Jersey Unreported Judgments

[2007]JRC102

royal court

(Samedi Division)

23^rd May 2007 

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats de Veulle and Liddiard.

 

Advocate C. M. B. Thacker for the Appellant.

H. M. Solicitor General for the Respondent.

judgment

the COMMISSIONER:

1.        This appeal was dealt with under the modified procedure set out in Rule 15/3 A and B of the Royal Court (Amendment No.3) Rules 2006 and Practice Direction RC 06/03.  The time fixed for the hearing was extended at the request of the parties from one and a half hours to three hours and in the event continued for some four and half hours.  The parties were legally represented and the members of the court were not robed.

2.         Premier Tour Limited ("the Appellant") appeals against a decision of the 19^th October, 2006, of the Minister for Planning and Environment ("the Minister") made through delegated authority by the Planning Applications Panel ("the Panel") refusing permission for the demolition of the First Tower Hotel, La Route de St Aubin, St Helier and its replacement with six two-bedroom flats and associated car parking, amenity space and landscaping.  The reasons given for that refusal were that:

(i)        The proposed development would result in the unacceptable demolition of a building included on the Minister for Planning and Environment's 'Register of Buildings and Sites of Architectural, Archaeological and Historical Importance in Jersey' as a Building of Local Interest, contrary to Policy G13 of the Island Plan 2002, and the Interim Policy HB6.

(ii)       The proposal is inappropriate in scale, form, mass, density and design to the site and its context, contrary to Policy G3 (i) and H8 (vii) of the Island Plan 2002.

(iii)      The proposal does not enhance the appearance of the site and surrounds, and involves the loss of an existing building that is not unsympathetic to the character and amenity of the area, contrary to Policy G 15 of the Island Plan 2002.

(iv)      The Appellant has not fully demonstrated that the building to be demolished is not appropriate to repair or refurbish, contrary to Policy G16 of the Island Plan 2002.

(v)       The proposed balconies and roof terrace would result in unacceptable overlooking of neighbouring properties, contrary to Policy G 2 (ii), G 15 (iii) and H 8 (iii) of the Island Plan 2002.

(vi)      The proposed development provides insufficient car parking, contrary to the Minister's Planning Policy Note No 3 'Parking Guidelines, 1988'.

The Policies

3.        A number of policies are referred to in the refusal, but for the purposes of this appeal it would be helpful to summarise the following to the extent that they are relevant:-

A.         Policy G 13

4.        This deals with buildings and places of architectural and historic interest and states there will be a presumption in favour of the preservation of the architectural and historic character and integrity of Registered Buildings and places.  Applications for the alteration or change of use of a Registered Building must contain sufficient information against which the impact on the fabric and appearance of the building can be assessed.  Permission will not normally be granted for the total or partial demolition of a Registered Building.

B.         Policy G 15.

5.        This is concerned with replacement buildings and states that the replacement of buildings will normally only be permitted where the proposed development would:-

"(i)      Enhance the appearance of the site and its surroundings;

(ii)           Replace a building that it is not appropriate to repair or refurbish;

(iii)          Not have an unreasonable impact on neighbouring uses under local environment by reason of visual intrusion and other amenity considerations;

(iv)          Involve loss of an existing building that is unsympathetic to the character and immunity of the area; and

(v)           Be in accordance with other principles and policies of the Island Plan."

C.         Policy G 16

6.        This Policy concerns the demolition of buildings and states that the demolition of a building or part of a building will normally only be permitted where the proposal:

"(i)      Involves the demolition of a building or part of a building that it is not appropriate to repair or refurbish.

(ii)       Would not have an unreasonable impact on a ...Building of Local Interest".

The background

7.        The property which is the subject of the appeal which we will refer to as a whole as ("the Property") consists of a three bay, two storey, former public house built in 1889 ("the Inn") with a three bay, two storey cottage also built in 1889 ("the Cottage") to the rear.  These two buildings are linked by a two storey flat roof extension constructed in the 1960's.

8.        The Inn and the Cottage were placed on the Register of Buildings of Local Interest ("the Register") on 4^th November 2002.

