SOC ARCHITECTURE.IM Limited Appeal Statement on Behalf of Mwyllin Squee

The Case for the Applicants

1. The proposed dwellings have been designed to compliment the attractive Parish Hall building on the opposite side of Station Road and use architectural features that are found on this building. The house already approved on Plot 1 also incorporates these features including a tower and is of a similar size, height and massing to the proposed dwellings on plots 2 and 3.

1. The concern of the Inspector who reported on the earlier rejected schemes for plots 2 and 3 was in respect of the relationship with properties on Faaie Craine, in particular the consequences for privacy because of the separation distance. This concern has been addressed by the revised siting. In the current proposal the distance from the first floor windows on the rear of the house on plot 2 to No. 4 Faaie Craine would be 33.8m and to No. 6 would be 24.2m. In the case of the house on plot 3 the distance to the rear of No 8. Faaie Craine would be 28m. Regarding the properties to the north, the minimum separation would be between between the house on plot 3 and Cronk Breck and this would be 26m.

1. These figures are significantly in excess of 20m which is generally accepted as a minimum separation between elevations containing windows to habitable rooms. Having regard to the separation distances now proposed and also the planting on the boundary to the south, the proposal would not have unacceptable consequences for the amenity of neighbouring residents.

1. The estate road to the front of plot 1 and the access from Station Road remain unaltered from that approved under PA06/01898/REM. These aspects of the overall scheme do not form part of the application. In so far as the realignment of the estate road further to the west is concerned there is no requirement that the open area in the vicinity be retained as such and the proposed works would not have unacceptable visual consequences.

1. Any question over the ability to use the private road is a matter for civil law and is not a material planning consideration.

The Case for the Planning Authority

1. It is considered that with the revised siting there would be adequate separation between the proposed houses on plots 2 and 3 and the existing dwellings both to the north and south of the site. With the revision the proposal would not have unacceptable consequences because of it having an over-bearing effect or because of loss of privacy at properties on Faaie Craine or Squeen Meadow.

1. The proposed houses would be of a similar footprint and mass to that already approved on plot 1. It is not accepted that they would be disproportionately large in relation to the plot sizes. The proposed dwellings would be provided with adequate outdoor space to secure an appropriate level of amenity and they would create an acceptable streetsce. The separation between the side of the proposed dwellings would be significantly greater than the distance between dwellings on Faaie Craine or Squeen Meadow.

1. The proposed dwellings have been designed to a high standard and include interesting details such as the tower feature influenced by the nearby Parish Hall.

1. In terms of the re-alignment of the estate road, this would not have an unacceptable impact on the amenity of neighbouring properties. Whilst the land between the estate road and the private lane would be reduced, the gardens of the proposed houses would be increased so that the overall ratio between built form and open space would remain unchanged.

1. The access to the overall site from Station Road has been previously approved and does not form part of the current appeal proposal.

1. Several local residents have questioned whether the applicants would be able to make use of the private lane. The question as to whether there is an agreement in place is a matter for civil law and does not affect the planning merits of the case.

1. It was concluded that the proposed dwellings would not give rise to material harm and would accord with General Policy 2 of the Isle of Man Strategic Plan. As a consequence the Planning Committee resolved to grant permission subject to conditions in relation to the completion of access prior to occupation, the protection of trees on site, the protection of a watercourse, and the agreement and implementation of a landscaping scheme.

Inspector’s Assessment and Conclusion

1. I inspected the site and its surroundings on 29 June 2009.

1. The principle of the development of the dwellings on plots 2 and 3 has already been established by the approval of application 02/02007 and details of the junction of the site access road with Station Road were included in the detailed approval for the house on Plot 1 (APP08/00222/B).

1. I consider that the main issues in this case are firstly, whether the proposed dwellings would have an unacceptable effect on the character and appearance of the area and secondly, whether they would have unacceptable consequences for the amenity of neighbouring residents because of their overbearing effect or because of the effect on privacy.

The effect on the character and appearance of the area

1. Whilst bungalows may predominate in the locality there are other houses in the vicinity of the site, including the relatively recently constructed dwellings on Squeen Meadow immediately to the north. Also consent has already been granted for a house on Plot 1 of the overall development. I do not consider that houses would appear out of place on the site.

