Jersey Unreported Judgments

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Cite as: [1998] UR 189

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ROYAL COURT

(Samedi Division)

15 September 1998

Before: Bryan Ian Le Marquand, Greffier Substitute

Between	Towerocque Limited	Appellant

And	The Planning and Environment Committee of the States of Jersey	Respondent

Application by the Respondent for the Appellants administrative appeal to be struck out.

The Solicitor General for the Respondent

Advocate MMG Voisin for the Appellant

JUDGMENT

GREFFIER SUBSTITUTE: On 2 December 1994, the respondent, exercising its powers under Article 8(1) of the Island Planning (Jersey) Law, 1964, served an enforcement notice on the appellant requiring it to "restore the land at the property known as La Platte Rocque, La Grande Route des Sablons, Grouville, as identified on the attached map, to its natural contours and condition before the unauthorised work took place". With the notice, there was sent a letter dated 2 December 1994, written by Mr Gerald Bisson, the respondents enforcement officer, which explained that an application which the appellant had made had been refused and that a formal enforcement notice was now being served. The fourth paragraph of the letter stated that, for the avoidance of doubt, certain works should be performed. However, the letter was not part of the notice which was served.

The appellant lodged a notice of appeal against the enforcement notice, upon the basis that the works complained of did not constitute development requiring the permission of the respondent. On 25 July 1995, the respondent filed their statement. Subsequently, on 2 November 1995, a meeting occurred on the relevant site which was attended by the members of the respondent, the said Mr Gerald Bisson, Mr Peter Thorne, the Director of Planning and Building Services of the respondent, the Receiver General, the Solicitor General, the beneficial owner of the appellant, Mr J A Singer, and Advocate Peter Bertram who acted for the appellant. There is a dispute of fact as to what occurred at that meeting, to which I shall refer in greater detail later. However, the strike out application has been brought upon the basis of what the respondent alleges occurred at the meeting.

The first issue is for me to determine what test I should apply in relation to the striking out application, which is being brought upon the basis of an alleged concession of the appeal and agreement, on the part of the appellant, to comply with the enforcement notice. The Solicitor General urged me not to apply the normal test which exists in relation to a striking out application but, instead, to take the view that I could determine the issue as to whether or not the appeal had been conceded and agreement made that the appellant would comply with the notice on the basis of a balance of probabilities test. She submitted this by analogy with a striking out application upon the basis of an action being res judicata. I am aware that in such a case there is authority to the effect that the Court hearing the striking out application may decide the issue as to whether or not the action is res judicata. The rationale behind this is that the facts are normally apparent upon the present and past pleadings and judgments and that the issue will need to be determined at some stage and can quite properly be determined on the application to strike out. In such a case, the Court determining the issue effectively does so on a normal civil proceedings test.

Advocate Voisin, on behalf of the appellant, urged me to apply the normal test in a striking out case. In the case of Jones -v- Bryant & Ors (8^th November, 1994) Jersey Unreported I was faced with a striking out application which was based upon the alleged settlement of an action and on page 4 of that judgment, I set out the general test in relation to striking out as set out in the 1993 White Book but omitting case references and the section reads as follow:-

"Exercise of powers under this rule - It is only in plain and obvious cases that recourse should be had to the summary process under this rule. The summary procedure under this rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable". It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. If there is a point of law which requires serious discussion, an objection should be taken on the pleadings, and the point set down for argument under 0.33, r3. The powers conferred by this rule will only be exercised where the case is clear beyond doubt. The Court must be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious or that the defences raised are not arguable."

My decision in that case, which was not to strike out the action, was appealed to the Royal Court and overturned by that Court. However, in the Royal Courts judgment, Jones -v- Bryant & Ors (17 January 1995) Jersey Unreported, the Court did not set out the test which it was applying when making its decision, but merely indicated that there was a formal and binding agreement to compromise and settle the action. In my view, the Royal Court by not indicating that I had applied the wrong test, was by implication upholding the test which I had applied. Furthermore, it seems to me that there is a clear difference between an application to strike out a case upon the basis of it being res judicata, where the relevant facts will be set out in previous pleadings and orders of a Court, on the one hand, and an application to strike out based upon an agreement to concede the action. In the former case no evidence would be required but in the latter case, in the event of there being a dispute, as there is here, evidence will be required. In this particular case there were two affidavits filed on behalf of the respondent and one on behalf of the appellant in relation to the facts as to what occurred at the relevant meeting. Where matters of fact are in issue, it seems to me that the normal striking out test must be applied as otherwise I would be effectively trying the disputed issue of fact, with a balance of probabilities test, on affidavits.

