**Document:** DEC Officer Report
**Application:** 24/00235/LAW — Application to make lawful the use of the property as a House in Multiple Occupancy (HMO)
**Decision:** Certificate of Lawful Use/Devel Approved
**Decision Date:** 2024-10-01
**Parish:** Braddan
**Document Type:** report / officer_report
**Source:** https://planningportal.im/a/32363-braddan-chesterfield-dwelling-hmo/documents/1061794

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# DEC Officer Report

**Application No.:** 24/00235/LAW
**Applicant:** Urban Space Limited
**Proposal:** Application to make lawful the use of the property as a House in Multiple Occupancy (HMO)
**Site Address:** Chesterfield 4 Mona Drive Douglas Isle Of Man IM2 4LG
**Planning Officer:** Vanessa Porter
**Expected Decision Level:** Officer Delegation
**Recommended Decision:** Certificate of Lawful Use/Devel Approved
**Date of Recommendation:** 16.09.2024 _________________________________________________________________

## Conditions and Notes for Approval

C : Conditions for approval N : Notes attached to conditions

C 1. There is sufficient evidence to demonstrate that Chesterfield, No.4 Mona Drive has been used as a HMO of 16 rooms for up to 16 people, not including the basement self-contained 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 7th August 2024 _______________________________________________________________

Interested Person Status 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:

- 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 the use of the property as a HMO at Chesterfield, 4 Mona Drive which is a mid terrace 4 storey property with a basement apartment situated to the East of Mona Drive. - 2.2 The application seeking the Certificate of Lawfulness was submitted on 19th April 2024. PLANNING HISTORY

3.1 The following are applications upon the property; - 3.2 PA09/01882/C - Change of use to a self contained residential apartment - Approved at Appeal - 3.3 PA01/01743/B - Erection of rear porch at lower ground floor with ground floor wc over, and installation of uPVC windows to replace existing - Split decision on review - 3.4 PA87/01376/B - Change of use to office accommodation - 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;

- - Covering Letter
- - Location Plan
- - Statement
- - Email dated 6th November 2018 from Ms Morgan and reply regarding HMO

- - Letter to Ms Morgan dates 23rd January 2017
- - Letter dated 1st September 2020 from Ms Wendy Cull regarding the possibility of a HMO
- - Floor Plan
- - Property Insurance document dated 4th June 2009
- - Letter from the Fire Office dated 4th August 2010
- - Letter from Mr Richard Vernon dated 13th February 2009 to Mr Blacker
- - Rent Payments from the following dates;
- - 14th August 2009 to 20th August 2009
- - 21st August 2009 to 27th August 2009
- - 28th August 2009 to 3rd September 2009
- - 4th September 2009 to 10th September 2009
- - 11th September 2009 to 17th September 2009
- - 18th September 2009 to 24th September 2009
- - 25th September 2009 to 1st October 2009
- - 2nd October 2009 to 8th October 2009
- - 9th October 2009 to 15th October 2009
- - 16th October 2009 to 22nd October 2009
- - 23rd October 2009 to 29th October 2009
- - 30th October 2009 to 5th November 2009
- - 6th November 2009 to 12th November 2009
- - 13th November 2009 to 19th November 2009
- - 20th November 2009 to 26th November 2009
- - 27th November 2009 to 3rd December 2009
- - 4th December 2009 to 10th December 2009
- - 11th December 2009 to 16th December 2009
- - 17th December to 23rd December 2009
- - 24th December 2009 to 7th January 2009
- - 8th December 2009 to 14th January 2010
- - 15th January 2010 to 21st January 2010
- - 22nd January 2010 to 28th January 2010
- - 29th January 2010 to 4th February 2010
- - 5th February 2010 to 11th February 2010
- - 12th February 2010 to 18th February 2010
- - 19th February 2010 to 25th February 2010
- - 26th February 2010 to 4th March 2010
- - 5th March 2010 to 11th March 2010
- - 12th March 2010 to 18th March 2010
- - 19th March 2010 to 25th March 2010
- - 26th March 2010 to 31st March 2010
- - 1st April 2010 to 8th April 2010
- - 9th April 2010 to 15th April 2010
- - 16th April 2010 to 22nd April 2010
- - 23rd April 2010 to 29th April 2010
- - 30th April 2010 to 6th April 2010
- - 7th May 2010 to 13th May 2010
- - 14th May 2010 to 20th May 2010
- - 21st May 2010 to 27th May 2010
- - 28th May 2010 to 3rd June 2010
- - 4th June 2010 to 8th June 2010
- - 9th June 2010 to 17th June 2010
- - 18th June 2010 to 24th June 2010
- - 25th June 2010 to 1St July 2010
- - 2nd July 2010 to 8th July 2010
- - 9th July 2010 to 15th July 2010
- - 16th July 2010 to 22nd July 2010
- - 23rd July 2010 to 29th July 2010