1. The proposed houses may be large but the individual plots are also relatively large. In my opinion the size of the dwellings would not result in an over-development of their sites. I am also satisfied that in terms of their appearance, the proposed houses would harmonize with that allowed on Plot 1. In my opinion it is important that a consistent approach is taken with the design of the individual dwellings in order to achieve a coherent overall scheme and this would be achieved with the proposal in its current form.

1. In terms of the revised layout of the access road, the existing Manx hedge to the south of the private road would be retained and I do not consider that the revised arrangement would have unacceptable visual consequences.

1. On the first issue it is my conclusion that the proposal would not have unacceptable consequences for the character and appearance of the area.

The effect on the amenity of neighbouring residents

1. Whilst there is no specific policy, the minimum separation distance to ensure privacy between two storey dwellings is generally recognised as being 20m. In this case as to the south the houses would face towards bungalows and the development would be imposed on existing occupiers, I would accept that a separation distance above the minimum would be appropriate, notwithstanding the screening provided by the boundary hedge.

1. The distance between the main wall of the house on Plot 2 and No. 4 Faaie Craine would be around 34m whilst the distance to the rear of No. 6 would be around 24m. In the case of the house on Plot 3 the distance from the main wall to the rear of No. 8 would be around 28m. I am satisfied that with these distances the proposal would not result in an unacceptable loss of privacy, nor would it have an overbearing effect on the existing bungalows.

1. Turning to the properties on Squeen Meadow the closest of the two proposed dwellings, the house on Plot 2, would be around 27m from 9 Squeen Meadow and 32m from 8 Squeen Meadow. The house on Plot 3 would be around 26m from the property Cronk Breck. Again I am satisfied that the distances would be sufficient to prevent an unacceptable loss of privacy or an unacceptable overbearing effect on the residents of the existing properties.

1. Reference is made to increased noise and disturbance with the additional traffic movement to the rear of the properties on Squeen Meadow. Bearing in mind that the access road would be on the far side of the existing Manx Hedge which would divide it from the private road and also taking account of the relatively small number of vehicle movements on the access road and the private road, I do not consider that the proposal would have unacceptable consequences.

1. It is my conclusion on the second issue that the proposal would not have unacceptable consequences for the amenity of neighbouring residents.

Other matters

1. Issues were raised in relation to the adequacy of the access but the junction with Station Road formed part of an earlier approval. The question as to whether there would be a right of way over the private road is a legal matter between the developer and the owner of the road and is not a planning consideration.

1. I am satisfied that the proposed dwellings are a sufficient distance from the boundary hedgerow, separating the site from the properties on Faaie Craine, to prevent damage to root systems of the trees and shrubs and I note that a condition requires the agreement of a landscaping scheme which would include new planting to re-enforce the existing boundary screening. Had there been insuperable problems in relation to drainage I am sure that an objection would have been raised by the Department of Transport Drainage Division at the in-principle stage.

1. It is my overall conclusion that the proposed development would not have unacceptable consequences and I consider that the Planning Authority were correct in approving the application subject to various conditions.

Recommendation

1. I recommend that the appeal be dismissed and that planning approval be granted subject to the conditions as set out in the Planning Authority’s decision notice dated 6 March 2009.

Neil A C Holt TD BArch(Hons) DipTP DipCons RIBA MRTPI Independent Inspector 10th July 2009

6

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APPENDIX — X

CORRESPONDENCE REGARDING PA 13/00677/B AND 13/91109/B 31ST JANUARY 2014 APPLICATION REFERENCE: PA 23 / 01285 / B APPEAL REFERENCE: AP 24 / 0050 PROPOSAL: ERECTION OF A NEW DETACHED DWELLING AND ACCESS ROAD RE-ALIGNMENT ADDRESS: FIELD 224255, STATION ROAD, BALLAUGH

email: [email protected] Tel: (01624) 685950 Fax: (01624) 686443 Director of Planning & Building Control Michael Gallagher, M.R.T.P.I.

