Land at Hopsford Hall Farm, Withybrook Road, Shilton

Report

R08/1727/CLE

Certificate of existing lawful use of land for hard standing and the parking of vehicles and storage of materials

Relevant decisions

None

Technical Consultations

None

Third Party Consultations

Ansty Parishno comments received

Withybrook Parishno comments

Neighbours no comments received

Other relevant information

None

Planning Policy Guidance

None

Determining Considerations

The Certificate

The applicant states that the small triangular portion of land has been hardstanding used for the parking and the storage of items since the 1960’s.

The Submitted Information

Statutory declaration signed by Peter Chalmers, the father of the owner of the site. It states that the site outlined on the plan is hardstanding and has always been so, the land has periodically for 20 years been used by British Rail, or Network Rail, to park vehicles and store materials whilst working on the railway and has never been used for agricultural purposes or been ancillary to land used for agricultural purposes. In the course of that time the owner has rented out the land to British Rail and their successors.

Letter from Harrington Property Services dated 15th May 2008 stating that writing as an Agent for Network Rail confirms access has been taken over Hopsford Farm and use of the hardstanding area as per the attached plan on at least two occasions since 2004 to set up a site compound and facilitate works to the railway. The most recent access was taken in March 2008 for gantry works here for a period of 4 weeks and access will probably be required in the future.

Agreement from Network Rail dated 19.12.03 stating that Network Rail and the applicant have reached an agreement for Network Rail to use the land in connection with embankment works, the term was 4 months from 5th January 2004;

Agreement from Network Rail with the applicant, dated 14th March 2008 relating to a two week period to use the site for the storage of materials, plant, equipment, vehicles, machines, stores and mess facilities in connection with works on the land;

Statutory declaration signed by the applicant, dated, 30th October 2008, stating that her father has been a frequent visitor over the last 20 years, the land has always been hardstanding in the 20 years of her ownership, it has regularly been used by British Rail and Network Rail for the purposes of parking vehicles in conjunction with maintaining the railway, setting up a compound and parking vehicles where necessary. It has been rented out to them for that purpose, it has never been used for agricultural purposes or been ancillary to land for agricultural purposes;

Statutory declaration signed by Leslie Carter, dated 30th October 2008, stating he was a tenant at Hopsford Hall Farm in the parishes of Ansty and Withybrook from 1966 to 1988, during that period the triangular piece of land outlined on the plan, was always hardcore and was used by the railway for the parking of vehicles used in connection with the maintenance of the railway. It has never been used for agricultural purposes and the land has never been used ancillary to land used for agricultural purposes during that time.

Assessment

The submission seeks a certificate to confirm that the land has been hardstanding and used for the parking and the storage of items since the 1960’s. The information submitted above to state that case provides a number of statutory declarations to demonstrate that the site has been hardstanding. Given the evidence it is considered that a case has been made to confirm that the site has been hardstanding for a continuous period of 10 years. No evidence has been received to the contrary.

However, the submission also seeks a certificate to confirm that the land has been used, for a continuous period of 10 years, for the storage and parking of items. Although the evidence submitted appears to relate more to a connection with railway operations the application form itself relates solely to “parking and the storage of items”.

Whichever the case, the submission needs to demonstrate that the site has been in this use for a continuous period of 10 years. The statutory declarations make a convincing case to demonstrate that the land has, at times, been used for storage purposes. The declarations are by the applicant, a parent and individuals in connection with the railway industry. Furthermore, from the site visit, it was clear that at that time the land was in use for storage.

However, the information submitted is not sufficient to make a convincing case to prove a 10 year use. The declarations state that the land has “regularly” been used by British Rail and Network Rail, another states that the land has “periodically” been used by British Rail and Network Rail. The evidence supplied by Network Rail relates only to a four month period and the license relates to “temporary storage”. The declaration from Nicola Harrington relates to the use of the hardstanding for two periods only.

In the Thurrock case it was held by the Court that to have a ten year immunity an owner must demonstrate that the use has been carried on continuously throughout the ten year period. This case has not been made and the certificate should not be issued. This view is supported by the Legal Section.

Recommendations

The Local Planning Authority is not convinced on the information submitted that the land shown has been used for the purpose stated for a continuous period of more than 10 years and the Certificate should not be issued.

Prepared by:J Mitson22.12.08

Checked by:G S Vigars 06.01.09

Report Sheet