161598

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PLANNING OFFICER REPORT AND RECOMMENDATIONS

Application No. : 21/00103/LAW Applicant : Mr Steven Kenneth Beevers Proposal : Certificate of Lawful Use for removal of an agricultural occupancy condition Site Address : New Bungalow Cooil Roi Farm Barroose Road Baldrine Isle Of Man IM4 6AP

Planning Officer: Mr Nick Salt Photo Taken :

Site Visit : Expected Decision Level : Officer Delegation

Recommendation

Recommended Decision:

Certificate of Lawful Use/Devel Approved Date of Recommendation: 26.02.2021 __

Conditions and Notes for Approval

C : Conditions for approval N : Notes attached to conditions

C 1. On the balance of probabilities, the evidence sufficiently demonstrates that the property has been occupied by someone other than someone "whose employment or latest employment is or was employment in agriculture on the Island and also including dependents of such person as aforesaid" for over ten years and as such, the Department may not issue an enforcement notice due to the provisions of Town and Country Planning Act 1999 Schedule 4 Part 1 paragraph 3(a) and it is recommended that a Certificate of Lawful Development is granted.

Plans/Drawings/Information;

This decision relates to the information date stamped as having been received 31.12.20

__

Interested Person Status - Additional Persons

N/A __

Officer’s Report

1.0 SITE DESCRIPTION

1.1 New Bungalow is a modestly scaled bungalow located on the wider agricultural site of Cooil Roi Farm, off Barroose Road near Baldrine. The site includes approximately 90 acres of

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land. The bungalow sits to the southeast of the cluster of farm buildings and a larger dwelling which is under separate ownership and does not form part of the current land holding. Access is shared between all of these buildings (including the bungalow) from Barroose Road.

1.2 The bungalow has 4 bedrooms and includes a double garage. The applicant notes that the dwelling is in a poor state of repair at present, needing a new roof among other repairs. It is currently unoccupied.

2.0 THE PROPOSAL AND EVIDENCE SUBMITTED

2.1 A Certificate of Lawful Use is sought for the use of the New Bungalow, Cooil Roi Farm as a non-agricultural dwelling. This is not an application for planning permission but seeks to demonstrate that the use of the building is lawful by virtue of being used for this purpose for over 10 years.

2.2 The application has been submitted with the following evidence in support:

o Affidavit from the current owners of the property, noting the following:

The current owners acquired the property in 2010;

Previously, it was occupied by their grandmother, and both grandparents prior to this;

The Owners, their parents and their grandparents (previous occupants) did not hold any agricultural employment at Cooil Roi Farm;

The previous occupants moved to the Isle of Man for retirement, having been involved in non-agricultural employment in England;

The current owners are not, and have never been , involved in any agricultural employment;

The last occupant of the dwelling (owners grandmother) died in December 2011, the property has not been occupied since;

The property has been marketed with a local estate agency since July 2012 continuously until present.

o Planning statement from the applicant noting the history of the site, the planning approval under which it was built, their interest in the property and the past marketing attempts over the last 8 years. o A copy of marketing material from Deanwood Estate Agency advertising the bungalow for sale with 90 acres of land.

3.0 RELEVANT POLICIES AND GUIDANCE

3.1 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".

3.2 While the onus of proof is on the applicant it is good practice to review the information available to the planning department to either corroborate or contradict the evidence. Best practice indicates that a certificate should not be refused because the applicant has failed to discharge the stricter, criminal burden of proof, 'namely beyond reasonable doubt'. Generally if there is no evidence from the information available to the department, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence, and any other evidence, is sufficiently precise to justify the grant of a certificate 'on the balance of probability'.

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3.3 The effect of a Certificate of Lawfulness is similar to the granting of planning permission, however conditions cannot be attached to a certificate so it is important to be specific when describing the lawful use.

4.0 PLANNING, ENFORCEMENT HISTORY AND OTHER RECORDS

PLANNING RECORDS

4.1 Previous planning applications;

85/00909/B - Erection of dwelling with double garage, Part of Field No. 2676, Cooil Roi

Farm, Baldrine, Lonan. Approved.

