Officer Report

Application No.: 16/00261/LAW Applicant: Carnane Estate Ltd Proposal: Application to make lawful the use of land as a storage compound Site Address: Land Adjacent To Ellenbrook Farm Old Castletown Road Douglas Isle of Man Case Officer : Miss S E Corlett Photo Taken: 07.04.2016 Site Visit: 07.04.2016 Expected Decision Level: Officer Delegation

Officer’s Report THE SITE

1.1 The site, defined in red, is a small parcel of land situated on the northern side of the A25 Old Castletown Road between Oakhill and Kewaigue and directly opposite the access to Ballaslig Farm and also opposite Ellenbrook House, a detached dwelling with entrance onto the A25. - 1.2 The site currently has two containers and a gate across the south western entrance off the access from the A25 down to Ellenbrook Farm and the railway line and the site has a collection of what look like plastic oil tanks, trailers, pallets and builder's materials and equipment, some of which is visible from the public highway. THE PROPOSAL

2.1 The application seeks a Certificate of Lawfulness for the use of the site as a storage compound. Approval of such an application would rely upon sufficient evidence being presented to demonstrate that the site had been used consistently for that purpose, up until the time of the application, for a period no shorter than ten years. If the use ceases at any time after, then the Certificate ceases to have effect and any subsequent storage use re-commencing after that time, would not be lawful. - 2.2 The applicant has provided information in the following manner:

• - a description of the history of the use of the site
• - aerial photographs of the site in 2006, 2009, 2012 and 2015
• - an affidavit from Michael John Whipp
• - an affidavit from Roy Hall together with a copy of the deeds relating to the lease of land from Mr. Hall to the Department of Tourism and Leisure

The history of the site

2.3 The applicant suggests that the site has a history of use as a hardstanding for storage purposes although they clarify that there are not, nor never have been any fixed items on the site. They explain that the site was originally owned by Cliff Cowin Excavations Ltd who also owned the dwelling, Ellenbrook which lies on the same side of the road and to the south and he created the hard standing from a sloping field. Around 1988 Cliff Cowin verbally agreed terms for IOM Railways to use the newly created hardstanding for storage for the storage of their materials and equipment. - 2.4 They explain that from July 2003 a three year lease was agreed with the then owners, Mr. and Mrs. Hall, with the Department of Tourism and Leisure to use the hard standing for storage of its materials and equipment. This was renewed for a further three years in February, 2006. When DTL vacated the site in 2010, the applicant explains that the applicant, Carnane Estate Ltd used the hard

• standing and storage compound for storage in connection with the operation of its 2000 acre farmholding.
• 2.5 They explain that in May 2015 a Certificate of Lawfulness was granted in respect of the hardstanding on the basis that "on the balance of probability, the existence of the hardstanding is lawful" but "this does not imply any lawful use of the hardstanding". It is understood that this is on the basis that there was no evidence at that time which would demonstrate that the use had operated consistently for all of the required period.
• 2.6 They suggest that the use of the hard standing has been ongoing since the mid-1980s whether directly by the applicant or through sub-letting to third parties. The applicant does not accept that the use of the site by the DTL constituted permitted development on the basis that the site does not fall within the description of being "on land within the site of an existing railway line" and also that the storage operations do not constitute "works required in connection with the movement of traffic by rail", both of which are required in order to constitute permitted development under both the Town and Country Planning (Permitted Development) Order 2012. They believe that the DTL should have applied for planning permission to use the land but did not. Aerial Photograph of 2006
• 2.7 This photograph, as far as it can be discerned, shows the storage of items on either side of a central aisle with an area of storage at the north eastern end. Aerial Photograph of 2009
• 2.8 This appears to show slightly fewer and different items being stored on the site but still with the central aisle and items stored at the north eastern end of the site. Aerial Photograph of 2012
• 2.9 This shows none of the previous items stored on the site and a long container or structure in the central former aisle area of the site. Aerial Photograph of 2015
• 2.10 This shows a number of much smaller items than in the photographs of 2006 and 2009 towards the north eastern end of the site and what look like two containers at the south western end of the site. Affidavit from Mr. Whipp
• 2.11 This states that as managing director of Carnane Farms Limited, he purchased the property of Ellenbrook Farm in 2006 and at that time there was storage on the application site. He also confirms that from February 2006 to November 2009, extended to October 2010 the land was leased to DTL for storage use. Affidavit from Mr. Hall
• 2.12 This confirms that he owned Ellenbrook Farm from 2003 to 2006 and in that time the hardstanding forming a storage compound and he leased this land to DTL between February 2003 to January 2006. PLANNING HISTORY

3.1 The site has been the subject of a number of applications, many associated with the adjacent Ellenbrook Farmhouse site. Planning approval was sought and refused for the storage of 28 cars on the site under PA 01/01866/B. This application was refused by the Department for the reason that the proposed building would be intrusive and the use inappropriate in an area of countryside. This application was submitted by Mr. Hall who states in the application that the site was "previously used by Mr. Cowin for storage/parking of heavy Plant & Lorries". He describes the site as being "unused/agricultural" in the application form and a number of objectors refer to the site as "an open space" and the fact that the previous owner "has been specifically prevented from using the land to

build storage space". This period is, however, before the critical ten year period relevant to the Certificate of Lawfulness.

REPRESENTATIONS

4.1 Braddan Parish Commissioners indicate that they do not object to the application. It may, perhaps have been more helpful if they had indicated whether they felt the application should be approved and/or the suggestion that the land had been used as described for the period in question (22.03.2016). PLANNING POLICY - 5.1 The site is within an area designated as Open Space and hlv on the Braddan Local Plan of 1991. As such, there would be a presumption against the use of the land for storage purposes as proposed. ASSESSMENT - 6.1 The information provided appears to demonstrate that for the periods stated and shown, the site has been used, by varying amounts for the storage of materials which do not appear to be agricultural. The intensity of the use has certainly varied although probably not so much as to undermine the material use of the site for storage of construction materials and equipment. However, an aerial photograph taken in 2010 shows the site with no materials on it other than something covered in a blue tarpaulin (which looks like a small boat in shape) and a container. This photograph shows that at this time the site's use was not for storage or, it would appear, for any purpose. This is only slightly dissimilar to the aerial photograph taken in 2012 which again shows the site mostly clear other than for a centrally positioned container or structure of some kind.

6.2 These two aerial photographs, together with no aerial photograph for 2011, seem to indicate that at least from 2010 the site was not being actively or materially used for storage, which in turn casts doubt on the suggestion that the site has been used continuously for storage of construction material for a period of ten years and as such, it is not considered appropriate to issue a Certificate of Lawfulness of Use which would certify that it has.

PARTY STATUS There are no rights of appeal against a decision to grant or to decline to grant a Certificate of Lawfulness and as such the granting of party status does not need to be considered.

Recommendation Recommended Decision: Refused

Date of Recommendation: 08.04.2016

R 1. Given the aerial photographs of 2010 and 2012 which show the site almost clear of material and equipment, it is not accepted that there is evidence to demonstrate that the site has been used continuously for storage for a period of ten years which would result in this use being exempt from the issue of an enforcement notice under Part 1 Section 3c of the Town and Country Planning Act 1999.

I can confirm that this decision has been made by the Interim Director of Planning and Building Control in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation.

Decision Made : Refused Date : 24.08.2016 Determining officer

Signed : J CHANCE Jennifer Chance Interim Director of Planning and Building Control

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