Jersey Unreported Judgments

[2003]JRC180

royal court

(Samedi Division)

 

15^th October 2003

 

 

 

 

Appeal against the refusal of the Planning and Environment Committee to grant the appellant permission to demolish an existing building and construct six two-bedroomed terraced, alternatively semi-detached, houses on the site.

 

Advocate M M G Voisin for the Appellant

Advocate S C Nicolle, Q.C., H.M. Solicitor General for the Respondent

 

judgment

the DEPUTY bailiff:

1.        This is an appeal against the refusal of the Planning and Environment Committee ("the Committee") to grant the appellant ("Caesar") permission to demolish the existing building known as Morley House, Blenheim Avenue, St Saviour and construct six two-bedroomed terraced, alternatively semi-detached, houses on the site.

2.        The reasons for the refusal given in a Refusal Notice dated 15th January 2002 were as follows:-

"(1)      The proposal would constitute an over-development of a restricted site with insufficient parking space and amenity space which fails to meet the Committee's adopted standards.

(2)         The design of the scheme is out of character with that of the existing houses in Blenheim Avenue."

The Refusal Notice relates to the terraced scheme.

THE FACTUAL BACKGROUND

3.        Caesar is the owner of Morley House.  This is a substantial Victorian property situated at the entrance to Blenheim Avenue immediately adjacent to its junction with Aubin Lane.  Blenheim Avenue is a private road, being a residential cul-de-sac which for the most part is bordered by two-storey semi-detached houses on each side.  Accordingly there are two-storey semi-detached houses, both immediately to the east of Morley House and immediately to the south on the opposite side of the Avenue.  Morley House was in use as a residential home for the elderly (which remains the existing authorised use under the Island Planning (Jersey) Law 1964) but was closed in June or July 2001.  Caesar is now owned by the Antler Group which has carried out a number of property developments in the island. 

4.        On 18^th May 2001 Antler's land manager contacted Mr Fagan, a senior planning officer of the Committee, in order to discuss what might be acceptable to the Committee by way of redevelopment of Morley House.  Architects were instructed in connection with a redevelopment.  On 11^th June 2001 Antler's land manager and its architect met with Mr Fagan to seek his views on their proposals to develop the site.  By a letter dated 15^th June its architect provided Mr Fagan with copies of a sketch scheme for the site.  In his reply dated 26^th June Mr Fagan responded setting out his views on the proposals and making certain suggestions.  It is fair to say that he was supportive in principle of six semi-detached houses on the site but emphasised that his views were expressed without prejudice to the Committee's final decision.

5.        On 20^th July the land manager and architect had a further meeting with Mr Fagan during which they discussed various issues in relation to the design of the proposed development.  In addition, the possibility of a terrace of six houses, as opposed to semi-detached houses, was raised.  On 27^th July Mr Fagan wrote to the architect repeating the comments of his letter of 26^th June.  He indicated that he could not see any 'in principle' objection to terraced houses rather than semi-detached houses but he emphasised that his opinion was given without prejudice to the Committee's final decision.  Encouraged, no doubt, by the generally supportive views of Mr Fagan, Antler proceeded to purchase all the shares in Caesar on 9^th August 2001 for the sum of £675,000. 

6.        Subsequently, on 27^th September 2001 Caesar made a formal application for the demolition of the existing building and the construction of six terraced two-bedroomed houses.  On the Island Plan the site lies in the 'Built Up Area' and as such there are no broad policy objections to the development of the site for housing. 

7.        Following the normal consultation and advertisement procedure, the Committee received comments and representations on the application from a number of bodies and individuals.  The only material ones were from the Roads Committee of the Parish of St Saviour and some nearby residents.  The Roads Committee wrote on 17^th October expressing the view that the proposed density was too high and that there was no relief for any overspill in relation to visitor parking needs.  Blenheim Avenue would be compromised by any further influx of on-street parking and it was to be noted that parking generally in the area was notoriously difficult.  This would be exacerbated by the loss of the Bagot Inn car park.  However the Roads Committee went on to point out that Blenheim Avenue was a private roadway over which it had no jurisdiction. 

8.        Twenty one residents of Blenheim Avenue signed a petition which objected to the proposed development.  The petition listed seven points upon which the objection was based including the density of housing, lack of parking space and policing of parking on the road.

9.        The occupier of 23 Blenheim Avenue wrote individually expressing concern about the proposed development and commenting that a density of six houses seemed too much and that the proposed development only provided one car space per house, albeit a garage.

10.      Article 36A of the States of Jersey Law 1966 allows a committee to delegate its statutory functions to a sub-committee.  At the material time all applications for development permission were dealt with initially by the Applications Sub-Committee.  That Sub-Committee considered this particular application on 12^th December 2001.  Mr Fagan produced a written report for the Sub-Committee dated 5^th December 2001 in which he summarised the nature of the application, the description of the site, the consultations undertaken and the representations received together with the planning issues.  He acknowledged that the development provided minimal amenity space which fell short of the requisite standard.  However he went on to recommend that the application be approved subject to certain conditions and his report was endorsed by the Director of Planning, Mr Thorne.  The act of the Sub-Committee dated 12^th December 2001 records that the Sub-Committee received Mr Fagan's report and also viewed drawings of the scheme and considered the representations and petition which had been received.  The Sub-Committee decided to reject the application. 

11.      On the same day, Mr Fagan notified Antler's land manager of the refusal by telephone.  The land manager in turn contacted Antler's architect, Mr Williams, and asked him to speak to Mr Fagan, which he subsequently did that day.  The content of that telephone conversation is now a matter of dispute between the parties.  Mr Williams asserts that Mr Fagan only gave three reasons for the refusal by the Sub-Committee, namely over-development of the site, insufficient amenity space and insufficient parking space.  He asserts that Mr Fagan did not mention that the Sub-Committee considered the design of the proposal to be out of character either with the surrounding area or with Blenheim Avenue itself.  Neither the land manager nor Mr Fagan have sworn affidavits as they have both left the island.  However the Committee relies on the manuscript notes made on Mr Fagan's report to the Sub-Committee.  It seems almost certain that these notes were made by Mr Fagan.  They read "Refused 12/12/2000-CTTEE.  Over-development; insufficient parking and amenity space; out of character."  There is then a further note to the effect that he "notified Mike Ashcroft at Antler re; the refusal" again dated 12/12/2000.  In each note, this was clearly an error for 2001.

12.      On 13^th December 2001 Antler's managing director wrote to the President of the Committee requesting a meeting to discuss both the refusal in this case and another refusal relating to a site in Gorey.  A meeting took place on 19^th December when Antler's land manager and architect met with the President of the Committee Senator Quérée and the Director of Planning Mr Thorne.  Again there is some disagreement as to exactly what was said but it is agreed that at the conclusion of the meeting the President advised Caesar, in accordance with normal procedure, to write formally requesting that the full Committee re-consider the application.  Accordingly, Caesar's architect Mr Williams wrote to the Committee by letter dated 20^th December in which he set out detailed submissions on the issues of site density, amenity space and parking provision. 

13.      The Committee re-considered the application on 10^th January 2002.  It had before it Mr Fagan's application report (which had been before the Sub-Committee) and Mr Williams' letter.  Mr Fagan did not attend the meeting but an oral report was given by another planning officer.  The Committee decided to maintain the refusal.  By letter dated 11^th January 2002 Mr Fagan advised Caesar that the Committee had decided to maintain the refusal for the reasons originally given in December, namely over-development with insufficient parking and amenity space and out of character design with existing houses in Blenheim Avenue.