9.        The Appellant became interested in the Property in 2005 when it was offered for sale.  The Appellant's intention was to develop the Property for residential use.  On 14^th September 2005, the Appellant's lawyers submitted the usual application for information on land and/or buildings to the Environment and Public Services Department ("the Planning Department").  The written response from the Planning Department dated 7^th October 2005 stated, in error, that the Property was not listed on the Register.

10.      By letter dated 28^th October, 2005, the Appellant through Carney & Co wrote to the Planning Department seeking a pre-application opinion on its proposals for the Property.  The Appellant stated that it wished to retain the Inn having regard for Policies G 15 and G 16 under the Island Plan 2002 but it wished to demolish the Cottage as it considered the configuration and layout of the Cottage would render it difficult to repair and refurbish in any meaningful way.  The proposals, broadly, were for five, two bedroom flats and 1 one bedroom flat.

11.      Mr Richard Glover, a Principal Planner at the Planning Department responded by letter dated 11^th November, 2005, which was co-incidentally the date upon which the Appellant purchased the Property and which letter would have been received in the ordinary course of post after the date of purchase.

12.      Mr Glover raised a number of concerns about the proposals and, working on the same mistaken assumption that the Inn and Cottage were not on the Register, concluded as follows:

"In conclusion I feel that the site would be difficult to redevelop to the density you are suggesting whilst retaining the building on the frontage.  That building's loss would be unfortunate - as it is in itself intrinsically attractive - but given its unprotected nature its retention could not be enforced.  A contemporary intervention of a much less ambitious scale could well work and actually enhance the character of the area by adding another layer to the architectural styles of the vicinity but it must not override and unduly dominate the street scene.  Car parking provision must match the standards set out in the State's adopted Parking Guidelines (Planning Policy Note 3) but given the proximity of parks and the beach and the relative urban character of the area a flexible approach can be adopted to the provision of the site amenity space".

13.      Following this advice the Appellant made the Application, the refusal of which is the subject of this appeal.  The Application was dated the 10^th February 2006, and it sought to demolish all the existing buildings and replace them with six, two-bedroom flats.

14.      Following receipt of the Application it came to light at the Planning Department that the Inn and the Cottage were listed on the Register as buildings of local interest and the Appellant was advised of this on 3^rd March 2006.

15.      The Planning Department's report of the 22^nd June 2006 to the Panel recommended refusal of the application.  The report raised a number of concerns which were summarised as follows:

"This building is a Registered Building of Local Interest and there is a presumption against its demolition.  Although the building has been altered internally and the exterior has been left to fall into poor condition, the building is worthy of retention.

Notwithstanding the fundamental issue of the demolition of a Building of Local Interest, the proposal as submitted is not acceptable as it replaces a traditional and attractive group of buildings with a large scale building in contrast to the adjoining buildings.  The proposal also falls short of the required parking standards and would result in an unacceptable loss of privacy to adjoining neighbours."

16.      The Panel met on site at the Property on 29^th June 2006 together with a representative of the Appellant and its advisers.  The notes of that meeting show that the Panel noted the main policy consideration was whether the principle of the demolition of a registered building was acceptable, but it went on to view the drawings and noted that the Planning Department did not consider the proposal to be in keeping with the scale or design of the two story buildings or with the street scape in general, and that the proposed new development would impact upon the privacy of neighbouring properties.  It also noted that a total of eighteen car parking spaces would be required in order to comply with existing guidelines and the Application was only able to provide nine on the site.

17.      On returning from the meeting the Panel further discussed the Application and agreed prior to making a decision that a survey should be conducted to establish whether the building remained worthy of retention on the Register.

18.      The proposed survey was superseded by an "appeal" filed by the Appellant on the 3^rd April 2006 against the registration of the Inn and Cottage.  This appeal was processed by the Jersey Heritage Trust to whom management of the Register had been transferred in January 2005.  The Curator of Historic Buildings, Mr R. Hills, prepared a report for the Ministerial Registration and Listing Advisory Group ("MRLAG"), a group established to provide independent expert advice on matters relating to the protection of buildings and sites of cultural interest, which group carried out a site visit on 14^th August 2006. The Jersey Heritage Trust then prepared a report for the Minister dated 18^th September 2006. The report contained the advice of MRLAG and its responses to the points raised by the Appellant in its appeal and recommended that the Inn and Cottage should be retained on the Register.

