2000/210
18 pages
COURT OF APPEAL.
27th October, 2000.
Before: |
Sir David Calcutt, Q.C., President; |
|
R.C. Southwell, Esq., Q.C., and; P.D. Smith, Esq., Q.C. |
Between Catherine Adele Glazebrook APPELLANT.
And The Housing Committee of the States of Jersey. RESPONDENT.
Appeal by the APPELLANT against the Judgment of the Royal Court of 31st January, 2000, dismissing her appeal to the Royal Court, under Article 12(1) of the Housing (Jersey) Law, 1949, against the rejection by the Defendant Committee on 18th June, 1999, of her application for consent under Regulation 1(1)(g) of the Housing (General Provisions)(Jersey) Regulations, 1970.
Advocate P.C. Sinel for the Appellant.
Advocate A.J. Belhomme for the Respondent.
JUDGMENT.
SOUTHWELL JA:
1. The appellant, Mrs Catherine Glazebrook, was born in July, 1965, in England, the daughter of Mr and Mrs Frederick John Hill. She moved to Jersey in 1984 at the age of 19. She married an Englishman in 1986, and in 1987 left the Island with her husband. She has one child, Matthew, who was born in England in February, 1990. She and her husband were divorced in 1996, and as part of the divorce settlement she became the owner of a house in Kent (which is mortgaged and in which at one time - but no longer - she had negative equity).
2. She and Matthew had problems when living in England, and in July, 1997, they came back to the Island to live with her parents. Because she had been born in England and had not spent ten years living in Jersey, she did not qualify under Regulation 1(1)(h) of the Housing (General Provisions) (Jersey) Regulations, 1970 ("the 1970 Regulations"), made under the provisions of the Housing (Jersey) Law, 1949 as amended ("the 1949 Law"), to live in Island accommodation, and could only live in Jersey as a lodger of a qualified individual.
3. In November 1997, Mr and Mrs Hill bought a property, Church End, in St Martin's. Mrs Glazebrook's evidence before the Royal Court was that Church End was bought for her to live in. It seems to have been intended that Mr Hill's niece would become the tenant of Church End and that Mrs Glazebrook and her son would live with the niece as lodgers, but the niece had dropped out of the picture in about July, 1997. In September, 1997, a male friend of Mrs Glazebrook, Mr James Amy, offered to rent Church End and to have Mrs Glazebrook and Matthew as lodgers, and this commenced in February, 1998.
4. It appears that early in February, 1998, a complaint was made that this arrangement was in breach of the Housing Law. The matter was immediately investigated by a Senior Law and Loans Officer, Mr W H Sugden, who reported in writing on 18th February, 1998. Mr Sugden's conclusions were as follows:
"Summary
In my opinion the above facts would not support a successful prosecution but there is no doubt in my mind Deputy Hill has studied the law very carefully and in theory is just on the right side of it. However the Department has always been advised by the Crown Officers that where an unqualified person owns the shares in a Share Transfer property and somehow manages to occupy it, there is usually a scheme or device somewhere. I feel that this case is in a very similar category, and does not give the right signals to the general public."
5. In October 1998, Mr James Amy left Church End, and Mrs Glazebrook and Matthew returned to live with her parents. Church End became empty, and Mr and Mrs Hill have kept that house empty ever since.
6. On 4th November 1998, Mrs Glazebrook applied by letter to the Housing Committee for consent under Regulation 1(1)(g), which reads as follows:
"1(1) Subject to the provisions of this Regulation, for the purposes of the Law [the 1949 Law] consent to the sales or transfers of land or registered contracts of lease shall be granted by the Housing Committee in any case where -
..........................
(g) the Committee is satisfied that the hardship (other than financial hardship) which would be caused to the purchaser, transferee or lessee or to persons ordinarily resident in the Island if consent were not to be granted outweighs the fact that he does not fall within any sub-paragraph of this paragraph; or
..................."
7. The application letter did not expressly seek consent to a lease of Church End, and this point gives rise to one of the issues on this appeal.
8. The grant of consent in response to an application under Regulation 1(1)(g) requires the Housing Committee to be "satisfied of hardship (other than financial hardship)". As regards hardship Mrs Glazebrook relied on the following:
(1) the circumstances arising from her divorce;
(2) the potential damage to Matthew's development if he had to go back to England and to school there;
(3) the loss of the support of Mr and Mrs Hill if she and Matthew had to return to England;
(4) their inability to continue to live with Mr and Mrs Hill, because Mrs Hill suffers from a serious neurological disease, which is probably multiple sclerosis;
(5) her inability to find suitable lodgings within her financial means;
(6) her inability to return to her house in England because it was let on a long lease (and because of the problems involved in living there);
(7) her inability to sell her English house because of the negative equity position.
9. The application was supported by medical evidence concerning Mrs Hill and by psychiatric evidence as to the effect on Matthew of having to leave Jersey.
10. The application was considered for the first time by the Housing Committee on 13th November, 1998. The Committee "was of the opinion that it could find no justification for the granting of a consent on this occasion and decided, therefore, to reject the application accordingly".
