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17/00912/LAW Page 1 of 3
PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 17/00912/LAW Applicant : Paul Terence Rodgers Proposal : Application to make lawful the use of basement flat as separate dwelling Site Address : Basement Flat 16 Derby Road Douglas Isle Of Man IM2 3ET
Case Officer : Mr Edmond Riley Photo Taken :
Site Visit :
Expected Decision Level : Officer Delegation
Recommendation
Recommended Decision:
Certificate of Lawful Use Approved Date of Recommendation: 10.10.2017 __
Conditions and Notes for Approval
C : Conditions for approval N : Notes attached to conditions
C 1. The information provided demonstrates that on the balance of probability the land as edged in red on the Isle of Man Survey Location Plan (Scale 1:1000), date-stamped as having been received 22nd August 2017, has been in use as a self-contained residential unit for a continuous period in excess of four years from the current date.
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Interested Person Status - Additional Persons
It is recommended that the following Government Departments should not be given Interested Person Status on the basis that although they have made written submissions these do not relate to planning considerations:
Officer’s Report
1.0 THE APPLICATION SITE 1.1 The application site is a parcel of land that includes 16 Derby Road, Douglas, which is an end-terraced building sited to the north of the highway. Within the application site, at the basement level, is a self-contained flat that is the subject of this application. On the floors above this is a self-contained dwelling, apparently in the same ownership as the flat.
2.0 DESCRIPTION OF THE APPLICATION AND EVIDENCE SUBMITTED
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17/00912/LAW Page 2 of 3
2.1 A Certificate of Lawful Use is sought for the use of the self-contained flat as an independent dwelling.
2.2 Copies of Rate Demands have been submitted from both the Local Authority (Douglas Borough Council) and central government.
2.3 The periods covered by the Rate Demands for Douglas Borough Council are as follows:
o 1 April 2012 to 31 March 2013 (relating to the flat and, separately, the house); o 1 April 2013 to 31 March 2014 (relating to the flat); o 1 April 2014 to 31 March 2015 (relating to the flat and, separately, the house); o 1 April 2015 to 31 March 2016 (relating to the flat), and o 1 April 2017 to 31 March 2018 (relating to the flat and, separately, the house).
2.4 Also included is an email from the Income Services Assistant at Douglas Borough Council, who advises that they are unable to issue back-dated Rate Demands, but they can confirm that Rate fees were paid for the basement flat and house for the period 2016/2017.
2.5 The periods covered by the Rate Demands for central government are as follows:
o 2012/13 (two copies relating to the flat); o 2014/15 (relating to the flat and, separately, the house); o 2015/16, and o 2017/18 (two relating to the flat and, separately, one to the house).
2.6 The Rate Demands all carry the address 'Basement Flat, 16 Derby Road,
3.0 PLANNING HISTORY 3.1 The site has not been the subject of any applications considered to be of material relevance of the assessment of this application seeking a Certificate of Lawful Development.
4.0 REPRESENTATIONS 4.1 Douglas Borough Council offered no objection to the application in comments dated 10th September 2017.
4.2 Manx Utilities offered no objection to the application subject to the imposition of a planning condition requiring that the proposed basement flat be connected to the public sewer in a manner acceptable to them. They note that if the application is made lawful, MU will conduct a CCTV survey of the connection at the developer's expense. They also note that a communication fee will be payable in accordance with the Sewerage Act 1999. This letter is dated 11th September 2017.
5.0 ASSESSMENT 5.1 This is an application seeking a Certificate of Lawful Use, and therefore it is not a matter of considering the planning merits of the scheme but rather a legal determination based on the facts to establish whether the stated use is established and lawful by period of time and therefore beyond the scope of enforcement action. The test of the evidence is "on the balance of probabilities" rather than the stricter criminal test of "beyond reasonable doubt". In this instance, the applicant seeks to rely on the fact that the basement flat has been lived in for a period in excess of four years to establish that the development can be considered lawful, as set out in Part 4, Section 24(2) of the Town and Country Planning Act 1999.
5.2 There is provision within the Act that breaches of planning control relating to residential use are subject to a 'four year rule', rather than the normal ten years applied to uses.
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17/00912/LAW Page 3 of 3
5.3 The application has been submitted with various Rate Demands, none of which provide a continuous four-year period and in some cases appear to double up on individual years. The problematic year in this respect is that running between 1st April 2016 and 31st March 2017, for which no Rate Demands have been provided. There is an email from Douglas Borough Council, which does cover this period, but this is not in the form of a sworn affidavit.
5.4 The evidence is therefore incomplete. Even without the submitted email, though, it is considered unlikely that the flat would fall out of use (or availability for that use) for a single year, with it also being noted that the Rate Demands for the years immediately preceding and succeeding being addressed to the same owners. While it is not beyond the realms of possibility that the flat may have been sold to another party before returning to its previous owners during that year, this does seem a highly unlikely turn of events.
5.5 On the basis of the evidence submitted and on the balance of probabilities, then, it does seem as if the flat has been in continuous and self-contained use from at least 1st April 2012.
6.0 CONCLUSION 6.1 The evidence submitted suggests that, on the balance of probabilities, the unit of accommodation has been used unlawfully for a period in excess of four years.
6.2 In view of the above conclusion, it is recommended that a Certificate of Lawfulness be issued to confirm that no enforcement action can or should be taken in respect of the use of Basement Flat, 16 Derby Square, Douglas as a self-contained residential unit. __
I can confirm that this decision has been made by the Head of Development Management in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation.
Decision Made : Certificate of Lawful Use Approved
Date : 12.10.2017 Determining officer
Signed : S BUTLER
Stephen Butler
Head of Development Management
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