19.      On 11^th September, 2006, Mr Stuart Fell, a practising Architect, emailed the Planning Department on behalf of the Appellant asking to see the report and to make further comment to the Minister.  In its response on 11^th September 2006 the Planning Department stated that it was not possible for any additional comment to be considered.  Mr Fell was informed that the Minister would consider the matter on the 20^th September and his decision would be published on the website and notified to him.

20.      The Minister considered the matter on the 20^th September 2006.  He had before him the report from the Jersey Heritage Trust and received oral submissions from Mr Hill.  Whilst the report from MRLAG summarised the appeal contentions of the Appellant, the Appellant had not had an opportunity to comment on MRLAG's responses to those contentions or indeed to make representations to the Minister, the person charged with making the decision.  The Minister followed the advice of MRLAG and decided to retain the Inn and the Cottage on the Register.

21.      With the registration of the Inn and Cottage confirmed, a further report was prepared by the Planning Department dated 11^th October 2006 in contemplation of a second meeting of the Panel to consider the Application.  In that report the Planning Department noted the decision by the Minister to retain the Inn and Cottage on the Register, but went on to say :

"Notwithstanding the fundamental issue of the demolition of a Building of Local Interest, the proposal as submitted is not acceptable as it replaces a traditional and attractive group of buildings with a large scale building in contrast to the adjoining buildings.  The proposal also falls short of the required parking standards and would result in an unacceptable loss of privacy to adjoining neighbours."

22.      The Planning Department recommended a refusal for the reasons adopted by the Panel when it met on 19^th October, 2006, and as set out in the formal notice of refusal summarised above.  The Minutes of the meeting of the Panel are as follows:

"The Panel, recalled that it had previously deferred determining the application as it had wished to ascertain whether the Property remained worthy of retention on the Register of Buildings and sites of Architectural, Archaeological and Historical Importance.  The applicant had originally been led to believe, in error, that the Property had not been included on the Register and that it could be demolished.

The Panel, having viewed the Property, had been advised that the Ministerial Registration and Listing Advisory Group (MRLAG) had assessed the value of the Property in terms of its retention in the Register and had been satisfied that Property met the relevant criteria.  Consequently, the MRLAG had recommended that the Minister for Planning and Environment should maintain the registration of the Property and the Minister had subsequently endorsed this recommendation.  The Panel recognised that there was a presumption against the demolition of historic buildings.  Notwithstanding this the proposal as submitted was not considered to be acceptable and the applicant could not meet the required parking standards.  Consequently, the Panel was being recommended to refuse permission.

Three letters of representations had been received and the Panel had regard to the nature of the concerns which had been expressed.

The Panel was addressed by Mr A.J. Smith, of Le Ruaudiere, Victoria Avenue, who outlined his concerns regarding an increased level of traffic and the effect this would have on an exit to Victoria Avenue adjacent to his Property.

Mr M. Stein, of M.S. Planning, on behalf of his client, expressed concern at the decision of the Minister to retain the First Tower Hotel on the above-mentioned Register, particularly in the light of the erroneous information which had been provided by the Planning and Environment Department.

The Deputy of Trinity considered that, in view of the confirmation received that the building was on the Register and, therefore, protected, the application could not be supported.  The Connétable of St. Peter suggested that the present plans were, in any event, out of character with area.  The Chairman agreed that the proposals would not fit comfortably with the location, and that the registration of the building could not be ignored.

The Panel accordingly refused the application.

The case officer was directed to take the necessary action."

Grounds of Appeal

23.      There were two grounds of appeal:

(i)        The first ground of appeal is that the Minister consistently failed to advise the Appellant over an extended period that the Inn and Cottage were included in the Register, leading the Appellant to purchase the Property which it would not otherwise have purchased and to prepare a scheme for redevelopment based on Planning Department's written advice which was subsequently refused because it involved the demolition of a registered Historic Building.

