PP133/06

REPORT OF THE SELECT COMMITTEE ON

NO. 5 THE PARADE, CASTLETOWN

VOLUME 1

REPORT OF THE SELECT COMMITTEE ON NO. 5

THE PARADE, CASTLETOWN

At the sitting of Tynwald Court on 14th July 2005 it was resolved that a Committee of three members be appointed, with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876 , to investigate all matters relating to the removal of the roof and the continuation of the exposure of the structure, and therefore its vulnerability to adverse weather conditions, of the Registered Property known as 5 The Parade, Castletown, the actions of the Department of Local Government and the Environment, Castletown Town Commissioners, Auctor Limited, the beneficial owners of that company, and any advisers and agents who have been or are acting for any party, and to report with findings and recommendations on the case, and on whether legislative changes should be made, to Tynwald no later than January 2006.

Mrs H Hannan MHK (Peel), Caairliagh

The Lord Bishop

Mr P A Gawne MHK (Rushen)

The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984. Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Bucks Road, Douglas IM1 3PW (Tel 01624 685516, Fax 01624 685522) or may be consulted at www.tynwald.org.im All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Bucks Road, Douglas IM1 3PW.

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To: The Honourable Noel Q Cringle MLC, President of Tynwald, and the

Honourable Members of the Council and Keys in Tynwald assembled

REPORT OF THE SELECT COMMITTEE ON NO. 5 THE PARADE, CASTLETOWN

PART 1

The Select Committee’s remit 1.1 At the July 2005 sitting of Tynwald it was resolved

That a Committee of three Members be appointed with powers to take written and oral evidence pursuant to sections 3 and 4 of the Tynwald Proceedings Act 1876 to investigate all matters relating to the removal of the roof and the continuation of the exposure of the structure, and therefore its vulnerability to adverse weather conditions, of the Registered Property known as 5 The Parade, Castletown, the actions of the Department of Local Government and the Environment, Castletown Town Commissioners, Auctor Limited, the beneficial owners of that company, and any advisers and agents who have been or are acting for any party, and to report with findings and recommendations on the case, and on whether legislative changes should be made, to Tynwald no later than January 2006.

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The Committee

1.2 Mr Earnshaw, Mrs Hannan and the Lord Bishop were elected to serve as

members. At its inaugural meeting in August 2005 Mr Earnshaw was elected

as Chairman. At a meeting held on 24 October 2005 the possibility emerged of

a potential conflict whereby a relative of the Chairman was likely to be called

to give evidence. As a consequence Tynwald approved the appointment of

Mr Gawne to replace Mr Earnshaw as a member of the Committee.

1.3 Mrs Hannan was elected as Caairliagh and made a statement to the January

2006 sitting of Tynwald advising Members of a delay in reporting.

1.4 Your Committee agreed to engage expert advice due to the technical aspects

of its enquiries and appointed Mr Guy Thompson, Dip Bld Con, FCIOB, MB

Eng, MRICS, Conservation Surveyor for that purpose.

Meetings of the Committee

1.5 Your Committee has met on 24 occasions of which 6 have included public

hearings in which oral evidence has been received.

PART 2

STRATEGY

Written evidence received

2.1 Your Committee agreed to invite written submissions from parties who had

an interest or involvement in the property or in the circumstances

surrounding the current condition of the property. Specific invitations were

extended to:

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(1) the Department of Local Government and the Environment

(DLGE)

(2) the Department of Transport (DoT)

(3) Castletown Town Commissioners

(4) Isle of Man Fire and Rescue Service

(5) Auctor Ltd, beneficial owner of the property

(6) Castletown Heritage

(7) Manx National Heritage

(8) Hon J A Brown SHK, Member for Castletown

2.2 In addition a press notice was placed inviting comments and views from

members of the public and other interested parties.

2.3 Further evidence was requested from identified sources as our investigations

progressed. A list of those providing written evidence and comment is shown

at Appendix A and is available for inspection in Tynwald Library.

Appendix A

Oral Evidence

2.4 Your Committee agreed to a schedule of public sessions to take oral evidence

from witnesses as follows

13 February 2006 Capt A Corlett and Mr N Taylor, Auctor Ltd

Mr I McCauley Director of Planning, DLGE Mr J Howie, Environmental Health Officer, DLGE Mr N Black, Chief Inspector Health & Safety

24 February 2006 Mr S Bentham, Senior Health and Safety Inspector Mr B Hannay, Director of Highways DoT

Mr K Weir (Chairman) and Mr C Meakin (Clerk), Castletown Town Commissioners

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1 March 2006 Mr A C C Johnson, Manx National Heritage Mr B Draper, Chief Fire Officer

3 March 2006 Hon J A Brown SHK, Member for Castletown Miss P Newton, Planning Consultant Mr N Crowe, author and amateur architectural historian

Mr I McCauley, Director of Planning, DLGE

24 March 2006 Hon J Rimington MHK, Minister DLGE Mr S Moore, Conservation Officer, DLGE 30 March 2006 Dr J Taylor, Director of Auctor Ltd, beneficial owner of

No 5 the Parade

Mr P Bergin, Burrough Stewart Associates Mrs M Hendy, former Conservation Officer

Copies of the Hansard records are at Appendices B, C, D, E, F and G

2.5 Your Committee refers to several structural reports undertaken on behalf of

the previous owner of no. 5 the Parade, the current owner and the

Department of Local Government and the Environment. These are

(a) MacOwan Collett, for Felspar Ltd, November 1999

(b) Burroughs Stewart Associates, for Auctor Ltd, May 2002

(c) Curtins Consulting, for DLGE, January 2005

(d) Morton Partnership, for DLGE, January 2006

(e) Burroughs Stewart Associates, for Auctor Ltd,

and are included with this Report at Appendix H

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PART 3

BACKGROUND

3.1 Number 5 the Parade (number 5) is described by Castletown Heritage as a

mid eighteenth century town house, and ‘the only house of its date and

pretensions surviving on the Island’. It was formerly a mid terrace property.

Number 4 which adjoined was demolished in the 1950’s for road widening

purposes. At this time an arched passageway was created through number 5

for pedestrian access. Number 6 which adjoins to the north side is Balcony

House, a former home of John Quillin, Attorney General, and later of the

celebrated Capt John Quilliam RN, MHK. Manx National Heritage referred

to numbers 5 and 6, and number 6A (which adjoins no. 6), as being of

historical significance, stating in its submission

“The buildings together make a visual contribution to this part of the centre of

Castletown because of their varied designs, and provide additional interest

because they contrast with most of the other, later, buildings around the

square”.

3.2 Number 5 was purchased by Castletown Town Commissioners (the

Commissioners) in 1951. The Commissioners leased the property to

RKC Holker Ltd in 1970 who then assigned the lease to Mrs L S Bruce by

deed in October 1971. The Lessee was responsible for repairs under full

repairing provision.

3.3 On 3 February 1984 number 5 was included in a listing of several properties

in the area and entered onto the Protected Buildings Register.

3.4 Castletown Town Commissioners advised your Committee that Minute

Books record that the property was repossessed from B J Bruce in September

1995 for non payment of rent. At that time responsibility for the property

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reverted to the Commissioners who agreed to grant permission to Ernst &

Young (who rented ground floor offices at no. 5) for a 6 month extension of

their lease whilst the Company sought alternative office accommodation.

Following the departure of Ernst & Young in 1996 the Commissioners took

steps to sell the property by tender.

3.5 In 1999 the Commissioners sold the property to Felspar Ltd who submitted

an application for Planning Approval and Registered Building consent on

6 January 2000. The application sought approval for ‘Refurbishment of and

extension to the Registered Building’, the proposed use of the site being for

‘Offices and ancillary accommodation’.

Approval granted on review on 30th June 2000 was given for ‘Alterations and

extensions to offices and flats’.

It is not clear why the permission granted by the Planning Committee on

review differed from the proposed purpose defined in the application. The

Department later advised that this was purely an error of description.

3.6 The Planning Application for alterations and extensions to offices and

ancillary accommodation submitted by Felspar Ltd (ref PA99/01772/GB) was

approved on review on 30 June 2000, subject to specified conditions and

modifications,

1. the development to commence before expiration of four years from

the date of the notice (which in this case meant commencement by

30 June 2004),

2. external finishes must match those of the existing building in all

respects,

3. prior to commencement of any works details of the brass handrail

must be submitted to and approved by the Planning Authority,

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4. prior to commencement of any works a photographic survey to be

undertaken to record all existing features of interest, in consultation

with the Conservation Officer,

5. details of the design of the front door to be discussed with and

approved by the Conservation Officer,

6. ground floor access and one toilet facility provided, able to be used

by wheelchair users.

Permission also relates to references contained on accompanying plans

submitted with the application and such references include -

1. strip off existing slates and re-use as far as possible,

2. existing roof timbers inspected, retained and treated as far as possible,

3. arches to remain and be refurbished,

4. window shutter boxes to be inspected, refurbished and retained as far

as possible,

5. existing windows to be refurbished as far as possible,

6. remove existing internal walls as required by structural engineer.

3.7 In January 2002 number 5 was sold by Felspar Ltd to Auctor Ltd, the current

owner with valid planning consent detailed in 3.6

3.8 The adjoining property (no 6 Balcony House) was purchased, without any

existing planning consent, by Auctor Ltd later in 2002. Auctor Ltd

subsequently entered into discussion with DLGE about a revised plan for

both properties.

3.9 On 3 June 2004 the Member for Castletown (the Hon J A Brown SHK) wrote

to the Conservation Officer (Mr S Moore) expressing serious concern about

the visual deterioration of no 5 the Parade and Balcony House, despite similar

previous correspondence to the Conservation Office, and requesting that the

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Department take appropriate action to ensure that the owners undertake their

statutory responsibility to improve the condition and appearance of the two

buildings.

3.10 On 24 June 2004 a Repairs Notice was served on Auctor Ltd in respect of no 5

the Parade. On 30 June 2004 planning consent granted under PA 99/1772,

with a condition that works must commence within four years, would have

lapsed.

3.11 On 15 September 2004 DLGE issued a Stop Notice to Auctor Ltd as

“unauthorised building and engineering operations had taken place at no. 5 the

Parade.”

