Officer Report

Application No.: 17/01231/B Applicant: Mr Paul Heginbotham Proposal: Creation of access in to field from garden (retrospective) Site Address: 116 Ballacriy Park Colby Isle Of Man IM9 4ND Principal Planner: Miss S E Corlett Photo Taken: 16.01.2018 Site Visit: 16.01.2018 Expected Decision Level: Officer Delegation Recommended Decision: Refused Date of Recommendation: 07.08.2018 _________________________________________________________________ R : Reasons for Refusal O : Notes attached to reasons Reasons for Refusal - R 1. The proposal would introduce traffic which is not associated with either 115 or 116, Ballacriy Park , in close proximity to these properties and which would have an adverse impact on the living conditions of those in both of these properties. In addition, this traffic will involve agricultural vehicles and equipment, large and often noisy vehicles whose movement past both houses is likely to create noise and a significant visual impact. The development is therefore considered to be contrary to General Policy 2g and k of the Strategic Plan. - R 2. The proposal will introduce agricultural vehicles and equipment into the cul de sac of 107 125, Ballacriy Park where such traffic would not previously have been present. Due to the width of the highway and the incidence of parked vehicles on both sides of the road, and its nature as a cul de sac, it is considered that the introduction of such traffic would be detrimental to highway safety, both in terms of those owning parked vehicles and pedestrians and motorists getting in and out of their vehicles. The proposal is therefore contrary to General Policy 2h, i and m. - R 3. The use of the access by agricultural vehicles and those coming from a field, is likely to result in mud and debris being deposited on the road and it is unlikely that a practicable means of preventing or remediating this could be provided: none is proposed. As such, the proposal is contrary to General Policy 2h and m of the Strategic Plan.

_______________________________________________________________ Interested Person Status – Additional Persons

It is recommended that the owners/occupiers of the following properties should be given Interested Person Status as they are considered to have sufficient interest in the subject

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matter of the application to take part in any subsequent proceedings and are not mentioned in Article 6(4):

115 and 118, Ballacriy Park as they satisfy all of the requirements of paragraph 2 of the Department’s Operational Policy on Interested Person Status (July 2018).

It is recommended that the owners/occupiers of the following properties should not be given Interested Person Status as they are not considered to have sufficient interest in the subject matter of the application to take part in any subsequent proceedings and are not mentioned in Article 6(4):

111 and 120, Ballacriy Park are not within 20m of the application site and the development is not automatically required to be the subject of an EIA by Appendix 5 of the Strategic Plan, in accordance with paragraph 2B of the Department’s Operational Policy on Interested Person Status (July 2018).

_____________________________________________________________________________ Officer’s Report THE SITE

1.1 The site is the residential curtilage of an existing dwelling situated at the eastern end of a cul de sac of twenty properties which extend to the east of the main body of Ballacriy Park. The site also includes a triangle of land which lies to the south east of the curtilage: this is an open field which belongs to the owner of the dwelling, 116, Ballacriy Park. - 1.2 The applicant describes the site as "garden and field": it would more properly be described as a residential curtilage and a field. - 1.3 The rear boundaries of the dwellings on the southern side of the cul de sac are formed by a watercourse. THE PROPOSAL

2.1 Proposed is the opening up of an access into the field and the culverting of the watercourse underneath the access. The works have been undertaken and the opening is visible from the cul de sac. Access from the field runs into the curtilage of number 116. The works effectively create an access from the field across the garden of number 116 and onto the cul de sac to the south west. - 2.2 The applicant has explained that the field is currently accessed by a lane which serves Ballablack Farm, premises which have recently had planning approval for use as a dog day care facility and he explains that since this business commenced operation, there is an increased amount of vehicular traffic on the lane and he wishes to minimise congestion and potential problems from the interaction of his farm vehicles and those visiting the dog day care in and around this single track lane. - 2.3 He also explains that the application field is used for growing oats and is also used for grazing horses and sheep. They refer to number 115 which has had all of its rear boundary removed, its watercourse culverted and their garden extended to the rear. - 2.4 The owners of number 115 have rebutted the suggestion that they have removed their rear boundary and confirm that the culvert, which runs under their shed, was in place when they bought their property in 1991 (24.01.18). PLANNING POLICY

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3.1 The site lies within an area designated in APS as not for a particular purpose. There is therefore a presumption against development as set out in General Policy 3 and Environment Policy 1 of the Strategic Plan which conserve the countryside for its own sake. - 3.2 The proposal involves little in the way of engineering operations nor any change of use of the field but does have implications for highway conditions and the living conditions of those in number 116 and as such the following parts of General Policy 2 are considered relevant:

General Policy 2: Development which is in accordance with the land-use zoning and proposals in the appropriate Area Plan and with other policies of this Strategic Plan will normally be permitted, provided that the development:

• (f) incorporates where possible existing topography and landscape features, particularly trees and sod banks;
• (g) does not affect adversely the amenity of local residents or the character of the locality;
• (h) provides satisfactory amenity standards in itself, including where appropriate safe and convenient access for all highway users, together with adequate parking, servicing and manoeuvring space;
• (i) does not have an unacceptable effect on road safety or traffic flows on the local highways; (k) does not prejudice the use or development of adjoining land in accordance with the appropriate Area Plan and (m) takes account of community and personal safety and security in the design of buildings and the spaces around them". PLANNING HISTORY

4.1 Planning approval was sought for the principle of the erection of a dwelling to the rear (north east) under 03/00739/A. This was refused as the site was not designated for development and the development was considered to be unacceptable backland development which would adversely affect the living conditions of those in the property alongside. - 4.2 10/00509/B proposed an agricultural building for the applicant's land which extended beyond and from the current application site to Ballagarmin House, the applicant's property and having links to the access south through Ballablack to the A7 and north to join a public footpath which emerges alongside Ballakelly, onto the Colby Glen Road (A27).

REPRESENTATIONS 5.1 Local authority

• 5.1.1 Arbory Parish Commissioners object to the application, expressing concern at what they consider excessive work to create a field entrance (28.12.17). Following additional information submitted by the applicant, the Commissioners maintain their original objection (29.01.18).
• 5.1.2 They add on 20.02.18 that they would wish to see the hedge either side of the new gateway restored to its former condition and would expect the access to be constructed to appropriate quality to accommodate farm vehicles without them trailing mud onto the highway and for any mud to be cleared up.
• 5.1.3 They confirm in 18.07.18 that they feel that more should be done to resolve the issues surrounding the use of the existing access before opening up another one in a less favourable location.

Highway Services 5.2.1 Highway Services initially requested a deferral, seeking additional information from the applicant on the type and length of vehicles to be using the access. They suggest that a planning condition could be attached requiring a jet wash facility to be installed so that debris is not tracked onto the highway (10.05.18). Following the clarification by the applicant that the vehicles include a 13 feet 11 inch New Holland tractor, possibly an 8 feet 6 inches long baler

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would use the access, both of which have soft compound types unlike HGVs and wagons and a long wheelbase Landrover, an 8 x 4 750kg trailer and two family sized motor cars. The applicant also points out that a 28 ton, twin axle haulage wagon made a delivery to a property 3 doors down from number 116 and that when the 35 feet long, 26 ton refuse wagon came to the cul de sac, there were no vehicles parked on the road. He also reports that when planning approval was granted for the dog day care facility at Ballablack, a previously offered alternative access through their land, was rescinded (25.06.18).

• 5.2.2 Following the submission of the further information by the applicant, Highway Services confirm 06.08.18 that they understand farm vehicles are already using the cul de sac without anything preventing them from lawfully doing so. Whilst the use of residential estate roads is not ideal, Highway Services cannot deny owners/occupiers of property a right of access to their premises. There is no highway legislation that can prevent access for a particular type of vehicle. A weight or width restriction could prevent delivery, removal and refuse vehicles to the dwellings. They believe that access to Ballacriy Park by farm vehicles cannot be prevented and it is highway policy not to implement waiting restrictions on residential roads wherever possible and any future access difficulties caused by parked cars would be unlikely to result in such restrictions.
• 5.3.3 They confirm that it is illegal for mud and loose material to be deposited on the public highway and this is contrary to highway safety. The applicant's comments about rain clearing away deposited material are not an acceptable solution to this situation and they would recommend a condition requiring a jet wash facility made permanently available on site and they advise the applicant that should material be deposited on the highway, it should be cleaned with immediate effect to prevent future highway enforcement action. Also, the vehicular crossing on the footway needs to be upgraded to accommodate heavier vehicles and this will involve an agreement under Section 109 of the Highway Act 1986. They do not oppose the application.