5.0 OTHER REPRESENTATIONS

5.1 No representations were received at the time of the writing of this report.

6.0 ASSESSMENT/CONSIDERATION

6.1 In this instance, the applicant seeks to rely on the fact that the premises in question has not used as an agricultural workers dwelling for in excess of the last 10 years (prior to the application in December 2020) 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. Consideration must only be given to the evidence and not to the perceived planning merits.

6.2 The planning history relevant to this bungalow is scant with the last application being in 1985 for the erection of the dwelling itself. Planning approval was granted for the dwelling, subject to a condition that: "The occupation of the proposed dwelling must be limited to person whose employment or latest employment is or was employment in agriculture on the Island and also including dependents of such person as aforesaid and such tenancy must also be subject at all times to enquiry and approval by the Committee."

6.3 The main evidence supplied by the applicant is a notarised sworn affidavit from the current owners who have owned the property since 11 May 2010 by way of inheritance from their grandfather. They state that the bungalow was occupied continuously from its construction until December 2011 by family members who retired to live on the Isle of Man and has no employment in agriculture prior to or following their retirement. Since then, the building has been vacant. A planning statement has also been submitted by the applicant reiterating this and noting the recent attempts to market the property.

6.4 It is the responsibility of the applicant to provide sufficient information to demonstrate that a use (in this case as a dwelling) has continued at the same level of intensity and for the same purpose for a period in excess of ten consecutive years. As the building has not been occupied since December 2011, it is necessary to prove that the building was occupied as a dwelling by persons not in agricultural employment, for a consecutive ten years prior to this. In effect, that the building was occupied from December 2001 until December 2011 for this purpose.

6.5 While the onus of proof is firmly on the applicant and the relevant test is the balance of probabilities, unless there is any other evidence available to the Department which contradicts or undermines the applicant's version of events then a refusal cannot be justified.

6.6 No other information supporting the applicant's claims has been provided. Similarly, no information contrary to the sworn affidavit has been identified by the planning authority.

6.7 Generally if there is no evidence from the information available to the Department, or from others, to contradict or otherwise make the applicant's version of events less than probable,

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there is no good reason to refuse the application, provided the applicant's evidence, and any other evidence, is sufficient to justify the grant of a certificate 'on the balance of probability'. On the balance of probabilities and as there is no other evidence available to the Department which contradicts or undermines the applicant's version of events, the Department is satisfied that the property was last occupied as a dwelling, and not as an agricultural workers dwelling, for a period of not less than 10 years.

6.8 The sworn affidavit states that the bungalow was occupied by persons who were not employed in agriculture on the Isle of Man at any time, from its construction in the late 1980's until occupancy ceased in December 2011. It is therefore concluded that, on the balance of probabilities and in the absence of any information disputing the fact, the bungalow has been occupied by a person/persons with no employment or previous employment in agriculture on the Island for a period of 10 years or more.

7.0 CONCLUSION

7.1 On the balance of probabilities, the evidence sufficiently demonstrates that the property has been occupied by someone other than someone "whose employment or latest employment is or was employment in agriculture on the Island and also including dependents of such person as aforesaid" for over ten years and as such, the Department may not issue an enforcement notice due to the provisions of Town and Country Planning Act 1999 Schedule 4 Part 1 paragraph 3(a) and it is recommended that a Certificate of Lawful Development is granted.

8.0 RECOMMENDATION

8.1 It is recommended that the application be approved subject to the following wording of the Certificate of Lawfulness for the existing use of the property as a dwelling not occupied by someone employed or who was last employed in agriculture on the Island.

9.0 INTEREST PARTY STATUS

9.1 As a CLU this is not required to be assessed. __

I can confirm that this decision has been made by a Principal Planner in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation and that in making this decision the Officer has agreed the recommendation in relation to who should be afforded Interested Person Status.

Decision Made : Certificate of Lawful Use/Devel Approved

Date: 26.02.2021

Determining officer Signed : A MORGAN Abigail Morgan

Principal Planner

Customer note

This copy of the officer report reflects the content of the file copy and has been produced in this form for the benefit of our online services/customers and archive records.