[2008]JRC030
royal court
(Samedi Division)
25th February 2008
Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Allo and King. |
Between |
GJM Developments Limited |
Appellant |
And |
The Minister for Planning and Environment |
Respondent |
Advocate N. M. Santos-Costa for the Appellant.
HM Solicitor General for the Respondent.
judgment
the commissioner:
1. The appellant appeals against the decision of the respondent made on 31st August, 2007 to issue a modification notice ("the Notice") pursuant to the powers conferred upon the respondent by Article 10(2)(b) of the Planning and Building (Jersey) Law 2002 ("the 2002 Planning Law") requiring the appellant to demolish part of a building under construction.
2. The development with which we are concerned is that of certain former tennis courts situated in St Brelade's Bay ("the Land"). The Land was the subject of "in principle" planning permission for development granted on 29th September, 2005. Full permission was granted on 1st March, 2007 for the development of two adjacent three-bedroom houses pursuant to an application made by the appellant on 14th November, 2006. Within the language used on the application form, the appellant was "the applicant" for planning permission and Page Architects Limited ("the Architects") was "the architect or agent making the application". The appellant purchased the Land on 9th March, 2007.
3. Although the new houses have been correctly sited within the Land, the new house built on the eastern part of the Land (which we will refer to as the "New House") is 1.65 metres further south relative to its immediate neighbour to the east, namely a property known as "Marissa", because the position of Marissa was incorrectly depicted on the application plans.
4. In August 2007, the owner of Marissa and another neighbour notified the Planning Department that building work had started on the Land which they did not believe was accurate in comparison with the submitted plans and could not have been checked properly. They raised strong objections to the buildings as being constructed. Officers of the Planning Department attended on site to verify the objections and to make measurements of the buildings and their relationship to Marissa. As a result, the error in the depiction of Marissa on the application plans came to light.
5. This error arose out of an admitted mistake by the appellant's consulting land surveyors, Professional Hi-Tech Services Ltd ("PHT"), who had been engaged to perform a topographical laser survey of the Land and the neighbouring properties. PHT had no involvement in the planning application. The Notice requires the appellant to move the southern flank wall of the New House back towards Marissa by 1.65 metres. As a consequence, the New House will lose downstairs living space and an upstairs bedroom.
Grounds of appeal
6. There are effectively two grounds of appeal. The first ground is that neither the appellant nor the Architects knowingly or recklessly made a false or misleading statement, the same being a pre-requisite for the serving of a notice under Article 10(2)(b) of the 2002 Planning Law and if the activities of PHT, an independent contractor employed by the appellant, can be imputed to the appellant, then it did not knowingly or recklessly make any such statement or representation. The second ground is that the works required to be carried out pursuant to the Notice are manifestly excessive having regard to the extent of the misrepresentation. The first ground of appeal gives rise to an issue of construction which we take first.
Article 10 of the 2002 Planning Law
7. The provisions of Article 10 of the 2002 Planning Law in so far as they are material to the issue before us are as follows:-
"(1) if when making an application for planning permission a person knowingly or recklessly makes a false or misleading statement or representation or a statement or representation with a material omission the person shall be guilty of an offence and liable to imprisonment for a term of 2 years and a fine.
(2) if a person has made such a statement or representation and the planning permission has been granted, the Committee may -
(a) revoke or modify the permission; and
(b) if the development has been started or undertaken, serve a notice on the owner of the land to which the permission relates.
(3) The notice may require the owner of the land, within a period specified in the notice-
(b) to modify the development to the extent specified in the notice.
(5) the Minister may act in accordance with paragraph (2) whether or not proceedings have been taken in respect of the offence under paragraph (1)".