14.      On 15^th January 2002 Caesar's advocates, Michael Voisin & Co., wrote to the Director of Planning in relation to the refusal and claimed that the 'out of character' reason had not been communicated to Caesar in relation to the Sub-Committee's refusal of 12^th December 2001.  Later the same day the Refusal Notice dated 15^th January was despatched to Caesar's architect.  The terms of that Refusal Notice are set out in paragraph 2 of this judgment.  The Refusal Notice went on to say that consideration would be given to the development of two pairs of semi-detached houses on the site.  On the same day, in a telephone conversation with Mr Williams, the Director of Planning expressed a personal view that the 'out of character' reason was of secondary importance to the Committee compared with the over-development reason.

15.      On 16^th January 2002 Caesar's land manager and architect again met with Mr Fagan and the Director of Planning.  The officers agreed to refer the application back to the Committee at its next available meeting on 7^th February 2002.  Caesar indicated that it would make certain alterations to its proposed development which might make it more acceptable to the Committee. 

16.      On 7^th February 2002 the Committee reconsidered the application.  It had before it the original plans for six terraced houses and alternative plans produced by Caesar's architect for six semi-detached houses.  The alternative plans provided for increased amenity space for each unit and also provided two visitor parking spaces which had been absent from the terraced scheme.  The Committee also had before it an appeal report from Mr Fagan dated 16^th January 2002 endorsed by the Director of Planning, which again recommended that the application be approved.  The Act of the Committee dated 7^th February 2002 records that the Committee noted that there had been no change in the reasons for the refusal as had been alleged by the appellant's advocate and decided to maintain the previous decision to refuse permission.

17.      On 27^th February 2002 Caesar filed a notice of appeal.  On 21^st March Caesar's advocate wrote at length to the Committee requesting that it reconsider the application and setting out various points in support of Caesar's case.  The Committee reconsidered the matter on 6^th June 2002 (having adjourned it from 23^rd May).  In reconsidering the matter the Committee had before it Mr Fagan's appeal report dated 16^th January 2002 and received a verbal report from the Director of Planning in which he recommended that the Committee approve the application. 

18.      By letter dated 10^th June 2002 the Director of Planning wrote to Caesar's advocate advising that the Committee had afforded lengthy consideration to the points raised in the advocate's letter dated 21^st March but had decided to maintain the decision to refuse permission for the reasons previously specified.   In his letter the Director of Planning explained that the Committee had also considered an alternative revised scheme offered by the appellants (that was a reference to the scheme for semi-detached houses) and had concluded that this scheme did not satisfactorily overcome its concerns that the proposal would involve an over-development of a restricted site and would be out of character with the existing houses in Blenheim Avenue. 

19.      In summary the Committee has indicated 'in principle' approval for the construction of four semi-detached houses on the site but has refused to allow six terraced or semi-detached houses as proposed by Caesar.

THE TEST ON APPEAL

20.      The Court adopts the approach described in paragraphs 33-35 of Interface Management Limited -v- Jersey Financial Services Commission [2003] JRC172.  In the context of this case the Court must therefore look at the correctness and fairness of the procedure in order to decide whether the proceedings of the Committee were in general sufficient and satisfactory and also at the merits of the decision in order to decide whether it considers that the decision was unreasonable.  There is not necessarily a bright line between procedural issues and issues which go to the reasonableness of the decision but it is nevertheless helpful to consider the points made by Mr Voisin on behalf of the appellants under these two headings. 

PROCEDURAL ISSUES

21.      Mr Voisin referred to a number of matters which he submitted suggested that the proceedings of the Committee were not satisfactory.  Firstly he raised a number of concerns surrounding the meeting of the Sub-Committee on 12^th December 2001 and the full Committee on 10^th January 2002.  We would summarise these as follows:-

(i)        The Refusal Notice is normally issued shortly after the decision.  It should therefore have been issued not long after 12^th December.  In fact it was only issued on 15^th January following prompting from Advocate Voisin and after the full Committee had met to re-consider the Sub-Committee's decision on 10^th January.   This was unsatisfactory and led to a concern as to whether the reasons given in the Refusal Notice truly reflected the reasons for the decision. 

(ii)       That concern was exacerbated by inconsistencies in what had been stated.  Thus the Act of the Sub-Committee made no reference to a lack of amenity space.  It referred to the problems of parking, to the objections of the Parish on the grounds of density of development and to the fact that the scheme was not in keeping with the surrounding area.  The Act suggested that the Sub-Committee had also discussed issues which were not reflected in the reasons, namely that it might have been appropriate to convert and extend the original property and it might be more appropriate to construct flats on the site.  In relation to the 'out of character' reason, Mr Voisin drew a distinction between the Act (which referred to 'the surrounding area') and the Refusal Notice (which referred to 'the existing houses in Blenheim Avenue').   He submitted that these were not the same thing.

(iii)      Mr Williams, Caesar's architect, said in his affidavit that when he spoke to Mr Fagan on the telephone on 12^th December to find out the reasons for the refusal, Mr Fagan gave the reasons as being over-development, insufficient amenity space and insufficient parking.  According to Mr Williams he made no mention of the 'out of character' reason.  Mr Williams made no note of this conversation but some support for the fact that the 'out of character' reason was not raised is to be found in the fact that his letter of 20^th December in support of the application for reconsideration by the full Committee referred only to the three points of density, parking and amenity space (although he did say in his letter that it was Mr Thorne and Senator Quérée (neither of whom were present at the Sub-Committee) who  informed him that these were the grounds of the Sub-committee's decision, rather than Mr Fagan).  Mr Voisin accepts that the handwritten note on the Planning Officer's report to the Sub-committee is consistent with the Refusal Notice (referring to 'over-development, insufficient parking and amenity space, out of character') and was almost certainly made by Mr Fagan.  However he submits that it is not clear when the note was made nor whether it reflects simply Mr Fagan's attempt to make sense of a confused discussion on the part of the Sub-Committee which dealt with a number of irrelevant issues. 

(iv)      The Act of the meeting of the full Committee on 10^th January begins by stating that the Committee, with reference to its Act of 1^st February 2002, recalled that it had maintained refusal of an application for change of use from residential care home to hotel staff hostel.  Mr Voisin submitted that this was a completely irrelevant application made at a time when Caesar was owned by another party.  The inclusion of a reference to this previous Act must raise a concern as to whether the Committee took irrelevant considerations into account. 

(v)       Mr Thorne's comment on 15^th January concerning the secondary importance of the 'out of character' ground casts doubt on its validity.

22.      In summary Mr Voisin submits that the delay in issuing the Refusal Notice for over a month, the inconsistencies between the Act of the Sub-Committee and Mr Fagan's note of the reason for the Sub-Committee's decision, the fact that, when passing on the reasons on the telephone to Mr Williams, Mr Fagan made no mention of the 'out of character' reason, the reference in the Act of the full Committee to a completely different and irrelevant application in 2001 and Mr Thorne's comments of 15^th February led to concerns as to the real reasons for the Committee's decision and suggested that the proceedings of the Committee were unsatisfactory so that the decision should be quashed for that reason alone.

23.      We do not find the procedure of the Committee, taken in the round, to have been unsatisfactory to the extent that it should be quashed.  The starting point must be the official notification of the reasons for the decision.  That is to be found in the Refusal Notice.  The reasons contained in the Refusal Notice are to be taken as the reasons of the Committee for refusal unless there are real grounds to suspect that these reasons are not the true reasons or are merely an ex post facto rationalisation of the decision.

