REPORT TO DEVELOPMENT CONTROL COMMITTEE (EAST) - 14 MAY 2009
This report was marked “to follow” on the agenda for the above meeting (item 1 of the
officers’ reports).
PUBLIC BUSINESS - ITEM FOR DECISION
1.
CROMER – 20080405 – Application for Certificate of Lawfulness of Existing
Use as Single Dwellinghouse; The Bath House, The Promenade for Dr and Mrs
B C Connell
Date of Application: 12 March 2008
Case Officer: Roger Howe
THE APPLICATION
The application is for a Certificate of Lawfulness of the asserted existing use of the
Bath House as a single dwellinghouse as a result of use for more than four years
before the date of the application (i.e. since before 12 March 2004). The use to
which the application relates is claimed as from August 2003
REASON FOR REFERRAL TO COMMITTEE
The application was deferred at a previous meeting of the Committee.
LIST OF DOCUMENTS PLACED IN THE MEMBERS’ ROOM
1. Statutory Declaration of Barry Charles Connell dated 30 January 2009 with
exhibits.
2. Statutory Declaration of Angela Connell dated 30 January 2009 with exhibits.
3. Document prepared by Mr R J Read headed “Opposition Notes” and dated 30
April 2009.
LEGAL FRAMEWORK
1. Section 191 of the 1990 Act:
This provision allows an applicant to ascertain whether an existing use is lawful. If
the LPA (Local Planning Authority) are provided with information:
“satisfying them of the lawfulness at the time of the application of the use
…….. they shall issue a certificate …… and in any other case they shall
refuse the application.”
Past and existing development is either lawful or it is not and these procedures allow
landowners to obtain a ruling to that effect.
2. Circular 10/97 – Annex 8: Lawfulness and the Lawful Development Certificate
advises as follows:8.12: The onus of proof in a LDC application is firmly on the applicant.
8.15: The relevant test of the evidence is the balance of probability. The LPA should
not refuse a certificate because the applicant has failed to discharge the stricter,
criminal burden of proof, namely beyond all reasonable doubt. The applicant’s own
evidence does not need to be corroborated by independent evidence in order to be
accepted. Neither the identity of the applicant nor the planning merits of the use are
relevant to the consideration of the purely legal issues which are involved in
determining an application.
8.34: Any views on the planning merits of the case ….. are irrelevant.
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14 May 2009
3. Circular 10/97: Annex 2 – “Single Dwellinghouse” advises as follows:2.81: It is considered that the criteria for determining use as a single dwellinghouse
include both the physical condition of the premises and the manner of the use.
Where a single, self-contained set of premises comprises a unit of occupation which
can be regarded as a separate planning unit …., designed or adapted for residential
purposes, containing the normal facilities for cooking, eating and sleeping associated
with use as a dwellinghouse and are used as a dwelling whether permanently or
temporarily by a single person or more than one person living together as, or like, a
single family, those premises can properly be regarded as being in use as a single
dwellinghouse for the purposes of the Act.
APPLICANTS’ EVIDENCE AS REPORTED TO THE COMMITTEE ON 31 JULY
2008
The following section of this report is an extract from the previous officer report to the
Committee on 31 July last year and lists the evidence then submitted in support of
the application.
“1. Statutory Declarations by both Dr and Mrs Connell. The Bath House has been in
use as single dwellinghouse since August 2003.
2. Applicants’ letters and other evidence.
Applicants purchased the former
hotel/public house in semi-derelict state in 1999. Began exhaustive renovations in
2000, with substantial completion in late 2002; builders leaving site in August 2003.
In early August 2003, we moved (into the Bath House) in to a suite of rooms on the
first floor utilising on the same floor a pantry room as a temporary kitchen. We have
solely and continuously lived there since August 2003. The Bath House has not
been used for any other purposes since August 2003. Refurbishment was completed
in 2006 and the premises were rated for Council Tax from October 2006.
(Note: there is considerably more detail in the actual correspondence, if any Member
wishes to view it.)
