DEC Officer Report

PLANNING OFFICER REPORT AND RECOMMENDATION

Application No.: 23/00997/LAW Applicant: Dr David Martin Foreman & Mrs Demelza Baker Proposal: Certificate of lawful development for the installation of roller door to rear boundary wall of property Site Address: 65 Derby Square Douglas Isle Of Man IM1 3LR Planning Officer: Mr Hamish Laird Photo Taken: 07.09.2023 Site Visit: 07.09.2023 Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 02.10.2023

Conditions and Notes for Approval

C : Conditions for approval N : Notes attached to conditions This application has been recommended for approval for the following reason.

There is sufficient evidence to demonstrate that the roller door, the subject of the application, was in situ since at least 30th May 2007, and as such, the Department may not issue an enforcement notice due to the provisions of Town and Country Planning Act 1999 Schedule 4 Part 1 paragraph 3(a).

Plans/Drawings/Information; This approval relates to:

• - The application form;
• - Site Location Plan showing site edged red at scale 1:1,250;
• - Site Plan showing site edged red at scale 1:500; and,
• - Covering letter dated 21 June 2023 (stamped received twice on 23 and 26 June, 2023) The applicants have also provided a sworn statement dated 21/6/23 advising:

"The roller door in the wall abutting the lane behind our house was installed before we took ownership on 30th May, 2007. Its purpose was to allow ingress and egress of vehicles to the hard standing that has been created in the rear yard area, and which also contains our central heating oil tank, which requires access to refill. Inspection of the lane shows that such door are typical thereon, and our door is coloured to blend appropriately with its surroundings. It functions satisfactorily, without safety concerns. Even though we did not fit the door, we believed it was compliant with planning regulations"

Signed before a Commissioner for Oaths - Rowala Tindog-Relayson on 25th August, 2023. A check on the Commissioner for Oaths has revealed that the Commissioner is an employee in the Courts Division of the Manx Government.

All of which are stamped received on 21st August, 2023. The letter of 21/6/23 having been subsequently signed before the Commissioner for Oaths as noted on the sworn statement on 25th August, 2023.

_______________________________________________________________ Interested Person Status – Additional Persons

None. _____________________________________________________________________________

Officer’s Report

1.0 INTRODUCTION - 1.1 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:

• a) 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 the period of 4 years beginning with the date on which the operations were substantially completed;
• b) in respect of a breach of planning control consisting of the change of use of any building to use as a single dwelling house, after the end of the period of 4 years beginning with the date of the breach;
• c) in respect of any other breach of planning control, after the end of the period of 10 years beginning with the date of the breach.

1.2 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. - 1.3 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. - 1.4 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 Department to corroborate the applicant's evidence.

2.0 THE APPLICATION SITE - 2.1 The site is the curtilage of an existing mid-terraced dwelling, 65 Derby Square, Douglas, which lies in an early C.20 residential square with rear access along a service road. The dwelling faces out onto a landscaped, parkland square typical of such residential developments. The property is served by a garage accessed form the Cambridge Terrace Lane at the rear. The garage is served by a roller shutter door. There are a number of other dwellings close-by in the locality with similar such access points and roller shutter door arrangements.

3.0 THE PROPOSAL - 3.1 The application seeks a Certificate of Lawful Development in respect of operations carried out for a period in excess of 4 years for the installation of the roller shutter door serving the garage to the rear of the property. No specific time of completion has been provided for the development although the applicant has provided photographic evidence and in a covering letter advises that the roller shutter door was in situ when they took ownership of the property on 30th May, 2007. The applicants have also provided a sworn statement dated 21/6/23 advising:

"The roller door in the wall abutting the lane behind our house was installed before we took ownership on 30th may, 2007. Its purpose was to allow ingress and egress of vehicles to the hard standing that has been created in the rear yard area, and which also contains our central heating oil tank, which requires access to refill. Inspection of the lane shows that such door are typical thereon, and our door is coloured to blend appropriately with its surroundings. It functions satisfactorily, without safety concerns. Even though we did not fit the door, we believed it was compliant with planning regulations" Signed before a Commissioner for Oaths - Rowala Tindog-Relayson on 25th August, 2023.

A check on the Commissioner for Oaths has revealed that the Commissioner is an employee in the Courts Division of the Manx Government.

3.2 The application seeking the Certificate of Lawfulness was submitted on 21st August, 2023.

4.0 PLANNING HISTORY - 4.1 The following planning history relates to this property. - 4.2 10/01688/B - Reinstate balcony railings to first floor of dwelling - Permitted 01.03.2011. - 4.3 10/00795/B - Installation of replacement windows to front and rear elevations Permitted - 20.08.2010. - 4.4 96/00128/B - Replacement uPVC casement windows, APPROVED to the rear, REFUSED to the front. Decision Dated - 13.06.1996 - 4.5 95/01847/B - Creation of a roof patio, 65, Derby Square, Douglas - Refused 30.04.1996

5.0 REPRESENTATIONS - 5.1 None received at the time of writing this report.

6.0 EVIDENCE SUBMITTED - 6.1 The application has been submitted with the following evidence (in no order):

• i. Site Location Plan showing site edged red at scale 1:1,250;
• ii. Site Plan showing site edged red at scale 1:500;
• iii. A covering letter from the applicant dated 21/6/23 containing the same wording as the sworn statement.
• Iv A sworn statement dated 21/6/23 - Signed before a Commissioner for Oaths - Rowela Tindog-Relayson on 25th August, 2023.

7.0 ASSESSMENT - 7.1 This is an application seeking a Certificate of Lawful Development, 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 operations are established and lawful by period of time and therefore beyond the scope of enforcement action. The test of the evidence is based on the balance of reasonableness. In this instance, the applicant seeks to rely on the fact that the roller shutter door subject of the current application has been in situ for a

• minimum of 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.
• 7.2 The applicant has provided photographs of the development showing the roller shutter door serving the garage in situ and a sworn statement outlining dates of when they bought the property - 30th may, 2007 - advising that the roller shutter door was in situ at the time of purchase. Google Street View images which have an have image capture date of April, 2010, do not show the roller shutter door in situ at this moment in time, because the garage serving the property is not directly visible form the Cambridge terrace lane street scene - Cambridge Terrace Lane being the access lane serving the rear aspects of the Derby Square dwellings on this side of the Square.
• 7.3 It is considered that the applicants' sworn statement is sufficient to confirm that the roller shutter door across the garage serving No. 65 Derby Square, Douglas is sufficient to confirm that the roller shutter door was in situ when they acquired the property on 30th May,

1. This is well in excess of the required 4 years for confirmation that such a development would be lawful.

7.4 Given the above, it is recommended that a Certificate of Lawfulness of Development is granted in respect of these works, as the roller shutter door in question has been in situ for a period exceeding 4 years.

8.0 CONCLUSION - 8.1 In view of the above, it is recommended that a Certificate of Lawfulness be issued.

9.0 INTERESTED PARTY STATUS - 9.1 As the application is for a CLU this is not required to be assessed. There is no right to appeal against this decision.

I can confirm that this decision has been made by a Principal Planner in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation and that in making this decision the Officer has agreed the recommendation in relation to who should be afforded Interested Person Status.

Decision Made : Certificate of Lawful Use/Devel Approved Date: 06.10.2023 Determining officer

Signed : C BALMER Chris Balmer Principal Planner

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