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Application No.: 15/00449/LAW Applicant: Carnanes Estates Ltd Proposal: Certificate of Lawful Development for the creation of hard standing Site Address: Land Adj To Ellenbrook Farm Old Castletown Road Douglas Isle of Man Case Officer : Miss Jennifer Chance Expected Decision Level: Officer Delegation
1.1 The application seeks a Certificate of Lawful Development in respect of 'The Creation of a Hardstanding'. The application was submitted on 24 April 2015. The means the relevant 4 years for consideration is 24 April 2011 to 24 April 2015. - 1.2 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:
1.3 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. - 1.4 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. - 1.5 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 Authority to corroborate the applicant's evidence. THE APPLICATION SITE
2.1 The application site is a triangular piece of land roughly 600sqm in size. The perimeter of the site on its north, east and southern boundaries is tree lined with grass. On the western side is an access road leading to a hardstanding that lies centrally within the site. PLANNING HISTORY - 3.1 The only formal planning history is the following application: 01/01866/B Erection of vehicle storage building for 28 cars. Refused.
3.2 It is known that the site was used under Permitted Development as a storage site for railway materials and the delivery and despatch of same by either road or rail by The Department of Tourism and Leisure from 2003 until 2010. The letter of notice of intention to quit forms part of the submission. See details below. REPRESENTATIONS - 4.1 The application has been advertised and subject to public consultation. Braddan Commissioners have commented that the site should be properly screened through the use of appropriate landscaping. SUMMARY OF EVIDENCE PROVIDED - 5.1 The application was submitted with a statement. The statement sets out that in the mid1980s Cliff Cowin Excavations created the hardstanding from a sloping field east of the dwelling house. Around 1988 IOM Railways took occupation of the land and hardstanding. In 2003 a new owner, Roy and Fill Hall agreed a three year lease with the Department of Tourism and Leisure for use of the hardstanding. A further lease was entered into in 2006 when the current owner purchased the site. In 2010 The Department of tourism vacated the site and Carnane Estates Limited occupied the hardstanding in support of the 2000 acres it manages.
5.2 The application is supported by a lease plan from the 2003 lease, but does not show the accompanying lease, and a Google Aerial Image which is undated. - 5.3 Following a request a further lease was provided, this one dated 17 March 2006 and is for a period of three years. The attached plan appears to relate to a wider area, but is in black and white whereas the site referred to in the lease is indicated as being red or blue. The lease is between the owner of the site and the Department of Tourism and Leisure, Public Transport Division. The lease allows the then DTL to use the site for the storage of railway materials and the delivery and despatch of the same by either road or rail. The lease refers to a period of time before the relevant date, the plan is unclear and there is no mention in the lease about a hardstanding. Consequently no weight is attached this information. FURTHER INFORMATION - 5.4 Further information has been provided which includes an affidavit from Michael Whipp, signed in the presence of Adam Long and Long and Humphrey, Advocates. It states that there was a hardstanding on the site, as shown in a plan which is attached and that it was there when he purchased the property in 2006 and remains there to the date of the affidavit. This has material weight. - 5.5 Also accompanying this are two aerial photographs taken in July 2006 and May 2009, they show the hardstanding in place. Whilst they precede the 'relevant date', it is reasonable to assume that the hardstanding was not removed. Consequently this also has material weight.
6.1 Google pictures showing 'date of capture' to be September 2010, within the relevant date, are on-line and were found by case officer confirming the above. CONCLUSION
7.1 On the balance of probability, the existence on the site of hardstanding is lawful. This does not imply any lawful use of the hardstanding. RECOMMENDATION - 8.1 It is recommended that the application for a Certificate of Lawfulness is granted.
I can confirm that this decision has been made by the Director of Planning and Building Control in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation.
Decision Made : Certificate of Lawful Use Approved Date : 23.10.2015 Determining officer
Signed : M GALLAGHER Michael Gallagher Director of Planning and Building Control
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