3.12 In its written statement, Auctor Ltd stated that it “was left with no option but to

stop works on the building for fear of being prosecuted due to the Stop Order.” In

December 2004 a Petition of Doleance was taken out by Auctor Ltd against

the DLGE.

3.13 Following storms on the weekend of the 7th and 8th of January 2005, the

Hon J A Brown SHK, Member for Castletown, wrote by e-mail (dated

17 January 2005) to the Director of Planning (Mr I McCauley) expressing

concern and requesting that ”only the minimum amount of work is to be permitted

in relation to the removal of any of the structure of the property, especially until a full

structural report is carried out by a suitably qualified structural engineer.”

In his response dated 18th January 2005, Mr McCauley assured Mr Brown that

“the Department’s objectives in this case are to ensure that any works to the building

are the minimum necessary to rectify any dangerous elements and secure its future.”

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3.14 On Wednesday 19th January 2005 contractor JCK Ltd arrived on site and

completely removed the slates from all roof slopes.

PART 4

LEGISLATION

4.1 The Town and Country Planning Act 1934 - 1991 (the Act) vests in the

Department of Local Government and the Environment (DLGE) all matters

relating to town and country planning, including development planning and

control, and it was Section 12 of the Town and Country Planning Act 1981

that introduced the Protected Buildings Register and the concept of

Conservation Areas.

4.2 The Planning Committee was appointed by DLGE to consider planning

applications and is empowered to grant approval, conditionally or

unconditionally, and may refuse planning approval. An appeals procedure is

provided for under the Act, with appeals made to the Minister heard by an

independent inspector, appointed by the Council of Ministers, who then

makes recommendations to the Minister. Since the Town and Country

Planning Act 1999 was brought into effect, the Planning Committee is now

appointed by the Council of Ministers.

4.3 The Planning Committee also considers planning applications for registered

building consent in respect of buildings referred to in 5.1.

4.4 Where it appears to the Council of Ministers that an application for planning

approval raises considerations of general importance to the Island, or it is

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considered that an application ought not be considered by the Department,

the Council of Ministers may direct that the application be referred to it.

4.5 The Act was amended by the Town and Country Planning Act 1999.

Part 1, and Sections 43,44,45,47 and 48 of the 1999 Act came into operation on

1 April 2000, with the remaining provisions coming into operation on

1 November 2005.

4.6 All planning matters in respect of number 5 the Parade were subject to the

1991 Act.

Registered Building Consent

4.7 Under the provisions of the Act, the Planning Committee considers

applications for both planning approval and registered building consent. This

is explained in greater detail at 13.2.

PART 5

REGISTERED STATUS

5.1 Under the Town and Country Planning Act 1991 (the Act) the Department of

Local Government and the Environment (DLGE) has a duty to maintain a

register of buildings of special architectural or historic interest. This is called

the Protected Buildings Register. Under Section 14.1 of the Act, in considering

whether to enter a building in the Register the DLGE may take into account:

(a) any aspect in which its exterior contributes to the architectural

or historic interest of buildings of which it forms a part; and

(b) the desirability of preserving, on the ground of its architectural

or historic interest, any feature of the building consisting of a

man-made object or structure fixed to the building or forming

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part of the land and comprised within the curtilage of the

building.

5.2 Number 5 the Parade is part of a block listing of properties registered in 1984

under the provisions of the Town and Country Planning Act 1981 and the

Registered Building Regulations 1982. Included in that block listing was

Balcony House and number 6A.

5.3 In evidence, Mrs Hendy (former Conservation Officer) said that the building

was registered before she became Conservation Officer in 1995. She said

“ The ability to designate conservation areas was not operable at that time but

this was a means of protecting historic tracts of our environment for the

generations to come.’ 146TPC (Hansard Reference)

She also said

“The conservation area, all our conservation areas are identified because of

variety, character, evolution, what the history is, how areas have developed in

terms of the social development of the town. Okay, they may not be the most

pristine, wonderful buildings, but they make a statement about how the town

has developed, and so replacing them all with Queen Anne buildings, what

does that say about the Isle of Man? It says somebody does not like that corner

of Castletown”. 149TPC

5.4 In 2002 Auctor Ltd purchased a property adjoining number 5 (number 6 the

Parade, also known as Balcony House). This property was registered at the

same time as number 5 the Parade and included on the Protected Buildings

Register.

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PART 6

THE ROLE OF THE CONSERVATION OFFICER

6.1 The Building Conservation Officer post was created in 1995 and is an officer of

DLGE reporting to the Director of Planning and Building Control and is part

of the overall work of the Planning and Building Control Directorate, with

applications for registered building consent being considered by the Planning

Committee. The role is essentially one of providing assistance and advice on

conservation matters.

6.2 There is no specific requirement in the job description for the postholder to

have a qualification in architecture or conservation science, but rather retain

membership of professional organisations.

6.3 The role includes, as part of a wide range of responsibilities, the requirements;

to provide specialist advice on registered buildings to the

Department, relevant local authorities and the public,

to identify new, and monitor current, conservation areas,

to be responsible for the research into historical and architectural

aspects of buildings recommended for registration,

to advise on the need for consultants,

to maintain and extend the list of registered buildings,

to prepare development briefs for any new buildings or structures

proposed for conservation areas.

A full copy of the Job Description is shown at Appendix I

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6.4 The post was held by Mrs M Hendy from her appointment in 1995 until 2003.

Mr S Moore was appointed as her assistant in 2000 and subsequently as her

replacement in 2003. Both provided oral evidence to your Committee.

6.5 Mrs Hendy said in evidence that the role had developed since she started in

1995. At that time she was alone. She said

“I soon became aware that there was very little in the way of budget, very

little in the way of support, in the way of resources. That gradually improved.

I fought to get an assistant, who succeeded me as Conservation Officer, and

we were also successful in obtaining an administration assistant as well.”

and

“There was always, and probably still is, far more work to do than you are able

to get through, especially in terms of progressing registration……….although

we had registered a lot of buildings whilst I was there, there were still many

out there waiting to be protected.”

150TPC

6.6 Mr Moore gave evidence that the Department administers the system for

registration of buildings with currently around 250 buildings on the waiting

list for consideration. In the Isle of Man it is the same body (the Department)

that considers proposals for the registration of a building, maintains the list of

Registered Buildings and considers planning applications in respect of those

buildings. In addition in the Isle of Man there is an appeals procedure for

those who may object to the registration of a building.

6.7 When asked about the amount of work involved in the Conservation Section

and the number of officers to deal with queries, Mrs Hendy said

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“In terms of having, possibly, an independent committee who could steer that

and take that forward and register buildings on a much quicker basis, I think

that might be something that should be considered, because this is all absorbed

into the general day-to-day work of a Planning Department which, as you are

probably aware, has many draws on its time and is overtaxed.” 150TPC

PART 7

CIRCUMSTANCES LEADING UP TO THE PETITION OF DOLEANCE

7.1 Dr J Taylor, Director of Auctor Ltd, had purchased nos 1, 3 and 5 Queen

Street, Castletown, circa 1995/6 which were redeveloped for the purpose of

becoming Dr Taylor’s family home. These properties overlooked no. 5 the

Parade, a Registered Building, which was in a poor state of repair. Dr Taylor

said in evidence, “it was a derelict building opposite where I was going to live”. He

had made enquiries of the owners, Castletown Town Commissioners, in 1997

about a possible purchase so he could improve the view from his family

home. Number 5 was put out to tender in 1999 but his tender was

unsuccessful. The property was sold to Felspar Ltd.

7.2 In January 2002 number 5 was purchased by Auctor Ltd from Felspar Ltd,

who had obtained planning consent for use as “offices and flats” and for an

extension. Felspar Ltd had engaged MacOwan Collett to undertake a

preliminary structural appraisal report on their behalf.

7.3 Auctor did not have sight of the MacOwan Collett report until after

completion of the purchase. In evidence Capt Corlett said,

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“The report that came through to us in late January 2002, this one was the

first of us actually knowing the extent of the engineer’s view on the

building…” 6TPC

7.4 Burroughs Stewart Associates undertook a preliminary inspection in

February 2002 and a full inspection in March 2002 on behalf of Auctor Ltd. A

report on the condition of the structural elements of the building was

submitted to Auctor Ltd on 16 May 2002. This report included the statement

”The cracking below the adjacent window and the vertical render crack which

runs from the arch to eaves level about 250mm from the gable all combine to

indicate that the structural integrity of the pier and arch have been

compromised. This combined with the potential threat of vehicle impact

damage will eventually require the corner to be re-built using a steel or

concrete core in the pier.”

7.5 Following the purchase of number 5, and later in 2002, the adjoining property

(no 6 Balcony House) was purchased.

7.6 Auctor entered into discussions with the Department of Local Government

and the Environment (DLGE) about a revised plan for both properties. From

the written submission by Auctor Ltd, they state

“the combined site offered many opportunities for creating an holistic

architectural design combining the historic buildings fronting onto the Parade

with a state of the art office building to the rear”.

.

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7.7 On 30 June 2004, the four year period in which works must be commenced

under the original planning consent granted to Felspar Ltd, would have

lapsed.

7.8 On 9 September 2004 a Planning appeal hearing (an appeal against approval

for conversion to four flats and two maisonettes at 1, 3 and 5 Queen St) was

heard which included an application for the use of the rear of Balcony House

as ancillary car parking space for the Queen Street flats development.

7.9 On the same day Castletown Heritage contacted the Director of Planning to

advise that works were being carried out at number 5 the Parade.

“The Vice-Chairman (Mr Kewley) telephoned the Director of Planning

(Mr McCauley) from Government Offices just before he (Mr Kewley) went

into the hearing, in the presence of Miss Corlett, the planning officer at the

appeal. The Chairman of Castletown Heritage (Sir David Wilson) attended

the Parade and saw floorboards and window-shutters being removed.”