3. Photographs provided by the applicants, which are stated to be of the interior of
the Bath House from August 2003. The photographs show a bedroom, living room,
kitchen area, bathroom and refrigerator, all apparently being used. There is a
photograph showing the upstairs sitting room fully finished and apparently inhabited
dated January 2004. (Other photographs show removal boxes from September 2003
and the front bedroom from April 2005.)
4. Letter from Cromer Post Office confirming that the applicants’ mail was redirected
from the Old Lookout to the Bath House from August 2003.
5. Credit Card statement apparently showing a television licence at the Bath House
from January 2004.
6. Invoice for installation of alarm at the Bath House in August 2003.
7. Various invoices/bills showing usage of water and electricity at various times at the
Bath House from late 2003 on. Also, delivery of beds and furniture.
8. Some 17 letters from third parties which support the applicants’ claim, some in
generalized terms. At least 11 of these state that the applicants moved into the Bath
House in/around August 2003. These correspondents include the applicants’
solicitor and doctor.”
Further evidence has been received from the applicants in the form of Statutory
Declarations signed by Barry Charles Connell and Angela Connell, both dated 30
January 2009, and these are appended to this report.
EVIDENCE CONTRARY TO THE APPLICANTS’ CLAIM AS REPORTED TO THE
COMMITTEE ON 31 JULY 2008
The following section of this report is also an extract from the previous officer report
to the Committee on 31 July last year.
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14 May 2009
“1. Letters
18 letters have been received, including three from Cromer Preservation Society and
one from Cromer Town Council. These letters object on the planning merits of a
change from hotel and public house to a single dwellinghouse. They also raise a
number of specific points which are set out below.
2. Petition with approximately 204 signatures, which states: “We oppose the Bath
House in Cromer being converted to a residential property.”
3. Specific Points Raised in Correspondence
(a) Council Tax – that the premises were only rated for Council Tax from October
2006 and therefore were not occupied before.
(b) Electoral Papers: that Dr Connell’s electoral papers for the County Council
election in 2005 give his address as 1 the Old Lookout.
(c) Electoral Register: there are entries in the Electoral Register for both the Old
Lookout and the Bath House at various times between 2002 and 2007.
(d) Appearance of premises: some people say that the premises did not appear to be
inhabited at all times during the period.
(e) Applicant’s flat in London:
(f) A review in the magazine ‘Norfolk’ from June 2006 about the Old Lookout.
Since the matter was last considered by the Committee a number of further
representations have been received and these are summarized in a separate section
of this report.
ADVICE OF COUNSEL: 31 OCTOBER 2008
This application was previously reported to the Committee on 31 July last year (copy
of officer report attached at Appendix 1.1). Based on an assessment of the
evidence then available, it was recommended that the Certificate of Lawfulness for a
single dwellinghouse be granted. The Committee then resolved that consideration of
this application be deferred to seek Counsel’s opinion on the evidence and also
human rights issues (extract from minutes attached as Appendix 1.2). Mr James
Strachan of Counsel was asked to advise upon this matter and a copy of his Note of
Advice dated 31 October 2008 is attached (Appendix 1.3). It will be noted that
Counsel then considered “this issue is somewhat finely balanced on the evidence
currently available and the Council will have to come to a judgment on the evidence
as to whether the applicants have discharged the burden of proof. To assist in this
exercise, it would be helpful if the Connells could be asked for further information as
to when the various rooms in the Bath House were renovated and when the various
facilities became operational” (see paragraph 37 of the Note of Counsel’s Advice).
Counsel has then commented (paragraphs 38-49) upon a number of elements of the
available evidence and listed at paragraph 50, a) to f) further information to be
requested from the applicants. A copy of the note of Counsel’s Advice was sent to
the applicants’ solicitors by letter dated 6 November 2008 and a copy was also
placed on the application file which is available for public inspection. The applicants
responded to Counsel’s Advice and to other matters which had been raised by
objectors by way of formal Statutory Declarations, dated 30 January 2009, each
supported by documentary exhibits. Copies of both Declarations are appended to
this report (Appendix 1.5 Barry Charles Connell and Appendix 1.6, Angela Connell),
together with a copy of a letter from their solicitors (Appendix 1.4).
