Jersey Unreported Judgments

 [2003]JRC139

ROYAL COURT

(Samedi Division)

 

1^st August 2003

 

 

The Attorney General

-v-

K.P.G. Investments, Ltd and Whitehorse Developments, Ltd

K.P.G. Investments, Ltd: First Indictment

1 count of:	Contravening Article 8(1) of the Island Planning (Jersey) Law 1964, by developing, causing or permitting to be developed accommodation without development permission (count 1);
1 count of:	Contravening Article 9 of the Public Health (Control of Buildings)(Jersey) Law 1956, by carrying out work, to which building by-laws apply and for which plans had not been passed by the Planning and Environment Committee (count 2).

 

Plea: Facts admitted.   

 

Details of Offence:

This matter concerns two properties, each of which was being worked upon by one of the two defendant companies.  Both companies share common aspects of ownership and control.  The infraction at the first property involved a loft conversion, which was a material departure from the plans upon which the grant of permission for the development of that site had been based.  As such, this conversion required a separate grant of permission.  Notwithstanding the fact that a letter was sent by the Planning Department to KPG Investments Limited, advising them of the need for such permission, the unauthorised work continued and a staircase leading to the new accommodation was fitted.  Retrospective applications were made for a building permit and for development permission and these were subsequently approved by the Committee.  In the case of the second property, owned by Whitehorse Developments Limited, a grant of planning permission was made in 2001 but the company failed to apply for a building permit until some eleven months later.  Development work commenced during the interim period.

 

Details of Mitigation:

Guilty plea.

 

Previous Convictions:

Two previous convictions in 1998 involving an infraction of the Lodging Houses (Registration)(Jersey) Law, 1962 and an infraction of the Housing (Jersey) Law, 1949.

Whitehorse Developments Limited has no previous convictions.

 

Conclusions:

Count 1:	£4,000 fine.
Count 2:	£4,000 fine.

£1,000 costs.

 

Sentence and Observations of Court:

Conclusions granted: 21 days to pay.

 

Whitehorse Developments, Ltd: Second Indictment

1 count of:

Contravening Article 9 of the Public Health (Control of Buildings)(Jersey) Law 1956, by carrying out work, to which building by-laws apply and for which plans had not been passed by the Planning and Environment Committee (count 1).

 

Plea: Facts admitted.   

 

Details of Offence:

See KPG Investments Ltd, above.

 

Details of Mitigation:

See KPG Investments Ltd, above.

 

Previous Convictions:

No previous convictions.

 

Conclusions:

Count 1:

£4,000 fine.

£1,000 costs.

 

Sentence and Observations of Court:

Conclusions granted: 21 days to pay.

 

S.M. Baker, Esq., Crown Advocate.

Advocate D.G. Le Sueur for the Defendant Company.

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        The Court is dealing with infractions by two companies owned and controlled by Mr Alexander Burnett.  KPG undertook a conversion of a loft at St Peter's Country Apartments in order to make bedrooms without development permission under the Island Planning (Jersey) Law 1964 and without a permit under the Public Health (Control of Buildings)(Jersey) Law 1956. 

2.        There are two factors which increased the seriousness of what took place.  First, the Company and Mr Burnett had been cautioned in 1999 for an earlier infraction at the St Peter's Country Apartment site.  These clearly were not particularly serious infractions but nevertheless it should have brought home to the Defendant Company the need to ensure that it complied fully with the requirements under these two laws. 

3.        Secondly, despite the Planning Department sending a letter to the Company telling it to stop the work in the loft once the Planning Department had discovered what was going on, the defendant ignored this and carried on with the development for something over a week. 

4.        Mr Le Sueur says that this was because the Defendant Company had had many discussions over the period of this very substantial development with Planning Officers and on occasions they had changed their minds or made an error which they subsequently corrected.  He says that Mr Burnett was of the view that, because he thought the plans for this application had been put in and because he had previously been told by a Planning Officer that it was a minor matter which could be dealt with under delegated powers and should not cause any problem, he expected it to be reversed and that was why he had continued the work.  We have to say that that was a wholly unacceptable reason.  If a developer is told by the planning authorities that what he is doing is in breach of the law and that he is to stop, he must stop and if he does not he must expect the Court to take a serious view.

5.        Mr Le Sueur submits that Mr Burnett has been let down twice by an architect; by one architect in 1999 and secondly on this occasion, because it transpires the plans had not actually been received by the Planning Department.  Furthermore, he says that this is a substantial development with over 280 drawings and it was therefore difficult for Mr Burnett to keep track of exactly what had and had not been approved.

6.        The fact is that the Defendant knew that an application for this work was necessary because he knew, or thought, that plans had been submitted for the loft conversion. The gravamen of what he did is that he proceeded without establishing that consent had been received.  Either he ignored the requirement altogether or he assumed that it had been received.  That, again, is unacceptable, particularly from an experienced developer.

7.        As to Whitehorse, Mr Le Sueur submits that the Defendant was not aware that a permit under the 1956 Law was necessary for this piling work.  The work was undertaken because the site was unsafe in view of the test holes which had been prepared, particularly given that a number of young people, drug users and others were apparently in the habit of using and gaining access to the site.  But, as the Crown rightly submitted, the remedy was not to undertake this work but instead to make alternative arrangements for making the site secure.  The photographs show that little effort appears to have been made at that time to make the site secure so as to prevent unauthorised people gaining access.  However, it is true that on this occasion the Defendant stopped the work immediately when told and, as in the other case, a permit has subsequently been granted for the work in question. 

8.        Nevertheless, Whitehorse, through its managing director, was an experienced developer and it is the duty of those undertaking development to familiarise themselves with the law and to know what they can and cannot do.  Mr Le Sueur referred to the fact that both companies had admitted the charges at an early opportunity and we give credit for this.

9.        Furthermore, he submits that, in relation to KPG, the two charges arise really out of the same incident and that an overall fine of £8,000 in respect of that site is too much.  He has referred us to the case of AG -v- F.W. Woolworth and AC Mauger and Son (Sunwin) Ltd (7^th June 2000) Jersey Unreported; [2000/99] for the purposes of comparison but it is clear that the facts in that case were very different.

10.      We have considered those points raised by Mr Le Sueur and other points to which I have not referred.  Nevertheless, having regard to the totality principle, and given, particularly in relation to KPG, the fact that the company continued to develop despite a warning and despite the earlier caution, we think that the overall level of fine of £12,000 is correct and we see no reason to disturb the way in which the Crown has divided these.  Accordingly, we impose a fine of £4,000 on each of the two charges against KPG and a fine of £4,000 on the charge against Whitehorse and we order costs jointly and severally against them both of £1,000 with 21 days in which to pay.

Authorities

AG -v- F.W. Woolworth and A.C. Mauger and Son (Sunwin) Ltd (7^th June 2000) Jersey Unreported; [2000/99].

AG -v- Gindell [2003] JRC056.