Jersey Unreported Judgments

2002/129

COURT OF APPEAL

 

Reserved: 7^th June 2002; Handed down: 11^th July, 2002. 

 

 

 

 

Appeal by the Appellant Committee from the Judgment of the Royal Court of 25^th July, 2001, whereby it was adjudged that the refusal by the Appellant Committee of development permission for the construction of a bungalow by the Respondent was unreasonable; and whereby the Appellant Committee was directed to grant such permission for a bungalow or some other appropriate domestic building.

 

The Solicitor General for the Appellant.

Advocate D. J. Benest for the Respondent.

 

 

judgment

 

The PRESIDENT:

1.        This is an appeal against a decision of the Royal Court and relates to an application for development permission brought by the Respondent, Mr. Richard Douglas Le Maistre, under the Island Planning (Jersey) Law, 1964 ("the Law").  The Law requires that a person wishing to develop land must (subject to certain exceptions that are not relevant) apply for and obtain permission from the Appellant, the Planning and Environment Committee of the States of Jersey ("the Committee").  The Respondent is the owner of a piece of land situate at and described as Field 921, La Rue ès Boeuf in the Parish of St. Mary.  In an application dated 20^th July 1999 he sought permission to construct a three-bedroom bungalow with integral garage on the site.

2.        The Committee refused permission.  In its refusal notice dated 7^th February 2000 it stated that the reason for its decision was that the proposed development "...would be contrary to the approved Island Plan Policy for the Agricultural Priority Zone, in which there is a general presumption against any new non-agricultural development."  The Respondent appealed this decision under Article 21 of the Law which, as far as is material, reads:

"(1) Any person aggrieved by the refusal of the Committee to grant permission...may appeal...to the Royal Court...on the ground that the decision of the Committee...was unreasonable having regard to all the circumstances of the case."

3.        The appeal duly came on for hearing before the Royal Court (Samedi Division), the Bailiff presiding.  In a reserved judgment dated 25^th July 2001 the Royal Court held that the Committee's decision to refuse development permission was unreasonable.  It allowed the appeal and directed that the Committee grant development permission for a bungalow or some other appropriate domestic building on the land.  From this decision the Committee appeals to this Court.

4.        The relevant facts may be summarised as follows:  Field 921 is a small field estimated at 30 perches in area.  It borders the public road to the north and is bounded to the west by a relatively substantial guest-house and the adjacent owner's accommodation annexe and to the east by a conglomeration of buildings used by a stonemason.  To the south is open agricultural land although that is screened by a row of mature trees.  The Respondent has tried to let the land for agricultural purposes but without success.  He has used it for growing vegetables for himself and his family.

5.        The Committee advertised the Respondent's application and consulted the relevant statutory authorities.  No objections were received although one neighbour expressed a concern about a possible means of access to the site which in the event does not actually arise.  An official of the Department of Agriculture and Fisheries responded by stating that "...the Agricultural Land sub-committee recently visited the field and agreed that whilst the field is only 30 perch in size, has limited access and is not part of a holding, it is however capable of sustaining a wide range of crops."  However, the response went on to state that "they [i.e., the sub-committee] would not wish to comment on the planning issues pertaining to this application."  Clarification of this response was requested and the same official replied indicating that the sub-committee had again discussed the proposal and considered that although the field consisted of good agricultural land because of its size it "is only likely to be used as a market garden, rather than become part of a large agricultural enterprise..."  It concluded that "its loss could not therefore be described as a major loss to agriculture."

6.        The Connétable of the Parish of St. Mary indicated that he had no objection to the proposed development.  Furthermore, on 25^th May 1999 the States adopted a proposition supporting the grant of development permission as sought by the Respondent.

7.        The minute of the Committee's deliberations on the application records the receipt of a report on it from Mr. P.A. Le Gresley, then Senior Planner in the States of Jersey Planning Department with responsibility for the western half of St. Helier and the Parishes of St. Lawrence and St. Mary.  His report recommended refusal.  The minute goes on to recall the adoption by the States of the proposition supporting the grant of development permission.  It states that the Committee had regard to policy CO6 and noted that the Agriculture and Fisheries Committee had not objected.  It refers to the Committee giving consideration to the Respondent's wife's medical condition which was causing her to become increasingly less mobile and would prevent her from using stairs.  It records that the Committee "...was of the opinion that any decision it might make would not prevent the Applicants (sic) from acquiring suitable accommodation.  Accordingly, the Committee, while sympathetic to Mrs. Le. Maistre's condition, notwithstanding the support of the States for [the] proposition, did not consider the application merited making an exception to established policy and refused the application."

