisting of the carrying out without planning approval of building, engineering, mining or other operations in, on, over or under land, after the end of the period of 4 years beginning with the date on which the operations were substantially completed; b) in respect of a breach of planning control consisting of the change of use of any building to use as a single dwelling house, after the end of the period of 4 years beginning with the date of the breach; c) in respect of any other breach of planning control, after the end of the period of 10 years beginning with the date of the breach.
3.2 Section 24 of the Act makes provision for the submission and issuing of a Certificate of Lawfulness to establish the lawfulness of a breach of planning control.
3.3 An application for a Certificate of Lawfulness is determined on the basis of information and evidence before it. Unlike an application for planning approval, it is not concerned with land-use planning considerations or the impacts of the development upon the public realm.
3.4 The principal test is whether, on the balance of probabilities, the breach of planning control has occurred continuously for the given period. The burden of proof rests with the applicant and their evidence must be both precise and unambiguous. If the Planning Authority has no evidence of its own to contradict that provided by the applicant, then provided that the applicant's evidence is sufficiently precise and unambiguous, a Certificate of Lawfulness may be issued. It is not necessary for the Planning Authority to corroborate the applicant's evidence.
4.1 The applicant's evidence submitted 21st January 2014
Invoice from Manx Electricity Authority (Dated 28/11/11) Invoice from Manx Electricity Authority (Dated 04/08/11) Various Photographs taken at the site
The applicant's evidence submitted 10th November 2014 Affidavits from the applicant, her husband and various friends and family members Letter from Mr Foster (Dated 30th June 2014) Invoice from Island Landscape (Dated 11/07/13) Invoice from Department of Agriculture, Fisheries and Forestry (Dated 19/04/96) Hand written note to Saw Mill for delivery of timber (Dated 18/04/96) Invoice from Motors and Mowers (Dated 06/08/05) Invoice from Isle of Man Water Authority (Dated 17/06/97) Invoice from EWBANK Metal Products Ltd (Dated 09/08/05) Invoice from Sadler Agricultural Supplies (Dated June 2007) Receipt from Pascoes Ltd (Dated 06/07/11) Invoice from Ayre Mowers Ltd (Dated 20/07/11) Email from LC Solar Ltd (Dated 22/06/05) Email from Leading Biz (Dated 16/06/05) Letter from Avonline (Dated 31st July 2014) Electrical Installation Certificate (Dated December 2010) Letter from the Manx Utilities Authority (Dated 8th July 2014) Invoice from the Manx Electricity Authority (Dated 03/09/13) Invoice from the Manx Electricity Authority (Dated 04/06/13) Invoice from the Manx Electricity Authority (Dated 28/02/13) Invoice from the Manx Electricity Authority (Dated 29/11/12) Invoice from the Manx Electricity Authority (Dated 10/09/12) Invoice from the Manx Electricity Authority (Dated 06/06/12) Invoice from the Manx Electricity Authority (Dated 28/02/12) Invoice from the Manx Electricity Authority (Dated 28/11/11) Invoice from the Manx Electricity Authority (Dated 04/08/11) Receipt from The Treasury (Dated 26/07/13) Letter from HSBC (Dated 28/04/13) Letter from Pension Annuity UK (Dated 13/12/12) Letter from HSBC Bank (Dated 6th September 2012) Invoice from Tarpaflex Ltd (Dated 01/07/12) Waltons Television Receipt (Dated 10/12/11) Receipt Northern Building Supply (Dated 02/09/11) Isle of Man Vehicle Registration Certificate (Dated 02/09/11) Letter from TV Licensing (Dated 1st August 2011) Invoice from Wolseley (Dated 18th July 2011) Sales Receipt Waltons Digital World (Dated 6th July 2011) Email from TV Licensing (Dated 3rd November 2010) Invoice from Dave Perry Electrical Contractors Ltd (Dated 12/11/10) Letter from Dave Perry Electrical Contractors Ltd (Dated 05/10/10) Email from Isle of Man Post Office (Dated 21st July 2010) Various photographs and USB containing two videos and digital photographs
5.1 The applicant has provided a sworn Affidavit which states that she purchased the parcel of land which forms the application site in 1995. Following the purchase of the land she and her husband originally used the site to grow vegetables. In 1996 the applicant arranged for the construction of a wooden building on the property, put some beds in and had a camping stove for cooking, gas and oil lamps for lighting. A compost toilet was also installed. In 1997 a water supply was installed. At this time overnight stays were occasional as they owned a home in Regaby.
