Jersey Unreported Judgments

ROYAL COURT

(Samedi Division)

22 May 1998

Before: Sir Peter Crill, KBE Commissioner

and Jurats Gruchy & Le Breton

BetweenJohn Arthur Burnett BowerAppellant

AndThe Planning and Environment Committee

of the States of JerseyRespondent

APPEAL UNDER PART XII OF THE ROYAL COURT RULES 1992 FROM AN ADMINISTRATIVE

DECISION OF A STATES COMMITTEE.

In exercise of the right of appeal conferred by Article 21 of the Island Planning (Jersey) Law 1964, as amended, appeal to the Royal Court against the Enforcement Notice issued by the Respondent on 19 July 1995 requiring the Appellant inter alia to seal the exit from the Appellants property, Les Buttes, onto La Rue des Buttes, St Mary on the grounds that the Respondents decision was unreasonable in all of the circumstances of the case.

The Appellant on his own behalf

Advocate NM Santos Costa for the Respondent Committee

JUDGMENT

THE COMMISSIONER:

This is an appeal by Mr John Arthur Burnett Bower against an order made by the Planning and Environment Committee, and served on Mr Bower in October 1995. That order, dated 19 July 1995 reads as follows:

It has been noted that in each of the alternatives, the words "existing access" are qualified by the adjective "unauthorised". It was part of Mr Bowers case that there was a brèche in that wall, from his property, which had been there for many years and it is not, as we understand it the Committee’s intention that that brèche should be closed up, but only the unauthorised extension of it, which we were told took place sometime during a remise de biens, to which I will now turn. The property in question, "Les Buttes," was owned by the Bower family, and unfortunately at some date prior to 1974, the Appellant’s father ran into financial difficulties, and a remise de biens was accorded to him.

It is clear that during the remise de biens it is not open to the person who has obtained that facility from the Court to do anything with his land because of the provision of Article 5 of the Loi (1839) sur les remises de biens, and I translate it in the same form as it was translated in the case of James Barker on the 2 October 1986:

That, in the view of this Court carries with it the inference that if there is some land which is not subject to the remise then that restriction obviously cannot apply. At some time, it is not at all clear exactly when, the Appellant increased the brèche to a much wider opening, and installed an iron-barred gate, which we shall call the first gate. Subsequently, not being satisfied with it, he what he called in his pleadings, ‘sheeted’ that gate with corrugated iron, and added to the iron work on the inside of the property some wood in order to hold the sheeting in place. When that was done, it was clear to the Court from the photographs and the evidence given by Mr Doublet, the Enforcement Officer of the Committee since November, 1991, that the hinges of the sheeted gate protruded some four inches into the public road, there was also a risk, according to Mr Doublet, that a passing cyclist or motor cyclist might have caught part of the iron work or corrugated iron itself, and suffered injury. As we understand it, from what Mr Bower has been saying and pointing out to us when we visited the site, the four inches was not really obtruding into the road, because it was over his relief which had a gutter in order to assist the drainage from his land.

When we visited the site, there was no gutter; it was part of the ordinary tarmac road, and as a matter of law, and because La Rue des Buttes is a main road, there can be no relief in respect of properties adjacent to a main road, so Mr Bowers belief in his right to do that, and obtrude, even four inches, because he owned, as he thought, the relief formed by way of a gutter, cannot be substantiated.

In October, 1994, a senior member of the Honorary Police of St Mary reported to a police meeting that he thought the gate, as we have described it, and which, incidentally, was designed to open outwards into the road, was dangerous. The Centenier then got in touch with Mr Doublet on the 9 November 1994, and it appeared that not only had Mr Bower added a corrugated cover to the gate, but had also raised the height of the garden wall. Mr Doublet went to the site on the following day and took photographs, and he told us that the set-up was unusual in as much as - and we have seen it for ourselves - the gate opened outwards and the bottom of the gate was some ten to fourteen inches from the ground, that is to say the ground level of the main road.

Mr Bower was written to by Mr Doublet about the matter on the 29 November 1994, in the following terms:

Far from answering that letter, as one would have thought anyone receiving it would do, and offering an explanation - which he has given now to the Court and which I will come to in a moment - as to why he felt he did not need permission, Mr Bower embarked on a series of letters which had two purposes in mind, one was to elicit any documents which the Committee might have in relation to Les Buttes, and secondly to find out, if he could, who had laid the complaint.

