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23/01295/LAW Page 1 of 5
PLANNING OFFICER REPORT AND RECOMMENDATION
Application No. : 23/01295/LAW Applicant : Mr J Clunley & Ms Emily Worswick Proposal : Certificate of Lawful Use for existing residential apartments Site Address : Glen Eagles Promenade Port Erin Isle Of Man IM9 6LE
Planning Officer: Vanessa Porter Photo Taken : Site Visit : Expected Decision Level :
Recommendation
Recommended Decision:
Certificate of Lawful Use/Devel Approved Date of Recommendation: 08.04.2024 __
Conditions and Notes for Approval
C : Conditions for approval N : Notes attached to conditions
C 1. There is sufficient evidence to demonstrate that the property known as "Gleneagles" has been used as seven residential flats for a period exceeding 10 years and as such, the Department may not issue an enforcement notice due to the provisions of the Town and Country Planning Act 1999, Schedule 4, Part 1, paragraph 3(a).
Plans/Drawings/Information; This decision relates to the information all received on 30th October 2023, 1st February 2024, 5th February 2024 and 14th March 2024.
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Interested Person Status - Additional Persons
None __
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 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.
1.4 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 Department to corroborate the applicant's evidence.
APPLICATION SITE 2.1 The application seeks a Certificate of Lawful Use in respect of "Gleneagles" as residential flats. "Gleneagles" is a 4 storey mid terrace property situated to the East of Promenade, Port Erin.
2.2 The application seeking the Certificate of Lawfulness was submitted on 30th October 2023.
PLANNING HISTORY 3.1 The application site has had two previous applications;
3.2 PA35771 - Conversion of premises to form six tourist flats - Permitted
3.3 PA02/00382/B - Installation of uPVC windows to replace existing to front elevation - Permitted.
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 (in date received order to help clump information together):
5.2 Information dated received 30th October 2023
Ground Floor Flat
Flat 1
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Flat 2
Flat 3
Flat 4
Flat 5
Flat 6
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All flats
5.3 Information dated received 1st February 2024
5.4 Information dated received 5th February 2024
5.5 Information dated received 14th March 2024
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ASSESSMENT 6.1 Considering this application, the applicant seeks to reply on the information provided that "Gleneagles" has been used as residential accommodation and not tourist accommodation as approved under PA35771.
6.2 It is unsure on whether the tourist accommodation was ever taken up, whilst that might be the case, the evidence provided goes back 10 years and as such for the benefit of doubt, this application is to establish that the use can be considered lawful, as set out in Part 4, Section 24(2) of the Town and Country Planning Act 1999.
6.3 The evidence provided is sufficient to demonstrate that there has been a continued use at the same level of intensity for the six flats, first level above. There is no such evidence provided for the ground floor flat. Whilst this is the case, the ground floor flat was approved to be used as "owner's occupation" on PA35771, which would be a flat in its own right.
CONCLUSION 7.1 Whilst there are gaps within the time periods for some of the flats and some of the information is conflicting, it is considered on the balance of probability based on the extensive evidence provided, that the use has been for a minimum of 10 years to establish that the use can be considered immune from the issue of an enforcement notice.
7.2 It is recommended that a Certificate of Lawful Development be issued in respect of the use of the property, known as "Gleneagles" as seven residential flats, of which the permitted layout is as received. One, one bedroomed flat to the ground floor level, one, one bedroomed flat situated at the front of the property and one, two bedroomed flat situated to the rear of the property on the first, second and third floor, amounting to 7 flats.
INTERESTED PARTY STATUS 8.1 As the application is for a CLU this is not required to be assessed. There is no right to appeal against this decision. __
I can confirm that this decision has been made by the Acting 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
Decision Made : Certificate of Lawful Use/Devel Approved
Date : 10.04.2024
Determining officer Signed : A MORGAN Abigail Morgan
Acting Head of Development Management
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