5.2 In 2000 they installed a wood burning stove. The applicant's daughter lived at the property on a day to day basis during the summer of 2000 and in 2002 a friend of the applicant's daughter lived there while working at the Sulby Glen Hotel. In 2001 the applicant sold the house in Regaby and bought a house on Farrant Street in Douglas.
5.3 In 2003 they arranged for the erection of a larger wooden building at the property for more living space, creating a separate kitchen area and an additional sleeping area.
5.4 By early 2004 the applicant had retired from her full-time job and was staying at the property for increased lengths of time. The applicant's residential use of the property increased during 2004 and the applicant stayed there during the spring and summer months. In 2005 a larger woodburning stove was supplied to the larger building making it more habitable during the autumn and winter months. In 2005 they installed a solar panel to replace the gas and oil lamps.
5.5 In 2006 the applicant sold the house in Farrant Street, Douglas, the parcel of land was the only property they owned on the Island. In the same year they installed a petrol powered generator to produce electricity to supplement the solar panel. Following the sale of Farrant Street the applicant spent time in a house they purchased in Spain, while her husband remained on the Island, although the applicant lived at the application site during the late spring to late summer of 2006.
5.6 The applicant's husband continued living at the property in 2007 and 2008 while working on the Island. During that period the applicant spent time at their house in Spain and at the application site. The applicant's husband stopped working in 2008 and spent the winter months of 2008/2009 in Spain before returning to the Isle of Man in the spring of 2009 and living at the application site.
5.7 In 2009 a gas water heater was fitted and a new kitchen was installed (in the larger of the buildings) in the room previously used as a bedroom.
5.8 In October 2010 a bath and sink were fitted in the washroom. Also in October 2010 an electricity supply was installed.
5.9 Since the applicant's husband stopped work in the autumn of 2008, they have spent time off the Island, in Spain for some of the year. The applicant has not kept records of dates but believes it amounts to approximately seven months of the year spent at the application site and five months in Spain. The time spent in Spain has tended to be in the winter months, although it does not follow a fixed seasonal pattern. They have over the years living at the property made it habitable by installing effective heating for winter. The applicant recalls that they were at the property in November and December 2011 and they spent Christmas there in 2013.
5.10 The applicant indicates that she and her husband have used the property as a single dwellinghouse for residential occupation since at least January 2006. The applicant indicates that it has been used continuously for their residential purposes since then; they do indicate that there were times when either her or her husband or both of them were off Island.
5.11 The applicant indicates that during the period that they have spent off Island there has never been any change of use or intention to abandon the residential use of the property. The property has continuously remained fully equipped for habitation and kept as a residential home.
5.12 They also state that there residential occupation of the property has always been open without any secrecy or intention to conceal it. They understand that complaints as to the residential use of the property were made to Ballaugh Commissioners and the planning authority prior to 2010.
PLANNING HISTORY 6.1 There are no previous planning applications for the site. REPRESENTATIONS 7.1 Ballaugh Parish Commissioners, in a letter received 27th February 2014, comment on the application. In summary:
7.2 Manx National Heritage, in a letter received 28th February 2014, comment on the application. In summary:
7.3 Manx National Heritage, in a letter received 17th February 2014, comment on the application. In summary:
7.4 The owner/occupier of Greenwood, Ballaugh Curraghs, in a letter received 6th February 2014, comment on the application. In summary:
7.5 Manx Wildlife Trust, in a letter received 10th February 2014, comment on the application. In summary:
7.6 Manx Wildlife Trust, in a letter received 27th November 2014, comment on the application. They have submitted a copy of a letter sent to the applicant clarifying a point made in their previous submission. They confirm that they spoke with the applicant on the telephone prior to a site visit carried out by another officer. 7.7 The owner/occupier of Croit ny Gurrin, Old Windmill Road, The Curraghs (Gelling), in a letter received 10th February 2014, comment on the application. In summary: o Corresponded with the Commissioners and Planning in 2013, 2012 and 2011. o Works were carried out at the top end of the field in November 2010 but slowness to respond resulted in the groundworks being covered over. Mrs Speers has omitted this from her timeline. o In conclusion they are saddened by the seemingly orchestrated evidence supporting the application. Applying for a Certificate of Lawfulness while having ignored, for eighteen years, any of her legal obligations and the planning procedures relating to the Islands planning policies. 