11. Further material was supplied to the Housing Committee. This included some more psychiatric evidence about Matthew and a letter from the Headteacher of Matthew's school. The Housing Committee considered the application again on 27th November, 1998. Mr Shenton, a senator, was present, apparently as a representative on behalf of Mrs Glazebrook. Mr Shenton asked for an adjournment which was granted.
12. On 13th December, 1998, Mrs Glazebrook wrote to the Housing Committee to inform them that her ex-husband was no longer required to pay maintenance for Matthew because he was unemployed and had no disposable income, and continued to have no contact with Matthew.
13. On 15th December, 1998, the Housing Committee agreed to reconsider the application the next day, and on 16th December, 1998, they decided to invite Mr Shenton to make a presentation in support of Mrs Glazebrook's application on 11th January, 1999. On that day Mrs Glazebrook, Mrs Hill and Mr Shenton each addressed the Housing Committee, which decided to reconsider the application afresh on its merits, in the light of what these three persons had submitted. That was done on 18th January, 1999. After the consideration of the submissions of 11th January, 1999, the minutes record as follows:
"When considering the application, the Committee also noted details of 1(1)(g) applications from persons qualifying under Regulation 1(1)(a) and 1(1)(h) where ten years residency had not been achieved, which had been considered over the past two years.
The Committee considered at length the submissions made with regard to the hardship being suffered by all parties concerned by not granting housing qualifications. However, having regard for the large number of persons in not dissimilar circumstances suffering a degree of hardship, and the shortage of suitable accommodation available for persons with residential qualifications, the Committee was of the opinion that consent could not be justified in this case."
14. On 20th January, 1999, Mr Hill (who is a Jersey Deputy) wrote to the Greffier of the States ("the Greffier") on behalf of his daughter asking for a review by the Board of Administrative Appeal of her application and the decision of the Housing Committee. Such a review was granted by the Greffier by letter dated 15th March, 1999. Meanwhile (1) Mr Shenton had asked for "details showing the number of appeals which have been heard over the past five years itemising how many have favoured local family attachments"; (2) further medical evidence about Mrs Hill had been obtained; and (3) an eight page letter dated 19 February 1999 had been written to the Deputy Greffier on behalf of the Housing Committee, dealing at length with all the relevant issues, including the current serious shortage of housing on the Island, the procedures of the Housing Committee, and the reasons for its decision.
15. The review by the Board of Administrative Appeal of the Housing Committee's decision not to grant consent under Regulation 1(1)(g) took place on 21st April, 1999. After a lengthy hearing, in the course of which the Board heard submissions by Mr Shenton for Mrs Glazebrook, and by Mrs Baudains (President of the Housing Committee), Mr Le Ruez and Mr Connew for the Housing Committee, the Board made the following findings (which I quote in full):
"5. The Board's findings
5.1 The Board recognises that the Housing Committee faced an unenviable task in considering a large number of applications from persons with individual circumstances, some representing cases of greater hardship than others, which prevented them from residing in the Island. Whereas the Board has taken note of the 'tests of balance' which were applied to each case by the Housing Committee, it now falls to the Board to decide on the facts of this particular case whether the Committee's decision was unreasonable and would subject the Complainant to an excessive hardship.
5.2 The Board, having resolved to divorce itself from the earlier history of this matter, has based its decision only on the current facts as they affect Mrs Glazebrook and the long-term well-being of her son. Having noted that the Chief Executive Officer of the Housing Department had accepted that a child might well represent a significantly greater level of hardship in any given case, the Board believes that this must apply to an even greater degree when a 'disruptive' emotionally and behaviourally disturbed child is involved - a factor which whilst possibly not unique to Mrs Glazebrook's situation was unlikely to apply in "hundreds of other cases."
5.3 The Board has also noted from information provided by the Housing Department that it appears that many cases which involved medical circumstances have hitherto been granted consent by the Committee.
5.4 The Board considers that, in Mrs Glazebrook's case, it would be more appropriate for her as a member of a Jersey family to be granted consent than it would be for a person without local connexions to be allowed to gain residential qualifications. In the present case Mrs Glazebrook has no other relatives other than in Jersey to whom she could call upon for assistance. Mrs Glazebrook finding herself in great difficulty was, in effect, 'coming home' to the support of her parents. A further factor in Mrs Glazebrook's favour is that whilst, in normal circumstances, it would have been appropriate for her to live with her parents, Mrs Hill's unfortunate illness rendered it detrimental to the well-being of the family as a whole when taken into consideration with Matthew's own emotional and behavioural difficulties.
5.5 Whilst the Board recognises that it could be said that Mrs Glazebrook's occupation of lodging accommodation would enable her and her son to live in the Island in premises other than those of her parents, the Board has noted that Matthew Glazebrook would then be required to spend his formative years in such accommodation and it might not be possible to find appropriate accommodation so that Matthew could continue at his present school.
5.6 The Board, taking into account the family's Jersey background, the fact that there are no other close relatives living in the United Kingdom, and that Mrs Glazebrook, now a single mother, is bringing up a child with emotional and behavioural difficulties in the Island where her parents, one of whom is potentially seriously ill, reside, believes that the Housing Committee has been unduly oppressive and unreasonable in its decision not to grant consent to Mrs Glazebrook, and that an excessive hardship would result.
