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PLANNING OFFICER REPORT AND RECOMMENDATION

Application No. : 22/01150/LAW Applicant : Mr Jason Elliott Proposal : Application for certificate of lawfulness to change use of former Guesthouse to a House of Multiple Occupancy, HMO Site Address : Seafield 14 Empire Terrace Douglas Isle Of Man IM2 4LE

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: 21.02.2023 __

Conditions and Notes for Approval

C : Conditions for approval N : Notes attached to conditions

C 1. On the balance of probabilities there is sufficient evidence to demonstrate that an 18 person HMO in the submitted information has been in situ since at least 2011.

Plans/Drawings/Information; This decision relates to the submitted documents received on 6th October 2022, 5 November 2022 and 6 February 2023. __

Interested Person Status - Additional Persons

n/a __

Officer’s Report

1.0 INTRODUCTION 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

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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.

1.3 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".

1.4 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'.

2.0 APPLICATION SITE 2.1 Seafield 14 Empire Terrace is a five storey building and the end of a row of terraced properties which includes residential/flats/hotels/guesthouse uses.

2.2 The application includes an existing floor plan and a proposed floor plan - which include/demonstrate the internal changes required to comply with Housing Standards and Registration Regulations 2017 and 2013, respectively.

2.3 The existing plans show 14 bedrooms, while the proposed floor plan shows 18 bedrooms. A certificate of lawfulness application can only be used to demonstrate lawfulness for the existing use, which in this case would be a 14 bedroom house in multiple occupation. Occupancy could affect this and this is addressed below.

3.0 THE PROPOSAL AND EVIDENCE SUBMITTED 3.1 A Certificate of Lawful Use is sought for the use of the property as a house in multiple occupation (Class 3.5 HMO of UCO 2019). 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.

3.2 The application has been submitted with the following evidence (in no order) in support: o Layout plan and associated rooms sizes (existing and proposed); o 4 statements from current tenants non dated ranging from occupation of 8 years to 6 months (presumably as at November 2022); o Statement from current owner confirming they have owned the building from 2001 and it was initially registered with Tourism as guest house. For more than 10 years has been rooms on long term basis, DHSS refer people there and that several residents have lived there at least 5 years (letter dated 1 Sept 2022).

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o Letter from Treasury Jobseekers allowance team stating payments have been made to owner as direct rent as part of benefits payments since at least February 2011 (letter of 1 Nov 2022); o Planning Statement - setting out the above and that it is intended to refurbish the property to the details shown on the proposed plan. o Occupancy letter dated 6 February 2023 setting out average occupancy 19 people.

4.0 PLANNING HISTORY 4.1 There are some older planning approvals while the details of which are not considered relevant to this application, the paperwork submitted in 2001 states the use a guest house, which corroborates the owners statement of when he bought it in 2001.

5.0 REPRESENTATIONS 5.1 None received at the time of writing 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 been a HMO for 10 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. Consideration must only be given to the evidence and not to the perceived planning merits.

6.2 The main evidence is listed at section 2.2 of the report. Consideration needs to be given to whether the evidence submitted is sufficient to show, on the balance of probability that the property has been in use as HMO for at least the last 10 years.

6.3 The owner's letter states that they have owned the building from 2001 and that while it was initially registered with Tourism as guest house, it has for at least the last 10 years been rooms on long term basis. They confirm that the DHSS refer people there which is supported by a letter from Treasury stating that the owner has been in receipt of direct rent payments since at least 2011. While they also state that several residents have lived there at least 5 years the supporting evidence lacks substance in terms of details with only 2 providing information in relation to a length of time (i.e. 8 years and since 2019).

6.4 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.

6.5 From the evidence submitted it is clear that the property was purchased by the current owner in 2001 and that since 2011 they have in receipt of direct rent payments which supports the fact that people have been living there rather than it being used as a guest house. However it does not provide a clear picture of how the property was occupied, that being said the existing floor plan shows 14 bedrooms.

6.6 The declarations provide little additional information about the use of the property in terms of the number of occupants; how frequently tenants came and went over time; number of occupants; any tenancy agreements or level of occupation. Following a request occupancy was then clarified by the owner saying average number of residents was about 18 people.

6.7 Whilst the Department little information of its own to contradict the appellant's version of events, the evidence regarding occupancy provided by the appellant is not, of itself, sufficiently precise in terms of the last 10 years but is considered on balance in combination with the other information sufficient to demonstrate his case.

6.8 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 property has been operating a house in multiple occupation with 18 residents.

7.0 CONCLUSION 7.1 The evidence submitted, along with the information from other departments/divisions, suggest on the balance of probabilities that the land has indeed been used without the benefit of planning permission for a period in excess of ten years as a house in multiple occupation described above.

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 house in multiple occupation of not more than 18 residents. __

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: 24.02.2023

Determining officer Signed : C BALMER

Chris Balmer

Principal Planner

Customer note

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