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Application No.: 19/00642/LAW Applicant: Stanley View Ltd Proposal: Application to make lawful the use of the property as a house in multiple occupancy (HMO) Site Address: Ashley House 6 Clifton Terrace Douglas Isle of Man IM2 3HU Planning Officer: Mr Paul Visigah Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 19.07.2019 _________________________________________________________________
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 14 bedrooms and a maximum occupation of 22 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. _______________________________________________________________
Additional Persons Not Relevant _____________________________________________________________________________ Officer’s Report SITE DESCRIPTION
1.1 Ashley House, 6 Clifton Terrace, Douglas is a large 3 ½ storey building (rooms in the roof) located in Douglas. - 1.2 The application has an existing floor plan that shows a layout which includes 14 bedrooms:
2.1 A Certificate of Lawful Use is sought for the use of Ashley House, 6 Clifton 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 application has been submitted with the following evidence (in no particular order) in support:
2.3 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 13 rooms with associated communal facilities on each floor, including the ground floor. - 2.4 The application also includes a proposed layout which shows a number of internal layout changes including:
2.4 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 1st 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 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.
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 Based on the information from the applicant, the main evidence supplied by the applicant is a letter from Fire and Rescue dated 20 April 2009 which indicates it appeared to be operating as a HMO. It is noted on Google Street View (Oct 2010) where the name of the property is clearly seen. The current owners also confirm they have continued to run the property since 18 March 2009 when they acquired the property as a vacant property in need of refurbishing to bring it up to letting standards, and have continued to operate it as a guest house/HMO since the works were completed. - 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, 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 identified which contradicts or undermines the applicant's version of events, it is recommended that the Department should be satisfied with the maximum level of occupation of 13 households and up to 19 persons.
6.7 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 17persons 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
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