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Application No.: 25/90823/LAW Applicant: Department Of Infrastructure Proposal: Certificate of lawful development for the commencement of work for PA 17/00414/B Site Address: Land At Ballacubbon Adjacent To Cooyrt Balley Cubbon & Dreem Balley Cubbon Colby Isle Of Man Planning Officer: Russell Williams Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 04.11.2025 _________________________________________________________________
C : Conditions for approval N : Notes attached to conditions
This application has been recommended for approval for the following reason. The submitted evidence indicates that works approved pursuant to conditions 6, 7 and 8 were commenced in a lawful manner in accordance with the approved development of application 17/00414/B. In the absence of any evidence to the contrary, it is accepted that on the balance of probability, the development was commenced within the required 4-year period. The application therefore meets the requirements of section 24 of the Town and Country Planning Act 1990 such that the Certificate of Lawful Development can be approved.
Plans/Drawings/Information; This decision relates to the following drawing and evidence, date stamped 1 October 2025: Cover Letter
________________________________________________________________ Officer’s Report
1.0 THE SITE - 1.1 The site lies to the north of the main road which runs through Colby, the A7, directly to the north of Ningwood Halt and Parrfold which front onto the A7.
1.2 To the east lie the Ballacriy cul-de-sac, which comprises single storey bungalows; to the north lie numbers Croit ny Glionney, part of the residential development which took place on the former Colby Football Club ground. To the east is Ballacubbon House a detached Manx farmhouse with gardens to the rear and west and to the west of the site is an existing development of sheltered housing with first time buyers' housing further towards the main road. - 1.3 The site is presently an open area of land through which there is a footpath link to Croit ny Glionney. It is accessed off the highway at Dreem Balley Cubbon to the south.
2.0 THE PROPOSAL - 2.1 The application seeks confirmation that the residential development of the land and construction of 20 affordable homes has been lawfully commenced in line with the approved planning permission, 17/00414/B. The development was approved on appeal, reference AP17/0032 with the decision dated 27 November 2017. - 2.2 The application is supported by the following evidence:
2.3 The applicant has submitted that development commenced on site during the week commencing 8th November 2021 and the works amounted to the creation of the new public footpath connecting the footpath in Croit ny Glionney to Dreem Balley Cubbon. - 2.4 The applicant has stated that "the footpath is an integral part of the approved application, noted as Pedestrian Link on the Site Layout and coloured yellow. This substantial piece of work, comprising excavations, edgings, concrete works, pavings and bollard lighting, was undertaken with the consent of the Building Control Department who noted that the work was such that detailed construction drawings need not be submitted for a footpath."
3.0 LEGISLATION - 3.1 There is no IOM legislation about what actually constitutes a start of a development, so we would look to adjacent jurisdictions case law. In the absence of a relevant Manx authority on a particular point of law the Staff of Government Division held in Frankland-v-R 1978-80 MLR that "the correct principle in our view is that decision of English Courts, particularly the House of Lords and Court of Appeal, are persuasive in the Manx Courts but not binding. It is of course predicated on the basis that the statutes are similar, which in relation to the 'start of development' is considered to be the case in this instance. - 3.2 On current case law, the works undertaken to implement a planning permission do not have to be particularly costly or extensive, nor do they have to be carried out with any intention to complete the development. The courts have generally taken a lenient approach towards what operations suffice in order to treat a permission as having been implemented within the time limit. However, they must genuinely be done for the purpose of carrying out the development.
3.3 An application for a Certificate of Lawfulness is determined on the basis of fact and degree. 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. - 3.4 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.
5.1 17/00414/B (AP17/0032) - Erection of twenty affordable homes with associated road access, drainage, street lighting and landscaping Land at Ballacubbon, Adjacent to Cooyrt Balley Cubbon & Dreem Balley Cubbon, Colby. PERMITTED 27 November 2017. - 6.0 REPRESENTATIONS
6.1 The following Statutory Consultees have been consulted and their responses can be summarised as follows:
Arbory and Rushen Commissioners - No comments received.
6.2 No representations have been received from members of the public. - 7.0 ASSESSMENT
7.1 The application seeks confirmation that a lawful commencement of the approved development pursuant to application 17/00414/B was made following the undertaking of engineering works to construct the approved footpath and erection of fencing within the development.
7.2 As a general guide in considering whether development has commenced regard is had to case law and whether the following applies:
7.3 A planning permission is extant if:
7.4 The Appeal was approved dated 27 November 2017, which effectively gave the applicant 4 years to commence works, when regard is had to condition 1 of the planning
consent. A such works should have commenced on or before 26 November 2021 in order to be lawful. In addition to commencing works within the 4-year period, any pre-commencement conditions must also have been satisfied prior to the lawful commencement taking place.
