Report Author/Case Officer: Richard Sakyi Contact Details:

Size: px

Start display at page:

Download "Report Author/Case Officer: Richard Sakyi Contact Details:"

Rosamund Sharp
5 years ago
Views:

1 Application Number: 09/00619/CLUE CERTIFICATE OF LAWFULNESS FOR THE EXISTING USE OF THE PROPERTY AS A 10 BEDROOM GUEST HOUSE WITH ONE STAFF BEDROOM (IN BREACH OF CONDITIONS OF PLANNING PERMISSION REFERENCE MK/90/241 FOR USE AS SIX BEDROOM GUEST HOUSE) AT Church House Hotel, 50 Rowsham Dell, Giffard Park FOR Church House Hotel Target: 29th May 2009 Ward: Linford North Parish: Great Linford Parish Council Report Author/Case Officer: Richard Sakyi Contact Details: richard.sakyi@milton-keynes.gov.uk Team Leader: Mike Bowley Contact Details: mike.bowley@milton-keynes.gov.uk 1.0 SUMMARY (A brief explanation of what the application is about, what the main issues are and the officer's Recommendation to the Committee) 1.1 This application seeks a certificate of lawfulness for the existing use of the property as a 10 bedroom guest house with one staff bedroom (in breach of conditional planning permission reference MK/90/241 for use as six bedroom guest house), an activity that has been carried out in breach of planning conditions. 1.2 The standard of proof required is that of balance of probability. The applicant needs to prove not only that the use for which the certificate is sought commenced 10 years ago, but also that it has been continuous since that time. The evidence received covers the period between indicating that the use was established over 10 years ago and has been continuous ever since. 1.3 RECOMMENDATION It is recommended that a certificate of lawfulness for the existing use of the hotel as a 10 bedroom guest house with one staff room be granted as set out at the end of the report. 2.0 REASON FOR REPORTING APPLICATION TO THE PANEL 2.1 The application is being brought before the Committee due to the level of objections received from local residents and Great Linford Parish Council. (85)

2 3.0 INTRODUCTION (A brief description of the site and its surroundings) 3.1 The application property is a two-storey detached guest house located on the south side of Rowsham Dell adjacent to its junction with Broadway Avenue. The original dwelling was developed as a plot under the New Towns Act and included an integral double garage. 4.0 RELEVANT POLICIES (The most important considerations relating to this application) 4.1 The most important factor that the Committee must consider is Annex 8 of Circular 10/97 (Enforcing Planning Control: Lawfulness and the Lawful Development Certificate (LDC)), which states: If the LPA have no evidence of their own, or from others to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate 'on the balance of probability'. 5.0 RELEVANT PLANNING HISTORY (A brief outline of previous planning decisions affecting the site this may not include every planning application relating to this site, only those that have a bearing on this particular case) Planning permission was originally granted under MK/241/90 for use of the property as a guest house with associated car parking. The permission was conditioned in order to limit the impact of the use on the locality. Conditions imposed on the permission included: (6) There shall be a maximum of 6 guest bedrooms. Reason: To ensure the parking facilities on site are adequate. (7) The retained garage space shall not be subsequently converted to living accommodation. Reason: To ensure the parking facilities on site are adequate. MK/1216/95 Permission for alterations to increase height of roof and installation of roof lights on MK/1231/95 Permission for part single storey and part two storey rear extension on /00597/FUL Permission for variation of condition 1 of planning permissions MK/1216/95 and MK/1231/95 to extend duration of permissions for part single storey/part two storey extension and alterations to increase height of roof and installation of roof lights on (86)