The Committee, not unreasonably, was faced with a dilemma; it had had drawn to its attention what was clearly unauthorised development and Mr Bower has not sought to argue that it was not. He said that he had permission - again, I will come to that again in a moment - so it is clear that permission was needed for the development, and at one stage Mr Bower also appeared to be saying in his pleading that the garden onto which this gate abutted and the wall from which it hung was an agricultural holding. That was not sustainable and he has abandoned that ground. There is a provision in the planning law so as not to prevent reasonable access to agricultural holdings, but this is not one, so that part of the planning law does not apply.

A number of photographs were taken of the wall and the gate, and these were incorporated in a report prepared on the 11 April 1995, by Mr Doublet and passed for discussion by the Committee by Mr Thorne, his superior, and it should be noted that a final letter was sent to Mr Bower on the 17 March 1995, telling him that as the matters had been ongoing - and I refer to Mr Thornes note - since the 29 November 1994, and as he did not appear to be even slightly interested in resolving the problems, there was no alternative but to commence formal proceedings. The report goes on:

Be that as it may, Mr Bower was written to and invited to submit a retrospective application, and the Committee named a Mr Webster, who would assist Mr Bower in preparing the necessary documents so that the matter could go before the Committee in proper form. This offer however, was spurned by Mr Bower. That was the position that faced the Committee when it had to make its decision, as it did, in July 1995, to serve the notice I read out at the beginning of this judgment.

After a number of earlier appeals, which eventually were struck out - and it is not necessary for the Court to go into them - Mr Bower now brings this appeal on the ground that the Respondent’s decision was unreasonable in all the circumstances of the case. We have to be satisfied about three things before allowing an appeal of this nature.

We have to be satisfied that the Committee was not entitled, in law, to come to the decision it did. That matter is not pursued by Mr Bower; it is not a ground of appeal, and therefore there is no doubt that the committee was entitled, in law, to come to the decision it did. The decision lay within the powers granted to the Committee by the statute. The second question we have to ask ourselves is whether the proceedings, in general, where handled satisfactorily by the Committee, having regard to the Committees offer to Mr Bower to assist him to prepare an application, or a retrospective consent, through a Mr Webster. We are satisfied that the Committee did everything possible in its power to assist him, and again, we cannot say that the proceedings of the Committee were not in general terms, sufficient and satisfactory.

So that leaves the third matter about which we have to be satisfied: whether the Committees decision was unreasonable in all the circumstances of the case. Now there are a number of decisions of this Court on what exactly "unreasonable" means, but the ordinary meaning of that word, which has been accepted for many years now, is that the Court would have to be satisfied that the Committee, if in possession of all the facts and proper directives, could not have come to the decision it did in all reasonableness.

For reasons which I am going to give in moment, we are not satisfied that that third hurdle, so to speak, has been surmounted by Mr Bower. As regards Mr Bower’s attack on the Committees attitude, it is to be noted that, from the very beginning, he never notified the Committee of his reasons for doing what he did, and for considering that he did not require the Committee’s statutory permission.

It now emerges, from the evidence we have heard, that Mr Bower was under the belief, whether genuine or not, that he had received verbal permission from Mr Beaty, the Senior Planning Officer of the Committee at the time, via a Mr Lyons, who was the managing director of the company which was in the course of acquiring part of the barred property under the provisions of the remise de biens, in order that Mr Bower senior, once his debts had been paid, could be released from the stringent provisions of the remise.

The Appellant told us that he inherited the property from his father some years later, free of restrictions, and that must carry with it a very clear implication that at some stage the remise de biens had been lifted, otherwise the whole of the property would have gone.

What we were told by the Appellant is that he had a conversation with Mr Lyons to the effect that Mr Beaty had told Mr Lyons who, Mr Lyons said, owed him a favour, that it would be all right for the entrance and exit - depending on which way you use it - to be opened in the wall along La Rue des Buttes. Mr Bower answered the criticism, that in that case he ought to have informed the Committee, by saying that he felt he was unable to do anything because of the restrictions imposed by the remise de biens which is set out in the judgment of Barker, I mentioned earlier, but of course, he was not under the remise; it was his father. He inherited the property later, when it is reasonable to surmise that the remise de biens had been lifted.