- - 30th July 2010 to 5th August 2010
- - 6th August 2010 to 12th August 2010
- - 3rd June 2011 to 8th June 2011
- - 9th June 2011 to 16th June 2011
- - 17th June 2011 to 23rd June 2011
- - 24th June 2011 to 30th June 2011
- - 1st July 2011 to 7th July 2011
- - 8th July 2011 to 15th July 2011
- - 15th July 2011 to 21st July 2011
- - 22nd July 2011 to 28th July 2011
- - 29th July 2011 to 4th August 2011
- - 5th August 2011 to 11th August 2011
- - 12th August 2011 to 18th august 2011
- - 19th August 2011 to 25th August 2011
- - 26th August 2011 to 1st September 2011
- - 2nd September 2011 to 8th September 2011
- - 9th September 2011 to 15th September 2011
- - 16th September 2011 to 22nd September 2011
- - 23rd September 2011 to 29th September 2011
- - 30th September 2011 to 6th October 2011
- - 7th October 2011 to 13th October 2011
- - 14th October 2011 to 20th October 2011
- - 21st October 2011 to 27th October 2011
- - 28th October 2011 to 3rd November 2011
- - 4th November 2011 to 10th November 2011
- - 11th November 2011 to 17th November 2011
- - 18th November 2011 to 24th November 2011
- - 25th November 2011 to 1st December 2011
- - 2nd December 2011 to 8th December 2011
- - 9th December 2011 to 14th December 2011
- - 15th December 2011 to 21st December 2011
- - 22nd December 2011 to 5th January 2012
- - Tenancy Agreement, Room 2 dated 17th May 2013 for a year tenancy
- - Tenancy Agreement, Room 2 dated 17th May 2015 for a year tenancy
- - Tenancy Agreement, Room 2 dated 17th May 2016 for a year tenancy
- - Tenancy Agreement, Room 2 dated 17th May 2017 for a year tenancy
- - Tenancy Agreement, Room 2 dated 17th May 2018 for a year tenancy
- - Tenancy Agreement, Room 3 dated 27th January 2019 for a year tenancy
- - Tenancy Agreement, Room 3 dated 27th January 2021 for a year tenancy
- - Tenancy Agreement, Room 3 dated 27th January 2020 for a year tenancy
- - Tenancy Agreement, Room 3 dated 27th January 2022 for a year tenancy
- - Tenancy Agreement, Room 3 dated 27th January 2023 for a year tenancy
- - Tenancy Agreement, Room 4 dated 22nd June 2013 for a year tenancy
- - Tenancy Agreement, Room 4 dated 22nd June 2015 for a year tenancy
- - Tenancy Agreement, Room 4 dated 22nd June 2016 for a year tenancy
- - Tenancy Agreement, Room 4 dated 22nd June 2017 for a year tenancy
- - Tenancy Agreement, Room 4 dated 22nd June 2018 for a year tenancy
- - Tenancy Agreement, Room 5 dated 7th June 2018 for a year tenancy
- - Tenancy Agreement, Room 5 dated 7th June 2019 for a year tenancy
- - Tenancy Agreement, Room 5 dated 7th June 2021 for a year tenancy
- - Tenancy Agreement, Room 5 dated 7th June 2023 for a year tenancy
- - Tenancy Agreement, Room 5 dated 7th June 2022 for a year tenancy
- - Tenancy Agreement, Room 6 dated 14th May 2019 for a year tenancy
- - Tenancy Agreement, Room 6 dated 14th May 2020 for a year tenancy
- - Tenancy Agreement, Room 6 dated 14th May 2021 for a year tenancy
- - Tenancy Agreement, Room 6 dated 14th May 2022 for a year tenancy

