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{{table:178542}} ### Considerations {{table:178543}} ### Written Representations {{table:178544}} ### Consultations
The application site comprises of a parcel of land that is accessed off Ballaragh Road (B11) in Laxey. The definition of the site has been the subject of the submission of amended drawings during the course of the application.
The original submission defined the site using drawing HKW 1, which highlighted an area of land in pink that was annotated with the figures .335 and .280 (presumed to be references to size). This definition of the site was superseded by the submission of drawing HKW 2, which outlined in red and highlighted in pink one an area of land that was annotated with the figure 1.647 (again presumed to be a reference to size), as a result of the applicant advising that their agents that the initial definition was incorrect. Given the age and accuracy of the mapping used for drawing HKW 2 the applicant's agent was requested to define the site on up to date ordnance survey mapping. This resulted in the submission of an amended drawing by the applicant's agent on the 12th November 2007, which was duly advertised in accordance with procedures. The applicant subsequently came into the office on the 26th November 2007 to advise that the drawing submitted by his agent was incorrect. He defined and signed the site on up to date ordnance survey mapping date stamped the 26th November 2007. The previous drawing was subsequently superseded with the drawing date stamped the 26th November 2007 duly advertised in accordance with procedures.
| Application No.: | 07/01530/LAW |
| Applicant: | Mr H K Wade |
| Proposal: | Application for a Certificate of Lawful Use to regularise the use of a site as a builders yard |
| Site Address: | Field 611647 Gretch Vooar Road Ballaragh Laxey Isle of Man |
The site defined by the drawing date stamped the 26th November 2007 basically accords with the site defined by drawing HKW 2, insofar as there are limited reference points on drawing HKW 2 to accurately plot or define a site.
The application site and associated adjacent land has been the subject of a number of previous planning applications:
Planning application 90/00491/B sought approval for the residential development of fields 6559, 6946, 7655 with new access road onto B11 Ballaragh Road for approx 65 dwellings, Laxey. This previous planning application, included the application site for the current application, was withdrawn by the applicant before any decision was made.
Planning application 94/01731/A sought approval in principle for erection of replacement dwelling on field No. 8959, Gretch Voar, Laxey. This previous planning application relates to the land directly adjoining south of the application site for the current application. It was initially considered and refused on the 12th May 1995, with the initial refusal decision notice issued on the 25th May 1995. The initial refusal was confirmed by the Planning Committee at review on the 11th August 1995, with the review refusal decision notice issued on the 23rd August 1995. A subsequent appeal against the refusal was dismissed by the Minister, in accordance with the recommendation of the appointed Planning Inspector, with the appeal refusal decision issued on the 31st January 1996. Copies of the initial decision notice, review decision notice and appeal decision notice for this previous planning application have been placed on the file for this current application.
Planning application 97/01837/C sought approval for the provision for parking of vehicles related to the film industry, part of farm grounds, Gretch Voar, Laxey. Although difficult to precisely define it would appear that this previous planning application relates to land directly adjoining south of the application site for the current application. It was initially considered and refused on the 18th March 1998, with the initial refusal decision notice issued on the 27th March 1998. A copy of the initial decision notice for this previous planning application has been placed on the file for this current application.
Planning application 04/01091/R sought retrospective approval for the use of site as a builders yard, part of field 611647, Gretch Voar Road, Ballaragh, Laxey. This previous planning application relates to land that is essentially the same as that for the current application. It was initially considered and refused on the 13th August 2004, with the initial refusal decision issued on the 17th August 2004. The initial refusal was confirmed by the Planning Committee at review on the 22nd October 2004, with the review refusal decision notice issued on the 26th October 2004. A subsequent appeal against the refusal was dismissed by the Minister, in accordance with the recommendation of the appointed Planning Inspector, with the appeal refusal decision issued on the 9th August 2005. Copies of the initial decision notice, review decision notice and appeal decision notice for this previous planning application have been placed on the file for this current application.
Laxey Village Commissioners have no objections to the application.
The Department of Agriculture. Fisheries and Forestry's Inland Fisheries Development Manager does not comments on the merits of the application but suggests that a minimum distance of 8 metres of undisturbed land should be maintained alongside the watercourse.
The Society for the Preservation of the Manx Countryside and Environment comment on the application. They question the evidence submitted to support the claim and suggest that a sufficient case has not been proven.
The Isle of Man Water Authority make no comment on the merits of the application but request that an informative note be attached to any decision notice.
The owners and/or occupants of Winterbrook Cottage, which located approximately 550 metres north west of the application site, comment on the application. They highlight the recent history of the application site, comment on the application procedures and question the appropriateness of the development within the application site.
The owner and occupant of Seacliffe, which is located in Braddan, comments on the application. They question the appropriateness of the use of the application site, comment on the extent of the submitted evidence and
after initially indicating that they consider the assessment to be finely balanced ultimately suggest that that the application should be dismissed.
Under the Laxey and Lonan Area Plan Order 2005 (Map No. 1) the application site is part designated as an area of open space (private woodland or parkland) and part designated as open space/agricultural use, with the entire application site being located within a wider area of land that is designated as an area of high landscape value and scenic significance.
The application seeks a Certificate of Lawfulness for the use of the application site as a builders yard. The extent of the use is expanded upon within a statement submitted with the application on behalf of the applicant to define the use as a builders yard, store and workshop and for the storage of brick paving, concrete and rubble which is crushed and recycled for hardcore and storage of vehicles used in connection with the applicant's business. Based on that description it is considered that the use would be primarily related to storage or distribution and therefore categorised as Class 6 under the Article 4. Schedule 4 under the Town and Country Planning (Permitted Development) Order 2005.
