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Application No.: 24/01034/LAW Applicant: Mr Stephen Richardson Proposal: Certificate of Lawfulness for use as a HMO Site Address: Waters Edge 4 Castle Terrace Central Promenade Douglas Isle Of Man IM2 4LJ Planning Officer: Vanessa Porter Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use Declined Date of Recommendation: 07.10.2024 _________________________________________________________________ Reasons for Refusal R : Reasons for Refusal O : Notes attached to reasons R 1. Based on the evidence which has been submitted as part of the application, it is not considered that, on the balance of probabilities, that the property has been used as a HMO, for a period of time in excess of 10 years. As such it is recommended that the application be refused and a Certificate of Lawful Development not be issued.
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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 Waters Edge, 4 Castle Terrace, Central Promenade which is a mid terrace 4 storey property with a basement apartment situated to the North of Central Promenade. - 2.2 The application seeking the Certificate of Lawfulness was submitted on 3rd September 2024. PLANNING HISTORY
3.1 The following are applications upon the property; - 3.2 PA91/01471/B - Alterations and extensions - Refused at Appeal - 3.3 PA03/00381/C - Change of use from residential home to private guest house - Permitted 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, dated 3rd September 2024;
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 The evidence provided has a lot of information which whilst relates to the property but does not lend any evidence towards the probabilities of the property being used as a HMO for the time period provided beyond reasonable doubt and is also from sporadic years, not the 10 years of consistency that is required. - 6.4 As such the benefit of doubt then lies on the Covering letter, the Statement of Truth and the tenant support letter from rooms 3 & 5. The Statement of Truth specifically states, "The property had eleven bedrooms, ten of which came with en-suite facilities. Between 2007 and
2010 I worked on refurbishing part of the property and this included replacing the old showers and toilets with new. Once there were rooms upgraded and decorated, I was able to start letting out the upgraded rooms.
The first two people started occupancy in March 2009 and over the next ten years I continued with the repairs to the other remaining rooms, letting them out as and when the works were completed."
6.5 The issue with the above statement is that it states the works were done over 10 years from 2009 to 2019. With the two tenancy agreements and the above information, there is no doubt that two rooms were used as a HMO, the issue arises from the following rooms, where no evidence has been provided on when these rooms were used as a HMO, and as such with the benefit of doubt a continued use of the property for 10 years cannot be given.
7.1 Based on the information provided above, there is not sufficient evidence to demonstrate that the property had been used for a HMO, at the same level of intensity for a period in excess of 10 years.
7.2 It is recommended that a Certificate of Lawful Development should not be issues in respect of the use of the property as a HMO.
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 Declined Date: 15.10.2024 Determining Officer Signed : J SINGLETON Jason Singleton Principal Planner
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