5.7 The Board, in conclusion and in line with Article 9 of the Administrative Decisions (Review) (Jersey) Law 1982, as amended, having found in favour of Mrs Glazebrook, urges the Housing Committee to reconsider its decision and requests that the Committee undertakes such reconsideration within three months from the date of these findings."
16. The matter then came before the Housing Committee on 17th May, 1999. The relevant portion of the minutes is as follows:
"The Committee received an oral report from the Law and Loans Manager and recalled that similar requests were frequently received for permission to occupy property under Regulation 1(1)(g) and that its decision to reject the application had not been inconsistent with decisions of previous Committees. The Committee believed that a precedent would be set if the recommendations of the Board of Administrative Appeal were accepted. The Committee noted the contents of a letter dated 19th November, 1998, from Dr Carolyn Coverley, Consultant Child and Adolescent Psychiatrist, expressing the opinion that Mrs Glazebrook's child would suffer emotionally if he had to leave his extended family in Jersey and that this could have long-term consequences on his development. Whilst expressing sympathy with the circumstances of the family, the Committee believed that the medical evidence which had been presented relating to Mrs Glazebrook's child did not necessarily indicate that the conditions described were the result of its refusal to grant permission on the grounds of hardship and that the problems being experienced were no different from other families suffering the effects of divorce. The point was made that the Board of Administrative Appeal could be swamped with requests from similarly aggrieved applicants if the Committee acceded to its recommendation. It also noted a letter dated 27th January, 1999, from Mr Howard Gibson, FRCP, Consultant Physician and Neurologist, which indicated that it was highly likely that Mrs Hill was suffering from multiple sclerosis and that, from a medical point of view, a general reduction in her overall stress level was desirable. The Committee agreed that Mrs Hill's likely illness did not bear major relevance to its decision.
After considerable discussion and in order to assist the Committee in coming to a decision, the Law and Loans Manager was requested to conduct research on comparable cases specifically relating to consents given on the grounds of hardship to children of people who had been born in the Island compared with children of people who had acquired qualifications having completed a period of residence in the Island. The Chief Executive Officer was requested to seek clarification concerning the medical condition of Mrs Glazebrook's son. The Committee recognised the importance of coming to a decision within one month and agreed to reconsider the circumstances of the case at its meeting on 14th June, 1999."
17. On the same day the Chief Executive Officer, Mr Eric Le Ruez, wrote to Mrs Glazebrook to inform her that her application would be fully reconsidered.
18. Following a request by Mr Peter Connew, Law and Loans Manager, further psychiatric advice about Matthew was given by Dr Coverley in a letter of 1st June, 1999. Dr Coverley emphasised the effect on Matthew of the broken marriage, the total loss of contact with his father (whom previously Matthew had idolised) which had had a devastating effect on Matthew, the deterioration in Matthew's condition since he came with his mother to Jersey, because of the loss of a relationship with his father, and the lack of any extended family to support Mrs Glazebrook and Matthew in England.
19. On 14th June, 1999, the Housing Committee reconsidered Mrs Glazebrook's application and decided not to consent. The material portion of the minutes reads as follows:
"The Committee noted a list of other similar cases that had been considered by the Committee, as constituted at the time, under Regulation 1(1)(g) of the Housing Regulations, and was able to draw comparisons of the hardship experienced in those cases as compared to the circumstances of Mrs Glazebrook. The Committee formed the view that the medical evidence produced in the case of Mrs Glazebrook was not as convincing as it might have been as it did not necessarily indicate that this was resultant from its decision not to grant consent on the grounds of hardship but rather that this was symptomatic of families experiencing the effects of divorce. Furthermore, Mrs Glazebrook's case was no different to many others that had been placed before it in the past for which consent had been declined, however, she had the benefit and support of an extended family, which was resident in the Island.
The Committee, having agreed that while it had great sympathy for Mrs Glazebrook's circumstances, as it had, indeed, for many of the applications brought before it under Regulation 1(1)(g) of the Housing Regulations, formed the opinion that Mrs Glazebrook's case was not any worse than many other comparative cases which had been rejected in the past as there was no compelling evidence that excessive hardship would result from its decision. Furthermore, the Committee expressed the following views -
(a) that the Board had not made sufficient comparisons to the numerous other submissions under Regulation 1(1)(g), many of which presented situations of emotional and physical trauma exacerbated by their individual difficulties to have access to the controlled housing market and their personal circumstances such as marriage/relationship breakdowns;
(b) that the Board would have had limited appreciation for the extent of such cases noted above when considering the case of one family in isolation;
(c) that while it was not disputed that children were made to suffer emotional and behavioural disturbance during relationship breakdowns, this was a common issue that arose in hundreds of other cases that were considered by the Committee under this Regulation, and was, therefore, not unique to Mrs Glazebrook's case;
(d) that the Housing Regulations already accounted for qualified and non-qualified persons in terms of the required period of residency to be achieved prior to obtaining full residential status, and that Mrs Glazebrook had made her own decision to come to Jersey with her son in order to receive the support of her parents, assumably, in the light of the current restrictions under the Housing Law and Regulations. Mrs Glazebrook's actual period of residency, not withstanding her mother's unfortunate illness, was in fact very limited;
(e) that while the location of Mrs Glazebrook's present accommodation was not as convenient for her son's attendance at his present school, it would not be impossible to find some other form of accommodation that would allow her son to continue at this school;
(f) that as the Law itself discriminates in favour of those persons possessing residential qualifications, as a single mother, Mrs Glazebrook's case was no different to many other single parents without residential qualifications living in the Island, but unlike those with no family connexion, she would qualify in less than six years time.