7.5 Regarding "pre-commencement" conditions, it is noted that conditions 6, 7 and 8 of the planning permission required details to be submitted to and approved by the Department before works could commence, including site clearance. - 7.6 Details relating to conditions 6, 7 and 8 were submitted to the Department on 16 November 2021 and approved by letter dated 19 November 2021, confirming that the precommencement conditions were discharged prior to the critical date when the 4 year permission will have expired. - 7.7 However, the original evidence indicated that site setting up and clearance works commenced during the W/C 15 November 2021. From the evidence submitted, including photographs, it would appear that some initial works did commence before conditions 6, 7 and - 8 were formally discharged by the Department, which is a technical breach of planning control. The impact of this potential breach therefore needs consideration.
7.8 In terms of Case Law, F.G. Whitley & Sons v Secretary of State for Wales and Clywd County Council [1992] 64 P & CR 296 the Court of Appeal established the following principle, which is now known as the Whitley principle:
7.9 It is worth noting that limited exceptions to the Whitley principle apply. - 7.10 The general rule established in Whitley & Sons is that development which breaches a pre-commencement condition is not authorised by the planning permission and cannot therefore implement the planning permission and keep the permission alive. There are very limited exceptions to the rule, the most significant being where:
7.11 There is no doubt that the works completed to construct the approved footpath, erection of fencing and initial tree protection works and landscaping are sufficient to confirm commencement of the development. However, the fact that site clearance works appear to have commenced 3-4 days before conditions 6, 7 and 8 were formally approved in writing and
their pre-commencement restrictions discharged, requires consideration. This matter was queried further with the applicant who has stated:
"The Project Manager has confirmed that during w/c 12th November 2021 he and our architect John Payne met on site to agree extent of work for footpath and critical setting out points. The contractor set out the path route and an area for construction materials storage, and the detailing was checked by the consulting civil engineer. Utility tracing was undertaken that week, and building materials and Heras fencing panels were delivered at the end of the week. No construction work was undertaken other than erection of fencing and signs, setting out and brief meeting with John Payne and engineer. Care was taken by DOI's project manager not to undertake any construction work until the architect informed him it was permissible to do so. John Payne informed the project manager on Monday 19th that work could commence that week and the contractor commenced on site by clearing a small area of grass and topsoil to permit the creation of a materials compound. John Payne has retired from DOI employment in the last eighteen months but his internal correspondence concurs with this timeline."
7.12 Having visited the site, it appears that the works completed to the footpath link and landscaping of that particular area are in accordance with approved details pursuant to conditions 6, 7 and 8. Correspondence on file indicates that the approval of details pursuant to conditions 6, 7 and 8 was fast tracked in order to support the implementation of the development within the 4 year limit and it can therefore be reasonably taken that the Department was aware that works were commencing concurrently with the discharge of conditions being sought. - 7.13 The updated information on the timing of works suggests that a breach did not, in fact occur, with site clearance works commencing the week of November 19th. Notwithstanding, if it were determined that breach had occurred, it would be unreasonable of the Department to consider the development not to have been lawfully implemented when it was aware that the developer was seeking to make a lawful commencement. The works carried out accord with the approved details and, therefore, the fact that the condition details had not been approved in writing at the time of the development commencing does not, in this instance, mean that a lawful commencement was not made at the time. - 7.14 It is considered that an exception to the general rule established under Whitley and Sons can be applied and that on balance, having regard to the information available, a lawful commencement of the development was made, because site clearance was held until W/C 19/11 and the Department were aware of the developer's intention to commence works whilst considering details submitted in relation to discharging pre-commencement conditions. As such it would be unreasonable in the circumstances for the Department to determine that the permission has not been lawfully implemented in accordance with the approved details and conditions attached to the planning permission.
8.1 The burden of proof rests with the applicant to demonstrate, on the balance of probabilities, that the development is lawful.
8.2 The submitted evidence indicates that works approved pursuant to conditions 6, 7 and 8 were commenced in a lawful manner. In the absence of any evidence to the contrary, it is accepted that on the balance of probability, the development was commenced within the required 4-year period.
8.3 The application meets the requirements of section 24 of the Town and Country Planning Act 1990, and it is recommended that the application be approved and the Certificate of Lawful Development issued.
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 the Head of Development Management 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, and/or rights to appeal.
Decision Made : Certificate of Lawful Use/Devel Approved Date : 21.10.2025 Determining Officer
Signed : S BUTLER Stephen Butler Head of Development Management
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