8.        Article 2 of the Law sets out its purposes.  These include the protection and enhancement of the natural beauty of the landscape or the countryside, the preservation and improvement of the general amenities of any part of the Island and, generally, the prevention of spoliation of the amenities of the Island.  Article 3 provides for the preparation and adoption of development plans.  The current Island Plan was adopted by the States on 3^rd November 1987.  It divides the Island into a number of zones.  One of these is the Agricultural Priority Zone and this zone includes the land in question.  Chapter 2 of the Island Plan deals with the Agricultural Priority Zone.  The material portions read as follows:

"2.15 The principle of protecting agricultural land is to be maintained.  However, changes from the current policies are proposed, based on the following considerations:

(1) Agriculture makes such an important contribution to maintaining the character of the countryside and rural communities that it deserves positive support and encouragement...;

(2) The current policy of permitting the 'infilling' of sites between existing buildings and the completion of 'groups' of existing buildings...has led to a loss of agricultural land and a gradual encroachment into the countryside...

2.16 There is a need to give positive support to the industry in the agricultural areas of the Island and to limit the spread of new development in the open countryside by restricting it to existing defined settlements...Development which is essential for the sound and efficient management of a farm holding is a special case and sympathetic consideration will be given to applications for such development. 

POLICY CO6

Agricultural and all other land outside the 'Green Zone', the defined 'Built-Up Area', the 'Green Backdrop Zone' and the 'Villages' is designated as an 'Agricultural Priority Zone' where:

There will be a presumption against any new non-agricultural development;

Applications for new agricultural buildings and other forms of development for which the Committee accepts a need will generally be approved subject to considerations of siting and design;

Applications for new dwellings which arise from agricultural need will be considered sympathetically.  The Committee will wish to be convinced of the need and will consult the Committee of Agriculture and Fisheries..."

9.        In considering the Respondent's appeal the Royal Court, correctly in my opinion, adopted the interpretation of its rôle under Article 21 of the Law adumbrated by the Court of Appeal in Island Development Committee -v- Fairview Farm Limited (1996) JLR 306 CofA.  In that case Le Quesne, JA, delivering the judgment of the Court, said (at p.317):

"...The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable.  It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view...

...The duty of the court on an appeal under art.21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that that decision was, in its view, unreasonable."

10.      The Royal Court considered that the Committee had been right not to grant development permission on the ground of the respondent's wife's medical condition.  However, the court concluded that the presumption against non-agricultural development was underpinned by two factors:  First, the promotion of positive support of and encouragement for the agricultural industry.  Secondly, the prevention of the loss of agricultural land and the gradual encroachment of development into the countryside which was the result of the former policy of "in-filling".  Relating those factors to the Respondent's application the Royal Court, after remarking that "...the Agriculture and Fisheries Committee seems, unusually, to have lent tacit support to the application submitted by the Appellant", took the view that the loss of Field 921 would not cause any detriment to the agricultural industry by reason of its small size and non marketability for agricultural purposes.  Furthermore, having visited and examined the site, it considered that there would be minimal adverse impact upon the character of the countryside in the vicinity if permission was granted and the proposed development occurred.  Accordingly, the Royal Court held that the Committee's decision to refuse development permission was unreasonable.

11.      Before this Court Solicitor General, Miss Stephanie Nicolle, Q.C., challenged the Royal Court's conclusion as to the lack of impact on agriculture.  She argued that there was no clear explanation in the Bailiff's judgment as to why the Royal Court felt that the adverse impact on the character of the countryside in the vicinity was minimal.  She pointed out that there was no finding that the field was screened from the public road so that any development would be visible from it.  The Solicitor General contended that, if "minimal adverse effect upon the character of the countryside in the vicinity" were to be regarded as a conclusion sufficient to rebut the presumption against granting permission for infilling, the policy would be destroyed.  Miss Nicolle drew to our attention the fact that the decision in question related to the Respondent's attempt to rebut the presumption by reference to his wife's medical condition.  She reminded this Court that the Royal Court held that the Committee was right not to grant permission on that ground.  Miss Nicolle submitted that it was not enough simply to demonstrate the absence of detriment to the agricultural industry and minimal adverse impact upon the character of the countryside in the vicinity in order to rebut the presumption.  Furthermore, these findings did not, of themselves, lead to the conclusion that the refusal of the Committee to grant development permission was unreasonable.    

