**Document:** DEC Officer Report **Application:** 24/00507/LAW — Certificate of Lawful Use by Onchan District Commissioners for green waste recycling. **Decision:** Certificate of Lawful Use Declined **Decision Date:** 2024-08-30 **Parish:** Braddan **Document Type:** report / officer_report **Source:** https://planningportal.im/a/32500-braddan-centenary-park/documents/1064014 --- # DEC Officer Report ## PLANNING OFFICER REPORT AND RECOMMENDATION **Application No.:** 24/00507/LAW **Applicant:** Mr Ryan Forgie **Proposal:** Certificate of Lawful Use by Onchan District Commissioners for green waste recycling. **Site Address:** Centenary Park Hillberry Road Onchan Isle Of Man **Planning Officer:** Vanessa Porter **Recommended Decision:** Certificate of Lawful Use Declined **Date of Recommendation:** 13.08.2024 _________________________________________________________________ R : Reasons for Refusal O : Notes attached to reasons Reasons for Refusal R 1. Based on the evidence which has been submitted as part of the application, it is not considered that, on the balance of probabilities, that it has been adequately demonstrated that the use of the application site as a green waste recycling area, for a period of time in excess of 10 years. As such it is recommended that the application be refused and a Certificate of Lawful Development not be issued. _______________________________________________________________ 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 seeks a Certificate of Lawful Use of the use of part of Centenary Park, Hillberry Road, Onchan as a green waste recycling area for the local authority, Onchan District Commissioners. The application form states that it is used for green waste produced through the Onchan public open areas and has been so since early 1970's. The site is situated within the middle of the park and is approximately 20m by 40m. - 2.2 The application seeking the Certificate of Lawfulness was submitted on 22nd May 2024. PLANNING HISTORY 3.1 The application site has had two previous applications; - 3.2 PA15/00172/B - Creation of woodland Centenary Park incorporating a nature trail, memorial garden, ponds, tree planting and implement shed - Permitted - 3.3 PA11/00717/A - Approval in principle for the creation of a vehicle park - 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 (in no order): - i, 2009 Aerial photography of the site - ii, 2017 Aerial photography of the site - iii, Extract from The Story of a Village - iv, Brief Design Statement - v, Letter from Mr Quine to Mr Peter Kelly regarding covering part of the site with soil, dated 6th July 1995. - vi, Correspondence regarding the creation of an access road to Cronk Ny Mona Service Reservoir, of which the most relevant correspondence to this application is the letter dated 21st September 2000. - vii, Drawing No. EX-01 - viii, Correspondence regarding the frequency of use - ix, Authorisation of exempt activity dated 20th April 2022 for the composting of grass cuttings ASSESSMENT 6.1 Considering this application, the applicant seeks to reply on the fact that they have been using the site as an area for green waste recycling for a period of exceeding 10 years, to establish that the change of use can be considered lawful, as set out in Part 4, Section 24(2) of the Town and Country Planning Act 1999. 6.2 When looking at Certificates of Lawfulness applications for a change of use, there needs to be evidence sufficient to demonstrate that a use has continued at the same level of intensity and for the same purpose for a period in excess of 10 years. The applicant has provided two ariels, one from 2009 and one from 2017, plus a range of letters and information. - 6.3 In the first instance a lot of the information provided, makes relevant to either the use of the site as a tip, or the soiling over of the site, which is not what the CLU is requesting for, with the most relevant information for this being the book extract, the letters from the Planning Office. - 6.4 The request within this CLU is regarding the use of the site as a green waste recycling area, with only two aerials being provided to the Department to show that the site has been used, these aerials are widely different from each other, with the most recent showing a large amount of built fabric which planning has not been sought for and it is not clear from the submission if this is associated with the Centenary Park planning application. With this in mind, the Department aerials were looked at to ascertain what was happening upon the site, due to 10 years from todays date being 2014, the aerials from 2012 were looked at, as given the area shown on the location plan and it is not clear from the aerials what the area is being used for. 2012 - the aerial shows no path to the application site and whilst it does look like there is some movement of the ground, this is not within the application site itself. 2015 - no path to the application site and whilst there looks to be movement of the ground, this is not within the application site itself. - 2017 - shows there is dumping of items, this cannot specifically be seen as green waste but there is harris fencing and other solid waste within the application site. - 2018 - shows two "bays" within the application site, it cannot be ascertained whether this is dried soil, green waste, rubble or other item. The bay's within this aerial are different to the 2017 aerial. 2021 - This aerial is again different to the 2018 aerial, whilst one potential bay can be seen it is larger than the bay within the 2018 aerial. ## CONCLUSION 7.1 Based on the information provided and the aerials the Department has at hand, there is not sufficient evidence provided to demonstrate that the area shown on the location plan has been used for green waste recycling for Onchan District continuously, in the same area, at the same level of intensity for the same purpose for a period in excess of 10 years. 7.2 It is recommended that a Certificate of Lawful Development should not be issued in respect of the use of the application site as a green waste recycling area. 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 Declined Date : 30.08.2024 Determining officer Signed : A MORGAN Abigail Morgan Acting Head of Development Management 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/32500-braddan-centenary-park/documents/1064014*