The Committee, with the foregoing in mind, decided to maintain its former decision to decline Mrs Glazebrook consent under Regulation 1(1)(g) of the Housing Regulations, and to advise the Board of Administrative Appeal of its decision, and detailed reasons for it, accordingly."
20. In addition, Mrs Baudains as President wrote a letter of 18th June, 1999, to the Chairman and other members of the Board of Administrative Appeal, and to Mrs Glazebrook, explaining in some detail the Housing Committee's reasons for rejecting the application.
21. By letter dated 7th July, 1999, Mr Hill asked the Housing Committee to consent to Mrs Glazebrook and Matthew moving to Church End pending the hearing of an appeal to the Royal Court. At its meetings on 12th and 23rd July, 1999, the Housing Committee decided not to accede to this request.
22. On 15th July Mrs Glazebrook appealed to the Royal Court pursuant to Article 12(1) of the 1949 Law against the Housing Committee's decision of 18th June, 1999.
23. The Housing Committee filed a statement dated 13th August, 1999, in which it answered the notice of appeal but without prejudice to its argument that the notice of appeal was informe, because the decision was to refuse consent in principle under Regulation 1(1)(g) and such a consent did not fall within the ambit of the 1949 Law.
24. The Royal Court (Sir Peter Crill as Commissioner, and Jurats Potter and Le Brocq) heard the matter on 16th and 17th December, 1999. It appears that the question whether the notice of appeal was informe was heard first. The Royal Court decided that it was informe for the reasons submitted on behalf of the Housing Committee by Advocate Belhomme, in particular, because Mrs Glazebrook's application to the Housing Committee had not been an application to occupy Church End (or any other particular property) and had not involved a "transaction" falling within the 1949 Law. The Royal Court, with the consent of the advocates for the parties, then decided to treat the matter as if there was an application for judicial review of the decision of 18th June, 1999, as opposed to an appeal.
25. Following the amendment of the Royal Court Rules on 20th January, 2000, an application for judicial review would have to be made in accordance with the procedure laid down in new Part XIIA of the Rules. But in this case the hearing was before the Rules had been amended, and the Royal Court treated the appeal as if it had been an application for judicial review with some degree of informality. It is, however, important to note that the observations in States Greffier v Les Pas Holdings Ltd (1998) JLR 196 at pp.206-207 (cited on the appeal by both parties) have been to some extent overtaken by the amendment of the Rules to introduce the special Part XIIA procedure.
26. The Royal Court then heard oral evidence at length from four witnesses: Dr Coverley and Mrs Glazebrook on one side, and Mr Le Ruez and Mr Connew on the other. Whatever may be the position on an appeal under Article 12 of the 1949 Law, on an application for judicial review the hearing of oral evidence should occur only in exceptional cases. Usually the Royal Court will decide the application on affidavit evidence, and it will be only in exceptional cases that the Royal Court will permit cross-examination of the affidavit deponents: oral evidence in chief will be even more rarely permitted.
27. The Royal Court on 17th December, 1999, dismissed the application for judicial review for reasons which were set out in its judgment delivered on 31st January, 2000. Mrs Glazebrook now appeals to this Court with leave of the Royal Court.
28. It appears that at the end of 1999 Mrs Glazebrook and Matthew returned to England to live in her house in Kent, which despite her previous submissions, had become available. There is no evidence before this Court as to the circumstances under which she and her son now live in England and not in Jersey.
29. The appeal has taken a somewhat unusual course. Advocate Philip Sinel was instructed by Mrs Glazebrook in place of Advocate Gillian Robinson who appeared for her before the Royal Court. On 28th July, 2000, Mr Sinel lodged a supplementary notice of appeal in which reliance was placed on new evidence challenging the oral evidence given by Mr Le Ruez and Mr Connew in the Royal Court. At about the same time Mr Hill made a formal complaint to the President of the Human Resources Committee alleging maladministration, and also perjury by the two officers in their evidence before the Royal Court. His complaint has led to two sets of enquiries: one by the Jersey Police; and the second is an administrative disciplinary enquiry. Mr Sinel indicated that he would be seeking leave of the Court of Appeal to rely on his new evidence before this Court on the hearing of the appeal.
