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Application No.: 21/00103/LAW Applicant: Mr Steven Kenneth Beevers Proposal: Certificate of Lawful Use for removal of an agricultural occupancy condition Site Address: New Bungalow Cooil Roi Farm Barroose Road Baldrine Isle Of Man IM4 6AP Planning Officer: Mr Nick Salt Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 26.02.2021 _________________________________________________________________
C : Conditions for approval N : Notes attached to conditions
C 1. On the balance of probabilities, the evidence sufficiently demonstrates that the property has been occupied by someone other than someone "whose employment or latest employment is or was employment in agriculture on the Island and also including dependents of such person as aforesaid" for over ten years and 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.
Plans/Drawings/Information; This decision relates to the information date stamped as having been received 31.12.20 _______________________________________________________________
Additional Persons
1.0 SITE DESCRIPTION - 1.1 New Bungalow is a modestly scaled bungalow located on the wider agricultural site of Cooil Roi Farm, off Barroose Road near Baldrine. The site includes approximately 90 acres of
2.0 THE PROPOSAL AND EVIDENCE SUBMITTED - 2.1 A Certificate of Lawful Use is sought for the use of the New Bungalow, Cooil Roi Farm as a non-agricultural dwelling. 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 support:
3.0 RELEVANT POLICIES AND GUIDANCE - 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 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.
4.0 PLANNING, ENFORCEMENT HISTORY AND OTHER RECORDS PLANNING RECORDS - 4.1 Previous planning applications;
5.0 OTHER REPRESENTATIONS - 5.1 No representations were received at the time of the writing of this report.
6.0 ASSESSMENT/CONSIDERATION - 6.1 In this instance, the applicant seeks to rely on the fact that the premises in question has not used as an agricultural workers dwelling for in excess of the last 10 years (prior to the application in December 2020) 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 relevant to this bungalow is scant with the last application being in 1985 for the erection of the dwelling itself. Planning approval was granted for the dwelling, subject to a condition that: "The occupation of the proposed dwelling must be limited to person whose employment or latest employment is or was employment in agriculture on the Island and also including dependents of such person as aforesaid and such tenancy must also be subject at all times to enquiry and approval by the Committee." - 6.3 The main evidence supplied by the applicant is a notarised sworn affidavit from the current owners who have owned the property since 11 May 2010 by way of inheritance from their grandfather. They state that the bungalow was occupied continuously from its construction until December 2011 by family members who retired to live on the Isle of Man and has no employment in agriculture prior to or following their retirement. Since then, the building has been vacant. A planning statement has also been submitted by the applicant reiterating this and noting the recent attempts to market the property. - 6.4 It is the responsibility of the applicant to provide sufficient information to demonstrate that a use (in this case as a dwelling) has continued at the same level of intensity and for the same purpose for a period in excess of ten consecutive years. As the building has not been occupied since December 2011, it is necessary to prove that the building was occupied as a dwelling by persons not in agricultural employment, for a consecutive ten years prior to this. In effect, that the building was occupied from December 2001 until December 2011 for this purpose. - 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. - 6.6 No other information supporting the applicant's claims has been provided. Similarly, no information contrary to the sworn affidavit has been identified by the planning authority. - 6.7 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,
7.0 CONCLUSION - 7.1 On the balance of probabilities, the evidence sufficiently demonstrates that the property has been occupied by someone other than someone "whose employment or latest employment is or was employment in agriculture on the Island and also including dependents of such person as aforesaid" for over ten years and 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.
8.0 RECOMMENDATION - 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 dwelling not occupied by someone employed or who was last employed in agriculture on the Island.
9.0 INTEREST PARTY STATUS - 9.1 As a CLU this is not required to be assessed. _____________________________________________________________________
I can confirm that this decision has been made by a Principal Planner 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: 26.02.2021 Determining officer
Signed : A MORGAN Abigail Morgan Principal Planner
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