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FURTHER ADVICE OF COUNSEL: 10 MARCH 2009
Copies of the applicants’ Statutory Declarations (which had not been signed at that
stage) and the exhibits to those Declarations and further representations received in
connection with this controversial application were submitted to Counsel for his
consideration and further advice. Counsel provided a Further Note of Advice dated
10 March 2009 and a copy is attached (Appendix 1.7). In this Further Advice,
Counsel has summarized the substance of his previous Advice (paragraphs 2, 3 and
4) and outlined the issues on which the Council had been recommended to seek
further information from the applicants (paragraph 50 a) to f) of the first Advice dated
31 October 2008.
Counsel has then summarised and evaluated the further information submitted by the
applicants and also the representations received from other parties concluding at
paragraph 30 of the Further Advice that “My analysis therefore remains that it is
arguable that the poor state of the building as a whole up to at least June 2005 (and
quite possibly some time beyond) was such that, even if the Connells were
permanently residing in the Bath House, the premises could not be classified as a
single dwellinghouse”. Counsel went on to state (paragraph 32) that “this remains a
finely balanced decision based on all the evidence before the Council, and it will be
for the Council to come to a judgment on the evidence as to whether the applicants
have discharged the burden of proof. The further information provided by the
Connells does not materially alter that fine balance.”
Copies of Counsel’s Further Advice were sent to the applicants’ solicitors and placed
on the application file available for public inspection.
FURTHER SUBMISSIONS RECEIVED AGAINST THE APPLICATION
Since this application was last considered by the Committee a number of further
representations have been received from persons or bodies against this Lawful
Development application. In some cases (Cromer Preservation Society and a Town
Councillor, Mr R J Read) several letters have been received responding to, or
commenting on, issues referred to in the two Advices of Counsel and addressed in
correspondence received from the applicants’ solicitors. This correspondence is
summarized below although copies of recent letters from the Preservation Society
and Mr Read are appended to this report.
31 July 2008 Cromer Preservation Society
Refers to entries in the Electoral Register for the Old Lookout and Bath House and
points out that the applicants gave their address as the Old Lookout for the years
2003, 2004 and 2005.
Queries part of previous report to Committee.
Reiterates statement made at 31 July Committee meeting.
14 September 2008 Mrs S P Triston
Until late 2005 Bath House occupied only on occasional basis.
Under the impression applicants moved out of Old Lookout “probably late 2005”.
Bath House owners away for frequent long periods.
11 December 2008 Cromer Town Council
Copy of original letter dated 15 April 2008 enclosed (“grave concerns about the dates
and times given, as Mr Connell’s address on election papers of 2005 was shown as
The Lookout and not the Bath House”).
Enquiry about payment of Council Tax.
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14 May 2009
22 December 2008 Cromer Preservation Society
Refers to Electoral Registers for 2003, 2004 and 2005.
Address on election documents in 2005.
Council Tax records and notes on the file.
Letter from builders (Thrower and Rutland) in December 2004 stating “we understand
property is to be unoccupied during the whole of the works”.
22 December 2008 Mr R J Read
4 January 2009 Mr T Walker
Refers to previous letters to Chief Executive.
Refutes reference in previous officer report to documents opposing claimed lawful
use as “almost entirely conjectural.”
Address on elections nominations papers was Old Lookout.
Nomination papers singed by people who would presumably have been aware of
nominee’s address.
Addresses given on Electoral Roll for 2004 and 2005 (Old Lookout).
Paying Council Tax on the Bath House in October 2006.
13 January 2009 Cromer Preservation Society
Concern over continuing delay.