(ii)       The second ground of appeal is that the Minister's earlier decision of 20^th September 2006, to retain the Inn and the Cottage on the Register  as a building of local interest was unreasonable because the process of re-examination of the registration was flawed in its execution and the process of re-examination was inherently unsatisfactory in itself and by comparison to the appeal provisions under  the Planning and Building Jersey (Law) 2002 (the "Planning Law") in respect of the placing of Sites of Special Interest on the Register or the listing of trees on the List of Protected Trees.

Legal Test and Powers of the Court

24.      Under Article 109(1) of the Planning Law an appeal may only be made to the Royal Court on the ground that the action taken by, or on behalf of the Minister, was unreasonable having regard to all the circumstances of the case, the same ground upon which appeals could be brought under the Island Planning (Jersey) Law 1964 ("the 1964 Law").

25.      The legal test is set out in the case of Token Limited -v- Planning Environment Committee [2001] JLR 698, where the Court stated at paragraphs 9:

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

That statement of the legal test was endorsed by the Court of Appeal in Planning and Environment Committee v Le Maistre [2002] JLR 389 and by the Court of Appeal in Trump Holdings -v- Planning and Environment Committee [2004] JLR 232. 

26.      However, whereas under the 1964 Law there were no restrictions on the powers of the Court to make appropriate orders where a decision had been found to be unreasonable, Article 113 (3) of the Planning Law restricts the Royal Court to two options by providing that the Royal Court may either confirm the decision of the Minister or "order the Minister to grant the permission........ sought subject to such conditions as the Royal Court may specify". The "permission sought" is the planning permission applied for under Article 9(1) of the Planning Law the refusal of which is subject to a right of appeal.

27.      There is no provision under the Planning Law for an appeal against part of a refusal or to appeal against any particular ground for a refusal. We note that Article 114  of the Planning Law permits an appeal by interested parties, such as neighbours, against the grant of a planning permission or any part of such permission and Article 114(8) empowers the Royal Court on any such appeal to either confirm the decision or order the Minister:-

"(i)      to vary his or her decision or any part of it or

(ii)       to cancel the decision".

28.      In the short time available for this hearing we were unable to explore with counsel the policy considerations that lay behind the decision of the legislature to give the Royal Court wider powers when dealing with an appeal against the grant of a planning permission than when dealing with an appeal against a refusal.

29.       It would appear for example that, under Article 113(3) of the Planning Law, the Royal Court would have no power to quash a decision of the Minister and remit the matter back to him where it had found procedural error. We comment on this below. Whether the Royal Court has an inherent power to do so (i.e. by way of judicial review), notwithstanding the provisions of Article 113(3), was not a matter that was argued before us.

The Solicitor General's Preliminary Submission

30.      The Solicitor General's preliminary submission was that the appeal was "doomed to failure". The Application had been refused on six grounds and the appeal in effect only challenged ground 1 -the demolition of a registered building. She submitted that even if the Royal Court were to find for the Appellant in respect of ground 1 of the refusal, grounds 2 to 6 would remain unchallenged. The Royal Court had no power to make pronouncements on the validity of one particular ground and Article 113 of the Planning Law was not intended to allow aggrieved applicants to test the validity of particular grounds.

31.      We agree that the appeal is bound to fail.

32.      The appeal is against the refusal by the Minister to grant planning permission on the Application. The Application was to both demolish the existing building and replace it with 6 two-bedroomed flats with associated car parking and amenity space.  The appeal effectively challenges only the first of the 6 grounds upon which the Application was refused.  Leaving aside the issue of demolition the Application was unacceptable on a number of other grounds including the scale of the proposed new building, its impact upon the neighbours and the lack of car parking. More particularly:-

(i)        Ground 1 of the refusal is based upon Policy G13 and Interim Policy HB6 which relates to buildings on the Register and this ground is challenged by the appeal.

(ii)       Ground 2 of the refusal is based upon Policies G3(i) and H8(vii) which are of general application (scale, form, mass, density and design of the proposal). This ground is not challenged by the appeal.

(iii)      Ground 3 of the refusal is based upon Policy G15 which is not restricted to registered buildings. This ground is not challenged by the appeal.

(iv)      Ground 4 of the refusal is based upon Policy G16 which has a number of requirements but it is clear from the wording of the refusal that the Minister was relying on number (i) of the policy (not appropriate to repair or refurbish). This ground is not challenged by the appeal.