7.10 On 15th September 2004 the Department of Local Government and the

Environment issued a Stop Notice and Enforcement Notice and a letter

advising of this decision was delivered to Auctor Ltd by hand,

A copy of the Stop Notice is included at Appendix M

7.11 A Petition of Doleance dated 15 December 2004 was filed by Auctor Ltd (the

Petitioner) against the DLGE , in part that

“it commenced the development of the premises this year (2004) and that after

the development of the premises had been commenced the Department of Local

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Government and the Environment on 15 September 2004 issued a Stop Notice

and an Enforcement Notice without any lawful justification for doing so.”

The Petition of Doleance concluded

Wherefore your Petitioner therefore seeks a declaration:

(1) that the planning permission has not expired and that the development

of the premises commenced pursuant to the conditions of the 2000

permissions;

(2) that the Stop Notice and the Enforcement Notice dated

15 September 2004 are unlawful and ultra vires the DLGE

and an Order

(3) that the damage suffered by your Petitioner by reason of the Stop

Notice and the Enforcement Notice be assessed and paid by the DLGE;

and

(4) that the DLGE pay the Petitioner’s costs on an indemnity basis.

The Petition of Doleance was settled on 31 May 2006 with an Order of the Court

confirming a settlement payment in favour of Auctor Ltd.

PART 8

CIRCUMSTANCES LEADING UP TO THE REMOVAL OF THE ROOF

8.1 Storms and high winds overnight on Friday 7th and early Saturday

8th January 2005 resulted in the Fire Services being called by a neighbour to

deal with a loose chimney pot on the property on Saturday 8th. Photographic

evidence provided by the Chief Fire Officer at the time of the removal of the

pot showed the roof slates to be intact.

Copy of the photographic evidence is included at Appendix N

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In evidence Mr Draper, Chief Fire Officer, stated that gust speeds recorded on

that morning were 91 mph at Ronaldsway Airport. He said

“So you are well into hurricane force winds, which are 74 mph”

Mr Draper also said that there are huge variables in how wind will impact on

property. He did confirm in written evidence that Castletown Station were

turned out on only one other occasion, on 8 January 2005, during those

storms.

A copy of the wind speeds and wind gust speeds recorded by the

Ronaldsway Met Office is included at Appendix N

8.2 Between 11 and 12 January 2005 some slates were blown from the roof. The

highest gust speed recorded at Ronaldsway was 64 mph on 11 January 2005

and 72 mph on 12 January 2005.

8.3 A survey report by Burroughs Stewart Engineers was prepared for Auctor

Ltd on 13 January 2005 following an inspection on 12 January.

Copy at Appendix H

8.4 On 13 January 2005, at the request of Auctor Ltd, Mr J Howie, Environmental

Health Officer with responsibility for Housing Enforcement, met with

officials of Auctor Ltd to view the damage to the roof. In evidence Mr Howie

said,

“The slates were extremely large and I suspected the roof as a whole was in a

state of disrepair.”

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In reply to the question, ‘how many slates would you say had blown off?” he

said,

“ I would be guessing…fifteen, a dozen, fifteen, something like that”.

In reply to a question of how many buildings had been affected by falling

slates, he said

“That was the only one that I received a complaint about, that I was asked to

investigate”. 41TPC

He said that he had been called by Mr P Hornsby, whom he believed to be the

Health and Safety adviser for Auctor Ltd.

8.5 At 16.50 on 13 January 2005 the Department of Transport received a request

from Auctor Ltd for an emergency road closure, which was implemented

‘for reasons of public safety’ at 18.00. This was followed by a further request to

erect scaffolding on the highway to undertake remedial work which was

made verbally to the Director of Highways, Mr B Hannay, at 19.00 but

refused until confirmation that the work could be carried out was received.

On the following morning Mr Hannay set in hand a request to the property

owners for a structural report to confirm that the building was unstable.

8.6 On 14 January 2005 Mr Howie confirmed his advice to Auctor in writing ,

“I must insist, therefore, that you carry out all necessary remedial works

immediately to render the main roof and chimney stack safe. Bearing in mind

the current planning status of the premises, you must liaise with the Director

of Planning and Building Control prior to any works of a substantial nature”

8.7 There was a telephone conversation on 14 January 2005 between Capt Corlett

and Mr McCauley, confirmed by fax from Capt Corlett, a copy of which is

shown at Appendix L. It was agreed that representatives of Curtins

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Engineers and Burroughs Stewart Engineers would meet to discuss

appropriate action. Capt Corlett also referred in that fax to the pier, stating

“…Auctor have an opinion that suggest the general public are at risk….’ In his

response Mr McCauley made it clear that the extent of works would not be

based on his opinion but on the professional advice of the Department’s

retained structural Engineers.

8.8 On 17 January 2005 Mr J Ashton, roofing contractor, inspected the roof. In an

undated letter he wrote;

“I do not think retiling the hole and leaving the rest of the roof in its current

state will be sufficient to secure the roof and ensure it does not again become a

danger to the public. I therefore recommend the complete removal of all the

existing slate and roof battens to allow rotten wood and rusted fixing nails to

be removed.”

8.9 There is no evidence to suggest that any other professional advice was sought

regarding the roof, nor any evidence to suggest that the integrity of the pier

had been compromised by the actions of the storm. We are aware that

Mr Stewart of Burroughs Stewart Associates visited the site on

12 January 2005 and expressed concern about “the roof bounding Queen Street,

the adjacent chimney stacks and the south east corner and adjacent walls” in his

letter to Auctor dated 13 January 2005. However this letter did not contain

specific advice regarding the removal of the roof. A further letter from Mr

Stewart to Auctor Ltd dated 17 January 2005 addressed issues only

concerning the proposed demolition of no. 5 the Parade.

Both letters are included at Appendix H

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8.10 On 19 January 2005 JCK Ltd arrived on site and removed slates completely

from all roof slopes.

8.11 Your Committee is concerned that whereas Capt Corlett stated in his fax

“While the engineers come to their conclusion, Auctor would carry out the

works as directed by the Environmental Health Officer Mr J Howie in his letter

14.1.05 where he requested immediate action to render the main roof and

chimney stacks safe, thus limiting the danger to pedestrians.”

he also stated that

“..I was disappointed with your threat that left little doubt that Auctor would

be prosecuted should it do any works that could be remotely suggested were

beyond what is required to (in your opinion) secure the building….”

Mr McCauley responded by faxed letter confirming that Curtins had been

instructed to contact Mr Stewart at the earliest opportunity. Mr McCauley

also stated that he did not accept that his cautioning constituted a threat of

prosecution. He stated

“As I explained I am required to advise you of the implications of carrying

out works beyond those needed to secure the building and protect the public. I

also stated that the extent of works would not be based on my opinion but on

the professional advise (sic) of the Department’s retained structural engineers

Curtins.”

8.12 Auctor did not carry out immediate action of a temporary nature while the

engineers came to their conclusion. Although Mr Howie later gave evidence

that

“I was satisfied that the roof coming off in total was the way forward…”

(40 TPC),

that was not what he advised on the 14 January 2005.

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We consider that it would have been appropriate at that time to have put in

place an immediate temporary measure pending the meeting of the

engineers. Had Mr Howie been of the opinion at that time that the complete

removal of the roof been the only solution, we feel that it is reasonable to

assume that he would have issued that precise instruction. Consequently the

‘immediate’ concerns of Auctor as expressed in Capt Corlett’s fax were not

actioned until five days after the damage had occurred.

PART 9

CIRCUMSTANCES FOLLOWING THE REMOVAL OF THE ROOF

9.1 Following the storm damage, but prior to the removal of the roof slates,

Burroughs Stewart’s survey report, referred to in para 8.3, raised some

concerns about the state of the roof timbers but emphasised “our major

concern” being the vulnerability of the pier against vehicular impact. The

report also referred to cracks in the pier, stating “Although the related cracks

noted in our 2002 report were filled with dirt and old paint there is now some slight

opening of these cracks indicating that outward movement of the pier has occurred in

both major planes”.

9.2 With the complete removal of the slates on 19 January 2005, the interior of the

structure was left exposed.

9.3 In its written submission Auctor Ltd stated that

“ On Wednesday 19 January 2005 Auctor’s subcontractors started work

removing the roof slates. With the work barely started the Conservation

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Officer, Mr Stephen Moore, arrived in Castletown and informed Auctor’s

representative that they had undertaken unnecessary work and so would be

prosecuted”.

9.4 A Structural report was prepared by Curtins Consulting for the Department

dated 24 January 2005. This report contained the recommendation

“Water and damp ingress into the property must be prevented. The roof coverings

must be reinstated and porous external render replaced”.

A copy of this report is included at Appendix H

9.5 Auctor Ltd stated in its submission that it

“in consultation with the Planning Department, put in place protective

measures to ensure that the structure did not further deteriorate”.

9.6 On 4 February 2005, Mr McCauley wrote to Auctor’s legal adviser to confirm

that

“the (Planning) Committee resolved that on the basis of new information, it

appears that the planning permission granted under reference 99/01772/GB

has been implemented. Accordingly the Committee resolved that the Stop

Notice dated 15 September 2004 be withdrawn”.

9.7 In that same letter dated 4 February 2005 Mr McCauley confirmed the

Committee’s concern “regarding the condition of the property as a result of the

recent removal of the roof slates which has left it open to the elements”.

24

9.8 In response to a question concerning whether or not any measures had been

put in place to monitor any movement in the cracks identified in March 2002,

Mr P Bergin (Burroughs Stewart) said

“No, as I said, the Report was from a purely visual inspection from having

seen it March 2002 to having seen it in January 2005”.

9.9 In evidence Mr N Taylor said when asked

“On 1st March, we then said we do agree that temporary protection should be

put in and we agreed that we would put down this screen sheeting at the level

of the attic in order to stop water ingress”.

9.10 In a later letter dated 30 May 2006 Mr McCauley advised your Committee

that “At this stage I am not satisfied that the measures in place are preventing

water from entering the structure of Balcony House”.

9.11 On 7 March 2005 a meeting and site visit was arranged by Auctor with

representatives of the DLGE for discussion on the current state of the building

and proposals for its future.

9.12 On 9 May 2005 Mr Moore wrote to Capt Corlett, Director of Auctor, by e-mail

advising,

“The recent weather has increased my concerns that the protection as

currently offered by the insertion of the visqeen (sic) is not sufficient to

adequately protect the building”.