Refers to EDP magazine for June 2006 indicating that work has started on a
complete renovation and they (the applicants) “plan to open a small, exclusive
boutique hotel with a restaurant”.
9 February 2009 Mr R J Read
13 February 2009 Mr R J Read
14 February 2009 Cromer Preservation Society
Refers to Mr Read’s letter of 9 February and to alleged discrepancies between earlier
and more recent statements by the applicants (relating to the extent to which the
interior of the Bath House was finished and when), alleged discrepancies between
the utility bills provided and the written/photographic evidence of the
applicants/Thrower and Rutland builder’s report and applicants’ company accounts,
stating that the Bath House was still being refurbished and renovated in 2007.
15 February 2009 G and J Barrell
Used to walk dog along the promenade until 2007.
After scaffolding came down never saw any lights on or heard any noise.
Told that the builders hadn’t finished the works and that the owners were away.
16 February 2009 Ms G Smith
Member Cromer Town Council but writing as an individual.
Refers to letters from Mr Read and Cromer Preservation Society.
16 February 2009 Mrs D M Read
Regularly walked on promenade.
Has had beach hut on East Beach for many years.
Saw builders working at the Bath House in 2003.
Was told builders had left without finishing the building work, Bath House deserted.
Told about a legal wrangle in summer 2004.
Heard owner had become a County Councillor in summer of 2005 and the project
was “on the back burner”.
Looked though windows to see if any progress made.
Very clear that there were no signs of life whatsoever during this very long period.
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18 February 2009 Mrs D M Read
Not related to Mr Read, the Cromer Town Councillor.
Have beach hut on East promenade.
Until about two years ago no sign of life in the Bath House.
Owners not living there in 2005 although appeared to visit sometimes.
21 February 2009 T and N Hardy
Very frequent visitors to Cromer.
Have beach hut on East promenade.
Bath House deserted after builders left in 2003.
Appeared uninhabited in summer 2005 with the owners often being seen in The
Lookout.
Only slightest hint of occupation of Bath House in 2008.
22 February 2009 Mr P Harris (e-mail)
Majority view of Cromer residents is that building should remain in public use.
22 February 2009 Mr T Walker
Photographs on file showing Bath House in use as a dwelling not convincing, could
equally show Bath House being furnished as a hotel.
Comments on Old Lookout being used for holiday lettings.
Refers to letter stating applicants living at Bath House before 2005 from one of
signatories to County Council nomination documents in 2005.
25 February 2009 Mr R J Read
28 February 2009 Mr R J Read
2 March 2009 Ms M Dalton
Builders left Bath House in August 2003.
Property remained empty for a considerable length of time.
Saw empty rooms on visits to Cromer.
3 March 2009 Mr R J Read
12 March 2009 Mr R J Read
23 March 2009 Ms P Davidson (e-mail)
Beach hut owner.
Regularly walks on the promenade.
Never seen any signs of life or occupation.
Windows covered over and no lights.
30 March 2009 Mrs T Petersen (e-mail)
Held wedding reception at Bath House in June 1997.
Moved to United States, returned to Cromer for Christmas 1997.
Bath House was still running.
Shocked to hear it referred to as “derelict” in 1999.
2 April 2009 Mr and Mrs A J Sandal
Incorrectly refers to a planning application.
Recall that in approximately August 2003 the scaffolding came down.
Any change of use should be resisted.
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26 April 2009 Cromer Preservation Society (copy attached, Appendix 1.9)
27 April 2009 Mr R J Read
1 May 2009 Mr R J Read (copy attached, Appendix 1.10)
It will be noted from the list above that a number of letters have been received from
the Cromer Preservation Society and Mr R J Read, a Town Councillor. This
correspondence has latterly been a commentary on matters set out in the letter dated
6 April 2009 from the applicants’ solicitors (responding to Counsel’s Further Advice).
Copies of the latest correspondence from the Preservation Society (26 April 2009,
Appendix 1.9) and Mr Read (1 May 2009), Appendix 1.10) are attached. Mr Read’s
correspondence includes a detailed review of the letter from the applicants’ solicitors
dated 6 April 2009 (Mr Read review, 27 April), an analysis of public utility records
showing usage of gas, electricity and water and a 19-page document headed “Our
Opposition Notes” to which are attached copies of other documents. This document
has been placed on the public file and a copy sent to the applicants’ solicitors. A
copy has also been place in the Members Room, should any Member wish to read it.