24.      We do not find that to have been the case here.  The fact that the Refusal Notice was not issued for a month is unfortunate and the Committee should do better.  However, having considered all the circumstances and the explanation as disclosed in the papers (namely that the file was needed for the purposes of the reconsideration by the full Committee) we do not find anything suspicious in this delay.  It is true that the Act of the Sub-Committee does not accord in all respects with the reasons in the Refusal Notice.  For example there is no reference in the Act to amenity space and there are references in the Act to a discussion of points which do not appear in the Refusal Notice.  However a discussion will often range more widely than the final grounds for decision and the Act is not drawn up by planning staff but by a Committee clerk from the States Greffe.  Acts of committees are important documents and the planning staff should review the draft Act so as to ensure that it reflects accurately the outcome of the Committee's deliberations.  In cases of real doubt, inconsistencies or incorrectness in an Act may lead to a decision being vulnerable.  However we do not find that to be the case here.   We are quite satisfied that the Refusal Notice accurately reflects the grounds for the decision of the Sub-Committee for the following reasons:-

(i)        As Mr Voisin accepted, the overwhelming probability is that the hand written note of the reasons of the Sub-Committee on the Planning Officer's Committee report was made by Mr Fagan and we find further that the overwhelming probability was that it was made at the time in order to record his understanding of the outcome of the meeting.  It is consistent with the Refusal Notice in every respect and specifically referred to amenity space.  We think it likely therefore that the Committee Clerk simply omitted to refer to amenity space in the Act. 

(ii)       Even on Caesar's case, Mr Fagan informed Mr Williams on the telephone that very day that over-development, insufficient amenity space and insufficient parking were the reasons for the Sub-Committee's refusal.  Why should he say that a lack of amenity space was one of the reasons if that were not true?  Indeed, as we know, Mr Fagan had recommended approval.  He could not therefore have been reflecting his personal views; he could only have been reporting the Sub-Committee's views. 

(iii)      In the absence of an affidavit from Mr Fagan, we are unable to determine with certainty whether he did indeed omit to refer to the 'out of character' reason when speaking to Mr Williams on the telephone.  However, even accepting that he did, it is clear that this was a reason of the Sub-Committee because it is referred to both in the Act of the Sub-Committee and in Mr Fagan's hand written note on the Planning Officer's report.  Mr Voisin sought to draw a distinction between the 'surrounding area' (referred to in the Act) and 'the existing houses in Blenheim Avenue' (referred to in the Refusal Notice).  We do not see any significance in these different expressions and have no reason to doubt that the Committee clerk was using the former expression to mean the latter.

(iv)      We do not see any significance in the fact that the Act of the Committee on 10^th January opened by referring to an irrelevant earlier application.  It is quite common for Acts of a committee to begin by referring back to a previous occasion and the rest of the Act shows the Committee focussing very firmly on the issues raised by Mr Williams in his letter of 20^th December and other relevant factors. 

(v)       We attribute no significance to the personal views of the Director of Planning, expressed informally in a conversation, as to which reason weighed more with the Committee.  The fact is that the Refusal Notice refers to both and we accept that both are relied upon by the Committee.

25.      Secondly, Mr Voisin submits that, because Mr Fagan made no mention of the matter in his telephone conversation with Mr Williams, it was only upon receipt of Mr Fagan's letter of 11^th January (notifying Caesar that the Committee had decided to maintain refusal "for the reasons originally given in December - over-development with insufficient parking and amenity space, and out of character design with existing houses in Blenheim Avenue") that Caesar became aware of the 'out of character' reason.  It was only therefore able to address that issue after the Committee had decided to maintain the Sub-Committee's decision. 

26.      Clearly it is preferable if, prior to an application to the Committee to reconsider a decision of the Sub-Committee, the applicant is aware of the reasons for the refusal by the Sub-Committee so that he may respond to them; hence the desirability of the Refusal Notice being issued promptly.  However Caesar was able to and did make submissions on the 'out of character' issue as part of its further submissions contained in the detailed letter from Advocate Voisin dated 21^st March.    

27.      This brings us conveniently to a further point raised by Mr Voisin, namely that, in a manuscript note dated 13^th May, a member of the Planning Department  advised the Committee that the letter of 21^st March did not raise any new issues to those addressed in previous considerations/reports.  Mr Voisin submits that that was an inaccurate comment.  His letter raised at least two new points, namely the fall-back position and the Committee's failure to follow the advice of its officers about giving reasons (both of which we shall turn to shortly).  In addition, although he did not mention it in his submissions, the letter was also the first occasion upon which, as far as we can ascertain, Caesar made submissions dealing with the 'out of character' issue and the criticism of the procedure before the Sub-Committee.  Mr Voisin submits that this comment might well have been prejudicial to the Committee's consideration of the letter. 

28.      We agree that the comment was inaccurate and should not have been made.  However it is not to be assumed that members of the Committee would act in dereliction of their duty by failing to read the papers submitted with the application so as to form their own views on those papers.  The history of this matter has shown very clearly that both the Sub-Committee and the Committee have not meekly followed the advice of the planning officers; on the contrary, they have reached decisions against that advice.  There is no reason therefore to think that the Committee would have blindly accepted a comment that the letter added nothing new.  Furthermore it is clear that the Committee was determined to give proper consideration to the letter because it adjourned consideration of the letter from its meeting of 23^rd May to that of 6^th June so that more members of the Committee could be present.  The Act of 23^rd May records as follows:-

"The Committee received correspondence dated 21^st March 2002 from Advocate Voisin and gave serious consideration to the matters therein stated. 

In view of the matters which warranted consideration, it was agreed to defer the matter to a subsequent meeting when more members of the Committee were present."

29.      The Court is satisfied therefore that, far from disposing of Advocate Voisin's letter without serious consideration on the ground that it added nothing new, the Committee gave careful consideration to the points which were raised.  We therefore find that no prejudice was caused to Caesar by any failure on the part of Mr Fagan to communicate the 'out of character' reason on 12^th December or by the inaccurate note of 13^th May to the effect that Advocate Voisin's letter added nothing new.

30.      Mr Voisin's next point is that, because it was going against the advice of its officers, the Committee should have given more detailed reasons for its refusal.  He referred to the case of R -v- Mendip District Council ex.p Fabre (2000) JPL 810.  The facts of that case were very different and are of no assistance but he relies upon the dictum of Sullivan J at 822:-

"In my judgment there is an obvious difference between those cases where planning permission has been granted on the recommendation of a planning officer and where planning permission has been granted contrary to such a recommendation.  If there has been an earlier refusal, as recommended by a planning officer, followed by a grant of planning permission, contrary to the planning officer's consistent recommendation, some explanation will be required, since by definition it will not be possible to find it in the planning officer's report.  So it will be necessary to search elsewhere for the reasons why the members decided to change their minds.  In such circumstances it might well be sensible at the very least to record the members' reasons in the form of a minute."

Mr Voisin draws from this the inference that, because the reasons for refusal cannot be found in a planning officer's report where the report has recommended the grant of permission, more detailed reasons must be given in such cases.  As a general principle, we agree that an applicant whose planning application has been refused should be entitled to ascertain why this is so.  However, as Sullivan J makes clear (by suggesting that reasons may often be found in the planning officer's report), one is not restricted to, for example, the Notice of Refusal.