12.      Advocate David Benest who appeared for the Respondent, sought to support the reasoning of the Royal Court.  He cautioned against the temptation to substitute our own opinion as to the impact of the proposed development upon the character of the countryside and reminded us that the Royal Court had visited the site.  He drew attention to the fact that the Royal Court had expressly concluded that the decision of the Committee was unreasonable.  Mr. Benest argued that the Committee had erred in moving from rejection of the Respondent's wife's health problem to rejecting the application without considering properly the question of the impact upon the character of the countryside in the vicinity.  The effect of the Royal Court's decision was that there could only be one conclusion on this issue: the converse was unreasonable.

13.      Essentially, in order to find for the Respondent the Royal Court had to decide two inter-related things in his favour: that the presumption against non-agricultural development had been rebutted and that the Committee's decision was unreasonable.

14.      As far as the presumption is concerned the Bailiff made the following observations:

"A presumption is not a straight-jacket (sic).  A presumption carries the connotation that, in the absence of more compelling considerations, a decision will go a particular way.  But if there are other compelling considerations, a presumption may be over-ridden."

I agree with the Bailiff's observations.  But can the considerations identified by the Royal Court as rebutting the presumption be fairly described as compelling? The small size of the field cannot be so described.  It is large enough to accommodate a bungalow and if all that an applicant had to do, in order to point to a compelling consideration, was to seek development permission for a small piece of land the policy would rapidly be destroyed.

15.      I cannot agree with the Royal Court's conclusion that the Agriculture and Fisheries Committee lent "tacit support" to the Respondent's application.  In my opinion that Committee took a neutral position.  The Royal Court was entitled to decide, as it did, that Field 921 was not marketable for agricultural purposes.  But, again, this can hardly be described as a compelling consideration.  This leaves the finding of "minimal adverse impact upon the character of the countryside in the vicinity."

16.      In the course of the evidence before the Royal Court Mr. Peter Charles Field Thorne, Director of Building and Planning Services at the Department of Planning and Building Services said that: "...[t]he necessity of development...is the area where the presumption could be rebutted..."  Admittedly the view of Mr. Thorne as to the true interpretation of the Island Plan or Policy CO6 is not determinative but reference to the material portion of the latter tends to suggest that need is, indeed, the relevant criterion.  Paragraphs (b) and (c) of Policy CO6 refer to need in relation to applications both for new agricultural buildings and "new dwellings which arise from agricultural need."   Although the paragraph in point in the instant appeal (paragraph (a)) does not refer to need explicitly it would be very strange if, in the Agricultural Priority Zone, applicants for development associated with agriculture were required to establish need whereas those applying for permission to effect non-agricultural development were not. 

17.      In the instant case the Respondent did seek to establish need on the basis of his wife's medical condition.  This was rejected as a ground sufficient to rebut the presumption both by the Committee and the Royal Court.  Therefore, in my opinion, it follows that the Respondent failed to rebut the presumption. 

18.      Even if I am wrong in this conclusion and it would have been open to the Committee to conclude that the presumption had been rebutted on foot of a consideration other than one involving need I consider that the finding of the Royal Court that the decision of the Committee was unreasonable cannot be supported.

19.      Re-examining the considerations identified by the Royal Court in this context I do not consider that either the small size of the field or the non-marketability for agricultural purposes finding, either individually or taken together, lead to the conclusion that the Committee's decision was unreasonable or are capable of contributing materially to that conclusion.  Apart from anything else this is because the policy is directed not only to the support of and encouragement for the agricultural industry but is also designed to discourage infilling and the consequent encroachment of building into the countryside.  It follows that to be capable of support in this Court it would have been necessary for the Bailiff's judgment to have contained a coherent explanation not merely as to why the Royal Court came to the conclusion based on its opinion as to minimal adverse impact upon the character of the countryside but also as to why a conclusion or opinion to the contrary would have been unreasonable.