FURTHER SUBMISSIONS RECEIVED IN SUPPORT OF THE APPLICATION
The principal submissions received in support of the application are contained in a
letter dated 6 April 2009 from the applicants’ solicitors (Hewitsons, Cambridge),
containing a comprehensive response to the Further Advice of Counsel dated 10
March 2009. A copy of that letter and enclosures (letters from the Old Lookout
Management Company Ltd, E.ON Energy Ltd and Cottrells Furniture Removals is
attached (Appendix 1.8). In assessing this application, the Committee is asked to
give careful attention to the contents of this letter from the applicants’ solicitors as it
sets out a detailed response to the issues raised in the two Advices of Counsel and is
also the subject of letters from the Cromer Preservation Society and Mr R J Read
(see Appendices 1.9 and 1.10).
APPRAISAL
The report to this Committee on 31 July 2008 contained an appraisal of the evidence
then available both from and on behalf of the applicants and also against the grant of
a Lawful Development Certificate and concluded with a recommendation that the
Certificate of Lawfulness for a single dwellinghouse be granted. Consideration of the
application was deferred to seek Counsel’s opinion on the evidence and the original
and Further Advices of Counsel are attached to this report. This Lawful Development
application has been and remains controversial and a number of further
representations have been received, including the comprehensive response to the
letter dated 6 April 2009 from the applicants’ solicitors (Appendix 1.8) prepared by
Mr Read (Appendix 1.10). In making a decision on this application the Committee
will have to assess the available evidence on the civil law balance of probability test
as required by Circular 10/97, appendix 8. The Committee is reminded that a
Certificate should not be refused “because the applicant has failed to discharge the
stricter, criminal burden of proof, namely beyond all reasonable doubt” (Circular
10/97, annex 8, paragraph 8.15).
In approaching the decision the Committee must firstly disregard any matters which
are irrelevant to a decision on a Lawful Development application. Circular 10/97,
annex 8, paragraph 8.34 makes clear that “any views on the planning merits of the
case .... are irrelevant.” This report therefore makes no reference to national
planning policy nor the adopted Core Strategy and any references in correspondence
to the planning merits or otherwise of the case must not be taken into account.
Paragraph 8.15 of the same annex states that “neither the identity of the applicant
Development Control Committee (East)
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14 May 2009
nor the planning merits of the use are relevant to the consideration of the purely legal
issues which are involved in determining an application” (for a Lawful Development
certificate). Applying these principles to the Bath House application, the two petitions
received stating that the signatories “oppose the Bath House in Cromer being
converted to a residential property” cannot be taken into account, likewise the
Committee cannot take into account any representations relating to the planning
merits of the use of the Bath House as a single dwelling. In this regard, attention is
drawn to page 4 of the letter dated 16 January 2009 from the applicants’ solicitors
(Appendix 1.8) in which it is stated “There has been considerable local objection to
my clients’ application, based on personal issues and/or on planning merits. The
Council’s Officers are aware of this and have sought to bring the Government’s
guidance on this point in Circular 10/97 to the attention of the Committee. However,
the Circular advice does need to be reinforced when the matter is referred back to
the Committee to avoid a decision being made by the Committee on the wrong basis,
thereby exposing the Council to a costs application on appeal.”
The issue on which the Committee must make the decision is whether, on the
balance of probabilities, the Bath House had been used as a single dwelling for more
than four years preceding the date of the application, that is since before 12 March
2004. The applicants’ case is that the residential use commenced from August 2003
and the applicants both made short Statutory Declarations to this effect when
submitting the application.