30. This led to an application by the Housing Committee for a stay of the appeal pending completion of the police investigation and, if any criminal proceedings were to be brought, pending completion of such proceedings. I heard this application as a single Judge of the Court of Appeal on 11th September, 2000, and delivered judgment on 14th September, 2000. I refused the application for a stay, but directed that the appeal documents on both sides should not receive any publicity and should be seen only by the persons I specified in my Order, and that the hearing of the appeal should start in camera, so as to enable this Court then to decide whether the whole or part of the appeal hearing should be in camera. I made that direction so as to ensure that, if any criminal proceedings were to be begun, the fair conduct of those proceedings would not be jeopardised. Reference can be made to the terms of the judgment of 14th September, 2000, for the full reasons given for making those directions.
31. Advocate Belhomme who appears for the Housing Committee filed a number of affidavits in response to Mr Sinel's fresh evidence, being affidavits by members of the Housing Committee and by the two officers, Mr Le Ruez and Mr Connew.
32. Though in the early part of his written submissions Mr Belhomme appeared to be resisting the introduction of any further evidence on this appeal, in paragraph 6.12 he indicated that the objection to the admission of fresh evidence would not be pursued. So this Court has been able to take into account all the evidence placed before it by both sides.
33. When the appeal was called on for hearing Advocate Sinel for Mrs Glazebrook and Advocate Belhomme for the Housing Committee made submissions as to whether the hearing should be in camera. It became apparent from their submissions that each issue to be argued before this Court was likely to involve examination of the fresh evidence, and therefore potentially to involve the risk, if the hearing were to be in open court, of jeopardising future criminal proceedings (if any). Accordingly this Court ordered that the whole hearing be held in camera, but that the judgment of the Court be delivered in open court.
34. At an early stage in Mr Sinel's oral submissions I drew to the attention of Counsel certain problems which underlay the decision-making process adopted by the Housing Committee. To explain the nature of these problems, it is necessary to consider in some detail the relevant provisions of the 1949 Law.
35. Part III of the 1949 Law provides powers available to the Housing Committee to control sales and leases of land. Article 5 contains relevant definitions of terms used in Part III including "lease", "lessor" and "lessee". The most relevant definition is of the phrase "transaction to which this Part of this Law applies". By Article 6(1) Part III of the 1949 Law applies
"to every transaction being -
(a) a registered contract for the sale or transfer of any land in perpetuity, or for a term expiring on the happening of a specified event, or for the unexpired portion of any such term as aforesaid; or
(b) a lease of any land, whether parol or in writing, including a registered contract of lease".
The term "registered contract" is defined in Article 5 as meaning "a contract" passed before the Royal Court and registered in the Public Registry of Contracts. (Article 6(2) excludes from the application of Part III four classes of transaction, but these are not relevant for the purposes of this judgment.)
36. Article 7 contains a prohibition on entry into any transaction to which Part III of the 1949 Law applies "without the consent of the Committee previously obtained". Under Article 8(1)
"Where it is proved to the satisfaction of the Court that a transaction to which [Part III] of this Law applies has been entered into without the consent of the Committee, the Court may declare the transaction to be void."
37. Article 9 provides for the making of applications for the Housing Committee's consent in these terms:
"Every application for the consent of the Committee to any transaction to which [Part III] of this Law applies shall contain or be accompanied by such particulars, information and documents as may be required by the Committee and the Committee may require the application to be verified by an affidavit made by the applicant or some other person having a knowledge of the facts."
38. It is plain from the wording of Article 9 that applications for the Committee's consent have to relate to a relevant "transaction", that is to say, an intended contract for the sale or lease of "land" (which by virtue of the definition in Article 1 and one of the exclusions in Article 6(2) includes any building which is a dwelling-house or any part of a dwelling house), such contract being between two persons, one of whom is the applicant, and on specified terms. It is not open to an applicant to apply for the Committee's consent on any general basis or without reference to a specific proposed transaction.
39. Under Article 10(1), which deals with the grant or refusal of consent,
"The Committee shall grant consent, either unconditionally or subject to such conditions as the Committee thinks fit, to the sale, transfer or lease of any land of a class for the time being specified by the States by regulations made under [Part III] of this Law and shall refuse consent to any sale, transfer or lease not so specified."
I will turn shortly to the 1970 Regulations. But here I draw attention to the words "shall grant consent" and "shall refuse consent", which make clear that the Committee's discretion is set within the finite bounds laid down in the 1970 Regulations.
40. Pausing here, I emphasise the main point which arises from the interpretation of the statutory provisions mentioned so far. This point is that applications must be, and consents must also be, in relation to specific proposed transactions, and are not to be made in the abstract and without reference to any specific proposed transaction.
41. Article 10 also provides for the making of consents subject to certain conditions or classes of conditions.
42. Article 12 deals with appeals and provides as follows:
"(1) Any person aggrieved by the refusal of the Committee to grant consent to any transaction to which this Part of this Law applies or by any conditions attached to any such consent or by the revocation of any such consent may appeal to the Court against the decision of the Committee within one month after the date on which notice of such decision was sent to him.
(2) On any such appeal, the Court may either dismiss the appeal or may give to the Committee such directions in the matter as it considers proper, and the Committee shall comply with any such direction.