20.      Turning to the judgment the only material touching on the "minimal adverse impact" finding is contained in the following passage: 

"The Court visited the site and examined it carefully.  Field 921 borders the public road to the north and is bounded to the west by a relatively substantial guest-house and adjacent owner's accommodation, annexe and to the east by a conglomeration of buildings used by a stonemason.  To the south is open agricultural land although that is screened by a row of mature trees."

21.      As I have indicated, Mr. Benest argued that the Committee had erred in moving from rejection of the Respondent's wife's health problems to rejecting the application without considering properly the question of the impact of the proposed development upon the character of the countryside in the vicinity.  I do not consider that this argument is borne out by the evidence.  It is clear from the report of the Committee to the States in response to the proposition supporting the application that the site had been visited in the past on a number of occasions and that repeated applications had been refused on the basis that what was proposed would involve development within the countryside.  And Mr. Le Gresley had visited the site in response to the application in question on the Committee's behalf.  There is no reason to believe that the Committee did not have this factor in mind when it made its decision.  But whether it did or did not, the question remains as to whether that decision could be said to have been unreasonable. 

22.      The planning history I have referred to discloses that the Committee's position was that the adverse impact of the development on the countryside would not be insignificant.  It is worthy of note that neither before the Committee nor before the States was the contrary asserted or argued.  Before the Royal Court Mr. Thorne would not accept that the visual impact of the proposed bungalow would be relatively minimal and sought to support the Committee's position on this point. 

23.      In my judgment, the Royal Court's laconic description of the site does not demonstrate that the Committee's contrary view on this point is capable of being characterised as unreasonable.  I am conscious of the fact that there is an element of subjectivity, of impression, in assessments of this sort.  But I cannot accept that a finding of unreasonableness could be upheld without something more than a description which does not, in itself, indicate what it is that is unreasonable in an opinion to the opposite effect. 

24.      After the judgment in the present case had been delivered the Royal Court had occasion to consider another appeal under Article 21 of the Law.  In the course of the judgment in that case (Token Limited -v- Planning and Environment Committee [2001] JLR 698) the Bailiff said (at para 9):

"The Solicitor General submitted that the decision in Fairview Farm did not entitle the Court to find that the Committee's decision was reasonable but quash it because the Court had reached an equally reasonable but different decision.  We agree.  The Court might think that a Committee's decision is mistaken, but that does not of itself entitle the Court to substitute its own decision.  The Court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene.  There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken.  To put it another way, there is a margin of appreciation before a decision which the Court thinks to be mistaken becomes so wrong that it is, in the view of the Court, unreasonable."

25.      I endorse and adopt this elaboration of the Royal Court's rôle on an appeal to that court of the present kind.  However, as far as the instant case is concerned I have to say that the Royal Court's approach to it suggests to me that it may have fallen into a trap, subsequently identified in the Token case, of moving from its own conclusion on the appeal before it to the assumption that the alternative - that reached by the Committee - was unreasonable without appreciating, or fully appreciating, that that alternative conclusion although different from the Royal Court's own might nevertheless not have been unreasonable.  To my mind the absence of an explanation as to why the Committee's decision was considered unreasonable lends weight to this suggestion.

26.      I would allow this appeal.

CAREY JA:

27.      A number of Laws in Jersey contain a provision entitling individuals aggrieved with a decision of a Committee of the States of Jersey, that impacts upon them, to have that decision reviewed by the Royal Court on the grounds that the decision is ultra vires or unreasonable.  It is interesting to note that this appellate jurisdiction of the Royal Court in many cases pre-dates the development of the law of judicial review, as it is now understood in England.

28.      As cases like Island Development Committee v. Fairview Farm Limited (1996) JLR 306 CofA show, the powers of the Royal Court (Samedi Division) on appeal are wider than those of considering issues of vires and Wednesbury unreasonableness.  The issues that arise on appeal can be categorised into those of law, which are for a Judge alone to consider, and those of fact which are essentially issues for the Jurats.  For a further exposition on where the line is to be drawn between matters for the Bailiff as Judge of law and the Jurats see the judgment of Beloff, J.A. in Walters v. States Housing Authority 1997 GLJ.24 Guernsey Court of Appeal.  It is because I respect the fact that many of these laws may not have been enacted had there not been included this right to appeal to the reason of the Jurats that I approach with a degree of caution an appeal such as this where the States of Jersey, through its Planning and Environment Committee, are challenging a decision of the Jurats relating to the Committee's reasonableness.

