Jersey Unreported Judgments

[2004]JRC011

royal court

(Samedi Division)

 

16^th January 2004

 

 

 

 

Appeals from two decisions of the Planning and Environment Committee

 

Advocate M M G Voisin for the Appellant;

The Solicitor General for the Respondent Committee.

 

 

 

judgment

the DEPUTY bailiff:

Introduction

1.        The Court has before it appeals from two decisions of the Planning and Environment Committee ("the Committee").  The appeals have a somewhat convoluted procedural history and give rise to two preliminary procedural issues for resolution.  In order to explain how these arise, it is necessary to set out the history of the matter in a little detail.

The procedural history

2.        On 22^nd August 2000 Trump Holdings Limited ("Trump" or "the applicant") made an application (the "first application") for permission to:-

"Demolish existing buildings Nos 12-14, 16-18, Hilgrove Street and 8-10 & 12 Halkett Street.  Construct new three-storey building, comprising retail unit at ground and first floor, storage area and one-bedroom flat at the second floor."

3.        The buildings comprising the site had previously been included/removed as Buildings of Local Interest ("BLI") on the Register of Buildings and Sites of Architectural, Archaeological and Historical Importance ("the Register") as follows:-

(i)     12-14 Hilgrove Street: registered in 1992 and never removed;

(ii)    16-18 Hilgrove Street and 8-10 Halkett Street: a redeveloped building registered in 1992, removed in 1999;

(iii)   12 Halkett Street: registered in 1992 and removed on 23rd June 1997.

4.        The usual consultation and advertising took place.  The Parish of St Helier, the National Trust for Jersey and a resident of St Brelade objected to the demolition of 12 and 14 Hilgrove Street.  The Committee considered the first application on 23^rd November 2000 at which time it received an oral presentation from the appellant's architect, Nigel Biggar & Partners and a report dated 15^th November 2000 from one of its officers recommending that the application be refused because it would result in the loss of two registered buildings, namely 12 and 14 Hilgrove Street.  The Committee adjourned the first application pending receipt of a report being prepared by Trumps's structural engineers, D J Hartigan & Associates ("Hartigan") relating to the structural condition of 12 and 14 Hilgrove Street.  

5.        On 6^th December 2000 officers of the Committee met with Hartigan and Trump's architect on site to discuss Hartigan's structural report.  Subsequently the Committee commissioned its own structural report from the Morton Partnership ("Morton").  Although we will need to refer to the Hartigan report and the Morton report in more detail later, it may be helpful to summarise them at present by saying that Hartigan states that the two buildings are in a very poor state of repair and that major works, including underpinning, are required in order to render them suitable for use.  Morton, on the other hand, considers that the extent of repairs necessary to preserve the useful life of these buildings is significantly less.

6.        On 28^th December 2000 the Committee refused the first application.  The grounds for refusal were as follows:-

"The proposed development would result in the unacceptable demolition of two buildings included in the Planning and Environment Committee's "Register of Buildings of Architectural, Archaeological and Historic Importance in Jersey" as Buildings of Local Interest, contrary to interim policy HB6, 1998."

7.        Trump subsequently asked the Committee to reconsider.  This it did on 15^th March 2001.  By this time it had received an addendum to the Hartigan report (with costings prepared by Tillyard, quantity surveyors) and a further report from Morton entitled `An Appraisal of the Appeal Documents'.  The addendum to the Hartigan report estimated the cost of the necessary repairs as being £220,800 whereas Morton estimated the cost of the necessary works as £99,968.  The difference is explained by the extent of the work which Hartigan and Morton respectively advised had to be done.  The Committee also received an appeal report from its Assistant Director of Planning and Building Services, Mr Stuart Fell.  The Committee decided to maintain its refusal having regard to the status of the two buildings as BLI's, having been advised that the two buildings were capable of being refurbished.

8.        On 21^st March 2001 Trump gave notice of appeal against the decision of the Committee dated 15^th March 2001 ("the First Appeal").

9.        On 7^th August 2001 Trump's advocate, Advocate Voisin wrote a detailed letter requesting the Committee to reconsider its decision of 15^th March.  This was accompanied by a further report from Hartigan on the poor condition of the two properties.  Mr Fell again prepared an appeal report commenting on the letter from Advocate Voisin.  In this report he advised that the Committee could concede the loss of 12 Hilgrove Street whilst maintaining its stance in relation to 14 Hilgrove Street, which was a better example of a property built in the mid 19^th Century.  On 25^th October 2001 the Committee maintained its refusal.  It appears that that maintenance may have been subject to further consideration if a Mr P Drury, who was due to visit the island shortly, advised adversely on the properties.  However he did not and the decision was therefore maintained.  Trump subsequently amended its First Appeal to include reference to the reconsideration on 25^th October.

10.      After the decision of 25^th October, the Committee, through its officer Mr Fell, took steps to carry out further investigations in relation to the viability of the two buildings in their present form.  Thus, the Committee obtained a report by local historians Paul Craig and Andrew Ferrari on the history of Hilgrove Street.  The Committee also instructed a Mr Anthony Gibb to see if he could come up with a scheme for the two buildings.  He did so and prepared a plan which involved joining the interiors of the two buildings together while maintaining the integrity of the outside.  His scheme was subsequently costed by surveyors for both Trump and the Committee.  On 21^st January 2001, at the request of the Committee, Morton prepared a further report commenting, inter alia, on the Gibb proposal as well as offering further advice on the Hartigan report.   Ultimately both sides agreed that the Gibb proposal was uneconomic.

11.      A difference of opinion having arisen between Advocate Voisin and Crown Advocate Sharpe (who was then representing the Committee) as to whether any of the reports etc obtained after 25^th October 2001 could be admitted at the hearing of the First Appeal (which had been fixed for 28^th October 2002) a directions hearing took place before me on 8^th October 2002.  I expressed the view that it was undesirable for the Court to have to consider a lot of new material which had not been before the Committee and that such a course appeared to be turning an appeal into an original application.  Following discussion the parties, through their advocates, agreed that the First Appeal should be adjourned while Trump went back to the Committee in order to put all relevant new material before it.  It is fair to say that the notes of the hearing suggest that all those concerned referred to Trump making a fresh application to the Committee and that is reflected in the Act of the Court which stated that, by consent, it was ordered that the parties should disclose to each other any new information which had come to light since the Committee's decision and that Trump should make a `fresh application' to the Committee.

12.      Shortly afterwards Advocate Voisin raised with Crown Advocate Sharpe whether he should not be inviting the Committee to reconsider its decision in the light of the new material rather than making a fresh application but Crown Advocate Sharpe, on behalf of the Committee insisted that the matter should be dealt with as a fresh application and this was what was done, despite the fact that the new application was for an identical proposal to that set out in the first application.

13.      The second application was submitted under a very long and detailed letter from Advocate Voisin dated 3^rd December 2002 which included all the material which had been before the Committee at the time of the first decision and all the further material which had been obtained since then.  We have listed some of that above but there were many other documents exhibited to the letter.  Particularly significant documents were a valuation of the properties prepared on behalf of Trump by Barnes & Partners on 28^th November 2002, a report dated November 2000 from Mr J Carey of Donald Insall Associates Limited on behalf of Trump and a further detailed report from Trump's architect. 

14.      On 18^th March 2003 the Committee's officer, Mr Fell, prepared a detailed report advising on the second application.  On 3^rd April the Committee refused the application.  The reasons given in the Notice of Refusal were as follows:-

"1.       The proposed development would result in the unacceptable demolition of two buildings 12 and 14 Hilgrove Street included on the Environment and Public Services Committee's `Register of Buildings and Sites of Architectural, Archaeological and Historical Importance in Jersey' as Buildings of Local Importance. (sic) The scheme is therefore contrary to Policy G13 in which there is a presumption in favour of the preservation of the architectural and historic character and integrity of registered buildings.

2.        The proposal is contrary to the Jersey Island Plan Policy G16:

(i)        involves the demolition of two buildings which the Committee considers to be capable of repair and refurbishment.

(ii)       In which a building will normally only be permitted demolition where this would not have an unacceptable impact on a Building of Local Importance. (sic)

(v)       In accordance with other principles and policies of the Plan.

3.        The proposal is contrary to the Jersey Island Plan Policy G2:

(i)        in that it fails to demonstrate that demolition of the two buildings will not unreasonably affect the character and amenity of the area.

(iv)      Fails to demonstrate that demolition of two buildings will not have an unreasonable impact on architectural features including where appropriate measures for the enhancement of such features.

4.        The proposal fails to comply with Jersey Island Plan Policy BE2:

(ii)       in the protection of local historic character by limiting adverse impacts upon historic and cultural resources.

5.        The proposal fails to comply with Jersey Island Plan Policy BE3:

(i)        in the protection and enhancement of the historic character of the town."

15.      On 8^th April 2003 Trump appealed ("the Second Appeal") against the decision to refuse the second application.

The procedural issues

 

(i)         Can there be two appeals in respect of essentially the same application?

16.      At an earlier hearing the Court raised the question of whether the First Appeal is now spent given that the second application has been refused and an appeal has been brought against that refusal.  The parties have filed contentions on this issue and the Court is grateful for their assistance.  In essence, the Committee submits that the First Appeal should be stayed as an abuse of process given that the second application was for exactly the same development as the first application and there is now an appeal from the refusal of the Committee to agree to the second application.

17.      In our judgment the Court undoubtedly has power under its inherent jurisdiction to stay an appeal where it is satisfied that it would be an abuse of process to proceed with it.  This is likely to be the case where the decision against which a first appeal is brought has been subsumed in the second decision.  In this case the second application was identical to the first application; all that differed were the arguments and material in support of it.  Accordingly, if there had been no change in the planning policies between consideration of the first application and the second application, we would have held it to be an abuse of process to proceed with the First Appeal.  All the material which would be relevant to the decision would have been before the Committee on the second application and would be considered by the Court on the Second Appeal.  Determination of the Second Appeal would necessarily determine the outcome of the First Appeal.  It would therefore be an abuse of process for both appeals to proceed and the First Appeal would have been stayed.

18.      But that is not the position here.  The Court does not consider it to be an abuse of process to allow the First Appeal to continue on the particular facts of this case.  Our reasons are as follows:-

(i)     Following the directions hearing on 8^th October 2002, it was ordered by the Court that there be a `fresh application' to the Committee.  However it is clear that there was no discussion at the time as to the difference between a fresh application and an application for reconsideration by the Committee.  No consideration was given by the Court or either of the parties to the distinction.  Applications for reconsideration are extremely common.  Indeed they are actively encouraged by the Committee in that the initial decision is often reached by the Sub-Committee, and rather than proceed straight to an appeal to the Royal Court, applicants are invited to apply to the full Committee for reconsideration if they wish.  This is a helpful practice as it avoids unnecessary appeals to the Court.  In such cases the Court, when hearing an appeal, considers the material which was before the Committee at any stage, whether at the hearing of the original application or on any of the requests for reconsideration.

