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24/00931/LAW Page 1 of 5
PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 24/00931/LAW Applicant : Jing Wen Proposal : Certificate of Lawfulness for use as a HMO with 15 rooms and additional ground floor flat Site Address : Ainsdale 2 Empire Terrace Douglas Isle Of Man IM2 4LE
Planning Officer: Vanessa Porter Photo Taken : Site Visit :
Expected Decision Level : Officer Delegation
Recommendation
Recommended Decision:
Certificate of Lawful Use/Devel Approved Date of Recommendation: 15.10.2024 __
Conditions and Notes for Approval
C : Conditions for approval N : Notes attached to conditions
C 1. There is sufficient evidence to demonstrate that Ainsdale, 2 Empire Terrace, Douglas has been used as a HMO of 15 rooms for up to 16 people, not including the ground floor flat, for a period exceeding 10 years and as such, the Department may not issue an enforcement notice due to the provisions of Town and Country Planning Act 1999 Schedule 4 Part 1 paragraph 3(a).
Plans/Drawings/Information;
This decision relates to the submitted documents received on 19th April 2024 and the 14th August 2024 __
Right to Appeal
N/A __
Officer’s Report
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:
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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; 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 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".
1.4 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'.
APPLICATION SITE 2.1 The application seeks a Certificate of Lawful Use in respect of a ground floor flat and the use of the 1st, 2nd and 3rd floor of Ainsdale, 2 Empire Terrace, Douglas as an HMO of 15 rooms for 16 occupants. Ainsdale is a mid-terrace property situated to the Western side of Empire Terrace.
2.2 The application seeking the Certificate of Lawfulness was submitted on 23rd September 2024.
PLANNING HISTORY 3.1 The following are applications upon the property;
3.2 PA03/00093/B - Installation of replacement uPVC windows to front elevation - Permitted
3.3 PA06/02006/B - Conversion of restaurant to cater for non residents - Permitted
3.4 PA07/01139/R - Retention of extension and extractor flue to rear elevation - Permitted
3.5 07/01155/R - Continuation of a takeaway business from premises - Refused.
REPRESENTATIONS 4.1 None received at the time of writing this report.
SUMMARY OF EVIDENCE PROVIDED 5.1 The application has been submitted with the following evidence, dated 19th April 2024;
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5.2 Additional information was requested of which a Floor plan dated 16th November 2011, a tenancy agreement for the ground floor flat and confirmation on the rooms/occupancy levels were received on the 14th October 2024.
ASSESSMENT 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 5.0 of the report. Consideration needs to be given to whether the evidence submitted is sufficient to show, on the balance of probability that the property has been in use as HMO for at least the last 10 years.
6.3 The applicant has stated within their planning statement that they purchased Ainsdale in 2004 and then did renovations to the property from 2005 to 2011. They state that they have been taking DHSS tenants by weekly direct debit payments, of which several rent deductions have been provided for months from 2011 to 2023.
6.4 The applicants have also provided a tenancy agreement and a rolling tenancy agreement for the ground floor flat.
6.5 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'.
6.6 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 15 households and up
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to 16 persons on the first, second and third floor with the ground floor being a two bedroomed flat.
CONCLUSION 7.1 It is recommended that the application be approved subject to the following wording of the Certificate of Lawfulness for the existing use of the first, second and third floor as a HMO of 15 rooms with an occupancy level of 16 people and the ground floor as a separate flat.
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I can confirm that this decision has been made by a Principal Planner in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation and that in making this decision the Officer has agreed the recommendation in relation to who should be afforded interested person status and/or rights to appeal.
Decision Made : Certificate of Lawful Use/Devel Approved
Date: 17.10.2024
Determining Officer
Signed : J SINGLETON
Jason Singleton
Principal Planner
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