ROYAL COURT
(Samedi Division)
15 July 1998
Before: FC Hamon, Esq., Deputy Bailiff and Jurats
Le Ruez and Bullen
AG
-v-
Richard John Coutanche
1 Count of contravening Article 9 of the Public Health (Control of Buildings) (Jersey) Law, 1956, by carrying out
work to which building bye-laws apply, without obtaining the permit required by bye-law 9, and without
plans being passed by the Planning & Environment Committee, as required by Article 5 of the above
Law.
Plea: Facts admitted
Age: 56
Details of Offence:
In March, 1997 an Assistant Building Control Officer noticed a skip in St. James Street opposite No. 9 filled with subsoil. No. 9 belonged to the defendant. On entering the premises, the Inspector noticed a hole in the middle of the floor at the rear of the shop where floorboards and joists had been cut and a ladder placed to gain access down to the hole some 2 metres below floor level. The Defendant told the Inspector that he was carrying out repairs to the chimney stack. The Inspector discussed his findings with the Director and it was decided that no application for development permit was required under the Planning Law because it was maintenance and repair. The Department received a phone call in May, 1997 from a member of the public expressing concern as to the structural stability of No. 9 because cracks were appearing in the walls of his flat above the shop premises at No. 9. Further visits were made to No. 9 and it was noticed that the floor level on the ground floor had been raised by 2 feet and a new staircase had been constructed down to the basement which was divided into two rooms. The Inspector had not found a basement at No. 9 at his last visit. The Defendant claimed he had discovered a 3,000 gallon water tank whilst effecting repairs to the chimney stack. He had removed the tank and carried out various other building works to form the new basement. The Defendant claimed that there had always been a basement at the property and he was merely reinstating it. Inspection holes, placed at the request of the Building Director, revealed underpinning. It was noted that a door had been blocked up leaving no acceptable fire exit from the basement.
Details of Mitigation:
The Defendant claimed that there had always been a basement at the premises and his offence was technical. He admitted that he should have obtained a building permit. When he discovered the water tank he realised that there was a much greater area available for storage and he extended the basement. The prosecution and the fine sought were in respect of potential public risk but the Defendant pointed out that no accident had occurred and the infraction was ‘de minimis’. the Defendant relied upon the report of a structural engineer, commissioned at his request, which concluded that the building was safe.
Previous Convictions:
Two contraventions of the Lodging Houses (Registration) (Jersey) Law, 1962; three infractions of the Island Planning (Jersey) Law, 1964 and six infractions of the Agricultural Land (Control of Sales and Leases) (Jersey) Law, 1974.
Conclusions:
Fine of £7,500; no costs
Sentence and Observations
of the Court:
Fine of £1,000; 14 days to pay.
The Court found itself in some difficulty because of the conflict in the Prosecutions and the Defendants version of the facts. The Court was not convinced that there was such a potential risk as outlined by the Prosecution. The Court was surprised that the Inspectors, on discovering the works on 27 March, 1997, took no further action until the telephone call was received on 30 May 1997 from a concerned tenant. The Court observed that the Defendant had a very bad record of non-compliance and that he should have obtained consent. Members of the public must not carry out unauthorised work in this manner which is potentially dangerous and wastes a considerable amount of public money. The Court suggested that this prosecution should perhaps have gone to trial.
Mrs S Sharpe, Crown Advocate
Advocate FJ Benest for the Defendant
JUDGMENT
THE DEPUTY BAILIFF: The Court has had some difficulty with this case. Mr Benest has said that there was an existing basement, that there was a brick water tank, that his structural engineers, and we have read their report, have concluded that - in their words - "From our internal and external observations of the load bearing walls to the property no distress was apparent since the basement amendment."
The Crown Advocate says that this prosecution is in relation to potential risks to public safety but this Court is not convinced that there are such potential risks. It is extremely difficult to sentence on that basis. It does seem to us somewhat extraordinary that when a potential serious breach of the Planning and Building Laws was identified on 27 March 1997, only two months later did something happen following a comment from a member of the public and it was then, of course, that the department went back to this site.
We have to say however that Mr Coutanche has a very bad record of non-compliance and through his Counsel he concedes, as he must, that he should have obtained consent. But, we cannot fine him on the conclusions of the Crown because we remain unconvinced of the facts as set out without evidence.
We need to say that members of the public must not carry out unauthorised work in this manner. Whatever the facts of this case are it is potentially dangerous and it wastes considerable public money. We say that in the context that Mr Coutanche is not an inexperienced builder, he has been prosecuted for contraventions before and he should have taken advice before he lifted his first shovel. This is exceptional but the case perhaps should have gone to trial. In all the circumstances, and with no real precedence to guide us because the two cases cited do not really help us in any way, we have decided after careful reflection to fine Mr Coutanche £1,000.
Authorities
Public Health (Control of Building) (Jersey) Law, 1956: Article 9
Building Bye-Laws (Jersey) 1997: Bye-Law 1 and 9
Building Bye-Laws (Jersey) 1997: Second Schedule
A.G. -v- New Lyn Apartments Limited (12 December 1997) Jersey Unreported
A.G. -v- Ashfield Builders Ltd. (20 February 1998) Jersey Unreported