(ii)    Following the directions hearing, Advocate Voisin sought to proceed by way of an application for reconsideration but, having taken instructions from the Committee, the Crown Advocate insisted that the matter proceed by way of fresh application.

(iii)   This was a significant distinction on this occasion because, in July 2002, the new Island Plan was approved by the States.  It contained a number of new planning policies.  The first application was therefore considered under the old Island Plan whereas the second application was considered under the new Island Plan.  Mr Voisin submits that it would be unfair to refuse to allow Trump to continue with its appeal against the first decision because it would prevent an appeal being brought on the basis of the old Island Plan.  We will comment later on the strength of any difference between the applicable policies under the old Island Plan and the new Island Plan but we agree that, in the particular circumstances of this case, it would be unfair to Trump to prevent it from mounting an appeal on the basis of the policies applicable under the old Island Plan.  We therefore decline to strike out the First Appeal as an abuse of process. 

(ii)        Admissibility on appeal of evidence obtained since the Committee's decision

19.      The second procedural issue arises in this way.  As described above, the final reconsideration by the Committee of the first application took place on 25^th October 2001.  All material before the Committee at that stage is clearly admissible in the First Appeal.  Subsequently, both parties obtained a number of additional reports (see para 10 above).  Mr Voisin submits that, when hearing the First Appeal, the Court should receive all these additional reports.  The Solicitor General, on the other hand, submits that the Court should confine itself to the evidence which was before the Committee.  We should add, for the sake of clarity, that the First Appeal was brought under the old Part XII of the Royal Court Rules.  Since then Part XII has been altered radically by the Royal Court Rules (Amendment No 19) 2002 and the new procedure applies to appeals commenced after 2^nd September 2002. 

20.      The Court undoubtedly has power to hear evidence on an administrative appeal (see Mesch -v- Housing Committee (1990) JLR 269).  However it is a power to be used sparingly.  The Island Planning (Jersey) Law 1964 ("the Planning Law") provides for decision by the Committee with an appeal to the Court.  The Court is not the planning authority.  Applicants must put their best foot forward before the Committee.  They must put all relevant material before the Committee.  It is not satisfactory for an applicant to make a rather half-hearted application to the Committee and then seek to buttress it after refusal by the Committee.  It is in principle unsatisfactory for the Court to have to consider a whole mass of evidence which was not before the Committee.  If an applicant does obtain further material with which he wishes to support his application, the correct course is for him to apply to the Committee to reconsider the application in the light of the new material.  On many occasions the Committee will agree to change its mind in the light of the new material.  If it does not, the appeal can encompass the application for reconsideration and the Court will have the benefit of the Committee having considered all the material which is placed before the Court. 

21.      For these reasons the Court should be very slow to admit new evidence which was not before the Committee.  It is for applicants to ensure that they place all relevant material before the Committee and they will have to provide very compelling grounds as to why the Court should hear evidence which was not before the Committee.  However the Court does have a discretion to do so in exceptional cases. 

22.      We are satisfied that this is such a case.  Following the refusal of the Committee to reconsider on 25^th October 2001, it was the Committee which decided to carry out further investigations by procuring the Gibb proposals and obtaining further reports from Morton and others.  This is turn called for comment by Trump which obtained further reports from its advisers.  We accept, as the Solicitor General submitted, that these investigations by the Committee were not undertaken in order to strengthen the Committee's position on the appeal.  They were taken in a genuine attempt to try and assist in preserving these two buildings by showing that there were viable alternatives to demolishing them.  However the various reports and proposals which emerged were undoubtedly relevant to the appeal.  Bearing in mind that, for perfectly genuine reasons, it was the Committee which instituted the obtaining of this extra material, we think it would be unfair to Trump to refuse to consider such material simply because it was not before the Committee on the first application.  Furthermore, the Court will in any event be considering all the new material in the context of the Second Appeal.   It would seem artificial therefore not to consider it in the context of the First Appeal.  In all the circumstances we give leave for all material obtained by both parties since October 2001 to be adduced in evidence in relation to the First Appeal.

The factual background

23.      The site which was the subject of both applications presently comprises four buildings, namely 12 Hilgrove Street, 14 Hilgrove Street, the building formerly comprising 16-18 Hilgrove Street and 8-10 Halkett Street, and 12 Halkett Street.  The site forms the corner of Hilgrove Street and Halkett Street on the northern side of Hilgrove Street and the western side of Halkett Street.  The building which formerly comprised 16-18 Hilgrove Street and 8-10 Halkett Street was constructed fairly recently (circa 1970's).  It has no architectural or historical significance.  It is well known locally as having housed the Video Centre as a shop on the ground floor when it was first opened.  We shall refer to it as the "Corner Building". 

24.      The application involved the demolition of all four of the existing properties and their replacement with a modern building comprising retail space on the ground and first floors and residential accommodation on the second floor.  The Committee has raised no objection to the demolition of the Corner Building nor of 12 Halkett Street.  It has refused the application on the grounds that it would involve the demolition of 12 and 14 Hilgrove Street, both of which are included as BLI's on the Register. 

25.      Much energy has been directed by the parties to the production of evidence concerning 12 and 14 Hilgrove Street as well as 12 Halkett Street.  We do not think it is necessary for us to go into great detail.  We have read carefully all the reports which have been tendered by the parties. 

26.      A convenient summary of the position can be found in the report of Mr Carey on behalf of Trump.  He is of the opinion that 12, 14, 16 and 18 Hilgrove Street together with 8, 10 and 12 Halkett Street were probably all developed by a Jean Aubin in the mid 19^th Century.  He is of the opinion that 14 Hilgrove Street probably dates from the 1830's, 12 Hilgrove Street some 10-20 years later and 12 Halkett Street in the 1840's. 

27.      In the 1970's change was in the air in Jersey.  The Committee's predecessors as planning authority, the Island Development Committee, in its wisdom, gave permission for 16 and 18 Hilgrove Street as well as 8 and 10 Halkett Street to be demolished and replaced by the Corner Building.  One suspects that few would consider this to have been an improvement.  On the other side of 12 and 14 Hilgrove Street, the buildings which lay between them and the Market (namely 8 and 10 Hilgrove Street) were demolished to make way for an office building (subsequently the Housing Department) and a shop.  It is clear from photographic evidence that, as one would expect, all of the demolished buildings were of a type and complementary with 12 and 14 Hilgrove Street as well as 12 Halkett Street.  Over the years all of the south side of Hilgrove Street has been demolished and replaced by modern buildings.  The upshot is that, as a result of the actions of previous planning committees, nothing remains from the original 19^th Century buildings in Hilgrove Street save for 12 and 14, the Prince of Wales tavern and the entrance to the Market. 

28.      The degree to which 12 and 14 Hilgrove Street as well as 12 Halkett Street remain in their original condition varies.  Inevitably they have been subject to modification over the years.  The Court and the Committee have had the benefit of detailed reports from Mr Carey and Mr Fell and have also been assisted by photographs and sketch plans showing those features which are original and those which are not in relation to the exterior of the premises.  There is an element of disagreement between Mr Carey and Mr Fell but we do not consider this to be significant.  Suffice it to say that, to quote Mr Carey, "an appreciable amount of the original plan and envelope of all the buildings survives, together with significant amounts of internal historic fabric".  12 and 14 Hilgrove Street are described by Mr Fell in his survey report of 15^th February 2001 as "a rare survival of early-mid 19^th Century domestic property in the town centre".   Both agree that 14 Hilgrove Street retains the maximum amount of the original building followed by 12 Halkett Street with 12 Hilgrove Street bringing up the rear. 

29.      The Court has had the benefit of a site visit which involved inspecting the exterior and interior of the two properties in Hilgrove Street and inspecting the exterior of 12 Halkett Street and the Corner Building.  There is no doubt that both 12 and 14 Hilgrove Street are in a poor state of repair and are vacant.  The Court and the Committee have seen detailed reports prepared by Hartigan and Morton respectively.  Both agree that substantial works are required in order to put the properties into lettable condition.  However they differ as to the extent.  Hartigan is of the opinion that there has been continuing settlement with the result that he recommends underpinning.  Morton, on the other hand, believes that any settlement is historic and that underpinning is therefore not necessary.  The properties are not owned by Trump which merely has an agreement to purchase subject to the necessary development consent.  Until her recent death, both properties were subject to the life enjoyment of the widow of the previous owner with the reversion of No.14 going to one child and the reversion of No.12 to another.  The result of this split of life enjoyment and reversionary ownership has been, as is often the case, a lack of maintenance and repair, as the reversioners have not been willing to undertake `grosses reparations' when they would receive no return from the property until the death of the life tenant.

30.      Because of the differences of opinion between Hartigan and Morton as to the work required, there is a difference of opinion between them as to whether the properties can be made viable.  We will deal with this in more detail shortly. 

31.      In essence the Committee decided that it was not willing to see the demolition of these two BLI's and was of the view that it had not been shown that it was not possible to repair and refurbish them.  Trump submits that this decision of the Committee was unreasonable. 

The test on appeal

32.      Article 20(1) of the Planning Law confers a right of appeal where the decision of the Committee is unreasonable.  The case of Island Development Committee -v-  Fairview Farm Limited (1996) JLR 306 overturned long standing authority to the effect that the Royal Court could not intervene on an appeal unless it was satisfied that the decision of the Committee was one to which no reasonable Committee could have come.  It held that the Royal Court, as an appellate body, must consider not merely whether the Committee 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 Committee, but it cannot escape the responsibility of forming its own view. 

33.      Further assistance on what is meant by unreasonable was given by Bailhache, Bailiff in Token Limited -v- Planning & Environment Committee (2001) JLR 698 where he said:-

"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."

That approach was endorsed by the Court of Appeal in Planning & Environment Committee -v- Le Maistre (2002) JLR 389 at 398.

The Second Appeal

34.      Although we heard submissions in a different order, we think it convenient to deal with the Second Appeal first, given that all relevant material in relation to this whole matter was before the Committee when it considered the second application.  We propose to consider Mr Voisin's submissions under the following headings.

(i)         No statutory basis for BLI's

35.      Mr Voisin submits that there is no specific statutory authority conferred by the Planning Law for the conservation of BLI's.  This issue is raised (albeit in slightly different form) in relation to both the First Appeal and the Second Appeal and we think it convenient to deal with the whole issue at this stage.

