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Application No.: 16/01348/LAW Applicant: Mrs Nelly Christian Proposal: Use of 38 Murrays Road as a 12 bedrooms House in Multiple Occupation with shared facilities and a separate self-contained 1 bedroom flat accommodation on part of ground floor Site Address: 38 Murrays Road Douglas Isle of Man IM2 3HW Case Officer : Miss Abigail Morgan Expected Decision Level: Officer Delegation
1.0 SITE DESCRIPTION - 1.1 38 Murrays Road is a large 3 storey building located in Douglas on the corner of Approach Road and Waterloo Road. - 1.2 The building has 12 rooms, with ground floor communal kitchen and dining area and laundry room, first floor 6 bedrooms with a shared separate shower and bath room; second floor 6 bedrooms with shared bathroom. On the part of the ground floor there is a separate self flat.
2.0 THE PROPOSAL AND EVIDENCE SUBMITTED - 2.1 A Certificate of Lawful Use is sought for the use of the 38 Murrays Road as a house in multiple occupation with a self contained flat. 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. - 2.2 The application has been submitted with the following evidence (in no order) in support:
2.3 On receipt of paperwork from the previous owner the applicant dropped off some additional information which included the following;
2.3 The application has been prepared by the applicant and states; the premises have been used as a 12 bedroom house in multiple occupation with shared facilities and a separate self contained 1 bedroom flat on part of the ground floor for over 10 years. - 3.0 RELEVANT POLICIES AND GUIDANCE
3.1 On the 1 January 2014 legislation came into effect defining Houses in Multiple Occupation (HMO) and requiring them comply with the requirements and register with the relevant Local Authority. The purpose of the legislation was to ensure a minimum standard of living conditions for occupiers. As part of that Registration the property needs to have the appropriate planning paperwork in place. Prior to that date it is generally accepted that many of the smaller hotels and guest houses were operating as a HMO rather guest house/hotel albeit illegally. A HMO is defined within the Housing (Definition of a Flat or House in Multiple Occupation) Order 2013 as a property being occupied by 6 or more people/separate households as their only or main residence where there are shared facilities. - 3.2 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".
3.2 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'. - 3.3 The effect of a Certificate of Lawfulness is similar to the granting of planning permission, however conditions cannot be attached to a certificate so it is important to be specific when describing the lawful use.
4.1 Previous planning applications;
4.2 This property is not registered as active visitor accommodation, nor has it been previously deactivated. FIRE SERVICE - 4.3 Have confirmed that their records indicate it has been operating as what we would now define as a HMO for since 2003. 19.10.16 - 4.4 Following receipt of additional information, in particular sales particulars, further clarification as to the previous layouts for fire was requested. ENVIRONMENTAL HEALTH UNIT - 4.5 Have confirmed that their records evidence that it has been operating as what we would now define as a HMO since 2002. 01.11.16.
5.1 None received at time of writing. - 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 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 planning history indicates that the property started off as a hotel/guest house which was in operation prior to 1988, when permission was given for change of use to residential home for the elderly. Subsequently, in 1992 an application for the conversion of the shop to lounge for the residential home was granted, from this it is considered that it is more than likely that the residential home permission was implemented. - 6.3 Based on the information from Fire and EHU at some point between the late 1990s and 2002 another change in occupational/operational practice occurred to a HMO with a self contained flat. - 6.4 The main evidence submitted regarding the separation of the property with part of the ground floor being used as a flat is an email from Manx Utilities regarding the installation of the electric meters, these state that separate/new meters were put in the flat and the rest of the house in 2003 and 2002, respectively. This would confirm that part of the ground floor has been in operation as a separate self-contained flat since 2003. This information corresponds with the information from Fire and EHU. - 6.5 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. With this application it is clear from the enforcement investigation and information held by Fire Service, Tourism and Environment Protection Unit that the Department has no definitive evidence to suggest the claims in respect of the use of the premises are incorrect. Indeed, this further information would on the balance of probabilities corroborate the statement of use and its continuity.
6.6 With regards to level of occupation this information has been harder to come by and is less clear. The evidence from EHU is that when they visited in 2002 there were up to 12 people living there. - 6.7 Further to a telephone conversation with the applicant she had expressed some concern that the maximum occupancy under the Housing (Standards) and subsequently any licence, would be for 16 people in the 12 rooms and that planning should be the same. Subsequently further information was submitted with regards to occupancy levels. - 6.8 The information provided from the May and June 2007 rent summary sheets indicate 13 rooms in total with single occupancy at the time. The 2007 draft sales particulars state (excluding the flat) 5 x double rooms and 5 x single rooms, indicating 10 rooms with 15 person occupation, based on the description. The Zoopla details of 2015 and the undated Carter Moon sales details both state 8 x single rooms and 4 x double rooms, indicating 12 rooms with 16 person occupancy. The plans provided by the applicant from the Fire Service indicate 12 rooms, at least 3 of which are noticeably larger than the others which could be double rooms. On this evidence it is considered on the balance of probabilities somewhere between 2007 and 2012 room numbers were reduced from 13 to 12. - 6.9 Having established numbers of rooms at 12/13 over the last 10 years, based on single occupancy this would give 12/13 people. However, the applicant in an email dated 27.02.17 to DHSC and IOMG Enquires, copied to the Department, the applicant states there were 5 double beds in the property when she took ownership. This would mean 5 of the rooms could be considered to be doubles, which is more or less corroborated by the sales particulars of 2007 and 2015. Since 2012 the number of rooms is established as 12, if 4 were doubles (based on sales particulars) and the remainder single this would give an occupancy level of 16. However it does not necessarily follow that those rooms were occupied by 2 people. Continuous intensity of occupation is more difficult demonstrate, as the intensity of the use may have varied over this period commensurate with the type accommodation provided, the evidence submitted sets occupation at not more than 12 households and 16 persons indicating that this is a maximum level of use for the majority of the 10 year period. - 6.10 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 satisifed with the maximum level of occupation of 12 households/rooms and up to 16 persons. - 6.11 The flat would be restricted by the Housing (Standards) Regulations 2013 as they relate to flats. The flat is large enough for 2 person occupation. - 6.12 It is therefore concluded that the specific description for the certificate of lawfulness should be amended and relate to the following description:
"use of 38 Murrays Road, Douglas as a House in Multiple Occupation of not more than 12 households and 16 persons with shared facilities, and a separate self-contained 1 bedroom flat on part of ground floor, in accordance the floor plans date stamped received 13 January 2017".
7.1 The evidence submitted, along with the information from other departments/divisions, 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.
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 12 households and 16 persons, and a separate self-contained 1 bedroom flat accommodation on part of ground floor in accordance with the submitted plan date stamped 13 January 2017.
Recommendation Recommended Decision: Certificate of Lawful Use Approved Date of Recommendation: 22.03.2017
C 1. The evidence submitted, along with the information from other Departments/Divisions, suggest on the balance of probabilities that the property has indeed been used a house in multiple occupation and a separate flat on the ground floor for a period in excess of ten years.
I can confirm that this decision has been made by a Senior Planning Officer in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation.
Decision Made : Certificate of Lawful Use Approved Date: 22.03.2017 Determining officer
Signed : C BALMER Chris Balmer Senior Planning Officer
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