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February 2016.
APPENDICES A. HARDSTANDING PLAN B. AERIAL PHOTOGRAPHS C. AFFIDAVITS D. EMAIL-Dol Cartography
Following receipt of correspondence of the 15th December 2015 and the 2nd February 2016 from Planning \& Building Control, DEFA advising that there is a considered breach of Planning relative to the use of the hardstanding adjacent to Ellenbrook Farm an Application for a Certificate of Lawful Use is submitted under the provisions of Section 24.1.a of the Town \& Country Planning Act 1999 for the storage of materials associated with the Estate as previously leased by the Isle of Man Government. It is submitted that the development of the hardstanding and storage upon it has been present for more than the prescribed 10 years prior to this application. This history is provable through the following history sequence of events.
Also Carnane Estate Limited own and manage an estate of around 2000 acres of land with the Carnane Estate being around 800 acres and Barony Estate is 1,200 acres. Also the Estate has 32 managed residential properties and 6 groups of farm buildings. Ellenbrook Farm is a part of the Estate holding and has a certified hardstanding for storage purposes with a history of use (24.1.c).
Contrary to views expressed there are no fixed items on the hardstanding area and have never been. In addition to the storage of materials associated with the management of the above there have also been periods of the storage of topsoil.
The following is the history relating to the formation / development that is now subject to an application for a Certificate of Lawful Use.
Mid 1980's Cliff Cowin Excavations Ltd then owner of the property Ellenbrook created the hardstanding/storage compound from a sloping field east of the farm dwelling house.
About 1988 Cliff Cowin Excavations Ltd verbally agreed terms for the IOM Railways to occupy the land and use the created hardstanding/storage compound for the storage of materials and equipment.
02.07.2003
A 3-year lease was agreed between the new owner's Roy \& Gill Hall and the Dept of Tourism and Leisure to use the hardstanding for its storage of materials and equipment.
01.02.2006
A renewal of a 3-year lease to the Dept. of Tourism and Leisure with the new owner Carnane Estate Ltd was agreed.
| 2010-present | Dept. of Tourism - Isle of Man Railways vacate the site and Carnane Estate Ltd have continued with the use of the hard standing/storage compound in support of the 2000 acres farm it manages to store a variety of materials. |
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23.05.2015 Letter from Planning Control re alleged breach of Planning 26.10.2015 Certificate of Lawful Development granted for the Hardstanding.
Since then there has been two further letters from Planning Enforcement. Affidavits as to use and lease are enclosed within Appendix C.
Based on the foregoing it is considered that the Use of a hardstanding / storage compound in a field adjacent to the farm dwelling house of the property 'Ellenbrook Farm' and its subsequent use by owners and others constituted 'Use' of that area. Its use was then continued by the present owner/applicant and owners either directly or under lease to third parties for approximately 27 years. See attached lease plan from the 2003 lease (appendix A - lease plan).
The Use of hardstanding (apparently without any planning approval to do so at that time) has been ongoing since the mid 1980's.
The provisions of the Town \& Country Planning Act 1991 and subsequently 1999 would have required a permission to have been sought to undertake such development and use. It is believed that Planning Approval was not sought by the owner at that time - Mr Cliff Cowin. Subsequent owners and tenants have also continued to use this hardstanding. The present owners continue with that use in support of a 2000-acre agricultural holding and wish to regularise the Use of the hardstanding area which was confirmed as Lawful in October 2015.
Current planning legislation which refers is the Town \& Country Planning Act 1999 and associated Area Plans, Policies and Orders.
At the time of the original breach the legislation applicable at that time was the Act that preceded the Town \& Country Planning Act 1991 as noted above.
