27th November 2008
J. A. Clyde-Smith Esq., Commissioner, and Jurats Bullen and King
Mrs Susan Kerley
The Minister for Planning and Environment
Miss Jenni Riggall
The Solicitor General appeared for the Minister.
The Appellant and the Applicant appeared in person.
1. This appeal is brought by the appellant under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") against a permission given by the respondent (who we will refer to hereafter as "the Minister") to the applicant for the construction of a farm outbuilding and temporary timber accommodation on fields 1566, 52 and 53 in St Lawrence ("the site") which lie within the Countryside Zone and Water Pollution Safeguard Area under the Island Plan approved by the States on 11th July, 2002. The Appellant resides on land part of which is within 50 metres of the site.
2. It is helpful to set out at this stage the principal policies under consideration.
Island Plan policy G2
3. This sets out general development control criteria which apply across the Island to all types of development. The listed criteria include, amongst other considerations, the following criteria which concern the need for applicants to demonstrate that a proposed development:-
(i) will not unreasonably affect the character and amenity of the area;
(ii) will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations;
(iii) will not have an unreasonable impact on agricultural land.
Policy C6 - Countryside Zone
4. This policy concerns development within the Countryside Zone. Policy C6 states that within this zone there will be a high level of protection given and there will be a general presumption against all forms of new development for whatever purpose. However, certain types of development may be permitted where the scale, location and design would not detract from, or unreasonably harm the character and scenic quality of the countryside. Amongst other types of development this includes:-
(i) new development on an existing agricultural holding which is essential to the needs of agriculture in accordance with Policies C16 and C17.
5. Policy C6 goes on to state that "in all cases, the appropriate tests as to whether a development proposal will be permitted will be its impact on the character of this Zone ... and wherever possible, new buildings should be sited next to existing ones or within an existing group of buildings".
6. The Policy finally lists types of development which, for the avoidance of doubt, will not normally be permitted in this zone. Included in this list (sub-section f) is the following statement:-
"Applications for the development of new dwellings will not normally be permitted unless it is demonstrated, to the satisfaction of the Committee, that the development is essential to meet agricultural needs and cannot reasonably be met within the built-up area or from the conversion/modification of an existing building".
Policy C16 - New Agricultural Buildings and Extensions
7. Policy C16 states that there is a presumption against proposals for new agricultural buildings, unless it can be demonstrated satisfactorily that the proposal amongst other considerations:-
(i) is essential to the needs of agriculture; and
(ii) can not be met in existing buildings elsewhere.
8. Where the respondent accepts the justification for new building, it shall amongst other matters:-
(i) be located within or adjacent to an existing group of buildings, unless it can be demonstrated that a more isolated location is essential to meet the needs of the holding;
(ii) not unreasonably affect the character and amenity of the area.
Policy C17 - New Dwellings for Agricultural Workers
9. This policy states that there is a presumption against proposals for new dwellings in new and permanent buildings, unless it can be demonstrated satisfactorily that the proposal amongst other considerations:-
(i) is essential to the proper function of the farm holding;
(ii) cannot be provided on a site within the boundary of the built up area and still meet the functional need;
(iii) cannot be provided by rearranging, subdividing or extending an existing building on the holding;
(iv) where possible is located within or adjacent to the existing farmstead, or other farm buildings on the holding;
(v) is of a size appropriate to its functional need;
(vi) will not unreasonably affect the character and amenity of the area;
(vii) will not have an unacceptable visual impact;
(viii) will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations.
Planning History/other sites
10. The permission forming the subject of this appeal follows a history of unsuccessful attempts by the applicant to establish a sheep farm and associated dwelling on two other sites.
11. In April 2003, the applicant submitted an application for an 11 vergée sheep farm with associated two bedroom cottage on two fields in St John. Permission was refused by the Planning Sub Committee of the former Environment and Public Services Committee in June 2003, on the grounds that the proposal was contrary to the Island Plan Policies C5 (Green Zone) and C17 (New Dwellings for Agricultural Workers) in that there is a presumption against new development in the Green Zone and the Committee was not satisfied that there was a proven/essential agricultural need for a dwelling on the site.