The next issue which I have to determine is whether, applying the high test which is required in a striking out application, I am satisfied that the appellant agreed to concede the appeal. In paragraph 7 of Mr Peter Thornes affidavit, it is stated that at the relevant meeting, Advocate Peter Bertram informed the members of the respondent in Mr Thornes presence and hearing and in the presence and hearing of the appellant (by which Mr Thorne must mean Mr Singer) that the unauthorised works would be removed. In paragraph 6 of his affidavit Mr Thorne states that Mr Gerald Bisson had previously explained the nature of the unauthorised works to which the notice related. In paragraph 4 of his affidavit, Mr Gerald Bisson states that he gave a full explanation of the unauthorised works and that following this explanation Advocate Bertram categorically stated in the presence of Mr. Singer that the appellant would comply with the enforcement notice. Mr Bisson then goes on to say that the respondent directed its officers to agree a schedule of works with Mr Singer. In the relevant Committee Act dated 2 November 1995, it is stated that following discussions with his advocate Mr Singer agreed to carry out the works of reinstatement required by the respondent and that the respondent directed the department to agree a schedule of works for Mr Singer. However, when the Solicitor General wrote to Advocate Peter Bertram on 4 December 1995, she alleged that Advocate Bertram had told those present that the enforcement notices would be complied with and the unauthorised works removed. She also claimed that it had been agreed that she and Advocate Bertram would later get in touch about the subsequent withdrawal of the appeal. There was no mention in the Solicitor Generals letter of a schedule being required.

Mr Singer also swore an affidavit in relation to the matter. In that affidavit he takes issue with the account of the meeting which is set out in Mr Thornes affidavit. Mr Bissons affidavit was filed subsequently to that of Mr Singer.

In paragraph 6 of his affidavit, Mr Singer indicates that what he had agreed with Advocate Bertram was that if he had to then he would remove the grass bank which he had constructed in order to raise the level of a previous bank. In paragraph 7 of his affidavit Mr Singer indicates that both before and since the meeting of 2 November 1995, he has received a number of differing explanations as to what he had to do in order to comply with the enforcement notice. That would appear to be correct because in addition to the letter dated 2 December 1994, written by Mr Bisson, to which I have already referred, there was a letter dated 11 April 1996, also written by Mr Bisson and a letter dated 26 March 1997, written by Mr Peter Thorne, the terms of each of which are different to some degree.

Applying the striking out test, it appears to me that some concession was made on behalf of the appellant at the meeting to the effect that some work had been done which was unauthorised. However, it seems to me that the precise details as to what would be required to be done by the appellant was left over to be agreed subsequently. That is clear both from the terms of Mr Bissons affidavit and from the Committee Act of the respondent. The Solicitor Generals submission was that a concession that unauthorised works would be removed was a concession that the enforcement notice would be complied with because the enforcement notice merely required the restoration of the relevant land to its natural contours and condition before the unauthorised work took place. The first difficulty with this approach is that the plan which was attached to the enforcement notice had various numbers and areas written on it and an area shaded on it, all of which must have meant something although precisely what it meant is not clear from the notice itself. If part of the works were exempt development and part unauthorised, then the effect of the notice would be to require the exempt works to be undone. The agreement to reinstate what was changed by reason of unauthorised work which I have found was made on 2 November 1995, does not extend to the full terms of the enforcement notice with attached plan.

