DEC Officer Report

PLANNING OFFICER REPORT AND RECOMMENDATION

Application No.: 23/01295/LAW Applicant: Mr J Clunley & Ms Emily Worswick Proposal: Certificate of Lawful Use for existing residential apartments Site Address: Glen Eagles Promenade Port Erin Isle Of Man IM9 6LE Planning Officer: Vanessa Porter Recommended Decision: Certificate of Lawful Use/Devel Approved Date of Recommendation: 08.04.2024

Conditions and Notes for Approval

C : Conditions for approval N : Notes attached to conditions

C 1. There is sufficient evidence to demonstrate that the property known as "Gleneagles" has been used as seven residential flats for a period exceeding 10 years and as such, the Department may not issue an enforcement notice due to the provisions of the Town and Country Planning Act 1999, Schedule 4, Part 1, paragraph 3(a).

Plans/Drawings/Information; This decision relates to the information all received on 30th October 2023, 1st February 2024, 5th February 2024 and 14th March 2024.

_______________________________________________________________ Interested Person Status – Additional Persons None _____________________________________________________________________________ Officer’s Report 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. APPLICATION SITE

2.1 The application seeks a Certificate of Lawful Use in respect of "Gleneagles" as residential flats. "Gleneagles" is a 4 storey mid terrace property situated to the East of Promenade, Port Erin. - 2.2 The application seeking the Certificate of Lawfulness was submitted on 30th October 2023. PLANNING HISTORY

3.1 The application site has had two previous applications; - 3.2 PA35771 - Conversion of premises to form six tourist flats - Permitted - 3.3 PA02/00382/B - Installation of uPVC windows to replace existing to front elevation Permitted. REPRESENTATIONS

4.1 None received at the time of writing this report. SUMMARY OF EVIDENCE PROVIDED - 5.1 The application has been submitted with the following evidence (in date received order to help clump information together):

5.2 Information dated received 30th October 2023

• - Application Form
• - Location Plan
• - Plans and Elevations Ground Floor Flat
• - Crellin - Electrical certificate - 31st May 2013

• Flat 1

• - Brown - Electrical certificate - 29th May 2012
• - Tenancy agreement with Michaela Duchonova, connected to Flat 1 from 1st May 2019 for 24 months, reference to the side states, now Flat 6 but no details on when this change occurred.

• Flat 2

• - Myrtle Jones - Tenancy Agreement dated 22nd May 2000, on a year on year basis
• - Electrical Certificate - 24th May 2012
• - Tenancy agreement with Shane Ridgeway, connected to Flat 2 from 10th December 2018 for 24 months.
• - Tenancy agreement with Teejay Pavitt, connected to Flat 2 from 1st November 2019 for 24 months.

• Flat 3

• - Myrtle Jones - Tenancy Agreement dated 2nd January 1999, on a year on year basis
• - Electrical; Certificate - 24th May 2012
• - Tenancy agreement with Kevin Cooke, connected to Flat 3 from 1st August 2015 for 24 months.

• Flat 4

• - Gerald Baldwin - Electrical certificate - 24th May 2012
• - Tenancy agreement with Lee Watterson, connected to Flat 4 from 1st February 2014 for 24 months.
• - Tenancy agreement with Michael Watterson, connected to Flat 4 from 15th August 2015 for two years
• - Tenancy agreement with David Evans, connected to Flat 4 from 15th June 2013 for 12 instalments.
• - Tenancy agreement with Tom Munro, connected to Flat 4 from 1st April 2017 for 24 months.
• - Tenancy agreement with Darren Hicks, connected to Flat 4 from 1st August 2018 payable monthly
• - Tenancy agreement with Marco Babbo, connected to Flat 4 from 1st May 2019 for 18 months.

• Flat 5

• - Unoccupied - Electrical certificate - 24th May 2012
• - Tenancy agreement with Timothy Torpey, connected to Flat 5 from 15th June 2013 for 12 instalments.
• - Tenancy agreement with Lee Watterson, connected to Flat 5 from 1st February 2014 for 24 months.
• - Tenancy agreement with Paul Renshaw, connected to Flat 5 from 20th March 2015 for 12 instalments.
• - Tenancy agreement with Shane Fayle, connected to Flat 5 from 22nd January 2016 to 3rd October 2016.
• - Tenancy agreement with Paul Renshaw, connected to Flat 5 from 17th January 2017 for 12 months.
• - Tenancy agreement with Angela Clucas, connected to Flat 5 from 11th July 2017 for 24 months.
• - Tenancy agreement with Oliver Swales, connected to Flat 5 dated 1st May 2018 for 15 months.
• - Tenancy agreement with Nicholas Galouics, connected to Flat 5 from 1st May 2020 for 1 month.

