**Document:** DEC Officer Report **Application:** 23/00964/LAW — Certificate of lawful development for the erection of a ground floor extension **Decision:** Certificate of Lawful Use/Devel Approved **Decision Date:** 2023-10-04 **Parish:** Rushen **Document Type:** report / officer_report **Source:** https://planningportal.im/a/27049-rushen-onyx-house-shore-road-underway-lawful-use-certificate/documents/1036273 --- # DEC Officer Report ## PLANNING OFFICER REPORT AND RECOMMENDATION **Application No.:** 23/00964/LAW **Applicant:** Mr Cosmo Currey **Proposal:** Certificate of lawful development for the erection of a ground floor extension **Site Address:** Onyx House Shore Road Underway Port St Mary Isle Of Man IM9 5DX **Planning Officer:** Mrs Vanessa Porter **Expected Decision Level:** Officer Delegation **Recommended Decision:** Permitted **Date of Recommendation:** 21.09.2023 ## Conditions and Notes for Approval C : Conditions for approval N : Notes attached to conditions C 1. There is sufficient evidence to demonstrate that the infill extension has been in situ for a period in excess of 4 years and therefore it is recommended that a Certificate of Lawful Development can be issued. Plans/Drawings/Information; This decision relates to the Location plan, Ground Floor Plan, First Floor Plan and other supporting information all received on 15.08.23. _______________________________________________________________ ## Interested Person Status Additional Persons 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: - 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 site relates to Onyx House, Shore Road Underway, Port St Mary which is outlined as red within the plans provided. The site is situated to the Western side of Shore Road and is a two storey semi-detached dwelling. - 2.2 The application seeks a Certificate of Lawful Development for the erection of an infill extension situated Northern elevation, to provide additional living accommodation. - 2.3 The application seeking the Certificate of Lawfulness was submitted on 15th August 2023. PLANNING HISTORY 3.1 The application site has had several previous applications, see below; - 09/00829/B - Erection of a dwelling with associated parking - Application Withdrawn - 10/01443/B - Erection of a dwelling with off street parking - Application refused at Appeal - 11/01433/B - Erection of a detached dwelling with off street parking - Application approved at Appeal 23/00703/C - Additional use of residential property (class 3.3) as tourist accommodation (class - 3.6) - PENDING 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 no order): - i. Application Form - ii. Location plan; - iii. Ground Floor Plan as approved under PA11/01433/B - iv. Ground Floor Plan - v. First Floor Plan - vi. Invoice dated 17th March 2016 - vii. Planning Statement - viii. Historic Letter to Department RE: Application Advice dated 11th April 2016 ## ASSESSMENT 6.1 This is an application seeking a Certificate of Lawful Development, 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 operations are established and lawful by period of time and therefore beyond the scope of enforcement action. The test of the evidence is based on the balance of reasonableness and probabilities. In this instance, the applicant seeks to rely on the fact that the development in question has been undertaken for a period in excess of 4 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. 6.2 The supporting statement includes three aerial photos, one from 2023 and one from 2019 which show the proposed extension and one from 2015 which doesn't show an extension. Whilst it can be seen that the 2015 aerial is shaded, there is a clear difference in the area of the extension within the aerials given. - 6.3 The aerial for 2019 was taken around September 2019, whilst this does not equate to four years, the Department has an aerial photograph of the application site from 2017 and 2018 which show the glazed roofing, as such on a balance of probabilities of the evidence available, it is considered that the works to this part of the building have been situ for a period in excess of 4 years. ## CONCLUSION 7.1 It is considered on the balance of probability that the works have been in situ for a minimum of 4 years to establish that the development 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 proposed infill extension to the Northern elevation. 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 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. Decision Made : Permitted Date: 02.10.2023 Determining officer Signed : J SINGLETON Jason Singleton Principal Planner Customer note This copy of the officer report reflects the content of the file copy and has been produced in this form for the benefit of our online services/customers and archive records. --- *Data sourced from the Isle of Man public planning register under the [Isle of Man Open Government Licence](https://www.gov.im/about-this-site/open-government-licence/).* *Canonical page: https://planningportal.im/a/27049-rushen-onyx-house-shore-road-underway-lawful-use-certificate/documents/1036273*