**Document:** Planning Officer - Statement of Case
**Application:** AP25/0029 — Appeal against the condition 2 for the erection of replacement stone wall; creation of new vehicular access and driveway; erection of boundary fencing with drainage channel
**Decision:** Not Available
**Decision Date:**
**Parish:** Marown
**Document Type:** appeal / appeal_statement
**Source:** https://planningportal.im/a/88431-marown-close-jairg-beg-old-church-appeal-against-condition/documents/1141880

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# Planning Officer - Statement of Case

Please reply to the signatory

Tel: (01624) 685910

Fax: (01624) 686443 Email: chris.balmer@gov.im

Our Ref: 25/90192/B Your Ref: Jennifer Chance, M.R.T.P.I. Director of Planning & Building Control Lorna Milestone, Planning Appeals Administrator, Chief Secretary's Office, Government Offices, Buck's Road, Douglas, IM1 3PN. 5 September 2025 PA No: 25/90192/B

Proposal: Erection of replacement stone wall; creation of new vehicular access and driveway; erection of boundary fencing with drainage channel.

Address: Close Jairg Beg, Old Church Road, Crosby, Isle Of Man, IM4 2HA

Please find a statement that sets out the position of the Department in respect of the above planning application.

The application was determined by the Planning Committee on 28th July 2025. This statement relies upon the Planning Officer’s original report which is online and forms part of the planning file, and the minutes from the Planning Committee meeting which is provided at the end of this statement.

The enclosed statement comprises the following parts:

- 1. A Statement of Case (Appendix 1).
- 2. Minute extract of the Planning Committee meeting (Appendix 2). Yours sincerely,

Paul Visigah, B.Tech (Hons), MSc, RTP, MRTPI Senior Planning Officer

### Appendix 1 – Statement of Case

STATEMENT OF THE

Department of Environment, Food and Agriculture

## Planning & Building Control Directorate

Planning statement on behalf of the Department relative to:

Erection of replacement stone wall; creation of new vehicular access and driveway; erection of boundary fencing with drainage channel. Close Jairg Beg, Old Church Road, Crosby, Isle Of Man, IM4 2HA PA Reference: 25/90192/B Prepared on behalf of the Planning Department by Senior Planning Officer: Mr Paul Visigah, B.Tech (Hons), MSc, RTP, MRTPI

- 1.0 Appeal Against Condition 2 of PA 25/90192/B

- 1.1 Condition Under Appeal

- 1.1.1 The appeal relates solely to Condition 2 of the planning approval granted under PA 25/90192/B. The condition reads: Condition 2: The boundary fencing shown on the approved plan (Drawing No. 21-01-100 REV C - Proposed Site Plan and Wall Elevation) shall be no greater than 1.8m in height and shall be erected and completed in full prior to the first use of the new vehicular access hereby approved and shall thereafter be permanently retained in that form. The fencing shall be maintained to ensure continued physical and functional separation between the residential curtilage of Close Jairg Beg and the adjoining land to the south. At no time shall the residential dwelling and the adjoining land be reconnected by vehicular means, including through the reinstatement of any internal driveway link.

Reason: To secure and retain the functional separation that forms the basis of the highway safety justification for the development, and to ensure compliance with General Policy 2(h) and the Manual for Manx Roads (Section B.4.1).

The condition was imposed to ensure that the planning justification for the new access remains valid, particularly in light of previous refusals (PA 21/00796/B), the Manual for Manx Roads, and the applicant’s own correspondence confirming both the intent to separate vehicular access and the functional reorganisation of the site. The correspondence clarifies that the new access serves only the house, while the existing access now serves fields 324318 and 324316, with no vehicular connection between them. The fencing, requested by the Highways Department, was introduced specifically to prevent dual vehicular access and is integral to the scheme’s compliance with General Policy 2(h) and the highway safety principles set out in the Strategic Plan and supporting guidance.

- 2.0 Legal and Policy Position In accordance with S10 of the Town Country Planning Act the application has been considered; S(4) In dealing with an application for planning approval or an application under subsection (3), the Department shall have regard to —

- (a) the provisions of the development plan, so far as material to the application; (ab) any relevant national policy directive under section 2A;
- (b) any relevant statement of planning policy under section 3;

- (b) such other considerations as may be specified for the purpose of this subsection in a development order or a development procedure order, so far as material to the application; and
- (c) all other material considerations.