8. It was agreed by both counsel that "such a statement or representation" in Article 10(2) must refer back to the "statement or representation" in Article 10(1). Advocate Santos-Costa, for the appellant, argued that it was a pre-requisite of the exercise of the respondent's powers under Article 10(2) that the statement or representation should not only be "false or misleading" but also one that was given "knowingly or recklessly". He accepted that if Article 10(2) was construed in this way, it would limit very severely the circumstances in which the respondent could act to modify permissions granted on the basis of misleading or false statements or representations to circumstances in which the appellant could be shown by the respondent to have made such statements knowingly or recklessly. In this case, it was conceded that the appellant's application for planning permission did contain a false statement or representation but it was denied that this was made either knowingly or recklessly.
9. Unless interpreted in this way, he submitted that Article 10(5) would have no purpose and as a matter of statutory interpretation words within a statute should be assumed to have some purpose. Article 10(2) assumed that the circumstances in which the respondent's powers can be engaged are the same as those under which Article 10(1) apply, i.e. there has to be an offence under Article 10(1) before Article 10(2) can apply. Article 10(5) is therefore necessary to make it clear that the respondent can proceed to issue a notice under Article 10(2) whether or not proceedings for an offence under Article 10(1) had been taken. Without such a provision, the respondent would have to await the outcome of any proceedings for an offence, something over which he has no control.
10. Mr Santos-Costa further argued that it was relevant for us to take into account the previous state of the law. It was not disputed that under Article 8 of the Island Planning (Jersey) Law 1964 ("1964 Planning Law"), the Committee could not issue an enforcement notice unless the false or misleading statement had been made knowingly or recklessly. Clear words would be required, he submitted, for there to be a change in the pre-existing position.
11. The Solicitor General, for the respondent, submitted that the words "such a statement or representation" in Article 10(2) only refers back to the words "a false or misleading statement or representation" in Article 10(1). The words "knowingly or recklessly" in Article 10(1) categorise not the statement but the way in which it is made. Had the legislature intended to import into Article 10(2) not only the need for the statement/representation to be false or misleading but also for the person to act "knowingly or recklessly", it would have read "such a statement in such a way". She pointed out that the 1964 Planning Law dealt with offences and liability to the service of an enforcement notice in the same paragraph, whereas the 2002 Planning Law deals with them in separate paragraphs. The only inference to be drawn is that the legislature did not wish to perpetuate the limitation in the 1964 Planning Law which required knowledge or recklessness before a notice could be served. Instead, Article 10(1), which gives rise to criminal liability, requires a false or misleading statement or representation to be made knowingly or recklessly, and Article 10(2), which gives rise to the service of a modification notice, requires a false or misleading statement or representation to be made. It is entirely reasonable that there should be a mental element for a criminal offence which exposes the person making the statement to criminal prosecution, but no mental element should be required when the provision is not penal but regulatory, and the object is not to penalise the maker of the statement or representation, but to preserve the integrity of the planning system and the amenities of the Island.
12. We agree with the interpretation put forward by the Solicitor General. As made clear in McCarthy v Minister for Planning and Environment [2007] JRC 063, the 2002 Planning Law marks a watershed of which the Court should take cognizance. It imposes upon the respondent a wide duty of consultation with interested bodies and persons and provides for appeals against the respondent's decisions by third parties in certain circumstances. As Bailhache, Bailiff, said at paragraph 39:-
"all this serves to emphasise that in a crowded island it is now recognized that there are a number of stakeholders in the planning process".
13. The balance has shifted away from the rights of the landowner to a wider public interest which hitherto had not been given any significant weight. The restrictive interpretation urged upon us by Mr Santos-Costa would not be in keeping with the purposes of the 2002 Planning Law. The purpose of the 2002 Planning Law is to control development and preserve the amenities of the Island in the general public interest and those purposes would be defeated if the respondent could not serve a notice, even where a false and misleading statement or representation had led to the grant of an inappropriate permission, simply because the applicant himself had not been knowing or reckless. Neighbours will be deprived of their right to consultation in any real sense in that in reliance upon the plans submitted, they may make no submissions to the respondent and thus lose their right of appeal only to find that the permission has been granted on the basis of a false or misleading statement or representation.