• Flat 6

• - Hannah Joyce - Electrical Certificate - 24th May 2012
• - Tenancy agreement flat 6, dated 2008, unknown name and time period but the payable was weekly.
• - Tenancy agreement with Margaret Jackson, connected to Flat 6 dated 1st July 2014, payable monthly.

• - Tenancy agreement with Danielle Kirkham, connected to Flat 6 from 1st October 2019 to end May 2021 All flats
• - Electrical Invoices, 5th December 2012, 28th September 2012 & 8th June 2013
• - Bradford and Company Insurance Brokers Limited details regarding insurance policy, dated 18th October 2023 - policy states, "property owner's residential insurance occupied as multiple flats converted" Dated 17th February 2011 to 17th February 2024.
• - Edwards & Hartley Charted Certified Accountants details regarding tax returns and accounting dated 24th October 2023 - states that the completed tax returns have accounted for the rental income received from the flats contained within the property, and the resulting tax assessments.
• - Letter from David Kneale Plumbing and Heating Limited dated 25th September 2023 which states that they have been involved with the renovations and maintenance during the last two decades.
• - An email dated 29th September 2023 from the Valuation Assistant in Government who states that the rating for the flats is House (Flats) and that the site has been valuated as Holiday Flats and not as Permanent flats.
• - Routine six monthly service check of fire alarm and emergency lighting dated 21st April 2008, 3rd June 2009, 16th June 2022, 19th September 2023.
• - Statement from Emily Worswick regarding Mr Jones and his ownership of the site and that the site has been used as flats.
• - Statement from Keith McArd regarding Mr Jones and his ownership of the site and that the site has been used as flats.
• - Letter from N Baldwin to request the refundable deposit from Mr Baldwin's tenancy of Flat 1, dated 14th December 2018.
• - Tenancy agreement with Mr Cullin, not connected to any flat from 6th July 2009 for 12 instalments.
• - Tenancy agreement with Ryan Rice, not connected to any flat from 3rd August 2012 for 12 instalments.
• - Tenancy agreement with Phillip Baldwin, not connected to any flat from 6th July 2009 for 12 instalments.
• - Tenancy agreement with Phillip Baldwin, not connected to any flat from 5th April 2013 for 24 months.
• - Tenancy agreement for Mr Joyce, not connected to any flat dated 23rd March 2012, no time period provided

5.3 Information dated received 1st February 2024

• - Letter from Edwards and Hartley, dated 17th which states that the Tax Office confirmed that the income from the property was counted as rental.
• - Letter to the Income Tax Office, dated 11th January 2024 to see additional information.
• - Copy of Income Tax Assessments dated 29th July 2016, 2nd November 2016, 4th October 2017, 5th September 2018, 15th November 2019, 10th December 2020, 2nd June 2023 & 22nd May 2023.
• - Letter from occupant to state that they were a long term tenant of Flat 3 from 2nd January 1999 till 2017.
• - Affidavit from Gaynor Denham regarding Flat 3
• - Tax Calculation for the period 6th April 2022 to 5th April 2023
• - Tenancy information for flats.

5.4 Information dated received 5th February 2024

• SMS message from occupant who moved from Flat 1 to Flat 6 in summer 2021

5.5 Information dated received 14th March 2024

• Income Tax letter dated 16th February 2024 which states the income has been assessed as rental and not tourist.

ASSESSMENT

6.1 Considering this application, the applicant seeks to reply on the information provided that "Gleneagles" has been used as residential accommodation and not tourist accommodation as approved under PA35771.

6.2 It is unsure on whether the tourist accommodation was ever taken up, whilst that might be the case, the evidence provided goes back 10 years and as such for the benefit of doubt, this application is to establish that the use can be considered lawful, as set out in Part 4, Section 24(2) of the Town and Country Planning Act 1999. - 6.3 The evidence provided is sufficient to demonstrate that there has been a continued use at the same level of intensity for the six flats, first level above. There is no such evidence provided for the ground floor flat. Whilst this is the case, the ground floor flat was approved to be used as "owner's occupation" on PA35771, which would be a flat in its own right.

CONCLUSION

7.1 Whilst there are gaps within the time periods for some of the flats and some of the information is conflicting, it is considered on the balance of probability based on the extensive evidence provided, that the use has been for a minimum of 10 years to establish that the use can be considered immune from the issue of an enforcement notice.

7.2 It is recommended that a Certificate of Lawful Development be issued in respect of the use of the property, known as "Gleneagles" as seven residential flats, of which the permitted layout is as received. One, one bedroomed flat to the ground floor level, one, one bedroomed flat situated at the front of the property and one, two bedroomed flat situated to the rear of the property on the first, second and third floor, amounting to 7 flats. INTERESTED PARTY 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 Acting 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 : Certificate of Lawful Use/Devel Approved Date : 10.04.2024 Determining officer

Signed : A MORGAN Abigail Morgan Acting Head of Development Management

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