There is a statutory duty to take into account the above, and while it is recognised that weight to be given is a matter for the decision maker.

In this application, the most weight has been given to the Strategic Plan and the Area Plan for the East, as they have been through a statutory process, which includes evidence base and public consultation process, and are adopted by Tynwald.

Other material considerations referenced in the officer report include the Manual for Manx Roads, which was subject to targeted consultation and formally adopted by the Minister, thereby affording it greater weight, as well as the IOM Biodiversity Strategy 2015 to 2025. Additionally, reference is made to historic UK case law and Appeal decisions concerning the definition and alteration of curtilages.

#### 3.0 Response to Grounds of Appeal

- 3.01 This section addresses the appellant’s challenge to Condition 2 of the planning approval for PA 25/90192/B, which requires the retention of fencing to maintain physical and functional separation between the dwelling and the adjoining land. While the Officer Report (Sections 7.2.5 and 7.3) provides a comprehensive assessment of the planning justification, this statement supplements that analysis with legal judgments and a contextual evaluation of the applicant’s correspondence.

#### 3.02 Appellant’s Grounds for Contesting Condition 2

- 3.02.1 The appellant contends that the fencing required by Condition 2 was installed solely to prevent vehicular movement between two access points and to contain domestic pets, not to redefine the residential curtilage of Close Jairg Beg. It is argued that the garden area beyond the fence remains unchanged and continues to form part of the residential curtilage. The appellant further states that the application did not propose a change of use for the land to the south and that the fencing should not be interpreted as a basis for curtilage redefinition.
- 3.02.2 In support of this position, the appellant references the High Court judgment (CHP21/003), which quashed Map 10 of the Area Plan for the East in relation to Close Jairg Beg. The appeal seeks the removal or amendment of Condition 2 on the basis that it imposes an unnecessary restriction on the use of land historically associated with the dwelling and misinterprets the purpose of the fencing.

- According to the official summary of the Court Judgement published on the Area Plan for the East webpage reads: “Following a High Court judgment on the 19 November 2021 brought under Section 5 of the Town and Country Planning Act 1999, the High Court has quashed Map 10 in so far as it affects the property Close Jairg Beg, Old Church Road, Crosby, set out in the approved Area Plan for the East. As a result of this judgment, no part of the title of Close Jairg Beg including the existing bungalow is within the settlement boundary on Map 10 of the Area Plan for the East, which was brought into operation by the Town and Country Planning (Area Plan for the East) Order 2020. As a consequence, Map 3 has also been updated to reflect this.”
- 3.02.3 This statement responds to the appeal by examining the planning implications of the fencing and access arrangements, drawing on the applicant’s correspondence dated 30 June 2025, relevant UK case law, and the assessment set out in Sections 7.2.5, 7.3, and 7.5.6 of the Officer Report.

- 3.1 FOLLOWING SECTION ADDRESSES THOSE ISSUES DIRECTLY

- 3.1.0 Planning and Legal Context

- 3.1.0.1 It is important to note that the High Court judgment (CHP21/003, J M Project Management Ltd v Cabinet Office) did not affirm the curtilage status of the land. While the concept of residential curtilage was discussed, particularly in relation to aerial imagery, planning history, and physical site features, the Court made no formal determination on whether the land constituted curtilage. Rather, it quashed Map 10 solely on the basis of procedural unfairness in the plan-making process. As a result, the entire title, including the dwelling, now lies outside the settlement boundary and is subject to all policies related to development in the countryside. The planning status of the land must therefore be assessed on the basis of functional use and physical arrangement, as well as its designation.
- 3.1.0.2 It is important to clarify that the planning issue at hand is not whether the site historically functioned as a single curtilage, but rather whether the approved development introduced a material change in the way access to the dwelling and wider landholding is arranged. The appeal decision under PA 21/00796/B (AP22/0028) did not redefine the operational use of the land, nor did it establish a new curtilage boundary. However, it described the intended physical layout that would result from the proposal should it be approved: “A new 4m wide gravel driveway to the house would be positioned about 40m north of the existing site entrance. The existing drive would then be severed between the Road and the dwelling, leaving