7.8 The owner/occupier of Croit ny Gurrin, The Curragh (Gelling), in a letter received 25th February 2014, comments on the application. In summary: o The structures are in breach of Building Regulations. o The applicant has gone to great lengths to provide evidence of their residential use but other uses require these services (electric, water etc) 7.9 The owner/occupier of Croit ny Gurrin, The Curragh (Gelling), in a letter received 2nd December 2014, comment on the application. In summary: o The site has been used for recreational use, camping and weekend stays. It has never been in full time occupancy. o The applicant owned two properties on the Island and chose to sell them in 2001 and 2006. o They challenge the statement made by the applicant "open, without any secrecy" o They feel that the Affidavit is untrue as the applicant has not lived there continuously since the land was purchased in 1995. 7.10 The owner/occupier of Croit ny Gurrin, The Curragh (Gelling), in a letter received 17th February 2014, comment on the application. In summary: o The most recent letter covers concerns raised in previous correspondence. 7.11 Mr Alfred Cannan (MHK), in a letter received 19th February 2014, commented on the application. In summary: o Surprised to find a shed being used for residential purposes o He and his constituents would find it most inappropriate were the application for a Certificate of Lawfulness to succeed. 7.12 The owner/occupier of Croit ny Gurrin, Old Windmill Road, The Curragh (Ellis), in a letter received 26th February 2014, comment on the application. In summary: o Disregard to Planning and Building Regulations 7.13 The owner/occupier of Croit ny Gurrin, Old Windmill Road, The Curragh (Ellis), in a letter received 18th December 2014, comments on the application. In summary: o The most recent letter covers concerns raised in previous correspondence. 7.14 The owner/occupier of 33 Ballaquark, Douglas, in a letter received 28th February 2014, comments on the application. In summary: o The letter only comments on the merits of the application.
7.15 A number of the representations contained comments regarding the merits of the application. Given that the application is based on facts it is not appropriate to include opinions on the merits of the development.
8.1 The Enforcement Officer has visited the application site on a number of occasions. There was a complaint received by the Department on the 26th October 2010, the nature of the complaint was that construction works had been carried out on site. The Enforcement Officer visited the site 29th October 2010 and 12th November 2010, there are photographs on the file which show that the two sheds were in situ at that time as well as a number of trees having been planted on the land as well as a pond. There are also photographs inside of the buildings which show a kitchen and woodburner. On the enforcement file there is a letter sent to the applicant which is dated 16th December 2010 to the applicant's address in Spain. It reads as follows:
8.2 "Firstly I do apologise for the delay there has been in writing to you following our meeting on site on the 29th October 2010. However the matter has been referred to the Senior Planner and I have been asked to write to you to confirm the Divisions understanding of the use of the site and any work that has or has not been undertaken.
"I confirm therefore that the Division's understanding is that the site has been used for your own recreational purposes since you acquired it in November 1995, that the sheds have been on site since at least July 2006, that Klargester or similar sewage treatment apparatus has not been installed on the site and the habitable use of the sheds is intermittent and no one lives on site.
"Also that you are aware that the installation of a Klargester or similar sewage treatment apparatus would require Planning and Building Regulations approval and that residential use of the site would also require planning approval.
"Could you let me know in writing if the Division's understanding is correct?" 8.3 A letter was received by the Department on the 24th January 2011 by the applicant which reads: "As requested in your letter dated 16th December 2010 I confirm that the Division's understanding is correct.
"Please can you email me that list you mentioned regarding the permissible (and therefore not requiring planning permission at present) activities and uses of agricultural land?"
8.4 A further complaint was received on the 31st October 2011, correspondence was sent between the applicant and the Department after this time. The latest of these letters was 2nd October 2013 set to the applicant by an Officer of the Department, it reads:
"Further to our meetings on 17th and 18th September at the planning office and your property, I am setting out the planning department's position on your land as promised.
"As you are aware, the planning department has been investigating complaints since 2010 alleging unauthorised works at the property and that you are using the two sheds on the land as residential accommodation. I have been asked to review the complaints.