31.      Furthermore, any deficiency in initial reasons does not necessarily lead to a quashing of the decision.  The position is summarised in De Smith, Woolf & Jowell: Judicial Review of Administrative Action (5^th Ed'n) at para 9 - 055 as follows:-     

"Difficult questions also arise where the failure to give reasons is held to be unlawful, whether for illegality or procedural impropriety. If no collateral unlawfulness is established, it is not yet clear whether a court should simply quash the substantive decision as procedurally flawed, or should only afford relief in the form of an order of mandamus to give reasons.  On the one hand, it may be argued that a failure to give reasons infects the legitimacy of the entire decision-making process such that the decision should be retaken; on the other hand, it will often be the case that the decision-maker does possess reasons, and need merely be required to produce them.  A further question arises where a decision-maker attempts to remedy a failure to give reasons by providing justification of the decision in affidavit evidence on judicial review; in such a case, it is suggested that the court is unlikely to quash the decision or to make any order unless the reasons so disclosed are inadequate or unlawful.  Even if the original failure to give reasons constitutes a procedural unfairness, such breach may be remedied in affidavit evidence and the court ought in its discretion to refuse to grant relief, unless it suspects that the reasons provided by way of affidavit are merely an ex post facto rationalisation  of the decision."

32.      A reading of the papers in this case does not lead us to conclude that insufficient reasons were given.  The Refusal Notice coupled with the Planning Officer's report (which, whilst recommending acceptance, nevertheless highlighted the difficulties such as lack of amenity space) and the various Acts of the Committee and Sub-Committee make the position sufficiently clear.  We do not consider that, when conducting this appeal, Mr Voisin had any difficulty in knowing the reasons why the Committee had refused the application.  He did not agree with those reasons and we will of course come to that shortly, but in our judgment they were sufficiently ascertainable to conclude that there has been no unfairness in the procedure in this respect.

THE MERITS OF THE DECISION ON THE TERRACED SCHEME

 

(1)        Caesar's submissions

33.      We think that Mr Voisin's remaining submissions can conveniently be dealt with under this heading.   His principal submission is that the Committee has not acted consistently.  He referred to the dictum of Lord Widgery CJ in Collis Radio Limited -v- Secretary of State for the Environment (1975) 22 P & CR 390 at 395:-

"So, in the end, the inspector's concern on this point was lest the grant of planning permission in respect of this piece of industrially zoned land might open up the way, as it were, for similar applications in respect of other parcels of industrial land, which applications might be difficult to refuse if this instant application were granted.

This is a problem which has appeared in the administration of the planning law since its inception.  There is no doubt whatever that, human nature being what it is, if permission is granted for a particular form of development on site A it is very difficult to refuse similar development on site B if the circumstances are the same.  It must happen constantly in practice that a local planning authority refuses planning permission in respect of site A because of the consequences which it fears might flow in respect of sites B, C and D.  No court has so far said that this is not a proper consideration to be adopted by a planning authority, and Mr Glidewell acknowledges, as one would expect, that he is putting forward a proposition which, so far, at any rate, is not to be found in the books.

He accepts that there will be cases where the relationship between what is allowed on site A and what may follow on site B is so close that one is really the inevitable consequence of the other, and I think that he there accepts that the granting of permission on site A would have to reflect the consequences on the other sites.  Where, however, there is nothing more than there is in the present case of a prospect of some sort of proliferation of the same kind of use, he boldly submits that that is not a proper consideration for the planning authority or the Secretary of State.  He makes that good by saying that only material considerations are acceptable in the decision of either of the authorities under the terms of section 246 of the Act.  He would argue that the possible consequence on other sites is not a material consideration in deciding the instant issue on the point now before the court.

All I can say, and I say it quite briefly, is that I am quite unable to agree with that view.  Planning is something which deals with localities and not individual parcels of land and individual sites.  In all planning cases it must be of the greatest importance when considering a single planning application to ask oneself what the consequences in the locality will be - what are the side effects which will flow if such a permission is granted.  In so far as an application for planning permission on site A is judged according to the consequences on sites B, C and D, in my judgment no error of law is disclosed but only what is perhaps the most elementary principle of planning practice is being observed."

34.      This principle has found support in Jersey in Planning and Environment Committee -v- Le Maistre (2002) JLR 389 where Rokison JA said at 406:-

"55       It may be that the Jurats were entitled to come to the view that they did, namely that, when looked at in isolation, to grant this application 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 Island Planning and Environment Committee is entitled and indeed bound to have in mind."

35.      The allegation of inconsistency arises in the following way.  As part of its assistance to applicants, the Committee issues Planning Policy Notes ("PPN") giving guidance as to the general approach of the Committee.  There are three PPN's which are relevant to this application.  PPN5 relates to residential density standards.  Density is measured by habitable rooms per acre (HRA).  PPN5 states that, for central areas of St Helier, generally up to 100 HRA will be allowed although this might be extended to 110-120 HRA for certain sites in excess of half an acre or where opportunities exist to introduce underground basement parking and storage areas. 

36.      PPN6 is entitled 'A minimum specification for new housing developments'.  It deals again with density and emphasises (see section 6) that density policies are a fairly crude development control tool and must be used in a flexible and reasonable manner with reference to other planning policies and requirements.  It then goes on to list a whole range of factors which will affect the actual development obtainable on an individual site.  Some of the factors listed are physical site characteristics e.g. size, shape, slope; the character of the surrounding townscape; the bulk and massing of accommodation; on-site parking space requirements; public and private open space requirements; and the relationship with neighbouring properties. 

37.      PPN6 goes on to deal with private amenity space. 

11.3 states:-

"In most locations where family houses are constructed (i.e. all dwellings of two bedrooms and above in size), gardens must be provided on the private side of the dwellings where they are screened from public view.  These gardens should never be less than 50 sq m, even when additional garden areas are provided on the public side of the dwelling." 

There is then a footnote to paragraph 11.3 which states:-

"There will be exceptional circumstances where it is necessary to forego the minimum garden size for new family houses in certain town centre and Conservation Area sites, where environmental considerations will take preference.  It may be more appropriate in such circumstances to reduce the minimum private garden size to 30 sq m for two-bedroomed town houses which would equate with the requirement for two bedroom flats and allow for passive recreation."

38.      PPN3 is entitled 'Parking Guidelines'.   The effect of these guidelines was that, in relation to the Morley House application, there had to be two parking spaces for each house with two additional visitor parking spaces.

39.      The application for the six terraced houses did not meet these various standards.  There are some differences between the figures provided by Caesar and those provided by the Committee although these are minimal and we do not think that anything turns on them.  The agreed density figure was 101 HRA.  The amenity space is as follows according to Caesar (all measurements whenever amenity space is mentioned hereafter are in square metres):-

-¢ Plot 1 - 48

-¢ Plot 2 - 28

-¢ Plot 3 - 24

-¢ Plot 4 - 24

-¢ Plot 5 - 21

-¢ Plot 6 - 40

-¢ Average 30.8

The Committee considers that the figure for Plot 6 takes into account a narrow strip of ground on the side which should not be included.  It puts plot 6 at 27 and its average figure is 29.  Either way, all the plots fall below the figure of 50 and most fall below the lower figure of 30 referred to in the footnote of PPN6.

As to parking, each unit has two parking spaces as required but there is no provision for the two additional visitor parking spaces required by the guidelines.

40.      Caesar accepts that the proposed scheme was deficient in the respects referred to above.  However both Mr Williams' letter of 20^th December 2001 and Advocate Voisin's letter of 21^st March 2002 placed considerable reliance upon the fact that the Committee had relaxed its standards for the development at Aubin Lane.  This development is situated some 100 yards along Aubin Lane from its junction with Blenheim Avenue.  For the purposes of this appeal Caesar also relies upon a comparison with a development permitted by the Committee at the Mascot Motor site which is reasonably close by, although not visible from the site.  We must therefore summarise briefly the points made by Mr Voisin in relation to those two developments. 

