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Application No.: 24/00768/LAW Applicant: Mr & Mrs Gary Preston Proposal: Certificate of Lawfulness for existing structures erected in Field No 130562 Site Address: Field 130562 Kella Road Sulby Isle Of Man Planning Officer: Paul Visigah Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Development Approved Date of Recommendation: 16.05.2025 _________________________________________________________________
C : Conditions for approval N : Notes attached to conditions
C 1. There is sufficient evidence to demonstrate that the structures and caravan with timber framed building (siting and sunroom) erected in Field 130562 shown in the submitted information has been in situ for more than 4 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).
N 1. Whilst the Certificate of Lawful Development addresses the issue of the grant of planning approval for works carried out to erect the two sheds, stores and timber framed building (sitting and sunroom) and caravan within the site, no approval is granted for the change of use of the field from agricultural use. Therefore, no lawful use of the site or buildings is implied.
This approval relates to the submitted documents and photographs received on 19th Jul 2024, and Response to Department Regarding Detail and History of Use dated 25 February 2025.
_________________________________________________________________ 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:
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 THE APPLICATION SITE - 2.1 The application site comprises Field 130562, Kella Road, Sulby, which is located to the north of Kella Road. The site is accessed via an existing gated entrance which is accessed off Kella Road. The site is rectangular in shape with the entire site boundary enclosed in trees and mature sodbanks. There are a number of timber structures erected on site, as well as a caravan situated towards the southern end of the site.
3.0 THE PROPOSAL - 3.1 The application seeks a Certificate of Lawful Development in respect of operations carried out in January 2012 for structures erected in Field 130562.
4.0 PLANNING HISTORY - 4.1 The site has not been the subject of any previous planning applications and there are no previous planning applications within the vicinity which are considered relevant in the assessment and determination of this application.
Copies of representations received can be viewed on the Government's website. This report contains summaries only.
5.1 Lezayre Commissioners have recommended that the application be refused. They note that they are not aware that these structures have ever been approved before and they do not look habitable to any standard (13 August 2024). - 6.0 SUMMARY OF EVIDENCE PROVIDED
6.1 The application has been submitted with the following evidence (in no order):
7.1 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.
7.2 Section 6 (3) (C) of TCPA 1999 sets down that 'the use of any land for purposes of agriculture and the use for any of those purposes of any building occupied together with land so used', while the shed are clearly buildings and therefore their use for agriculture is indicated as above. The application makes no reference to any other uses of the land. Evidence - 7.3 The applicant has provided a number of documents for the developments which seek to demonstrate that the structures have been in situ since 2012. However, the plan documents do not give an indication of the period for which the development was carried out, and the Google Street View Photos for the site also do not give certainly as to the structures that where insitu in 2012. - 7.4 Notwithstanding the above, the Departments Aerial Photograph for the site for 2018 shows that all the structures - the two sheds, stores have been insitu since May 2018. Further to the above, Google Earth Pro Aerial Photos for the site dated 13 March 2020, which is available to the Department shows these structures to be insitu. - 7.5 With regard to the caravan, Google Earth Pro Aerial Photos dated 3 December 2012 shows the and caravan with timber framed building (siting and sunroom) to be insitu by that date which is in excess of 10 years.
Reasoning Sheds
7.6 In this instance, the applicant seeks to rely on the fact that the two sheds and stores being considered to be operational development 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. Caravan and attachment
7.7 The caravan is a separate matter. The siting and use of a caravan on land can be complex matter is planning particularly in relation to a certificate of lawfulness. A certificate of lawfulness is there to state whether not any operations which have been carried out on the land would be lawful and in the case of a caravan this is both the siting of the caravan itself and also the use. - 7.8 Section 6 (3) (C) of TCPA 1999 sets down that 'the use of any land for purposes of agriculture and the use for any of those purposes of any building occupied together with land so used', while the shed are clearly buildings and therefore their use for agriculture is indicated as above. The application makes no reference to any other uses of the land. - 7.9 Section 6 of the Act states that planning permission is required for development of land and then goes on to state that development is operational development or the making of a material change in the use of land. The stationing of a caravan is generally the use of land and does not of itself represent operational development. Whether the structure would be a building - 7.10 Section 45 of the Act states a "building" 'includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building.' The main characteristics of a building found, as a matter of fact and degree, are (a) physical attachment, (b) permanence and (c) of a size to be constructed on site, as opposed to being brought onto the site. No one test is conclusive. Accordingly, I have considered whether the proposal would amount to a building based upon the specific circumstances of the case, when set against the three factors established by case law. - 7.11 The caravan and attached structure are not really substantial in size and would have been placed on the land and added to albeit this element does not appear to have been carried out by a building company and is more likely to have been done by the previous owner. It has not moved for at least the last 10 years and so it would have a degree of permanence. Thus, as a matter of fact and degree, it is considered to be a building. - 7.12 While a building or the siting of caravan can become immune from enforcement over the passage of time, its does not automatically follow that the use of such is immune. It is clear from the aerials that the caravan has been on the land for in excess of 10 years and as such further clarification was sought with regards to the use. The current owners have only recently acquired the land and have provided photos of the inside of the caravan and the conservatory structure attached to it and while they show many personal items in the caravan, such as crockery and other domestic type items and they state that the previous owner (now deceased) used it when they were there looking after the land. It is considered that the main substantive evidence in relation to the use do not show on the balance of probabilities how the caravan was used for the required 10 year period. - 7.13 That being said having assessed the caravan and attachments to be a building as set out above under Section 6 (3) (C) it could be used in connection with the authorised use of the land which is agricultural. - 7.14 Given the above, it is recommended that a Certificate of Lawfulness of Development is granted in respect of that the structures and caravan with timber framed building (sitting and sunroom) erected in Field 130562 shown in the submitted information has been in situ for more than 4 years, and as such, the Department may not issue an enforcement notice
8.1 In view of the above, it is recommended that a Certificate of Lawfulness be issued.
8.2 Whilst this application grants lawfulness to the buildings and structures detailed to be retained on site within the application documents, it does not do so for the use (if it is not agricultural), as this application relates to the structures on site and not use of the site or
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 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, and/or rights to appeal.
Decision Made : Certificate of Lawful Use/Devel Approved Date : 16.05.2025 Determining Officer
Signed : S BUTLER Stephen Butler Head of Development Management
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