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Planning and Building Control Directorate Department of Environment, Food and Agriculture, Murray House, Mount Havelock, Douglas, Isle of Man, IM1 2SF
21 June 2019
Dear Sirs, APPLICATION FOR CERTIFICATE OF LAWFULNESS OF USE OR DEVELOPMENT SECTION 24 OF THE TOWN AND COUNTRY PLANNING ACT (1999) TO REGULARISE THE USE OF LAND AS GARDEN CURTILAGE AT CONISTER, MAIN ROAD, SANTON, IM4 1JB
We enclose a Certificate of Lawful Use application on behalf of our clients Mr and Mrs Nyawai to confirm that the lawful use of the land subject to this application is domestic garden in connection with and part of the residential curtilage of the main dwelling house, at the above address. We enclose documentary evidence to support the application, which is made on the basis that the use of the land in question as garden curtilage has been carried out continuously for more than 10 years, noted as more than 50 years in the affidavit from the previous owner, from the date of this application. We therefore request that a Certificate of Lawful use is issued.
Our clients have recently purchased the above-mentioned property. The application is presented to regularise the use of a parcel of former paddock land situated to the rear of the property as domestic garden curtilage. The use of this land for residential garden curtilage began over 50 years ago. The previous owner, from whom our clients purchased the property, Ms Wendy Leece grew up at the above location since childhood and has confirmed that the aforesaid area has, since then and without interruption, been used as a domestic garden. Over the years, the owners have planted trees around the garden for amenity purposes and partly to act as a wind shield for play and leisure activities in this area of the garden.
We wish to confirm that the use of the garden area is lawful and is now immune from Enforcement Action. We therefore wish to regularise its use by obtaining a Certificate of Lawful Use via this application.
We set out below the detail of the evidence supplied as part of the application and summarise the main points that each document proves.
Document 1: Statutory Declaration by Ms Wendy Leece The signed Affidavit of Ms Wendy Leece is enclosed as document 1 to this letter. The affidavit confirms that Ms Wendy Leece was the owner and occupier of the property above, and has resided at the property for a period of over 52 years, from March 1967 when her father first purchased the property.
The Affidafit confirms the use of the land in question for domestic garden activities and confirms that the land was maintained in the same manner as the remainder of the existing domestic curtilage. The evidence at Paragraph 3 of the Affidavit refers to the current presence of a variety of domestic paraphernalia, and the fact that the area has been used and tended as a domestic garden for this time.
This in turn is corroborated by emails and verbal confirmations by Ms Leece including email dated 09 May 2019 13:30 (enclosed) (Document 2).
A series of aerial photographs have been sourced in order to support the evidential base provided by the affidavit referenced above. These are
Document 3: This aerial image has been sourced from Google Earth Pro and is dated 7th January 2006. The image shows that the new access arrangement for the Balavartyn Equestrian Centre has not yet been constructed. The image also shows the presence of a large trampoline, two football goals complete with netting, and seating and tables in the south western corner of the site. It is also noticeable that the grass is closely mown and in the same manner as the adjoining domestic gardens.
Document 4: This aerial image has been sourced from Google Earth Pro and is dated 3rd December 2012. The image shows the continued use of the area of land for domestic purposes. The goals have been moved for winter storage to the south western corner of the site, along with the trampoline which is now covered with a storage tarpaulin. To the east of the site, the new access associated with the Balavartyn Equestrian Centre following the grant of the planning permission on 15 Feb 2011 (IOM Govt Ref: 10/01672/B).
Document 5: This aerial image has been sourced from ZoomEarth/Nasa Sat Imagery, and is dated Jun-Oct 2012. The image again shows the continued development of the Equestrian Centre. The grass remains closely mown, and the storage of sports equipment and outdoor chairs and table remains in the south western corner of the site.