41.      Aubin Lane is a development of nine terraced houses which has now been completed.  The density is 130 HRA according to Caesar (128 HRA according to the Committee).  There is however underground parking on the site and therefore greater density is permitted under PPN5.  The amenity space for seven of the houses lies between 23 and 38; the eighth is at 50 and the ninth at 91.  The average amenity space is said by the Committee (through Mr Webster in his affidavit) to be just under 36 but this figure is of course affected by the two large gardens.  It is acknowledged that the parking facilities are less than that required by the guidelines to the extent of 5 spaces.

42.      The Mascot Motor site has not yet been developed but permission has been granted for ten houses with the density agreed at 115 HRA with no underground parking.  According to Caesar, the amenity space for two of the houses is under 40 (31 and 36) and the remainder fall between 40 and 46.  The Committee's figures suggest that the minimum amenity space is 41.2 and the highest 55.6.  Either way it is acknowledged that they all, or almost all, fall below the figure of 50 suggested in PPN5 and we do not think that anything turns on which set of figures is correct.  It is agreed that the on-site parking falls below the required standard to the extent of 10 spaces.

43.      In essence Caesar's submission on inconsistency is that there are no valid grounds for allowing the developments at Aubin Lane and Mascot Motor whilst refusing that at Morley House, particularly bearing in mind that the shape and size of the Morley House site is very difficult and cramped with the result that there are real difficulties in achieving the standards whereas there were not similar restrictions on the other two sites.  Mr Voisin submits that fairness and consistency dictate that Caesar must be treated in the same way as the applicants for the other two sites and that there are no valid grounds for distinguishing them.  The Committee has relaxed its published guidelines as set out in PPN3, PPN5 and PPN6, and in doing so in relation to Mascot Motor and Aubin Lane (particularly the latter which is so close to Morley House), the Committee has undermined those published guidelines to such an extent that to refuse Caesar's application on the grounds that it does not comply strictly with those guidelines is inconsistent, arbitrary and unfairly prejudicial to Caesar.  Indeed Mr Voisin submits that it is no longer possible for applicants or the officers of the Committee to know what are its 'adopted standards' as referred to in the Refusal Notice.  Are they the standards set out in PPN 3, 5, & 6 or are they the relaxed standards accepted by the Committee at Aubin Lane, Mascot Motors and, on its own admission, at various other residential development sites in the island?

44.      In addition to the argument on inconsistency, Mr Voisin relied upon what he termed the 'fall-back' argument.  He referred to Brentwood BC -v- Secretary of State for Environment (1996) JPL 939 where Mr Lockhart-Mummery, Q.C. sitting as a deputy judge said at 941:-

"The law on the topic was hardly in issue.  In considering the grant of planning permission for development A, the decision maker has to have regard to the ability of the applicant to implement an existing deemed planning permission for an alternative development B, which might have broadly similar planning implications.  In shorthand, he has to have regard to the applicant's ability to implement a 'fall-back' planning permission.  That principle was now well established.  In considering the question of fallback, however, the prospects of it taking place had to be real and not merely theoretical."

He submitted that there can be no stronger case of an alternative planning permission than the existing building and the existing use on the site.  This point had been made strongly in his letter of 21^st March 2002 requesting that the Committee reconsider the matter.

45.      He pointed out that the existing Morley House was described in the Planning Officer's report prepared for the Sub-Committee as ".... originally a Victorian detached house on to which had been added some rather unpleasant extensions in the 1970's-1980's in order to convert it into a nursing home which was closed in the summer once it was acquired by Antler, the applicants."  Thus the existing building had little visual amenity value.  Furthermore its existing density, parking and amenity space were worse than the proposed new scheme.  The existing building had a density of 112 HRA.  The existing car parking spaces were two in total for all staff and visitors to the nursing home.  Parking therefore had to take place in Blenheim Avenue.  There was no amenity space (as defined) because the building was built up against the back of the site so that the garden area was all in front of the building (towards Blenheim Avenue).  It therefore did not count as amenity space within the definition applied by the Committee.  In summary the proposed development would be an improvement in all material respects.  The Acts of the Committee did not refer to the fall-back argument despite it having been raised in Advocate Voisin's letter of 21^st March.  The decision should therefore be quashed on the ground that the Committee had not considered it at all or, if it had, it had reached an unreasonable decision bearing in mind the points made above.

46.      Next, in his skeleton argument, Mr Voisin appeared to be submitting that the 'out of character' ground was itself inconsistent with the published policies of the Committee.  He referred to various extracts from policies HO5, HO6 and HO8 which are not very specific but he relied particularly on paragraph 3.1 of PPN6 which states:-

"The Island Development Committee is anxious to avoid the uniformity and visual monotony of most post-war suburban housing developments which lack any specific Jersey characteristics.  Familiar elements of this type of development include rows of bungalows or semi-detached houses of a single design positioned centrally within their plots and spaced out evenly and regimentally along straight roads, with little regard to sites' advantages and limitations."

However, as the Solicitor-General pointed out, he omitted to refer to paragraph 3.3. which states:-

"It is of course equally important that developments of a more urban character comprising flats and town houses should also reflect and complement the scale and character of the local streetscene.  The creation of continuous built street frontages will often be required in such cases." 

47.      In the end we do not think Mr Voisin pressed this point.  In any event we do not accept it.  Whether the 'out of character' ground was reasonably applied in relation to the facts of this case will be a matter for discussion later in this judgment; but we are in no doubt that the fact that a proposed development is out of character with the nearby buildings is capable of being a valid ground for refusal and this is consistent with the published planning policies of the Committee.

48.      In the appellant's case, Caesar raised an argument on economic viability.  It submitted that Antler purchased the site (by means of the purchase of the share capital in Caesar) at a price which it considered economically viable on the basis of being able to build six houses on the site in accordance with the discussions which had taken place with Mr Fagan.  It asserted that a development of only four semi-detached houses, as suggested by the Committee in its Refusal Notice, was not commercially viable.

49.      In his skeleton argument and submissions to the Court, Mr Voisin accepted that, in view of the caveats which Mr Fagan had invariably given to the effect that anything he said was subject to the Committee's views, he could not pursue an argument that the Committee was estopped from resiling from its officer's views.  But he emphasised the reliance which architects and developers placed upon the views of planning officers and how the system would not work if the Committee were frequently to differ from its officers.  He further relied upon the fact that Mr Fagan had been of the opinion that, in view of the limited depth of the site, the amenity space was the best that could be obtained; and upon Mr Fagan's views (see his letters of 26^th June and 27^th July 2001) that the scheme was not out character with Blenheim Avenue.

(2)     The Committee's submissions

50.      The essence of the Committee's case is that, for this particular site, the proposed development is too cramped and involves an unacceptable over-development of the site which fails to comply with the guidelines for amenity space and parking provision and looks out of context in relation to the adjacent residential development in Blenheim Avenue.  It submits that these two reasons, namely 'over-development' and 'out of character' have to be viewed in conjunction with each other. 

51.      The problem arises because of the nature of the site.  The site originally included the land and property immediately to the north but this land was sold off separately some time ago before Antler became involved.  The consequence is that the present site has a very narrow depth (front to back) with the rear of the present building abutting the rear site boundary.  The front to back (south to north) depth of the site is approximately half that of the adjacent row of two-storey semi-detached dwellings in Blenheim Avenue.  It is the narrow depth of the site which imposes a significant constraint on the potential yield of the site for a new residential development with reasonable space standards.

