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Application No.: 17/00821/LAW Applicant: Mrs Tracy Lynch Proposal: Application to make lawful the installation of replacement front windows Site Address: Flat 2 17 Hutchinson Square Douglas Isle of Man IM2 4HT Case Officer : Miss Abigail Morgan Expected Decision Level: Officer Delegation Recommended Decision: Permitted Date of Recommendation: 05.09.2017 _________________________________________________________________
C : Conditions for approval N : Notes attached to conditions
C 1. Taking into account the evidence supplied by the applicant, it is demonstrated that the alterations to the windows of Flat 2 of the building which is identified by the red line on the Location Plan date stamped 9 August 2017 were carried out before August 2013.
_______________________________________________________________ Interested Person Status
This is no provison for Interested Persons under a Certificate of Lawfulness application. _____________________________________________________________________________
1.0 SITE DESCRIPTION - 1.1 The application site is Flat 2 of 17 Hutchinson Square, Douglas. Flat 2 consists of the first floor of the building.
2.0 THE PROPOSAL AND EVIDENCE SUBMITTED - 2.1 A Certificate of Lawful Use is sought for the installation of replacement windows in the front elevation at first floor of 17 Hutchinson Square. This is not an application for planning permission but seeks to demonstrate that the windows are lawful by virtue of being installed more than 4 years ago.
2.2 The application has been submitted with the following evidence (in no order) in support:
3.0 PLANNING HISTORY - 3.1 00/00345/B - installation of UPVC windows to flats 1 & 2 - SPLIT DECISION Side and Rear approved, front refused. - 3.2 08/00430/B - installation of rooflight - APPROVED
3.0 RELEVANT POLICIES AND GUIDANCE - 3.1 This is an application seeking a Certificate of Lawful Use, and therefore it is not a matter of considering the planning merits of the scheme but rather a legal determination based on the facts to establish whether the stated use is established and lawful by period of time and therefore beyond the scope of enforcement action. The test of the evidence is "on the balance of probabilities" rather than the stricter criminal test of "beyond reasonable doubt".
3.3 While the onus of proof is on the applicant it is good practice to review the information available to the planning department to either corroborate or contradict the evidence. Generally if there is no evidence from the information available to the department, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence, and any other evidence, is sufficient to justify the grant of a certificate 'on the balance of probability'.
4.0 PLANNING RECORDS - 4.1 Previous planning applications are set out above at section 2. As part of the application the applicant has referred to a photograph submitted with the 2008 application which shows the front elevation with replacement UPVC casement windows. This has been verified, the records do include this information.
5.0 REPRESENTATIONS - 5.1 Douglas Borough Council has no objection. 24.08.2017. - 5.2 No others were received at the time of writing.
6.0 ASSESSMENT/CONSIDERATION - 6.1 In this instance, the applicant seeks to rely on the fact that the windows in question have been installed for more than 4 years to establish that the development can be considered lawful, as set out in Part 4, Section 24(2) of the Town and Country Planning Act 1999. Consideration must only be given to the evidence and not to the perceived planning merits. - 6.2 The applicant has provided evidence of photographs of the buildings front elevation taken by herself with meta data included, taken and submitted as part of the 2008 planning application and a Google street view of the property dated 2010 which all confirm that white upvc casement windows have been in place for more than 4 years. A site visit confirmed that there have not been any further modifications to the window or their apertures and remain as the submitted evidence. - 6.3 Schedule Part 1, Paragraph 3 (a) of The Act as mentioned above, means that enforcement action cannot be taken on development which has been carried out in excess of four years.
6.4 Having assessed the evidence provided, visited the site it would appear that on the balance of reasonableness the windows were installed more than 4 years ago. As such, it is recommended that a Certificate of Lawfulness of Development is granted in respect of these works.
7.0 CONCLUSION - 7.1 The evidence submitted, along with the information from other departments/divisions, suggest on the balance of probabilities that the windows have been installed more than 4 years.
I can confirm that this decision has been made by the Director of Planning and Building Control/Head of Development Management/Senior Planning Officer in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation.
Determining officer
Signed : Chris Balmer Chris Balmer Senior Planning Officer
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