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Application No.: 24/01055/LAW Applicant: Mr Shaun Cook Proposal: Certificate of Lawful Use as house in multiple occupation. Site Address: 16 Castlemona Avenue Douglas Isle Of Man IM2 4EH Planning Officer: Vanessa Porter Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 16.10.2024 _________________________________________________________________
C : Conditions for approval N : Notes attached to conditions
C 1. There is sufficient evidence to demonstrate that 16 Castlemona Avenue, Douglas, 1st, 2nd and 3rd floors have been used as a HMO of 12 rooms for up to 12 persons on the first, second and third floor with the ground floor and basement being a self-contained flat, for a period exceeding 10 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(a).
Plans/Drawings/Information;
This decision relates to the submitted documents received on 19th September 2024 and the 14th August 2024 _______________________________________________________________
Right to Appeal N/A ___________________________________________________________________ Officer’s Report 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 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". - 1.4 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. Best practice indicates that a certificate should not be refused because the applicant has failed to discharge the stricter, criminal burden of proof, 'namely beyond reasonable doubt'. 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 sufficiently precise to justify the grant of a certificate 'on the balance of probability'. APPLICATION SITE
2.1 The application seeks a Certificate of Lawful Use in respect of the use of the property as a HMO at 16 Castlemona Avenue, Douglas which is a four storey end terrace property with a basement, situated to the South East of Castlemona Avenue. - 2.2 The application seeking the Certificate of Lawfulness was submitted on 12th September 2024. PLANNING HISTORY
3.1 The following are applications upon the property; - 3.2 PA01/00106/B - Conversion of guest house to seven apartments with retention of owners accommodation - Refused at Appeal - 3.3 PA03/01901/A - Approval in principle for the conversion of guest house to four apartments
3.4 PA06/01372/A - Approval in principle to convert existing guest house into four apartments Permitted - 3.5 PA06/01917/A - Approval in principle to convert existing guest house into five self contained apartments - Refused. REPRESENTATIONS
4.1 None received at the time of writing this report. SUMMARY OF EVIDENCE PROVIDED - 5.1 The application has been submitted with the following evidence, in no order, dated 19th September 2024;
5.2 After a discussion with the applicant the following information was received, an more readable floor plan showing the exact rooms which were used as the HMO & the flat and an signed Affidavit, both dated received 14th October 2024. ASSESSMENT - 6.1 In this instance, the applicant seeks to rely on the fact that the premises in question has been a HMO for 10 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 main evidence is listed at section 5.0 of the report. Consideration needs to be given to whether the evidence submitted is sufficient to show, on the balance of probability that the property has been in use as HMO for at least the last 10 years.
6.3 Most of the evidence provided as part of the application do not lend themselves to the property having been used as a HMO, whilst this is the case, the applicant has provided a sworn affidavit, which is a legally binding document. - 6.4 As such, 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'. - 6.5 On the balance of probabilities and as there is no other evidence identified which contradicts or undermines the applicant's version of events, it is recommended that the Department should be satisfied with the maximum level of occupation of 12 rooms and up to 12 persons on the first, second and third floor with the ground floor and basement being a self-contained flat.
7.1 The information provided is enough to establish that the use has exceeded the 10 years and is considered immune from the issue of an enforcement notice. RECOMMENDATION - 8.1 It is recommended that the application be approved subject to the following wording of the Certificate of Lawfulness for the use of the property as a HMO of 12 rooms for up to 12 persons on the first, second and third floor with the ground floor and basement being a selfcontained flat. _____________________________________________________________________
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 and/or rights to appeal.
Decision Made : Certificate of Lawful Use/Devel Approved Date: 17.10.2024 Determining Officer Signed : J SINGLETON Jason Singleton Principal Planner
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