Both have made more detailed Declarations
(Appendices 1.5 and 1.6) containing signed Declarations of truth (“And I make this
solemn declaration conscientiously believing the same to be true and by virtue of the
Statutory Declaration Act 1835”). In their letter dated 6 April 2009, their solicitors
have written that “the Connells are aware that it is an offence to make a false or
misleading statement or withhold any material information in order to obtain a
Certificate”. In a reference to notes on the Council Tax file, that letter continues
“Evidence contained within sworn Statutory Declarations should be given greater
weight than a record of an inspection by a Council Officer which is questionable as to
its contemporaneous nature”. The Committee should also be aware that the
application form signed by the applicants contains a warning that section 194 of the
1990 Act provides that it is an offence to furnish false or misleading information with
intent to deceive and that section 193(7) enables the Council to revoke, at any time,
a certificate they may have issued as a result of such false or misleading information.
In light of the above the Committee is asked to give careful consideration to the
contents of the Declarations signed by the applicants and to give due weight to their
evidence, bearing in mind that “the onus of proof in a LDC application is firmly on the
applicant” (Circular 10/97, annex 8 paragraph 8.12).
Subject to disregarding any submissions on planning merits, the Committee as the
decision-maker is entitled to weigh in the balance the evidence submitted by other
parties and available from other sources, such as the Council’s own records, and to
test the applicants’ case by reference to the submissions made by those parties. In
his original Advice (Appendix 1.3) at paragraph 50 Counsel considered that the
applicants had not yet demonstrated on the balance of probabilities that they had
used the Bath \house as a single dwellinghouse from 12 March 2004 to the date of
their application. He then listed at paragraphs a) to f) further information which he
recommended be requested from the applicants.
It is suggested that the Committee may wish to consider these matters in turn by
reference to the Statutory Declaration made by the applicants, the representations
made on their behalf in the letters from their solicitors and the counterrepresentations made by other parties.
Development Control Committee (East)
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14 May 2009
Adopting the same order as Counsel’s Advice,
a) Revision of plans.
In his original Advice, Counsel has referred to the applicants’ statement in their letter
dated 9 April 2008 that “during our unexpectedly protracted and difficult renovations
we maintained our original vision of developing a contemporary and luxurious
“boutique hotel/b & b” but due to the incredible stress and cost of it all as well as
actual architectural and construction constraints, revised our plans.” Counsel asks
when were the plans revised?
Dr Connell has stated in his Declaration (Appendix 1.5, paragraphs 8 to 11) that he
and his wife changed their intentions with regard to the use of the Bath House in
2001.
In that year they dispensed with the services of their original
builders/architects, took control of the new project themselves and contracted with
new builders for a much simplified refurbishment. It is stated in paragraph 10 that
Mrs Connell approached the Council regarding whether or not planning permission
would be needed to live in the Bath House and in due course operate a small scale B
& B for part of the year. Prior to 2001 (paragraph 11) Dr Connell had retired,
retrained, qualified and worked as a chef in preparation for operating a hotel but in
the summer of 2001 his Declaration states that he gave up this employment due to
the change of intentions for the Bath House. He went back to his career as a
psychiatrist with a view to later supplementing income from small scale seasonal B &
B at the Bath House.
b) Thrower and Rutland report
At point b) in paragraph 50 of his Advice, Counsel refers to a report from Thrower
and Rutland (in December 2004) “commissioned in terms of the building’s fitness for
purpose as a luxury B & B”. Counsel asks when was the decision taken to use the
property as the Connells’ home rather than to renovate it as a hotel/bed and
breakfast? If that decision was before October 2006, in what way did the renovation
differ from that envisaged in Thrower and Rutland’s tender?
These questions are addressed in Dr Connell’s Statutory Declaration at paragraphs
18 to 22 inclusive. In summary, this comments that in August 2003 the builders left
and the applicants moved in with the intention of using it as their home and have
done so since that date. It has not been used as a hotel or B & B since their
purchase in 1999. It closed as a hotel in October 1998, was de-registered for
Business Rates in 2000 and has not operated as business since 1998.
