DEC Officer Report

Application No.: 19/00115/LAW Applicant: Ballaseyr Stud Limited Proposal: Certificate of Lawful Use for the use of the farmworkers dwelling at Ohio Filed as a residential dwelling Site Address: Ohio Field Bernahara Road Andreas Isle of Man IM7 3HH Planning Officer: Mr Nick Salt Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use Declined Date of Recommendation: 09.04.2019 _________________________________________________________________ Reasons for Refusal R : Reasons for Refusal O : Notes attached to reasons R 1. It is considered that there is contradictory and patchy information regarding the last occupation of the previous occupant, and not enough evidence to support the claim that there was no one living within the property in the last 10 years whose employment or last employment was in agriculture. Whilst it has been stated by some that the original occupant was not an agricultural worker as far as they could recall, no alternative occupation was suggested, when it is considered that archaeological interests were a hobby. There is therefore inadequate supporting evidence that the agricultural condition on the property had been broken.

_______________________________________________________________ Interested Person Status – Additional Persons

As the application is for a CLU this is not required to be assessed. There is no right to appeal against this decision. _____________________________________________________________________________

Officer’s Report

1.0 INTRODUCTION - 1.1 The application seeks a Certificate of Lawfulness of Use or Development ("Certificate of Lawfulness" or "CLU") in respect of the use of 'Ohio Field', Bernahara Road, Andreas as a residential dwelling with no agricultural tie. - 1.2 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.

1.3 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. - 1.4 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. - 1.5 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 Authority to corroborate the applicant's evidence.

2.0 THE APPLICATION SITE - 2.1 The site in question is a rural one outside of any zoned land use area. It sits on the western side of the Bernahara Road approximately 1km south of Andreas Village, and shares a site border with Ohio Cottage to the south. The site is surrounded by trees and a registered tree area. - 2.2 The bungalow on site is of modern design with two entrances to Bernahara Road and is directly beside the road set back by less than 10m. The dwelling is surrounded by fields - one field is part of the same land ownership as the dwelling, the field on which it is sited. This field is landscaped and features a number of planted trees within. It does not appear to be cultivated or used for livestock grazing.

3.0 PLANNING HISTORY - 3.1 The site dwelling was initially permitted on 20.07.1981 with conditions, number 6 of which read:

"The occupation of the proposed dwelling must be limited to persons whose employment or latest employment is or was in horticulture or agriculture in the island and including also the dependents of such persons aforesaid and such tenancy must be subject at all times to enquiry and approval by the Committee."

3.2 An application was submitted back in 1992 for Ohio Field for the change of use from an agricultural workers dwelling to a private residence. It was refused on review. (92/01386/C).

4.0 REPRESENTATIONS - 4.1 Andreas Parish Commissioners have no objection (13.03.19).

4.2 Ballacurry Farm Cottage, Bernahara, have commented on the application:

"I read with interest neighbour endorsement that the dwelling Ohio Field has never been used for agriculture of horticulture. I can agree with that.

However I recall a conversation with Mr Skillen about 15 years ago, the late owner and man who built this house, where he told me he had donated his extensive flint arrowhead collection to the museum. He told me that the collection was too large and that he had collected the heads from his days ploughing as a contract farm hand/labourer. To that end I would assume that he met the planning condition that has been originally applied to the property in that the occupant has be be employed as, or formerly has been an agricultural worker. I know he had been retired to that dwelling since he built it."(24.03.2019).

4.3 The owner/occupier of Knock-e-Dhooney, Andreas has provided comments in relation to this application, summarised as follows:

• o The case advanced by the applicant and their agent is selective
• o Mr Skillan did indeed devote a large part of his life to archaeology
• o This was however a hobby not his full-time employment
• o "Allan's contribution to Manx archaeology - his collection and knowledge -was built from and on material he collected whilst working on farms and later dedicated field walking; both facilitated by the links and trust with farmers that Allan had built up as a farm worker.
• o Whilst not a Farmer himself, or a Market Gardener, when still working he was an Agricultural Worker, working on farms around the North of the Island.