12. In October 2003, the applicant submitted an application for a 23 vergée farm and associated two bedroom cottage on fields in St Saviour. The application was accompanied by a Business Plan for the proposed enterprise. This application was refused on the grounds that the proposal was contrary to the Island Plan Policies C6 (Countryside Zone) and C17 (New Dwellings for Agricultural Workers) in that there is a presumption against development in the Countryside Zone and the Committee was not satisfied that there was a proven/essential agricultural need for a dwelling on the site.
13. That decision was reconsidered in March 2004. Whilst noting the 'passion and enthusiasm' of the applicant, the Committee considered that the need for a dwelling on the site was not proven, particularly as the applicant intended to continue in her existing occupation as a radiographer at the hospital on a part time basis.
14. This decision was further reaffirmed by the Committee in June 2004, following the consideration of comments by the States Veterinary Office on the proposal. Although noting that the States Vet had written to the applicant stating that it is essential, for animal welfare reasons, that an appropriate responsible adult was present at all times on the premises where the animals are born and reared, the Committee noted that this did not tally with the applicant's stated intentions to continue her other employment elsewhere.
15. In July 2004, the applicant appealed unsuccessfully to the Board of Administrative Appeal. In January 2005, Deputy F J Hill, acting on behalf of the applicant, requested that her application be further reconsidered on the basis of a revised business plan and further supporting information, which he contended demonstrated a proven need for a dwelling to serve the holding. The Livestock Adviser, in outlining his support for the applicant's agricultural business, explained that the revised business plan demonstrated the possibility for having a long term profitable business but that the 'possibility' of a long term business is not the same as an 'actual' profitable business producing enough profit for her to become wholly or mainly employed in agriculture as then defined under 'bona fide agriculturalist'.
16. The Committee addressed the issue of when a new entrant into agriculture should be given permission to build an agricultural dwelling in the countryside as part of their business development; specifically whether it should be when that new entrant had proved on paper that his or her proposals are viable or when he or she had grown that business over a number of years and demonstrated that they could run a viable and sustainable business. Interestingly, the Livestock Adviser also referred to the practice in the United Kingdom of granting permission for temporary accommodation so that a new entrant could live on site and develop their business. The Committee maintained its refusal as it was concerned with the issue of precedent and, although impressed by the applicant and of the view that the business plan was sound, was reluctant to allow a person who was not primarily involved in commercial agriculture to construct a new dwelling in the Green Zone.
17. This decision was also taken to the Board of Administrative Appeal in May 2005. The Board asked the Committee to reconsider its decision to ensure that it was satisfied that it had been properly made and that as part of this exercise it should address certain key questions which were put to it. This the Committee did and the Board was satisfied that the Committee had given sufficient consideration to the Board's findings. The appeal therefore failed.
Rural Economic Strategy
18. In 2005, the States of Jersey approved the Rural Economic Strategy which provided a new definition of agriculturalists and policies to allow smallholders (i.e. small and part-time farmers) to benefit from government support and to gain entry into the industry. Up until that time, an agriculturalist was defined as someone who was mainly or wholly employed in agriculture or horticulture. New definitions were required to determine inter alia treatment under planning legislation. We set out the relevant part of the Strategy as follows:-
A bona fide agriculturalist is someone employed in land dependent primary production, obtaining income from agriculture or horticulture which meets a target level of economic activity as defined by the Strategy (see below).
A Smallholder (part time or small scale agriculturist) is a person actively participating in land dependent primary production which meets a reduced level of economic activity compared with a bona fide agriculturalist.
The measurement of economic activity will be based on the farm's Total Gross Margin which will be calculated using average industry gross margins for each crop/livestock enterprise on the unit. Taking into account the views expressed during consultation the economic activity required to qualify as a bona fide agriculturalist is proposed to be £40,000 total gross margin* per annum. This threshold will be met by approximately 35 dairy cows or 57 vergées Jersey Royal potatoes or 90 vergées of courgettes. The lower threshold to qualify as a smallholder is proposed to be £5,000 total gross margin* per annum. By introducing the category of Smallholder the Strategy introduces a new entry route into the industry.
The difference between the entitlements of a bona fide agriculturalist and a Smallholder will be:
· Only bona fide agriculturalists using the above definitions will be considered as agriculturalists in respect of the Island Plan and development control considerations.
· Both bona fide agriculturalists and Smallholders can occupy agricultural land under the Agricultural Land (Control of Sales and Leases)(Jersey) Law 1974. However, taking into account the views expressed during consultation, Smallholders will be restricted by only being allowed to occupy up to 20 vergées of land. Beyond this they will be required to occupy any additional land under a temporary licence and this must be linked to a business plan that is designed to move them up to the category of bona fide within 3 years.