3 08/01043/CLUE Refusal for certificate of lawfulness for the existing use of the property as a 11 bedroom guest house on /01693/CLUE Appeal against non-determination for certificate of lawfulness for the existing use of the property as a 10 bedroom guest house with one staff bedroom (in breach of conditions of planning permission reference MK/90/241 for use as six bedroom guest house). (Resubmission of 08/01043/CLUE). The appeal timetable is awaited. 6.0 APPLICATION AS ORIGINALLY SUBMITTED (Details of the proposal as originally submitted) 6.1 The current application seeks a certificate of lawfulness for the existing use of the property as a 10 bedroom guest house with one staff bedroom (in breach of conditions 6 and 7 of planning permission reference MK/90/241 for use as six bedroom guest house), an activity claimed to have been carried out in breach of planning conditions. 6.2 The current application states that these conditions have been breached for more than 10 years. The evidence submitted in support of this application is as follows: 1. Evidence of Sheila Shanley relating to the period She was employed as a house keeper during this time. She states that during her time, there were 11 bedrooms in use including one for staff occasionally. 2. Letter from EM&F, commercial property agents, to Mr. Johnson, dated 4 th August 1994 and enclosing sales particulars. In summary, the property is described as having 4 letting rooms on the ground floor and 7 letting rooms on the first floor. These particulars were prepared after a valuer from the agents visited the hotel to take instructions on the sale of the business. 3. Affidavit of Ashok Patel relating to June States that he booked 8 double rooms and two single rooms for his guests at the hotel that time. 4. Evidence of Jill Shaughnessy, by way of letter dated 27 th May 2009, stating she was an employee from 1996 to 2002 and that during that time, she was responsible for cleaning 10 guest bedrooms and one staff room on a part time basis. 5. Letter from Salmon Charles Agents to Mr and Mrs. Johnson dated 17 th May 1996, attaching particulars of sale intended to take place between the owners and Mr. J Eckstein. The property is described as having 1 bedroom for live in manageress, 4 further bedrooms, and on the first (87)

4 floor, 3 single bedrooms and 4 double bedrooms. 6. Letter from Jennifer Lampert (planning consultant), invited to the property to assist with a planning application for additional bedrooms in the roof space and an extension to the kitchen. The evidence covers the period between 1995 and 1996 and states that she recollects that the hotel had 10 bedrooms for use by customers and a further room near the stairwell for staff accommodation overnight. 7. Letter from Countryside Commercial dated 8 th January 1997 regarding the intended sale of the hotel. Sales particulars attached describe the hotel as having 11 bedrooms. 8. Letter dated 11 th September 1998 from Hepher Dixon Partnership, Chartered Surveyors to Planning Consultants, to Mr Johnson, advising on the legal position for the operation of 11 bedrooms at the guest house in breach of the planning condition which allowed only 6 bedrooms. The letter was an advice to the owner stating that where a breach of condition has continued for more than ten years, it becomes immune from enforcement action. 9. Staff Schedule printed/dated 26/06/2000. This confirms that Sheila Shanley and Gill Shaugnessey who have submitted evidence in their capacity as employees were indeed employees. 10. P60 Gillian Shaugnessey, for end of year Letter from Fleurets, Chartered surveyors, dated 18 th May 2001 to Mr Johnson attaching sale particulars. The property is described as having 11 bedrooms. 12. Letter from Smooth Hound Systems to Ms. Marcia, dated 1 st December It shows the hotel advertised as having 11 rooms. 13. Affidavit of Irene Moyers who owned the hotel between , stating that the whole time she was the owner of the hotel, it was operated as 11 bedrooms, 10 of the rooms being operated for residents and 1 being for her accommodation. 14. Communication between Venue UK Entries with Mr M Harvey dated 2002 requiring any amendment to the entries and the Hotel is entered as having 10 rooms. 15. Letter from Alexander Stephens, Estate Agents, to Mr M Johnson dated 18 th February It attaches particulars of sale in which the hotel is described as having 10 bedrooms and a separate manager s room. 16. Evidence of Mr Zul Keswani, the current owner, by way of letter dated 27 th May He states that he has known the hotel since 1997, even (88)