14. In the event of planning permission being obtained as a result of a false or misleading statement or representation, who should suffer the consequences? Under the 1964 Planning Law, it was the neighbours and the wider public that suffered the (usually permanent) consequences of such a permission, unless a criminal offence had been committed by the landowner. Under the 2002 Planning Law, it is the landowner, in our view, who should suffer the consequences, relying on whatever remedies he may have against those who may have advised him. As it is the landowner who submitted the application with the false or misleading statement or representation, whether or not knowingly or recklessly, we see no injustice in that outcome as opposed to foisting on the community in perpetuity buildings which, but for the false or misleading statement or representation, would never have been permitted.
15. What is relevant to the respondent for the purposes of the 2002 Planning Law is whether or not a planning permission has been obtained as a result of a false or misleading statement or representation. Whether such a statement or representation was made knowingly or recklessly is of no relevance at all to him in planning terms. The Solicitor General argued that it was inconceivable that the legislature intended to give the respondent a power to be exercised in some cases and not in others if the planning result was the same. Article 10(2) was aimed at enabling the respondent to put right that which had gone wrong and it would be extraordinary if he could only do so in cases where very restrictive criteria (i.e. statements made knowingly or recklessly) applied but not others.
16. This interpretation of Article 10(2) does not make Article 10(5) redundant. There remains a connection between Article 10(1) and (2) and without Article 10(5), the respondent's ability to modify a permission granted on the basis of false or misleading statements or representations could still be impeded by the landowner for example arguing that implementation of the modification notice should await a decision to prosecute or arguing that implementation of the modification notice should await the outcome of any such prosecution.
17. We therefore conclude that it is not a pre-requisite of the exercise of the respondent's powers under Article 10(2) of the 2002 Planning Law that the false or misleading statement or representation should have been made knowingly or recklessly.
Recklessness
18. If we are wrong in the interpretation of Article 10(2) and knowledge or recklessness is a pre-requisite of the exercise of the respondent's powers, we now go on to consider whether the admittedly false statement or representation in this case had been made recklessly - it being conceded by the Solicitor General that it had not been made knowingly.
19. The Solicitor General submitted that "recklessly" for the purpose of the 2002 Planning Law is an ordinary word that should be given its ordinary meaning. The Oxford Concise Dictionary defines it as "lacking caution, regardless of consequences, rash; heedless of danger". Mr Santos-Costa submitted and we agree that for the sake of consistency, clarity and predictability it was desirable to give this expression the same or a similar construction wherever it appears in legislation, subject to the requirements of context and that we should therefore adopt the subjective definition approved by the Court in JFSC v Alternate Insurance Services Ltd [2007] JRC 048, namely that:-
"a person acts recklessly ... with respect to -
(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take that risk".
20. The Solicitor General did not assert that the appellant had been reckless, but did assert that the Architects, as its agent, had been for two reasons:-
(i) there was a lack of caution on the part of the Architects in simply taking on board the survey produced by PHT. The Architects should have recognized the discrepancy in the survey. We reject this assertion. There is nothing on the face of the survey that indicates in any way that a mistake had been made and it seems to us entirely reasonable for the Architects to rely on the work of PHT, a specialist professional firm skilled in this kind of work. As a general proposition, it seems to us that an architect is entitled to assume that other professionals involved with a project will perform reasonably satisfactorily (see Clerk & Lindsell on Torts 19th Edition paragraph 10 -177). Furthermore, it is clear that the courts will not find an architect guilty of negligence without evidence from those within the same profession (see Sanson v Metcalfe Hambleton & Co [1998] PNLR 542) and in this case no evidence whatsoever was adduced by the Solicitor General to support her assertion that the Architects should have recognized the discrepancy in the survey.
(ii) it was particularly reckless of the Architects in light of the fact that they had been the architects in a previous application for the appellant in which a number of anomalies and discrepancies had arisen, including the location of the neighbouring property, which needed addressing by revised plans. The appellant acknowledged that there had been difficulties in that previous application and that is why on this occasion it had arranged for a specialist survey to be undertaken by PHT - there had been no such specialist survey in the previous application. We do not regard this previous application as being supportive in any way of the Solicitor General's assertion that the Architects have been reckless in relation to the current application.
