Jersey Unreported Judgments

[2007]JRC227

royal court

(Samedi Division)

26^th November 2007

Miss S. C. Nicolle Q.C. fro the Minister for Planning and Environment.

Advocate P. M. Livingstone for Cadoret.

judgment

the COMMISSIONER:

1.        This is an appeal by Philip David Cadoret ("the Appellant") pursuant to Article 113(1)(a) of the Planning and Building (Jersey) Law 2002.  This Article applies to a refusal by the Minister for Planning and Environment ("the Minister") to grant planning permission on an application made to the Minister in accordance with Article 9(1) and allows an appeal.  Article 9(1) merely states that a person who requires planning permission not granted by a Development Order must apply to the Minister for it.  The refusal was made by the Assistant Director for Planning under delegated powers.  On such an appeal this 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 or, of course, refuse the appeal.

2.        The background history to this application is convoluted.  In December 2002 there was an application by Fairfield House Limited for four units of domestic accommodation.  This was refused in May 2003.  An amended layout application was made in October 2003 and permission was granted on 8^th January, 2004.  In August 2002 an application was made by Fairfield House Limited for alterations to the site layout including a repositioning of vehicular access.  This was granted on 16^th June, 2005.  On 11^th September a revised application was made to include minor changes to the layout by R P Homes Limited who had acquired the property.  Again, permission was granted on 11^th September, 2006.

3.        It was on 26^th January, 2007 that further revised plans were submitted by the Appellant (who had now acquired Unit 1 of the 4 units of dwelling accommodation at the property) to construct a conservatory to the east elevation of Unit 1.  This was refused on 18^th April, 2007 on the basis that "the proposed works would harm the architectural character and integrity of this traditional agricultural building resulting in an unacceptable visual harm to the character of the countryside contrary to Policy C6 of the Jersey Island Plan of 2002".  A request for reconsideration was made and on 26th June the Minister maintained his refusal for the reasons given in the original decision.

4.        It does seem to us that the appellant has to show that beyond doubt the Minister's decision is not only mistaken but positively wrong. It is not for the Court, in the absence of such criteria, to substitute its own views for that of the Minister.  Let us, for a moment, take one ground of appeal, namely, that the Minister failed to take into account other applications in the Island similar to the Appellant's application but which have been granted.  We saw photographs of a conservatory, larger than the proposed conservatory under appeal, at North Lynn Farm in St Martin.  This is in the Green Zone, which Fairfield is not.  We saw another conservatory again larger than the present, at Haut de la Rue, St Ouen.  Both these conservatories were approved in 2003.  It should be pointed out that North Lynn Farm is a listed building whereas Fairfield is not.  We were not asked to make a site visit to Fairfield but again we saw photographs of the limited visual impact the proposed conservatory would have from La Rue du Hurel.  It would, of course, be seen from the parking spaces to the east of the property. 

5.        Let us examine this ground a little further.  In Trump Holdings Limited v Planning Environment Committee [2004] JLR 232, the Court of Appeal held that the Committee's discretion was not fettered by previous decisions.  Obviously, consistency is important but a different approach might be adopted even if the decision were inconsistent with what had been passed for other properties.  As recently as March of this year the Court held in McCarthy v Minister for Planning and Environment [2007] JRC 063 that the Minister was not bound by previous planning decisions.  It does seem to us that even if (which is not admitted) the Minister had made a mistake in relaxing standards over the other two conservatories mentioned above, he would be entitled to correct the error and refuse consent.  As was said by Birt Deputy Bailiff in Caesar Investments Limited v Planning and Environment Committee [2003] JLR 566:-

"As to the argument on inconsistency, we agree that consistency is an important factor as described by Lord Widgery in Collis Radio (2) and Rokison, J.A. 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"

6.        Of course, as we have said, no mistake is admitted by the Minister and indeed even if we were to believe the Minister's decision to be mistaken, that would not allow us to substitute our own decision unless it could be shown that his decision was also unreasonable.  We have deliberated long and hard over the question of inconsistency.  The question may well be asked how the Minister could have approved a larger conservatory than the proposed conservatory at Fairfield for the property North Lynn Farm in St Martin in September 2003.  North Lynn is, as we have said, a listed building in the Green Zone.  That always creates a problem but if the Appellant is right then it would only be necessary to find somewhere in the Island a similar development to that which has been refused to obtain a grant of permission.  That cannot be, for the end result is chaos.

