Jersey Unreported Judgments

[2006]JRC167

royal court

(Samedi Division)

17^th November 2006 

Advocate M. St. J. O'Connell for the Applicants.

S. C. Nicolle Q.C., Solicitor General, for the Respondent.

judgment

BAILIFF:

1.        This is an application for leave to apply for Judicial Review of certain decisions made by the Minister of Planning and the Environment.  In order to obtain leave the applicants have to show that they have an arguable case that a ground for seeking Judicial Review exists which merits a full investigation at a full oral hearing with all the parties and all the relevant evidence. 

2.        The applicants seek to review three different decisions of the Minister or his predecessor in title as follows -

(i)        The decision of the Planning and Environment Committee on 23^rd May 2005 to grant permission for Reg's Skips Limited ("RSL") to operate a skip sorting yard from the site at Heatherbrae Farm, St John;

(ii)       the decision or decisions of the Minister between April 2006 and September 2006 not to exercise powers under the Island Planning (Jersey) Law 1964 and the Planning and Building (Jersey) Law 2002 to prevent continuing breaches of conditions in respect of the permission referred to in (i) above; and

(iii)      the "decision" of the Minister on 21^st September 2006 to defer for three months making a decision on an application made by RSL for a reconsideration of the terms of the permission (referred to in (i) above) and authorising the use of mechanical sorting on the site on a limited basis during that period and authorising the construction of enclosures/structures allegedly amounting to development on the site.

3.        I shall take each in turn. (i) As will be evident, there has been a long delay in seeking to review this decision.  Rule 16/3(1) of the Royal Court Rules 2004 provides - "Subject to paragraphs (2) and (3), an application for Judicial Review must be made promptly and in any event not later than three months from the date when grounds for the application first arose".  Mr O'Connell sought to justify the long delay on the basis that the applicants had been away on holiday when the application had been published, and they did not become aware of the permission granted until the spring of 2006.  Counsel conceded however that the applicants had been aware of the increased level of noise during the winter of 2005/2006 but had done nothing about it.  The Solicitor General drew attention to the prejudice that would be suffered by RSL if the permission were to be cancelled.  If the Committee had exercised its statutory right to revoke the permission within three months, RSL would have been entitled to compensation.  That right would be absent at this late stage.  Rule 16/3(3)(b) provides that an application may be made after the end of the three months' period if the Bailiff is satisfied "that if the relief sought were granted ... it would not be likely to cause substantial hardship to, or substantially prejudice the rights of any person".  I cannot overlook the long delay in relation to the first decision, and leave is refused both for this reason and for the reason given below in relation to the second and third decisions.

4.        (ii) In relation to the second decision or decisions, the applicants are again out of time in as much as any such decision was taken prior to the 27^th July 2006.  Counsel for the applicants argued that there was a continuing failure on the part of the Minister to enforce the conditions attached to the permissions granted on 23^rd May 2005.  Counsel accepted that officials had requested RSL not to use a mechanical digger and that the company had complied with that request.  The Solicitor General contended that this decision was not apt for Judicial Review because it involved disputed questions of fact and would involve a determination as to whether, inter alia, there had been an intensification of use such as to constitute a material change.  (iii) In relation to the third decision, the Solicitor General contended that Judicial Review would be futile because the "decision" of the Minister was not so much a decision as a determination not to decide until December 2006.  In such circumstances the Minister would have made the ultimate decision before the proceedings for Judicial Review could have been completed.

5.        In the event, I have found a different consideration to be determinative of these applications.  Volume 1 of Civil Procedure 2006, paragraph 54.4.4, states in relation to similar statutory provisions in England -

"The court may also refuse permission in the exercise of its discretion.  In particular, the court will not normally grant permission to apply for Judicial Review where the applicant has an adequate alternative remedy available."

Rule 16/2(2)(a)(v) of the Royal Court Rules 2004 requires an applicant for leave to state "any alternative remedies which are or were available to the applicant, and if they have not been pursued, the reasons why."  The form of notice filed by the applicants states that a private law nuisance claim against RSL is being considered, but does not in fact give any reason why that available remedy has not been pursued.  We think that the applicant probably means an action in voisinage.  In all the circumstances of this case it seems to me that the appropriate remedy for the applicants to pursue is a private law action in voisinage.  I accordingly refuse leave to seek Judicial Review of the second and third decisions.  I will however make no order for costs.

Authorities

Island Planning (Jersey) Law 1964.

Planning and Building (Jersey) Law 2002.

Royal Court Rules 2004 Volume 1.

Civil Procedure 2006, p 54.4.4.