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Application No.: 23/01257/LAW Applicant: Paul John Davenport Proposal: Certificate of Lawful Development - Installation of flue for log- burning stove Site Address: 8 Ashfield Avenue Union Mills Isle Of Man IM4 4LN Planning Officer: Miss Lucy Kinrade Expected Decision Level: Officer Delegation Recommended Decision: Permitted Date of Recommendation: 14.12.2023
C : Conditions for approval N : Notes attached to conditions
C 1. There is sufficient evidence to demonstrate that the flue to the log burning stove has been in situ and installed for a period in excess of 4 years and therefore it is recommended that a Certificate of Lawful Development can be issued.
Plans/Drawings/Information; This approval relates to the following information date stamped received 23/10/2023:
Additional Persons
None _____________________________________________________________________________
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:
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 Directorate 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 application site relates to No. 8 Ashfield Avenue, Union Mills.
3.0 THE PROPOSAL AND EVIDENCE SUBMITTED - 3.1 A Certificate of Lawful Development is sought for: o installation of stainless steel flue for log burning stove. - 3.2 The application has been submitted with the following evidence (in no order):
3.3 The application form compiled by the applicant states that the operations started or were substantially completed 'October 2016'.
4.1 The site has been subject to previous application relating to its development and the last application was in 2002 under 02/01149/B for a rear conservatory.
5.0 REPRESENTATIONS Copies of representations received can be viewed on the Government's website. This report contains summaries only. - 5.1 No comments have been received as of 14/12/2023.
6.0 ASSESSMENT - 6.1 This is an application seeking a Certificate of Lawful Development, 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 operations are established and lawful by period of time and therefore beyond the scope of enforcement action. The test of the evidence is based on the balance of reasonableness. In this instance, the applicant seeks to rely on the fact that the roofing works in question have been in situ for a minimum of 4 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. - 6.2 The applicant has provided images dating 2010 and 2023 neither of which provide evidence of 4 years. The application is provided with a letter to the chimney installer but similarly there is no clarity that this was not prepared recently and there is no corresponding copy of any invoices to back this evidence up. - 6.3 However, on review of aerial images of the site through Government mapping systems it can be seen that on aerials taken in 2015 the flue was not visible and then looking at aerial taken in May 2018 you can see the flue and its casting shadow on the adjoining roof and so on the balance of probabilities taking the above supplied outlining information but more so the clear evidence from the 2018 aerial image that it is considered that the flue has been installed and in situ for a period in excess of 4 years.
7.0 CONCLUSION - 7.1 In view of the above, it is recommended that a Certificate of Lawfulness can be issued.
8.0 INTERESTED PERSON STATUS 8.1 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 the Head of Development Management 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 : Permitted Date : 19.12.2023 Determining officer
Signed : S BUTLER Stephen Butler Head of Development Management
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