(v)       Ground 5 of the refusal is based upon Policies G2(ii),G15(iii) and H8 none of which are restricted to registered buildings. This ground is not challenged by the appeal.

(vi)      Ground 6 of the refusal relates to Planning Policy Note 3 "Parking Guidelines, 1988" which is not restricted to registered buildings. This ground is not challenged by the appeal

33.      In order to succeed the Appellant would need to establish that the refusal as a whole was unreasonable, not just any one part of it. This requires the Appellant to argue that the issue of the Planning Department's admitted error (the first ground of appeal) and the alleged procedural flaws in the process of re-examination of the registration (the second ground of appeal) were material to its refusal not only to permit the demolition of the existing buildings but also to permit the proposed new buildings.

34.      Mr Thacker, on behalf of the Appellant, submitted that the registration of the Inn and Cottage was the policy issue (Policy G13 and Interim Policy HB6) on which the refusal was based and that the other grounds of refusal could have been addressed by reducing the density of the scheme and making design changes through a process of negotiation with the Planning Department. He placed reliance upon the Panel discussion which he said appeared to show the registration as the conclusive factor.  The minutes of the meeting of the Panel on the 19^th October 2006 recorded the following:-

"The Deputy of Trinity considered that, in view of the confirmation received that the building was on the Register and, therefore, protected, the application could not be supported.  The Connétable of St Peter suggested the present plans were, in any event, out of character with the area.  The Chairman agreed that the proposals would not fit comfortably with the location, and that the registration of the building could not be ignored."

35.      The Solicitor General referred us to B.F. Burt and H.I. Burt -v- The States [1996] JLR 1 when in the context of  a debate involving the States of Jersey Le Quesne JA stated:-

"He submitted that the mind of the States could be discerned from the speeches of the six or seven members who spoke in the debate and who emphasised their concern about the nuisance and annoyance which the house was constituting.  What is in question here is, what was the collective mind of the States upon the proposition put before them?  The collective mind of the States can be shown in one way only: that is by a vote." 

36.      She also referred us to Island Development Committee -v- High View Farm Limited [1996] JLR 306 when Le Quesne JA said (at page 314) that the States can express a view only in one way - "by a proposition properly adopted".

37.      The same principles must apply, in our view, to decisions of admittedly smaller bodies such as the Panel. The minutes simply recall what each member said as part of the discussion that took place and it would be wrong and undesirable to hold that the words spoken should be taken as constituting the formal reason for the decision.  The collective mind of the Panel can be shown in one way only and that is by the decision actually made and the formal reasons given.

38.      In any event we disagree that the Panel discussions showed that the registration was the conclusive factor. Two of the Panel members made reference to the unacceptable nature of the proposed new building. Furthermore it is not open to the Appellant to contend that the grounds of refusal that it has not challenged would have been resolved by a process of negotiation. It is a matter of speculation what fruit, if any, such negotiations may have born. The issue on this appeal is whether the decision of the Panel on the 19^th October 2006 to refuse the Application, as it was then presented, was unreasonable.

39.      It was accepted by Mr Thacker that it would not be appropriate for us to order the Minister, if we were so minded, to grant the permission sought on the Application as that would, irrespective of the issue of demolition, impose upon the neighbours a new building that was in any event objectionable for the reasons stated in the refusal.  Even if we had the power and the relevant expertise to order the Minister to grant permission to a different scheme, that would by-pass the other stakeholders in the planning process and in particular the neighbours would have had no opportunity to comment or object to that different scheme. 

40.      Mr Thacker sought to separate out the issue of demolition from the proposed new buildings by suggesting the Court should go the extra mile and make a formal order upon the following lines:

"The Court hereby directs the Minister to grant permission in respect of planning application No P/2006/0353, to:

Demolish existing building and replace with 6 No 2 bed flats and associated car parking, amenity space and landscaping, and reposition access.

