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Application No.: 24/01330/LAW Applicant: Mr Stephen Richardson Proposal: Certificate of Lawfulness for use as a HMO Site Address: Waters Edge RR Hotel 4 Castle Terrace Central Promenade Douglas Isle Of Man IM2 4LJ Planning Officer: Paul Visigah Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 15.04.2025 _________________________________________________________________
C : Conditions for approval N : Notes attached to conditions
C 1. On the balance of probabilities there is sufficient evidence to demonstrate that an 11 room HMO in the submitted information has been in situ since at least 2009.
Plans/Drawings/Information; This decision relates to the submitted documents received on 7th October 2024, 7th January 2025, and 13 February 2025. _________________________________________________________________ Right to Appeal N/A _________________________________________________________________ Officer’s Report
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 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'.
2.0 APPLICATION SITE - 2.1 Waters Edge RR Hotel, 4 Castle Terrace, Central Promenade, is a mid-terrace 4 storey property with a basement apartment situated to the North of Central Promenade, Douglas. - 2.2 The existing plans show 12 bedrooms, two kitchens (one on the ground floor and the other on the first floor, a large communal room (private room) on the ground floor, and three stores; one on the ground floor and two on the lower ground floor. Some of the bedrooms are provided with an ensuite, and there is a utility room on the ground floor. A certificate of lawfulness application can only be used to demonstrate lawfulness for the existing use, which in this case would be a 11 bedroom house in multiple occupation.
3.0 THE PROPOSAL AND EVIDENCE SUBMITTED - 3.1 A Certificate of Lawful Use is sought for the use of the property as a house in multiple occupation (Class 3.5 HMO of UCO 2019). This is not an application for planning permission but seeks to demonstrate that the use of the building is lawful by virtue of being used for this purpose for over 10 years. - 3.2 The application has been submitted with the following evidence (in no order) in support:
4.0 PLANNING HISTORY - 4.1 PA 03/00381/C for Change of use from residential home to private guest house. This corroborates the owner's statement and paperwork submitted that the property has been used as a guest house since 2009, given that it already had approval for use as a guest house. - 4.2 PA 24/01034/LAW for Certificate of Lawfulness for use as a HMO. This application was refused on the grounds that there is insufficient evidence to demonstrate that the property has been used as a HMO for a period in excess of 10 years.
5.0 REPRESENTATIONS - 5.1 None received at the time of writing this report.
6.0 ASSESSMENT/CONSIDERATION - 6.1 In this instance, the applicant seeks to rely on the fact that the premises in question has been a HMO for more than 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 2.2 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 owner's Cover Letter and application form states that they have owned the building from October 2006, and that it has been used as a HMO since March 2009 to present day. They clarify matters regarding works to the property in response to previous refusal at the site under PA 24/01034/LAW by stating that they did not imply that the property was not occupied when works were carried out at the site, but that they only worked on rooms which were not being occupied to improve the rooms for tenants. The application is also supported by statements form three current tenants who indicate that they have lived at the property continuously for 15 years 11 months, 15 years, and 7 years 3 months respectively, as well as statements from 14 previous tenants which show that they have lived at the property for periods covering April 2010 to July 2024.
6.4 The above information is further supported by profit and loss accounts showing total rents received for 2014 and 2015, 2022, 2023, although the details of particular payment for 2010 and 2012 refers to hotel rates and not guest house rates. As well, bank statements which show rent payments made by various tenants over between 2016 and 2024 have been provided.
6.4 While the onus of proof is firmly on the applicant and the relevant test is the balance of probabilities unless there is any other evidence available to the Department which contradicts or undermines the applicant's version of events then a refusal cannot be justified. - 6.5 From the evidence submitted it is clear that the property was purchased by the current owner in 2006 and that since 2009 they have been in receipt of direct of rent payments which supports the fact that people have been living there rather than it being used as a guest house. It is, however, worth noting that the submitted information does not provide a clear picture of how the property was occupied for some of the years. That being said the existing floor plan shows 14 bedrooms, and statements from current and previous occupants indicate that it has operated as a HMO for a period in excess of 10 years. - 6.6 The declarations provide little additional information about the use of the property in terms of the number of occupants; any tenancy agreements or level of occupation; and although it gives an indication of how frequently tenants came and went over time for the rooms and how payments were made. It also clarifies that between 2013 and 2024, the lowest room occupancy was 9 rooms out of 12. - 6.7 Whilst the Department has no information of its own to contradict the appellant's version of events, the evidence regarding rent payments provided by the appellant is not, of itself, sufficiently precise in terms of the last 10 years but is considered on balance in combination with the other information sufficient to demonstrate his case. - 6.8 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 sufficient to justify the grant of a certificate 'on the balance of probability'. On the balance of probabilities and as there is no other evidence available to the Department which contradicts or undermines the applicant's version of events, the Department is satisfied that the property has been operating a house in multiple occupation with 11 rooms.
7.0 CONCLUSION - 7.1 The evidence submitted suggest on the balance of probabilities that the land has indeed been used without the benefit of planning permission for a period in excess of ten years as a house in multiple occupation described above.
8.0 RECOMMENDATION - 8.1 It is recommended that the application be approved subject to the following wording of the Certificate of Lawfulness for the existing use of the property as a house in multiple occupation of not more than 18 residents.
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: 15.04.2025
Determining Officer Signed : J SINGLETON Jason Singleton
Principal Planner
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