Officer Report

Application No.: 25/00772/LAW Applicant: Mr Frank Andrew Hesketh Proposal: Certificate of Lawful Use for residential curtilage Site Address: Cherry Tree Lodge Bollyn Road Orrisdale Kirk Michael Isle Of Man IM6 2HR Planning Officer: Russell Williams Expected Decision Level: Officer Delegation Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 31.12.2025 _________________________________________________________________ This application has been recommended for approval for the following reason. The evidence and further information provided is considered to be sufficient to demonstrate that, on the balance of probability, a material change of use of land as residential curtilage has occurred and has been ongoing for a continuous period of time exceeding ten years. The application there therefore accords with the provisions of Schedule 4, Part 1, paragraph 3 (c) of the Town and Country Planning Act 1999. It is therefore recommended that a Certificate of Lawful Use is granted. ## Plans/Drawings/Information;

This decision relates to the following plans and drawings, date stamped 8 August and 8 September 2025: Location Plan Site Plan Statutory Declaration of Mr F Hesketh dated 8 September 2025 Google Streetview photographs Email correspondence _________________________________________________________________ Officer’s Report

1.0 THE SITE - 1.1 Cherry Tree Lodge of a detached residential dwellinghouse located within an isolated countryside location, north of Orrisdale Road and 1.5km southwest of Ballaugh village. The property as a whole is triangular in form. - 1.2 The application site comprises a section of former agricultural land that immediately adjoins the original curtilage of the dwelling. The land is level and laid to grass, bounded by

• stock fencing, gorse and a sod bank. The original private garden serving the dwelling is located to the western side of the dwelling.
• 1.3 Vehicular access is derived off the unnamed highway to the southeast boundary that leads onto a gravel driveway and parking area.

2.0 THE PROPOSAL - 2.1 The application seeks confirmation that the residential use of the land can be considered lawful, as set out in Part 4, Section 24(2) of the Town and Country Planning Act 1999. - 2.2 The application is supported by the following evidence:

• o Statutory Declaration signed by Mr F Hesketh, the Applicant and owner, confirming that they have mowed and maintained the land subject of the application since 1992 and that it has been maintained in its current condition since that time.
• o Commentary from the Applicant confirming the land has been used for general domestic purposes, storage of caravan, motorhome etc.
• o Aerial photograph showing maintained land dated 3/12/2012
• o Google Street view image showing maintained land dated April 2010
• o Location and Site Plans (Amended)

2.3 The application site plans show a red line boundary which comprises the whole of the curtilage and a green line which divides the curtilage into the original (North of the line) and the land which is the subject of this application (South of the line).

3.0 LEGISLATION - 3.1 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.

3.2 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. - 3.3 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. - 3.4 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.

4.0 OTHER MATERIAL CONSIDERATIONS - 4.1 None

5.0 PLANNING HISTORY - 5.1 91/00016/B - Installation of 1140 litre LPG tank, Cherry Tree Lodge, Bishopscourt, Ballaugh. Permitted.

6.0 REPRESENTATIONS - 6.1 The following Statutory Consultees have been consulted and their responses can be summarised as follows: Ballaugh Commissioners - No comments received. - 6.2 No representations have been received from members of the public.

7.0 ASSESSMENT - 7.1 The principal test is whether, on the balance of probabilities, the breach of planning control has occurred continuously for the given period. The onus is on the applicant to demonstrate how the land has been used in support of the application. - 7.2 At the request of the Officer, a Statutory Declaration has been submitted. The Declaration conforms that the applicant has maintained the land since around 1992 and continues to do so. The Declaration is a little short on detail of how the land has been used overtime. - 7.3 To this end, the applicant has further advised that they have owned and used the land since the early 1990s as general garden, storing their motorhome on the land and using it socially, as well as enjoying the land as general garden space maintained as lawn and shrubs etc. The land has been used for general play and enjoyment, with occasional use of motorhomes for sleeping from time to time when required. Over the years, the land has been used for general enjoyment and play, whilst being maintained on a regular basis. The dwellinghouse has a very small area of land to the side and rear that would offer little in the way of useable amenity space. For instance, children will not have had any real space in which to play outdoors and so it is reasonable to accept that the land subject of the application will have been used for domestic purposes over the years. - 7.4 When looking at the historic photographs submitted and available online, it can be seen that the land is being used by the occupants for garden and general leisure purposes and its current appearance has been present consistently since the earliest available image from 2006. Later images show cars being parked on the land and also the motorhome being stored. Such corroborates the statements made the applicant. - 7.5 Visually the character of the land is that of a domestic garden. It is clear that the agricultural use has ceased since the land was sectioned off from the adjoining agricultural field. The site in question does not retain the character of a field, and it has been used in part for access, parking and turning to serve the dwelling. - 7.6 Great weight can be applied to a Statutory Declaration and the other supporting evidence in the form of historic photographs and written information from the applicant, it is

• clear that the land has been used for residential purposes, and not agriculture for a significant length of time.
• 7.7 In the absence of any clear evidence that draws into question the statements made by the applicant, which would need to be significant and clear given the submission of the Statutory Declaration, it is considered that on the balance of probabilities the land subject of the application has been subsumed into a single residential use with the principle dwelling over the passing of time. The land has been used for domestic purposes for a continuous period of time exceeding ten (10) years and the use has therefore become lawful through the passing of time.

- 08.0 CONCLUSION

8.1 The evidence and further information provided is considered to be sufficient to demonstrate that, on the balance of probability, a material change of use of land to a domestic garden has occurred and has been ongoing for a continuous period of time exceeding ten years. It is therefore recommended that a Certificate of Lawful Use is approved. - 9.0 RIGHT TO APPEAL AND RIGHT TO GIVE EVIDENCE

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 : 31.12.2025 Determining Officer

Signed : S BUTLER Stephen Butler Head of Development Management

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