Date of Meeting: 12th December 2007
Reference No:
07/02743/CLU
Proposal:
Parish/Ward: Bray Parish
Certificate of Lawful Use
Agenda No. 9
Applicant:
Certificate of lawfulness to determine whether the existing
use of the dwelling without compliance with an agricultural
occupancy condition (condition 2 of 10372/73) is lawful
2A Gadbridge Cottages Forest Green Road Holyport Maidenhead
SL6 2NN
Gadbridge Cottage Trust
Agent:
Jemma Stennett
Date Received:
17th October 2007
Case Officer:
Christopher Colloff
Member Call-in: Cllr Leo Walters
Recommendation:
PERM
Date of Expiry: 12 December 2007
Location:
Planning Context:
Green Belt.
Sustainable Development Implications:
There are no sustainable development
implications arising from the application
as it is for a Certificate of Lawfulness
only and is not a planning application.
LIST OF BACKGROUND PAPERS:
1.
Main Relevant Policies
Local Plan – as the application is for a Certificate, the Local Plan policies are not
applicable as Certificate applications are required to be determined solely on the
basis of the legal issues involved.
Structure Plan – as the application is for a Certificate, the Structure Plan policies are
not applicable as Certificate applications are required to be determined solely on the
basis of the legal issues involved.
2.
Previous Relevant Decisions
10372/73 Construction of a three bedroom
bungalow for persons employed in
agriculture and conversion of existing
cottage into garage and store
3.
Permitted
subject to
conditions,
including
Condition 2
which is the
subject of the
current
application
29.11.1973
The Highway Authority
The Highway Officer has not been consulted as the application is for a Certificate
only.
4.
RBWM Legal Officer
The Legal Officer advises that the applicants have provided good detailed evidence.
However, clarification with regards to Mr and Mrs Craig’s employment over the
relevant period in order to be satisfied that they have not been employed in
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agriculture during their occupation of the dwelling, and confirmation that both the
current and previous residents have occupied the premises as their primary
residence, should be sought.
5.
Neighbour Notification Responses
No responses have been received.
6.
Bray Parish Council
The Parish Council have no additional comment to make.
REMARKS
1.
The application has been brought to the Maidenhead Development Control Panel for
determination at the request of Cllr Walters on the grounds that the application
involves contentious, specific and important planning issues and should be referred to
the appropriate Panel for a decision.
The Site and Surroundings
2.
The application site consists of a detached three bedroom bungalow that was
constructed following the approval in 1973 of planning application ref. 10372/73.
Condition 2 attached to that permission states that:
“The occupation of this dwelling shall be limited to a person solely or mainly
employed, or last employed, in the locality in agriculture as defined in Section 296(1)
of the Town and Country Planning Act 1971 or in forestry (including any dependents
of such a person residing with him) or a widow or widower of such a person.”
In addition to this agricultural occupancy condition, a legal agreement was entered
into under Section 16 of the Berkshire County Council Act 1953 restricting the
occupation of the bungalow to persons employed or last employed in agriculture in
connection with Gadbridge Farm, or by the relatives or dependents of such a persons
residing with them, including the widows or widowers of such persons.
3.
The reason that Condition 2 was applied was that the application site lies within the
Green Belt where one of the exceptional cases for allowing what would otherwise be
inappropriate development is where there is a proven need for a new dwelling to be
provided to serve an existing agricultural use. Members are however advised that
neither the Green Belt location nor the reason for the imposition of Condition 2 in the
first instance are material in the determination of the current application for a
Certificate of Lawfulness.
The Proposal
4.
The application seeks a Certificate of Lawfulness for the occupation of the property in
breach of Condition 2 of application ref. 10372/73. Under Section 191(2) of the Town
and Country Planning Act 1990 uses are lawful at any time if:
- no enforcement action may be taken in respect of them (whether because they did
not involve development or required planning permission or because the time for
enforcement has expired or for any other reason); and
- they do not constitute a contravention of any of the requirements of any
Enforcement Notice in force.
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…..continued
5.
In this case the applicant is seeking a Certificate of Lawfulness on the grounds that
the occupation of the property has been in breach of Condition 2 and that this began
more than 10 years prior to the date of the application. In order to be immune from
enforcement action the onus in on the applicant to demonstrate on the balance of
probabilities (in other words that it is more likely than not) that the breach of the
occupancy condition occurred 10 years or more prior to the date of the application. As
such the evidence needs to demonstrate that the breach occurred either on or before
the 15th October 1997 and that the occupation in breach of the condition has
continued for a continuous period of 10 years.
6.
Witness statements from the following were submitted with the application:
- Mrs Elizabeth Gidman, a co-trustee of The Gadbridge Cottage Trust which owns the
property;
- Mr Geoffrey White, a co-trustee of The Gadbridge Cottage Trust which owns the
property;
- Mr Dodge, a former resident at the property; and
- Louise Craig, who currently resides at the premises with her husband.
The witness statements detail that the property was occupied by Mr Dodge from the
22nd January 1996 to April 2002 and that neither Mr Dodge nor his wife were
employed in agriculture whilst they resided at the property. The witness statements
also confirm that Mr and Mrs Craig have lived in the property from July 2002 until the
present day. The statements also confirm that Mr and Mrs Craig have not been
employed in agriculture whilst residing at the premises. Letters and additional
information have also been submitted to support the contents of the witness
statements.
7.
No evidence has been received as a result of consultation, nor is available in the
planning records, that contradict the contents within the witness statements. The
applicants have however been requested to supply some additional information to
confirm that the premises were occupied by Mr and Mrs Dodge and Mr and Mrs Craig
as their primary residence.
8.
Subject to confirmation that the previous occupiers of the property have occupied the
premises as their primary residence it is considered that the evidence is sufficiently
precise and unambiguous to demonstrate that, on the balance of probabilities, the
property has been occupied in breach of the original planning Condition 2 for the
requisite period of 10 years or more and as such the occupation of the property in
breach of the condition is considered to be lawful.
Other Material Considerations
9.
In addition to the restrictive Condition 2, the original planning permission in 1973 was
the subject of a legal agreement restricting the occupancy of the dwelling and
restricting the sale of the property or land separately for a period of 21 years. Given
the original legal agreement was signed in 1973 and that the property has been
occupied in breach of the agricultural occupancy Condition 2 for a period in excess of
10 years, it is also considered that the legal agreement should be rescinded.
Conclusion
10.
Page 3
Provided that confirmation is received that the current and previous occupiers of the
property used the property as their primary residence it is considered that a
Certificate of Lawfulness should be issued. In addition it is considered that the legal
agreement entered into at the time of the original application should be rescinded.
…..continued
Recommendation:
Subject to confirmation being received that
the current and previous occupiers resided
at the property as their primary residence
that a Certificate of Lawfulness is granted
and authority given to rescind the legal
agreement.
Conditions and Reasons
^CR;
1
Page 4
The applicants have demonstrated, on the balance of probabilities, that the property
has been occupied in breach of the agricultural occupancy condition (Condition 2 of
planning permission ref. 10372/73 for a continuous period of 10 years or more.
…..continued
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