There is a further relevant issue which I must consider. By a summons dated 14 May 1998, the appellant is seeking leave to amend its original notice of appeal in order to include a claim that the enforcement notice is a nullity, and therefore void, for uncertainty. In support of this line of argument, Advocate Voisin drew my attention to a number of cases in relation to the quashing of an enforcement notice for uncertainty. In the Jersey Court of Appeal case of Herrick -v- Island Development Committee (1984) JJ 103 CofA, in relation to an enforcement notice the Court of Appeal stated on page 113 of the judgment, as follows:-

"The notice is at best uncertain and at worst oppressive. On one construction it requires the appellant to cease doing what the Committee accepts she is entitled to do. In a drafting of notices under Article 8 it has to be remembered that they can form the basis of a criminal prosecution. It is therefore essential that they are drafted in terms which are sufficiently clear, precise and unambiguous to enable them to be clearly understood and readily enforced. The present notice is clearly open to differences of construction. It would be a wholly unsafe basis for a criminal prosecution. This particular line of attack, developed before us, was not one presented to the Royal Court but has arisen as a result of the failure of the parties to carry out the task of definition remitted to them. In the circumstances the point was properly developed before us and in the circumstances it can only lead to the quashing of the notice."

In the case of Miller-Mead -v- Minister of Housing and Local Government and Anor [1963] 1 All E.R. 459, at page 469, there is the following helpful section:-

"I turn, then, to the enforcement notice which was served on Dec. 28, 1960, and I deal with it, of course, before the amendments which were made by the minister. It was at one stage submitted by counsel for the minister that we must look at some application for a site licence in order to construe the enforcement notice. But I must protest in strong terms against looking at any document except the enforcement notice. This is a most important document, and the subject, who is being told that he is doing something contrary to planning permission and that he must remedy it, is entitled to say that he must find out from within the four corners of the document exactly what he is required to do or abstain from doing. For this is the prelude to a possible penal procedure. It is comparable to the grant of an injunction, and it is perfectly plain that some-one against whom an injunction is granted is entitled to look only to the precise words of the injunction to interpret his duty. The order cannot be construed by reference to the earlier proceedings unless expressly incorporated in the order."

Although I am merely dealing here with a striking out application, it does appear to me to be highly likely that the Royal Court will find that the present enforcement notice will have to be quashed due to uncertainty. The receiver of such a notice ought to be able to tell, from the notice alone, precisely what he is being required to do. In this case, he has on three different occasions and outside of the terms of the enforcement notice itself, been given slightly different indications of what he is supposed to do.

If I were to strike out the appeal then a completely unsatisfactory state of affairs would arise by virtue of which the appellant would be at risk of criminal prosecution for failure to comply with the enforcement notice. On such a criminal prosecution argument would then arise as to what he was supposed to have done. Argument would arise as to what was the effect of the plan attached to the enforcement notice. This is all completely unsatisfactory as the proper venue for the determination of what should and should not be done by the appellant in this case is his appeal against the enforcement notice and not any subsequent prosecution.

Thus I am dismissing the present application to strike out for two reasons as follows:-

(1)Applying the normal striking out test I am not satisfied that the concession that was made on behalf of the appellant at the meeting held on 2 November 1995, went beyond a concession that some unauthorised work had been performed which would be remedied and, in particular, it seems to me that the issue of the detail of that work was left over to be agreed subsequently and that this has never been agreed.

(2)Secondly, in any event, I am of the opinion that the existing enforcement notice is probably of no use and probably ought to be quashed by the Royal Court for uncertainty.

I shall need to be addressed on behalf of both parties in relation to the matter of the costs of and incidental to the summons to strike out and in relation to the costs of and incidental to the amended notice of appeal and the application to file the same.

Authorities

RSC (1993 Ed’n): O.18, r.19; O.20, r.5

Royal Court Rules, 1992, as amended: Rule 12/4

Mauger -v- Batty (9 October 1995) Jersey Unreported

Jones -v- Bryant (8 November 1994) Jersey Unreported

Jones -v Bryant (17 January 1995) Jersey Unreported

Bower -v- Planning & Environment Committee (28 March 1996) Jersey Unreported

Sauvage -v- IDC (4 January 1988) Jersey Unreported

Herrick -v- IDC (1984) JJ 103 CofA

Miller-Mead -v- Minister of Housing & Local Government (1963) 1 All ER 459