21. We have no evidence to support an allegation that the Architects have been negligent in the way that the application was handled. To support an allegation of recklessness, it would be necessary in our view for there to be evidence that the Architects were aware of a risk of there being a discrepancy in the survey prepared by PHT and had unreasonably taken the risk of submitting the application notwithstanding. There is no evidence to that effect and we therefore reject the submission that the Architects have been reckless.
22. The Solicitor General went on to argue that PHT had been reckless and that the appellant could not avoid its responsibility for the conduct of PHT, relying for this proposition on the authority of Till v Harbours and Airport Committee [1967] JJ 737. PHT has written to the Architects accepting that there were discrepancies in the survey and explaining how those discrepancies arose. At the time of the survey, the gable end of Marissa was obscured by ivy and in the process of drawing up the survey, it had made an incorrect assumption that the ridge of the building was in the middle of the gable. It apologised for the inconvenience caused and categorically stated that under no circumstances was it its intention to misrepresent the situation. Again, no expert evidence has been adduced by the Solicitor General as to whether PHT has been negligent, although it is clear that the discrepancies in the plans submitted are attributable to its work. There is, however, no evidence before us upon which we could characterise the conduct of PHT as reckless.
23. We agree with Mr Santos-Costa that the case of Till has no application to the present case. It was concerned with vicarious liability, the general rule that an employer is not responsible for the torts of an independent contractor and the exception to that general rule where the work is done in pursuance of a non-delegable statutory power or duty (see Clerk & Lindsell paragraph 6 - 52 to 6-67). The work done by the appellant and the Architects was not pursuant to any statutory power or duty.
24. We therefore conclude that the admittedly false statement or representation in this case was not made recklessly.
The Notice
25. On the basis of that it is not a prerequisite of the exercise of the respondent's powers under Article 10(2) of the 2002 Planning Law that the false or misleading statement or representation should have been given knowingly or recklessly, we turn to deal with the issue of whether the works required to be carried out pursuant to the Notice were manifestly excessive having regard to the extent of the misrepresentation. It would be helpful here to set out of the relevant terms of the preamble to the Notice:-
"2. The Minister, having examined the submitted and approved drawings for the construction of 2 dwellings....... and having visited the adjoining property Marissa..... considers that the position of the dwelling Marissa was misrepresented on the aforesaid drawings to such extent that the development under the above reference materially prejudices the enjoyment of the property.
3. The Minister avers that the permission would not have been granted in its approved form had the property Marissa been correctly represented, and that the former Planning Sub-Committee, in granting "in principle" permission on the 23rd of September 2005 was correct in requiring that the new development should extend no further than 3 metres beyond the rear wall of the house Marissa and placing a condition to that effect on the planning permit"
26. The Solicitor General submitted that following the test laid down in Token Limited v Planning and Environment Committee [2001] JLR 698, we cannot substitute our own decision in relation to the Notice. The Court must form its own view of the merits, but it must reach the conclusion that the respondent's decision to issue the Notice is not only mistaken but also unreasonable before it can intervene. That test has been endorsed by the Court of Appeal in Planning and Environment Committee v Le Maistre [2002] JLR 389 and Trump Holdings Limited v Planning and Environment Committee [2004] JLR 389.
27. Mr Santos-Costa argued that these authorities were all concerned with the refusal of planning permission and that there was no authority that the Token test applied to an appeal under Article 117(3) of the 2002 Planning Law under which this appeal is brought. The Court had the power to substitute its own decision for that of the respondent if it thought it right to do so. The Solicitor General pointed out that appeals under chapter 2 of the 2002 Planning Law can only be made on the ground that the action taken by or on behalf of the respondent was unreasonable having regard to all the circumstances of the case (Article 109(1) of the 2002 Planning Law), the same ground upon which appeals could be brought under the 1964 Planning Law and the same ground which was under consideration in Token and the subsequent Court of Appeal decisions. It is clear that we are bound by the Token test.
