Jersey Unreported Judgments

[2007]JRC121

royal court

(Samedi Division)

21^st June 2007 

Advocate M. C. Goulborn for the Appellant.

H. M. Solicitor General for the Respondent

judgment

the commissioner:

1.        This appeal is against a decision of the Minister of Planning and Environment to refuse an application to revise the layout for a parking area at a development at La Bel du Monnyi, La Grande Route de St Pierre, St Peter.  The refusal is dated 2^nd February 2007.  The revision came, of course, after the planning original permit was given to "Celtic" and not "Seltic" Limited on 18^th December 2003.  (This was after the original owners, Mr and Mrs Le Feuvre had sold to the Company).  It contains this condition:

"Car parking arrangements for the scheme must be provided in accordance with the details on the plan, drawing No 1027/02/A08 and 1027/02/Do6a.  These areas must remain permanently available for car-parking for the occupiers of the dwellings hereby approved, unless an alternative scheme is agreed by the Planning and Environment Committee".

2.        Fortunately our duties under the law are now pellucid.  In Token Limited -v- Planning and Environment Committee [2001] JLR 698 where the learned Bailiff 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."

3.        While it is unusual for the Inferior Number to overrule the decision of a Court of Appeal, the argument of the learned Bailiff is clearly right and this was confirmed in a later judgment of the Court of Appeal in Trump Holdings -v- Planning and Environment Committee [2004] JLR 232 where the Court held:

"The statement to the test under Article 21 of the Island Planning (Jersey) Law 1964, as amended, contained in the Bailiff's judgment in Token is the correct statement of the test.  It materially differs from the statement in this Court in Fairview Farm.  The difference is not merely a semantic one". 

So that this Court must form its own view of the merits, but must reach the conclusion that the Respondent's decision is not only mistaken but also unreasonable before it can intervene.

4.        We are most grateful to Advocate Goulborn for his documentation which is logically arranged and relevant.  Within his bundle is the affidavit of Dr Roy Webster, the Principal Planner of Planning and Building Services acting for the Minister and he says:

"...

8.                           The application site comprises a small car parking area associated with and lying alongside/to the north-west of a courtyard group of five dwellings which have been formed by conversion of redundant granite farm buildings in a development which is now called La Bel du Monnyi located to the north of the Grande Route de St Pierre in the Parish of St Peter.  A site location plan and aerial photograph are enclosed at RW1/8 and RW1/9 respectively.

9.                           These former farm buildings were previously part of La Hougue Farm which lies to the north and west of the site, with the existing farmhouse located immediately to the west and the property La Petite Hougue immediately to the north.  To the south/south-west of the site are three dwellings which have recently been developed on the site of a former agricultural shed.  To the south and south-east of the Bel du Monnyi development is La Hougue House and its grounds.  It is understood that, around the time that permission was initially granted for the Bel du Monnyi development (late 2001), the building complex was sold by the owners of La Hougue Farm to the owner of La Hougue House, whose company (Seltic Limited) subsequently undertook the development.  It is also understood that two of the dwellings in the south eastern part of the courtyard (alongside La Hougue House) are still in the ownership of Seltic Limited, with the remaining three having been sold separately.

10.                        The car park area forming the subject of this appeal is enclosed on its eastern side by the rear facades of two of the courtyard dwellings (units 1 and 2) and on its south and west sides by a 2 metre high granite wall.  This enclosed area is one of two car parking areas which have been approved to serve the Bel du Monnyi development - the other being located to the south of the complex in the grounds of La Hougue House.  The south car park area has not been implemented, and the proposal forming the subject of this appeal is to amend the approved scheme by omitting the south parking area and part replacing the resultant 'lost' spaces by increased parking provision within the enclosed NW car park area.

5.        In effect there are now twelve car parking spaces as opposed to the sixteen originally envisaged.  There are five units of accommodation and the original consent gave fourteen parking spaces for the occupants with two visitor spaces.  We must remind ourselves that condition 2 of the original permit not only specified that car parking arrangements must be provided in accordance with the plan but "must remain permanently available for car parking of the occupiers".

The Applicant contends that because the site is acceptable for 12 car parking spaces the Minister should have given approval because his decision was unreasonable.  That appears to us to be taking us back to the "Fairview Farm" decision.

6.        We have before us a detailed affidavit from Mr Peter Grainger who for five years was the Development Officer of the Island Development Committee.  He is now a Planning and Development Consultant with his own firm, Grainger P.D.C. Ltd.  Mr Grainger sets out all the three reasons given for the rejection of the revised plans.

7.        Basically they are the failure to provide the number of car parking spaces specified, that there are inadequate on-site manoeuvring spaces and the use of the car park would be intensified to the detriment of the residents of the development.  Each of the reasons cites Policy G 2 of the Jersey Island Plan 2002.  Mr Grainger's answer to each of the three questions, is diametrically opposed to that of the planners.  Mr Grainger says, in part of his very detailed affidavit:

"Despite the owners endeavour to restrict the car ownership associated with the development to a reasonable and acceptable level in accordance with current Island Plan Policy and the availability of public transport on the adjacent La Grande Route de St Pierre it appears that in neither case have these factors been taken into account in the present decision.  The decision by the respondent to refuse permission was inconsistent with previous decisions taken by the respondent in relation to similar developments".

We cannot prefer the views of Mr Grainger to the views of the Minister (the Planning Sub-Committee and the Planning Officers) on the planning aspects of this matter.

8.        We have reached a conclusion that this development is unique and, despite Mr Goulborn's most careful argument, we can see the dilemma which Seltic Limited faces but when it bought the development from Mr and Mrs Le Feuvre, it knew then of the restrictions placed upon the site in regard to parking but, in our view, it chose to ignore them because by converting the five units with a limited parking area it must have known that there would be severe problems.  We read and heard arguments about perpendicular parking as opposed to echelon parking but it is pointed out by Mr Webster in his second affidavit that he is adamant (as neighbouring residents have pointed out and as is clear to us) that the end space next to the car park entrance would not only partly obstruct the view line but would obstruct the entrance/exit area.

9.        We cannot see that the Minister has made a mistake nor do we find in the light of the original conditions that he has acted unreasonably.  As we have said, approval was originally obtained by Mr and Mrs Le Feuvre who subsequently sold the property to Seltic Limited.  This sale did not include the land set aside for parking to the north-west of the property.  The latest proposal (the subject of this appeal) is to further reduce the area and limit the number of spaces.

10.      As the Solicitor General so rightly says it is not for this Court to second-guess what the Minister will decide when the Department reviews its current Planning Policy.

11.      There are three factors in the appeal: adequacy, manoeuvrability and the reasonableness of which manoeuvrability is the least relevant point.  The parking area is three cars short.  Mr Grainger in his affidavit says that "there is a restrictive covenant on these 5 units such that each unit has been allocated 2 spaces plus 2 visitor parking spaces for the whole development".

12.      That is a problem but not one which needs to concern the Court.

13.      We dismiss the appeal and award the Minister his costs.

Authorities

Token Limited -v- Planning and Environment Committee [2001] JLR 698.

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

I.D.C. -v- Fairview Farm Limited [1996] JLR 306.