Mr C Penketh Penketh-Millar 23 West Quay Ramsey Isle of Man, IM8 1DL

31st January 2014 Dear Mr Penketh, Re: 13/00677 and 13/91109 and related planning applications for residential development off Station Road, Ballaugh

Ed Riley has asked me to look at these two current applications given the complication of their history. The application for variation of condition raises, in my opinion, some legal issues.

1) Firstly, the approval has expired. In order to agree to the variation of condition the Division would need to be satisfied that the application had been lawfully commenced prior to its expiry date (the question of lawful commencement in planning terms being dependent on there being a 'material' start and that material start being in accordance with all conditions of approval). Evidence ought to be submitted to show that this is the case, and in the event of any doubt it would be appropriate to submit an application for a Certificate of Lawfulness whereby such information is formally submitted and determined. I can explain this further, however, for reasons I state below, I do not believe that it is possible to apply for a variation of condition for the works you wish to do.

2) A variation of condition cannot be sought to amend plans approved as part of that application as this 'goes to the heart of the approval'. The variation of condition application you have submitted not only seeks an alternative layout to that proposed as part of the original application, but the red-line that sets out the application site boundary is different from the original approval. As the application to vary the condition also shows a new access layout, you are proposing not just to amend the condition, but also the original proposal. This cannot be done in this way. (Another example would be that you could not change the design of a proposed house by amending the condition that refers to the drawings because it relates to the application submission.)

Department of Infrastructure Murray House, Mount Havelock, Douglas, Isle of Man, IM1 2SF

3) Unless the 06/01898/B application has been commenced, I fear that you will also have difficulty in falling back on your 08/02305 approval (even if you can prove that this has been implemented). In order to comply with the existing approval of 08/02305 and allow for occupation as required in condition 3, the application 06/01898/B should have also been implemented within its time limit (23/04/2011). The fact that the decision was referred to in the 2008 approval did not extend the life of the 2006 approval because it was outwith the red line and was thus a discrete application.

It is my opinion that a fresh application for the proposed development would need to be submitted. I would be happy to meet with you and discuss the issue given all the circumstances.

Yours sincerely,

Jennifer Chance Development Control Manager

date 2023-11-30

ref

Planning and Building Control Directorate

Department of Environment, Food and Agriculture

First Floor

Murray House

Douglas

IM1 2SF

Isle of Man

your ref 23/01285/B Dear Sir or Madam, Re:— PA 23/01285/B Proposed Dwelling (Plot 4), Field 224255, Ballaugh

01

Regarding the above referenced application, we write to register the concerns and objections of our clients, the owners and occupiers of Mwyllin Squeen, Bayr y Wyllin, Ballaugh IM7 5AH.

Procedural Matters

02

Our clients satisfy the qualifying criteria of OPISP¹ §2, and interested person status is therefore expressly sought on our clients' behalf, pursuant to DPO² §4(1)(a).

03

Anyone desirous of making representation(s) might only be alerted by a notice if it accords with DPO §7(3)(a) — so that it can be read from the public highway. This has not occurred in this instance. Your Department will typically issue a new notice in such circumstances³.

Access

04

Bayr y Wyllin is an unadopted lane extending from Station Road to Ballaugh River. It is the sole access to the residential properties of Cronk Breck, Squeen Lodge and Mwyllin Squeen.

05

The decision notice concerning PA 15/01187/B states, at Condition 2:—

“Neither of the dwellings hereby approved shall be occupied until the estate road as shown on drawing 06 0040/16 [...] has been finished to an adoptable standard [...] In the interest of highway safety and ensuring a safe, convenient access to users of the site and also other users of the access lane off Station Road.”

As the effect of that approval was to amalgamate Bayr y Wyllin as part of the development, the above condition gave reasonable expectation that relevant standards would be adhered to, without compromising the safe access upon which our clients are necessarily dependent.