• 5.3.4 Highway Services were advised that the existing situation is not lawful in that the access from the field to the cul de sac is what is being determined. They responded that they cannot deny access by farm vehicles to their land and this does not change their recommendation (07.08.18). Neighbours

• 5.3.1 The owners of 115, Ballacriy Park which lies adjacent to the site, deny that they have removed any bank at the bottom of their rear garden, explaining that the cut back brambles around 26 years ago and the bank stands around 1.1m above the level of the stream which borders their garden. There is another stream which runs underneath their garden. They are concerned that the proposed culverting, if not undertaken correctly, could lead to water backing up (19.12.17).
• 5.3.2 They add that the field has not been used for sheep for several years and it was used for horses for a short time, a long time ago (24.01.18). They confirm their position on 13.02.18, adding that they do not understand why an additional access is required and comments that hay that was baled from the site is now sitting sprouting and disintegrating in the field.

• 5.4.1 The owner of 118, Ballacriy Park which is opposite the site to the north, objects to the application (21.12.17). They point out that the applicant does not live at 116, Ballacriy Park but at 56, Ballacriy Park and lets out number 116 and it was occupied until just prior to the commencement of work at the site.
• 5.5.1 The owner of 111, Ballacriy Park which lies five doors down from number 116, provides photographs of the condition of the road following its use by a tractor, including photographs of the tractor and trailer and the road with mud deposited upon it (28 and 29.12.17) and asks why the existing access through Ballagarmin cannot be used instead of the cul de sac. He

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queries why Highway Services do not consider the proposal which will result in farm machinery and traffic using the estate road, to be detrimental to highway safety.

• 5.5.2 He submits further correspondence on 12.02.18, pointing out that whilst agricultural vehicles use other parts of Ballacriy Park, they do not use this cul de sac and there are presently two farm accesses within the estate and that there are no cars parked on the rest of the route. He suggests that Colby is long since a farming community and is now a village. His observation of the tractor and grass cutter that went up the cul de sac was that it did not just work in the application field but continued on to the fields around Ballagarmin House. He also notes with concern, the applicant's reference to horse boxes and towed vehicles using the cul de sac. He wonders how the access proposed could be prevented from serving much more farmland associated with Ballagarmin and Ballablack., to the detriment of the health and safety of those in the cul de sac. He advises that permission has been given for the felling of 17 trees on the application site and that the site notice is displayed in the window of number 116 and not easily visible without trespassing. He comments on the additional information provided by the applicant, that he should have been asked to clarify the width of the vehicles using the access which he considers is important given the width of the road and the parked vehicles and asks for confirmation that the Highway Services Officers have looked at his photographs. He wonders how Ballagarmin House is now accessed if there has been a disagreement with the owners of Ballablack and points out that the tenant at number 116 has two cars which are often parked on the driveway (12.07.18).
• 5.6.1 The owner of 120, Ballacriy Park which lies three doors down and across the road from number 116, objects strongly to the application on the basis that the use of the cul de sac by heavy farm vehicles would be detrimental to highway safety for residents with grandchildren and children in the area. They comment that the site notice has not been displayed on or near the property but on the Commissioners' notice board and other neighbours may have been disadvantaged. (29.12.17).

• 5.6.2 He refutes that agricultural vehicles use this cul de sac, whilst they may pass through other parts of Ballacriy Park and reiterates that the cul de sac in this case has a number of cars parked on both sides of the road. He has no recollection of sheep or horses grazing in the field and has lived there since 1990 and suggests that if the Ballablack lane is now too narrow, it should be widened (29.01.18).
• 5.6.3 He adds on 12.07.18 that the tractor which currently uses Ballacriy Park does not use this cul de sac and those roads are relatively well maintained and the refuse wagon visits one a fortnight and sometimes has difficult getting to all of the houses and the delivery vehicle was a one off and not a regular occurrence. He thinks that the cul de sac is becoming busier with vehicular traffic.

ASSESSMENT 6.1 The issues in this case are:

• i. whether the removal of vegetation and the culverting of the watercourse have any adverse visual or ecological impact;
• ii. whether the introduction of an agricultural vehicular access from the field through the residential curtilage of 116, Ballacriy Park would have any adverse impact on the living conditions of those in that property and in 115, and
• iii. whether the proposed access created for agricultural traffic from the application site and further afield, would result in an adverse impact on highway safety, all in respect of the standards of development set out in General Policy 2 of the Strategic Plan. Visual and ecological impact