· Undertakings below the £5,000 gross margin threshold can only occupy agricultural land covered by the 1974 Law under a temporary licence. They will not qualify for the Single Area Payment.
· If a business or person in either category falls below the appropriate minimum annual threshold they would be given a further 2 years to achieve the appropriate gross margin and retain their status.
A Smallholder can become bona fide by providing 3 years trading accounts for their business (which show at least one year in profit) with the final year of trading demonstrating they have achieved the required level of economic activity to qualify as a bona fide agriculturalist. The clarification of these definitions will:
· Encourage new entrants into the agricultural industry.
· Enable Smallholders to benefit from subsidy payments.
· Provide a clear route for a smallholder to become a bona fide agriculturalist.
· Drive the creation of new businesses and diversified activity.
· Limit area payments to active agricultural businesses.
*Gross Margin is a measure of the value of the crops and livestock produced less the variable costs involved in producing them. This is an industry wide measure for which there are standard values which can be applied."
19. Under the strategy a group was established comprising the Director of Environmental Management and Rural Economy, the Livestock Adviser and the Horticultural Adviser and Statutory Services Officer to advise the Minister. We will refer to them as RES.
20. The applicant, whilst unofficially recognised by RES as a smallholder, and thus able to occupy agricultural land, is not a bona fide agriculturalist for planning purposes under the RES strategy and would not be until she achieved the total gross margin per annum of £40,000.
Planning History/Current Site
21. On 26th October, 2006, the applicant applied for permission in principle to "create a new farm, including stable type animal infrastructure and orchard. Single storey 2 bedroom dormer cottage on field 53" (we will refer to this as "the 2006 Application"). The layout, but not the dimensions, of the proposed buildings were shown on the plans. Originally the buildings were sited on field 53 close to the road, the appellant's property and a cluster of neighbouring buildings but, in view of a restrictive covenant in favour of the land occupied by the appellant, they were moved to the north west of the site in field 1566.
22. The Minister sought the advice of RES who considered the applicant's business plan, which, because it involved an orchard that required time for trees to mature, extended to six years. They found the plan to be viable and sustainable (although it would not achieve the threshold to enable her to achieve bone fide agricultural status) and fully supported the development of a sheep, chicken and apple orchard business on the site and that part of the application which applied to animal housing, which they accepted was essential. They did not support the construction of a permanent dwelling prior to her achieving bone fide status.
23. The application was recommended for refusal by the Planning and Environmental Department. The Department's objection related not to the creation of the farm but to the proposed dwelling. It concluded that the applicant did not meet the economic threshold of a bona fide agriculturalist at which point a dwelling could be considered, and therefore that it was not essential to the proper function of the farm holding required by Policies C6 and C17.
24. Following a public meeting on 16th February, 2007, which was well attended by supporters and objectors (including the appellant) alike, the Minister reserved his decision for further consideration. On 3rd July, 2007, he granted permission in principle to the applicant to construct stable type animal infrastructure in Field 1566 and to form an access across Fields 53 and 1566. Permission for the cottage was not granted.
25. On 10th July, 2007, the Minister decided to approve a dwelling in principle (no permit being issued), subject to the applicant demonstrating that she could attain bone fide status in line with the RES criteria by meeting the following tests:-
(i) That a minimum of £40,000 gross margin for the business is reached;
(ii) that it is demonstrated that the margin can be maintained for three years by a sustainable business plan;
(iii) that a minimum of 50% of the threshold must be derived from sheep or other agricultural activity where best practice demonstrates a need for a dwelling on the site of the farming operation.
The dwelling was to be no more than 120 square metres and constructed of granite and of traditional design.
26. On 13th August, 2007, the applicant wrote to the Minister requesting that in order for her to endeavour to fulfil these parameters, she should be granted temporary accommodation in line with UK practice. She suggested a timber cabin in a corner of the field adjacent to the proposed farm building, consisting of four rooms which could be delivered flat-packed and assembled on to breeze blocks without the need for permanent foundations. This would enable her to manage the welfare of her livestock in the safety and security of the building.