(cont.) →

1. Operational Policy on Interested Person Status 2021
2. Town and Country Planning (Development Procedure) Order 2019
3. We refer to PA 23/01066/B and such similar circumstances

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arch.im

• 06 Aerial photography (Appx A) shows the road’s alignment departing significantly from that approved (Appx B). Plot 2 is occupied, however the road is incomplete (let alone finished to an adoptable standard) in an apparent breach of condition.
• 07 An extension of time sought under PA 08/02305/B was refused by your Department (Appx C). Later correspondence (Appx D) notes no commencement having been demonstrated. In any event, PA 08/02305/B was the subject of several conditions now incapable of being satisfied given subsequent works. We submit that lawful commencement (if any) of Plots 2 and 3 can only therefore have been achieved under PA 15/01187/B which, for the avoidance of doubt, sought express approval for two dwellings — together with the access alignment the proposal relies upon.
• 08 A 90m long private driveway within the extents of the application would negotiate a very tight 90° corner around the boundary to Plot 3 with a 1m internal radius. This will cause probable difficulties for larger vehicles requiring regular access for deliveries or maintenance purposes, likely increasing on-street parking.
• 09 MfMR §5.1.69 requires swept-path analysis of turning heads to demonstrate sufficient space for the largest anticipated vehicle. A 10m radius kerb is normally provided to turning heads intended as a manoeuvring space for a refuse vehicle. The plan approved under PA 15/01187/B shows a 6.75m radius kerb, whereas the turning head actually constructed has a kerb radius of some 5.5m. MfMR §5.2.3 requires private roads to accommodate the swept-path of a large fire appliance.
• 10 MfMR4 provides design parameters for various road types. Table 6.9 stipulates private streets serve five dwellings, or less. Plot 4 would be the seventh, therefore any additional relaxation contrary to this policy must be adequately justified.
• 11 In short, the proposal’s compliance with IMSP5 General Policy 2(h) is contingent upon PA 15/01187/B, which is the subject of outstanding undischarged conditions. Nevertheless, pragmatic avenues to regularise the development remain open, and it is for your Department to determine whether the proposal is severable from the road alignment under PA 15/01187/B (or not). If such conditions are paid no heed, however, the foreseeable consequence is that other applicants will take advantage of the undesirable precedent that will clearly be established.
• 12 In any event, your Department conventionally requires an application’s extents (red line) to encompass the full means of access to the public highway, even in circumstances where a means of access is established in a previous approval6.

Drainage

• 13 The application states foul and surface water are to drain within the access road, with no changes to site levels. The name Cronk Breck (speckled hill) is indicative of the surrounding natural topography which, as the site plan’s contours illustrate, descends towards the river. This raises reasonable doubt as to whether sufficient fall can be achieved to ultimately connect into the invert level of the public sewer in Station Road, unless the ground level of the site is augmented.

• 4 Manual for Manx Roads 2021
• 5 Isle of Man Strategic Plan 2016
• 6 We refer to PA 21/00913/B, PA 21/00914/B, and such similar circumstances

Architecture.im Ltd., trading as arch.im

Company Number 135236C (Isle of Man) Directors: E. P. H. CRAINE, J. F. CRAINE Reg. Office: Mwyllin Squeen, Ballaugh, I.o.M. IM7 5AH

(cont.) →

+44(0)76 2422 2422

architecture.im [email protected]

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arch.im

• 14 Ballaugh River is a seasonal watercourse prone to sudden winter flooding. In full spate, the river leaves wrack marks above the top of the east bank of the river. The land to the west is particularly vulnerable during such events (Appx E-K).
• 15 We calculate the proposal’s footprint as 390m2, its driveway as 380m2, and its footpaths as 100m2. Given the flood risk in the immediate area, no information has yet been provided in accordance with Environment Policy 10 to demonstrate the drains’ hydraulic performance. This will need to accommodate the unattenuated flow of storm water from a combined 870m2 of hard landscaping (together with the flow generated from other plots within the same development). This run-off will otherwise cause significant additional risk of flooding to surrounding land.