"I found our recent meetings very helpful and thank you for your cooperation. You confirmed that you bought the land around 1995 with the intention of using it as a place to spend leisure time in the peace and quiet of the countryside. You mentioned that you sometimes
camped there with your children when they were younger. Over time, it seems that you and your family have spent more and more time there. For example, you mentioned that your daughter lived on the site for a few months when she left school. "You confirmed that you do not own or rent another home on the Island and that you spend your time between the property, and with family and friends on and off the Island. I asked you how much time you have spent at the property in the last six months, and you suggested that it might be around half the time although you couldn't be certain. At other times you were either off Island, with family or friends. When we met at your property you showed me the land and the sheds. We went inside the sheds and I saw a living area, kitchen and bathroom in one of the sheds, and a bedroom with washing machine in the other. I don't think there is any doubt from what you have told me and what I have seen that you have been staying and sleeping at the property. "In my view, there has been a material change of the use of the land from its original use as agricultural land to residential occupation. This change of use is classified as "development" by the planning legislation which requires planning approval (and a planning application). Since planning approval has not been sought, the residential use of the land is in breach of planning control which is an offence. "The planning legislation states, however, that if a development has been carried out without planning approval for a continuous period of at least ten years (in the case of the use of the land) or four years (in the case of building works or the use of a building as a dwelling) then it is lawful. I consider that the erection of the sheds and the use of the sheds as a dwelling house fall under the four year rule. "You have told me that you have been living in the sheds on a semi-permanent basis for well in excess of four years. However, we don't have any evidence to this effect and the onus rests with you to provide it. A formal mechanism for you to show that your use of the land is "lawful" is for you to submit an application for a Lawful Development Certificate. In your letter to the planning department of 18th February 2012, you indicated that you would submit such an application, but it was never made. In order to avoid the risk of formal enforcement action against you now, I strongly advise you to submit an application for a Lawful Development Certificate. "This is a serious matter and development, particularly new housing, is very strictly controlled in the countryside in the interests of protecting the high quality of the Isle of Man countryside for its own sake and to ensure that new homes are directed to the right locations where they are accessible to shops, services, jobs and public transport. There is an important matter of principle and precedent; if the planning department were to allow housing everywhere in the countryside, even where its low impact and difficult to see, it would severely undermine the objectives of the planning system. "With the application, you will need to demonstrate that, on the balance of probabilities, the sheds and land have been used for residential purposes (i.e. a place where someone lives) for a continuous period of at least four years. That you might not be living on the land all year around would be taken in account. We discussed the types of evidence that you might provide with a view to demonstrating this year. The evidence must be precise and unambiguous. It might include utility bills, telephone bills; TV licences; rates; registration with a GP and dentist; and registration of your car, all dating back at least four years and throughout the period. You confirmed that you have a post box on the gate and it seems that you use the property to receive all your post. It would also be helpful to have written statements from yourself, your husband, family members, friends and anyone else who knows how the property has been used for at least the last four years. Ideally, these statements should be sworn affidavits prepared by a solicitor. Unlike a planning application, an application
for Lawful Development Certificate is decided on the basis of legal principles and it is highly advisable for you to have someone well versed in planning law, such as an advocate or professional planning agent, to help you put the application together.
"If the lawful use of the land for residential purposes cannot be established, then it is doubtful that planning approval would be granted for you to continue to live at the site, in view of the strict controls on new housing in the countryside. The planning department would then have to decide whether to take formal enforcement action against you which could require you to stop using the land for residential purposes. This emphasises the importance of you making the application for a Lawful Development Certificate and ensuring that the application is as thorough and as well put together as possible. The Lawful Development Certificate application should be submitted to the planning department by no later than Friday 29th November 2013.
"To assist us with our enquiries, I have enclosed a notice under Section 25 of the Town and Country Planning Act 1999, which requires you to answer certain questions about your property and how you use and have used it. It should be noted that there is a formal obligation on you to respond to the questions within the time specified and giving accurate information.
"I am more than happy to discuss any of these issues with you or answer any questions that you might have. I look forward to your continued cooperation on this matter.