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6.2 There is no evidence, or indeed submissions to the effect that there is an adverse impact on either of these issues. Whilst the removal of vegetation is seldom welcome, in this case the visual impact is limited by the position of the works at the head of a cul de sac. It is not considered that the application should be refused for this reason. Impact of the access on the living conditions of those in 115 and 116, Ballacriy Park - 6.3 Prior to the works being undertaken, 116, Ballacriy Park had a garden in which their vehicles could be parked and manoeuvred in and out and space in which they could enjoy relatively private amenity space. As proposed and as been undertaken, part of the front of the garden is now given over to others using it and including the use of the access by large agricultural vehicles. As proposed and if approved, there could be no restriction over the size and number of vehicles using the access. It is not usual for domestic properties to share their sole access with different uses and in this case, it is clear that the access as created is being used by large tractors and associated equipment (see photographs from objectors). Due to the proximity of the parked vehicles within the curtilage and the house and its remaining garden, it is not considered appropriate that this traffic uses the garden of number 116 as an access and the application should be refused for that reason. - 6.4 There will also be an impact on number 115 which is immediately alongside number 116 and separated from the access by only a fence and vegetation. The vehicles involved in using the proposed access are taller than both. As such, the agricultural vehicles will be seen and heard from within 115 and again, there would be no control over the number and type of vehicles using the access. Given the proximity of 115 and the lack of significant separation between the two, it is considered that there will be an adverse impact from the use of the access by agricultural traffic and the application should be refused for that reason. Highway safety and convenience - 6.5 The position of Highway Services is not fully understood. They state that having agricultural vehicles using residential estate roads is "not ideal" but then suggest that they cannot deny land owners access to their property. In fact they can, and often do, where this involves the creation of a new access where that access is substandard or would have adverse impacts on highway safety, for example because of inadequate visibility splays or for some other reason. Whilst agricultural vehicles can and do use other parts of Ballacriy Park for access, these are generally wider roads without cars parked on both sides and not a cul de sac arrangement. On the officer's site visit as well as in the Google and Department's aerial photographs there are vehicles parked on both sides of the road as well as in the photographs taken by objectors. It is not considered that this cul de sac is suitable for the type of traffic that could, and clearly has, used it by virtue of the new access. In addition, it would not be possible to restrict the vehicles using the access to just those from the field alongside. There is clearly further access from that field to the rest of the land owned by the applicant and all of that could end up using this access, significantly increasing the amount of traffic using the access and the cul de sac. - 6.6 Whilst Highway Services have suggested that a condition could be imposed to require a jetwash facility on site, it is not clear where this would be installed, where the water supply would be and where the water would go from the washed vehicles. If the vehicles are to be cleaned before going onto the road, there would need to be an area of hard standing where this could occur and if the road is to be cleaned, it is not clear how this could be done from the application site and without adversely affecting other vehicles parked on the road. It is not considered that installing a washing facility on the site is practicable. As such, it is likely that mud will continue to be deposited on the road, contrary to highway safety and the Highway Act without any real possibility of it being resolved. - 6.7 It is not the case that there is no other means of access for the agricultural vehicles to adjacent public highways. Clearly domestic traffic from Ballagarmin House are not to use this so they must be able to get from the property to the A7 and this is using the lane shared with Ballablack. This is still available although now shared with others who are using the dog day

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care facility. It could be possible for the applicant to create an additional access at the southern end of Ballablack Lane, this sharing the access onto the highway but not the majority of the lane. It is not clear what other solutions the applicant has sought to this issue. His concerns about the continued use of the access appear to be potential conflict with users of the lane whose numbers have increased since the introduction of the dog day care facility at Ballablack. However, the solution would bring the agricultural vehicles into potentially more conflict with the users of Ballacriy Park and particularly the cul de sac. As such, the proposal would not appear to be resolving the situation, just moving it to another location with different people being affected.

CONCLUSION

7.1 Due to the impact of agricultural traffic using the access and the cul de sac, it is considered that this results in an adverse impact on the living conditions of those in 115 and 116 Ballacriy Park and to highway safety in the cul de sac of numbers 107 - 126, Ballacriy Park and for those reasons the application fails to accord with General Policy 2 g, h, i, k and m. INTERESTED PERSON STATUS - 8.1 By virtue of the Town and Country Planning (Development Procedure) (No 2) Order 2013 Article 6(4), the following persons are automatically interested persons:

• (a) The applicant, or if there is one, the applicant's agent;
• (b) The owner and the occupier of any land that is the subject of the application or any other person in whose interest the land becomes vested;
• (c) Any Government Department that has made written submissions relating to planning considerations with respect to the application that the Department considers material
• (d) Highway Services Division of Department of Infrastructure and
• (e) The local authority in whose district the land the subject of the application is situated. 8.2 The decision maker must determine:

• o whether any other comments from Government Departments (other than the Department of Infrastructure Highway Services Division) are material; and
• o whether there are other persons to those listed in Article 6(4) who should be given Interested Person Status.

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.

Decision Made : Refused Date: 15.08.2018 Determining officer

Signed : C BALMER Chris Balmer Principal Planner

Customer note

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