220997

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                                      25/00352/LAW                                     Page  1  of  3

PLANNING OFFICER REPORT AND RECOMMENDATIONS

Application No. : 25/00352/LAW Applicant : Mrs Emer Wiseman Proposal : Certificate of Lawful Development for erection of fencing Site Address : 1 Creggan Mooar Port St Mary Isle Of Man IM9 5BB

Principal Planning Officer: Belinda Fettis Photo Taken : Site Visit : Expected Decision Level : Officer Delegation

Recommendation

Recommended Decision:

Certificate of Lawful Use/Devel Approved Date of Recommendation: 28.04.2025 __

Conditions and Notes for Approval C : Conditions for approval N : Notes attached to conditions

C 1. There is sufficient evidence to demonstrate that the 1.8m timber slat fence referred to in the information received on 02.04.2025, along the front south boundary and partly along the east side boundary was erected more than four years ago 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 supporting information received on 02.04.2025.

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Right to Appeal

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Officer’s Report

1.0 INTRODUCTION 1.1 The application seeks a Certificate of lawful development for the erection of fencing. The application seeking the Certificate of Lawfulness was submitted on 02.04.2025. This means the relevant 4 years for consideration is from 02.04.2021.

1.2 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

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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;

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.

1.3 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.

1.4 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.

1.5 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.

2.0 THE APPLICATION SITE 2.1 The application site is the curtilage of 1 Creggan Mooar, Port St Mary. The semi- detached dwellinghouse is located on the west side of the cul-de-sac that is part of Creggan Mooar. The front façade of the dwellinghouse faces Creggan Mooar overlooking a public car park, the rear of the dwellinghouse overlooks the cul-de-sac turning heads.

3.0 THE PROPOSAL 3.1 The planning application seeks approval for the Certificate of Lawful Development - erection of fence above 1m adjacent the highway.

3.2 The fence in question is a timber post and timber vertical slat painted fence approximately 1.8m in height. Within the curtilage of the site, the fence is erected from the front south elevation boundary with the adjoining semi, no.2, all the way to the drive where a gap is left and then resumes around the south and east side boundary until it meets a side pathway that is level with the rear elevation of the dwellinghouse.

3.3 In the covering letter the applicant apologises and states a lack of awareness of the regulations until the breach was observed in 2024. The fence was erected soon after purchasing the property.

4.0 PLANNING HISTORY o 24/91224/B - Alterations and conversion of existing garage to home office (Retrospective). Permitted.

5.0 REPRESENTATIONS 5.1 Because this is an assessment of legality, consultations are not required.

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5.2 However the DOI Highways have commented that they oppose the application on the grounds that to allow adequate visibility the fence should be no more than 1m in height either side of the driveway. The current minimum in the Manual for Manx Roads is 1m but in the previous edition it was 600mm and that would have been in place at the time the fence was erected (07/04/2025).

6.0 ASSESSMENT / SUMMARY OF EVIDENCE PROVIDED 6.1 In terms of whether the attic room has been in use for more than 10 years from the date of submission the Department considers that it has. The evidence supplied by the applicants comprises of the following.

a) Covering letter b) Contractor details c) Invoice for supply and construction of the fence dated 10/11/2020

6.2 The applicants agent was made aware of the breach of planning during the application process for the above PA 24/91224/B and offered the chance to include the fence in the submission. The agent declined to add the fence. It is likely that had the fence been added a reduction to 1m would have been required prior to approval.

7.0 CONCLUSION 7.1 Comments submitted by Highways are noted however this is a matter of legality and therefore the comments cannot be addressed as part of this process.

7.2 On the balance of probabilities, the evidence sufficiently demonstrates that the fence has been erected for more than 4 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) and it is recommended that a Certificate of Lawful Development is granted.

8.0 RECOMMENDATION 8.1 It is recommended that the application for a Certificate of Lawfulness is agreed.

9.0 INTERESTED PARTY STATUS 9.1 As the application is for a CLU this is assessment is not applicable.

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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 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 : 29.04.2025

Determining Officer

Signed : S BUTLER

Stephen Butler

Head of Development Management

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