(3) Any appeal under this Article may be heard and determined either in term or in vacation.
(4) The costs of any appeal under this Article shall be paid in such manner and by such parties as the Court may direct."
43. I emphasise these points in relation to Article 12:
(1) Appeals can be made to the Royal Court only in respect of (a) a transaction to which Part III of the 1949 Law applies and (b) a decision by the Committee in relation to such a transaction.
(2) The powers of the Court on any such appeal are substantially wider than those which the Court would have if there were an application for judicial review rather than an appeal under Article 12. The extent of the Court's powers can be seen by reference to the decision of this Court in Island Development Committee v. Fairview Farm Ltd (1996) JLR 306 and the judgment in Fairview of Sir Godfray Le Quesne JA, particularly at page 317. The wording of the statutory provision for appeals in Article 21 of the Island Planning (Jersey) Law 1964 (the provision being considered in Fairview) is different from the wording of Article 12 of the 1949 Law. Since the point was not fully argued before us, I would not wish to express any finally concluded view as to the ambit of the Court's powers under Article 12. But it seems to me to be plain that on an Article 12 appeal the Court has a duty to consider not only whether the Committee has acted within its powers and in accordance with the appropriate procedure (the judicial review function), but also to form its own view, not just as to whether any reasonable body could have reached the decision which the Committee reached, but whether that decision was, in the view of the Court, unreasonable (the appeal function). In performing this function the Court is entitled to allow whatever weight it thinks appropriate to the experience and knowledge of the Committee.
(3) The reference to the hearing of an appeal "either in term or in vacation" in Article 12 shows that the States intended such appeals to be heard speedily, in the interests both of the applicant and of the Island community as a whole.
44. I turn next to the 1970 Regulations. Regulation 1(1) begins (as I have already said) by providing that
"Subject to the provisions of this Regulation, for the purposes of Article 10 of the [1949] Law, consent to the sales or transfers of land or registered contracts of lease shall be granted by the Housing Committee in any case where - "
and there is then set out a large number of classes of transaction. Most of these classes do not involve any further decision by the Housing Committee beyond finding out and deciding whether the applicant and the transaction fall within the definition of the particular class. Some of the classes expressly require the Committee to be "satisfied" of certain matters which may require not merely a decision whether the applicant and the transaction fall within the defined class, but also an evaluation of the weight of the relevant circumstances. One example is Regulation 1(1)(k) which reads "(k) the Committee is satisfied that consent can be justified on social or economic grounds". An applicant under sub-paragraph (k) would have to put forward a proposed transaction and grounds on which the Committee could reasonably form the judgment that "consent can be justified on social or economic grounds". I emphasise again that there would have to be a specific proposed transaction for the Committee to consider.
45. I have already quoted the words of Regulation 1(1)(g). For an application to be considered and consent granted under sub paragraph (g) the following would be necessary:
(1) There would have to be an applicant who is proposed to be the purchaser, transferee or lessee of a specific property under the terms of a specific transaction.
(2) The applicant would have not to fall within any other sub-paragraph in Regulation 1(1).
(3) The Housing Committee would have to be satisfied that there would be hardship, other than financial hardship, which, if consent to such transaction were not to be granted, would be caused
either (a) to the applicant;
or (b) to "persons ordinarily resident in the Island".
This requirement may hereafter be of relevance in relation to an application by Mrs Glazebrook because the relevant hardship might be either hardship to her or hardship to her parents who are ordinarily resident in the Island.
(4) The Committee would have to be satisfied that such hardship would outweigh the fact that the applicant would not fall within any other sub-paragraph of Regulation 1(1).
46. It appears that for a number of years the Housing Committee has adopted a procedure which is not in accordance with the statutory framework that I have outlined. Under this procedure an applicant has applied by letter or otherwise to the Housing Department for consent under Regulation 1(1)(g) setting out the grounds of hardship relied on, but frequently not in relation to any specific property and not in relation to any specific transaction. So Mrs Glazebrook's application by letter dated 4th November 1998, though it contained two references to Church End, was not an application related to that property or to any transaction concerning that property. Indeed in the last sentence of the letter Mrs Glazebrook stated that
"I therefore seek housing consent to enable Matthew and I to have greater choice in the housing market and to continue to live in Jersey to be near to my family ..." (my emphasis).
47. This application letter was, in accordance with the Committee's adopted procedure, treated as an application for Regulation 1(1)(g) consent by the Housing Committee at its meeting on 13 November 1998 at which the Committee decided to reject the application. In the minutes it was described as
"an application by Mrs Catherine Glazebrook, née Hill, for consent to occupy property in the Island under Regulation 1(1)(g) ..."
48. Throughout the history which I described at the beginning of this judgment Mrs Glazebrook's letter continued to be treated by the Housing Committee as a Regulation 1(1)(g) application. When the request of 20 January 1999 was made by Mr Hill on behalf of Mrs Glazebrook for a review by the Board of Administrative Appeal, Mrs Glazebrook's letter continued to be so treated by the Housing Committee and by the Board of Administrative Appeal. The Housing Committee continued so to treat her letter when it met on 17 May 1999 to consider the Board's conclusions, and on 14 June 1999 when it met and rejected her letter as an application under Regulation 1(1)(g), and then wrote on 18 June 1999 to the Board of Administrative Appeal and to Mrs Glazebrook explaining the Housing Committee's reasons for refusing consent under Regulation 1(1)(g).