Be that as it may, Mr Bower at some stage - it is said possibly as late as 1980; he says as early as 1974 - as soon as he had what he would call the permission from Mr Beaty, via Mr Lyons, embarked on opening the entrance. At one point in his pleading he suggested that the retained garden of Les Buttes was enclavé. That clearly could not be sustained because, at least on one side it was on a chemin public, and on the other a grande route, Under any circumstances applicable to the property of Les Buttes, it could not be described as enclavé.

We saw two photographs, one taken in April 1974 before the remise, and another in 1980. They were arial photographs. The first made it quite clear, in our opinion, that there was nothing there, The second one in 1980 is not quite so clear, and we cannot rely on it without feeling some shadow of doubt, but it really does not matter. The fact is that Mr Bower carried on doing what he wanted to do without reference to the Committee. His view remains and is still maintained strongly today that Mr Beaty had, through Mr Lyons, told him that he could do it; that Mr Beaty owed Mr Lyons a favour and that was all part of some Beaty arrangements which Mr Bower touched on in his speech, and in support of which there is no shred of evidence. All this was supported apparently by the then Attorney General, Mr VA Tomes, and Mr Bower further said that he had a witness, Senator Shenton, who would support what he had been saying.

If he had a further witness in the person of Senator Shenton, it is surprising that he was not subpoenaed to appear before this Court, but he was not, and this Court cannot take any notice of general assertions about witnesses who are not called. It is not evidence, it is totally inadmissible, but the Court, of course, is mindful that Mr Bower is appearing for himself and we must give him some latitude.

The Court has not relied on any of these hearsay statements from Mr Bower, indeed Mr Beaty was himself called and stringently denied any of the suggestions made by Mr Bower, he said that he did not even know who Mr Lyons was, although there is a report from Mr Beaty, which refers to Mr Lyons as being the managing director or director of the development company, but we do not attach much importance to that; Mr Beaty was obviously dealing on behalf of the Committee with an enormous number of applications annually, and indeed he said that at one period during his professional career with the Committee they had eighty applications in one week. It is not surprising in the view of the Court, that minute matters relied on by Mr Bower cannot be remembered by Mr Beaty. We are satisfied that Mr Beaty gave his evidence in a proper and unbiased way, and we accept the denial.

It therefore follows that Mr Bower was mistaken in believing that he had this consent, and furthermore of course, Mr Thorne made it clear, and so did Mr Beaty, that Mr Beatys authority, unless is was specifically mentioned, did not include the giving of that sort of consent.

There is one more matter I want to mention: Mr Thorne swore an affidavit in relation to this case about the documents in his department which Mr Bower believed the Committee had, so to speak, up its sleeve, Mr Thorne went through the documents, such as they were, very carefully and found nothing to substantiate the allegations of Mr Bower.

Under all the circumstances we are satisfied that Mr Bower has not proved his case, and we have no hesitation in dismissing the Appeal, at the same time I wish to say that there is nothing to prevent Mr Bower, after this judgment, from submitting an application for retrospective consent. We say this because he has done two things; he has attempted to cover the block wall which he had erected on the inside of his boundary with granite as he was directed to do in one of the alternatives, and he has removed the sheeting, and there is another gate in place, but equally this has the same objection as the Committee found in the first place, namely that it opens onto the road. Although Mr Bower said that somebody could keep a lookout and a ramp would be put up, and everything done to ensure it was safe, the fact remains that it is not that gate which was the offending gate but the earlier gate of which we have had photographs and about which Mr Doublet gave evidence.

There is just one other matter I wanted to mention and that is the period during which, the Committee Mr Bower says had ample time to take action. I think that the Committee can only take action when some unauthorised work is brought to its attention, it is not enough that individual members of a Committee may or may not pass something of the nature of a protruding gate, and then do something about it; it has to be drawn firmly to their attention, and we are satisfied that the first time it was so drawn, was when Centenier Davidson reported it to Mr Doublet. Whether Mr Bower makes an application or not we are unable to say, it is entirely a matter for him, but he may be able to rely - we put it no higher than that - on the length of time there has been an opening there; he may be able to rely on the fact that he has attempted in one way to try and do what the Committee wants with regard to facing the unauthorised block work. Another point which might have to be examined is whether he really needs a full gate of that size, I understand from the evidence that we have had before us and the papers that we have read, that he can have a 3ft brèche which might be sufficient unless he really requires a tractor. He gave evidence that he required a tractor, a farm tractor, because he had angina, It seems to us - without expressing any firm opinions - a very small plot to require a farm tractor to look after. The appeal is rejected.

No Authorities