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Application No.: 10/01158/LAW Applicant: Mrs Jill Valerie Collins Proposal: Application for a certificate of lawfulness seeking removal of an agricultural workers occupancy condition Site Address: - Ballacorris Croft - Clannagh Road - Santon - Isle Of Man - IM4 2HP ### Considerations Case Officer: Mr Steve Stanley Photo Taken: - Site Visit: - Expected Decision Level: - Senior Planning Officer ### Written Representations - 33 Ballaquark Douglas Isle Of Man IM2 2EY | Interest expressed ### Consultations Consultee: Santon Commissioners Notes:**
The application site is Ballacorris Croft, Clannagh Road, Santon. The dwelling has associated with it a land holding of approximately 23 acres.
This application is for a Certificate of Lawfulness which seeks the removal of an agricultural worker's occupancy condition. The application consists of documentation from a telephone service provider, the Manx Electricity Authority and the Treasury (rates) which are intended to demonstrate that the applicant has resided at the property for in excess of 10 years. Information has been submitted which sets out that the applicant was divorced from her husband in 1995 and the dwelling was at this time passed to her as the sole occupier. Her husband has kept a flock of sheep on the land in order to comply with the condition however his main form of income came from his employment as a structural steel engineer. The applicant states that she has never been employed in agriculture, having worked as a freelance writer since her divorce, although she is now retired.
The application site is located within an area identified as being of High Landscape Value and Scenic Significance by the 1982 Development Order and as such is not zoned for development.
23 December 2010 10/01158/LAW Page 1 of 4
The following previous planning applications are considered relevant in the assessment and determination of this application:
Planning application 83/230 sought approval for the erection of a dwelling house with garage and general purpose farm building. This was approved subject to conditions. Condition 5 stated: "The occupation of the proposed dwelling must be limited to persons whose employment or latest employment is or was employment in agriculture in the Island and including also the dependants of such persons as aforesaid and such tenancy must be subject at all times to enquiry and approval by the Committee."
The owner/occupier of Ballalaa farm, Dalby has confirmed that since 1995 and the divorce of the applicant, he has kept a flock of sheep on the land associated with Ballacorris Croft. He clarifies that he has never used the barn.
The owner/occupier of 33 Ballaquark, Douglas states that if a person has been occupying the property in contravention of the condition, they should be prosecuted. If the condition has been complied with there is no case for a lawful use certificate.
Santon Parish Commissioners have not commented on this application. The Highways Division does not oppose this application.
As agricultural occupancy conditions are subject to the ten year rule, breach for that period renders occupiers immune from enforcement. This has enabled some to escape possible planning eviction by being in occupation in defiance of such conditions.
Ignorance of the existence of a condition is another personal factor sometimes pleaded and occasionally given weight in appeal cases, although it can be argued that decisions made on this basis do nothing to enhance the sound basis of planning. A case in point is (Macclesfield 30/8/85 DCS No.047-757-185) where the appellant argued that the full market price had been paid for an encumbered dwelling, the condition not having been revealed by solicitors. The inspector expressed sympathy with the appellant, but maintained the condition.
In a Derbyshire case (Amber Valley 30/1/84 DCS No.051-878-918) the inspector accepted the (unstated) personal grounds for a farmers widow wishing to dispose of her property and the attempts to market it, but felt that personal circumstances should seldom prevail over established planning considerations, especially in the green belt. He took the view, however, that as the building was already in existence, whatever harm it did to the green belt would be much the same whoever occupied it. Retention of the condition might well result in the property being left empty which would be quite wrong, he added. The condition was lifted.
The conclusion of an inspector, in the allowed appeal case (Swale 13/6/86 DCS No.031-539-350) is also worthy of mention. Noting that the property concerned was the appellants sole asset, and that his wife was in need of medical care and should not live in an isolated situation, he stated "The terms of the planning condition are intended to ensure that agricultural workers are not forced to leave their homes on retirement, and I consider that it would be contrary to the spirit of the conditions if the appellant and his wife, who wish to move, were prevented from doing so because the bungalow is effectively unsaleable whilst subject to the condition."
A further case of interest is (Maidstone 16/10/00 DCS No. 037-680-922). Here, a condition restricted the occupation of an agricultural workers dwelling. The appellant was married to a person who worked in agriculture but following a divorce, the spouse and children left the house. Since the
appellant did not work in agriculture and was not a widower, the council argued that there had been a breach of control and an enforcement notice was served. The inspector varied the condition on compassionate grounds since to uphold it would lead to the appellant becoming homeless due to circumstances beyond his control. The condition was varied to allow occupation by the appellant or an agricultural worker.
If the Planning Authority is satisfied that there has been breach of the agricultural occupancy condition for more than ten years, the law requires that the CLD sought should be granted. The fact that the Planning Authority may have been misled by the original information given lies outside that process. On the face of it the Planning Authority has now lost its chance to recover the situation, as it had ten years to enforce against any suspected breach and has not do so.
ASSESSMENT
The evidence submitted confirms that the applicant has resided at the property for in excess of 10 years. It also shows that the dwelling has been rated as an agricultural dwelling, presumably incorrectly.
The research carried out into planning case law would suggest that, following the divorce from her husband, the applicant ceased being his dependant and as such her continued sole occupancy at the property was in breach of Condition 5 of planning permission 83/230. As such it is judged that a breach of the condition has occurred fro a period in excess of 10 years and as such the applicant is immune from enforcement action.
RECOMMENDATION
Permit.
It is considered that the following parties, who submitted comments, accord with the requirements of Planning Circular 1/06 and are therefore, afforded Interested Party Status:
Accordingly the following parties are not granted Interested Party Status:
The Department of Transport Highways and Traffic Division is now part of the Department of Infrastructure of which the planning authority is part. As such, the Highways and Traffic Division cannot be afforded party status in this instance.
Recommendation Recommended Decision: Permitted Date of Recommendation: 23.12.2010 23 December 2010
10/01158/LAW
I confirm that this decision accords with the appropriate Government Circular delegating functions to the Senior Planning Officer.
Decision Made : Permitted Date : Signed : Senior Planning Officer
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