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20/00646/LAW Page 1 of 4
PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 20/00646/LAW Applicant : Stanley View Ltd Proposal : Certificate of lawful use for use as house of multiple occupancy Site Address : 2 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: 03.09.2020 __
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 13 bedroom house in multiple occupation for a period in excess of ten years.
Plans/Drawings/Information; Information on file all date stamped as having been received 19 June 2020. __
Interested Person Status - Additional Persons
Not relevant __
Officer’s Report
THE SITE 1.1 2 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/HMO. It has 13 bedrooms based on single and double occupancy for 23 persons. The application has an existing floor plan that shows a layout and the distribution of 13 bedrooms: This is confirmed by applicant on the spreadsheet showing the room areas with the proposed layout and occupancy.
1.3 The layout:
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20/00646/LAW Page 2 of 4
i. Lower ground floor plan with kitchen, a lounge, three bedrooms and one bathroom. ii. Ground Floor with resident's kitchen/dinner, residents lounge and one bedroom. iii. 1st Floor with four bedrooms (three have ensuite) and WC. iv. 2nd Floor with four bedrooms with ensuite. v. 3rd Floor with one bedroom and ensuite (to be converted to a store).
THE PROPOSAL AND EVIDENCE SUBMITTED 2.1 A Certificate of Lawful Use is sought for the use of 2 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. The applicant has stated that the property which has accommodations spread over five floors is occupied by twenty-three tenants, twenty of which share double rooms as couples and the rest occupying single rooms.
2.2 The application has been submitted with the following evidence (in no particular order) in support: i. Site Plan of the property outlined in red ii. Layout plan of property iii. Spreadsheet showing room sizes and occupancy iv. Letter from a tenant confirming he has lived in the property since June 2013 and that the property has been run as a guest house/HMO during that period dated 10 December 2019. v. Letter from Marathon Court Nursing and Residential Home confirming that the property has been rented out as rooms for staff accommodation and staff from other nursing homes from 2001 to 2013 (dated 4 November 2019). vi. Letters from the IOM Fire and Rescue Service on the use of the property for multiple occupation (dated 29 January 2009, 9 March 2009, 11 November 2011, 18 October 2011, and 28 October 2011. The letters refer to the unauthorised use of the property as a house in multiple occupation. vii. A copy of Planning Public access document indicating permission for conversion of existing boarding house / dormitory to provide four apartments, including rear external access stairs to replace / extend existing under PA 13/00070/B.
2.3 It is therefore understood that the alleged lawful use of the property is as a house in multiple occupation for up to 23 people in up to 13 rooms with associated communal facilities on each floor, including the basement, except the second floor which is made up predominantly of rooms with ensuite.
2.4 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 23 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.
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20/00646/LAW Page 3 of 4
3.2 Under Schedule 4, Part 1, Paragraph 3 of the Town and Country Planning Act 1999 no enforcement notice may be issued 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.
3.3 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".
3.4 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'.
3.5 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 considered to be specifically material in the assessment of the current application. These are:
4.2 PA 99/01335/B for Conversion of owners flat to additional guest house usage, 2 Drury Terrace, Ballaquayle Road, Douglas. (Approved)
4.3 PA 13/00070/B for Conversion of existing boarding house / dormitory to provide four apartments, including rear external access stairs to replace / extend existing. (Approved)
REPRESENTATIONS Copies of representations received can be viewed on the government's website. This report contains summaries only.
5.1 Douglas Borough Council has not commented on the application although they were consulted on 8 July 2020.
5.2 Manx National Heritage has not commented on this application at the time of drafting this report.
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 Schedule Part 1, Paragraph 3 of The Act, as mentioned above, means that enforcement action cannot be taken on development which has been carried out in excess of ten years.
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20/00646/LAW Page 4 of 4
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 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 13 bedrooms and associated amenities, with a maximum of 23 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 23 persons in accordance with the submitted plan date stamped 19 June 2020.
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/Devel Approved
Date : 08.09.2020
Determining officer
Signed : S BUTLER
Stephen Butler
Head of Development Management
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