28. Mr Santos-Costa argued that the works to be carried out are manifestly excessive in all circumstances for the following reasons:-
(i) examination of the progress of the various plans prior to the granting of planning permission shows that the respondent's prime focus was on the design of the new houses, not on their relationship with their neighbours.
(ii) if planners are really concerned about protecting neighbouring amenities, they would impose conditions expressly to that effect. The "in principle" permission granted on the 23rd of September 2005 had imposed a condition that the two units should be illustrated 4 metres further north into the site in order to more closely match the layout of the adjoining units and the character of the area. There was no such condition when full permission was granted on the first of March 2007.
(iii) the court must consider the balance of prejudice. We were told that there is a six-foot fence, an aviary and a plum tree between the New House and Marissa which obscure the effect at least of the ground floor of the New House-on our site visit the fence and a tree were certainly evident. On the question of light, the appellant argued that Marissa is really affected by the four storey hotel building to its south. In its view, the prejudice to Marissa in terms of light caused by the New House is that its garden will lose 15 minutes of sunlight during sunset in the summer and considerably less in winter. In contrast it will cost the appellant an estimated £209,000 in terms of actual building works and the diminution in value of the New House in order to comply with the Notice.
(iv) it would be possible to mitigate the effect on Marissa by setting back the first floor of the New House only (thus losing one-bedroom) but leaving the ground floor unaffected. This would reduce the total estimated cost to the appellant to £101,000. Mr Santos- Costa also raised what he claimed was a delay in the Planning Department responding to letters from the neighbours between the 8th August and the 24th August, 2007 as a result of which the appellant claims to have wasted £7,500 in costs.
29. Article 10(10) of the 2002 Planning Law provides that action taken by the respondent under Article 10 does not give any person the right to claim compensation in respect of any loss or damage the person may suffer as a result of the action, but are the financial implications to the appellant in complying with the Notice in terms of cost and diminution in value material considerations which the respondent should take into account in issuing the Notice? A similar issue was considered in the case of R v Secretary of State for Environment, Transport and the Regions ex parte Alnwick District Council [1999] 79 P & CR 130 which was concerned with the exercise by the Secretary of State of his statutory powers to revoke and modify planning permissions and whether the financial impact on the local authority of paying compensation to the developer was a material consideration to be taken into account. Quoting from the judgement of Richards J.:-
"In the exercise of their functions under sections 97 and 100 of the 1990 Act with regard to the revocation and modification of planning permissions, local planning authorities and the Secretary of State are required to have regard to "material considerations" (see section 97 (2)). What is capable of amounting to a material consideration for this purpose must in my view be the same as in relation to the initial determination of planning applications, i.e. the "material considerations" referred to in sections 70 (2) and 54A. Although the courts have adopted a flexible approach towards the concept, a consideration must in broad terms be a "planning" consideration in order to be material for that purpose. Any consideration which relates to the use and development of land is capable of being a planning consideration (see Stringer v Minister of Housing and Local government [1970] 1 WLR 1281 at 1294). It follows that financial consequences are capable of amounting to a material consideration in so far as they relate to the use and development of land. R. v Westminster Council, ex parte Monahan is an example. The need for a connection with the use and development of land was helpfully spelled out in the application of that decision in Northumberland County Council v Secretary of State for the Environment.
It also follows, however, that in so far as financial consequences do not relate to the use and development of land, they are not capable of amounting to material considerations. In my view that is fatal to the general proposition for which Mr Hoggett contends, that the cost to the local authority may be taken into account irrespective of land-and use consequences. I see no warrant for treating cost as a permissible consideration even were it is not a "material consideration" within the meaning of the legislation. It is wholly consonant with the statutory purpose that decisions under sections 97 and 100 should be guided only by planning considerations."