"Please note that the advice contained in this letter is at officer level only and does not prejudice any future decision that the department, planning committee or minister may wish to make."
whether the breach is 'change of use to a dwelling house' and occurred more than 4 years ago; or whether it is 'use of the land for residential purposes', and has been used continuously for a period of 10 years or more. 10.2 Under the Town and Country Planning (Permitted Development) Order 2012 a dwelling house "means a building occupied for residential purposes other than a building containing one or more flats, or a flat contained within such a building" 10.3 In determining use as a dwelling house it is appropriate to consider both the physical condition of the premises and the manner in which it is used. The accommodation is split between the two timber structures one of the structures provides a living area, kitchen and bathroom with a bed space in the roof and the other structure has a bed space and washing machine area. 10.4 Both buildings are constructed of timber and are single skin, they are finished with roof tiles, solar panels are installed and this provides heating and lighting to the buildings. The larger of the two buildings has a living area, bathroom and kitchen with a bed space in the roof area. The buildings are basic in appearance and at best appear as two garden sheds. They do not have the appearance of a single dwelling house, there are very limited window openings and when visiting the site the windows were locked up with boards. 10.5 In the letter sent on the 2nd October 2013 the officer of the Department indicated that the use of the buildings should be assessed under the 4 year rule. However, on further consideration given that the accommodation is split between the two buildings, the toilet is in a separate shed, the construction of the buildings, and the fact that it could not meet the recommended requirement of Building Control as a habitable dwelling it is considered that the sheds cannot reasonably be described as a single dwelling house. It is therefore concluded that the breach is a material change of use of land. 10.6 If the buildings do not fall under the definition of a dwelling house then the use of the buildings would be subject to Schedule 4, Part 1, Paragraph 3 of The Town and Country Planning Act 1999 ("The Act") part c) which states: c) in respect of any other breach of planning control, after the end of the period of 10 years beginning with the date of the breach. 10.7 In terms of the use it would appear that this has intensified over time, it would seem that the site was originally used mainly at weekends during the summer up until the applicant sold their home, the site then became the only property owned on the Island and they then split their time between the application site and their property in Spain. 10.8 The applicant states that she purchased the parcel of land on the 13th November 1995, at that time they used the land for the growing of vegetables and started staying in the shed in 1996. At that time they owned a home in Regaby so overnight stays at the property were occasional. In 2000 they installed a wood-burning stove, they had stopped growing crops on the property by 1999. The applicant's daughter lived at the property on a day to day basis during the summer of 2000. In 2002 the friend of her daughter lived at the property while working at the Sulby Glen Hotel. 10.9 It would appear from the evidence submitted that there was intermittent use of the site for overnight stays at weekend from the purchase of the land in 1995 up until 2006 when the applicant sold their property in Farrant Street, Douglas. In 2006 the site became the only property the applicant owned on the Island and their stays at the site became more frequent and were also for longer periods of time. It is considered that the use of the site for residential purposes started in 2006 when the applicant sold their home. It is therefore
considered that the date of the breach started sometime around January 2006 and the use of the property should be assessed from this date.
10.10 Furthermore, the site however has not been used continuously from this date; there have been breaks in the use when the applicant and her husband have spent time in Spain at a property they own. The applicant suggests that the application site is used seven months of the year.
10.11 The accommodation within the structures has become more comfortable over time, it was not until 2010 that an electricity supply was installed and postbox erected and the site registered with the Isle of Man Post Office postcode database. 2010 also saw the installation of a bath and sink in the larger of the two structures. Nevertheless it is still not considered that the structures constitute a single dwelling house.
10.12 Given that the date of the breach is considered to be January 2006 the use of the land for this purpose has not been used continually for a period of 10 years.
12.1 It is considered that the evidence provided does not demonstrate on the balance of probabilities that the land has been used for residential purposes for a continual period of ten years. It is recommended that Certificate of Lawful Use is not permitted.
The Department is not satisfied that the buildings on site constitute a single dwelling house.
The Department does not consider that the land has been used continuously for residential purposes for a period of ten years from 29 January 2004 to 29 January 2014.
| Recommendation | |
|---|---|
| Recommended Decision: | Certificate of lawful use declined. |
| Date of Recommendation: | 6/3/15 |
I confirm that this decision accords with the appropriate Government Circular delegating functions to Director of Planning and Building Control / Head of Development Management/ Senior Planning Officer.
Decision Made: Date: 6/3/15 Determining officer (delete as appropriate) Signed: ______________________________ Signed: ______________________________ Sarah Corlett
Chris Balmer Senior Planning Officer Senior Planning Officer
Signed: ______________________________ Signed: ______________________________ Jennifer Chance
Michael Gallagher Director of Planning and Building Control Head of Development Management
14/00095/LAW Page 12 of 12
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