9.13 On 6 June 2005 a Planning Application by Dr J Taylor (PA03/803) was

approved on appeal for “conversion to four flats and two maisonettes, 1, 3

25

and 5 Queen St, Castletown”. An Agreement made under Section 18 of the

Town and Country Planning Act 1991, provided 3.5 car spaces for the Queen

St development at the rear of Balcony House and 1 space at Farrants Way

leased from Castletown Town Commissioners.

9.14 At the July 2005 sitting of Tynwald a Motion by the Hon J A Brown SHK to

appoint a Select Committee was approved.

9.15 On 28 November 2005 a Planning Application was submitted on behalf of

Auctor Ltd for planning approval and registered building consent for

‘a commercial development comprising:

1. The restoration and refurbishment of Balcony House

2. The refurbishment of the side annex to Balcony House including a single

storey upward extension

3. The demolition of no 5 the Parade and its replacement with a new three

storey building

4. The demolition of a single storey extension to the rear of Balcony House

and its replacement with a new three storey building extending behind

no. 5 the Parade’.

9.16 Your Committee was advised that notices offering no 5 the Parade and

Balcony House for sale were posted on 28 April 2006. At the time of writing

this remains the case.

26

PART 10 CHRONOLOGY OF EVENTS

10.1 The following is a chronological overview of relevant events, issues and

actions

(1) 1951 Castletown Town Commissioners(CTC) purchased no. 5

the Parade

(2) 1970 No. 5 was leased by CTC to JCK Holker Ltd for 21 years

(3) Oct 1971 Lease was assigned to Mrs L S Bruce, Flats 1 and 2 sublet

as residential accommodation, ground floor offices sublet

to JCK Holker Ltd.

(4) 1984 No. 5 was included in a block listing of properties and

placed onto the Protected Buildings Register

(5) Sept 1995 No. 5 was repossessed for non payment of rent and

returned to responsibility of the owner, CTC

(6) c1996 Dr Taylor purchased 1, 3 and 5 Queen Street to develop

into a private residence.

(7) 1998 Dr Taylor made enquiries via his advocate to find out

who owned no. 5 the Parade, ”because if I was going to set

about to re-gentrify that corner of Castletown, obviously, I did

not want to live opposite a derelict building.” His advocate

advised him that ”he had been in touch with Castletown

Commissioners and they were not interested in selling it.”

129TPC

(8) Nov 1999 In 1999 CTC put no. 5 out for sale by tender. It was

purchased by E J Sheridan Ltd, subsequently Felspar Ltd.

In November 1999. A preliminary structural appraisal

was undertaken on their behalf by MacOwan Collett

27

(9) Jan 2000 Planning application 99/1772 was submitted by Felspar

Ltd for ‘Refurbishment of and extension to the Registered

Building’, the proposed use of the site being for ‘Offices and

ancillary accommodation’.

(10) June 2000 Planning application 99/1772 was approved on review for

use as offices and flats, and for an extension

(11) Jan 2002 No. 5 was sold by Felspar Ltd to Auctor Ltd. Auctor Ltd

did not have sight of the MacOwan Collett report until

after completion of the purchase.

(12) During

Feb and

Mar 2002

Burroughs Stewart Associates undertook a preliminary

inspection in February 2002 and a full inspection in March

2002 on behalf of Auctor Ltd. A report on the condition of

the structural elements of the building was submitted to

Auctor Ltd on 16 May 2002. This report included the

statement, ”The cracking below the adjacent window and the

vertical render crack which runs from the arch to eaves level

about 250mm from the gable all combine to indicate that the

structural integrity of the pier and arch have been compromised.

This combined with the potential threat of vehicle impact

damage will eventually require the corner to be re-built using a

steel or concrete core in the pier.”

(13) Later in

2002

Balcony House was placed on the market and Auctor was

successful in purchasing it. Auctor entered into

discussions with the Department of Local Government

and the Environment about a revised plan for both

properties. From Auctor Ltd submission, “the combined site

offered many opportunities for creating an holistic architectural

design combining the historic buildings fronting onto the

28

Parade with a state of the art office building to the rear”.

(14) 3 June

2004

The Member for Castletown (the Hon J A Brown SHK)

wrote to the Conservation Officer expressing concern

about the state of disrepair to No. 5 The Parade and

Balcony House, and requesting that the Department takes

“immediate and robust action to ensure that these two

important buildings are safeguarded and their appearance

improved, if necessary utilising the legislative powers available

to the Department under the Town and Country Planning Act

1991”.

(15) 2002 to

June 2004

During the months following the purchase of Balcony

House, as stated in a written submission by Auctor,

“Auctor now opened discussions with the Planning

Department to see how the existing permission could be altered

or extended to take account of the new opportunities available.

It was likely that the new designs would require an additional

planning application, but there would be considerable overlap

between the two permissions. This was especially true

considering the fact that both applications would seek to bring

no. 5 The Parade back into good use.”

The submission also stated, “…major works on no. 5 The

Parade had to be limited; extensive renovation work was being

undertaken on Nos. 1,3 and 5 Queen Street….involving

scaffolding, cranes and lifting equipment being positioned in

Queen Street partially blocking the road and pavement.”

Auctor also stated, “Unfortunately at this time Auctor found

the cooperation of the government departments increasingly

lacking….”

29

(16) 19 Dec

2002

Mrs Hendy (Conservation Officer at that time) wrote to

Auctor Ltd regarding concerns about the condition of no.

5 the Parade and Balcony House – “the condition and

neglected appearance of both of the above properties has, during

recent months, been the subject of a good deal of comment to

this Department, and whilst there have been verbal assurances

from Mr Hill (Mannarc Ltd) and Mr Tony Corlett your

Company’s representatives, the matter continues to give cause

for concern’.

(17) 4 June

2004

Capt Corlett wrote to Mannarc Design with the

instruction “The commencement of works at the

aforementioned (5 the Parade) development is due to start in

the next week. Could you please ensure that the enclosed

commencement of works card (notification to Building

Control) is forwarded to the appropriate department?”

(18) 24 June

2004

A Repairs Notice was served in respect of no. 5 requiring

1.repair to front door of no. 5

2.broken second floor window allowing weather ingress

as well as pigeons etc.

3.two ground floor windows and one first floor window

boarded up

4.broken roof light allow weather ingress as well as

pigeons etc.

(19) June 2004 Planning consent 99/1772 (approved in June 2000 with a

condition that works must commence within four years)

would have lapsed on 30 June 2004.

30

(20) 7 July

2004

Meeting between Auctor Ltd, Mannarc Design Ltd and

Planning officers to discuss the Repairs Notice and

proposals for the site. It was agreed to undertake a site

visit, subsequently held on 4 August 2004. At this time the

four year period in which works were to commence

would have lapsed.

(21) 4 August

2004

Site meeting attended by Mr McCauley and Capt Taylor

following which Mr McCauley confirmed his views by

letter. (see (26))

(22) 4 August

2004

Mr Martin Hill, Mannarc Design, wrote to the Acting

Assistant Planning Secretary “I am afraid that due to an

administrative oversight in my absence, compounded by

the relocation of our office on my return, this instruction

(submission of commencement of works cards) has

slipped through the net”.

(23) 5 August

2004

Mr S Moore, in his capacity as Conservation Officer,

wrote to Auctor Ltd advising that “Further to our recent

correspondence regarding the issue of a Repairs Notice on the

above properties (no. 5 the Parade and Balcony House) and our

subsequent site meeting yesterday, we write to inform you that

the steps required by the notice appear to have been taken and

that the notice is now withdrawn.”

(24) 6 August

2004

The Secretary, Planning Committee, wrote to Auctor Ltd

advising that ”the Department was advised that unauthorised

building and engineering operations had taken place at No. 5

The Parade” and that “It has accordingly been resolved that a

Stop Notice should be issued preventing any further such

operations from taking place.”

31

(25) 13 Aug

2004

E mail from Capt Corlett to the Conservation Officer

confirming that “works on no 5 had been commenced thus any

planning approval had been activated”. He also advised that

works ”are currently on stop, verbally ordered by you on behalf

of DOLGE”

(26) 16 Aug

2004

Mr McCauley wrote to Auctor Ltd advising that the

Department “would seek to retain the whole of No 5 The

Parade and Balcony House, with the exception of the

modern/storage area built on to the rear of Balcony House.”

The letter also advised that works mentioned in the e-mail

of the 13th “do not constitute a commencement insofar as such

works are not directly associated with the approved scheme.”

Letter included at Appendix J to this Report.

(27) 18 Aug

2004

Mr S Rowaichi, Senior Building Control Officer, visited

the site (no. 5 the Parade) “to see the extent of works carried

out and to ascertain if the works carried out constitute a

building work under the definition of building works in the

Building Regulations 1993.”

His statement of that visit is included at Appendix K

(28) 9 Sept

2004

A Planning appeal hearing against approval for

conversion to four flats and two maisonettes was heard in

respect of nos. 1, 3 and 5 Queen St, and an application

under Section 18 of the 1991 Act for the use of the rear of

Balcony House as ancillary car parking space for that

development. (see (47))

(29) Nos 1, 3 and 5 Queen St were originally to be redeveloped

as a residence for Dr Taylor, Director of Auctor Ltd, but

the Planning Application was subsequently amended for

32

development as flats.

(30) 9 Sept

2004

Castletown Heritage contacted the Director of Planning to

advise that works were being carried out at no 5 the

Parade

(31) 15 Sept

2004

The DLGE issued a Stop Notice and Enforcement

Notice as “unauthorised building and engineering operations

had taken place at no 5 the Parade….”

(32) Dec 2004 A Petition of Doleance dated 15 December 2004 was filed

by Auctor Ltd against the DLGE, in part that “it

commenced the development of the premises this year (2004)

and that after the development of the premises had been

commenced the Department of Local Government and the

Environment on 15 September 2004 issued a Stop Notice and

an Enforcement Notice without any lawful justification for

doing so.”