- the present entrance to serve only the larger part of the land to the side and rear of the house.” (Inspector’s Report, para. 4)
- 3.1.0.3 This physical arrangement was not considered functionally justified at the time of the appeal. The Inspector concluded that: “The degree of need for the development amounts to little more than a preference by the Appellants to re-route the driveway for reasons of economy and convenience.” (para. 86) “Any benefit of the development would be similarly limited.” (para. 87) “On balance, I do not consider that the proposed development is to be regarded as compliant with the aims of GP2, TP4 and TP6 of the IMSP to safeguard all road users including pedestrians.” (para. 78)
- 3.1.0.4 However, in the current scheme, the introduction of a 1.8m boundary fence and the removal of the internal driveway link were explicitly required to secure functional separation between the dwelling and the adjoining land, forming the basis upon which the new development was deemed acceptable. As stated in the Officer Report: “The provision of physical separation through the erection of fencing is fundamental to the acceptability of the current scheme… Without it, the proposal would fail to demonstrate the policycompliant benefits now claimed, and the principle of a separate access would collapse.” (Officer Report, para. 7.2.5). This fencing was not merely domestic in character but served a planning function; ensuring that each access point served a distinct and independent use, thereby satisfying the Manual for Manx Roads (Section B.4.1) and General Policy 2(h). The Inspector’s earlier concern that “two entrances to the same property would reduce road safety” (para. 76) was directly addressed through this operational segregation.
- 3.1.0.5 Accordingly, the current planning context reflects a deliberate and policy-driven separation of the dwelling from the wider landholding. While the appeal decision did not itself establish this separation, it set the groundwork for the revised scheme’s acceptability. The curtilage status of the land must now be reassessed in light of this approved configuration, which introduces both physical and functional division.

#### 3.1.1 Curtilage Definition and Planning Consequences

- 3.1.1.1 The appellant asserts that the fencing does not alter the curtilage of Close Jairg Beg and that the land beyond remains part of the residential garden. However, this position is inconsistent with both the functional arrangements described in the applicant’s own correspondence and the legal principles established in case law.

- 3.1.1.2 As stated in the applicant’s email dated 30 June 2025 (quoted in Section 2.7 of the Officer Report): “The new access will serve only the house Close Jairg Beg and the existing access will only serve fields 324318 and 324316. There will be no vehicular access from the house to these fields.” “The fence was requested by the Highways Department to prevent 2 vehicular access points to the house.” This confirms a deliberate and operational severance between the dwelling and the adjoining land. As noted in Sections 7.3.1–7.3.4 of the Officer Report, curtilage is not a fixed legal boundary, but a contextual assessment based on fact and degree. It must be re-evaluated where changes to physical boundaries or use disrupt the integrated functioning of the land.

- 3.1.1.2 Building on the approved scheme, the introduction of a new vehicular access and the 1.8m fence now establish a sustained physical and operational separation, which materially alters the planning relationship between the dwelling and the adjoining land. This aligns with the principles established in Dancey v SoS, Methuen-Campbell v Walters, and Burdle v SoS, which confirm that curtilage unity is lost where land is functionally and physically divided.

3.1.2 Justification for Condition 2

- 3.1.2.1 Condition 2 is not intended to redefine curtilage arbitrarily, but to secure the planning justification for the new access. As stated in Section 7.2.5 of the Officer Report: “The fencing… is central to its planning justification. Without it, the proposal would fail to demonstrate the policy-compliant benefits now claimed, and the principle of a separate access would collapse.” This position is reinforced by the 2022 Inspector’s Report (PA 21/00796/B), which concluded: “The existence of two entrances to the same property would reduce road safety, even with the present driveway severed from the house.” Condition 2 operationalises this recommendation by ensuring that the functional separation is retained, thereby upholding the highway safety rationale that underpins the approval.

3.1.3 Planning Identity and Permitted Development

- 3.1.3.1 The appellant’s assertion that the fencing is incidental and does not affect planning status is contradicted by UK judgments such as Challenge Fencing Ltd v SSHCLG and R (Hampshire CC) v SoS for Environment, which confirm that permitted development rights do not apply where the cumulative effect of works materially alters the planning status of land.

