Jersey Unreported Judgments

 2002/119

ROYAL COURT

(Samedi Division)

 

11^th June 2002

 

 

The Attorney General

-v-

Anthony George Benest.

 

 

1 count of:

Contravening Article 8 (1) of the Island Planning (Jersey) Law 1964 by creating a bridle path, which constituted development without development permission. (count 2)

 

[On 19^th October, 2001, the Defendant denied the facts of this and two other counts, count 1 and 3; a trial was ordered, which started on 22^nd January 2002, when the defendant admitted the facts of count 2, and the Crown accepted his denial of the facts on counts 1 and 3, which were therefore dismissed.  On 15^th March 2002, at the sentence hearing, a dispute on the facts of the contravention arose and a 'Newton' hearing was ordered.  On 11^th June, 2002, (see Jersey Unreported Judgment 2002/118) the 'Newton' hearing took place and the Court then proceeded to sentencing. ]

 

 

Age:     64

 

Plea:    Guilty.

 

Details of Offence:

The defendant created extensive horse trails/bridle paths on his property requiring the use of a mechanical digger.  The paths were created into the side of the hillside/cotîl.  In some areas the paths were 18ft wide with cuts into the rock face at some points being 10ft high.  In total the path extended to some 583 metres (637 yards).

There had been a meeting on site between the Defendant and Mr. Michael Stein, a Senior Planner.  It was Mr Stein's evidence that the Defendant had raised the creation of the horse trails at a meeting on site and it was Mr. Stein's evidence both at trial and the Newton Hearing that he had been advised by the Defendant that the paths were to be created by the trampling of horses.  On the basis of this Mr. Stein had advised that no development works were being undertaken.  At the Newton Hearing the Defendant denied that this conversation had ever taken place and contended that there had been a subsequent telephone conversation in which, having described the route that the paths were to take in detail, it was alleged that Mr. Stein had said that a permit was not required because the works "were within the curtilage of the property".  The Defendant's version of events was rejected at the Newton Hearing.

The unauthorised operations occurred in the Green Zone and also in the Agricultural Priority Zone.  However, a retrospective application by the Defendant to the Planning Committee had been granted.  On the one hand, the Committee had been faced with a 'fait accomplit' because rectification could not have been achieved, whilst on the other hand, from a wider picture, the unauthorised operations did not have a significant impact on the landscape.  The initial unsightliness of the paths had been improved by the further works undertaken by the Defendant and by the passage of time.

The Defendant only entered a guilty plea to charge 2 after the first day of the trial, following an indication from the Court that it considered contraventions of the Island Planning Law as offences of strict liability.  There was no requirement upon the Crown to show that the Defendant had intended to break the law but rather that it was sufficient to show that the works undertaken were works which required the obtaining of permission under the terms of the law.

    

 

Details of Mitigation:

The Defendant was aged 64 and a man of good character.  Character references were provided. The Defendant had consulted with the Environmental Services Unit when undertaking the works to ensure that the works had regard to ecological environmental issues. The Defendant planted over 400 trees.  It was intended that the paths were to be used by disabled riders hence the need for them to be so wide for riders to ride two a breast.  Photographs showing the current state of the paths were produced to the Court showing considerable improvement in the ayscetic appearance of the paths from the time when first created and brought to the attention of the Planning Department.

The main mitigation was that Mr. Stein had indicated that a planning application was not necessary.  A retrospective application had been approved by the Committee.

 

Previous Convictions:

None.

 

Conclusions:

Count 1:

£2,500 fine or 6 months' imprisonment, in default of payment.

 

 

Sentence and Observations of Court:

Count 1:

£2,000 fine or 2 months' imprisonment, in default of payment; £1,250 costs.

 

This was a serious breach of the Planning Law with considerable scarring to the countryside as seen from the first set of photographs.  The more recent photographs showed how the effects had softened with time.  The main mitigation was that Mr. Stein had said that an application for planning permission was not necessary.  This statement by Mr. Stein was based on a misunderstanding of the position.  Mr. Benest did not deliberately mislead Mr. Stein in this respect but neither did he give him the full picture.  It should have been obvious from the nature and scale of the works undertaken in the countryside that they would amount to development and would therefore need planning permission.

The Defendant was aged 64 and of good character.  The references produced spoke highly of him and one of the references confirmed that the Riding for Disabled Charity intended to use the paths.

In light of the mitigation the Court felt able to reduce the conclusions slightly.

 

J.C. Gollop, Esq., Crown Advocate.

Advocate J.P. Michel for the accused.

 

 

 

JUDGMENT

 

 

 

THE DEPUTY BAILIFF:

1.        This was a serious breach of the Planning Law.  The original photographs showed considerable scarring to the countryside, although the more recent photographs show clearly that the effect has softened over time.

2.        The main mitigation on behalf of Mr. Benest is that Mr. Stein had said to him that an application for planning permission was not necessary.  However, it is clear that this statement by Mr. Stein was based on a misunderstanding of the position.  We have found that Mr. Benest did not deliberately mislead Mr. Stein in this respect, but neither did he give him the full picture.

3.        In our judgment it should have been obvious to Mr. Benest that the nature and scale of the works which he was undertaking in the countryside would have amounted to development and would have required permission. 

4.        There is considerable mitigation. Mr. Benest is 64 years of age, of good character and we have read several references which speak highly of him.  Furthermore, he intends that these horse trails should be used by the Riding for Disabled charity and we have read a letter from the chairman of that charity.

5.        In the light of the particular mitigation available in this case we think we can reduce the conclusions slightly.  The Court imposes a fine of £2,000 with one month to pay, 2 months' imprisonment in default and orders payment of £1,250 of costs. 

 

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