Privacy

• 16 The proposal’s main structure would feature large extents of glazing facing in all directions. Within defined settlement boundaries, RDG7 §7.5 requires the intervisible windows of properties’ respective habitable spaces to be set 20m or more apart. This is paramount at first floor level, where boundary features are usually ineffectual as screening. We note windows proposed at 16m from the bungalow of 10 Faaie Craine and some 13m from Plot 3 (as previously approved).
• 17 The proposal is sited very close to existing trees to the southwest, many of which the site plan omits. This siting would limit the proposal’s daylight admittance to a significant degree, particularly direct sunlight, worsened by the shadows that the balcony would cast into the ground floor. In previous decisions, your Department has made material consideration of any future pressure that might result from a proposal (following its implementation) to limb or fell adjacent trees, which has led to protection by registration8 in some instances. Such pressures would be clear and substantial in this instance. We note that a Leylandii hedge, offering the only meaningful screening between our clients’ land and the site, was cut back and lowered immediately prior to the current application’s submission. If these trees were reduced any further, our clients would have direct view into the proposal’s first floor, and would in turn be overlooked from an elevated balcony.
• 18 The application does not relate its datum level to a known position. We take the highway as a reasonable constant, against which the given levels are transformed to the LiDAR data, as used by the Department of Infrastructure (Appx L-M). We believe the application’s ‘100.00’ contour equates to +30.780 (Douglas02). This would set the proposal’s ground floor level at +30.530, its first floor at +33.280, its ridge line at +38.350 and its chimney at +40.080. The ground level of our clients’ land to the west is at +29.250, 4m lower than the first floor and 9m lower than the ridge, which would measure 25m long as it faces Mwyllin Squeen.
• 19 In short, the proposal’s elevated apertures would lead to an oppressive level of intrusion upon our clients’ privacy, as well as that of other properties, contrary to General Policy 2(g). The privacy of the proposal’s future occupants would, in turn, also be compromised below the threshold specified in RDG.

• 7 Residential Design Guide 2021
• 8 Tree Preservation Act 1993

(cont.) →

Architecture.im Ltd., trading as arch.im Company Number 135236C (Isle of Man) Directors: E. P. H. CRAINE, J. F. CRAINE Reg. Office: Mwyllin Squeen, Ballaugh, I.o.M. IM7 5AH +44(0)76 2422 2422 architecture.im [email protected]

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arch.im

Visual Impact

• 20 The 1982 Development Plan designates land to the west of Ballaugh River as an Area of High Landscape Value (AHLV). In the interests of protecting the character of the open countryside, your Department holds proposals situated at the edge of defined settlement boundaries to a higher standard than in urban contexts. We believe the proposal’s height could render it visible from the ALHV. The already tall proposal would be situated on land higher than that of the AHLV, and would certainly be seen prominently from Ballacobb and the northern uplands above. If future pressure to fell trees were realised, the effect would be compounded.
• 21 In such circumstances, your Department usually calls upon applicants to reduce the extents of white painted render and incorporate a palette of natural materials, to soften a proposal’s overall appearance. As currently shown, the proposal does not demonstrate accordance with General Policy 2(c) or Strategic Policy 3.
• 22 The proposal’s floor area is given as 759m2, equivalent to ten first-time buyer two-bedroomed homes at current standards9. Your department has previously characterised proposals of similar scale, massing and height as over development

— even within more spacious sites. Not only would this scale not be commensurate with the rest of the development, but it would dominate adjacent bungalows in Faaie Craine, contrary to General Policy 2(b) and Environment Policy 42.

Ecology

• 23 The decision notice concerning PA 15/01187/B states, at Condition 3:—

“No development shall be commenced until a soft and hard landscaping scheme has been submitted to and approved in writing by the Department. […] All soft landscaping works shall be carried out in accordance with the approved details. The works shall be carried out prior to the occupation of any part of the development or in accordance with the programme agreed in writing with the Department. […] ”

• 24 Condition 6 of PA 08/02305/B required a similar pre-commencement submission. We understand no such submissions were made under either application. Previous representation noted the road’s realignment would raze the 50m hedgerow that had divided Bayr y Wyllin from the site. The condition gave reasonable expectation that wildlife would be protected during construction, and that any habitat lost (including within the erstwhile hedgerow) would be adequately compensated for in the site’s development. Your Department consistently imposes a no net loss biodiversity policy upon applicants. It is for your Department to determine whether the Whitley principle finds application under Manx legislation.
• 25 The proposed driveway threads past Plot 3 and encroaches upon the mature Leylandii hedge of Cronk Breck. It seems probable that this would result in root compaction, threatening the health of this natural screening. The integral garage block also extends so far westwards that the substructure would clearly conflict with a reasonable root protection area for the Leylandii hedge to that side.