5 though he only came to own it subsequently, and that the hotel has always operated as a 10 bedroom guest house with an additional staff room. He also states that he has previously used the hotel as an overflow hotel for The Different Drummer Hotel in Stony Stratford. 7.0 AMENDMENTS (Any changes that have been made to the application since it was originally submitted) 7.1 The original application was accompanied with evidence from: - 1. Jennifer Lampert (planning consultant) relating to the period Evidence of Sheila Shanley who was employed as a house keeper relating to the period Affidavit of Ashok Patel relating to the period June Affidavit of Irene Moyers, owner between and; 5. Letter from Hepher Dixon Partnership dated 11th September The above evidence did not fully cover the period of use between 1996 and 2002 and subsequently the applicant was requested to submit further evidence to fill in the gap ( ) that the use has been continuous during the entire period. As a result, the additional evidence listed in paragraph 6.2 was received on 1 June CONSULTATIONS AND REPRESENTATIONS (Who has been consulted on the application and the responses received) 8.1 Legal And Property Services The application was submitted for a certificate of lawfulness for existing use of the above property as a 10 bedroom guest house with one staff bedroom( in breach of conditions of planning permission reference MK/90/241, for use as six bedroom guest house). The law with regard to such applications states that where the local planning authority has no evidence of its own or from others to contradict the applicant s version of events, and provided that the evidence provided is precise, clear and unambiguous, then there is no reason to refuse to grant the certificate. The standard of proof required is that of balance of probability. This is a lower threshold and should not be confused with proof beyond reasonable doubt. The applicant needs to prove not only that the use for which the certificate is sought commenced 10 years ago, but also that it has been continuous. The evidence covers the period between indicating that the use was established over 10 years ago and has been continuous ever since. No doubt, the hotel is described as having 10 rooms in some places but this seems reasonable in that the 11 th room was used as staff accommodation and would therefore not be available for letting. (89)

6 I have weighed the evidence provided against the standard of proof which is on balance of probability and given that no contradictory evidence has been brought forth, I would recommend a grant of the certificate of lawfulness. 8.2 Great Linford Parish Council It is worthy of note that the letter from Mr Z Keswani, sent from the Different Drummer Hotel, is on a plain letterhead and not the Hotels headed notepaper. Also, a cursory inspection of the two letters in connection with this application from Ms Gillian Shaughnessy and Mr Z Keswani appear significantly similarity in format, layout and typeface. Indeed one could immediately suspect that the same person using the same computer/word processor possibly prepared them. Both letters have exactly the same date! A further test is to hold printed copies of each document up to the light. It can be seen that; the senders address, date, recipients address, salutation, reference details and closing sign off and senders name above the signature all match in size of typeface, position on the page, spacing between each section. [Post-code and date post-code and salutation salutation and reference reference and letter text letter text and closing salutation closing salutation and sender s name] I believe this test conclusively confirms that it is certain that both letters emanate from the same source under the same guiding hand. Please will you draw the attention of your advisors to the points made above, which I believe undermine any credibility that might have been attached to the information contained in the letters. In addition, neither letter provides significant supporting documentary evidence for continuous use over the period of ten years from 1999 to Indeed Ms Shaughnessy refers only to a period of six years from 1996 to 2002 and only three of these years span the continuous ten-year proof period to In the GLPC report of the 5 th May, nine sources of unambiguous supporting evidence were suggested; none have been offered to date to confirm continuous use over a period of ten years. Why not, one could ask! Is it not time to reject absolutely this and any previous applications and if necessary allow the applicant to refer the matter for adjudication through the appeals process? 8.3 Local Residents The occupiers of the following properties were notified of the application: 2, 11, 12, 17, 19, 25, 26, 34, 41, 42, 46, 47 and 48 Rowsham Dell, 5, 7, 9, 14 Broadway Avenue and 1 Havard Close, Giffard Park 14 letters have been received from the occupiers of the neighbouring properties which question the evidence as follows: - Matter should not be dealt with under delegated powers in a public (90)