52.      The Committee accepts that consistency is desirable but submits that it should not be taken too far.  For example, if the Committee felt that, in retrospect, it had made a mistake in granting permission for Aubin Lane, it would not be obliged to perpetuate that error in perpetuity by granting permission for similar developments in future.  It must be open to the Committee to rectify the position if necessary.  The Solicitor General accepted that a lack of consistency may be a factor in considering the reasonableness of a decision and clearly the longer a particular course has been followed, the more difficult it will be to defend a decision which is inconsistent with that earlier course.  But inconsistency is not, per se, a ground for overturning a decision; it is simply a factor which is to be taken into account in considering the reasonableness of that decision and the weight to be attached to the factor will depend upon the level of inconsistency. 

53.      Furthermore, in order for a decision to be held to be inconsistent with one or more other decisions, you must be satisfied that you are comparing like with like.  The Committee submits that there are important differences between the Morley House, Aubin Lane and Mascot Motor sites in connection with the size and shape of the sites, the site context and how the design density of development relates to the surrounds of each site.  It denies therefore that there has been any inconsistency.

54.      As Caesar made its submissions under the heading of density, amenity space and parking, it is convenient to do the same in summarising the Committee's submissions.  However the Solicitor General emphasised that the Committee had not relied upon density 'per se' as a ground for refusal.  The ground is 'over-development' of the site.  That includes a consideration of the proposed density but it is not limited to that factor and takes account of the nature and scale of the proposed development in the light of the character and location of the site.  Indeed PPN5 confirms that the density standards are not to be used as a set of inflexible and unnecessarily restrictive rules.  The final section of PPN5 states as follows:-

"However, Density Standards are a crude tool which must only be used for general guidelines.  It is certainly not the intention that they be rigidly and dogmatically applied.  In this regard the Island Development Committee will adopt a sufficiently flexible approach to ensure that the practicalities of design and aesthetics are not overcome by theoretical standards.

In the final analysis each application for development will continue to be considered on its individual merits.  The character and layout of a particular scheme will generally settle the exact level of development on a particular site and each individual application must continue to satisfy the following criteria:-

(i)   it should accord well with the physical characteristics and limitations of the site and represent an economical use of the site;

(ii)   it should be designed to be in keeping with the scale and character of its surroundings;

(iii)   it should provide enough living accommodation in a suitable variety of dwelling form;

(iv)  it should avoid the site being overloaded with accommodation and hence people, which might result in traffic congestion, noise, disturbance and undue pressure on services;

(v)  it should provide satisfactorily living conditions particularly in respect of light and air, privacy, amenity and parking space;

(vi)  it should avoid prejudicing the amenity currently enjoyed by the occupants of adjoining properties."

(i)     Over-development/density

55.      The Committee accepts that the density of Morley House (101) is less than Aubin Lane (128 or 130) and Mascot Motor (115).  However, in relation to Morley House, the density calculations are distorted and therefore give a misleading impression because of two factors:-

(i)        Both the study and kitchen areas, because of their small size (being under 90 sq ft and 70 sq ft respectively) are not defined as habitable rooms for the purpose of density calculations; whereas in the case of both Aubin Lane and Mascot Motor, all habitable rooms are of sufficient size as to be defined as habitable rooms.  This means that there is in reality a higher density (in the non-technical sense) on the Morley House site than a simple analysis of the figures would suggest.

(ii)       For the purpose of density calculations, half the width of the road is included in the site area.  In this respect Morley House has two road frontages, namely Blenheim Avenue and Aubin Lane (because it is on a corner).  Conversely the Aubin Lane site has one road frontage and the Mascot Motor site has no road frontage. 

56.      Furthermore the planning circumstances of the other two sites are not directly comparable.  Issues such as the size and shape of the site, the context of the site and how the design and density of development relates to its surrounds are all relevant.  Morley House is situated at the entrance to a residential cul-de-sac consisting entirely of two-storey semi-detached houses.  Because the site is only half the depth of the adjacent plots of two-storey buildings, the proposed new three-storey houses have to be pushed forward on the site in order to accommodate amenity space at the rear.  This results in the proposed development being well forward of the adjacent semi-detached houses and the footprint of the existing building.   It is the Committee's view that the scheme represents an unacceptable cramped over-development on a restricted site which looks out of character and would be detrimental to the visual amenities of the area.

57.      Aubin Lane is said to be more of a stand alone site situated between a public house to the north and Georgetown Motors to the south.  Furthermore the size and shape of the site has enabled provision of underground car parking which, in accordance with PPN5, allows a greater density compared to the Morley House site.  The Mascot Motor site is much larger than the Morley House site and again therefore not directly comparable; furthermore it is not part of an established 'streetscene' when viewed from the surrounding area.  It is much more of a stand alone site.  The Committee submits that, notwithstanding that the pure density figures may be greater on the other two sites, they do not resemble the cramped over-development in the context of their surrounds which the Committee believes is a feature of the proposed development on Morley House. 

(ii)    Amenity space

58.      According to the Committee five out of the six houses would have amenity space of less than 30.  There is a difference of opinion in relation to Plot 6 over whether a certain area of the side should be included.  Caesar says that it should be in which event that plot would have an amenity space of 40 leaving four with amenity space of under 30.  None of them exceeds the guideline figure of 50. 

59.      It is because of the need for amenity space that the whole development is pushed forward (i.e. to the south and towards Blenheim Avenue) as compared with the existing building on the site and with the adjacent two-storey semi-detached dwellings.  It is much closer to the road than any of these.  Furthermore, although the Committee accepts that there is a small south-facing balcony and an area in front of each house on the south side, the gardens which constitute the amenity space are all on the north side of a three-storey terraced building.  This is a relevant factor when assessing the quality of the amenity space and the Committee is of the view that the development offers poor amenity space for future occupiers of the houses. 

60.      The Committee accepts that the figures for amenity space for Aubin Lane are not significantly different (although a little greater) but is of the opinion that, in view of the fact that all the amenity space at Aubin Lane is semi-elevated, has a south-west aspect and that all the properties have in addition a south-west facing balcony, the nature of the amenity space at Aubin Lane is significantly better than that proposed for Morley House.

61.      The amenity space at Mascot Motor, whilst falling below the guideline figure of 50, is materially greater than that proposed at Morley House.  On the Committee figures, none of the houses have amenity space falling below 40.  On Caesar's figures two are below 40 (31 and 36).  Furthermore all the gardens have an east-west aspect and therefore are not on the north side of a high building as planned at Morley House. 

62.      In the circumstances the Solicitor General submits that the Committee was perfectly entitled to conclude that there are significant differences between the three sites which justify the Committee's decision not to accept the amenity space put forward at Morley House.

(iii)    Car parking provision

63.      The proposal for six terraced houses is deficient in car parking spaces to the extent of two spaces for visitors.  When reaching its decision the Committee took into account the concerns raised by the neighbours and the St Saviour's Roads Committee in relation to the difficulties with parking on Blenheim Avenue and decided that the parking guidelines should not be relaxed.

64.      The Solicitor General accepted that the Committee had relaxed its guidelines at Aubin Lane and Mascot Motor but submitted that that was no reason also to do so at Morley House if satisfied that there was a parking problem in Blenheim Avenue.  It was perfectly reasonable for the Committee to decide that the concerns of those in the locality should not be ignored. 

65.      In summary, on the issue of inconsistency, the Solicitor General submits that there are material differences in the situation and general characteristics of the three sites which mean that a decision in relation to one or more of the sites cannot act as some form of binding precedent in relation to the remaining sites.  There is no comparison of like with like. 