Document 6: This aerial image has been sourced from OpenAerial, and is dated 7th October 2015. Whilst the image is of poor quality, it serves to confirm the continued storage of materials in the southwestern corner of the site, and the maintenance of the lawn areas as a domestic garden.
Document 7: This aerial image has been sourced from Google Earth Pro, and is dated 24th January 2018. The image appears to have been taken around noon (the shadows on the trees from the south). Whilst the image is quite dark, it is clear that the application site is still maintained to a domestic level. The image appears to be the latest available.
Summary
The above images and analysis illustrate that domestic use of this area of land in association with the dwelling house at Conister for a period of time in excess of 10 years from the present date. Where possible, verifiable events in the surrounding area have been highlighted in order that the condition and use of the application site can be confirmed at a specific point in time.
Planning History
There is limited planning history associated with the site available on the IOM Govt's web site. The two most recent applications are however available, and are set out as follows;
IOM Gov't Ref: 09/01780/B
This application proposed alterations and erection of a replacement conservatory. It is an amended proposal from a previous application which appears to have been partly implemented and then there was a suspension of works. Application 09/01780/B was permitted by notice dated 4th January 2010. A copy of the application form, ownership certificate, location plan and application site boundary are enclosed at Document 8.
Whilst the application is for a conservatory in addition to the main building, the application site boundary plan includes both the dwelling house and its curtilage which included the area of land subject of this Lawful Use application. Question 9 of the planning application form confirms that the use of the site is considered to be a 'private dwelling'. From the evidence available, this is not disputed at any point in the consideration of the application proposals.
The ownership certificate accompanying the application confirms that the entire site was within one ownership, and that there were no agricultural tenants to which notice would have to have been served.
IOM Gov't Ref: 06/0115/B
This application proposed the erection of a replacement conservatory with linked pitched roof over existing kitchen extension, to rear elevation, and was approved on 17th August 2006. Again, a copy of the application form, ownership certificate, location plan, application site boundary as well as the planning officers report are enclosed at Document 9.
Similar to the 2009 application the application forms and application site boundary include the site in question within the curtilage of the dwelling house. They also confirm that the use of the site was dwelling house, and that no agricultural tenant occupied the site.
Usefully, the extent of the dwelling house's curtilage is specifically considered within the Case Officer's report. The second page of her report includes an 'Assessment' section, which includes a paragraph reading:
"The residential curtilage of Consiter includes land to the west of the immediate curtilage which seems more extensive than that of the other properties in the vicinity. However, the curtilage is shown on the previous applications."
This indicates that the extent of the dwelling's residential curtilage has been examined by a planning officer in 2006 and found to include the land in question.
'Balance of Probability'
In determining an application for a Certificate of Lawfulness the appropriate test to be met by an application is the balance of probability. Such a test is a lower hurdle to clear that the discharge of the stricter burden of proof, namely "beyond reasonable doubt".
It is clear that if the Planning Authority have no evidence of their own, 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 alone is sufficiently precise and unambiguous to justify the grant of a certificate "on the balance of probability".
We submit that the supporting information supplied as part of this application shows conclusively that the area marked on the site location plan, by red line, has been used as garden and part of the residential curtilage for in excess of ten years. The statutory declaration covers the entirety of this period. The Affidavit is supported by photographic and documentary evidence. Significant weigh also should be attached to the considerations and conclusions reached by the planning officers at the time of determining the 2006 (PA 06/0115/B) and 2009 (PA09/01780/B) applications. We are not aware of any conflicting evidence in respect of the existing uses. The 'balance of probabilities' test is clearly passed by this application.
Conclusion
In light of the enclosed evidence, and the 'balance of probabilities' test being met, we know of no reason why a Certificate of Lawful Use should not be granted. We therefore request that a Certificate of Lawful Use is issued to regularise the current situation.
If you have any queries regarding this matter please do not hesitate to contact us. Yours faithfully, Charles D. Park RIBA RIAS For and on behalf of Ellis Brown
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