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The application site is the detached dwelling Ballajeroi, Kerrowgarrow Road, Greeba, German, a detached bungalow which is situated on the eastern side of the road to the north of the group of buildings set around Kerrowgarrow Farm.
This application seeks a certificate of lawful use to establish the lawfulness of the non agricultural worker residency of the dwelling. The application includes a number od statements and letters which confirm the occupancy of the applicant at the dwelling and a letter from the applicant's employer which confirms his non-agricultural employment during the majority of his occupancy at the dwelling.
The application site is located within an area identified as being of High Landscape or Coastal Value and Scenic Significance by the 1982 Development Order.
The following previous planning applications are considered relevant in the assessment and determination of this application:
I.D.O 45440 sought approval for the erection of an agricultural worker's dwelling. This was permitted 25th November 1977. Condition 8 of the approval stated:
"The proposed dwelling must not be occupied by a person other than a person engaged in agriculture, unless the prior written approval of the Committee is obtained."
01/00372/C Change of use of dwelling by removal of agricultural occupancy condition. Application Refused on Review for the following reason:
R1. "There is insufficient evidence contained within the application to persuade the Planning Committee that the dwelling is no longer required for the purposes for which it was originally approved; namely for use by an agricultural worker or retired farmer."
A note was attached to the refusal which stated:
"In order to assess whether there is still agricultural need for the dwelling, it is normally appropriate to offer for sale the property at a price reflective of the occupancy condition as attached under IDO 45440; it would appear that this action has not been carried out as part of this application."
No representations have been received.
As agricultural occupancy conditions are subject to the ten year rule, breach for that period renders occupiers immune from enforcement. This has enabled some to escape possible planning eviction by being in occupation in defiance of such conditions.
Ignorance of the existence of a condition is another personal factor sometimes pleaded and occasionally given weight in appeal cases, although it can be argued that decisions made on this basis do nothing to enhance the sound basis of planning. A case in point is (Macclesfield 30/8/85 DCS No.047-757-185) where the appellant argued that the full market price had been paid for an encumbered dwelling, the condition not having been revealed by solicitors. The inspector expressed sympathy with the appellant, but maintained the condition.
In a Derbyshire case (Amber Valley 30/1/84 DCS No.051-878-918) the inspector accepted the (unstated) personal grounds for a farmers widow wishing to dispose of her property and the attempts to market it, but felt that personal circumstances should seldom prevail over established planning considerations, especially in the green belt. He took the view, however, that as the building was already in existence, whatever harm it did to the green belt would be much the same whoever occupied it. Retention of the condition might well result in the property being left empty which would be quite wrong, he added. The condition was lifted.
The conclusion of an inspector, in the allowed appeal case (Swale 13/6/86 DCS No.031-539-350) is also worthy of mention. Noting that the property concerned was the appellants sole asset, and that his wife was in need of medical care and should not live in an isolated situation, he stated "The terms of the planning condition are intended to ensure that agricultural workers are not forced to leave their homes on retirement, and I consider that it would be contrary to the spirit of the conditions if the appellant and his wife, who wish to move, were prevented from doing so because the bungalow is effectively unsaleable whilst subject to the condition."
A further case of interest is (Maidstone 16/10/00 DCS No. 037-680-922). Here, a condition restricted the occupation of an agricultural workers dwelling. The appellant was married to a person who worked in agriculture but following a divorce, the spouse and children left the house. Since the appellant did not work in agriculture and was not a widower, the council argued that there had been a breach of control and an enforcement notice was served. The inspector varied the condition on compassionate grounds since to uphold it would lead to the appellant becoming homeless due to circumstances beyond his control. The condition was varied to allow occupation by the appellant or an agricultural worker.
If the Planning Authority is satisfied that there has been breach of the agricultural occupancy condition for more than ten years, the law requires that the CLU sought should be granted. The fact that the Planning Authority may have been misled by the original information given lies outside that process. On the face of it the Planning Authority has now lost its chance to recover the situation, as it had ten years to enforce against any suspected breach and has not do so.
The evidence submitted confirms that the applicant has resided at the property for in excess of 10 years. The letter from the Isle of Man Water and Sewerage Authority confirms that the applicant has been employed by them from 1988 to 2000 at which point he retired (letter from Treasury confirms this).
The research carried out into planning case law would suggest that, following his redundancy from farming and subsequent employment by the Water Authority in 1988, the applicant's continued occupancy at the property was in breach of Condition 8 of planning permission I.D.O 45440. As such it is judged that a breach of the condition has occurred for a period in excess of 10 years and as such the applicant is immune from enforcement action.
It is recommended that the information contained within the application is sufficient to demonstrate that the property has been occupied by persons not engaged in agriculture for a sufficient period to prevent enforcement action from being taken in response to the breach of the occupancy condition. A certificate of lawful use should therefore be issued to confirm this.
Recommended Decision: Permitted
Date of Recommendation: 22.07.2011
C : Conditions for approval N : Notes attached to conditions R : Reasons for refusal
C 1.
The submitted application contains evidence sufficient to demonstrate that, for a period of time in excess of ten years, the dwelling known as Ballajeroi, Kerrowgarrow Road, Greeba, German contained within the land defined by the red line on the attached plan has been used in contravention of a planning condition restricting occupancy to agricultural workers.
I confirm that this decision accords with the appropriate Government Circular delegating functions to Director of Planning and Building Control / Development Control Manager.
Signed: _________________________ Michael Gallagher Director of Planning and Building Control Delete as appropriate
Signed: _________________________ Jennifer Chance Development Control Manager
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