7.        It is apparent that little of the conservatory will be visible from the public road, but that is really not an argument.  If there is detriment to the original character of the building then that is a planning criterion which the Minister is well able to invoke.  In this case, he did so.  In the case of North Lynn, he did not. 

8.        Another argument raised by the Appellant is that the relevant Planning Officer failed to visit Fairview, but sent someone else to take photographs which she then used to make her decision.  It is argued that the officer had not yet seen the extension against which the conservatory would be built.  It is therefore argued that full consideration was not given to the application, fairly and open-mindedly.

9.        Apparently it was the case officer who made the suggestion to the Appellant as to where the extension (against which the proposed conservatory would be built) would be located.  It was her suggestion as to the design that led to the extension being built in that way.  The case officer in question is apparently a qualified architect with a special knowledge of historic building and conversion.  Guillard v The Island Development Committee [1969] JJ 1225 made it pellucid that while a site visit is not a prerequisite in every case, the Committee (in this case) "should have before it and be in a position to appreciate, all the information relevant and necessary to enable it to come to a proper decision on the application.  In some cases, this may require a personal visit to the site.  In other cases, the application and accompanying plans, together with the report of one of the qualified officers will suffice".

10.      We entirely agree with the view expressed by the Royal Court in Sunier v Planning and Environment Committee [2003] JLR N 49 that "there is a margin of discretion before a decision which the Court thinks to be mistaken becomes so wrong that it is, in the view of the Court, unreasonable". We do feel that a site visit should have been made when the re-consideration appeal was made by the case officer but the decision, based on a knowledge of the property by plans and photographs, is not so wrong as to make the decision unreasonable.

11.      An argument is taken by the Appellant that the reasons given in the first refusal notice are not precise.  The reason given is that "the proposed works would harm the architectural character and integrity of this traditional agricultural building, resulting in an unacceptable visual harm to the character of the countryside, contrary to Policy C6 of the Jersey island Plan 2002".

12.      Policy C6 is a policy that establishes a countryside zone.  This, amongst many other matters, establishes that "1)    a domestic extension may be permitted where the scale, location and design would not detract from, or unreasonably harm, the character and scenic quality of the countryside". Examples are given such as domestic extensions and alterations and limited ancillary or incidental buildings within the curtilage of a domestic dwelling. It is impossible for this Court to reach a decision different from that of the Minister and those advising him.  There is a reasoned conclusion and that conclusion has not been shown to us to have been reached other than in planning terms.  We agree with the Appellant that Policy C18 might have been mentioned as a ground in the refusal. The conditions imposed on the original development are clear and one of the conditions states:-

"The development hereby approved shall be carried out entirely in accordance with the plans and documents permitted under this permit.  No variations shall be made without the written approval of the Minister for Planning and Environment".

13.      As Mr Webster says in his first affidavit, Policy C18 deals specifically with proposals for change of use/conversion of traditional farm buildings.  The main purpose of allowing change of use or conversion of traditional farm buildings which have become redundant is to retain as far as possible their existing character and appearance.  We can but agree with the Solicitor General when she says that while C18 may have played its part in the original consent it is not relevant to the present appeal.  Of course it would have been helpful if it had been referred to in the refusal. If the case worker has decided that a conservatory is detrimental in this particular instance to the approved re-development we have no objection to that view.  We say again that it is not permissible for us to substitute our own opinion for that of the Minister or his advisers.

14.      We are very grateful to Advocate Livingstone for the way that this appeal case has been presented and while we sympathise with the clear frustration felt by the Appellant, we cannot, in law, reverse the decision and accordingly the appeal is dismissed.

Authorities

Planning and Building (Jersey) Law 2002.

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

McCarthy v Minister for Planning and Environment [2007] JRC 063.

Caesar Investments Limited v Planning and Environment Committee [2003] JLR 566.

Guillard v The Island Development Committee [1969] JJ 1225.

Sunier v Planning and Environment Committee [2003] JLR N 49.