The Declaration also states that the Thrower and Rutland report was commissioned
as an expert’s report in connection with a dispute with the builders. It was never
intended to commission Thrower and Rutland to carry out any of the works detailed
in that report as the applicants were then living in the Bath House and no longer
intended to run it as a hotel. Those works were not carried out and no other
renovation works have been carried out since August 2003. Reference is made to
the Thrower and Rutland report stating that “the property is to remain unoccupied
during the whole of the works”. The Declaration refers to notes in the Thrower and
Rutland report stating that their tender does not allow for removal of furniture etc.
from all rooms. This shows that the Bath House was furnished and finished at the
time of the report. When the applicants moved into the property in August 2003,
renovation works were complete. Apart from the kitchen which was not installed
until 2006, all rooms were renovated, decorated and fitted out.
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14 May 2009
c) Townscape Heritage Grant Funding
Counsel has asked when was the decision taken not to take up the offer of THG
Funding and the reasons?
This point is answered at paragraph 12 of Dr Connell’s Declaration (summarized)
.Decision sometime in 2000 as building deteriorating rapidly, builders ready to start
work, possible delay in Grant Funding and building works would be modern rather
than traditional and therefore non-eligible.
d) Status of Beach and Spa Hotels Ltd
Utility bills for the Bath House were in the name of this company and Counsel asked
why this was so and what is the status of the company?
The answers are given in paragraph 13 of Dr Connell’s Declaration (summarized).
Company incorporated August 2000 when the applicants envisaged trading as a
hotel when the renovation was completed. The company’s status is “active” at
Companies House but to date the company has not traded as hotel/B & B,
accountant can confirm.
e) Rental history of 1 The Lookout from August 2003
Counsel advised that a full rental history of 1 The Lookout (the other property in
Cromer owned by the applicants and given as Dr Connell’s home address on his
nomination as a County Councillor in 2005) be requested.
The Committee’s attention is drawn to paragraphs 14 to 17 of Dr Connell’s
Declaration (summarized). Applicants have not resided at 1 The Lookout since
moving to the Bath House in August 2003. Gave this address in May 2005 on
electoral papers as under the impression that he must give an address at which he
was paying Council Tax. Refers to documents exhibited, showing could not have
been living at 1 The Old Lookout in May 2005 as it was then let. Detailed
commentary on correspondence from Rural Retreats Ltd and booking forms, letting
contract commenced July 2004, Old Lookout was let when Dr Connell elected as a
County Councillor in May 2005. Details of letting in June 2005 and article advertising
the property for rental through Rural Retreats. Contract with letting company ended
at the end of 2005, Old Lookout then unoccupied except for occasional stays by
family and friends, tried to sell in 2007 but buyer pulled out. Exhibits letter confirming
Old Lookout not occupied by applicants from the end of 2005 to date and has
remained empty save from occasional use by family/friends.
f)
Layout of the Bath House, when the various rooms were renovated and when the
various facilities became operational
In response to this issue from Counsel’s first Advice, the Committee is referred to
paragraphs 23 to 28 of Dr Connell’s Declaration (summarized). Exhibits ground and
first floor plans of the layout of the Bath House as it was in August 2003 and remains
today, all rooms except kitchen complete, fitted out and usable from August 2003,
temporary kitchen until 2006. Only minor plumbing repairs, fitting of curtains, blinds
and soft furnishings and domestic kitchen installed since 2003. Condition in June
2005 not as bleak as Mr Addy (Council Tax) note on file appears to suggest, kitchen
not installed at that stage but floors and walls would only have needed
replacing/soundproofing if Bath House used as a hotel. Had been leak in cellar,
rectified by Anglian Water. Exhibited plans annotated to show uses and when each
room was furnished and used. Family and friends stayed overnight at the end of
2003/early 2004, letters to confirm exhibited. Letter from Louis de Soissons of
Savills, Norwich dated 13 January 2009, exhibited confirming he visited the property
in December 2003 to provide valuation advice, letter includes “I recall that you had
recently moved into the property after completion of the restoration works”.
