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Application No.: 20/00405/LAW Applicant: Mark & Rosina Casson Proposal: Certificate of Lawful Use for the siting of containers for storing of equipment and materials; a poly tunnel and open storage of materials to Site Address: Field 614795 Ballamenagh Road Baldrine Isle Of Man Senior Planning Officer: Mr Jason Singleton Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 04.12.2020 _________________________________________________________________
C : Conditions for approval N : Notes attached to conditions
None _____________________________________________________________________________
1.0 THE SITE - 1.1 The application site as identified in red, is part of Field 614795 (1.40 Acres) that sits to the East of the Highway 'Ballamenagh Road'. The parcel of land also sits on the junction that serves further properties; 'Lhekerroo'; 'Kiwi Lodge' 'Ballakilley Farm' and St Adamnan's Church (RB-No.13). The boundary with the highway mainly consists of a soil/grass embankment approx. 1.5m High.
1.2 The site has been levelled and sits proud of the surrounding topography making the upper proportions of the containers visible from the Highway. Access into the site is from the junction with the Ballanemagh Road and a hardcore track leads into the site. To the South of the site is a stream at a lower level. - 1.3 The application has been submitted by an Agent on behalf of the owners.
2.0 THE PROPOSAL AND EVIDENCE SUBMITTED - 2.1 The proposed is for a certificate of lawful use/development for the; siting of containers for storage of equipment and materials, polytunnel and open storage of materials and larger equipment since 01 October 2001 (Qu.6a on the application form). - 2.2 The agent states; having acquired the site in 2001 it has been used as for the storage of builders' equipment and materials. The applicant / owner of the land owns 'Building Services Limited'. The materials and equipment stored here are for their own use for his own business and no trade takes place from the site. - 2.3 On site are two steel framed shipping containers painted green, a smaller green container painted green; the framework for a polytunnel and housing surplus building materials. Outside the containers are building materials and larger equipment are stored in the open. - 2.4 "Materials stored on site include; bricks, stone, concrete blocks, roofing materials/ slate, concrete and clay roof tiles, sanware and pipework, bags of cement, stone and sans, reinforcing wire mesh and steel bars, timber, builders rubble". - 2.5 "Equipment stored on site include; Cement Mixers, scaffold, ladders, buckets, wheelbarrows and spades and the site is used for the parking of construction vehicles such as vans and trucks." - 2.6 The agent references the applicants knowledge of the history of the site prior to 2001 was for the tipping of hardcore by Isle of Man Government Highways Board. It is also noted the site has not been used for agriculture. - 2.7 The application is supported by Google Aerial imagery from 2006, 2010, 2012, 2018; site photos dated 25/02/20. Part of a letter from a refused planning application (05/00047/B) noting (in 2005) the use of the site and depicting its site history. - 2.8 Affidavit statement from the neighbouring farm owner at Ballakilley Far, Ballamenagh Road, Baldrine regarding the use in relation to their business in the building trade and all equipment and materials on the land have solely been used by the (owners) in relation to their business in the building trade. "Approximately 15 years ago the Purchasers erected a building store on the property; such builders store being marked blue on the plan hereto annexed".
3.1 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
4.0 PLANNING HISTORY - 4.1 19/00098/A for the 'Approval in principle for erection of dwelling and ancillary shed addressing siting, design, and means of access' was refused for 3 reasons;
4.3 99/00337/A - Approval in principle for erection of dwelling, fields 3109 & 3111, Ballamenaugh Road, Lonan. Refused. - 4.4 95/00360/B - Infilling of land and top filling of soil & grass seeding, Field Nos. 3109 and 3111, Lonan Old Church Road, Lonan. Refused. - 4.5 87/01531/A - Approval in principle to erection of two private dwellings, Field 3109 an 3111, near St. Lonan Church, Lonan. Refused.
5.1 Garff commissioners were consulted on 21st April 2020 but no reply was received. - 6.0 ASSESSMENT
6.1 The assessment of the application requires the examination of the information available in order to determine whether there is either sufficient or insufficient evidence, that on the balance of reasonableness the development has been in excess of 10 years.
6.2 Having visited the site it seems apparent that the wear and rusting on the containers is not new and the vegetation growth around the site would indicate the presence of materials in place for some time. However it is not possible to determine exactly how long they have been in place.
6.4 The agent notes that the site was used up until 3 years ago (following a storm) for part horticulture, using the poly tunnel for growing tomatoes and salads as a hobby. Given this statement, it clarifies there was an agriculture/ horticultural use and part storage. In light of this I do not accept the whole of the site has been used as a dedicated builder's yard. - 6.5 There seems to be a discrepancy between the affidavit statement saying which part of the site has been used as a builders yard when compared to that of the agents red line indicating the area that was used. Whilst there may have been a degree of "creep" outside of the area identified in blue, the location of the containers has been fixed but I do not accept the sporadic placement of the surplus materials have been there for 10 years. As such it is difficult to accept the whole of this area identified in red was used for a builder's yard, but it is considered the containers have been in place for considerable time. - 6.6 Turning to Government's own Aerial imagery, when cross checking from 2001; 2006; 2009; 2012; 2015;2018., the 2006 imagery shows the two larger containers on site adjacent to highway, a fenced off area to the South West. 2009 shows the same building in the same position on site and appearance of the poly tunnel and the smaller container. 2012, relatively the same; 2015 shows the same structures and sporadic lighter coloured items fronting the containers; 2018 the intensity has increase and used of the wider land with evidence of tracks around the site and the frame work remaining of the poly tunnel. - 6.7 The aerial imagery through the years evidences a snap shot in time of activity on site where we can be comfortable in stating the three containers have been in place and not moved for more than 10 years. Not the entire site has been utilised for storage of materials / equipment but a small proportion in the vicinity of the containers and the access has been utilised and would have been used for access to the containers as indicated specifically in the 2009 imagry. It is difficult to ascertain the level of intensity on site but it would appear to be of a small scale and infrequent, therefore the level of intensity has broadly remained the same and again confined to the same areas immediatly adjacent to the containers.
7.1 Having assessed the above, visited the site it would appear the evidence provided sufficiently demonstrates that a small part of the site has been used for the storage of surplus building materials and the placement of the three containers has been used for a period in excess of 10 years, as such, the Department may not issue an enforcement notice due to the provisions of Town and Country Planning Act 1999 Schedule 4 Part 1 paragraph 3(a) and it is recommended that a Certificate of Lawful Development is granted.
I can confirm that this decision has been made by the Director of Planning and Building Control 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.
Decision Made : Certificate of Lawful Use/Devel Approved Date : 25.01.2021 Determining officer Signed : J CHANCE Jennifer Chance Director of Planning and Building Control
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