9 Isle of Man Affordable Housing Standards Design Guide 2016 Architecture.im Ltd., trading as arch.im Company Number 135236C (Isle of Man) Directors: E. P. H. CRAINE, J. F. CRAINE Reg. Office: Mwyllin Squeen, Ballaugh, I.o.M. IM7 5AH

(cont.) →

+44(0)76 2422 2422

architecture.im [email protected]

26

A wide variety of wildlife has been seen on the site, or in its proximity (Appx N). This includes (amongst others) buzzards, falcons, swifts, sparrows, starlings, song thrushes, bullfinches, herons, trout, bats, lizards, frogs, hedghogs and wallabies. The draft Area Plan for the North designates the site an Area of Ecological Importance. Notwithstanding that this Area Plan is yet to be put before Tynwald court, the evidence base upon which it has been prepared comprises a material consideration under the Act²⁸ at §10(4), and your Department has made reference to the evidence bases of unadopted policy documents in previous decisions.

27

Large areas of glazing are proposed to the southwest elevation, including two large bi-fold doors and balustrading. In previous decisions, your Department has made material consideration of the fact that such glazing poses a serious risk of bird-strike to avian wildlife (included protected species¹²). This is exacerbated where images would be reflected in the glass (implying clear routes of flight), where dazzling reflections would be caused from the sun, or where the glass is in proximity to water. The proposal would give rise to all three in this instance, given an orientation that would reflect trees, the solar azimuth, and the river. Any artificial lighting would also have to take cognisance of the proximity of bats.

28

We reiterate our concerns regarding the proximity of the proposal to existing trees, the probable effect this would have on their health, and the future pressure to limb or fell the trees that would also result. Even a reduced proposal would clearly be subject to the revocation of any permitted development rights.

29

For the foregoing reasons, the proposal as currently drawn would exceed the ecological constraints of the site. It is not shown how the biodiversity loss on the site (or through the undischarged conditions) would be mitigated. No compliance with General Policy 2(d), Environment Policy 3, or Environment Policy 4 is shown.

Conclusion

30

It is clear in this instance that, not only is the proposal not commensurate with the scale or form of the surrounding built environment, but that it exceeds various constraints of the site itself. The applicant has obviously sought maximisation of the development site's remaining balance, with an apparent indifference to the surrounding environment or its character, contrary to well-established policy.

31

We can confirm our clients have approved the contents of this letter and hereby adopt the contents and submissions as their own.

32

We trust the above to be self-explanatory, however should any further matter arise, or any clarification be required, we would invite the Department in the first instance to contact the undersigned at this office without hesitation.

Yours sincerely,

Redacted

Euan Craine RIBA for and on behalf of Architecture.im Limited

10

Town and Country Planning Act 1999

11

Wildlife Act 1990

Aerial Photography 1:1000 at A4

Site Extents Tree Line

Implementation

1:1000 at A4

Previously Approved

As Constructed

As Proposed

Appendix B

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Page 1 of 1

Appendix C arch.im

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Page 1 of 2

Appendix D arch.im

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Page 2 of 2

Appendix D arch.im

Recorded Flooding (View Towards Bayr y Wyllin)

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Appendix E arch.im

Recorded Flooding (View Towards Application Site)

Recorded Wrack Marks After Flood Event (Application Site on Right)

Indicative Flood Risk (Fluvial) 1:1000 at A4 (Context at Appx I)

LikeIhood

Site Extents

High

Tree Line

Indicative Flood Risk (Fluvial) 1:5000 at A4 (Extract at Appx H)

Like It ☐ Site Extents ☐ Tree Line ☐ High

Likelihood

Appendix I

arch.im

Indicative Flood Risk (Surface Water) 1:1000 at A4 (Context at Appx K)

Site Extents

Tree Line

Likelihood

High

Medium

Low

Appendix J

Indicative Flood Risk (Surface Water) 1:5000 at A4 (Extract at Appx J)

• Site Extents
• Tree Line

Likelihood

• High
• Medium
• Low

Appendix K

arch.im

LiDAR Topographic Data 1:1000 at A4 (Context at Appx M)