- 3.1.3.2 The fencing, access arrangements, and operational separation collectively alter the planning identity of the site. Condition 2 ensures this change is retained and regulated, preventing ambiguity over curtilage and planning boundaries.

3.2 Historic UK Case Law and Appeal Decisions

- 3.2.1 In accordance with Section 1.6.1 of the Isle of Man Strategic Plan 2016, which permits reference to UK legal judgments where Manx guidance is limited, the following cases and appeal decisions are presented to support the planning rationale for Condition 2. These cases clarify the legal principles surrounding curtilage definition, planning unit formation, and the implications of physical and functional severance. They reinforce the Department’s position that the fencing and access arrangements materially alter the planning identity of the site and justify the retention of Condition 2.

3.3 Court Decisions

- 3.3.1 The following cases establish key legal principles relevant to curtilage definition, planning unit formation, and the material change of use threshold. These support the assessment in Section 7.3 of the Officer Report regarding the implications of physical and functional severance, permitted development, and planning identity.

- 3.3.2 Curtilage as a Matter of Fact and Degree These cases confirm that curtilage is not defined by title boundaries or historical approvals but is assessed based on proximity, enclosure, and functional relationship.

- i. Dancey v SoS & Lewes DC (1980) – Curtilage is a matter of fact and degree, not legal boundary.
- ii. Methuen-Campbell v Walters [1979] – Fenced-off land with limited access was not curtilage.
- iii. James v SoS [1990] – A tennis court 100m from a dwelling was ruled outside curtilage due to separation and lack of functional integration.

- 3.3.3 Planning Unit and Material Change of Use These cases establish that planning units can be redefined through functional separation and that material change of use can occur without physical development.

- i. Burdle v SoS [1972] – Planning units are defined by use; changes in function can trigger material change.
- ii. Wakelin v SSE (1978) – Material change of use can occur without operational development.

- 3.3.4 Permitted Development and Cumulative Impact

These cases confirm that permitted development rights are constrained where cumulative changes alter the planning status of land.

- i. Challenge Fencing Ltd v SSHCLG [2019] – PD rights do not apply where cumulative works materially alter land use.
- ii. R (Hampshire CC) v SoS [2020] – PD cannot be relied upon where works facilitate a material change in use.

- 3.3.5 Limits of Functional Association This case illustrates that operational use alone does not establish curtilage status, especially where scale and separation undermine integration. Blackbushe Airport Ltd v Hampshire CC [2021] – 115 acres of airfield could not be curtilage to a 360m² terminal building; curtilage must be “part and parcel” of the building.

#### 3.4 UK Appeal Decisions on Curtilage and Separation

- 3.4.1 The following appeal decisions illustrate how planning inspectors have interpreted curtilage boundaries and the loss of curtilage status where land is physically or functionally severed from a dwelling. These cases demonstrate that fencing, separate access, and independent use can result in land falling outside the curtilage, even where domestic appearance or proximity remain:

- i. South Somerset (2011) – Land with separate access and no visual connection was not curtilage.
- ii. Brentwood (2013) – Domestic appearance alone did not establish curtilage.
- iii. Three Rivers (2004) – Fencing and hedgerows defined new curtilage; adjacent land required separate permission.

3.5 Integration with Officer Report

- 3.5.1 The legal cases and appeal decisions referenced in this statement directly support the assessment provided in Section 7.3 of the Officer Report, which concludes that the fencing and access arrangements at Close Jairg Beg introduce both physical and operational severance, thereby redefining the planning unit. These support Condition 2, which secures this separation and ensures compliance with General Policy 2(h) and the Manual for Manx Roads (Section B.4.1). The Officer Report acknowledges, in paragraph 7.3.1, that curtilage is not fixed in perpetuity and must be reassessed where changes to boundaries or use undermine the integrated operation of the land.

As previously quoted in Section 3.1.1.2, the applicant’s correspondence dated 30 June 2025 confirms the intent to separate vehicular access between the house and the fields, with the fence ensuring that residential use is functionally distinct from agricultural use. This severance reinforces the

necessity of Condition 2 to preserve the planning justification for the approved scheme and to prevent future reversion to a dual-access planning unit, which was previously found to be unacceptable on highway safety grounds.