30. Although Article 10(2) of the 2002 Planning Law is silent as to the considerations which the respondent should take into account when issuing a notice, in our view it follows that, to be wholly consonant with the purposes of the 2002 Planning Law, they must be planning considerations. The main consideration is whether planning permission would have been given in that form if the true position had been stated or made clear and, if not, what steps should be taken to modify the permission to the form that would have been permitted. The financial implications involved in rectifying the position are not relevant to this process. They are not planning considerations. It seems to us that this has to be the correct approach because if financial implications were material considerations for the issuing of a modification notice in these circumstances, it would mean that the greater the false or misleading statement or representation that required rectification, the less likely it would be to be rectified, which cannot have been the intention of the legislature. Accordingly, in considering the balance of prejudice as requested by Mr Santos- Costa, we find that the financial implications to the appellant of complying with the Notice are not material considerations which we should take into account.
31. We have considered the arguments put forward by Mr Santos-Costa in relation to the focus of the respondent and the lack of an express condition. It is perhaps not surprising that the respondent's focus would appear to have been that of the design of the new houses but we can see that the imposition of an express condition in relation to Marissa may have brought this discrepancy to light at an earlier stage. However to accept these arguments is to accept that the respondent can only require modification where he can demonstrate a concern on his part evidenced through his dealings with the applicant or through the imposition of conditions. We do not think we should be persuaded down this road for the following reasons:-
(i) it is fundamental to the planning process that applications for planning permission should not contain false or misleading statements or representations.
(ii) it is not just the respondent who relies on their accuracy. Neighbours and others are now stakeholders in the planning process and they too rely upon the accuracy of the plans submitted.
(iii) concerns may not be expressed by the respondent or other stakeholders in the planning process precisely because of the false or misleading statements or representations contained in the application.
As stated above, the real issue is the effect of the false or misleading statement or representation in planning terms.
32. We agree that the modification ordered by the respondent must be proportionate in planning terms and in this respect it is relevant that:-
(i) The Notice is already a compromise in that there was a further discrepancy in the survey produced by PHT which showed the height of Marissa incorrectly to the extent of 50 centimetres (a foot and a half). The respondent did not specify a height reduction of the New House by this amount. Furthermore the more westerly of the two new houses was not affected by the Notice.
(ii) The respondent did receive and consider representations from the appellant as to the terms of the Notice before it was issued.
33. We can only consider the merits of the appellant's proposal to cut back on the first floor and leave the ground floor as constructed, if we have grounds to intervene with the respondent's decision to issue the Notice in its current terms. For this we must come to our own view as to the merits of that decision and determine whether it is not only mistaken but also unreasonable. The admittedly false statement or representation in relation to the position of the New House as against Marissa is very material. 1.65 metres equates to 5'4". The respondent would not have given planning permission for the New House or any part of it to be built in its current position, if the plans had shown the true relationship between these two properties. The prejudice to Marissa is not limited in our view to the first floor. The neighbours would no doubt have objected to the application if the plans had shown the true relationship between these two properties as they did when they saw the actual position of the New House under construction.
34. We find that the respondent cannot be mistaken in seeking to have the New House set back to the line that he would have approved if the plans had shown the true position. It comes down to the issue of who should bear the consequences of the admittedly false statement or representation. Having regard to the purposes of the 2002 Planning Law and the watershed it represents, we conclude that it is just for the consequences to be borne by the appellant and that in planning terms it is proportionate and reasonable that the New House should be so set back.
35. The appeal therefore fails.
Authorities
Planning and Building (Jersey) Law 2002.
Island Planning (Jersey) Law 1964.
McCarthy v Minister for Planning and Environment [2007] JRC 063.
JFSC v Alternate Insurance Services Ltd [2007] JRC 048.
Clerk & Lindsell on Torts 19th Edition.
Sanson v Metcalfe Hambleton & Co [1998] PNLR 542.
Till v Harbours and Airport Committee [1967] JJ 737.
Token Limited v Planning and Environment Committee [2001] JLR 698.
Planning and Environment Committee v Le Maistre [2002] JLR 389.
Trump Holdings Limited v Planning and Environment Committee [2004] JLR 232.
R v Secretary of State for Environment, Transport and the Regions ex parte Alnwick District Council [1999] 79 P & CR 130.