DEC Officer Report

PLANNING OFFICER REPORT AND RECOMMENDATIONS

Application No.: 21/01213/LAW Applicant: Mr William & Mrs Carol Asbridge Proposal: Certificate of Lawful Use for change from retail to residential use Site Address: 25 Malew Street Castletown Isle Of Man IM9 1AD Planning Officer: Mr Paul Visigah Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 13.01.2022 _________________________________________________________________

Conditions and Notes for Approval

C : Conditions for approval N : Notes attached to conditions

C 1. The information provided demonstrates that on the balance of probability the property at 25 Malew Street, Castletown as edged in red on the Location Plan and site Plan, date-stamped as having been received 6th October 2021, has been in use as a residential dwelling for a continuous period of 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(c).

Plans/Drawings/Information; The application relates to the following documents:

• o Application Form
• o Location Plan
• o Site Plan
• o Floor Plans
• o Google Street View 2010 photos of property
• o Photographs of property
• o Extract from Property sales Brochure
• o Letter from the occupants of 23 Malew Street
• o Letter from the occupants of 27 Malew Street
• o Letter from the occupants of 20 Malew Street date stamped and received 6 October 2021, and
• o Extract from Manx Telecom Directory for 2012
• o Correspondence from Manx National Heritage, Received 10 December 2021

Interested Person Status

Additional Persons

None _____________________________________________________________________________

Officer’s Report

1.0 INTRODUCTION - 1.1 In accordance with the provisions of Schedule 4, Part 1, paragraph 3 of the Town and Country Planning Act 1999 ("the Act"), a development carried out in breach of planning control shall become immune from enforcement action after a certain period of time, provided that formal enforcement action has not already been taken. The relevant time periods are set out below:

• a) in respect of a breach of planning control consisting of the carrying out without planning approval of building, engineering, mining or other operations in, on, over or under land, after the end of the period of 4 years beginning with the date on which the operations were substantially completed;
• b) in respect of a breach of planning control consisting of the change of use of any building to use as a single dwelling house, after the end of the period of 4 years beginning with the date of the breach;
• c) in respect of any other breach of planning control, after the end of the period of 10 years beginning with the date of the breach.

1.2 Section 24 of the Act makes provision for the submission and issuing of a Certificate of Lawfulness to establish the lawfulness of a breach of planning control. - 1.3 An application for a Certificate of Lawfulness is determined on the basis of fact. Unlike an application for planning approval, it is not concerned with land-use planning considerations or the impacts of the development upon the public realm. - 1.4 The principal test is whether, on the balance of probabilities, the breach of planning control has occurred continuously for the given period. The burden of proof rests with the applicant and their evidence must be both precise and unambiguous. If the Planning Authority has no evidence of its own to contradict that provided by the applicant, then provided that the applicant's evidence is sufficiently precise and unambiguous, a Certificate of Lawfulness may be issued. It is not usually necessary for the Planning Department to corroborate the applicant's evidence.

2.0 APPLICATION SITE - 2.1 The site is the curtilage of 25 Malew Street, a three storey mid-terrace property situated within the Castletown town centre and the towns Conservation Area. The ground floor of the building has a shop front with large full height windows which indicate that its original use was for retail purposes.

3.0 THE PROPOSAL - 3.1 The application seeks a Certificate of Lawful Use for change from retail to residential use carried out since 1986. - 3.2 The application states that the property has been occupied as a domestic dwelling for a period longer than 10 years. The application seeking the Certificate of Lawfulness was submitted on 16th October 2021.

- 4.0 PLANNING HISTORY

4.1 The site has been the subject of a recent planning application for installation of replacement windows and doors. This was approved in December 2021.

5.0 REPRESENTATIONS Copies of representations received can be viewed on the Government's website. This report contains summaries only. - 5.1 Representation from the Department of Infrastructure (DOI) Highways Division confirms that they have no records of the recent property usage and / or evidence to contrary to that submitted and raises no opposition to the certificate of lawfulness (5 January 2022).

6.0 SUMMARY OF EVIDENCE PROVIDED - 6.1 The application has been submitted with the following evidence (in no order):

• i. Application Form
• ii. Location Plan
• iii. Site Plan
• iv. Floor Plans
• v. Extract from Manx Telecom Directory for 2012 showing name of previous residents (on page 182)
• vi. Correspondence from Manx National Heritage dated 10 December 2021 indicating that Historic Voters List for Castletown has name of previous residents. The names are on page 25 for the 2011 register and page 6 for the 2012 register.
• vii. Goggle Street View 2010 photos showing net curtains on windows of ground floor.
• viii. Undated Photo showing kitchen on ground floor.
• ix. Undated Photo showing bath in bathroom of property.
• x. Extract from Property sales Brochure with photograph showing ground floor shop area being used as a lounge with furniture (undated).
• xi. Letter from the occupants of 23 Malew Street which states that the application property has not been used as a shop for more than 20 years (undated).
• xii. Letter from the occupants of 27 Malew Street which states that they have lived at their property for over 55 years and that the application property has not been used as a shop for more than 30 years (undated).
• xiii. Letter from the occupants of 20 Malew Street dated 8 September 2021 which states that the application property has not been in retail use for over 10 years.

7.0 ASSESSMENT - 7.1 The applicant seeks to rely on the fact that area outlined in red has since 1986 been occupied as a domestic residential dwelling and not occupied as a shop or retail unit. The application seeks to demonstrate a period of residential occupancy of at least a minimum of 10 years to establish that the development is immune from enforcement action as set out in 1.0 Introduction of this report and Part 4, Section 24(2) of the Town and Country Planning Act 1999. - 7.2 The application has been submitted with supporting letters from neighbours indicating the change of use, Manx Telecom Phone Directory showing occupation of property by residents, Historic Voters Lists for 2011 and 2012 showing previous occupants as registered residents, Google street View Photos showing use of net curtains on the ground floor shop windows, as well as photos of property showing use of ground floor shop area as lounge, bath in bathroom and fully fitted kitchen in property (although these are undated). - 7.3 On the basis of the evidence submitted and on the balance of probabilities, then, it is considered the property has been in continuous as a dwelling for a period exceeding 10 years.

8.0 CONCLUSION - 8.1 The information provided is enough to establish that the change of use has exceeded the 10 years and is considered immune from the issue of an enforcement notice.

8.2 It is recommended that a Certificate of Lawful Use be issued in respect of the change of use from retail to residential.

9.0 INTERESTED PARTY STATUS - 9.1 As the application is for a CLU this is not required to be assessed. There is no right to appeal against this decision.

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: 17.01.2022 Determining officer Signed : J SINGLETON Jason Singleton Principal Planner

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