For a period nearly 22 years (1988 to 2010) the Dept of Tourism \& Leisure used the hardstanding as materials storage compound to service the adjacent railway with both informal and formal lease. Also they used it without Planning Approval and placed reliance on a supposed 'permitted use'. We do not believe that the interpretation and reliance placed on an agricultural hardstanding remote from the 'railway line' fell under the permitted development order either 2005 or 2012
In so far as the 'Use' looking at previous legislation beyond the Town \& Country Planning Act 1999 and the Permitted Development Order ie the 2012 Permitted Development Order Item 6 Class 6 Railway Works (the principal tenant of the hardstanding/storage compound / hardstanding for 22 years) - we quote:
"any operations by the Department of Community Culture and Leisure on land within the site of an existing railway line consisting of works required in connection with the movement of traffic by rail:
The operations are not permitted if they involve the construction, erection or alteration of- a) A building or b) A structure exceeding 29 cubic metres in capacity above ground"
Whilst it is prima facie that the Dept. of Tourism have permitted development rights in so far as their operation "within the site of an existing railway line " they do not nor would have in our opinion permitted development rights on farm land adjacent to the railway which was under private ownership and leased to a Government Department. We submit that even after the formalisation of the lease of the adjacent farm land to the department in 2003 that the said land still does not become a part of the 'existing railway line'. Also the second part to this is permitted order is restrictive in respect of allowing 'works' in connection with the movement of traffic by rail - not storage use. We would submit that this is set out in this manner to allow the Railways to undertake essential works to rail, bridge, cutting or embankment without first obtaining planning approval in the interests or maintaining the safe operation of the railway. We would contend that the Department upon agreeing a lease should have applied for planning approval for storage use and didn't.
Based on the forgoing and whilst firstly having regularised the development of the hardstanding / compound we would submit that there is an established and undeniable use by a Government Department itself since 1988 of the hardstanding for storage of materials which is the development for which a Certificate of Lawful Use is now required. In so far as the applicant is aware it (Dept. of Tourism) never applied for Planning approval to regularise its use of the agricultural hardstanding for materials storage.
From advise taken we understand that there appears to be confusion over the railways 'operation' and the 'use' of agricultural land and believe that the Department of Tourism erred in its belief that its 'operation' cover the use. They should have applied for 'use'.
As noted there exists an historic development at Ellenbrook for a hardstanding (now certified) for storage use which is as noted in the lease relative to its attached plan (Appendix A) and this area has, for the most part been subject to use by the then Dept of Tourism and Leisure for materials and equipment associated with the railway or to quote the terms of the lease "for the storage of railway materials and for the delivery and despatch of the same by either road or rail". To be clear the Dept. of Tourism did not create the hardstanding they used an extant 'development' created by Cliff Cowin Excavations Ltd in the 1980's. (see Appendix B - cartographic photographs supplied by the Isle of Man Government).
The argument therefore of the Dept. of Tourism and Leisure that the Permitted Development rules apply in relation to its use by them is in our opinion erroneous in that the facility was a) extant and b) not a part of the 'existing railway line'. Also the 2012 Permitted Development Order and Orders subsequent to that are clear that such Order is for the purposes of 'operations' WITHIN' the site of a railway line and for works required in connection with the movement of traffic by rail'. Storage of a variety of materials on a farm hardstanding out with a railway line is NOT permitted works.
By using the site for 22 years the Depart of Tourism effectively confirmed the presence of the 'Use' at Ellenbrook which was on a hardstanding originally undertaken by the previous owners.
The existence of a storage use is therefore a fully provable on the hardstanding and a key means of proof, if required, is the formal lease from 2003. The lease was either drafted by or notarised by H.M. Attorney General's Office.
Following cessation of the lease by the Dept. of Tourism and Leisure the present owners continued with its use up to this application as a part of the Carnane Estate. (see Affidavits in Appendix C.) and estates owned by Carnane Estate Limited.
Also to reiterate and as noted, whilst an informal agreement existed (which is unequivocal) it is only since 2003 that the actual Use has been by way of formal signed lease however this does not in any way undermine its existence of storage use on the hardstanding at the farm since 1988.
As we have noted the minimum time frame for consideration for certification is 10 years, and the lease agreements of 2003 onwards are in themselves sufficient evidence to establish the presence of the Use on the site beyond 10 years from the date of this submission. In so far as the preceding 10 years to this application the applicant and previous owners have by way of affidavit confirmed a continuity of use over that time.
The submitted Application is clear in its content and therefore submitted to seek to regularise and obtain approval to a long standing use of the hardstanding at Ellenbrook Farm.
Based on the forgoing we would ask for a Certificate of Lawful Use under Section 24 (1) (a) to be granted.
Lease Plan - Hardstanding / Storage Compound.
NOTES Figured dimensions are to be used in preference to scaled dimensions. Do not build from this drawing. Contractors MUST CHECK ALL dimensions and levels on site and any discrepancies must be reported to the Architect. If in doubt consult the Architect.
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