36.      Article 2 of the Planning Law sets out the purposes of the Law.  The only relevant purposes are those contained at paragraphs (d) and (g) together with the concluding words.  The relevant provisions are as follows:-

"The purposes of this Law are:-

................... (d) to preserve and improve the general amenities of any part of the Island;

 .................. (g) to protect sites of special interest;

and generally to prevent the spoliation of the amenities of the Island."

37.      Sites of special interest were introduced by an amendment in 1983 and may comprise buildings of special architectural or historic interest and other types of site deemed particularly worthy of conservation.  The Planning Law provides for a specific procedure whereby sites are designated as sites of special interest by Order made by the Committee following specified consultation.  Once a site is declared as a site of special interest, there are specific protections set out in the Law. 

38.      The Committee has also introduced policies dealing with buildings worthy of preservation.   In July 1998 the Committee published a detailed document entitled "Interim Policies for the Conservation of Historic Buildings" ("the Interim Policies").  It is worth quoting from part of that document as follows:-

"CONSERVATION OF JERSEY'S HISTORIC BUILDINGS

DESIGNATION

THE Committee has a statutory duty to protect not only buildings and places of special architectural, historical and other interest, but also to `to preserve and improve the general amenities' of jersey, and prevent their spoliation, under Article 2(d) of the Planning Law.  The concept of amenity in planning legislation has been held to embrace `the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer-by as to the resident ...`Amenity' may be taken to express that element in the appearance or layout of town and country which makes for a comfortable and pleasant life rather than a mere existence." .... There is no doubt that the concept of amenity is wide and flexible ... it may in a particular case embrace not only the effect of a place on the senses, but also the resident's subjective perception of his locality.  Knowing the use to which a particular site is or may be put, may affect one's perception of amenity.' (original emphasis)

It is important to note that this definition does not exclude buildings and structures which, whilst not conventionally `pleasing in appearance', nonetheless possess historic importance which, in the subjective perception of the informed viewer, contribute to the amenities of the locality.

In place of the complex system of designation and grading which has characterised the past approach to the identification of Jersey's historic buildings, a simple system has now emerged, involving the designation of the most significant as Sites of Special Interest (SSIs), and identification of the remainder of buildings which retain their historic character and interest, and thus contribute to the amenity of Jersey, as Buildings of Local Interest (BLIs).  The two categories together comprise Jersey's (officially recognised) buildings of architectural or historical importance, included in the Committee's Register of Buildings and Sites of Architectural, Archaeological and Historical Importance in Jersey, and here referred to collectively as `registered buildings.

.......................................

In practical terms, inclusion of a building on the Register alone is a material consideration in determining any planning application which affects its contribution to the amenities of Jersey, in other words, the public realm; SSI designation as a building of special interest additionally brings statutory control over building fabric and interiors."

We shall refer to some of the Interim Policies in more detail in due course but in essence they provide for inclusion of SSI's and BLI's in the Register and for policies in relation to the conservation of SSI's and BLI's respectively. 

39.      The Interim Policies were not part of the 1983 Island Plan, nor were they ever approved by the States.  However the 2002 Island Plan, which was approved by the States in July 2002, did make reference to the Interim Policies and noted that these would remain in force for the time being as supplementary planning guidance.  That remains the position.

40.      Mr Voisin is therefore correct to say that there is no specific statutory basis for the preservation of BLI's.  However the Court is in no doubt that, as part of its general function, the Committee is entitled to develop and publish general policy guidelines for the purpose of assisting applicants.  It is not necessary in law for any such policy guidelines to be approved by the States (whether by the approval of the Island Plan or otherwise).  It is a matter of choice for the Committee as to whether it chooses to seek the sanction of the States (thereby perhaps giving them added weight).  The question then arises of whether the Interim Policies are consistent with the purposes of the Law.  In our judgment the explanation of the expression `amenity' set out in the Interim Policies (to which we have referred  in paragraph 38 above) has judicial support (see Broad -v- Brisbane City Council and Baptist Union of Queensland (1986) 2 QdR 317 at 326) and is an accurate, albeit not exhaustive, statement of the meaning of the word.  Having reviewed the Interim Policies, the Court is in no doubt that they are a set of policies which are consistent with the purpose set out in Article 2(d) and the closing words of the Article.

41.      It follows that the fact that there is no specific statutory provision in relation to BLI's does not assist Mr Voisin.  Planning authorities are entitled to adopt general planning policies in pursuance of the statute under which they operate provided that they do not regard such policies as a legal straightjacket from which they cannot depart.  They must always consider the circumstances of each case in order to decide whether those circumstances justify a departure from the general policy.

(ii)        Architectural, historical and scenic value

 

(a)     The relevant policies

42.      The 2002 Island Plan contains a number of policies which were relevant to the second application.  The most significant is Policy G13 in connection with buildings of architectural and historical interest.  The relevant part of the Policy provides:-

"There will be a presumption in favour of the preservation of the architectural and historic character and integrity of registered buildings ......  Permission will not normally be granted for the total or partial demolition of a registered building ...."

43.      Policy BE2 provides:-

"In considering development proposals in the town of St Helier, the Planning and Environment Committee will take the following matters into account as appropriate:

(ii) the protection of local historic character by limiting adverse impacts upon historic and cultural resources."

44.      Policy BE3 states that, in considering development proposals in the town centre, the Committee will seek to protect and enhance the historic character of the town.

45.      Policy G16 places restraints on the demolition of a building or part of a building stating, inter alia, that demolition will normally only be permitted where the proposal involves the demolition of a building or part of a building that it is not appropriate to repair or refurbish and would not have an unacceptable impact on a BLI or upon the character and amenity of the area.  Policy G2 provides that applicants need to demonstrate that the proposed development will not unreasonably affect the character and amenity of the area. 

46.      The Interim Policies were formulated under the currency of the old Island Plan but have continued in effect since the adoption of the new Island Plan in 2002, albeit in the guise of supplementary planning guidance in support of the Island Plan Policies.  Interim Policy HB6 provides:-

"There is a presumption in favour of the preservation of registered buildings; therefore permission will not normally be granted for the total demolition of a registered building......."

47.      Both parties agree that these various policies provide for a rebuttable presumption against the demolition of a BLI. 

(b)     The validity of the Register

48.      Mr Voisin submits that the procedures followed in compiling the Register were fatally flawed.  We have been referred to a letter from Mr Myers of Nigel Biggar & Partners dated 8^th January 1990 and a further letter dated 17^th February 1993 from Mr David Barlow of David Barlow Associates.  Both of these gentlemen had been involved at some stage in the process of compiling the Register through membership of the Historic Buildings Advisory Panel.  Both expressed concern at the procedures being followed and suggested that far too many buildings were being listed as BLI's in the Register without full regard to their architectural or historical merit.  Mr Voisin also referred to the fact that almost all of the north side of Hilgrove Street (including the Corner Building) had originally been included in the Register as had the modern south side of Hilgrove Street.  Mr Voisin submitted that there was therefore clear evidence of a blanket listing of buildings, which included 12 and 14 Hilgrove Street.  It followed that the Committee could not place any weight upon their inclusion in the Register. 

49.      The Committee did not accept that the procedures for the inclusion of buildings in the Register were flawed in the manner described by Mr Voisin.  Nevertheless it accepted that there had been administrative errors and that some buildings were included which should not have been (e.g. the Corner Building).  Such buildings had subsequently been removed from the Register. 

50.      Without a full investigation it is not possible for the Court to reach a conclusion on the merits of the procedure followed for compiling the Register.  However the facts summarised in paragraph 48 suggest that, because of the possibility of error, the Committee would be unwise to rely upon the fact of listing in the Register as of itself sufficient proof of architectural or historic importance.  The Committee would be well advised, when faced with an application concerning a BLI, to obtain sufficient information about the building in order to decide whether the building was indeed properly included in the Register.

51.      However we are quite satisfied that that is what the Committee did on this occasion.  It obtained a full survey report from Mr Fell, its well qualified officer, dated 15^th February 2001 on this very question.  Mr Fell reviewed both buildings and recommended that they merited retention as BLI's.  The Committee specifically considered whether they should remain on the Register (see the Act of 24^th March 2003).  It follows that any defects in relation to the original compiling of the Register are not material.  It is the Committee's decision to maintain them on the Register which falls for consideration.

(c)     The merits of 12 and 14 Hilgrove Street

52.      In essence, Mr Voisin submits that 12 and 14 Hilgrove Street have little architectural or historical merit and do not justify preservation.  Some of his submissions relate to a comparison with 12 Halkett Street and we will deal with these when we consider separately the question of inconsistency.  The Committee and the Court were presented with considerable material in relation to these two buildings, the most significant reports being those of Mr Carey on behalf of Trump and the various reports of Mr Fell on behalf of the Committee. 

53.      As to No.14, Mr Carey believes (see page 5 of his report) that it was probably built in 1830-35 by a Jean Aubin.  Mr Fell does not dissent from this view.  Mr Fell is of the view that the exterior remains substantially in its original form save that the boarding below sill level of the shop front is a recent (late 20^th century) addition.  He is also of the opinion that the pilaster on the left hand side of the shop front was lost when No.12 was wrapped over part of the front of No.14 at the time of the former's construction. 

54.      Mr Carey agrees that most of the original plan and structure of No.14 survives from the early/mid 19^th Century, along with its internal finishes and joinery.  However, unlike Mr Fell, he is of the view that certain aspects were modified in the late 19^th century as follows:-

(i)     the dormer in the pitched roof;

(ii)    in relation to the shop front, the main window, the shutter panel to the right of the window and the door.

55.      As to 12 Hilgrove Street, it is agreed that was built a few years after No.14 and was wrapped over part of No.14.  It is a narrow four-storey building with a flat roof.  It appears to be uncertain whether the third floor is original or whether it was a late 19^th century alteration effected by raising the roof in replacement of the previous pitched roof.  Mr Carey inclines to the latter view whereas Mr Fell believes that it is not possible to say one way or the other.  Both are however agreed that the shop front is a late 20^th century alteration of no particular merit.  The first and second floor frontage would appear to remain essentially in its original form. 

56.      The criteria for registration as a BLI was set out in the Interim Policies at Section 5.  The relevant paragraphs provide as follows:-

"5.1    Buildings included in the Register are those which retain their historic form and detail, and so make a significant and positive contribution to the architectural and historical character and appearance of Jersey, whether in built-up areas or the countryside. 

