Planning Officer Report 12/00132/LAW

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Officer's Report

Introduction

1. This is application for a Certificate of Lawful Use of a property for the sale of hot food. Such an application seeks to provide evidence to prove that a particular use has been undertaken continuously for a period of at least 10 years. If this can be proven, the use would be immune form enforcement action and were the Planning Authority to approve the application the Department would be accepting that the use had become lawful.

The Site

1. The application site is the curtilage of The Candy Store, 3 Marathon Terrace, Queens Promenade, Douglas, a mid-terrace property which contains a shop at ground floor level. An external set of steps lead to the floors above which are arranged as flats.

The Proposal

1. This application seeks to demonstrate through reference to submitted documents that the ground floor shop has sold hot food for a period exceeding 10 years from the date of submission of the application (30th January 2012). The information submitted consists of:

An application form which states that the property has been used for the supply of hot food since the early 1980s. A site location plan. A letter from the current tenant of the property. A copy of the estate agent's details from 1998 when the applicant purchased the property. A sworn affidavit by the tenant of the property between 1998 and 2008. Invoices to the business all of which are from 2008.

The applicant has been asked to provide greater detail on the use and has responded to by saying that approximately of the shop is used for the sale of hot food and this consists of sausage and bacon baps, pies, pasties, sausage rolls, etc. They also refer to the shop opening times.

Development Plan Policies

1. The application site is located within an area of Mixed Use - Tourism/Residential by the Douglas Local Plan. The site is within a Conservation Area

Planning History

1. The following previous planning application is considered relevant to the determination of this proposal:

1. 08/02089/B - Creation of additional window. This related to the rear elevation of the building and proposed a new bathroom window in the top floor of the property. The application was permitted.

Representations

1. Douglas Borough Council does not object to this application. Their drainage section has provided comments relating to the discharge of fat or other waste.

Assessment

1. The key issues to be assessed in the determination of this application are whether the information submitted is sufficient to demonstrate that the existing shop has been used for the sale of hot food for such a period that this has become a lawful use.

1. The estate agent's details which date back to 1998 provide details of what equipment was in place at this time listing amongst other appliances a hot pie machine, electric grill and microwave oven. Furthermore, the affidavit provided by the previous tenant states that between July 1998 and August 2008 the premises were used as a hot food outlet and takeaway and that the premises were the subject of annual inspections by the Department of Local Government and the Environment to ensure that the premises complied with regulations. This is confirmed by the current tenant in their letter dated 26th January 2012 and by the Environmental Health Officer in an email of the 15th March 2012.

1. From the evidence submitted, it is judged that the balance of probability favours the applicant's assertion that the property has been used for the sale of hot food since at least 1998 to date (a period of 14 years). There has been no evidence submitted to dispute the claims made by the applicant. It is therefore recommended that this application be approved.

Recommendation

1. Permit.

Party Status

1. It is considered that the following parties, who submitted comments, accord with the requirements of Planning Circular 1/06 and are therefore, afforded Interested Party Status:

Douglas Borough Council

Recommendation

Recommended Decision: Certificate of Lawful Use Approved

Date of Recommendation: 28.03.2012

Conditions and Notes for Approval / Reasons and Notes for Refusal

C : Conditions for approval N : Notes attached to conditions R : Reasons for refusal

• : Notes attached to refusals

C 1.

The submitted application reference, PA 12/00132/LAW, contains evidence sufficient to demonstrate that:

• (a) The property known as the Candy Store, 3 Marathon Terrace, Queens Promenade, Douglas (as defined in the plan attached hereto) has been used primarily as a retail shop with some sales of hot food (sausage and bacon baps, pies, pasties, sausage rolls, soups and jacket potatoes) for a period of time in excess of 10 years prior to 30 January 2012.

Limitations

The character of the use is set out in the applicant’s email of 20 March 2012 and does not imply lawfulness of any other use set out in Class 3 of the Town and Country Planning (Permitted Development) Order 2005.

I confirm that this decision accords with the appropriate Government Circular delegating functions to Director of Planning and Building Control / Development Control Manager/ Senior Planning Officer.

Decision Made : Certificate of Lawful Use Approved Date : 30 March 2011

Determining officer (delete as appropriate)

Signed : ... Anthony Holmes Senior Planning Officer

Signed : ... Michael Gallagher Director of Planning and Building Control

Signed : ... Sarah Corlett Senior Planning Officer

Signed : ... Jennifer Chance Development Control Manager