As described in this report the definition of the application site has been the subject of the submission of a number of different drawings. The site definition shown on the last drawing to be submitted, which is date stamped the 26th November 2007, was drawn and subsequently signed by the applicant as an accurate representation of the site. This drawing is considered to be an accurate representation of what was intended to be shown on drawing HKW 2, especially given that this earlier drawing defined the site on historical mapping with little reference points.
The assessment of the application requires an examination of the available information in order to determine whether there is either sufficient or insufficient evidence that, on the balance of reasonableness, the use has been in operation for more than ten years. Under Schedule 4 Part 1 Paragraph 3. (c) of the Town and Country Planning Act 1999 no enforcement notice may be issued in respect of any other breach of planning control, after the end of the period of 10 years beginning with the date of the breach.
In terms of the evidence submitted on behalf the applicant with the application there are three affidavits and two supporting letters. The three affidavits are sworn by i) Harry Kneale Wade, as the applicant and current user of the application site; ii) Gordon James Maggs, as the owner and occupier of Gretch Voar Farmhouse; and iii) Robert Gilbert Corlett, as the owner and occupier of property and lands known as Gretch Voar Farm. The two supporting letters are from i) Isle of Man Build Center, Ramsey; and ii) Kissack Bros Ltd, Crosby.
Harry Kneale Wade's affidavit sets out his understanding of the history of use of the site and states that he took over the site in 1992. He states that the site has been used since then for the storage of brick paving, the reprocessing of concrete and rubble for use as sub-base for future jobs and the storage of vehicles. Gordon James Maggs' affidavit sets out that the application site is adjacent to their property and states that to their knowledge the site has been used as a builders yard and store for more than ten years. Robert Gilbert Corlett's affidavit sets out his understanding of the history of the use of the site and states that he understood that Harry Kneale Wade started to use the application site as a builders yard in 1992.
The supporting letter from the manager of the Isle of Man Build Center states that they have had business dealings with the applicant for the last twelve years and that during that time have delivered to the application site. They have supplied an invoice dated 24th December 2001 but advise that were unable to provide any further evidence. The supporting letter from the managing director of Kissack Bros Ltd states that they have delivered materials to the application site for over twenty years, although no evidence to support this has been supplied.
In terms of evidence obtainable within the Department the three main sources are previous planning applications, aerial survey photography and other miscellaneous photographs.
The previous planning applications relevant to the application site and surrounding area have been detailed earlier within this report. With the exception of more recent previous planning application 04/01091/R much of the information contained within those previous planning applications has been archived onto microfiche and is, in some instance, difficult to read or copy. However, it is considered that there is nothing within the previous planning applications beyond anecdotal evidence that either proves or disproves that the application site has been used for more than ten years.
The Department's aerial survey photography provides a good snapshot of what was built or in place at particular points in time. In terms of assessing the application there are relevant aerial survey photographs for the 17th August 1993, 24th May 1997, 18th May 1998, 9th June 1999, 15th June 2000 and 18th July 2001. It is understood that the consecutive run through 1997 through 2001 is a fortunate consequence of the work to update ordnance survey mapping following the development of the nearby Ard Rearyt housing estate. In terms of examining these aerial survey photographs it can be seen that their resolution significantly improves as they become progressively more recent, which is presumably a result of improving camera technology. Scanned copies of the aerial survey photographs have been placed on the file for this current application.
Whilst the resolution of the 1993 photograph is somewhat limited, meaning that meaningful magnification is also limited, it can be seen that the application site contains what appears to be piles of different types of graded materials. It is reasonably assumed that these are piles of material relates to the use described within Harry Kneale Wade's affidavit. The resolution of the 1997 photograph is slightly better and appears to show regular shaped piles of what is assumed to be bricks or similar as well as the previous piles of different types of graded materials. The resolution of the subsequent aerial survey colour photographs appear to show the application site being used in the manner described within Harry Kneale Wade's affidavit. On the balance of reasonableness these aerial survey photographs are considered to adequately demonstrate that the application site has been used in the manner described by the applicant for a period of time in excess of ten years.
As regard the miscellaneous photographs the Department has five photographs, dated the 24th June 1987, showing what appears to be graded rubble and topsoil on the application site. It is considered that these constitute evidence that the application site was being used for building yard related operations at that time, which pre-dates Harry Kneale Wade's association with the site and is obviously well in excess of the ten year enforcement exemption time. Scanned copies of these photographs have been placed on the file for this current application.
Whilst a number of representations to the application comment on the appropriateness of the use of the application site as a builders yard and its overall appearance they offer little or no substantiated evidence to counter the applicant's evidence or the evidence obtainable within the Department. As such, based on a combination of the sworn affidavits, aerial survey photographs and miscellaneous photographs it is concluded that on the balance of reasonableness it has been adequately demonstrated that the application site has been used in the manner described by the applicant for a period of time in excess of ten years. As such, it is recommended that the application be permitted and that the Certificate of Lawfulness be issued.
Recommended Decision: Certificate of Lawful Use Approved
Date of Recommendation: 23.04.2008
C : Conditions for approval N : Notes attached to conditions R : Reasons for refusal
C 1.
Sufficient evidence has been provided to demonstrate that the use described within the application has been in operation for a period in excess of ten years.
I confirm that this decision accords with Government Circular No 31/07 (Delegation of Functions to Senior Planning Officer)
Decision Made : Certificate of Lawful Use Approved Date: 23/4/08
Signed: _________________________ Mrs F Mullen Senior Planning Officer
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