Yr Arolygiaeth Gynllunio, Adeilad y Goron, The Planning Inspectorate, Crown Buildings, Parc Cathays, Caerdydd CF10 3NQ Cathays Park, Cardiff CF10 3NQ 029 20823889 Ffacs 029 2082 5150 029 20823889 Fax 029 2082 5150 e-bost wales@planning-inspectorate.gsi.gov.uk email [email protected] Penderfyniad ar yr Apêl Appeal Decision Ymchwiliad a gynhaliwyd ar 20/10/09 Inquiry held on 20/10/09 Ymweliad â safle a wnaed ar 20/10/09 Site visit made on 20/10/09

gan/by Bill Barnes LLM LMRTPI

Arolygydd a benodir gan an Inspector appointed by Weinidogion Cymru the Welsh Ministers

Dyddiad/Date 02/11/09

Appeal Ref: APP/R6830/X/09/2096943 Site address: Land at Camp Alyn, Tafarn y Gelyn, Llanferres CH7 5SQ

The Welsh Ministers have transferred the authority to decide this appeal to me as the appointed Inspector.

 The appeal is made under section 195 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 against a refusal to grant a certificate of lawful use or development [“LDC”].  The appeal is made by Roy Astbury [“the Appellant”] against the decision of Denbighshire County Council [“the Council”].  The application, Reference 21/2008/0323/LE, received 25 March 2008, was refused by notice dated 23 October 2008.  The application was made under section 191(1)(a) of the Town and Country Planning Act 1990, as amended.  The use for which a certificate of lawful use or development is sought is described in the application as: “The retention and continuation of existing residential accommodation”. The use is described in the decision as: “Use of a building as a residential dwelling”.  The evidence at the inquiry was taken on oath.

Decision

1. I dismiss the appeal.

Procedural Matters

2. On 8 September 2009 I opened a hearing attended by the Appellant and the Council’s Development Control Manager. During the hearing it became apparent that there were matters of dispute that required to be tested by evidence on oath and the procedure was changed to an inquiry, which I held on 20 October 2009.

Reasons

3. The determination of this appeal is concerned with whether the Council’s decision was well founded. By section 191(4) of the Act, the Council are required to issue a LDC if they are provided with information satisfying them of the lawfulness of the use, as described, at the time of the LDC application, namely 25 March 2008.

Appeal Decision APP/R6830/X/09/2096943

4. As indicated above, the description of the use in the decision differs from that in the application. However, the Appellant agrees that the description in the decision is more appropriate. The Appellant alleges that the appeal building has been used for many years as a dwelling and accordingly I have treated the application as being for such a use.

5. By section 57(1) of the Act planning permission is required for the carrying out of any development of land, while section 171A(1)(a) provides that carrying out development without the required planning permission constitutes a breach of planning control. The definition of development in section 55(1) comprises two heads. The alleged use of the building on the site as a single dwellinghouse falls within the first head, which relates to the making of any material change in the use of the land. By section 171(B)(2) no enforcement action may be taken against this type of use after the end of the period of four years beginning with the date of the breach. It has been held that the use must have continued from its commencement unabated for the required period. However, once this four year period has elapsed there is an accrued planning use right, which can only be lost by operation of law, by abandonment, the formation of a new planning unit or by way of a material change of use [Panton and Farmer v Secretary of State for the Environment, Transport and the Regions and Vale of White Horse District Council [1999] JPL 461].

6. The Council maintain that there is insufficient evidence to support the appeal building’s alleged use as a single dwellinghouse. I find, from my inspection of the site and its surroundings and all the representations made, that there are three main issues. First, has the building been used as a single dwellinghouse? Secondly, if so, when did that use commence and did it continue unabated for four years thereafter? Thirdly, if so, was this accrued planning use right subsequently lost.

7. Circular 38/92 (Annex 1, para.20) explains that the onus of proof in a LDC application is firmly on the applicant. The Appellant relied upon documentary evidence and solely upon his own oral evidence, which was tested by questions from me and cross-examination on behalf of the Council. The circular (Annex 1, para.21) points out that if the local planning authority 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’.