(33) Fri 7 Jan

2005

Storms and high winds overnight Friday (7th) into

Saturday morning (8th). The Chief Fire Officer gave

evidence that gust speeds of 91 mph were recorded at

Ronaldsway on the morning of 8th January 2005

(34) Sat 8 Jan

2005

Castletown Fire Station was mobilised to attend no 5 to

deal with loose chimney pots. The call was made to the

emergency services by a neighbour in Queen Street

(35) 11-12 Jan

2005

Slates were blown from the roof due to high winds. The

highest gust speed recorded at Ronaldsway was 64 mph

on 11 Jan and 72 mph on 12 Jan

(36) Thurs 13

Jan 2005

At the request of Auctor Ltd Mr Howie, Environmental

Health Officer, Housing Enforcement Section,

Department of Local Government and the Environment,

33

met on site with officials of Auctor Ltd. DoT received a

request for an emergency road closure which was

implemented at 18.00 for reasons of public safety.

Following this a further request to erect scaffolding on the

highway to undertake remedial work was made verbally

to the Director of Highways, Mr B Hannay, at 19.00 but

refused until confirmation that the work could be carried

out was received.

(37) Friday 14

Jan 2005

Mr Howie confirmed to Auctor Ltd in writing his on site

advice to make the roof safe. He wrote

“I must insist, therefore, that you carry out all necessary

remedial works immediately to render the main roof and

chimney stack safe. Bearing in mind the current planning

status of the premises, you must liaise with the Director of

Planning and Building Control prior to commencement of any

works of a substantial nature.”

(38) 17 Jan

2005

Capt Corlett wrote to Mr McCauley by faxed letter

confirming their conversation of 14 Jan when it was

agreed that a meeting would be arranged with Mr Fulton

of Curtins Engineers and Mr Stewart of Burroughs

Stewart Associates “to discuss the most appropriate action.

This should all be possible within a couple of days.”

Capt Corlett also stated in that letter “..I was disappointed

with your threat that left little doubt that Auctor would be

prosecuted should it do any works that could be remotely

suggested were beyond what is required to (in your opinion)

secure the building….”

Copy of this letter at Appendix L

34

(39) 17 Jan

2005

Mr McCauley responded by faxed letter confirming that

Curtins had been instructed to contact Mr Stewart at the

earliest opportunity. Mr McCauley also stated that he did

not accept that his cautioning constituted a threat of

prosecution. He stated “As I explained I am required to

advise you of the implications of carrying out works beyond

those needed to secure the building and protect the public. I also

stated that the extent of works would not be based on my

opinion but on the professional advise (sic) of the Department’s

retained structural engineers Curtins.”

Copy of this reply at Appendix L

(40) 17 Jan

2005

Hon J A Brown SHK wrote to Mr McCauley urging that

only the minimum amount of work be permitted in

relation to removal of any of the structure.

(41) Mr McCauley responded by e-mail on the following day

stating “please be assured that the Department’s objectives in

this case are to ensure that any works to the building are the

minimum necessary to rectify any dangerous elements and

secure its future,”

(42) Mon 17

Jan 2005

Mr J Ashton, roofing contractor, inspected the roof. In an

undated letter (not a financial quotation) he wrote

“I do not think retiling the hole and leaving the rest of the roof

in its current state will be sufficient to secure the roof and

ensure it does not again become a danger to the public. I

therefore recommend the complete removal of all the existing

slate and roof battens to allow rotten wood and rusting nails to

be removed.”

35

(43)

Wed 19

Jan 2005

Contractor JCK Ltd arrived on site and completely

removed the slates from all roof slopes.

(44) Wed 19

Jan 2005

In its written submission Auctor Ltd stated that

“ On Wednesday 19 January 2005 Auctor’s

subcontractors started work removing the roof slates.

With the work barely started the Conservation Officer,

Mr Stephen Moore, arrived in Castletown and informed

Auctor’s representative that they had undertaken

unnecessary work and so would be prosecuted”.

(45) 26 Jan

2005

Mr Hannay said, “A decision was made on 26th January to

remove the closure because it was causing problems in

Castletown.” and, “When we got the report from

Burroughs Stewart Associates, acting for the property

owners, which stated that ‘Whilst the property is very

dilapidated, it is not presently in a dangerous structural

condition…’ we withdrew the road closure.”

53TPC

(46) 4 Feb

2005

Mr McCauley wrote to Auctor’s legal adviser to confirm

that the Planning Committee had resolved to withdraw

the Stop Notice and Enforcement Order.

(47) 6 June

2005

By order of the Minister approval was granted for

conversion of nos 1,3 and 5 Queen St. Covenanted by an

Agreement made under Section 18 and 19 of the Town

and Country Planning Act 1991 3.5 car spaces to the rear

of Balcony House and 1 space at Farrants Way leased

from Castletown Town Commissioners to be provided.

(48) July 2005 Tynwald approved the establishment of a Select

Committee

36

(49) 28 Nov

2005

A Planning Application was submitted on behalf of

Auctor Ltd for planning approval and registered building

consent for

‘a commercial development comprising:

1.The restoration and refurbishment of Balcony House

2. The refurbishment of the side annex to Balcony House

including a single storey upward extension

3. The demolition of no 5 the Parade and its replacement

with a new three storey building

4. The demolition of a single storey extension to the rear

of Balcony House and its replacement with a new three

storey building extending behind no 5 the Parade’.

(50) Nov 2005 Consideration was given to the plans shown in (49) by

Castletown Town Commissioners(CTC). Quoting from a

prepared statement by CTC presented by the Chairman

of CTC to the Select Committee in Feb 2006, he said,

“the Commissioners agreed to support the plans, including

the demolition and rebuilding of 5 The Parade with exact

same façade. This change in decision was primarily due to

5 The Parade having had a further year of deterioration of

its structure, due to on-going mortar penetration and

damp penetration.”

Referring to a suggestion by CTC that approvals should

be limited to two years, the statement went on,

“…the Commissioners can foresee a similar scenario

occurring with this property as has happened with No. 1-5

Queen Street, also owned by Dr Taylor, whereby work has

been on-going for at least six years, as the owners keep

37

amending the plans until they get what they want.”

58TPC

(51) 7 March

2006

In a letter dated 7 March 2006 to the Committee, Auctor

Ltd confirmed that the following work had been carried

out prior to 30 June 2004

Initial stripping out for structural surveys

Test drilling and further opening up

Removed stud partitions and rubble

New drains installed

200 metre trench dug for power supply

PART 11

THE MOTION

11.1 Our remit was to investigate the circumstances of the current condition of no.

5 the Parade and the actions of parties who may have contributed to the

current condition, which in itself was an onerous task. Our remit also

required us to report on whether legislative changes should be made in

respect of the process for the registration of properties and the Planning

process in general.

11.2 The volume of written evidence, submissions and correspondence which

emerged from our enquiries was not insignificant and it was a painstaking

task to investigate all the evidence to ensure that matters relating specifically

to the Motion were identified. Our deliberations were compounded by legal

proceedings. Consequently we were unable to present our Report in the

prescribed time. For convenience, your Committee has included in the body

38

of the Report, what we are satisfied is a chronological overview of relevant

matters.

11.3 Your Committee agreed to address the requirements of the Motion in two

distinct parts, being

(a) matters relating specifically to no. 5 the Parade, and

(b) matters relating to legislation and its effect on the

process for the registration of buildings in general and

any consequential planning matters

PART 12

MATTERS RELATING TO No 5 THE PARADE

12.1. Background

(a) We heard evidence that when the property was purchased by Felspar Ltd in

1999 the then Conservation Officer, Mrs Hendy, was approached by

Mr Tony Kellett, a chartered architect acting for Felspar Ltd, to discuss what

might be possible and viable within existing policy concerning development

of a registered building. This would indicate that the owner at that time was

aware of its responsibilities and sought appropriate advice. The conditions of

a subsequent Planning Approval resulted from those discussions which also

included the Development Control Officer.

(b) It was only when the Conservation Officer heard that the property had

changed hands that contact was made with the new owner, Auctor Ltd, to

remind them of the responsibilities of ownership of a registered building.

39

(c) We are concerned that Auctor Ltd did not have sight of the MacOwan Collett

report until after completion of purchase. It seems rather strange that a

prospective purchaser would not undertake their own enquiries into the

structural state of the building for what was a significant investment both in

terms of the purchase of the property and any remedial work required, nor

have an up to date structural survey done which may be considered to be

normal practise when a property is purchased.

(d) Whilst we understand that work was delayed due to the period of

development of nos. 1, 3 and 5 Queen Street opposite, we are concerned that

there were indications made to us that no. 5 may have been used as a store

during that period. In a Press Release issued by the Hon J A Brown SHK on

7 June 2005, he states

“The two buildings in question are seemingly being allowed to fall into

disrepair a state which is totally unacceptable with at least one of the

properties is being used as a builders store and workmen’s rest room and has

been used for this purpose for some period of time.”(sic)

Castletown Town Commissioners also stated that Auctor “….used it as a

temporary site office in connection with the work taking place on No. 1-5

Queen Street” 58TPC

(e) We are concerned that the purchaser of a registered building should be quite

clear of their responsibilities. Searches normally undertaken by legal advisors

(including enquiries made with the DLGE, Local Authorities, utilities etc.)

40

provides safeguards and identify any matters affecting a purchase. We

consider it may be appropriate for this matter to be brought to the attention of

the Isle of Man Law Society for the benefit of its members.

(f) In the case of no. 5 the Parade, we heard evidence from Mrs Hendy that

“it is quite common practice to consult with the Department to see what the

implications of ownership are and what are the responsibilities for the owner

and his agents.”

We are concerned that whilst the Department may consider it common

practice to contact the Department that clearly did not happen when Auctor

Ltd purchased no. 5. A meeting was subsequently arranged with Capt Corlett

and Mr Martin Hill of Mannarc Design, with Mrs Hendy and Mrs Mullen.

Mrs Hendy said

“It had gone quiet, in a way, but we wondered what was going to happen to

it in view of the use of the building. That meeting was set up, I think, after

Christmas – I think it was Christmas 2003 – really to discuss with the

owner, or the agents for the owner, what their intentions were, because we

were starting to have reports about misuse, possible damage, and we really

had not had any communication at all prior to Auctor obtaining the

building.” 147TPC

Indeed, when the storms occurred in January 2005, Auctor Ltd again did not

consult with the Conservation Officer, but with other Government agencies. It

is only a matter of conjecture why this occurred and not for your Committee

to speculate.