5.2      The main criteria for selection are therefore:

Architectural interest: Buildings which are of significance for their architectural design or style, decoration and craftsmanship, composition, or use of materials and details, whether it be in the vernacular or `polite' traditions; but also significant examples of particular building types and techniques, for example, those showing technological innovation or virtuosity, whose interest may not necessarily be expressed in high aesthetic quality;

Historic interest:  buildings which illustrate significant aspects of Jersey's social, economic, cultural or military history;

Close, documented, historical association  with significant people or events, although normally there should be some quality or interests surviving in the physical fabric;

Scenic and group value,   particularly where a group of buildings together, or an individual building in its landscape setting, comprise a formal or informal ensemble whose collective quality is more than the sum of the parts.

Obviously, not all of these criteria will be relevant to every case, but a particular building may qualify for registration under more than one of them. 

5.6 (sic) Age is clearly a significant consideration, particularly in relation to historic interest.  The older a building is, the fewer examples of its kind are likely to survive and thus the more likely it is to have historic importance.  In Jersey, any building which survives in recognisable form from before the middle of the 19^th century will normally be of registerable quality for its historic interest, as well as, normally, meeting at least one of the other principal criteria."

57.      Mr Voisin referred to the comments of Mr Fell in an early file note of 7^th December 2000 (when he inspected the property with Hartigan to consider their report on the condition of the property) where he referred to `the relatively modest architectural significance of these buildings'.  He also referred to Mr Fell's comment in his appeal report to the Committee of 7^th March 2001 to the effect that if the Committee decided that the two buildings were not worthy of retention, this should not set a precedent for others in the town area.  Additionally, he relied upon the comment of Mr Fell in his report to the Committee of the 20^th September 2001 (prepared for the Committee's reconsideration of the first application) when he said:-

"It will be far more difficult to defend the merits of 12 Hilgrove Street which is less distinguished and has been more heavily altered.  It is in worse structural condition than No.14 and was not robustly constructed when it was first built.  In the light of this I recommend the Committee now concede the loss of No.12 Hilgrove Street.  This will make little difference to the applicant as the retention of No.14 will still obstruct the proposed development."

58.      Mr Voisin referred us in detail to the report of Mr Carey as to the extent to which the original exterior of the two buildings remained in being.  He referred to the meaning of 'architectural interest' set out in para 5.2 of the Interim Policies.  He sought to elaborate this by referring to paras 6.2 and 6.3 of the Interim Policies.  The latter in particular refers to buildings being of 'special interest for their architectural design' ......"  However we did not find this elaboration helpful.  Section 6 of the Interim Policies is dealing with Sites of Special Interest which are a completely different category requiring a much higher level of architectural or historical interest than BLI's.  In essence, Mr Voisin submitted that, in the light of the changes to the original buildings as outlined by Mr Carey, there was insufficient architectural interest to justify retention as a BLI with the consequent presumption in favour of preservation.

59.      As to historic interest, Mr Voisin joined together the passages in para 5.2 in relation to 'historic interest' and 'close, documented historical association' and therefore submitted that, in order to warrant protection because of historic interest, the following principles applied:-

(i)     the building must demonstrate some significant aspect of Jersey's social, economic, cultural or military history;

(ii)    it should have the character of history, or be famous or important in history and be in a form which directly illustrates and confirms its historical associations;

(iii)   the historic interest should be with significant people or events;

(iv)    the historic interest must be special;

(v)     buildings which are only valued for their contribution to the local scene will not merit listing on historical grounds.

60.      Applying those principles he concluded that the buildings could not be said to have historic interest.  Their developer, Jean Aubin, was not a person of any known importance and there was no evidence of any important or historical association with significant people or events. 

61.      We have to say that we do not agree with Mr Voisin's formulation of the test for historic interest.  As para 5.2 of the Interim Policies makes clear, the four criteria there listed are separate, although clearly more than one of them may be relevant in a particular case.  It is not therefore necessary for the matters relevant for a `close, documented, historical association' to be present in order for there to be `historic interest'.  It follows that the lack of any known importance of Mr Aubin or the lack of any other particular important or historical association with significant people is not necessarily fatal when considering whether there is historic interest.  The test is whether the buildings illustrate significant aspects of Jersey's social, economic, cultural or military history.

62.      As to the criteria of scenic and group value, he submitted that, given the fact that the Prince of Wales tavern and the Market entrance were, apart from Nos.12 and 14 the only surviving buildings from the 19^th century in Hilgrove Street and that these two buildings were not immediately adjacent to Nos.12 and 14, there was no longer a scenic or group value.  He referred for support to an extract from Mr Carey's report (page 8) where he said:-

"Aubin's original development comprised at least seven and possible nine properties fronting Hilgrove and Halkett Street.  The 1970's photographic evidence shows that while these buildings had various differences in their external appearance - principally in height and roof form - their scale, alignment, materials, fenestration patterns, shop fronts and general architectural detailing gave them a unity and determined the character of that end of Hilgrove and Halkett Streets.  However, the authorised demolition and redevelopment of six of those properties has destroyed the architectural unity, and devastated the group value and contribution made by Aubin's buildings to the local townscape or urban character.  This destruction of the street's character has continued with the more recent permitted redevelopments on the south side of Hilgrove Street. 

This is a devastating indictment of the attitude of earlier planning committees.

63.      However Mr Voisin did not refer us to the next paragraph of Mr Carey's report which states:-

"That said, it must be agreed that Nos.12 and 14 Hilgrove Street and No.12 Halkett Street still make some contribution - albeit significantly reduced - to the character of their respective streets.  Their unsophisticated form, scale and simple architectural detailing are pleasant reminders of an earlier age, and in walking round St Helier, I have found few other surviving examples of this sort of 19^th Century `secondary' shop in the quieter streets, presumably because they are now as financially unviable here as they are throughout the United Kingdom."

64.      In essence Mr Voisin repeats the submissions which are set out very thoroughly in his letter of 3^rd December 2002 to the Committee in support of the second application.  The brief summary which we have given cannot do justice to his submissions but we have carefully read the whole of his letter of 3^rd December together with his written submissions on both appeals as well as all the documents upon which he has relied.

65.      Mr Fell prepared a report dated 18^th March 2003 for the Committee's consideration of the second application (it was in fact the Sub-Committee which considered the second application but we propose for convenience to refer to the Committee).  He maintained his view that the front of No.14 Hilgrove Street had not been altered as much as Mr Carey believed but went on to say that, even if Mr Carey's view were correct, the modifications dated from the late 19^th century (except for the small part underneath the shop window) and this did not materially diminish the considerable architectural interest of the property in the context of the St Helier town centre.  He accepted that he had, in his earlier report, suggested that the Committee might consider conceding the demolition of No.12.  However he went on to say that he had somewhat revised his views and that, having considered the report of Mr Carey, he felt that a stronger case for the retention of No.12 could be made.  In any event the Committee had of course in October 2001 not accepted his advice that the demolition of No.12 could be conceded.  As to historic interest, Mr Fell contended that this was self evident.  The buildings were  a tangible reminder of an era of some 160 years ago and helped to bring the history of this part of the town to life.  That had also been the view of the historians Messrs Craig and Ferrari who had been asked by the Committee to advise.  The concluding words of their report stated:-

"Despite all this, the remaining old buildings which survive ensure that the street retains essential elements of its small scale character.  These elements are our only empirical link to understanding the rich social and architectural development of this fascinating quarter."

Finally, he concluded that, despite the extensive redevelopment of Hilgrove Street, when taken in conjunction with the Market entrance and the Prince of Wales tavern, the two buildings did generate scenic value.  He accepted however that these were all matters for the judgment of the Committee.

66.      As stated previously the Committee considered the second application on 24^th March 2003.  Its decision on this aspect of the matter was summarised in the Act as follows:-

"The Sub-Committee carefully considered the arguments made by the applicant that the historic buildings in question had been so altered that their architectural and historic interest was seriously diminished.  However, after inspecting the buildings for themselves, and having considered the arguments set out in the officer's report, members were satisfied that these buildings maintained such architectural and historic interest to warrant their continued inclusion in the Historic Building Register and establish a presumption against demolition."

67.      Those reasons were elaborated in paragraphs 21-25 of the Committee's statement annexed to Mr Fell's affidavit dated 16^th May 2003 prepared for the purposes of the Second Appeal. 

"21.   As has been stated above, the Respondent first considered the matter of the architectural and historical merits of the buildings at No.12 and No.14 Hilgrove Street in August 2000.  Mr Fell's advice was that on the basis of historic maps and architectural features, both buildings dated from before 1850.  A brief report on the history of Hilgrove Street had been prepared for the Respondent by local historians Andre Ferrari and Paul Craig and their report confirmed this conclusion.  It was noted by the Respondent that this conclusion was also supported by the appellant's own architectural adviser, Mr Carey ("the appellant's architect) as indicated in his report on the building.  There was agreement between the parties that these buildings date from the 1830's/1840's. 

22.   On this basis, the Respondent reached the conclusion that the buildings in hand, being around 160 years old and demonstrably retaining much of their original external form, were possessed of a significant degree of historical interest.

23.   The Respondent then took account of the report prepared by the appellant's architect on the architectural merits of the buildings and noted the conclusion that much of the internal layout and features of these buildings had survived.  This is clearly demonstrated in the photographs appearing within the report produced by the appellant's architect.  The Respondent also noted arguments put forward by the appellant's architect setting out the professed extent to which the intrinsic architectural and historic interest of the buildings might have been diminished by alterations which were alleged to have taken place.  The fact that the shop-front of No.12 Hilgrove Street was a modern replacement was not disputed.  The Respondent considered the view by the appellant's architect to the effect that the shop-front of No.14 Hilgrove Street had been substantially altered.  The Respondent also took into account Mr Fell's said report dated 20^th March 2003, which stated that the surviving shop-front was substantially original and that any alterations that might have taken place were not so significant as to materially diminish its architectural value, especially given the scarcity of historic shop-fronts of the given era in the town centre. 

24.    .............

25.   The conclusion of the Respondent was that No.12 and No.14 Hilgrove Street retained such architectural, historical and scenic interest as to warrant their inclusion in the Register and establish a presumption through the provision of Island Plan Policy G13 in favour of their retention."

68.      The Court has to form its own view of the Committee's decision.  We have carefully considered Mr Voisin's submissions and the reports which were produced to the Committee and to the Court.  We are in no doubt that the Committee's decision as summarised in paragraph 25 of the Committee statement (set out in the preceding paragraph) was eminently reasonable.  As to historic interest, para 5.6 of the Interim Policies makes it clear that any building which survives from before the middle of the 19^th century will normally be of registerable quality for its historic interest.  There is no need to find significant events or associations with historical figures as submitted by Mr Voisin.  Indeed para 5.6 of the Interim Policies is quite inconsistent with Mr Voisin's submissions.  These buildings were built in the 1830's/1840's and therefore fall squarely within the category envisaged in para 5.6.  Furthermore both Mr Carey (page 9 of his report) and Mr Fell (his survey report of 15^th February 2001) are agreed that the properties are a rare survival of early/mid 19^th Century properties of this nature in the town centre. 