8. The site, known as Camp Alyn, lies on the edge of the hamlet of Tafarn y Gelyn and comprises a grass enclosure, mainly bounded by trees and hedges, with a frontage to two roads from which it has access. The appeal building comprises a single storey, timber frame, chalet style building with a gable roof, together with a lean-to and an open entrance porch. It also incorporates what appears to be an old railway carriage with a curved roof. The roof is covered in felt and the walls are clad externally in green painted corrugated sheets. The building is connected to mains water, drainage and electricity. At the time of my site visit the accommodation inside the building included a room with a kitchen sink unit, cupboard and worktop, as well as a bathroom with a bath, wash basin and toilet. The three other rooms included one with a multi-fuel stove. The building also contained electric heaters and light fittings.

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9. It is not disputed that the appeal building at Camp Alyn has existed since the 1920’s. There is also evidence that at one time there were two further buildings that were demolished. The Appellant, who was born and brought up in the area, has memories of children who went to school with him living at Camp Alyn. The Appellant has submitted letters, dated from 2002 to 2008, from persons with past knowledge of Camp Alyn. These contain references to the appeal building’s use for holiday purposes and as a permanent dwelling going back a considerable number of years. However, they lack consistency and precision. The Appellant purchased Camp Alyn in 1999. The previous owner, who died in 1995, had owned it for some forty years. A letter, submitted by his son, states that the appeal building was never regularly used as a residence or for holiday use.

10. The Appellant produced copies of a letter, dated 17 November 2008, received by him from the Council’s Empty Homes Officer and his replies to the enclosed questionnaire. The replies confirm that there was not anyone then living in the appeal building, that it needed repairs/renovation and that he would be interested in working with the Council to bring it back into use.

11. The Appellant submitted certificates confirming that he was registered at Camp Alyn on the register of electors from 2004 to 2008 inclusive. He also submitted details of payments made by him during his ownership, for Council tax, water rates and electricity. However, he conceded that during his ownership the residential use of the appeal building had been very intermittent. It had been used for a holiday by his two nephews in 1999 and by him for the odd day or two in 2000. Since then it had been used for a maximum of fifteen to twenty nights in total over a whole year. The electricity and water rates details, submitted by the Appellant, reflect this. The incomplete electricity accounts cover a period of almost three years between 2003 and 2006. The small total amounts shown as due, taking into account the daily standing charge, suggest that very few units were consumed during this period. The metered water bill details cover the period from 17 May 2004 to 8 December 2008. These show that a total of only 14 cubic metres of water were consumed up to 23 November 2005 and that no water was consumed thereafter. I consider that any residential use of the appeal building during the Appellant’s ownership must be regarded as de minimis. On the first issue, having regard to all the available evidence before me, I find that it has not been shown that the building has been used as a single dwellinghouse. It follows that the second and third issues, referred to above, do not fall to be considered.

12. The Appellant seeks to rely upon a 2008 appeal decision to issue a LDC for the use of a wooden building at Ty Pren as a dwelling. However in that decision it was common ground between the parties that the building had been used as a dwelling. The sole main issue was whether that use had subsequently been abandoned. It is not therefore comparable with the appeal building where there is insufficient evidence of a single dwellinghouse use, as I have indicated.

13. For all above the reasons I conclude that the Council’s refusal to grant a certificate of lawful use or development, in respect of the use of the building as a single dwellinghouse, was well-founded and that the appeal should fail. T W B Barnes

Inspector

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APPEARANCES

FOR THE APPELLANT:

Roy Astbury Appellant

FOR THE LOCAL PLANNING AUTHORITY:

Michael Whitty of Counsel

He called:

Paul Mead BA DipTP MRTPI Development Control Manager with Denbighshire County Council

Wayne Williams Compliance Officer with Denbighshire County Council

INTERESTED PERSON

Bob Barton

DOCUMENTS 1 List of persons present at the inquiry. 2 Notice of the inquiry and its circulation. 3 Copy LDC application. 4 Copy LDC decision. 5 Copy Planning Officer’s report. 6 Copy documents submitted by the Appellant with his appeal. 7 Copy correspondence: Llanferres Community Council. 8 Copy correspondence: Guy Evans. 9 Copies of 2004 and 2006 appeal decisions relating to the site. 10 Copy documents produced by Bob Barton at the inquiry.

PLAN

Plan A Plan that accompanied the LDC application.

PHOTOGRAPHS Photos WJW 1 to 14 Photographs submitted with the evidence of Wayne Williams on behalf of the Council.

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