27. The Minister responded to the applicant on 4th September, 2007, through a letter written by Mr Thorne, Director of Planning, saying that he would support the erection of temporary habitable accommodation, provided that it was well designed and subject to a time restriction sufficient to enable the applicant to achieve the gross margin thresholds and enabling him to require removal in the future if those thresholds were not met.
28. On 20th November, 2007, the applicant submitted a further application, which is the subject of this appeal, for the construction of the farm outbuilding, the establishment of the orchard and field entrance improvements and temporary timber accommodation. We will refer to this as "the 2007 Application". The dimensions of the proposed buildings were shown on the plans.
29. The application was accompanied by a revised business plan (again for a six year period) which was considered by the RES group. They found the revised plan to be generally optimistic in both assessing income and calculating costs but they found that the overall plan seemed to be thoroughly researched and had sufficient income generation to meet reasonable cost increases and her obligations. Furthermore the plan indicated that the gross margins for bona fide status could be achieved.
30. While stating that the provision of accommodation on an agricultural unit for a person who is yet to qualify as a bona fide agriculturalist and who has not previously proved that they have the ability to run and maintain a profitable and sustainable agricultural business was not endorsed in the RES policies approved by the States in 2005, the RES group recognised the following:-
(i) That the applicant had thoroughly researched her proposed business over a number of years;
(ii) she had produced a 6 year business plan which indicated in future the gross margin of her proposed smallholding should enable her to qualify as a bona fide agriculturalist within 4 to 6 years as long as the financial targets in the plan were achieved;
(iii) that a temporary dwelling on the proposed smallholding was desirable to allow the applicant to manage her unit and to maintain the welfare of her animals;
(iv) that because of the nature of the application, no precedent would be set for similar applications as regard the RES agricultural planning policy.
The RES group therefore advised that it had no further objection to the approval of the application.
31. The Planning and Environment Department, noting that the principle of the erection of the farm infrastructure and the proposed field entrance had been previously established in the 2006 Application and the advice of the RES group, recommended approval of the application subject to conditions in relation to the temporary dwelling which were incorporated in due course into the permit.
32. A public meeting was held on 15th February, 2008. Again it was well attended by supporters and objectors (including the appellant) and at the end the Minister summed up as follows:-
"The Minister, in summarising the main issues, recognised that a model of sustainability had been proposed. Had that model had already come into being then the present application would raise little problem. However, it had not and for permission for a temporary structure to be granted, extraordinarily careful consideration would need to be given to the detailed conditions it would be necessary to impose in order to safeguard against insincere applications by those simply wishing to secure a home in the countryside. Account also had to be taken of how best to assure that the removal of all traces of the dwelling and other buildings in the event that the business failed. Consideration needed to be given to the need to install mains drains and close examination made of the proposal for a new access road. Were the proposed buildings to house the animals and equipment on too large a scale? It was necessary to ask all these questions - and more - not least to ensure that the neighbouring properties were not imposed upon or otherwise unreasonably affected. Full landscaping details would be required in due course. The Minister proposed that any proposal to impose conditions in the event that the application were to be supported should be scrutinised by the Law Officers' Department prior to completion. Although there might ultimately be financial cost associated with meeting such conditions as could be imposed, it was for the Applicant to decide whether to accept such risk. The Minister confirmed that the reported rejection by the Applicant of offers of alternative accommodation was of some concern and clarification of the circumstances and nature of this aspect of the application was requested."
The Minister, having taken all the above-mentioned considerations into account, reserved his decision but nevertheless indicated that he would be minded in principle to support the application, subject to satisfactory resolution of the issues involved (which might include further consideration of providing alternative accommodation off site). It was also apparent that some further detailed financial analysis might need to be undertaken. (Emphasis as in minutes).
Offer of alternative accommodation
33. The appellant lives in the property immediately adjacent to the proposed new entrance to the site and had offered to lease a cottage, which faces the site, to the applicant for the full 8 years required to enable her to achieve her bona fide agricultural status under the RES criteria at a rental of £4,000 per annum (£32,000 over the 8 year period). The appellant's position, set out in her letter dated 31st December, 2007, was that whilst she was 'delighted' that the applicant was farming the land, she objected very strongly to any dwelling, temporary or otherwise, without the RES criteria being fulfilled.