To be carried out at:

First Tower Hotel, La Route de St Aubin, St Helier

Subject to the following conditions:

1.     Notwithstanding the indication in the description of this development, the number of flats is not approved and shall be the subject of reduction as indicated in condition 2;

2.     The submitted proposals shall be reduced in scale and density and amended in form, layout and design so as to resolve the issues of design, overlooking and parking identified in the refusal notice dated 19 October 2006, and the amended proposals shall be submitted to the Minister for his further approval no later than 12 months after the date of this permission, such proposals being the subject of re-advertisement and re-consultation in the normal way; 

3.     A case shall be submitted in writing so as to demonstrate to the satisfaction of the Minister that the building to be demolished is not appropriate to repair or refurbish and that the provisions of Policy G15 have accordingly been satisfied;

4.     A case shall be submitted in writing so as to demonstrate to the satisfaction of the Minister that the benefits arising from the amended scheme in terms of design, amenity and an increased yield in housing units outweighs the loss of the existing building under the provisions of Policy G16.

Reasons

1.           The development in its current form is over-intensive.

2.           To ensure that the form and design of the proposed development are revised so as to satisfy the requirements of the Island Plan, particularly Policies G2, G3 and H8;

3.           to ensure that the provisions of Policy G15 are satisfied;

4.           To ensure that the provisions of Policy 16 are satisfied."

41.      Leaving aside the Solicitor General's concerns as to uncertainty and lack of precision and the inappropriate use of conditions, Mr Thacker candidly accepted that in making such an order we would not, in reality, be ordering the Minister to grant planning permission for a defined development and that, in essence, an order in this form was tantamount to setting in train what was in effect a new application with amended proposals (as yet unprepared) which would go through the normal planning processes but on the basis that the buildings were not listed and therefore not subject to the rebuttable presumption against demolition of registered buildings.

42.      This would be tantamount to permitting the Appellant to appeal against one ground only of the refusal when the Planning Law gives it no such right and to the Court ordering the Minister to grant part only of the permission sought when it would appear under the Planning Law to have no power to do so.

43.      Whatever scheme may have emerged from such a process it would be a different scheme to that for which the application in this case was made. It seems to us that in accepting that we should not order the Minister to grant the permission actually sought in this case (the only option apparently available to us under the Planning Law if we were to find for the Appellant) the Appellant is conceding that the decision of the Panel to refuse the Application in the form presented to them must have been reasonable.

44.      The limitation imposed upon the Royal Court by Article 113(3), where it finds that a refusal is unreasonable, is ameliorated by its ability to attach conditions to the "permission sought". The Solicitor General referred us to Circular No 11/95:The use of Conditions in Planning Permissions issued by the Department of the Environment which states:-

"The power to impose conditions when granting planning permission is very wide. If used properly, conditions can enhance the quality of development and enable many development proposals to proceed where it would otherwise have been necessary to refuse planning permission. The objectives of planning, however, are best served when the power is exercised in such a way that conditions are clearly seen to be fair, reasonable and practicable.....conditions should only be imposed where they are both necessary, and reasonable, as well as enforceable, precise and relevant to the development to be permitted. It is essential that the operation of the planning system should command public confidence. The sensitive use of conditions can improve development control and enhance that confidence. The use of conditions in an unreasonable way, however, so that it proves impracticable or inexpedient to enforce them, will damage such confidence and should be avoided".

45.      Whilst the first part of Mr Thacker's draft order complies with Article 113(3) in that it orders the Minister to grant "the permission sought" it then uses the conditions to undermine that permission by:-

(i)        stating that , in fact, the number of flats is not approved

(ii)       Requiring  amended proposals for the new building to be submitted for the approval of the Minister and to go through the usual process of consultation with the interested bodies and persons

(iii)      Requiring cases to be submitted to satisfy the Minister that the existing buildings can be demolished notwithstanding Policies G15 and G16 (which exist quite independently of registration).

46.      The fundamental objection to the use of conditions in this way, as pointed out by the Solicitor General, is that before you can apply conditions to a development, you have to know, with reasonable definition, what that development is i.e. the development must come before the conditions and not the other way round. Under this draft order it is the conditions themselves which set in train the process by which, through amended proposals and cases, the development will be defined. It is only at the end of that process that you will arrive at a development to which conditions can be attached properly. Furthermore planning policies such as policies G15 and G16 need to be applied at the point at which a planning application is considered and not attached as conditions to the consent.