41

(g) Your Committee notes that only the prospect of a Planning Application raised

concerns with the Department during 2003 and 2004, when it had been a

registered building since 1984 without any concerns being raised during that

twenty year period.

(h) Your Committee acknowledges that the development of nos 1, 3 and

5 Queen Street (because of the need to close part of the highway, erect

scaffolding, and because of the planning process) delayed the commencement

of work on no. 5 the Parade. Auctor Ltd stated in evidence (chronology

section (15)) that, following its purchase of Balcony House in early 2002,

discussions commenced with the Department to see how the existing

permission (for no. 5) could be altered or extended, or a new application, to

take account of both properties.

When there were discussions it would appear that they were ineffective as

the necessity for the Department to issue a Repairs Notice over relatively

minor issues, the Stop Notice which was subsequently withdrawn, and

subsequent legal action by the owners, appears to have exacerbated the

relationship between Auctor and the Department which culminated in the

removal of the roof without waiting for the outcome of the agreed meeting of

the respective engineers.

(i) Each party appears to apportion blame to the other and there appears to have

been an inability for the owner to recognise that the DLGE has a statutory

responsibility to ensure the protection of registered buildings and

conservation areas, and to control development and planning. This caused a

problem for the two parties to enter into constructive dialogue. Your

42

Committee is of the opinion that early constructive dialogue, and particularly

at the time of the storm in January 2005, could have prevented this

unsatisfactory situation.

(j) Your Committee therefore recommends that there should be in place as a

matter of policy a means of ensuring that the purchaser of a registered

building is made aware of their responsibilities, both for dealing with

planning matters and for ongoing maintenance of the building, and that the

Department should be more proactive in ensuring that such a policy exists.

We conclude that had such a policy been in existence, clearly identifiable

consultation with the Conservation Office following the storm damage would

have taken place and a more satisfactory outcome could have been reached.

12.2. The Removal of the Roof

(a) Your Committee considers that the events of the weekend of 7th and

8th January 2005 appear to have provided a fortuitous opportunity for the

owner to address the stalemate caused by the Stop Notice and resultant legal

action. Having heard evidence from the Chief Fire Officer and Mr J Howie,

concerning the number of incidents over that weekend, we are not convinced

that the storm necessitated the action taken by Auctor Ltd in removing the

roof.

(b) We found little evidence to support a view that to remove an entire roof

when a few slates had been dislodged was necessary. We heard from the

Chairman of Castletown Town Commissioners, for example, that several

properties had suffered similar damage but were repaired quickly. We also

43

heard from Mr Howie that “this was the only one (storm damage incident) that I

had received a complaint about, that I was asked to investigate.” 41 TPC

(c) We are concerned by evidence from Mr P Bergin of Burroughs Stewart

Associates that cracks had widened between their reports in March 2002 and

January 2005, suggesting that “the corner of the building has been moving”. This

opinion was made “through visual examination”. If the cracks, and the

integrity of the pier, had been of major concern at the time of the March 2002

inspection, should not those cracks have been properly measured and

monitored for movement. What had been referred to as “potential” threat of

vehicle impact in March 2002 had surprisingly become a major source of

worry and concern for public safety following the storm in January 2005. We

heard no evidence to suggest that the pier was in danger of collapse because

of the storm, nor had it been found necessary to prop or strengthen the pier

corner following the report in March 2002 or indeed at any time since then

and the writing of this Report.

(d) Your Committee is concerned that the owner did not contact the Building

Conservation Officer immediately after the storm damage for advice on

appropriate action. However, other agencies including Environmental

Health, the Health and Safety Inspectorate and the Highways Division were

called. By involving agencies other than the Conservation Office, who might

well have offered a different opinion on suitable action, those agencies were

placed in a position whereby they had a statutory requirement to offer the

advice that they did. No instruction was made by these agencies to remove all

the slates.

44

(e) We have already voiced our concern about the apparent inability of the owner

to conduct constructive dialogue with the Department and this was apparent

following Mr Howie’s visit on 14 January 2005. Section 37 to 43 of the

Chronology shows that discussion took place, and agreement reached, that

engineers would liaise on a suitable solution. Instead of awaiting the outcome

of that professional advice, Auctor then proceeded to engage a roofer for

advice and engaged a firm to remove all the slates.

(f) In the absence of strong evidence to the contrary, your Committee concludes

that the action taken by the owner is questionable.

12.3 The Continuation of the Exposure of the Structure

(a) The Director of Planning & Building Control advised your Committee on

30 May 2006 that the matter is still the subject of discussion. He also advised

that “at this stage I am not satisfied that the measures in place are preventing water

from entering the structure of Balcony House”. We are concerned that more than

twelve months after the installation of the temporary covering there is still no

agreement over its suitability. Whilst we acknowledge that a further planning

application has been made for both number 5 the Parade and Balcony House,

and an application for the deregistration of number 5, we find it inexcusable

that the Department has permitted this situation to prevail when it has a

responsibility and the means of enforcement and the means to undertake

work and recover those expenses from the owner under the Town and

Country Planning Acts 1991 and 1999.

45

(b) We recommend that immediate measures must be put in place by the owner,

agreed with the Department, to guarantee that neither building is subjected to

water ingress.

12.4 The Actions of the Department

(a) Your Committee is concerned that the Planning approval reference

P A 99/01772/GB, submitted by Felspar Ltd, differed from the purpose

sought. The application form stated that existing use was “Presently

unoccupied ground floor. Offices and flats above” and the proposed use was for

‘Offices and ancillary accommodation’.

Approval granted on review was for “Alterations and extensions to offices and

flats”. We saw no evidence to suggest that the inclusion of the word “flats” in

the approval was as a result of the review process and the Department has

acknowledged that this was a description error.

(b) We are concerned that the Department has apparently allowed a situation to

develop which has been interpreted by the owner as being confrontational

and threatening, whether or not that was the intention. We feel that the issue

of a repairs notice for apparently insignificant items requiring only panes of

glass is an indication of the pettiness which has been allowed to prevail. It is,

to say the least, unfortunate that the Department has not been able to settle

such matters without the need to resort to its statutory powers.

(c ) Whilst your Committee has expressed concern about the lack of dialogue, it is

clear that Tynwald has given the Department statutory responsibilities under

the Town and Country Planning Act. Although discussion and provision of

46

advice to assist an applicant should always be encouraged, the Department

should always take a hard line where advice is not actioned and not

compromise its responsibilities where enforcement action is deemed

necessary. However we are concerned that comments from Hon J A Brown

SHK and from Auctor Ltd. are highly critical of the Department at the time

taken for it to respond to correspondence or indeed at the failure to respond

at all.

(d) Your Committee is also concerned at the apparent lack of activity by the

Department whilst the property was in the ownership of Castletown Town

Commissioners. We saw no evidence that the Department had contacted the

Commissioners during the period 1984 until 1999 over the appearance of the

building.

12.5 The Actions of Castletown Town Commissioners

(a) Your Committee is concerned that there appears to have been little done by

the owner (Castletown Town Commissioners) from 1984, the time of the

listing of properties onto the Protected Buildings Register, to maintain the

property until its sale to Felspar Ltd in 1999. Although CTC had leased the

property under a full repairing lease, it should have been aware of its

obligations as an owner at the time of registration and until the sale in 1999.

They should have been aware of their responsibilities and ensured that the

property was maintained in a proper manner. The property was let under a

full repairing lease and it was their responsibility to ensure compliance with

that lease. We are aware that the property was repossessed in 1995 for non

47

payment of rent and then leased to Ernst & Young for a further six months.

Between the departure of Ernst & Young and the acceptance of the tender of

E J Sheridan Ltd in 1999 no major repairs or painting was undertaken by

CTC.

(b) We note that the Commissioners have agreed to support plans for the

demolition of no. 5 the Parade and redevelopment of the site to safeguard the

future of Balcony House. This would appear to disregard the statutory

requirements of the registration process for the sake of a simple solution. We

are not surprised by this pragmatic stance taken by the Commissioners,

prompted as it is by stagnation of progression of redevelopment of the site

and their concerns about the time taken (“at least six years”) for development

of the neighbouring 1, 3 and 5 Queen Street site.

12.6 The Actions of Auctor Ltd, its Beneficial Owners and its Advisors or Agents

(a) Your Committee is concerned that Auctor Ltd. did not seek the advice of the

Conservation Officer at the time of purchase. We heard in evidence from

Mrs Hendy that it was she who heard about the sale and made enquiries as to

who the new owners were.

(b) We are surprised that Auctor Ltd did not see the need to have sight of the

MacOwan Collett structural appraisal, nor commissioned its own structural

appraisal, before completing the purchase. It appears that the purchase of the

property was foremost and, when Balcony House was also purchased shortly

48

after, allowed Dr Taylor to pursue his wish to “re-gentrify that area of

Castletown”.

(c) We are concerned that a qualified conservation roofing expert was not

involved in the decision to remove the roof slates after the storm in January

2005. It is not clear if the roofer, Mr J Ashton, who provided an opinion on the

eventual course of action, is experienced in dealing with registered buildings

and the legislative requirements, or if he actually went onto the roof to

inspect it.

(d) Mr Howie said in evidence that he observed the damage to the roof from the

street. Your Committee does acknowledge that his professional advice is

bound to put the safety of the public first and so his advice would

undoubtedly follow his statutory responsibilities insofar as his advice in

writing was

“I must insist, therefore, that you carry out all necessary remedial works immediately

to render the main roof and chimney stack safe. Bearing in mind the current planning

status of the premises, you must liaise with the Director of Planning and Building

Control (Mr McCauley) prior to any works of a substantial nature”.