69.      As to architectural interest, we accept that it was reasonable for the Committee to conclude that this aspect was also satisfied.  It is of course not possible to know whether Mr Carey or Mr Fell is correct as to the extent of any alterations.  If Mr Fell is right, the exterior of No.14 is substantially as it was constructed and even No.12 may be substantially in its original form save for the shop front.  If Mr Carey is right, the modifications are somewhat greater but, for the most part, they date from the late 19^th century save for the shop front of No.12 and the part below the shop front window of No.14.   We agree with the assessment of the Committee that any alterations which have taken place (even if they are as Mr Carey describes) are not so significant as materially to diminish the architectural value which attaches to these buildings.

70.      As to scenic value, having visited the site, we agree that there is still a continuing scenic value; indeed this was also the view of Mr Carey on behalf of Trump as set out at paragraph 63 above. 

71.      In essence, the issues which confronted the Committee were helpfully described by both Mr Carey and Mr Fell (to both of whose thoroughness and expertise we pay tribute).   Mr Carey said at page 13 of his report:-

"In conservation terms, the real damage was done in the 1970's - 1990's when the Committee permitted redevelopment of so much of Hilgrove Street and the corner of Halkett Street.  In my view, the permitted demolition No.12 Halkett Street compounds that error.  The enforced preservation of Nos.12 and 14 Hilgrove Street now leaves them as isolated relics in what is largely a 20^th Century street.  The horse has bolted and there seems little point in now shutting the stable door."

72.      In his report to the Committee of 18^th March 2003, Mr Fell commented on the foregoing remark as follows:-

"Mr Carey concludes that the Committee's desire to retain 12 and 14 Hilgrove Street is like shutting the stable door after the horse has bolted.  In other words, he feels that the town is so badly damaged through demolition and redevelopment in recent years that there is no point now in seeking to retain `isolated relics in what is largely a 20^th Century street.'  This comment strikes at the heart of what this case is about.  Do fragments of old St Helier such as these two buildings have real significance?  Is the regrettable wholesale destruction of the past a justification for allowing yet more destruction now?  Or does this background generate a stronger case for protecting what remains, which is the conclusion reached by the former P&E Committee?"

73.      These are matters upon which opinions can reasonably differ.  Some would support Mr Carey's view; others would support the need for preserving what is left.  In our judgment, on the facts of this case, the Committee were acting entirely reasonably in seeking to preserve what remains.  It can in no sense be categorised as an unreasonable point of view. 

(iii)     Repairs of Nos 12 and14 Hilgrove Street

74.      The introductory paragraph to Interim Policy HB6 states as follows:-

"Applicants seeking to justify demolition or detrimental change, on the grounds that there is no viable use for a registered building in its existing state, will be expected to produce evidence of the failure to find a purchaser despite active, professional marketing of the building on realistic terms during the previous twelve months.  Economic and technical appraisals of the options considered are required.  Arguments that an historic building is beyond reasonable repair, for example because it would need to be so extensive to amount to reconstruction, or that repair and refurbishment are uneconomic, must be supported by detailed technical evidence as to condition and costs, by appropriately qualified persons; the burden of proof lies on the applicant.  The condition of the building and the cost of repair is a material consideration, but will carry much less weight in cases of deliberate neglect." (Emphasis added]

Mr Voisin submitted that the various examples given in this paragraph are to be construed as alternatives and that, if any one of them is satisfied, demolition has to be allowed.  Thus, for example, if there is no viable use for the building in its current state, that alone is sufficient.  There is no need to consider questions of the economics of repair.  In our judgment the paragraph is not to be construed as a statute.  It is simply a narrative explaining the considerations which the Committee will have regard to when deciding whether to allow a BLI to be demolished.  The key requirement is whether the building is beyond reasonable repair. 

75.      Trump produced a valuation dated 28^th November 2002 by Barnes & Partners ("the Barnes Report").  That report expressed the clear opinion that, due to the small size of the two properties, there would be demand to purchase the units by potential owner occupiers and local investors in their current condition subject to a price which reflected the works that needed to be undertaken.  Furthermore Barnes was of the opinion that, once the works had been undertaken, demand for the units would be high both in terms of lettability and saleability.  There was therefore no dispute on the fact that the two properties could be repaired and that, once repaired there would be a high demand for their use.  The key questions therefore were as to the economics of the repairs and compliance with the Building Bye-laws. 

76.      The Barnes Report gave an aggregate valuation of the two properties in their current state of £217,500.  It gave a valuation post the works of £417,000 i.e. an increase of £203,500.  We have already recorded that there is a difference of opinion between Hartigan and Morton as to the extent of the necessary repairs.  Hartigan's work would cost £220,800 whereas Morton's work (which would not include underpinning) would cost (in round terms) £100,000.  We should add as a point of detail that Mr Voisin suggested that the valuation of the Morton work could not be relied upon as Morton was not familiar with Jersey costs.  However it is clear that Morton took the costings prepared by quantity surveyors on behalf of Hartigan and merely subtracted those aspects of work that he did not consider needed to be done.

77.      Mr Voisin submitted to the Committee and to the Court that a prudent purchaser would assume the worst and that therefore the Hartigan figures should be taken.  This had been the view of the Barnes Report.  On this basis the repairs would be uneconomic in that they would cost £220,800 whereas the increase in value would only amount to £203,500.  Furthermore, he said, whether one took the Hartigan works or the Morton works, there were additional costs which needed to be factored in.  He listed these as follows:-

(i)     internal decoration;

(ii)    shopfitting;

(iii)   excavation of any rock whilst underpinning;

(iv)    risk provision;

(v)     finance charges;

(vi)    inflation after 2001

(vii)   loss of rent during works of repair and pending re-letting

(viii)  legal costs of re-letting.

The evidence produced by Trump suggested an additional £50,000 in respect of items (i) - (iv) and (vi), £22,389 for (v), £23,471 for (vii) and £4,649 for (viii).  This would add a further £100, 510 to the repair costs.  It followed, he said, that the repairs would be even more uneconomic than a simple consideration of the Hartigan figures suggested. 

78.      Mr Fell dealt with this aspect at some length in his report to the Committee of 18^th March 2003 and the Committee was not convinced by Mr Voisin's arguments.  The Act recorded its decision on this point as follows:-

"In terms of the economic arguments, the Sub-Committee was apprised that no effort appeared to have been made by the current owners to market the buildings, to establish interest either in their repair or re-use.  The Sub-Committee noted that whilst there was no disagreement between the respective engineers that these properties could be repaired, the point of contention was the extent and cost of repairs that would be necessary.  The question of the economic viability of repairs and refurbishments depended critically on the estimated cost of these works and there was substantial difference between the parties on this point.  The Sub-Committee noted that there was agreement between the parties that the combination of these two buildings into a single unit would not be viable and that the only realistic prospect would be to improve each building individually.  The Sub-Committee noted that property advisors acting for the Committee and for the applicant agreed that these properties, if repaired and improved, would command considerable interest for letting in retail use.  Having considered the submissions on costings and viability, the Sub-Committee concluded that the applicant's argument that the repair and refurbishment of these properties would not be economically viable was not so persuasive as to overcome the presumption against demolition."

This reasoning was elaborated in paragraphs 26 - 35 of the Committee Statement but, in the interests of not prolonging this judgment unnecessarily, we will not set them out. 

79.      In our judgment it was perfectly reasonable for the Committee to reach this conclusion.  We would summarise our reasons for so finding as follows:-

(i)     As para 3.7 of the Interim Policies makes clear, the burden rests on the applicant to show that refurbishment would be uneconomic.  Here the Committee was faced with two alternative proposals.  The Hartigan figures may have suggested that it was uneconomic but the Morton repairs could be carried out economically in that the cost of the repairs would amount to £100,000 which would lead, on the basis of the Barnes Report, to an increase in value of £203,500.  In his advice to the Committee Mr Fell assumed that inflation had increased this figure to £125,000 but the repairs would still remain economic.

(ii)    As to the extra costs suggested by Mr Voisin (see para 77 above) (i) and (ii) would often be carried out by the tenant in return for a reasonable length of lease.   Item (iii) would appear only to be relevant if the Hartigan proposals were adopted as Morton was not suggesting any underpinning.  Little elaboration was given in respect of item (iv).  Item (vii) (loss of rent) would appear not to be a proper item because the properties are currently unlet and indeed have no lettable value.  This was therefore reflected in the Barnes valuation.  Item (vii) (inflation) has been allowed for by increasing the Morton figure by £25,000.  That leaves finance charges and letting costs.  The degree of finance charges would depend on whether funds were borrowed or whether existing funds were taken off deposit.  But even accepting these figures, an additional figure of approximately £27,000 would cover the two items.

(iii)   Even if the repair costs were to be closer to the Hartigan estimates than the Morton estimates, we do not think that that would necessarily be decisive.  Mr Voisin's suggestion that repairs would be uneconomic depends upon taking the initial Barnes valuation, factoring in the amount spent and comparing this with the Barnes valuation of the properties after completion of the works.  Clearly if more is spent than is recovered by way of increase in value of the property, the repairs would, on the face of it, be uneconomic.  However all the calculations are based upon the Barnes valuation of the properties in their current state (£217,500).  But, as the Barnes report makes clear, the price which a purchaser would pay in order to repair the properties for letting or onward sale would depend on the amount to be spent.  If the cost of the work were estimated to be closer to the Hartigan figure than the Morton figure, the purchase price would presumably reflect that and be less than the £217,500 suggested by Barnes.  To take an extreme example, if the purchase price were only £50,000, there would be some £367,000 to play with towards repair costs.

(iv)    The Interim Policies provide that the fact that the value of the property will be less if it is to be preserved than it would be if it were to be demolished for development is not decisive.  The owner is not entitled to realise the development value of a site merely because it is higher than the value of the current use.  If he were, there would probably be few old properties which would be preserved.  Paragraphs 3.5 and 3.6 of the Interim Policies make this very clear:-

"3.5     There will inevitably be rare cases in which it is necessary to weigh the value of substantial benefits to the community as a whole against the loss or diminution of interest of a registered historic building.  But demolition or detrimental change will not be permitted on the grounds that development is economically more attractive to the owner, for example because the site is of greater value than the registered building which stands upon it, or an already positive market value would be increased; nor is it relevant that the applicant acquired the building at a price which reflected the hope of redevelopment, rather than the reality of the existence of the registered building. 

