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19/00707/LAW Page 1 of 3
PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 19/00707/LAW Applicant : Mr & Mrs Vincent Nyawai Proposal : Application for certificate of lawfulness for use of land as residential garden Site Address : Conister Main Road Santon Isle Of Man IM4 1JB
Planning and Enforcement Assistant: Mrs Vanessa Porter Photo Taken :
Site Visit :
Expected Decision Level : Officer Delegation
Recommendation
Recommended Decision:
Certificate of Lawful Use Declined Date of Recommendation: 12.11.2019 __
Reasons for Refusal
R : Reasons for Refusal O : Notes attached to reasons
R 1. Based on the evidence which has been submitted as part of the application, it is considered that on the balance of reasonableness it has not been adequately demonstrated that the use of the parcel of land being used for a residential garden, for a period of time in excess of 10 years. As such it is recommended that the application be refused and a Certificate of Lawful Development not be issued. __
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 land, after the end of the period of 4 years beginning with the date on which the operations were substantially completed;
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19/00707/LAW Page 2 of 3
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 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 Authority to corroborate the applicant's evidence.
1.5 The application seeks a Certificate of Lawful Use ("Certificate of Lawfulness" or "CLU") in respect of the use of the paddock to the rear of Conister, Main Road, Santon, IM4 1JB. The application seeking the Certificate of Lawfulness was submitted on 21st June 2019.
2.0 THE APPLICATION SITE 2.1 The site is a parcel of land to the rear of Conister, Main Road, Santon which is situated on the western side of the A5 Castletown Road as it passes through Newtown.
2.2 The parcel of land also abuts two other properties to the north, Inglemere and Leahurst.
3.0 PLANNING HISTORY 3.1 There is no planning history which is regarded as materially relevant to this application.
4.0 REPRESENTATIONS 4.1 Highway Services have No Highways Interest in this application (22.07.2019).
4.2 Santon Commissioners have considered the proposal and have no objection (09.08.19).
5.0 SUMMARY OF EVIDENCE PROVIDED 5.1 The agent on behalf of the applicants has provided a statement which can be summarised as containing the following supporting information. o The initial purpose of this Certificate of Lawfulness is the change in hands from the previous owner Ms Wendy Leece to Mr and Mrs Nyawil. o Ms Wendy Leece has lived in the property since childhood and has signed an Affidavit stating that the land to the rear has been used as a private garden area, and is currently being used by her children. She has also stated that the land is separated by a fence and gate which creates a windbreak and to prevent her dogs from escaping. o There are a few emails which are between Christine M Crellin at Gelling Johnson Farrant and Mr Nyawai discussing what is required for a Certificate of Lawfulness. o Google Earth Pro Photo dated 7th January 2006 which shows a trampoline and some goal posts. o Google Earth Pro Photo dated 3rd December 2012 which shows the trampoline and items within the southern west corner. o ZoomEarth/Nasa Sat Imagery dated Jun-Oct 2012 is very grainy but shows several items to the southern west corner.
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19/00707/LAW Page 3 of 3
o OpenAerial Photo dated 7th October 2015, this photo again is very grainy and hard to decipher but shows something to the southern west corner. o Google Earth Pro Photo dated 24th January 2018, this photo is really dark and it is hard to decipher if anything is in the land to the rear. o Planning Application forms from 09/01780 and 19/00707 which show the red line boundary encompassing the land to the rear.
6.0 CONCLUSION 6.1 When looking at the evidence given the 2006 photograph shows the land is being used by the occupants for leisure purposes. The 2012 and 2015 photographs appear to show the items being stored in the field, but do show evidence of the use of these items. It is not considered that the photographs demonstrate continued use of the land as a residential garden.
6.2 It can be seen from the progression of the aerial photos that the rear part of the garden which joins onto the parcel of land gets more overgrown as the years go on, this suggests that the rear was less looked after than the rest of the property. Whilst it is understood that trees grow with age, the 2006 aerial is the only one where there is a clear route from Conister to the land in question. All the other aerials given as evidence show no such route which further subdivides the two areas.
6.3 Whilst the affidavit states that the land has been used as 'domestic garden curtilage' it is not considered that the character of the field or the use of the field is that of a domestic garden. The use of the field for leisure purposes appears to be infrequent. The site in question retains the character of a field, and its use for leisure purposes appears to be infrequent.
7.0 RECOMMENDATION 7.1 The information provided is not sufficient to demonstrate a material change of use to a residential garden has occurred. __
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 Declined
Date : 12.11.2019
Determining officer
Signed : S BUTLER
Stephen Butler
Head of Development Management
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