66.      As to the fall-back argument, she submitted that the authorities were really directed towards a situation where alternative planning permission had been granted or was to be assumed.  It was not really concerned with a comparison with the existing buildings on the site.  But even if it were, she submitted that there had to be a real possibility of the alternative use being put into effect.  She argued that there was no evidence of any real possibility that the building would return to use as a nursing home for the elderly.  It had been closed and empty since the middle of 2001 and the only real likelihood was that it would be demolished and developed. 

67.      Furthermore it was quite wrong to compare the figures for density, amenity space and parking of the scheme with the existing building.  The guideline figures were intended for new housing developments and had no application to nursing homes with elderly residents. 

68.      As to the visual amenities of the existing building, the Committee accepted that it was of no architectural merit.  But, as part of any redevelopment proposal, the Committee would normally seek to secure an improvement to the visual amenities of the area.  In this case, the Committee was of the opinion that because of its scale (being predominantly three storeys across the length of the site, unlike the existing Morley House), the fact that it was pushed further forward on the site, and its apparent 'squeezed-in' nature, the proposed development would be unduly out of character with the adjacent two-storey semi-detached houses and as such would not be a visual improvement compared with the existing building but would actually be more out of character with its surrounds than the existing building.   

69.      The Committee accepted that it acted against the advice of Mr Fagan and Mr Thorne who advised that consent should be granted.  The Law entrusts the decision to the elected members of the States who comprise the Committee, not to the planning officers.  Furthermore, on this occasion, it was the officers who were advising a departure from the adopted standards on amenity space etc.  In his planning report to the Sub-Committee, Mr Fagan accepted that the proposal provided minimal amenity space but expressed the view that the narrow depth of the site precluded achievement of the standards on this site.  That assessment was correct on the assumption that it was reasonable for six houses to be built on the site.  But the Solicitor General submitted that the Committee was perfectly entitled to conclude that the narrowness of the site and the consequent lack of amenity space meant that it would not be reasonable for six houses to be built on the plot and it should only allow four.

70.      As to the argument on adopted standards, the Solicitor General emphasised that they remained as set out in PPN3, 5 & 6.  Each of those documents made it clear that the standards were not intended to be applied inflexibly but were merely guidelines.  It was therefore not surprising that the Committee had indeed shown flexibility in the past and had allowed developments (including Aubin Lane and Mascot Motor) which did not meet those standards.  But that could not possibly mean, as Mr Voisin appeared to suggest, that the Committee no longer had any adopted standards and could not apply the published standards in any case where the application corresponded in whole or in part to one in which the Committee had relaxed the standards.  That would lead to the extraordinary situation where planning policies which specifically envisaged exceptions being made would effectively be nullified because the Committee had, as envisaged, allowed some exceptions.  That could not possibly be right.  Furthermore the Refusal Notice was not to be taken as saying that the Committee had decided that, come what may, the published standards had to be applied on this site.   All it said was that in relation to this particular scheme, the Committee was not willing to relax the standards. 

71.      On a point of detail, the Solicitor General pointed out that the site did not in fact fall within the defined central area of St Helier for the purposes of PPN5.  The recommended density level was therefore not 100 HRA but 65-70 HRA for the 'outer ring of town'.  However she accepted that that was equally true of Aubin Lane and Mascot Motor.  The point did not therefore affect the argument on inconsistency save that the departures from the adopted standards were greater in all three cases than had originally been submitted.

DECISION

72.      The Court has had the benefit of a site visit not only to Morley House but also Aubin Lane and Mascot Motor.  We found this to be of very considerable assistance in appreciating the submissions of the parties. 

73.      The Court is in no doubt that the decision of the Committee to refuse the application for six terraced houses as proposed was eminently reasonable.  Indeed we think that the Committee's decision was correct.   Our reasons for so concluding are essentially those of the Committee as summarised above.  We agree that the proposed scheme would have the characteristics described by the Committee.  We think that the expression of the Solicitor General of 'trying to squeeze a quart into a pint pot' is quite descriptive of the scheme.  We agree that it would represent a cramped over-development of what is a narrow site.  The amenity space for each house would be small and of poor quality because the gardens would lie immediately to the north of a three-storey building.  The impression of cramped over-development would be heightened by the fact that the building would be higher than the adjacent two-storey semi-detached houses and would be much further forward and closer to the road than the existing building or the neighbouring properties.  As one turned into Blenheim Avenue this development would crowd upon one and it would be wholly out of character with the remaining houses in Blenheim Avenue.

74.      As to the argument on inconsistency, we agree that consistency is an important factor as described by Lord Widgery in Collas Radio and Rokison JA in Le Maistre.  But the need for consistency cannot elevate an earlier decision into a binding precedent as Mr Voisin seemed to consider.  If, for example, the Committee were to conclude that it had made an error in relaxing the standards to the extent which it had at the Aubin Lane development, we think that it would be open to the Committee, in the case of an identical site, to admit its error and decide not to relax the standards to such an extent in future.  No doubt such a decision could be said to be inconsistent with the first decision but, assuming the Committee could satisfy the Court that it was acting reasonably in revising its views, we think that any such decision would survive an appeal. 

75.      In any event we are satisfied that that is not the situation here.  We agree with the Committee that there are material differences between the three sites and accordingly the Committee has not acted inconsistently.  In this respect we found the site visit to be of particular assistance.  We find that Mascot Motor is a wholly different proposition.  It is a large site which is situated in a fairly private area at the end of an existing estate.  It does not abut onto a road.  It does not have the characteristics of the Morley House site.

76.      Aubin Lane is a little more similar to the Morley House site but we agree with the Committee's reasons for distinguishing it.  The nature of the amenity space is much better than that which would be available at Morley House for the reasons the Committee gives.  Furthermore its surrounding area is quite different notwithstanding that it is very close to Morley House.  It lies in Aubin Lane and its immediate surroundings are not at all similar to the fairly uniform surroundings in Blenheim Avenue.   

77.      As to the fall-back argument, we do not think that it assists Mr Voisin.  In the first place we agree that there appears to be little prospect of the building reverting to a nursing home for the elderly given that it has now been unused for two years.  Even if that were not so and there was a real prospect of it reverting to that use, we do not think that that would make the Committee's decision unreasonable.  The present building may be of little architectural merit because of the various extensions but we do not think it unreasonable for the Committee to have concluded, as summarised earlier, that it would still be preferable to the proposed scheme, in that it is set back from the road and does not intrude on the visual amenities of the area in the same way that the cramped over-development further forward on the site would do.  Furthermore, even if one were to be of the view that the scheme is an improvement on the existing building, this does not mean that it would necessarily be unreasonable to refuse permission for the scheme.  In our judgment it is perfectly acceptable for the Committee to seek a substantial improvement to the visual amenity of an area wherever possible.  Let us assume a situation where there is a hideous monstrosity on a site.  It cannot be the law that the Committee must allow a new monstrosity to be built merely because it is a little (but not much) less hideous than the existing building.  The Committee is surely entitled to take into account that existing buildings will probably have a somewhat limited economic life whereas a completely new building will clearly have a much longer life.  The Committee is, in our judgment, entitled to look for a substantial improvement in the visual amenity and not be obliged to grant consent to an unsightly development merely because of some marginal improvement upon the existing building.

78.      Ultimately the case turns on its facts.  Do we think that it was unreasonable for the Committee, notwithstanding its approval of the Aubin Lane and Mascot Motor developments, to refuse this particular development on the grounds which it gave, namely that it would amount to an unacceptable over-development of the site which fails to comply with the appropriate standards on amenity space and parking and looks out of context in relation to the adjacent residential development in Blenheim Avenue.  We have no hesitation in concluding that the Committee was acting reasonably in so concluding.  Indeed, as we have said, we think it reached the correct conclusion.