3.6    The private interest, quite legitimately, is in realising development value (which may exist only during a particular phase in a cyclical market).  The public interest, however, needs to bring a rather wider range of elements into the calculation, since the cultural and aesthetic value of historic and traditional buildings is held in trust for the generations to come.  Whilst less easily reduced to a balance sheet in which everything can be given precise monetary values, development evaluation which takes into account the interests of the community as well as the individual may not always arrive at the same conclusion about whether the balance of advantage lies in conservation and adaption on the one hand, or redevelopment on the other."

(v)     A key factor referred to both by Mr Fell in his report and by the Committee in its Act was that the current owners had not, as required by para 3.7. of the Interim Policies, provided evidence of having failed to find a purchaser despite active, professional marketing of the buildings on realistic terms during the previous 12 months.  It is perfectly understandable why this requirement is in the Interim Policies.  It is only too easy for the owner of a registered property to declare that it is uneconomic to refurbish and accordingly it ought to be demolished.  It will frequently be the case that the redevelopment value of the site of the building will be greater than the value based on existing use.  Indeed Mr Voisin very realistically conceded that the owners in this case had not sought to market the property as required by para 3.7 because they knew that they would never match the price offered by Trump (which is subject to permission for demolition and subsequent redevelopment taking place).  In our judgment it was entirely reasonable for the Committee to adhere to the Interim Policies and to conclude that, in the absence of active marketing for 12 months and given the differing views over the cost of repairs, the applicants had failed to satisfy the burden (placed squarely upon them by the Interim Policies) of showing that the buildings were beyond economic repair.

(vi)    Para 3.7 of the Interim Policies also makes it clear that the poor condition of the building will carry much less weight in cases of deliberate neglect.  Although some of the deterioration would appear to be due to the original construction of the buildings and their age, much is also due to the fact that no repairs have been carried out in recent times.  Mr Voisin explained that this was because there had been a life tenant.  The reversioners did not have the funds to carry out `grosses reparations', particularly when they would not see any return until after the death of the life tenant.  However that is not a matter which is relevant for the Committee.  The Committee is entitled to look at the `owner' in its composite form and the fact is that the owner (comprising the life tenant and the reversioners) has not carried out necessary maintenance and repair to these two buildings, which has contributed to their present poor state.

(vii)   As the Solicitor General accepted during the course of argument before the Court, if the owners were to comply with para 3.7 of the Interim Policies (as they should have done) and if it were subsequently to transpire that no purchaser could be found to carry out the necessary work to allow the buildings to be repaired and refurbished for letting or sale, Trump's  position would be immeasurably stronger in submitting that the properties were not capable of economic repair; but that is not the position which faced the Committee. 

80.      Mr Voisin also submitted that the buildings could not be repaired in compliance with the Building Bye-laws.  He relied on a letter dated 28^th January 2002 from the States Fire Service to Trump's architect which was one of the attachments to his letter of 3^rd December 2002 to the Committee.  The Fire Service had inspected the buildings and had expressed concern that, if both properties remained independent, it appeared to be impractical to comply with the requirements of the Building Bye-laws in terms of means of escape.  Mr Voisin's letter also referred to other documents on this general issue.

81.      The Committee's position is that it is not satisfied that compliance with the Bye-laws would not be possible.   In the first place it is the Building Control Officer, not the Fire Service, who is given responsibility for enforcing the Bye-laws.  Secondly Mr Fell informed the Committee in his report of 18^th March 2003 that he had had discussions with the Assistant Director of Building Control and, as a result, had no reason to believe that the buildings were incapable of repair so as to satisfy relevant Building Bye-laws.   Thirdly the Bye-laws only applied to structural alterations and extensions to existing buildings.  It was not entirely clear whether the Bye-laws would apply to the works envisaged but the Committee was willing to assume that they did.  Finally it was pointed out that the Bye-laws did not contain any precise definition of what was required for fire safety and there were possible relaxations for small buildings. 

82.      Given the reliance by Trump in its application on the letter from the Fire Service, we think that the Committee would have been well advised to have procured written advice from the Building Control Officer on whether he foresaw any difficulty in the application of the Bye-laws to the proposed works of repair.  However, it seems to us that the Committee was entitled to rely upon the assurance of its officer that he had spoken to the Deputy Director of Building Control, who had responsibility for the Bye-laws and who had advised that there did not appear to be any insurmountable difficulty.  In the circumstances we do not consider that the conclusion of the Committee on this aspect could be said to be unreasonable.

83.      In summary we believe that it was perfectly reasonable for the Committee to reach the conclusion that the applicant had not satisfied the burden placed upon it to show that the buildings were beyond reasonable repair and accordingly, subject to the other matters considered below, it was reasonable for the Committee to conclude that the applicant had not rebutted the presumption against demolition.

(iv)    Benefits of the proposed redevelopment

84.      Mr Voisin submits that, when considering whether to allow demolition of a BLI, the Committee must taken into account the benefits which would arise from the proposed redevelopment.  He further submits that the Committee did not do so on this occasion. 

85.      His written submission accepts that Mr Fell's report of 20^th March 2003 to the Committee correctly summarised Trump's arguments on this aspect when it said as follows:-

"The applicants argue that:

·         The registered buildings are too small to be developed in isolation and that they cannot be incorporated into the proposed development because of inadequate floor/ceiling heights, differences in floor levels and the impossibility of satisfying bye-law requirements.

·         The demolition of these properties will allow for the better utilisation of the overall site.

·         If these buildings were to be retained, development of the adjoining site could not be carried out without resulting in damage to them.

·         The proposed scheme will create a distinctive development which will benefit the area."

86.      It follows that these particular arguments of Trump were specifically drawn to the attention of the Committee in the officer's report.  Furthermore the Act makes it clear that the Committee specifically considered these submissions when it records:-

"The Sub-Committee carefully considered the submissions made by the applicant about the benefits arising from the redevelopment of this site but concluded that any such benefits would not outweigh the loss of the historic buildings in question."

87.      We cannot therefore accept Mr Voisin's submission that the Committee failed to give consideration to the benefits which would arise from the redevelopment of the site and to balance these against the need to preserve the two BLI's.  Furthermore, given the general presumption against the demolition of BLI's, and having regard to the particular facts of this case, we cannot possibly categorise its decision on this aspect as unreasonable. 

(v)     Procedural criticisms

88.      Mr Voisin made a number of subsidiary criticisms of the Committee.  He was anxious not to categorise these as procedural points because he accepted that the normal consequence, where there is procedural error, is for the decision to be quashed but the matter remitted to the Committee for consideration in accordance with the proper procedures.  He did not wish that to happen.  If the Court were to be against the Committee, he wished there to be an order that, in principle, demolition should be allowed.  Despite his protestations, we think that most of his points can properly be categorised as procedural but they could also be said to impact on the reasonableness of the Committee's decision.

89.      First he submitted that Mr Fell's report to the Committee of 20^th March 2003 did not fairly represent all the arguments put forward in his firm's 46-page letter of 3^rd December 2002.  He argued that, although every member of the Committee was provided with a copy of his letter and enclosures, they might not have read the material and might have relied upon Mr Fell's summary.  The report should therefore have dealt with every matter raised by the letter. 

90.      We do not agree.  It is not the duty of the officers to rehearse each and every point made by an applicant.  It is for the applicant to make the points which he wishes to make.  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.  In our judgment it was the duty of Mr Fell fairly to summarise the most important aspects of Mr Voisin's letter and his report did just that.  An indication of his approach is to be seen in his concession that in this case, arguments for and against demolition were finely balanced.  We see no grounds for complaint in this respect. 

91.      Secondly, it is submitted that the report from Mr Fell did not specifically mention or remind Committee members of the terms of Interim Policy HB6 nor did the Notice of Refusal refer to HB6.  That is true.  The extent to which an officer's report should remind members of the applicable policy will vary depending upon the circumstances.  But in this case the matter was clearly before the Committee.  Mr Voisin's letter itself placed great weight upon HB6 and devoted some 21 pages to consideration of whether the buildings had the necessary architectural or historic interest as required by HB6 and whether they were capable of reasonable repair, applying the criteria set out in HB6.  Although Mr Fell's report did not specifically mention HB6, he dealt at length with whether the buildings had architectural, historical or scenic interest such as to justify maintaining their status as BLI's and then went on to consider whether they could be reasonably repaired.  It is clear from its Act that the Committee considered the same two issues (amongst others) and these are the two issues required to be considered under HB6.  We are quite satisfied that the Committee was fully alert to the relevance of Interim Policy HB6 (even if the officer's report and Notice of Refusal made no reference to it) and applied that policy as part of their consideration. 

92.      Thirdly Mr Voisin argued that the Committee went against the advice of its officer when it decided not to concede the demolition of No.12 Hilgrove Street and, as a result, should have given more detailed reasons for reaching this decision.  It is trite law that the statute confers the power of decision upon the Committee, not upon the officers.  It was therefore open to the Committee to disagree with Mr Fell's suggestion that the demolition of No.12 should be conceded.  Their reasons for reaching this conclusion appear, in our judgment, with sufficient clarity from the Act.  In any event Mr Fell has rather retreated from his earlier stance in relation to No.12 as summarised earlier.  All in all, we do not think that there are any grounds for criticism on this point.

93.      Fourthly, Mr Voisin submits that the Act shows that the Committee did not give proper consideration to his letter of 2^nd December 2002.  He points out that the Act records the Committee as having `noted' the contents of his letter and `assimilated' the contents of the folder submitted with it.  By comparison the Act records the Committee as having `considered' the arguments contained in Mr Fell's report.   He argues that this suggests that the Committee gave greater consideration to Mr Fell's report than it did to his letter.  Even if that were an accurate summary of the Act, we have to say that this is a complete non point and smacks of nit picking.  In fact it is not an accurate statement of the position because the Act goes on to record the Committee as having `carefully considered' the arguments of the applicant in two respects and as having `considered' various other arguments raised by the applicant. 

(vi)    Conclusion so far

94.      Had the matter rested there and the decision of the Committee been viewed in isolation, the Court would have had no difficulty in concluding unanimously that the decision of the Committee was eminently reasonable and should be upheld.  But Trump has raised arguments alleging inconsistency, to which we must now turn.  They were submitted as part and parcel of their submissions that the decision of the Committee to reject the second application on the grounds that it involves the demolition of 12 and 14 Hilgrove Street, was unreasonable.  We have not found these arguments easy and, in the final analysis, they have led to a division of opinion in the Court.

(vii)   Inconsistency

 

(a)     The law

95.      Mr Voisin 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."

96.      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."