In evidence Dr Taylor said that

“…we received a letter from Mr McCauley stating that we were allowed to work on

the building, but if we did anything whatsoever which was over and above what

he thought, in retrospect, was suitable for solely maintaining the roof, then we

would be prosecuted and we would receive unlimited fines.” 141TPC

49

(e) There was discussion and exchange of correspondence between Capt Corlett

and Mr McCauley on 17 January 2005 in accordance with Mr Howie’s advice.

In that exchange Capt Corlett stated that “….I was disappointed with your threat

that left little doubt that Auctor would be prosecuted should it do any works that

could be remotely suggested were beyond what is required to (in your opinion) secure

the building….”

Mr McCauley stated quite clearly in his response that his cautioning did not

constitute a threat of prosecution.

Exchange of correspondence at Appendix L

(f) We are astounded that what appeared to be an agreement between the parties

to have engineers liaise on a solution, was ignored by Auctor who proceeded

to instruct a roofer to inspect the roof and engage demolition contractors to

remove the roof two days later. We feel that it would have been more

appropriate for Auctor to address its concerns over public safety by taking

temporary immediate action pending the meeting of engineers, taking into

account that the road closure was in place at the time.

(g) Your Committee is concerned that the owner did not contact the Building

Conservation Officer immediately after the storm damage for advice on

appropriate action. Other agencies including Environmental Health, the

Health and Safety Inspectorate and the Highways Division of the DoT were

called, but not the Conservation Officer, which may be perceived as Auctor

being far from committed to preserving this registered building.

50

(h) Your Committee is concerned that the responsibilities of ownership of a

registered building may not be apparent to an owner or prospective

purchaser. When the storms in early 2005 occurred the owner should have

entered into dialogue with the Conservation Office immediately for guidance

on appropriate action.

(i) We were amazed by the sheer volume of correspondence and written

evidence provided by Auctor Ltd. Correspondence either written to your

Committee or copied in to us went into what may be considered as

unnecessarily lengthy detail. For example, a communication from Auctor Ltd

concerning on-going discussions with the Department consisted of a thirteen

page letter with a sixteen page attachment. We take the view that whilst it is

helpful to be kept informed of on-going matters, the volume of detail is

onerous and largely repetitive, and may well impact on the Department in

terms of time and its resulting response. Conversely a more resolute approach

to matters by the Department may well have avoided the need for Auctor Ltd

to see the need to provide such evidence.

(j) We were aware that due to the ill health of Mr Stewart of Burroughs Stewart

Associates, his role in providing expert advice to Auctor was taken over by

Mr Bergin from the autumn of 2005. In evidence Mr Bergin advised that he is

a member of English Heritage and of the National Trust. He said

“…I spent a lot of time in South Wales, on Grade 1 listed structures, graving docks

in Cardiff Bay, a lot of work in Cardiff Bay because I was there for five or seven years,

in the development of a lot historic buildings. I have worked within conservation

51

areas, liaised with architects, planners, conservation officers in looking at how to

develop buildings”

This suggests that Auctor had at its disposal a skilled source of advice in a

chartered civil engineer with experience in dealing with historic buildings.

However, we acknowledge that Mr Bergin was not actively involved with

Auctor Ltd as a client until after the removal of the roof.

12.7 The Current Situation

(a) Number 5 the Parade is included on the Protected Buildings Register as being

of special architectural or historic interest and as such is afforded protection

to safeguard its future. Despite the deterioration that has occurred there is no

evidence to show that it is in imminent danger of collapse. Professional

advice that your Committee has seen has indicated that what remains is

worthy of restoration, and therefore your Committee recommends that the

building should not be de-Registered.

(b) We are concerned that the temporary measures put in place to prevent water

ingress since the removal of the roof in May 2005 are still in place in

August 2006, and Mr McCauley has confirmed that he is still not satisfied

with it.

(c) However, we are aware that there is ongoing discussion between Auctor Ltd

and the Department on a suitable solution both for the roof and a combined

planning application comprising both no. 5 the Parade and Balcony House,

52

and the outcome of those discussions may supersede our views expressed in

the conclusions of this Report.

PART 13

MATTERS RELATING TO PLANNING AND REGISTRATION PROCESSES

13.1 The Planning Office

No. 5 Parade Consent

(a) We are concerned that the planning conditions were not satisfactory or

sufficiently clear. The conditions imposed appear to be relatively minor, ie

referring to external finishes, a brass hand rail and the front door. Other

matters of significance, including the roof, roof timbers, windows, internal

walls, were simply referred to as ‘Permission also relates to references contained

on accompanying plans’ and contained such references to roof slates and

window shutter boxes as ‘retained as far as possible’. We acknowledge that

there will be issues concerning the fabric of the structure that will not be

obvious until building work commences but feel strongly that these issues

should be stated in the conditions with a further condition requiring the input

of the Conservation Officer and, if building work exposes problems, the

Building Control Officer . This should not be left for the owner or agents to

interpret, and we recommend that DLGE reviews the need to consider

conditions and notes on a statutory basis.

53

Staffing

(b) We heard in evidence from Mr McCauley, in response to a question

concerning staffing levels, that

“in general terms, whilst we cannot necessarily give an instantaneous

response to things, we have maintained dialogue with the company.”

30TPC

Although this may indicate that the Planning Directorate is adequately

staffed, we note that press advertisements for planning applications contain

the warning “at present the process of applications is being delayed due to staff

shortages.” This was confirmed by Mr R A Hamilton, Chief Executive of

DLGE, who advised that the Department had agreed that a firm of external

consultants be engaged to undertake a staffing review of the Planning and

Building Control Sections of the Planning and Building Control Inspectorate.

That review is currently underway.

(c) Mr McCauley stated in a letter dated 31 May 2006 that “the postholder (Building

Conservation Officer) reports directly to myself. I consider the potential for conflict

between the postholder and the line management structure to be extremely limited.”

Your Committee suggests that in light of the increasing number of

Conservation Areas the Department addresses this issue in the current

staffing review.

However, we consider that the registration process should be distinct from

the planning process, and address this in paragraph 13.4.

54

Commencement/Completion

(d) Your Committee considers the planning requirement to commence a project

within four years is unsatisfactory and this view was shared by several

witnesses. This particular case has highlighted both the difficulties in

interpretation of commencement of works and the fact that commencement

does not require completion.

(e) When Mr McCauley gave evidence he submitted a description of the term

‘meaning of development’ in the form of an extract from UK legislation. We

recommend that the Department considers putting on a statutory basis a

similar definition of ‘development’.

(f) We recommend that the Department should consider whether it would be

appropriate for planning consent in respect of registered buildings to contain

a commencement date of two years with a defined completion date agreed

with the Department at the time of notification of commencement. Provision

could be included in this new process for the Planning Committee to agree

extensions or impose penalties.

13.2 Registered building consent

(a) Under the provisions of the Act, the Planning Committee considers

applications for both planning approval and registered building consent.

55

(b) Any works to a registered building, whether external or internal, require

registered building consent. However, if the works involve external changes,

such as changing windows or doors, planning approval is also required.

(c ) If approval is granted for both internal and external works, conditions

imposed by the Planning Committee are applied to both the planning

approval and the registered building consent. However, if works only involve

internal works, those conditions are applied to the registered building

consent. Where drawings are provided in support of an application, it is

always a condition of approval that those drawings relate to the approval.

(d) Your Committee is concerned that the process for considering planning

applications and for registered building consent appears cumbersome and

confusing. We were advised by the Conservation Officer that any works to a

registered building require registered building consent. However, if the work

includes internal and external works, there will be a Planning Approval

Notice and a registered building Consent Notice. We recommend that the

Department should consider whether any application in respect of a

registered building should be considered as registered building consent, no

matter whether the work is internal, external, or both. The form of approval

should clearly identify accompanying drawings by their reference number

with conditions/specifications clearly listed on the form of approval.

13.3 The Registration Process

(a) Buildings may be proposed for consideration for inclusion on the Protected

Buildings Register by interested parties such as special interest groups, by the

Department or a local authority, or may have been identified in the area plan.

A proposal is presented by the Conservation Officer and considered by the

56

Chairman of the Planning Committee who will consider the recommendation

of the Conservation Officer and any written representation. The Chairman

may defer consideration for further evidence to support the application

before making a decision.

(b) Where a decision is taken by the Chairman of the Planning Committee to

enter a building onto the Register, the Department is required to give notice

to the owner and/or occupier of the building, the relevant local authority and

Manx National Heritage, and also by issue of a public notice in the press. The

owner or occupier then has a period of 21 days in which to apply for

de-registration if they object to the decision. If that application to deregister

the building is refused by the Chairman of the Planning Committee, an

appeal may be made to the Minister.

(c ) Where a building has been entered onto the Register, and the 21 day period

has lapsed or an appeal rejected, no further application for de-registration

may be made for five years.

(d) Your Committee recommends that the registration process should be based

upon qualified and expert opinion and recommends that a proposal

submitted by the Conservation Officer or other suitably qualified person

should be considered by an independent Registration Committee consisting

of a panel of qualified persons appointed by the Council of Ministers. We

recommend that the Registration Committee, advised by the Building

Conservation Officer, makes recommendations on the registration of

buildings. These recommendations should then be referred to the Chairman

57

of the Planning Committee for approval, any appeal against registration

being made to the Minister as at present.

(e) We are also concerned that provision should be made for urgent registration

of a building where, for example, a building is deemed worthy of registration

but may be in imminent danger of demolition. We therefore recommend that

the Department makes statutory provision for temporary registration for a

period of three months after which time the Department is required to

reaffirm registration or remove registration. Registration under this provision

would have a right of appeal as already provided for.

(f) We recommend that as an interim measure the Minister for DLGE establishes

a Registration Committee of non political members in consultation with the

Council of Ministers, under the provisions of the Government Departments

Act 1987.

13.4 The Conservation Office

(a) The conservation office is part of the Planning & Building Control

Directorate of the DLGE and consists of one conservation officer and an

assistant, with further assistance from specialist consultants as required.

Your Committee recommends relocating the conservation office within the

Estates and Housing Directorate. This Directorate already has an architectural

office, which could provide in-house qualified assistance to the Building

Conservation Officer and assist with ongoing monitoring of properties on the

register.

