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22/00378/LAW Page 1 of 4
PLANNING OFFICER REPORT AND RECOMMENDATION
Application No. : 22/00378/LAW Applicant : Mr Albert Kermode Proposal : Application for certificate of lawfulness for breach of PA 10/00614/B condition 4 relating to the demolition of the existing dwelling Site Address : Ballachurry Farmhouse Ballachurry Road Greeba Isle Of Man IM4 3LE
Principal Planner: Miss Abigail Morgan Photo Taken : Site Visit : Expected Decision Level : Officer Delegation
Recommendation
Recommended Decision:
Certificate of Lawful Use/Devel Approved Date of Recommendation: 25.10.2022 __
Conditions and Notes for Approval
C : Conditions for approval N : Notes attached to conditions
C 1. It is clear from the information submitted and that available to the Department that the existing house was not demolished as required by condition 4 and that the house remains on the site and the Department has no evidence itself, nor any from others, to contradict or otherwise make the applicant's statement less than probable that the existing dwelling remains on the site and has done in breach of condition 4 of 10/00614/B since December 2011, a period of 10 years, and that this use has not been supervened by another material change of use.
Plans/Drawings/Information;
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Interested Person Status - Additional Persons
N/A __
Officer’s Report
1.0 INTRODUCTION
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22/00378/LAW Page 2 of 4
1.1 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.
1.2 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, stating for the purpose of this section uses and operations are lawful if no enforcement notice may be issued [my summary]. Para 3 of Schedule 4 states no enforcement notice may be issues in respect of any other breach of planning control (i.e breach of condition) after the end of the period of 10 years beginning with the date of the breach.
1.3 An application for a Certificate of Lawfulness is determined on the basis of fact. 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.
1.4 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 usually necessary for the Planning Department to corroborate the applicant's evidence.
2.0 THE APPLICATION SITE
2.1 The site is Ballacurry Farm, Ballachurry Road, Greeba.
3.0 THE PROPOSAL
3.1 The application seeks a Certificate of Lawful Use in respect of breach of PA 10/00614/B condition 4 relating to the demolition of the existing dwelling which was not carried out.
3.2 The application seeking the Certificate of Lawfulness was submitted on 1 August 2022.
4.0 PLANNING HISTORY
4.1 The following previous planning applications at the site are considered relevant to the current application:
PA 10/00614/B for Erection of a replacement dwelling and detached garage was approved on 20.09.2010 subject to the following conditions;
The development hereby permitted shall commence before the expiration of four years from the date of this notice.
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22/00378/LAW Page 3 of 4
2. This approval relates to the erection of a replacement dwelling and garage and creation of driveway, Ballacurry farm, Ballachurry Lane, Greeba, German as shown by 10- J027-AK-01, 10-J027-AK-02 and 10-J027-AK-06 received 27th April 2010 and 10-J027-AK 03 Rev 1 and 10- J027-AK-05 Rev 1 received 10th August 2010. 3. The exterior walls of the approved dwelling must be with either smooth render or roughcast render unless otherwise agreed in writing with the Planning Authority. 4. The existing dwelling must be demolished within 30 days of the first occupation of the approved replacement dwelling.
5.0 REPRESENTATIONS
5.1 German Parish Commissioners object on the grounds that for the applicant to 'forget' to demolish the building when there was clearly a condition of the approval is not sufficient reason to allow the building to remain (23.9.22)
6.0 EVIDENCE SUBMITTED
6.1 The application has been submitted with the following evidence (in no particular order): o Letter of explanation o Plans of new build o Aerial photographs o Location plan o Photographs of existing building o Rough floor plans o Copies of utility bills
7.0 ASSESSMENT
7.1 This is an application seeking a Certificate of Lawful Development, 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 operations are established and lawful by period of time and therefore beyond the scope of enforcement action. The test of the evidence is based on the balance of reasonableness. In this instance, the applicant seeks to rely on the fact that the existing dwelling (both in terms of use and placement) remains lawful due to the breach of condition requiring the dwelling to be demolished.
7.2 The main issue is whether the applicant has shown, on the balance of probability, that the condition was breached for a continuous period of 10 years immediately preceding the date of the application for a Certificate of Lawfulness of Existing Use or Development (CLEUD).
7.3 The applicant has provided a number of documents for the developments which demonstrate that the existing house was not demolished a required by Condition 4, it is also visible on the 2021 aerials. According to condition 4 the existing house should have been demolished within 30 days of the first occupation of the new dwelling. A check with Building Control confirmed that their records noted 05.09.11 for occupation and the form submitted by the applicant confirms that the failure to comply with the condition occurred in November 2011 (taken to mean that the new building was occupied). Using November 2011 as a base date the 30 days would be December 2011 for demolition and as a breach of condition, 10 years which would be December 2021.
7.4 On the basis of the above it is considered that condition 4 has been breached since December 2021, as the house to be demolished is still there.
7.5 As part of the covering letter the applicant refers to the refurbishment of the farmhouse which was meant to be demolished after the new house which did not occur and states that the house is still used and bills paid (as submitted with the application).
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22/00378/LAW Page 4 of 4
7.6 In the case of applications for existing use, if a planning authority has no evidence itself, nor any 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 alone is sufficiently precise and unambiguous to justify the grant of a certificate on the balance of probability.
7.7 While the contents of the comments made by German Commissioners are noted the determination of a certificate of lawfulness is a legal determination based on the facts to establish whether the stated operations are established on the balance of probabilities and lawful by period of time and therefore beyond the scope of enforcement action.
8.0 CONCLUSION
8.1 It is clear from the information submitted and that available to the Department that the existing house was not demolished as required by condition 4 and that the house remains on the site and the Department has no evidence itself, nor any from others, to contradict or otherwise make the applicant's statement less than probable that the existing dwelling remains on the site and has done in breach of condition 4 of 10/00614/B since December 2011, a period of 10 years, and that this use has not been supervened by another material change of use and nor has it been abandoned.
9.0 INTERESTED PARTY STATUS
9.1 As the application is for 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: 25.10.2022
Determining officer
Signed : J SINGLETON
Jason Singleton
Principal Planner
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