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Application No.: 20/00913/LAW Applicant: Mr & Mrs Andrew Walker Proposal: Application for certificate of Lawful Use of existing property as a residential dwelling Site Address: Ballaleigh Ballaleigh Road Kirk Michael Isle Of Man IM6 1HJ Planning Officer: Miss Lucy Kinrade Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 22.10.2020 _________________________________________________________________
C : Conditions for approval N : Notes attached to conditions
C 1. The information provided demonstrates that on the balance of probability the property 'Ballaleigh' as edged in red on the drawing no: 03, date-stamped as having been received 11th August 2020, has been in use as a residential dwelling for a continuous period of ten years 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(c).
Plans/Drawings/Information; The application relates to the following documents all date stamped and received 11/08/2020:
None _____________________________________________________________________________
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:
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 Directorate 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 SITE - 2.1 The site is the extent of an existing detached dwelling, garage and its surrounding curtilage known as Ballaleigh, Ballaleigh Road, Kirk Michael. The site is defined in red on the corresponding site plan drawing number 01 date stamped 11/08/2020.
3.0 THE APPLICATION - 3.1 The application seeks a Certificate of Lawful Use for the use of the dwelling, garage and curtilage as residential, and not for agricultural use as part of an agricultural occupancy condition. - 3.2 The application states that the property has been occupied as a domestic dwelling for a period longer than 10 years. There is no notice available on the historic planning documents and as such it is not clear whether there is an agricultural occupancy restriction imposed on the property. In order for this to be clear the applicant has applied for a CLAW.
4.0 SUMMARY OF EVIDENCE PROVIDED - 4.1 Evidence provided is the statement by the applicant's agents Penketh Millar includes:
5.0 PLANNING HISTORY - 5.1 There have been 5 previous applications which include Ballaleigh within the site line:
6.0 REPRESENTATIONS Copies of representations received can be viewed on the Government's website. This report contains summaries only. - 6.1 Michael Commissioners have - no objection (09/09/2020). - 6.2 Department of Infrastructure Highway Services - no comments received as of 15/10/2020. - 6.3 No comments received from neighbouring properties.
7.0 ASSESSMENT - 7.1 The applicant seeks to rely on the fact that area outlined in red has since 1985 been occupied as a domestic residential dwelling and not occupied as an agricultural dwelling. The application seeks to demonstrate a period of residential occupancy of at least a minimum of 10 years to establish that the development is immune from enforcement action as set out in 1.0 Introduction of this report and Part 4, Section 24(2) of the Town and Country Planning Act 1999. - 7.2 The original evidence submitted consists of a site and location plans, a copy of IOM Assessment Board Valuer's Return dated 1985 setting out a change to residential status, a written letter from a neighbour regarding rental of farm land and a copy of Rate Demands dating back to April 2010, on review of the submitted information it is considered on the balance of probabilities that the site outlined in red has been used as a domestic residential property not associated to agriculture for a period in excess of 10 years.
8.0 CONCLUSION - 8.1 It is considered that a Certificate of Lawful Use or Development can be issued.
9.0 INTERESTED PERSON 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.
Decision Made : Certificate of Lawful Use/Devel Approved Date: 22.10.2020 Determining officer
Signed : S CORLETT Sarah Corlett Principal Planner
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