49. There followed on 15 July 1999 Mrs Glazebrook's appeal to the Royal Court stated to be under Article 12(1) of the 1949 Law.
50. On 13 August 1999 the Housing Committee, in its statutory statement in response, for the first time raised the threshold point that the appeal was misconceived because Mrs Glazebrook's application and the Housing Committee's refusal of consent were merely "in principle", and no appeal could be made under Article 12 of the 1949 Law from such an "in principle" refusal of consent.
51. I pause to repeat, as I have already indicated, that throughout the period from Mrs Glazebrook's letter of 4 November 1998 until August 1999 the Housing Committee had never raised this point with Mrs Glazebrook, and had throughout treated her application as one complying with, and requiring a decision under, Regulation 1(1)(g). Not surprisingly, Mrs Glazebrook, Mr Hill, the members of the Housing Committee and its officers appear to have assumed that her application and the Committee's several decisions were pursuant to Regulation 1(1)(g).
52. The Royal Court accepted that no appeal could lie, but without giving any sufficient reasons for this conclusion, and proceeded to treat the appeal as an application for judicial review without regard to the substantial differences between a statutory appeal under Article 12 and an application for judicial review.
53. As Mr Sinel began to open Mrs Glazebrook's appeal before this Court, I expressed a tentative view that (1) everything which had taken place since November 1998 was of no legal effect because Mrs Glazebrook had never made an application related to a specific transaction concerning a specific property, (2) the entire procedure adopted by the Housing Committee in the case of Mrs Glazebrook and many other applicants purportedly under Regulation 1(1)(g) (a procedure presumably adopted on the basis of legal advice) had been misconceived because there had never been applications in Mrs Glazebrook's case or the other cases directed to specific transactions concerning specific properties, and (3) it might well be that all that the Court of Appeal could do would be to declare that the Housing Committee decisions had been of no legal effect, leaving Mrs Glazebrook to start again afresh with a proper application under Regulation 1(1)(g) related to a specific transaction concerning a specific property (which would no doubt be Church End). The members of this Court pointed to (inter alia) two major problems which resulted from the adoption by the Housing Committee of its non-statutory procedure:-
(1) Applicants have been led to believe that refusal of consent to their applications could be the subject of statutory appeals under Article 12. This could be the cause of serious unfairness to applicants, particularly if like Mrs Glazebrook they were not told by the Housing Committee that they had no right to appeal under Article 12 until after they had taken all the steps leading up to and including the commencement of an appeal.
(2) Successful applicants under the non-statutory procedures could have had the opportunity to take their time in seeking out a suitable property and a suitable transaction. By the time the Housing Committee had been asked to consent and had consented to such transaction the circumstances of the applicants could have changed so that they no longer suffered from the hardship on which they had previously relied.
54. Not surprisingly this expression of a tentative view of the appeal led to much re-thinking on both sides, and the tentative view was tested in further submissions by both Counsel. Following an adjournment Mr Sinel sought leave to amend the notice of appeal to include, further or in the alternative, applications for orders as follows:-
(1) an order quashing all decisions which the Housing Committee had purported to take in relation to Mrs Glazebrook's application, and also the decision of the Royal Court of 17 December 1999;
(2) an order that the Housing Committee be directed to receive and render a decision on a fresh application to be submitted by Mrs Glazebrook in respect of a specific transaction relating to Church End;
(3) an order that the Committee's consideration of such fresh application be on the basis of the circumstances prevailing at 14 June 1999 (when the last purported decision was made by the Committee);
(4) an order that the Committee pay all Mrs Glazebrook's costs of and incidental to her application to the Committee, her appeals to the Royal Court and to the Court of Appeal on a full indemnity basis.
55. Following further reflection Mr Belhomme for the Housing Committee wisely made certain concessions which removed the necessity for further detailed argument on these matters. I will come to these concessions shortly. But first I consider it appropriate, since this decision of the Court of Appeal will lead necessarily to a major reconsideration of the Housing Committee procedures, to make a few observations as to the new orders sought by Mrs Glazebrook and the underlying legal principles.
56. The first question is as to the jurisdiction of the Court of Appeal. There never was any appeal in law under Article 12 by Mrs Glazebrook. That is why, with the consent of both Counsel then appearing, the Royal Court treated the appeal as being instead an application for judicial review of the Housing Committee's decisions, though it did so without sufficient consideration of the appropriate procedure or of the consequences of such a change. For my part I consider that the Court of Appeal is entitled to exercise the powers available to it upon a judicial review of the Housing Committee's decisions, and accordingly to allow Mrs Glazebrook's appeal from the Royal Court and to declare that every one of the Housing Committee's decisions (which unless set aside by a Court of Law would remain effective) is of no legal effect and a nullity.
