Officer Report

Application No.: 15/01324/LAW Applicant: Mr Glyn Trevor Owens Proposal: Application to make lawful the retention and use of driveway and access onto Pooilvaaish Road Site Address: The Granary Balladoole Castletown Isle Of Man IM9 4PE Case Officer : Mr Edmond Riley Photo Taken: 06.01.2016 Site Visit: 06.01.2016 Expected Decision Level: Officer Delegation

Officer’s Report

1.0 THE APPLICATION SITE - 1.1 The application site is a rectangular parcel of land comprising the residential curtilage of the dwelling known as The Granary, located on Pooilvaaish Road in Balladoole near Castletown. The dwelling is a handsome property standing in its own grounds, located southeast of the highway. To the northeast of the site is a large, primarily grassed area of land that has been planted with a number of trees and has a noticeable track running through it in a straight line to a gate that is situated between two stone pillars themselves set back from the highway and adjoining the stone wall that bounds the site. It is understood from the application's particulars that the track connects to a metalled driveway some 1km into the site.

2.0 THE PROPOSAL - 2.1 The application seeks a Lawful Development Certificate for the retention and use of the driveway and access onto Pooilvaaish Road. - 2.2 As such, the tests in the application are legal and not related to the Planning merits of the driveway and access.

3.0 THE PLANNING HISTORY - 3.1 In 1978, planning approval was granted to PA 47644 for the conversion and extension of a granary for use as a dwellinghouse - which is now The Granary. Condition 10 of the eighteen attached to the approval notice stated that "there must be no access taken from the Balladoole Farm Road". - 3.2 Planning approval was granted for an amendment to the access mentioned above under PA 92/00983/B, with the two conditions attached requiring the works be started within 24 months and completed within 2 months following that commencement. The application form submitted with the application stated that the intention of the application was to vary Condition 10 but, in effect, actually sought to amend the access; the submitted drawings and description of the application are clear on this. The drawings submitted with the application match what is now on site in respect of the access.

4.0 REPRESENTATIONS - 4.1 Arbory Parish Commissioners wrote to the Department on 18th December 2015 specifically stating that they had no comments to make on the application.

5.0 EVIDENCE - 5.1 A comprehensive set of information has been submitted to form the application, much of which relates to the planning history of the site, and so the evidence is primarily copies of decision notices, officer reports, plans, invoices for legal advice and the works approved under PA 92/00983/B and photographs from two different historic periods (September 2010, and "recent"). The legal advice itself is not available. - 5.2 The application, which has been submitted by a Planning consultant, includes an analysis section in its supporting statement. The analysis makes a number of statements which are considered "more likely than not" true on the basis of the submitted evidence, concluding with the following three paragraphs:

• "4.10 Approval under reference number 92/0983, whilst not for a variation of condition, was for development that included use of an access in a way that would otherwise have constituted a breach of condition 10 of approval ref. no. 46744. It therefore approved the breach and effectively removed the condition on its implementation.
• "4.11 Because an invoice for work of a description fitting that approved under reference no. 92/0983, including labour in February and March, was issued on 15 March 1993, it is more likely than not that the approval under ref. no. 92/0983 was lawfully implemented in March 1993 and the conditions of that approval are now spent.
• "4.12 Because evidence of wear of the route leading to the gate was apparent as recently as September 2010, because tree planting within the garden has kept the route clear, and because there is no other evidence of an intention to abandon the use of the access, it is more likely than not that its use remains lawful to the present day."

5.0 ASSESSMENT - 5.1 The assessment of the application requires the examination of the information available in order to determine whether there is either sufficient or insufficient evidence that, on the balance of reasonableness, the development has been in place for an excess of 4 years. Under Schedule 1, Paragraph 3(a) of the Town and Country Planning Act 1999 no enforcement notice may be issued 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 a period of 4 years beginning with the date on which the operations were substantially complete. - 5.2 The conclusions reached by the applicant's agent are accepted. The application seeks the issuance of a Certificate of Lawful Use, and it would appear on the balance of probability that the access was lawfully implemented over 22 years ago (March 1993). The fact it has not been used regularly is evident from the appearance of the path leading to it, but equally the site is unlikely to generate significant traffic levels and yet there remains clear indication from the appearance that the path is used sporadically. Moreover, and in any case, the fact that the access might not be used especially regularly does not mean the use itself has been abandoned, and the retention of a car and pedestrian gate (identical to that shown in the approved plans for the access) indicate quite clearly that there has been no intention to 'abandon' the access or the use thereof. Had the access been blocked off then there would be more cause for closer consideration. - 5.3 As such, it is accepted that the access was lawfully completed as per the 1993 planning approval, and that this effectively supersedes Condition 10 attached to the 1978 approval. More

importantly, and the subject of this application, it is also (and consequently) accepted that the use of the access in question now would be lawful.

6.0 CONCLUSION - 6.1 In view of the above, it is recommended that the Certificate be issued. - 6.2 As there is no method for an appeal with applications such as this, outlining Interested Person Status is not necessary.

Recommendation Recommended Decision: Certificate of Lawful Use Approved Date of Recommendation: 08.01.2016

C 1. The submitted application, reference PA 15/01324/LAW, contains evidence sufficient to demonstrate that the access onto the Pooilvaish Road highway, as shown on the submitted details date-stamped as having been received 7th December 2015, has been lawfully implemented such that its retention and use is lawful.

I can confirm that this decision has been made by the Head of Development Management in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation.

Decision Made : Certificate of Lawful Use Approved Date : 11.01.2016 Determining officer

Signed : J CHANCE Jennifer Chance Head of Development Management

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