• Site Extents
• Tree Line

Douglas02 +42.000 +38.250 +34.500 +30.750 +27.000

LiDAR Topographic Data 1:5000 at A4 (Extract at Appx L)

• Site Extents
• Tree Line

Douglas02 +42.000 +38.250 +34.500 +30.750 +27.000

Observed Wildlife Appendix N

A) Heron C) Falcon E) Wallaby

B) Heron D) Falcon F) Hedgehog

Planning and Building Control Directorate

Department of Environment, Food and Agriculture

First Floor

Murray House

Douglas

IM1 2SF

Isle of Man

Dear Sir or Madam, Re:— PA 23/01285/B Proposed Dwelling and Retrospective Alignment of Access Road Field 224255, Ballaugh

01

Regarding the further (amended) plans received by your Department concerning the above referenced application, we write to outline the concise position of our clients, the owners and occupiers of Mwyllin Squeen, Bayr y Wyllin, Ballaugh IM7 5AH.

Erratum

02

Our letter of 30th November 2023 referred to the properties served by Bayr y Wyllin. We omitted reference to:— a) The Squeen, a private dwelling; b) The Croft, a separate annex providing tourist accommodation (23/00135/C); and c) Gawn’s Croft, a stone cottage within field 224254 (later used as stables); all of which are also served by the same access.

03

The proposal would therefore be the tenth premises served by the private road (Appx O).

Procedural Matters

04

Pursuant to DPO¹ schedule 1(1)(2), extents must be edged in red and the applicant’s adjoining ownership in blue. In this case, some incomplete works appear included and others not, eliciting questions. The answers may assuage our clients’ reasonable concerns but, without any further information available to accompany the amended plans, we respectfully submit that the retrospective element lacks the specificity required for a safe decision.

(cont.) →

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Ecology

• 05 Our previous letter referred to the biodiversity loss resulting from the realigned access. The site had itself been separated from Bayr y Wyllin by a native hedgerow, as documented in the photographs accompanying 06/01898/REM. That approval did not provide for the extent of hedgerow that has since been removed.
• 06 The hedgerow’s removal comprises part of the works for which retrospective approval is now sought. The amended plans eliminate any ambiguity as to the applicable baseline for assessing impact, which must account for this loss.
• 07 The applicant appears not to have submitted any ecological appraisal — at all.

Developability

• 08 The principle of an additional plot has not been established under the current Development Plan (comprising the IMSP2). 06/01898/REM's approval was never exercised, and is also extinguished through successive, inconsistent approvals.
• 09 In any event, 06/01898/REM was sought on the basis of a 220m2 roof area to each plot. Measured on a horizontal plane (disregarding pitch), previous approvals broadly accorded with this parameter. The current proposal has a 430m2 roof.

Access

• 10 The amended plans show dropper kerbs adjacent to Gawn’s Croft, annotated “D”. These appear to serve a new parking space occupying the manoeuvring area that would have otherwise been provided, if built according to 15/01187/B.
• 11 Larger vehicles, such as fuel tankers accessing already occupied parts of the site (Appx P), reverse onto Station Road because of manoeuvring restrictions caused.
• 12 Station Road’s north-bound traffic has restricted view of Bayr y Wyllin’s junction (and vice versa). 06/01898/REM’s approval (now lapsed) assessed visibility using base mapping data with a ±1.1m tolerance, and with an X-distance of 2m (not 2.4m as is required). Egress visibility (Appx Q) does not appear to achieve the minimum 43m Y-distance required for a 30mph limit — let alone speeding traffic.
• 13 North-bound traffic is also blind on approach to any stationary vehicle intending to turn into Bayr y Wyllin, but waiting for another to complete a manoeuvre. This further reduces stopping sight distance below minimum standards. Given the already intensified use of this private road, the manoeuvring area’s omission further exacerbates the junction's existing deficiencies.
• 14 The application is silent regarding the manoeuvring area’s omission, however the amended title implies that the new parking space is not a temporary or construction-phase arrangement, but is intended to be retained permanently. No justification outweighing the foreseeable risks has been made. Nevertheless, 15/01187/B demonstrated that the site is entirely capable of accommodating the manoeuvring area, without otherwise requiring vehicles to maneouver on the highway in contravention of General Policy 2(h) and (i).
• 15 The parking space at Gawn's Croft has no approval, and does not meet spatial standards in itself.

