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PLANNING OFFICER REPORT AND RECOMMENDATIONS

Application No. : 19/00641/LAW Applicant : Stanley View Ltd Proposal : Application to make lawful the use of the property as a house in multiple occupancy (HMO) Site Address : Millbrook 4 Drury Terrace Douglas Isle of Man IM2 3HY

Planning Officer: Mr Paul Visigah Photo Taken :

Site Visit :

Expected Decision Level : Officer Delegation

Recommendation

Recommended Decision:

Certificate of Lawful Use/Devel Approved Date of Recommendation: 19.07.2019 __

Conditions and Notes for Approval

C : Conditions for approval N : Notes attached to conditions

C 1. The evidence submitted, along with the information from other Departments/Divisions, suggest on the balance of probability that the property as shown in the submitted plans, has indeed been used as a house in multiple occupation with 11 bedrooms and a maximum occupation of 19 persons for a period in excess of ten years.

Plans/Drawings/Information:

Information on file all date stamped as having been received 31 May 2019.

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Interested Person Status - Additional Persons

Not Relevant __

Officer’s Report

THE SITE 1.1 Millbrook, 4 Drury Terrace is a large 4 storey building with additional living space on the roof, located in Douglas. This property is located within a row of terraced properties of similar style; which include residential flats and hotel/guesthouse uses.

1.2 The property has been operating as a house in multiple occupation under the title Guest House/Boarding house. It has 11 bedrooms based on single and double occupancy for 19

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persons. This is confirmed by applicant on the layouts and spreadsheet showing the room areas with the proposed layout and occupancy.

THE PROPOSAL AND EVIDENCE SUBMITTED 2.1 A Certificate of Lawful Use is sought for the use of Millbrook, 4 Drury Terrace as a house in multiple occupancy (HMO). 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 submitted floor plans show accommodations over five floors. Excluding hallways, landings and lobbies the accommodation is as follows: On the Basement Floor there is large lounge, large communal kitchen, and a large bathroom; on the Ground floor there is a bedroom which front into bay, a suite with ensuite and store, a W/C and kitchen; on the First floor there are five bedrooms with ensuite; and on the Second Floor there 2 bedrooms with ensuite and two bedrooms connected and served by an ensuite; and on the Third floor there is a bedroom with ensuite.

2.3 The applicant has stated that the property is occupied by nineteen tenants, sixteen of which share double rooms as couples and the rest occupying single rooms.

2.4 The application has been submitted with the following evidence (in no particular order) in support: i. Layout plan and associated rooms sizes; ii. Black Grace Cowley's original property details referring to the premises as 'a former guest house'. iii. Landlord Statement from Millbrook Hotel that shows that the property had paying tenants between 2008 and 2016. iv. Account Statement from Judith Hunt showing a description of rental payments for individual rooms covering 5 August 2008 to 7 August 2008 v. Sublease of Millbrook, 4 Drury Terrace dated 1 July 2009. 2.5 It is therefore understood that the alleged lawful use of the property is as a house in multiple occupation for up to 19 people in up to 11 rooms with associated communal facilities on each floor, including the basement, except the first floor which is made up predominantly of rooms with ensuite.

2.6 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. Therefore, the internal changes and proposed layout are not assessed as part of this application. Any internal alterations may not in themselves constitute development, however if a CLU is issued it cannot be for a level of occupancy which is higher than existing. Therefore if changes to the internal layout are made the overall number of occupants could not exceed 17 unless a further planning application is made.

RELEVANT POLICIES AND GUIDANCE 3.1 On the 1 January 2014 legislation came into effect defining Houses in Multiple Occupation (HMO) and requiring them comply with the requirements and register with the relevant Local Authority. The purpose of the legislation was to ensure a minimum standard of living conditions for occupiers. As part of that Registration the property needs to have the appropriate planning paperwork in place. Prior to that date it is generally accepted that many of the smaller hotels and guest houses were operating as a HMO rather guest house/hotel albeit illegally. A HMO is defined within the Housing (Definition of a Flat or House in Multiple Occupation) Order 2013 as a property being occupied by 6 or more people/separate households as their only or main residence where there are shared facilities.

3.2 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

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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".

3.3 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'.

3.4 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.

PLANNING HISTORY 4.1 The previous planning applications are not considered to be specifically material in the assessment of the current application.

REPRESENTATIONS Copies of representations received can be viewed on the government's website. This report contains summaries only. 5.1 Douglas Borough Council have commented on this application and stated that they have no objections in the letter dated 20 June 2019.

5.2 Manx National Heritage although contacted on 12 June 2019, has not commented on this application at the time of drafting this report, and so it is assumed that there are no objections to the application. 5.3 DEFA Planning Enforcement Officer although contacted on 12 June 2019, has not commented on this application at the time of drafting this report, and so it is assumed that there are no objections to the application.

5.4 Manx Utilities Authority although contacted on 12 June 2019, has not commented on this application at the time of drafting this report, and so it is assumed that there are no objections to the application.

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 and supports the assertion that the property has been a HMO for at least the last 10 years. 6.3 With this application it is clear from the enforcement investigation that the Department has no definitive evidence to suggest the claims in respect of the use of the premises are incorrect. Indeed, this further information would on the balance of probabilities corroborate the statement of use and its continuity. Moreover, It is noted on Google Street View (Oct 2010) where the name of the property is clearly seen.

6.4 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,

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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 has been operating with 11 bedrooms and associated amenities, with a maximum of 19 residents.

6.5 It is therefore concluded that the description for the certificate of lawfulness accurately reflects the use.

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 described above.

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 17 persons in accordance with the submitted plan date stamped 31 May 2019.

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

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 Approved

Date : 25.07.2019

Determining officer

Signed : S BUTLER

Stephen Butler

Head of Development Management

Customer note

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