#### 3.6 Conclusion

- 3.6.1 Condition 2 is a necessary and proportionate planning safeguard. It is policy-compliant, aligning with General Policy 2(h), Strategic Policy 5(a), and the Manual for Manx Roads, and is legally justified by relevant UK legal cases and planning appeal decisions which confirm that physical and operational separation can redefine curtilage and planning units. The applicant’s own correspondence confirms the intent to sever vehicular access and use, and the Officer Report (Sections 7.2.5 and 7.3) clearly demonstrates that such separation is essential to the acceptability of the scheme. The fencing and access arrangements prevent vehicular integration between the residential use and the use of adjoining fields as agricultural land, supporting the independent use and development of the fields in accordance with their designation in the Area Plan as land outside the settlement boundary, not zoned for development. This reinforces that the separation is not only about highway safety, but in addition about preserving the planning integrity of both land parcels, consistent with General Policy 2(k). Accordingly, the appeal against Condition 2 should be dismissed, and the condition retained in full to ensure that the development is carried out in accordance with the details and rationale for which approval was granted, so as to preserve the integrity of the residential unit and use of the adjoining land, as well as to avoid unacceptable highway safety impacts.

- 3.6.2 If Condition 2 were to be removed, the basis upon which the development was deemed acceptable would no longer apply. The physical and functional separation secured by the fencing and access arrangements was fundamental to resolving the highway safety concerns identified in the previous appeal (PA 21/00796/B), and to ensuring that each access serves a distinct planning unit. Without this separation, the development would reintroduce the same planning harms previously found to be unacceptable, including the presence of two vehicular entrances serving a single unit, contrary to the Manual for Manx Roads and General Policy 2(h). The removal of Condition

2 would therefore undermine the integrity of the approved scheme and invalidate the rationale for its approval. In such circumstances, refusal of the application would be the appropriate recommendation.

- 4.0 Recommended conditions C1. The development hereby approved, including the access, visibility, and driveway, shall be provided and surfaced strictly in accordance with the details shown on the approved plan (Drawing

No. 21-01-100 REV C - Proposed Site Plan and Wall Elevation) prior to the first use of the access. Once provided, all access arrangements shall thereafter be permanently retained as such.

Reason: To ensure the provision of a means of access to an adequate standard in the interests of road safety.

C2. The boundary fencing shown on the approved plan (Drawing No. 21-01-100 REV C - Proposed Site Plan and Wall Elevation) shall be no greater than 1.8m in height and shall be erected and completed in full prior to the first use of the new vehicular access hereby approved and shall thereafter be permanently retained in that form. The fencing shall be maintained to ensure continued physical and functional separation between the residential curtilage of Close Jairg Beg and the adjoining land to the south. At no time shall the residential dwelling and the adjoining land be reconnected by vehicular means, including through the reinstatement of any internal driveway link.

Reason: To secure and retain the functional separation that forms the basis of the highway safety justification for the development, and to ensure compliance with General Policy 2(h) and the Manual for Manx Roads (Section B.4.1).

C3. The development shall be carried out using the Cellweb root protection system and crushed stone sub-base detailed in paragraph 2.6 of the supporting planning statement. These measures shall be fully implemented and retained in situ for the lifetime of the driveway.

Reason: To protect the health and longevity of trees within the Registered Tree Area in accordance with Environment Policy 3 and General Policy 2(f).

C4. Within 2 months of the date of this permission, a detailed Arboricultural Method Statement (AMS) and Tree Protection Plan (TPP), prepared by a qualified arboriculturist, shall be submitted to and approved in writing by the Department. The AMS and TPP shall assess the impact of all works already undertaken within or adjacent to the Registered Tree Area (RA0346), including excavation and levelling operations. The submission shall also set out any remedial or protective measures necessary to safeguard retained trees, and these measures shall be implemented in full within 1 month of approval and retained thereafter for the lifetime of the development.

##### Reason: To mitigate the impact of previously undertaken works and to ensure the ongoing protection of trees within a Registered Tree Area, in accordance with Environment Policy 3 and General Policy 2(f).

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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/88431-marown-close-jairg-beg-old-church-appeal-against-condition/documents/1141880*