4.4 The applicant has submitted a statement (03.04.19) from the previous site owner's (Mr Skillan's) advocate stating that:

• o The advocate first knew Mr Skillan from 1979 in a professional capacity, preparing planning documentation for him at the time.
• o The advocate dealt with the will and estate of Mr Skillan prior to and following his death in 2017.
• o There was no evidence of horticulture at Ohio Fields.
• o "To the best of my knowledge, and as his advocate, I do not believe that Mr Skillan was active in horticulture for many years, and I certainly have no knowledge of him ever being employed as an agricultural contractor."

4.5 The Isle of Man Natural History and Antiquarian Society commented on 03.04.19 stating that the Society wishes to "(i) confirm that Mr Skillan was a dedicated but unpaid amateur archaeologist, and (ii) advise that a number of its committee members are also aware of Mr Skillan having been an Agricultural worker."

5.0 SUMMARY OF EVIDENCE PROVIDED - 5.1 The deeds of the site dating from 1959 have been provided - prior to any dwelling being erected on the land. It is demonstrated that the land consists only of the field on which the current dwelling is situated, of approximately 1.5 acres. - 5.2 A letter from Andreas Parish Commissioners has been provided to the Department from the Clerk stating that there is no recollection of the land of Ohio Fields being used for any agriculture in respect of a market garden. - 5.3 The owners/occupiers of both Somers Farm and 1 Ballavarry Cottages (both to the south of the site) have stated via letters to the Department that at no time (in 26 years and 30 years of residence at those properties until the present) has Ohio Field been used for agricultural or horticultural purposes. 1 Ballavarry Cottages has stated that they assisted in turning the field of Ohio Field into a lawn upon the building of the site bungalow. Both state

• that they were not aware of the previous owner being employed in architecture or horticulture either before or after the bungalow was built.
• 5.4 The applicant has confirmed that the original property was built in 1986, on land (Ohio Fields) gifted by the owner of Ohio Cottage adjacent. Planning approval was gained under the proviso of running a market garden at the property - there was therefore an agricultural tie as noted in Condition 6 (see 3.1). Ohio Cottage has no association with Ohio Fields. The IOM Government Rates section has confirmed that an agricultural rating has always been applied to the property. The applicant has stated that no evidence can be found of Ohio Fields being used for agriculture in the last 33 years.
• 5.5 The documents submitted as part of PA 92/01386/C for the change of use from agricultural dwelling to private residential dwelling show 19 signatures from neighbours supporting the applicant (Mr Skillan's) assertion that the site was not needed or used as an agricultural workers dwelling. The planning application was refused, this decision was upheld at appeal.
• 5.6 Following submission of the information supporting the application , correspondence has been received from two contributors relating to this as noted in 4.2 and 4.3 of this report. Without repeating what is stated there, these written statements contradict much of what is contained in statements supporting the application - particularly regarding the last employment of Mr Skillan.
• 5.7 Again, comments submitted by the former advocate of Mr Skillan and the Isle of Man Natural History and Antiquarian Society are contrasting in that the first claims that he was not an agricultural worker and the latter confirms that he was.

6.0 CONCLUSION - 6.1 On the basis of the information provided, it is regarded that there is satisfactory written testimony to indicate on the balance of probabilities that the site in question has not been used for horticultural or agricultural purposes for the last 10 years. However the 'agricultural tie' attached to the original approval in 1981 was specifically worded requiring that occupancy be for persons who's employment or last employment is in agriculture or horticulture. It is considered that there is contradictory and patchy information regarding the last occupation of the previous occupant, and not enough evidence to support the claim that there was no one living within the property in the last 10 years who's employment or last employment was in agriculture. Whilst it has been stated by some that the original occupant was not an agricultural worker as far as they could recall, no alternative occupation was suggested, when it is considered that archaeological interests were a hobby. There is therefore inadequate supporting evidence that the agricultural condition on the property had been broken. On that basis it is recommended that a Certificate for Lawful Use is not granted.

7.0 RECOMMENDATION - 7.1 It is recommended that the application for a Certificate of Lawfulness is refused.

8.0 INTERESTED PARTY STATUS - 8.1 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 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 Declined Date : 09.04.2019

Determining officer

Signed : S BUTLER Stephen Butler Head of Development Management

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