(cont.) →

2 Isle of Man Strategic Plan 2016

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Adoption

• 16 The relevant authority requires adoption to make the application acceptable. The number of properties permitted of a private road would otherwise be exceeded.
• 17 The inspector’s report concerning 02/02007/A states at §30 (with our emphasis):“The private lane, which lies outside the application site, would require upgrading to an acceptable standard but this could be stipulated as a precondition to the commencement of the development. The onus would lie with the developer to negotiate the agreement of persons with proprietary interests in the lane to the necessary works […]”
• 18 The Highways Act 1986 §4 provides for the adoption of a road which the grantor “is willing and able to dedicate as a highway.” Bayr y Wyllin is found3 to be an occupation road without title. It is not bona vacantia in this case, as title cannot be adduced from (for example) a dissolved company nor a deceased’s estate. Compulsory acquisition would in any event require a resolution of Tynwald4, a recourse reserved for matters of public interest (not those of a private developer).
• 19 Whilst adoption would benefit users by securing ongoing maintenance, progress towards that end would likely reach an impasse given the particular circumstances outlined above — as was foreseen when a pre-condition was first contemplated.
• 20 Where certain elements are deemed necessary to make an application acceptable, it is for your Department to impose pre-conditions requiring their completion as a first priority5. Whilst provided for in separate legislation, adoption has been referred to your Department as being necessary to satisfy the relevant authority’s requirements in this case (thereby constituting a material consideration under the Act6). Any lawful condition requiring the road’s adoption would therefore need to be discharged prior to the commencement of any other development.

Pilkington

• 21 The DPO addresses earlier perceptions7 that the Island’s planning framework “favours those that flout the rules and seek permission retrospectively, or those that ignore it altogether.” More recently, retrospective applications have been recommended for refusal where they would result in “a form of development by stealth”, or be incapable of containing respective uses within their extents. Retrospective applications are therefore assessed anew, with the usual scrutiny.
• 22 Conditions going to the heart of 15/01187/B’s approval were not appealed, varied or discharged. Equivalent conditions to 08/02305/B’s approval (now lapsed) were similarly neglected. Irrespective of the Whitley8 principle, adjacent development would remain in breach — regardless of the current application’s outcome.
• 23 The current application’s retrospective element nevertheless seeks a successive permission inconsistent with the discharge of previously imposed conditions, thereby prejudicing the lawful completion (and use) of adjacent development. We refer to §2.5 of the officer report concerning 15/01187/B, demonstrating your Department’s application of the Pilkington9 principle under Manx legislation.

• 3 Craine & Hommet v Cleator (Case 2013/01206) at §112
• 4 Acquisition of Land Act 1984 at §2(1)
• 5 We refer to 07/01465/B and such similar cases
• 6 Town and Country Planning Act 1999
• 7 Report of the Select Committee on Planning and Building Control (Petition for Redress) 2015-16, PP 2016/0076
• 8 Whitley v Secretary of State for Wales [1992] 64 P&CR 296
• 9 Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527

(cont.) →

Summary

24 In short, we refer to recently reaffirmed points of law in England¹⁰, also IMSP §1.6.1 and General Policy 2(k), and aver that the retrospective element of the current application would prejudice the lawful use of adjacent land.

25 No attempt appears to have been made in either practical or policy terms to demonstrate the proposal's acceptability, despite the various issues at hand.

26 We trust the above to be self-explanatory, however should any further matter arise, or any clarification be required, we would invite your Department in the first instance to contact the undersigned at this office without hesitation.

Yours sincerely,

Euan Craine RIBA for and on behalf of Architecture.im Limited

1 Cronk Breck 2 The Croft 3 Squeen Lodge 4 The Squeen 5 Mwyllin Squeen 6 Gawn's Croft 7 Plot 1 8 Plot 2 9 Plot 3 10 Current Proposal

Service vehicles on limited access January 2024<br><br>Appendix P arc.im<br><br>·

Existing Junction Visibility Extents of removed hedgerow shown 1:500 at A3