47.      We are also conscious that we are being asked to make an order against the Minister and any order we make needs to be clear and workable and fair to the various stakeholders in the planning process. It seems to us that we would place the Minister in an impossible position by ordering him on the one hand to grant the Appellant planning permission and on the other hand to order him to treat it as a new application which should go though due process, a process that should not be pre-judged. We would not be prepared to make such an order.

48.      Applying the Token test we have to form our own view of the Panel's decision in relation to the Application. In our view the Panel's refusal was clearly reasonable because, irrespective of the issues raised by the Appellant in the appeal and as tacitly admitted by the Appellant, the development was unacceptable for the reasons set out in grounds 2 to 6 of the refusal and in particular because of the scale of the proposed new building, its impact on the neighbours and the lack of car parking. It follows that even if the Appellant were to succeed on either or both of its two grounds of appeal, the appeal would still fail.  In the premises we do not consider it necessary to go on to make findings in relation to the two grounds of appeal raised by the Appellant.

49.      However we do wish to make the following observations:-

(i)        Notwithstanding our decision that the appeal is bound to fail, we have considerable sympathy for the Appellant which was entitled to rely on its pre-acquisition enquiries of the Planning Department in relation to the Property and it is very regrettable that the Planning Department should have committed the errors that it did. The watershed described by Bailhache, Bailiff, in McCarthy-v-Minister for Planning and Environment [2007] JRC 063 at paragraphs 37 to 39 following the introduction of the Planning Law would today lead, in our view, to the public interest in ensuring due process in planning applications overriding the expectations of the Appellant notwithstanding that those expectations were induced by the errors of the Planning Department, but we note that the Appellant may be able to pursue a claim against the Minister for negligent misrepresentation or to seek relief by way of Judicial Review.

(ii)       In our view the exclusion of the Appellant from the process of re-examination of the registration as described in paragraphs 19 and 20 above was unfair. The Minister was carrying out a public function which directly affected the interests of the Appellant and in respect of which there was no right of appeal to the Royal Court. It was denied the opportunity of commenting upon the report presented to the Minister and the oral report of Mr Hill and it was denied the opportunity of making oral representations to the Minister. This is not to say that in our view the decision of the Minister to maintain the registration was wrong but simply that the process was unfair in this respect. As Birt, Deputy Bailiff, said in Trump Holdings Limited-v-Planning and Environment Committee [2004] JLR 16 at paragraph 83:-

"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 proper procedures"

If we were working under the 1964 Law we would have given consideration to such an order but under the Planning Law we have no such option. Notwithstanding the above, the refusal of the Panel, taken as a whole, was clearly reasonable for the reasons set out in paragraph 48 above.

(iii)      We were concerned with the limitations placed upon the Royal Court by Article 113(3) of the Planning Law.  It seems to us that with these limitations it is going to be very difficult for any appellant in practice to successfully appeal a refusal of the Minister and we can see no reason why the Royal Court should not have the same powers it enjoyed under the 1964 Law or indeed the powers it enjoys under Article 114(8) of the Planning Law.  We recommend that these provisions of the Planning Law be reviewed and the Planning Law amended.

50.      The appeal is accordingly dismissed.

51.      Having regard to the Practice Direction, I would not intend making any order as to costs unless either party wishes to contend that there are exceptional circumstances justifying such an order.

Authorities

Royal Court (Amendment No.3) Rules 2006.

Practice Direction RC 06/03.

Buildings and Sites of Architectural, Archaeological and Historical Importance in Jersey.

Island Plan 2002.

Parking Guidelines 1988.

Planning and Building Jersey (Law) 2002.

Planning (Jersey) Law 1964.

Token Limited -v- Planning Environment Committee 2001 JLR 698.

Planning and Environment Committee v Le Maistre 2002 JLR 389.

Trump Holdings -v- Planning and Environment Committee 2004 JLR 232. and JLR 16

B.F. Burt and H.I. Burt -v- The States [1996] JLR 1.

Island Development Committee -v- High View Farm Limited [1996] JLR 306.

McCarthy-v-Minister for Planning and Environment [2007] JRC063.