58

(b) The conservation office also administers the Historic Buildings Conservation

Scheme, a grant scheme designed to provide grant support for owners of

registered buildings and owners of properties in conservation areas to

improve and maintain their properties. The Estates and Housing Directorate

administers the Home Improvement and Energy Conservation Scheme which

provides grant support for certain properties other than those eligible under

the Historic Buildings Scheme. Administratively we consider that it makes

sense to bring together these aspects of the Department’s statutory functions

and would allow the conservation staff to focus on technical rather than

administrative functions

(c) Such a move would separate the functions of registration, monitoring,

provision of grant support and maintenance of the Protected Buildings

Register from the planning process. The Planning Committee will retain

responsibility for considering applications for registered building consent

based upon the registered building proposal (see following para (13.5a)) and

the advice of the Building Conservation Officer. The Planning Directorate will

retain responsibility for enforcement. There will be a requirement for the

Building Conservation Officer to be consulted on all aspects of registration

and planning and enforcement.

Policy

(d) Current policy is set out in a document “Policy and Guidance Notes for the

Historic Buildings of the Isle of Man.” Given the problems which occurred at

the time of Auctor Ltd’s purchase of no. 5 the Parade, it is not clear if the

obligations on the prospective purchasers of registered buildings are apparent

59

at the time of purchase. It may be appropriate for all purchasers and

subsequent owners to be provided with a copy of this document by the

vendor or by the Department.

Buildings awaiting consideration

(e) We heard in evidence that there are over 200 buildings awaiting registration

and that there may be many farm buildings worthy of registration not yet

considered. Given the responsibilities of the role of the Conservation Officer,

together with additional conservation areas such the recent addition of

Glen Wyllin and Kirk Michael, it would be reasonable to assume that it will

be some considerable time before these buildings receive attention.

13.5 Suggested Structure

Registered building proposal

(a) We recommend that the registration process should require an application for

registration to have a registered building proposal, clearly identifying all

matters of architectural or historical significance, and including any

requirements such as photographic records or retention, or removal, of

particular artefacts or features. It would be the responsibility of the Building

Conservation Officer to oversee the development and implementation of the

registered building proposal or identify bodies. This registered building

proposal, agreed at the time of registration, will form the basis for any

subsequent application for registered building consent. The registration

process would then be as follows;

60

a. An application/nomination for registration is made to the Registration

Committee

b. The Committee ensures that the application is supported by a

registered building proposal, which may be prepared by the

Conservation Officer or his office or a body or person nominated by

the Committee.

c. The application, supported by the registered building proposal, is then

considered by the Registration Committee. The Committee then makes

a decision on the application which is passed on to the Chairman of the

Planning Committee for approval.

d. Any appeal against a decision for registration will be to the Minister.

Registered building consent

(b) The Planning Committee would consider applications for registered building

consent based upon the registered building proposal agreed at the time of

registration. A registered building proposal would contain a photographic

record. It should be a requirement for an updated photographic record to

accompany the application for registered building consent where a period of

three years has lapsed since the date of registration.

(c) It will be necessary for the Department to consider budget implications for

costs for creation of registered building proposals and for Registration

Committee expenses.

61

PART 14

MATTERS RELATING TO LEGISLATION

14.1 Provision for matters concerning registration of buildings and applications

for registered building consent is contained within the Town and Country

Planning Act 1999 and the Registered Building Regulations 2005.

14.2 Your Committee is concerned that the Chief Fire Officer is only included in

the consultation process as a matter of formality. We consider that viewing

and commenting on planning applications is not satisfactory and recommend

that the views of the Chief Fire Officer should be a statutory requirement and

his views expressed as conditions, not as notes attached to conditions.

Conditions of registered building consent

14.3 Your Committee recommends that commencement of work should be

reduced to two years as a condition of registered building consent, a

recommendation which was made by Castletown Town Commissioners and

one which your Committee endorses. In addition we recommend that the

actual work which constitutes ‘commencement’ should be clearly set out in

the conditions of the registered building consent. This may avoid any

repetition of a situation which materialised at no. 5 the Parade in which there

was considerable doubt, disagreement and interpretation.

62

14.4 Recommendations contained within this report are provided for under the

Act and will not require any legislative change except in the following

instances:

• to provide a definition of ‘registered building consent’ in respect of

registered buildings

• to include a requirement that the Building Control Officer, and the

Chief Fire Officer, be consulted on applications for registered

building consent

• to provide the requirement for determination of commencement of

works within two years of approval, or other period as agreed with

the Department

• to provide the requirement for determination of the period for

completion of works as agreed with the Department

• to provide the right for the Department to impose penalties for

failing to comply with commencement and completion dates

• to include a definition of the term ‘ meaning of development’

63

PART 15

CONCLUSIONS

15.1 Your Committee is satisfied, from evidence received or heard, that the

building is worthy of restoration and should not be deregistered.

15.2 When providing oral evidence, Dr Taylor, Director of Auctor Ltd, made an

offer, to the Department for a solution to the current situation by paying for

the cost of restoration under the auspices of the Department’s Chief

Executive and qualified personnel and we recommend this should be

followed up. He said

“I would like to offer the building to them (the Department) so that, under the

auspices of Mr Hamilton, the head of the Department, Mr Moore as the Architect,

and the Conservation Officer and the retained structural engineer would perform

and remove this pillar and restore the building to meet the modern CDM

requirements which are in force in the Isle of Man and make the building safe, and

I will pay for the work to be done.” 144TPC

He later qualified this offer as being ‘subject to contract’. However, the

Department has advised that this offer has been considered by the

Department and rejected.

15.3 Your Committee has been advised by Auctor Ltd in a letter dated 4 July 2006

that agreement has been reached with the Department that the Morton

Partnership, acting for the Department, and Burroughs Stewart Associates,

acting for the owner, are to ”work together to draw up a holistic set of method’s

64

statements with accompanying drawings etc, for the entire building based upon the

current planning approval.”

We applaud this initiative which we feel is long overdue and would

emphasise that the impetus must not be lost through further protracted

argument. Whereas we are satisfied from the evidence we have received that

no. 5 the Parade is worthy of restoration and should be preserved, the

ultimate decision affecting the current planning application, and its effect on

no. 5, can only be determined when the engineers have concluded their

investigations.

PART 16

GENERAL FINDINGS

16.1 Your Committee circulated its draft report and its proposed

recommendations for comment by the main bodies involved in no. 5 the

Parade. We have received comments and have where possible made

relevant amendments to the body of the Report. What became clear to us

was the inability for two parties to sit down and discuss matters. We have

criticised where we feel it is appropriate and made recommendations where

we feel procedures could be improved. Where those improvements involve

better performance from the Department, and we note that certain changes

have already been implemented in current procedures, we recommend that

the Department takes action to improve its performance, and introduces

changes in legislation, and clarification or interpretation of legislation. We

also hope that this will enable owners of registered buildings and their

advisors to be better informed and able to recognise their responsibilities.

65

PART 17

RECOMMENDATIONS

In respect of Registered Buildings your Committee recommends:

Recommendation 1

The Department of Local Government and the Environment puts in place a means

whereby owners of Registered Buildings are required to inform the Department of

the agreed sale of a Registered property. [ref.para.12.1.(j)]

Recommendation 2

The Department of Local Government and the Environment provides an

information pack to all existing owners and prospective purchasers of Registered

properties advising of the responsibilities of ownership under the Town and

Country Planning Act. [ref.para.12.1.(j)]

Recommendation 3

The Department should consider whether any application in respect of a registered

building should be considered as Registered Building Consent, no matter whether

the work is internal, external, or both. The form of approval should clearly identify

accompanying drawings by their reference number with conditions/specifications

clearly listed on the form of approval. [ref.para.13.2.(d)]

66

Recommendation 4

Registered Building Consent is granted with a requirement for commencement of

work within two years, and completion of work within a specified period from the

date of notification of commencement to the Department.

[ref.para.13.1.(f)]

Recommendation 5

The period between commencement of work and completion of work to be agreed

with the Department which may agree extensions or impose penalties.

[ref.para.13.1.(f)]

Recommendation 6

The Conservation Office is located outside the Planning and Building Control

Directorate with consideration that it be located within the Estates and Housing

Directorate. [ref.para.13.4.(a)]

Recommendation 7

A Registration Committee is established by the Council of Ministers under the

auspices of the Department of Local Government and the Environment for the

purpose of considering applications for inclusion on the Protected Buildings

Register [ref.para.13.3(d)]

Recommendation 8

All registrations of buildings on the Protected Buildings Register to be accompanied

by a Registered Building Proposal. A Registered Building Proposal will contain an

historical record and description of the building, a photographic record of the

building (updated at the time of an application for registered building consent

67

where three years has lapsed since registration), and identification of any important

features and artefacts. [ref.para.13.5.(a)]

Recommendation 9

The Department of Local Government and the Environment includes in its budget

forecasts, provision for the establishment of a Registration Committee and fees for

preparation of registered building proposals. [ref.para.13.5.(c)]

In respect of no. 5 the Parade your Committee recommends:

Recommendation 10

That the building should not be de-registered [ref.para.15.1]

Recommendation 11

In the event that agreement is not reached following current discussions between the

owner and the Department on a combined solution for no. 5 the Parade and Balcony

House, steps are taken by the Department to ensure that the roof is reinstated and

the property restored.

[ref.para.12.3(c)]

In respect of legislation your Committee recommends:

Recommendation 12

The Town and Country Planning Act 1999 be amended to make provision for the

Department of Local Government and the Environment to

(1) impose penalties for the failure of a person or persons

granted Registered Building Consent to complete works

within a period agreed with the Department,

68

(2) define the terms ’meaning of development’,

‘commencement date’, ‘commencement of work’,

‘completion date’ and ‘registered building consent’.

[ref part14.4]

(3) consider the inclusion of the Building Control Officer and

Chief Fire Officer as consultees in the registered building

consent process. [ref.part 14.4]

(4) establish a Registration Committee

[ref 13.3(d)]

(5) provide for temporary and urgent registration of

buildings on to the Protected Buildings Register

[ref 13.3(e)]

Mrs H Hannan, MHK (Caairliagh)

P A Gawne, MHK

The Lord Bishop

October 2006

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