7 meeting. The applicant has produced a number of "affidavits" in support of the new application, but they appear to be riddled with inconsistencies and do not bear up to close scrutiny. The letter from Mr Patel claims booking in a party of up to 18 people (8 Doubles and 2 singles) but cannot remember the road name! Why only one letter from such a large group? Can he remember anybody else in the group? Surely someone else from such a large party would remember the occasion. Whilst there are inconsistencies in the letters we feel that it is not incumbent on us to disprove the applicants claim but for the applicant to prove his application. As any hotelier will tell you Rule 1 in "The Bible of Hotel Keeping" is "Occupancy Rate". All the affidavits submitted would not be needed if the applicant could provide detailed accounts showing the occupancy rate for the period claimed. We note a distinct lack of any evidence to support the numbers of "body's in Beds" The hotel has never operated as a 10 bed guesthouse. The amount of cars and activity shows that over the past 10 years the hotel has operated with substantial under occupancy suggested it has never traded at this level. No evidence of business rate/water rates consumption. Health and safety and most importantly fire regulations pertinent to trading records. It is one thing to claim ten bedrooms; it is another to have ten bedrooms. The observed evidence does not support the affidavits. It is doubtful that Church House has ever traded at even the original six bedroom level. No evidence has been produced in the form of receipts for business rates paid on a six-bedroom guesthouse or later the ten-bedroom hotel. A diary or log of bookings made, either hard copy or a computer record since one could not operate a hotel without some form of booking system. 8.4 A letter has been received from a guest who stayed at the hotel in 2001 which states I understand that it has been claimed that this establishment was operating as a 10 guest room hotel at the time. I did not examine the property in any detail but it was my impression from the number of parking spaces and the small numbers of tables in the conservatory area used as a breakfast room that there were fewer than 6 rooms in use. We were given a bedroom on the ground floor. My recollection is strengthened by there being no further rooms available for my younger daughter for whom we had to find other accommodation. 9.0 CONSIDERATIONS (The analysis of the issues which are critical, material, considerations and/or of greatest concern to objectors for the Committee to weigh up before making a decision) 9.1 Paragraph 8.12 of Annex 8 of Circular 10/97 states that the onus of proof in a lawful development application (LDC) is firmly on the applicant. It states the Local Planning Authority (LPA) need not go to great lengths to show that failure (91)

8 to comply with a condition is or is not lawful. The fact that an LDC is refused because the onus of proof is not discharged by the applicant does not preclude the submission of a further application if better evidence is subsequently provided. Section 191(1) of the 1990 Act allows anyone to apply to the LPA for a decision on whether a specified existing failure to comply with a planning condition or limitation, which has already been carried out, is lawful for planning purposes. The applicants need to demonstrate that on the balance of probabilities the conditions have been breached for 10 years or more continuously. 9.2 The applicant has provided 16 pieces of evidence varying in type and form from written affidavits, individual letters and memorandum of sale of the property from different estate agents. The evidence covers the period between indicating that the use was established over 10 years ago and has been continuous ever since. 9.3 Local residents have expressed their considerable doubts about the use of 10 bedrooms stating that the level of activity (cars parked at the site etc) from the hotel would not indicate that the hotel was being operated with 10 bedrooms currently or in the past. 9.4 It appears that the breaches have gone undetected by the planning authority as they relate principally to the interior of the double garage element of the premises which was not altered in external appearance. 9.5 Further inquiries have been made by the planning officer about business rates and fire safety record for the premises but although older records have not been retained the more recent records all show 10 bedrooms and no evidence have been found to contradict the use of the building as a ten bedroom guest house CONCLUSIONS (The officer advice to the Development Control Committee on the appropriate decision, taking into account the issues detailed in the report) 10.1 The standard of proof required is that of balance of probability. This is a lower threshold and should not be confused with proof beyond all reasonable doubt. The applicant needs to prove not only that the use for which the certificate is sought commenced 10 years ago, but also that it has been continuous. The submitted evidence covers the period between indicating that the use was established over 10 years ago and has been continuous ever since The sum of the evidence submitted have been carefully weighed up against the standard of proof which is on balance of probability and given that no explicit contradictory evidence has been brought forth, it is recommended that a certificate of lawfulness has to be granted in the circumstances. (92)

9 (93)

Development Control Committee

Development Control Committee Date: Wednesday, 09 August 2017 Time: 18:30 Venue: Council Chamber Address: Town Hall, Hall Plain, Great Yarmouth, NR30 2QF AGENDA CONTENTS OF THE COMMITTEE AGENDA PLANNING