29.      I gratefully adopt the statement of facts contained in paragraphs 1 to 12 of the judgment of Smith, J.A. and I further agree with his analysis of the proper approach for the Jurats to take as set out in Island Development Committee v. Fairview Farm Limited as restated by the Royal Court in Token Limited v. Planning and Environment Committee [2001] JLR 698.  In particular I endorse the giving of guidance to the Jurats that they must be satisfied that the Committee's decision being reviewed is unreasonable rather than mistaken.  Jurats are respected laymen elected to their office for among other things, their personal qualities, experience of life, independence of mind, integrity and knowledge of Jersey.  A Judge may give guidance on the lines of the test in Fairview as restated by the Royal Court in paragraph 9 of the judgment in Token.  However, Jurats will come to their own view on the issue of reasonableness taking account of all the circumstances of the case.

30.      In my judgment, just as there is a margin of appreciation before the Committee's decision should be found to be unreasonable by the Royal Court, so too should there be a margin of appreciation allowed to the Jurats before this Court should reverse the decision of the Royal Court that a Committee has acted unreasonably.  On the facts of this case I can identify, by way of example, a possible conclusion that, had it been present, would have betrayed the irrationality of the Jurats to the extent of compelling me to allow this appeal.  That would have been if the Court had displayed itself being substantially influenced by the personal circumstances of the Respondent and his wife.  That it was not is clearly evident from paragraph 13 of the judgment.

31.      In paragraph 10 of its judgment the Court has rehearsed correctly the test as laid down by Le Quesne, J.A. in Fairview Farm.  The fact that it did not go on to rehearse expressly the points made in the second half of paragraph 9 of the Token judgment is not, in my view, evidence that the Court was in some way misdirecting itself as to the law.

32.      In order to decide whether the decision of the Court below is flawed I must look in some detail at, firstly, the decision of the Committee and then the way the Jurats dealt with the matter on appeal.  I say Jurats with all respect to the Bailiff, who was a member of the Court, because this decision appears to be unanimous.   As the Jurats form the majority of those comprising the Court it, is in my view, a decision for the judgment of Jurats rather than one for the Bailiff, although he will have guided them on the law and recorded their decision in the form of a written judgment.

33.      The plot subject to the appeal is a small field in St. Mary situate in what has, for the purposes of the Island Plan, been designated as part of the 'Agricultural Priority Zone'. We did not have the whole Island Plan in front of us and of course we do not need it, but our ignorance of the general planning regime in Jersey emphasises to me the need for care in entering into assessments of reasonableness of decisions by the Committee and the response of the Royal Court thereto.  Inote in particular the comment of the Royal Court at paragraph 11:-

"We were told that the Agricultural Priority Zone and the Sensitive Landscape Areas of the Agricultural Priority Zone make up some 50% of the Island's surface area."

I do not know the significance of that statement but it was clearly something that the Court felt material to its judgment.

34.      We are advised that the Plan, which was approved by the States in 1987 and superseded an earlier one dating back to 1974, comprises a written statement and map.  The Island is divided into a number of separate zones, each of which is identified in the written statement, which goes on to explain the policy which the Committee is to adopt for dealing with planning applications therein and, where appropriate, the constraints that are to be imposed on the Committee in permitting further development.

35.      In each section the considerations to be applied by the Committee are set out and those paragraphs are then encapsulated in a policy.  The relevant policy here is CO6.

"POLICY CO6

Agricultural land and all other outside the 'Green Zone', the defined 'Built-Up Area', the 'Green Backdrop Zone' and the 'Villages' is designated as an 'Agricultural Priority Zone' where:

(a)       There will be a presumption against any new non-agricultural development;

(b)       Application for new agricultural buildings and other forms of development for which the Committee accepts a need will generally be approved ..."

"(c)" is irrelevant as it sets out specific rules for agriculture related development which this proposal is not.