57. Next, in my judgment it is unnecessary for an order to be made requiring the Housing Committee to render a decision on a fresh application by Mrs Glazebrook. It is clear that in the light of this Court's decision the Housing Committee will now duly consider and reach a reasonably speedy decision on such an application. I emphasise here that this Court is expressing no view whatever as to whether such an application should or should not receive consent.
58. In this connection one point which needs to be mentioned is the matter of "comparables", other cases in which the Housing Committee has reached a decision under Regulation 1(1)(g), on which a great deal of emphasis has been placed by both sides in the papers before this Court. It is the duty in law of the Housing Committee to aim for a reasonable degree of consistency in the decisions which it makes under sub-paragraph (g). But these matters need to be kept in mind:
(1) Many of the decisions will have been reached by operation of the procedure which this Court holds to be not legally competent, and such decisions may provide little useful guide for future decision making.
(2) It is difficult to make any useful comparison without knowing enough of the facts and circumstances relating to the other cases said to be comparable. The Housing Committee will not be able to engage in transparent decision-making unless it discloses to an applicant the details concerning earlier cases which it might propose to take into account. But this would be likely to involve the Committee in breaches of the duty of confidence owed to the other applicants.
(3) In the absence of adequate knowledge of the details of other cases, supposed comparables may well be misleading.
59. Next I turn to Mr Sinel's submission that a fresh application should be viewed in the light of circumstances as they were in June 1999, and not in the light of changed circumstances in 2000 or 2001. This is a point of some potential importance to Mrs Glazebrook because it is her case that she had to leave the Island in December 1999 to live in England because of the conduct of the Housing Committee in failing to advise her that she was pursuing a legally ineffective course until the lawyers acting for the Committee did so at the eleventh hour in August 1999. In my judgment fairness requires that a fresh application if made by her without undue delay should be considered by the Committee as if it were being considered in June 1999. Mr Sinel sought to achieve this result by reliance on either the doctrine of legitimate expectation in administrative law, or estoppel, either estoppel by convention or promissory estoppel. In my judgment the doctrine of legitimate expectation could not be extended so as to assist Mrs Glazebrook, and I have some doubt whether either form of estoppel would avail her. I would prefer to put the matter more simply, that fair treatment of her as an applicant requires that the Committee does not rely on a change of circumstances which to a material degree was caused by the Committee itself in adopting a procedure which did not comply with the statutory requirements, and in failing to point out before August 1999 that she was pursuing an "application" which would not enable her to take advantage of the right of appeal under Article 12.
60. Returning to the concessions made by Mr Belhomme on behalf of the Housing Committee, these concessions were that :
(1) applications under Regulation 1(1)(g) are required to be in relation to specific transactions;
(2) the proceedings adopted by the Committee in relation to Mrs Glazebrook are a nullity because the procedure was one which should not have been followed;
(3) a fresh application by Mrs Glazebrook in relation to a specific transaction will be considered by the Committee in the light of the circumstances existing in June 1999.
61. Both Counsel told this Court that despite these concessions they wished to receive a reasoned judgment or judgments to explain the orders to be made by this Court and to guide as to future procedure to be adopted by the Committee and by applicants. I hope that this judgment may provide some assistance for this purpose in the context of the legislation as it now stands. But it must be kept in mind that no doubt the non-statutory procedure came into existence in order to assist applicants suffering hardship. The States will need now to consider what changes in the legislation are appropriate so as to ensure that such applicants receive the requisite help in making applications for housing consent.
62. Accordingly
(1) I would allow Mrs Glazebrook's appeal and declare that every decision of the Housing Committee in relation to Mrs Glazebrook is null and of no legal effect.
(2) I would declare that any further application by Mrs Glazebrook under Regulation 1(1)(g) must be in respect of a specific transaction relating to a specific property.
(3) I would order that, provided Mrs Glazebrook makes a further application under Regulation 1(1)(g) within 28 days from today, and such application complies with the requirements of the 1949 Law and the 1970 Regulations, such application shall be considered by the Housing Committee in the light of all the circumstances existing in June 1999.
63. With regard to costs, fortunately agreement has been reached between the parties. In accordance with such agreement I would order that the Housing Committee pay to Mrs Glazebrook her costs of and incidental to the proceedings before the Royal Court and before the Court of Appeal, to be taxed if not agreed on the standard basis, but that in any event the Housing Committee pay to Mrs Glazebrook the amount of the fees charged by Miss Sinead Agnew of the English Bar at the actual rate of such fees as charged.
64. Finally I congratulate both parties and their Counsel for all that they have done to achieve an appropriate outcome to these proceedings.
THE PRESIDENT : I agree.
SMITH, JA : I agree and have nothing to add.
Authorities
Housing (Jersey) Law, 1949.
Housing (General Provisions) (Jersey) Regulations, 1970.
Greffier of the States -v- Les Pas Holdings, Ltd (1998) JLR 196 CofA.
Island Development Committee-v-Fairview Farm (1996) JLR 306.
Housing Committee-v-Phantesie Investments, Ltd. (1985-86) JLR 96.