97.      Mr Voisin drew the conclusion from these two dicta that a decision in respect of a like building or site is a form of binding precedent such that any subsequent decision which is inconsistent with that earlier decision is of necessity an unreasonable one.  We do not think that the comments of Lord Widgery and Rokison J A were intended to suggest this.  We think the position is more accurately set out in the remarks of Mann L J in North Wiltshire District Council -v- Secretary of State for the Environment (1992) 3 PLR 113 at 122:-

"In this case the asserted material consideration is a previous appeal decision.  It was not disputed in argument that a previous appeal decision is capable of being a material consideration.  The proposition is in my judgment indisputable.  One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process.  Consistency is self-evidently important to both developers and development control authorities.  But it is also important for the purpose of securing public confidence in the operation of the development control system.  I do not suggest, and it would be wrong to do so, that like cases must be decided alike.  An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect.  If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way.  Where it is indistinguishable then ordinarily it must be a material consideration.  A practical test for the inspector is to ask himself whether, if I decide this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case?  The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need.  Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it.  These can on occasion be short, for example in the case of disagreement on aesthetics.  On other occasions they may have to be elaborate."  (original emphasis)

98.      In the case of Caesar Investments Limited -v- Planning and Environment Committee (2003)JRC180,  this Court said at para 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."

In our judgment the comments of Mann L J and of this Court in Caesar accurately reflect the limits to which arguments on inconsistency (which is important for the reasons given by Lord Widgery and Rokison J A) can be taken. 

(b)    Cannon Street/Lempriere Street and Gloucester Street

99.      On page 43 of his letter of 3^rd December 2003 Mr Voisin referred to the demolition of a terrace of five buildings in Lempriere Street including the shop on the corner with Cannon Street.  All of these were listed as BLI's in the Register.  The buildings were apparently demolished to make way for a substantial scheme for residential housing initiated by the Housing Committee but carried out by the Jersey Homes Trust.  Mr Voisin submitted in his letter that the corner shop building was a better example of a building which should be retained than the two buildings in Hilgrove Street and contended that the demolition of the BLI's in Lempriere Street amounted to a binding precedent.  He repeated those submissions during the course of this appeal.

100.   In his report to the Committee of 20^th March Mr Fell commented on this submission as follows:-

"3.  Precedent arguments

It is asserted that the Committee is legally bound by decisions elsewhere to allow the demolition of registered buildings.  This is not the case, as every application is dealt with on its merits and no two applications are identical.  It is correct to say that the Committee should have regard to other permissions which have similar characteristics, and the Committee indeed does so.  In dealing with applications to demolish historic buildings there is an established sequence of tests which the Committee is advised to apply.  These are:-

·         The significance of the building in architectural/historical terms.

·         The condition of the building and the potential and practicability of reuse.

·         The economics of reuse, if this matter is raised by the applicant.

·         Any alleged public-interest benefits arising from redevelopment.

In exceptional cases, the Committee may decide that a building is of insufficient interest to warrant retention, or that its retention cannot be realised for practical or economic reasons or that the public interest benefits arising from redevelopment outweigh conservation interests.  In some cases a combination of these considerations is decisive ........

It is also suggested that a permission granted for the demolition of States-owned Registered buildings in Cannon Street/Lempriere Street is inconsistent with the decision reached by the former Committee in this case.  In the consideration of the application for that development, the Committee took into account the poor condition of the properties and urged the applicants to investigate the rehabilitation of these properties.  The outcome of those investigations, coupled with the public-interest benefit arising from new housing on the site, led the Committee to conceding demolition on the merits of the case.  There is no inconsistency here as the Committee applied its usual tests with objectivity and impartiality."  (original emphasis)

101.   We can find no fault with the approach described by Mr Fell, which was accepted by the Committee.  Listing as a BLI in the Register merely raises a rebuttable presumption against demolition.   In some cases the presumption will be rebutted on the particular facts; in others it will not.  This is implied by Interim Policy HB6 itself.  The fact that some other BLI has been allowed to be demolished does not of itself advance an applicant's case at all.  The need for consistency only arises where "the circumstances are the same" (per Lord Widgery) or "the earlier case is alike and is not distinguishable in some relevant aspect" (per Mann L J).

102.   We have seen no evidence to suggest that the circumstances of Lempriere Street/Cannon Street are the same as those in Hilgrove Street.  Mr Fell's report outlines material differences.  In particular the fact that there were public interest benefits by reason of the creation of new housing units would no doubt have been a material consideration.  The Court has no difficulty in concluding that the Committee did not act inconsistently in relation to its decision on Lempriere Street/Cannon Street. 

103.   Mr Voisin's letter of 3^rd December 2002 made no reference to Gloucester Street but he wrote subsequently on this aspect on 7^th January 2003.  He pointed out in that letter that the Committee had allowed the demolition of a building in Gloucester Street which was part of a proposed SSI.  The building was part of a larger site which was to be demolished and replaced by a substantial new redevelopment including provision of new housing accommodation.  The letter pointed to no similarity between the situations in Gloucester Street and Hilgrove Street.  It relied on the mere fact that the Committee had allowed demolition of a proposed SSI as amounting to a binding precedent which prevented it from refusing the demolition of the two BLI's in HIlgrove Street.  Even an SSI is capable of being allowed to be demolished, although the presumption against it is stronger than in the case of a BLI.  The fact that the Committee has done so does not prevent it from ever again refusing the demolition of a BLI.  The Interim Policies and other policies introduced by the 2002 Island Plan specifically envisaged exceptions being made where necessary.  It follows that the fact that exceptions are occasionally made cannot of itself lead to an inability on the part of the Committee thereafter to uphold its conservation policies.  As we have said, the principle of inconsistency only operates where the circumstances are the same.  There is no evidence before us that the circumstances in Gloucester Street were the same as those in HIlgrove Street.  On the contrary it is clear that, again, there would have been public interest considerations arising out of the redevelopment which were not available in relation to Hilgrove Street.  Accordingly the Court is again clearly of the view that there has been no inconsistency in relation to the Gloucester Street decision.

(c)     12 Halkett Street

104.   Mr Voisin's strongest submission on inconsistency was directed towards 12 Halkett Street.  This property was originally listed as a BLI in 1992.  It was owned by the States which had inherited it under the will of the late Mrs E J Bailhache.  In 1997 it was removed as a BLI.  The Court has been referred to a file note of a meeting dated 5^th June 1997 held by a number of officers (including Mr Fell) to discuss the possible de-registration of this property.  The note pointed out that the property had been acquired by the States and that they were looking to redevelop the site.  It went on to say:-

"The site is in the proposed conservation area of St Helier and is a proposed building of distinctive character in the Register of Buildings of Architectural and Historical Importance.  Following an internal view of the site and the Halkett Street frontage, Stuart [Mr Fell] felt that this building was not of sufficient merit to stay on the listing and should be demolished.  It was internally very fragile and had not been occupied on the upper floors for some time.  To the north of the site are three properties finishing with the corner of Halkett Street and Market Place which are all proposed Sites of Special Interest.  To the south is a replacement building of the 70's in brick and render with a mansard roof.  The property itself has received changes to the shop front since 1971.  There is a photograph on file.  The first floor has two sash windows which Stuart felt had been replaced at some time and there is an existing mansard with dormer above which was thought to be possibly Victorian. .... 

Stuart and I discussed this building afterwards and we felt it important that the Committee should be the ones to agree to the demolition of the site, rather than the architect preparing drawings to find out at a later date that the Committee would not agree to the removal of this building.  Stuart would take this matter to the Building Heritage Sub-Committee and it would be for them to forward the concept to the main Committee."

105.   The matter was subsequently considered by the Building Heritage Sub-Committee on 23^rd June 1997 and the minutes read:-

"12 Halkett Street, St Helier

Stuart Fell passed to the Committee a montage of a row of buildings in Halkett Street.  He had received an enquiry relating to No.12 Halkett Street, which was a property owned by the States, as to whether permission for demolition was likely to be granted.

Stuart advised that the property possessed little architectural merit but that it had appeared in the Committee's Register as a BLI.  He felt that an argument that the building must be retained on architectural grounds or historic grounds would be difficult to defend.  However, if permission was received to demolish then it might be seen by the public as a case of dual standards.  After discussion it was agreed not to resist demolition."

106.   We were informed that permission was granted in 1998 for redevelopment of the property.  Although there was initially a condition that the frontage elevation should match the existing design, this condition was apparently subsequently released by the Committee.  In fact, no redevelopment has taken place.  It continues to be run as a shop and the planning permission has lapsed.  Trump is now the owner of the property. 

107.   In order to consider Mr Voisin's submission that the Committee has acted inconsistently in its treatment of 12 and 14 Hilgrove Street as compared with 12 Halkett Street, it is necessary to record the differing views concerning this latter building.  There is no dispute that it was built at about the same time as 14 Hilgrove Street, namely 1830's/1840's.   It was almost certainly part of a group of buildings developed by Jean Aubin and which included 12 and 14 Hilgrove Street as well as 16 and 18 Hilgrove Street and 8 and 10 Halkett Street (now incorporated in the Corner Building).  Both Mr Carey and Mr Fell are agreed that the mansard roof with the dormer window on the second floor is a late 19^th century alteration.  They are also agreed that the majority of the shop front is a late 20^th century change.  They are essentially divided on two aspects.  Mr Fell believes that the sash windows on the first floor and renewed shop front below the fascia were late 19^th century alterations.  Mr Carey, on the other hand, considers that the windows are originals save only that the glazing bars have been removed.  He is also of the opinion that, apart from the late 20^th century alterations, the shop front is essentially in its original form.  Thus the original cornice and fascia remain intact and there was always a door on the right-hand side leading upstairs. 

108.   Mr Carey summarised his view of the property as follows (page 8 of his report):-

"To summarise, as with its near matching contemporary (No.14 Hilgrove Street) No.12 Halkett Street retains most of the original plan and the majority of its 1830's/40's structural fabric survives.  So also do most of the original internal finishes and joinery.  The shop front has been altered in the late 20^th century but significant original elements survive.  Overall, the property has been altered a little more than No.14 Hilgrove Street but a surprisingly high proportion of its original material remains.  In that sense it is only slightly less "authentic" than No.14 Hilgrove Street, but more "authentic" than No.12.  It therefore seems perverse that No.12 Halkett Street has been de-registered and that consent has been granted for its demolition."