36.      In order to understand the presumption contained in paragraph (a) one has to go back to the words of the written statement which immediately precede it

"The 'Agricultural Priority Zone'

           2.15      The principle of protecting agricultural land is to be maintained.  However, changes from the current 'White Land' policies are proposed, based on the following considerations:

(1)       Agriculture makes such an important contribution to maintaining the character of the countryside and rural communities that it deserves positive support and encouragement, rather than the neutral view indicated by use of the phrase 'White Land' - a term which suggests land left over after everything else has been accommodated;

(2)       The current policy of permitting the 'infilling' of sites between existing buildings and the completion of 'groups' of existing buildings throughout the area of 'White Land' has led to a loss of agricultural land and a gradual encroachment into the countryside.  In addition, it is more and more difficult to ensure that this form of scattered development is provided with essential services.

2.16    There is a need to give positive support to the industry in the agricultural areas of the Island and to limit the spread of new development in the open countryside by restricting it to existing defined settlements where there are adequate services.  Development which is essential for the sound and efficient management of a farm holding is a special case and sympathetic consideration will be given to applications for such development."

37.      As we have seen, consideration 2.15(1) does not apply, as this is clearly not a case where "positive support and encouragement" had to be given to agriculture. The Committee had to go on and consider 2.15(2) and 2.16.

38.      The wording of the relevant part of the Plan is fairly brief.  There is a presumption against "new" non-agricultural development, but there is no definition of what is "new".  There is an apparent conflict between paragraphs 2.15(2) and 2.16.  2.16 talks about limiting the spread of new development in the open countryside by restricting it to existing defined settlements where there are adequate services, whereas 2.15(2) criticises the current policy of permitting the infilling between existing buildings and the completion of "groups" of existing buildings on the grounds that that has led to a gradual encroachment into the countryside.

39.      The problem about this wording is that it needs quite a degree of fleshing out if it is to make sense.  In addition we have before us a document described as "Guide to I.D.C. Development Control Policy The Green Zone and the White Zone", but it is not at all clear as to whether those policies have States approval and govern the Planning and Environment Committee in the same way that a written statement within a Development Plan binds the Committee, particularly as the guide pre-dates the 1987 Plan.

40.      The Royal Court had the benefit of having the policies explained to them by none other than the principal civil servant employed by the Planning and Environment Committee, Mr. Thorne.  I interpose to say that the very fact that the Royal Court receives evidence from officers of the Committee who may say things that were not before the Committee or lay emphasis on matters that were not emphasised to the Committee at the time of making the decision reinforces the view that the Royal Court is moving into the area of reconsideration of the Committee's decision on its merits, rather than restricting itself to examining solely the material that was before the decision maker. This confirms the fact that the Court "cannot escape the responsibility of forming its own view" to use Le Quesne, J.A's words in Fairview.  Mr. Thorne's evidence is a little confusing in that it goes back to talk about the regime that existed before the Plan of 1987 was approved.  He then restates the 1987 policies in the following terms

"But the policies which came in 1987 sought to make it quite clear because the Committee and the States clearly felt at the time that the infill development, the sporadic nature of development which occurred in the 60's and 70's, was having a deleterious effect on the countryside and so it made it ... well, absolutely clear in policy CO6, which related to the Agricultural Priority Zone in which the site we are talking about is located, that there would be a presumption against development unless there were some exceptional circumstance such as an agricultural need for which the Committee accepted a justification to make an exception to policy."

41.      Mr. Thorne starts to talk about the exceptional circumstances.  He restates what his understanding of the policy on page 194 of the transcript when he describes the Policy CO6 as:

"a policy which seeks to protect the open countryside and agricultural land from unnecessary development.  The necessity of development, if you like, is the area where the presumption could be rebutted and the onus, if you like, while the applicant is demonstrate there is a justification for which the Committee accepts a need to ..(indistinct).. the general presumption against development."

42.      He goes on to amplify his view when he is asked at page 195 by Advocate Belhomme to describe the range of applications, which might fall within the category of other development provided for by sub-paragraph (b) of a policy CO6

"Well, clearly the nature of the applications could be quite wide.  We do recognise that, as I was saying earlier, the policy washes across a large part of the countryside of the island.  And there are clearly instances, for example of existing dwellings which might require an extension or a garage or something like that, which the Committee will accept - providing it doesn't make a significant impact in visual terms - will accept is necessary adjunct to the enjoyment of the existing dwelling.  So, for example, we would probably allow, as I say, a garage or an extension to a house within the Agricultural Priority Zone.  We clearly receive quite a lot of agricultural applications anyway because agricultural land is certainly a large number of farmsteads around the island, and we clearly accept their need to develop to meet the needs of the industry.  But it is difficult to say in very precise terms what applications we receive because they can be simply for anything.  I mean, we've ... people will apply for whatever they wish to build and so sometimes we receive applications which, you know, have very little chance of having exceptional circumstances attached to them to override the policy presumption."