- - Tenancy Agreement, Room 11 dated 18th April 2023 for a year tenancy
- - Tenancy Agreement, Room 7 dated 24th April 2018 for a year tenancy
- - Tenancy Agreement, Room 7 dated 24th April 2019 for a year tenancy
- - Tenancy Agreement, Room 7 dated 24th April 2020 for a year tenancy
- - Tenancy Agreement, Room 7 dated 24th April 2021 for a year tenancy
- - Tenancy Agreement, Room 7 dated 24th April 2022 for a year tenancy
- - Tenancy Agreement, Room 7 dated 24th April 2023 for a year tenancy
- - Tenancy Agreement, Room 8 dated 3rd July 2013 for a year tenancy
- - Tenancy Agreement, Room 8 dated 3rd July 2014 for a year tenancy
- - Tenancy Agreement, Room 8 dated 3rd July 2015 for a year tenancy
- - Tenancy Agreement, Room 8 dated 3rd July 2016 for a year tenancy
- - Tenancy Agreement, Room 8 dated 3rd July 2017 for a year tenancy
- - Tenancy Agreement, Room 8 dated 3rd July 2018 for a year tenancy
- - Tenancy Agreement, Room 10 dated 25th September 2019 for a year tenancy
- - Tenancy Agreement, Room 10 dated 25th September 2021 for a year tenancy
- - Tenancy Agreement, Room 10 dated 25th September 2022 for a year tenancy
- - Tenancy Agreement, Room 10 dated 25th September 2023 for a year tenancy
- - Tenancy Agreement, Room 11 dated 18th April 2018 for a year tenancy
- - Tenancy Agreement, Room 11 dated 18th April 2019 for a year tenancy
- - Tenancy Agreement, Room 11 dated 18th April 2020 for a year tenancy
- - Tenancy Agreement, Room 11 dated 18th April 2021 for a year tenancy
- - Tenancy Agreement, Room 11 dated 18th April 2022 for a year tenancy
- - Tenancy Agreement, Room 11 dated 18th April 2023 for a year tenancy
- - Tenancy Agreement, Room 12 dated 15th March 2019 for a year tenancy
- - Tenancy Agreement, Room 12 dated 15th March 2019 for a year tenancy
- - Tenancy Agreement, Room 12 dated 15th March 2020 for a year tenancy
- - Tenancy Agreement, Room 12 dated 15th March 2021 for a year tenancy
- - Tenancy Agreement, Room 12 dated 15th March 2022 for a year tenancy
- - Tenancy Agreement, Room 12 dated 15th March 2023 for a year tenancy
- - Tenancy Agreement, Room 14 dated 10th March 2013 for a year tenancy
- - Tenancy Agreement, Room 14 dated 10th March 2014 for a year tenancy
- - Tenancy Agreement, Room 14 dated 10th March 2015 for a year tenancy
- - Tenancy Agreement, Room 14 dated 10th March 2016 for a year tenancy
- - Tenancy Agreement, Room 14 dated 10th March 2017 for a year tenancy
- - Tenancy Agreement, Room 14 dated 10th March 2018 for a year tenancy
- - Tenancy Agreement, Room 15 dated 28th November 2013, for a year tenancy
- - Tenancy Agreement, Room 15 dated 28th November 2014 for a year tenancy
- - Tenancy Agreement, Room 15 dated 28th November 2015 for a year tenancy
- - Tenancy Agreement, Room 15 dated 28th November 2016 for a year tenancy
- - Tenancy Agreement, Room 15 dated 28th November 2017 for a year tenancy
- - Tenancy Agreement, Room 15 dated 28th November 2018 for a year tenancy
- - Tenancy Agreement, Room 16 dated 10th June 2018 for a year tenancy
- - Tenancy Agreement, Room 16 dated 10th June 2019 for a year tenancy
- - Tenancy Agreement, Room 16 dated 10th June 2021 for a year tenancy
- - Tenancy Agreement, Room 16 dated 10th June 2022 for a year tenancy
- - Tenancy Agreement, Room 16 dated 10th June 2023 for a year tenancy
- - Tenancy Agreement, Room 17 dated 27th January 2013 for a year tenancy
- - Tenancy Agreement, Room 17 dated 27th January 2015 for a year tenancy
- - Tenancy Agreement, Room 17 dated 27th January 2016 for a year tenancy
- - Tenancy Agreement, Room 17 dated 27th January 2017 for a year tenancy
- - Tenancy Agreement, Room 17 dated 27th January 2018 for a year tenancy
- - Tenancy Agreement, Room 18 dated 5th January 2019 for a year tenancy
- - Tenancy Agreement, Room 18 dated 5th January 2021 for a year tenancy
- - Tenancy Agreement, Room 18 dated 5th January 2022 for a year tenancy