109.   Apart from historic and architectural interest, the other interest which justifies inclusion as a BLI pursuant to Interim Policy HB6 is `scenic and group value'.  On this aspect Mr Carey gives as his opinion (page 9 of his report):-

"Despite the earlier demolition of its neighbours (Nos. 8 and 10) No.12 Halkett Street makes a greater contribution to the townscape of that street.  This is because its form, scale, materials and architectural detailing are considerably more in keeping with the majority of properties in Halkett Street than Nos. 12 and 14 Hilgrove Street are with its (sic) neighbours.  Ironically, the stage has been reached where the removal of No.12 will have more impact on the streetscape of Halkett Street than would the removal of Nos.12 and 14 on Hilgrove Street.  We also know the Halkett Street shop front is early/mid 19^th century in its origin, and that the first floor façade and its windows are contemporary with (and by the same developer as) their contemporaries on No.14 Hilgrove Street.  And yet surprisingly, No.12 Halkett Street has been described by `Planning and Building Services' as "not of sufficient merit to stay on the listing and should be demolished." (File note 13001 of 5<sup>th</sup> June 1997).  The same file note states:- "12 Halkett Street has been acquired by the States of Jersey and they are looking to re-develop the site".  This is exactly what Trump Holdings wish to do with Nos.12 and 14 Hilgrove Street.  The States de-registered their building on 20<sup>th</sup> September 1999 and have subsequently sold it on the basis that demolition will be permitted: yet Nos.12 and 14 Hilgrove Street remain registered as `Buildings of Local Interest'"   (emphasis added)

110.   In essence Mr Voisin argues that it was thoroughly inconsistent and is therefore unreasonable to remove 12 Halkett Street from the Register and allow its demolition but insist on the retention of 12 and 14 Hilgrove Street.  He refers specifically to the issue of public perception in that the States owned 12 Halkett Street and no doubt it was convenient for the States that that property was de-registered so that it could be demolished.  Indeed he went as far as to infer that this may have been the motivation behind the decision to de-register. 

111.   The Committee and its officers maintain that there are material differences between the properties.  It accepts that 12 Halkett Street falls somewhere in between Nos.12 and 14 Hilgrove Street in terms of `authenticity' (i.e. the degree of the original building which remains).  It argues that the differences in the degree of authenticity between 12 Halkett Street and14 Hilgrove Street justify the decision to allow the demolition of 12 Halkett Street but not that of 14 Hilgrove Street.  12 Hilgrove Street is retained because of its group value next to No.14.  The Committee goes on to argue that, even if it was wrong to de-list 12 Halkett Street, it is open to the Committee now to step back from an erroneous decision (as envisaged in the passage from Caesar Investments cited at paragraph 98 above) and reach what is now a `correct' decision in relation to the Hilgrove Street properties.  The Committee argued in its written submissions that, at the time of the de-listing of 12 Halkett Street in 1997, the Committee was conscious of criticism that too many buildings in the Island were being protected by inclusion in the Register.  That was the background to the decision taken in respect of 12 Halkett Street.  Since then, attitudes to the conservation of the built heritage of the Island had again shifted.  Modest town buildings such as 12 Halkett Street might not be removed from the Register under current criteria. 

112.   The Court has had the opportunity of a site visit.  This was of great assistance.  We have to say that we agree entirely with Mr Carey as to the contribution which 12 Halkett Street makes to the street scene as compared with that made by 12 and 14 Hilgrove Street.  Halkett Street is an attractive street with a number of old buildings.  Immediately to the north of 12 Halkett Street lies three buildings which, according to the file note of 5^th June 1997, are proposed SSI's.  They are attractive old buildings.  Whilst 12 Halkett Street is not identical to them and, as agreed by all parties, has a late 19^th century mansard roof and dormer window, we agree with Mr Carey's view that, because of its form, scale, materials and architectural dealing, it is considerably more in keeping with the majority of properties in Halkett Street than Nos.12 and 14 Hilgrove are with their neighbours.  We accept that there is a difference of opinion as to exactly how much of 12 Halkett Street remains in its original form but, even if there have been changes, we note that most of them date from the late 19^th century.  In our judgment, when taken in the round, having regard both to its historic and architectural interest as well as its contribution to the street scene, it was a mistake for the Committee to remove 12 Halkett Street from the Register and give permission for  its demolition.  We emphasise that there is no evidence whatsoever to suggest any improper motives on the part of the Committee or its officers as hinted at by Mr Voisin.  We have no doubt that Mr Fell and his colleagues offered honest opinions which were genuinely held.  We also take note of the suggestion that attitudes towards conservation may vary from time to time; but the fact remains that Interim Policy HB6 was in existence in 1997 and that the criteria for inclusion have not altered. 

113.   In summary the Court is unanimously of the view that the Committee (through its predecessor) was `wrong' in relation to its decision on 12 Halkett Street and, viewed in isolation, `right' in its decision on 12 and 14 Hilgrove Street.  We are also unanimously of the view that these decisions are inconsistent.  The properties are very similar and in an immediately adjoining location.   It is a like for like situation.  The Court agrees with Mr Carey that It is hard to understand a decision which allows the demolition of 12 Halkett Street but prohibits the demolition of 12 and 14 Hilgrove Street.  The question is what impact this finding has on the Committee's decision in relation to 12-14 Hilgrove Street.   It is on this final aspect that the Court is divided.

114.   One Jurat would quash the refusal to allow the demolition of 12 and 14 Hilgrove Street on the grounds that the decision was unreasonable because it was inconsistent with the decision in relation to 12 Halkett Street.  He accepts that, as stated in Caesar Investments in the extract referred to earlier, it is open to a Committee to acknowledge that a previous decision was incorrect and therefore to reach a different decision in a later case notwithstanding that it is inconsistent with the earlier decision.  Had the Committee acknowledged that it had erred in the case of 12 Halkett Street, he would not have allowed this appeal.  But, he says, that is not what has happened here.  The Committee has not said that it got it wrong in relation to 12 Halkett Street.  It maintains that, because of the differences referred to by Mr Fell, that property was not as worthy of preservation as 12 and 14 Hilgrove Street.  Secondly, he believes that public perception is a matter of the first importance in planning matters.  The fact is that the Committee (through its predecessor) has allowed demolition when it suited the States but has refused it where the application was made by the private sector.  Whilst accepting fully that there were no improper motives, he is very concerned that to uphold the decision in this case would be damaging to the public perception of the fairness and impartiality of the planning process.  In summary, although he is of the opinion that the decision of the Committee in relation to 12 and 14 Hilgrove Street is reasonable when viewed in isolation, he concludes that it becomes unreasonable when compared with the decision to allow the demolition of 12 Halkett Street because there are no valid grounds upon which to distinguish the properties.  He would therefore allow the appeal on this ground.

115.   The second Jurat, whilst acknowledging the importance of public perception, is of the opinion that one must have primary regard to the reasonableness of the decision under review whilst taking full account of any inconsistent previous decisions.  The unanimous view of the Court was that the decision to allow the demolition of 12 Halkett Street was `wrong' and that a decision to allow the demolition of 12 and 14 Hilgrove Street would also be `wrong'.  Two wrongs do not make a right; they remain two wrongs.  Thus if the Court were to allow the appeal on the ground of inconsistency, the result would be that not only would there have been a `wrong' decision to allow the demolition of 12 Halkett Street but there would now also be a `wrong' decision to allow the demolition of 12 and 14 Hilgrove Street. 

116.   Nor does he consider that the law in relation to inconsistency forces him to such a result.  As Mann L J said in North Wiltshire District Council:-

"I do not suggest, and it would be wrong to do so, that like cases must be decided alike.  An inspector must also exercise his own judgment.  He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision."  (original emphasis)

The comments of this Court in Caesar Investments, referred to earlier, were to like effect.  Thus the mere fact that a decision is inconsistent with an earlier decision does not lead to an automatic quashing of the later decision.  As Mann L J said, the Committee must exercise its own judgment in relation to the later decision and is free to depart from an earlier inconsistent decision.  It is true that this is not a case of the Committee acknowledging that it was wrong in the first case and departing from it in relation to the later decision.  It is a case of the Committee distinguishing the earlier decision on grounds which the Court does not find to be convincing.  But should that make any difference?  The second Jurat thinks not.  Fairview Farm makes it clear that the Court must make its own assessment of the reasonableness of the decision under appeal.  Does a `right' decision become unreasonable merely because the Committee has earlier made a `wrong' decision in a comparable case and has not acknowledged the error of that earlier decision because it erroneously believes it to be distinguishable on the facts?  If it would have been open to the Committee to have acknowledged that the first decision was wrong and departed from it in the later decision, it must surely be open to the Court to reach a similar view and to conclude that the first decision was wrong and should be departed from, even if the Committee itself has not acknowledged the inconsistency (although in fact departing from the earlier decision).  The second Jurat would therefore uphold the decision of the Committee on the grounds that it was a reasonable decision notwithstanding the inconsistency with the earlier `wrong' decision in relation to 12 Halkett Street.

117.   I have carefully considered the respective views of the two Jurats.  I am persuaded by the reasoning of the second Jurat.  It follows that, by a majority, the Second Appeal is dismissed.

THE FIRST APPEAL

118.   We propose to deal with this very briefly.  Given that we are considering all the evidence in relation to both appeals, the only material difference between the first application and the second application is that the former was considered solely under the relevant Interim Policies (in particular HB6) whereas the latter was also considered by reference to the relevant new policies adopted as part of the 2002 Island Plan, namely Policy G16 and the other policies referred to in the Refusal Notice for the second application.

119.   But there has been no serious suggestion that these new policies differed materially from Interim Policy HB6.  On the contrary, the issues were clearly identical.  The key issue was still whether the buildings were of sufficient architectural or historical importance etc to justify retention as BLI's.  If so, were they reasonably capable of repair and refurbishment?  Although some of the new policies have slightly different wording, they do not alter the substance of the issues which had to be considered and which are in accordance with Interim Policy HB6.  It follows that our conclusions in relation to the First Appeal are identical to those in relation to the Second Appeal.    By a majority therefore, we also dismiss the First Appeal.

120.   In closing we would like to pay tribute to the submissions put in by all parties.  Because of the procedural issues, this matter became very complex and it is a tribute to the Solicitor General and Advocate Voisin that the Court was provided with high quality (albeit voluminous) submissions in relation to these appeals.

Authorities.

Mesch -v- Housing Committee (1990) JLR 269).

Island Development Committee -v-  Fairview Farm Limited (1996) JLR 306.

Token Limited -v- Planning & Environment Committee (2001) JLR 698.

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

Island Planning (Jersey) Law 1964.

Interim Policies for the Conservation of Historic Buildings (July, 1998: Planning & Environment Committee).

Broad -v- Brisbane City Council and Baptist Union of Queensland (1986) 2 QdR 317 at 326).

Collis Radio Limited -v- Secretary of State for the Environment (1975) 22 P & CR 390 at 395.

North Wiltshire District Council -v- Secretary of State for the Environment (1992) 3 PLR 113.

Caesar Investments Limited -v- Planning and Environment Committee (2003)JRC180.