43.      Mr. Thorne summed up his view of the application at the bottom of page 196 in the following terms when he is asked if the application would find favour with the Committee.

"On balance I would say unlikely because there was no apparent agricultural justification for the proposal and it certainly didn't relate to any existing building as I was describing before, things like extensions and so on, this was clearly a new dwelling in the countryside without any agricultural justification."

44.      I confess that, at this stage, Mr. Thorne's evidence carried weight with me despite my general feeling of caution at reference to "making an exception".  As I have said the Plan gives no guidance whatever as to what kinds of "new" non-agricultural development will be approved.  However I accept that Policy CO6 (b) clearly requires the Committee to be satisfied as to need and that in so doing the States was giving to the Committee the discretion as to whether need was made out.  I find it difficult to say that it is for the applicant to show need for development of this kind.  As we have seen, personal circumstances relating to family, health etc. are to be ignored.  I look for the criteria laid down in the Plan for establishing need.  There are none.  In the widest sense there is presumably a need for new housing in Jersey, and that is not a need personal to Mr. Le Maistre.  It is worth contrasting Policy CO6 with Policy CO7 relating to "sensitive landscape areas".  In the latter there is no power of discretion vested in the Committee to allow this kind of application.  I cannot be sure that Policy CO6 must be read as precluding the granting any application for the erection of a new dwelling in that half of Jersey covered by this particular zoning in the Plan, and the further evidence of Mr. Thorne supports that view.

45.      Mr. Belhomme chose to take Mr. Thorne on to review the endorsement on Mr. Le Gresley's Planning Report (with which incidentally no one finds any fault).  Mr. Thorne acknowledged that, notwithstanding the fact that the States had approved the Plan, which clearly discouraged the grant of what I will call encroaching applications for development in the area of Jersey that is covered by the white Agricultural Priority Zone, the fact that the States had passed a specific resolution that the Committee should consider with favour this particular application was not something that should be discarded.  Mr. Thorne when questioned by Advocate Belhomme said this

"my advice, if you like, to the Committee is principally planning advice and confined to planning matters but here we had a situation where there was clearly a political content given the States debate the previous year.  Peter Le Gresley had pointed that out in the report but I felt it was important to remind the members that here was ... and of course, I think I am correct in saying, that this was a new Committee at the beginning of last year, not all of whom would have been familiar with the debate in the States the previous year."

46.      This to me clearly shows that, under the terms of the Plan, the Committee had a discretion to allow the application for development of this site in the form of the construction of a new dwelling.  I accept that it may have been against the presumptions in the Plan but I find it impossible, at the end of the day, to ring fence the discretion of the Committee and say that because it appears to have followed the guidance given it by the States in the Plan the Jurats are in some way precluded for saying that in the circumstances of this particular case the Committee was unreasonable to do so.

47.      The way to stop further encroachment in the countryside would have been for the Plan to say unequivocally that there shall be no new development save for agricultural buildings and the construction of limited extensions and to additional domestic buildings within the curtilage of an existing dwelling.  The Plan does not say that and the States Resolution concerning Mr. Le Maistre's application, however misguided and inappropriate it may have been, lends support for the view that the States at the time did not wish to be so restrictive.  The Jurats saw the site.  We did not.  Their conclusions are set out in paragraphs 14, 15 and 16 and the following summary of their conclusions in paragraph 17 must be read alongside those earlier paragraphs:-

"17.     In our judgment the presumption against non-agricultural development is rebutted by the other considerations which are relevant in this case, viz the small size of the field and its non-marketability for agricultural purposes together with the tacit support of the Agriculture and Fisheries Committee and the minimal adverse impact upon the character of the countryside in this vicinity.  Field 921 is not in the sensitive landscape area of the Agricultural Priority Zone."