5.2 The following additional information was received (7th August 2024) for clarification on the room numbers/ floor plan and for additional information regarding rooms 1, 6, 9, 11 & 13.

- - Covering letter
- - Floor plan when constructed
- - Floor plan with allocations - dated 4th February 2015
- - Historic floor plan graph
- - Tenancy Agreement, Room 6 dated 14th May 2019 for a year tenancy - Tenancy Agreement, Room 6 dated 14th May 2020 for a year tenancy - Tenancy Agreement, Room 6 dated 14th May 2021 for a year tenancy - Tenancy Agreement, Room 6 dated 14th May 2022 for a year tenancy - Tenancy Agreement, Room 6 dated 14th May 2023 for a year tenancy
- - Tenancy Agreement, Room 11 dated 18th April 2018 for a year tenancy - Tenancy Agreement, Room 11 dated 18th April 2019 for a year tenancy - Tenancy Agreement, Room 11 dated 18th April 2020 for a year tenancy - Tenancy Agreement, Room 11 dated 18th April 2021 for a year tenancy - Tenancy Agreement, Room 11 dated 18th April 2022 for a year tenancy - Tenancy Agreement, Room 11 dated 18th April 2023 for a year tenancy - Letter from Mrs Spencer dated 8th November 2015
- - Letter from Mrs Spencer dated 10th December 2015 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 evidence provided ranges from several rent agreements to tenancy agreements and also letters from the Department with regards to the fact that the property could possibly be functioning as a HMO. - 6.4 The applicant is relying on the fact that they bought the property in 2009 and that they have been using the property as a HMO since then, leasing 16 rooms to single tenants, as shows within the tenancy agreements provided. The evidence ranges from 2009 through to 2023. - 6.5 On the balance of probabilities and as there is no other evidence available to the Department which contradicts or undermines the applicant's version of events, the Department is satisfied that property has been operating a house in multiple occupation with the use of the site as a 16 bedroomed HMO situated with confirmation that the rooms have been single occupancy by the tenancy agreements provided.

CONCLUSION 7.1 The information provided is enough to establish that the use has exceeded the 10 years and is considered immune from the issue of an enforcement notice.

7.2 It is recommended that a Certificate of Lawful Use be issued in respect of the use as independent residential accommodation. RECOMMENDATION - 8.1 It is recommended that the application be approved subject to the following wording of the Certificate of Lawfulness for the existing use of the property as a house in multiple occupation of not more than 16 residents, minus the basement apartment.

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: 01.10.2024 Determining Officer Signed : J SINGLETON Jason Singleton Principal Planner

Customer note This copy of the officer report reflects the content of the office copy and has been produced in this form for the benefit of our online service/customers and archive record.

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*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/32363-braddan-chesterfield-dwelling-hmo/documents/1061794*