79.      In reaching our conclusion we have taken into account that the Committee's decision was contrary to the recommendation of the planning officers that the scheme should be approved.  However, it is trite law that the statute confers the power of decision upon the Committee, not upon the planning officers.  For the reason given, we conclude that the Committee acted reasonably in deciding on this occasion not to go along with the officers' recommendation.  The officers were recommending a departure from the adopted standards.  Mr Fagan advised that the amenity space in the scheme was the best that could be obtained having regard to the limitations of the site.  However we agree that this was allowing the tail to wag the dog and assumed that it was appropriate to grant permission for the building of six houses.  If that were appropriate, it was perfectly reasonable for Mr Fagan to conclude that the amenity space was the best that could be obtained.  But the real question is whether it was appropriate to allow six houses to be developed; clearly if only four houses were permitted the amenity space would be considerably greater and the element of a cramped over-development would be much reduced.   In our judgment, on this occasion, the Committee's approach was right and Mr Fagan's was wrong.   Furthermore the Committee was entitled to differ from Mr Fagan's view on whether the scheme would be out of character with the adjacent houses in Blenheim Avenue.  Having been on site we agree with the Committee rather than Mr Fagan.

80.      Nor were we impressed by the evidence of Caesar to the effect that the planning system would break down if developers could not rely upon the views of planning officers.  Developers are - or certainly should be - aware that the decision is ultimately for the Committee; indeed Mr Fagan made this clear at all times in his correspondence.  Developers therefore have to take a commercial view on how to proceed bearing this in mind.  The planning officers are very experienced and no doubt tend to have a feel for what the Committee will and will not allow.  They are therefore able to offer helpful advice which, we expect, in the majority of cases is probably correct.  But it remains a matter for commercial decision on the part of applicants as to whether they proceed on the basis of the officers' views or not.  That has been a decision for developers to make ever since the planning system has been introduced.  The fact remains that any views expressed by the planning officer cannot fetter the discretion of the Committee.   That has always been the position.

81.      For the reasons which we have given, we dismiss the appeal against the Committee's decision to refuse permission for the terraced scheme. 

THE ALTERNATIVE SEMI-DETACHED SCHEME

82.      Caesar also appeals against the Committee's decision to refuse the alternative scheme on 10^th June 2002.  It is to be recalled that, in the light of the Refusal Notice, Caesar had submitted drawings in respect of a scheme for six semi-detached houses as an alternative. 

83.      This scheme proposed three buildings, each containing two three-storey semi-detached houses.  There was one metre between each building.  The density of the scheme was reduced (95.9 HRA) and the amenity space increased (average of 36 according to Caesar; 33 according to the Committee, the parties still differing on how to treat the side area of plot 6).  The parking provision now met the required standards by the provision of two visitors' parking spaces.  However, in order to accommodate the extra amenity space, the buildings had been pushed even further forward towards the road and therefore further in front of the line of the adjacent two-storey semi-detached dwellings in Blenheim Avenue.  At its meeting on 10^th June the Committee decided that the revised scheme did not satisfactorily overcome the concerns that the proposal would involve an over-development of a restricted site and be out of character with the existing properties in Blenheim Avenue. 

84.      A difference arose between the parties as to whether the decision of 10^th June was a refusal of an application for planning permission against which an appeal could be brought.  The Committee contended that it was not a formal revised application which had been through the normal consultation/advertisement process.  The Solicitor General submitted that, if the Committee had been minded to support the proposed development on the basis of the revised drawing, the normal course of action would have been for the Committee to advise Caesar, without prejudice to its final decision, to submit a formal revised application on that basis. 

85.      Caesar, on the other hand, argued that this was a minor variation.  The Committee often agreed to grant permission after minor variations to a scheme which had not been approved in its original form.  In such circumstances there was no re-advertisement or re-consultation on the variations.  It was a matter of degree.  In this case the Committee had considered the alternative scheme and had decided not to agree to it.  It would therefore be unfair not to allow Caesar to appeal against that refusal.  

86.      This is not an easy matter and we think that each case will turn on its circumstances; in particular the degree of variation is important and the Committee must bear in mind the need to ensure that those who wish to object are not prejudiced by the Committee approving a substantially varied scheme which has not been advertised.  As against that, it would be undesirable if minor variations could not be consented to as part of the original application where the Committee is satisfied that the variations could not possibly affect the interests of objectors.   But in this case we have to deal with the situation as we find it.  If the Committee is right, the only way in which Caesar can appeal the decision concerning the alternative scheme is now to re-submit it as a formal application.  The advertisement/consultation procedure would then have to be gone through and, presumably, much the same views received as in relation to the terraced scheme.  The Committee would then refuse the application because that is what it has already decided to do.  Only then would Caesar be able to appeal the matter to the Royal Court.  We think it unnecessary and undesirable to put the parties through such a charade and accordingly, Caesar having specifically requested that we should do so, we propose to treat the decision of 20^th June in relation to the alternative scheme as a decision of the Committee against which an appeal lies. 

87.      Mr Voisin submits that the alternative scheme was satisfactory.  Density was reduced, parking provision complied with the standards and the amenity space was increased so that the average figure was comparable with Aubin Lane.  It was semi-detached and therefore more in keeping with Blenheim Avenue.  In those circumstances all the arguments which he had brought in relation to the terraced application e.g. inconsistency, fall-back etc applied with even greater force in relation to the revised scheme and it was therefore unreasonable for the Committee to refuse it.

88.      We have carefully considered Mr Voisin's submissions.  But we find that the decision of the Committee to refuse the revised scheme was perfectly reasonable.  It is correct that density is reduced, there is not a problem over parking provision and the amenity space is increased.  However the amenity space remains below the adopted standards and the small gardens remain to the north of a three-storey building (unlike Aubin Lane and Mascot Motors).  Furthermore, because of the need to increase the amenity space, the three buildings have been pushed even further towards the road so as to be further in front of the footprint of the existing building and the line of the adjacent semi-detached two-storey houses.  Furthermore the gap between the three buildings is very small (one metre) and we can well understand the Committee's view therefore that this still represented a cramped  unacceptable over-development of the site with unsatisfactory amenity space which did not meet its standards and that the development remained out of character with the adjoining properties in Blenheim Avenue.  We do not find that the Committee was wrong to so conclude.

89.      It follows that we dismiss Caesar's appeal in respect of the revised semi-detached scheme as well as in respect of the terraced scheme.

Authorities

States of Jersey Law, 1966: Article 36A

Token -v- PEC [2001] JLR 698.

Interface Management Ltd -v- JFSC [2003] JRC 172.

De Smith, Woolf and Jowell: "Judicial Review of Administrative Action" (1995) 5^th Ed'n; Sweet & Maxwell) pp 457-473 and pp 498-502 and 683-684.

Planning & Environment Committee -v- Le Maistre (2002) JLR 389).

Taunton -v- Planning & Environment Committee (22^nd April 1999) Jersey Unreported; [1999/71].

Collis Radio Limited -v- Secretary of State for the Environment (1975) 29 P and CR 390.

Retail Media Limited -v- Secretary of State for the Environment Transport & Regions (2000) EGCS. 111.

Brentwood Borough Council -v- Secretary of State for the Environment & Gray (1996) JPL 939.

R -v- East Hertfordshire District Council ex p. Beckham (1998) JPL 55.

R -v- Mendip District Council ex p. Fabre (2000) JPL 819.