I agree that the words "tacit support" may be an unhappy choice of words, although in paragraph 15 of its judgment the Court clearly and correctly set out the basis for that conclusion.  However, once the importance of the site to the agricultural industry had been discounted, as it clearly was, the views of the Agriculture and Fisheries Committee for or against the proposal were only of marginal weight. I agree that the reasoning of the Jurats may appear a little thin but the point is that they have looked at the site and have come to conclusions about the reasonableness of refusing permission for building a dwelling on it, applying what had to be a subjective test. The Royal Court has said that the Committee has acted unreasonably.  There may have been no more that the members could have sensibly said in amplification of their decision.  I do not agree that the absence of further amplification can vitiate that decision.  Accordingly in my judgment the Royal Court was entitled to conclude that the Committee had been unreasonable in not allowing the application.

48.      The reasoning of the Royal Court is not flawed to the extent that I feel this Court is able to interfere with its decision.  To do so, would inevitably involve this Court trespassing into areas which are within the preserve of the Jurats.  Regretfully I cannot in this case share the conclusions of Smith, J.A. and Rokison, J.A. and I would therefore dismiss this appeal.

ROKISON JA:

49.      The Judgment which has been delivered by the learned President Smith JA, is one in the drafting of which I participated and which represents our joint conclusions. I agree with it, and would add nothing were it not for the dissenting judgment of Sir de Vic Carey JA, which I have read in draft.

50.      In his judgment, Sir de Vic Carey rightly emphasises the particular responsibilities of the Jurats in appeals of this kind to the Royal Court and expresses the view, with which I respectfully agree, that this Court should be slow to overturn the decision of the Jurats on matters of fact or matters which are fact-dependent.

51.      However, it must be borne in mind that the Royal Court in this case overturned the decision of the Planning and Environment Committee, which is the body specifically charged with the function of considering and adjudicating upon planning applications.

52.      The Planning and Environment Committee concluded that the unfortunate medical condition of Mrs le Maistre was not a valid ground for making an exception to the policy established by the 1987 Island Plan and Policy CO6 concerning non-agricultural development in the Agricultural Priority Zone. It further concluded that the State's decision to support the proposition brought by Senator Norman calling for an expression of support for the granting of permission for the application (the basis upon which the Applications Sub- Committee of the Planning and Environment Committee had referred the matter to that Committee) did not justify a departure from that policy. Neither of these conclusions was challenged before the Royal Court or before us, and in my view they were plainly correct.

53.      In these circumstances, the application fell to be regarded as an unexceptional application for a new dwelling in the Agricultural Priority Zone of kind similar to that which had been made and refused in May 1971, May 1976 and November 1980, and in respect of which the Island Development Committee had refused consent for reconsideration on no less than four occasions.

54.      The Planning and Environment Committee, following the recommendation of its Planning Officer, concluded that no good planning reason had been shown sufficient to justify an exception to the established policy for the area.

55.      It may be that the Jurats were entitled to come to the view they did that, when looked at in isolation, to grant this application would have no or no significant effect on commercial agriculture, and would have no significant impact on the environment. It is not for us, who have not had the advantage of seeing the site, to conclude that such a view would not be reasonable.

56.      But generally it should be the case that individual applications are dealt with on the basis of equality of treatment, so that if one application were to be granted, other applications which are not materially different should also be granted, or there would be justification for those whose applications were refused to feel aggrieved. But if the application in this case were to be judged in isolation, and the above principle then followed, the policy clearly set out in the Island Plan and Policy CO6 might well be undermined. It is this sort of consideration which the Planning and Environment Committee is entitled and indeed bound to have in mind.

57.      There being no exceptional circumstances which ought to have been taken into account, I do not see how the decision of the Committee could be labelled as "unreasonable" and I therefore respectfully agree with Smith JA that the Royal Court did fall into the trap of construing the guidance given by this court in Fair View Farm as requiring or entitling it to consider afresh whether it would be reasonable to permit the development, rather than whether or not the decision for the Planning and Environment Committee to refuse it was unreasonable. The difference may be subtle, but in many cases it may be, and in this case in my view is, important.

Authorities.

Island Planning (Jersey) law, 1984: Articles 3, 21.

Le Maistre-v-IDC (1980) JJ 1.

IDC-v-Fairview Farm Ltd (1996) JLR 306.

Token Ltd.-v-Planning & Environment Committee [2001] JLR 698.

Mesch-v-IDC (1990) JLR 269.

Rahman-v-Chase Bank (1984) JJ 127.

Burt-v-States of Jersey (1996) JLR 1.

Walters-v-States Housing Authority (1997) GLJ 24. Guernsey Court of Appeal.