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14 May 2009
CONCLUSION AND RECOMMENDATION
Notwithstanding the contrary views expressed by the applicants’ solicitors as to the
strength of the case made by and on behalf of their clients (letter dated 6 April 2009
“our client has more than discharged the burden of proof to the necessary standard”)
Counsel’s view in the Further Advice dated 10 March 2009 was that “this case
remains finely balanced and there remain a number of unanswered questions and
inconsistencies in the evidence which mean that it is difficult to say definitively at this
stage that the Connells have discharged the burden of proof (although this is
ultimately a matter of judgment for the Council)”. Subsequent to receipt of that
advice further representations have been made on behalf of the applicants in the
form of their solicitors’ letter dated 6 April 2009 (Appendix 1.8) although much of the
content of that letter is challenged by the correspondence received from the Cromer
Preservation Society (Appendix 1.9) and specifically by Mr Read (Appendix 1.10).
Counsel’s analysis as expressed in his Further Advice (see Appendix 1.7, paragraph
30) was that “30. My analysis therefore remains that it is arguable that the poor state
of the building as a whole up to at least June 2005 (and quite possibly some time
beyond) was such that, even if the Connells were permanently residing in the Bath
House, the premises could not be classified as a single dwellinghouse. The fact that
some of the bedrooms may have been furnished by this time to a high standard does
not, in my view, of itself necessarily mean that the Bath House was in use as a single
dwellinghouse at that time nor is it inconsistent with Mr Addy’s inspection.
31. It also seems apparent that the Connells did have at least some of the facilities
for normal residential purposes. The photographs they have previously submitted
show a food preparations area (despite the lack of a kitchen) and a refrigerator, a
sink, a bathroom, bedroom and sitting room. The photographs are dated variously
from August 2003 onwards.
32. The consequence is, in my view, that this remains a finely balanced decision
based on all the evidence before the Council, and it will be for the Council to come to
a judgment on the evidence as to whether the applicants have discharged the burden
of proof”.
Counsel goes on to advise at paragraph 33 “As I have previously noted, it is clear
from paragraph 2.81 of circular 10/97 that the definition of a single dwellinghouse
depends on both the physical state of the premises and the manner of use. The
Council will need to appraise all the evidence before it to establish whether more
than four years’ use prior to the date of the Certificate application has been made
out.
34. It is use, rather that the Connells’ intention, that is relevant to the question of use
as a single dwellinghouse. It remains uncertain whether occupation of a suite of
rooms in a building in a poor state of repair with renovations intended to allow the
reopening of the building as a hotel/bed and breakfast is more consistent with use as
a hotel/bed and breakfast (Use Class C1) with ancillary accommodation for the
owner, rather than use as a single dwellinghouse (Use Class C3)”.
The applicants’ solicitors have addressed the issues set out in Counsel’s Further
Advice by way of their letter of 6 April (Appendix 1.8) the contents of which are the
subject of challenge by other parties, particularly Mr Read. In considering this
matter, the Committee will need to assess these competing representations, together
with the other evidence, and decide (applying the balance of probabilities test)
whether the Bath House was being used continuously as a single dwellinghouse for
more than four years prior to 12 March 2008.
Development Control Committee (East)
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14 May 2009
Neither Counsel nor the applicants’ solicitors have seen Mr Read’s nor the
Preservation Society’s most recent letters as at the date of preparation of this report.
Copies have been sent to Hewitsons, Cambridge for any final submissions on behalf
of the applicants and to Counsel.
Any response received from the applicants’ solicitors and Counsel will be orally
reported at the Committee meeting and a formal recommendation on this application
will be made taking those matters into account.
(Source: Roger Howe, Ext 6016– File Reference: 20080405)
Development Control Committee (East)
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14 May 2009