34. This issue was considered by the Minister at a meeting on 5th March, 2008, attended by the applicant and two officers of the Department. The Minister expressed the view that the offer was a good one. He inquired as to the cost of erecting the proposed temporary building and why the applicant felt she could not take up the offer. The applicant did not at that stage know the cost likely to be incurred in the temporary dwelling but could not take up the offer as there was no certainty that it would be honoured for the full 8 years, i.e. she would have no security of tenure. The Environment department had confirmed that she needed a dwelling on site and this had been endorsed by RES. Even though the cottage was opposite the entrance she considered it to be too far from the proposed main farm building. The minutes of the meeting show that the Minister, after due consideration, confirmed that the applicant would be allowed to have a temporary dwelling on her site but it must be a truly temporary structure, i.e. constructed on pads which must be removed should the enterprise fail with no concrete base which would be viewed as a permanent structure. The minutes note that it was the applicant's request for a truly temporary structure that justified the Minister's ruling in her favour and not instead advising that the offer from the appellant should be pursued.
35. The permission, which is the subject of this appeal, was issued on 16th May. 2008. and was for "construct farm infrastructure, orchard, field entrance improvements and temporary timber accommodation on Field 1566 to be carried out at the site". We set out the relevant conditions with their respective reasons below:-
The temporary dwelling hereby approved (which shall be constructed on removable base pads) shall be for a period of 6 years from the date of this permission. If by that time the required gross margins from the agricultural practices being undertaken on site have not been achieved, then the dwelling shall be removed and the land reinstated to its previous condition in accordance with a scheme of works to be submitted to and approved in writing by the Planning and Environment Department before the expiry date. The approved reinstatement scheme shall be implemented in full as soon after the expiry date as is reasonably practicable.
The temporary building is unsuitable to form part of the permanent development of the area and to enable the Planning and Environment Department to give further consideration to the building's retention at the expiration of this permission having regard to the circumstances existing at the time in accordance with the requirements of Policy C17 of the Adopted Island Plan 2002.
Pursuant to Condition 1 above, if the required earnings have been achieved within 6 years, then the gross margins must be maintained for a further 2 years from a date to be agreed in writing with the Planning and Environment Department. Should the required earnings be achieved for 3 consecutive years to the satisfaction of the Planning and Environment Department, then the temporary condition will be removed.
For the avoidance of doubt and to enable the Planning and Environment Department to maintain control over the development in accordance with the requirements of Policy C17 of the Adopted Island Plan 2002.
The audited accounts from the agricultural business shall on an annual basis be submitted to the Planning and Environment Department for information and monitoring. Prior to the development commencing, a date for the annual submission shall be agreed in writing by the Minister for Planning and Environment.
For the avoidance of doubt and to enable the Planning and Environment Department to maintain control over the development in accordance with the requirements of Policy C17 of the adopted Island Plan 2002.
This permission shall inure for the benefit of Jenni Riggall only and shall not inure for the benefit of the land. In the event of the applicant ceasing to occupy the site, the dwelling shall be removed and the land shall not be used for any purpose other than the lawful use that existed prior to the determination of the application.
This permission is only granted in view of the exceptional circumstances of the applicant in accordance with the requirements of Policy C17 of the Adopted Island Plan 2002.
The occupation of the dwelling hereby approved shall be limited to a person solely or mainly employed or last employed in agriculture, as defined in Article 1 of the Planning and Building (Jersey) Law 2002, or a dependent of such a person residing with him or her, unless otherwise agreed in writing with the Minister for Planning and Environment.
There is a presumption against residential development in the countryside unless it can be shown to be essential to meet a desirable agricultural need. The dwelling has been approved to meet such a need and it is necessary to restrict occupancy to ensure that the new dwelling remains available to meet agricultural needs in the future in accordance with the requirements of Policy C17 of the Adopted Island Plan 2002."
The Solicitor General accepted that the conditions needed some clarification (which we deal with below) but the clear intention was that the permission for the farm infrastructure and outbuildings was permanent and inured for the benefit of the land whilst the permission for the dwelling was temporary, was personal to the applicant and did not inure for the benefit of the land. Conditions 1 and 2 together allowed the temporary building for up to 8 years.
36. The appellant appealed against that part of the permission granting consent to a temporary dwelling and, with the leave of the Court granted on 12th September, 2008, to the size of the proposed farm outbuilding.
37. An appeal under chapter 2 of the Planning Law can only be made 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 Court cannot substitute its own decision. It must come to its own view of the merits in order to determine whether the decision appealed against is not only mistaken but also unreasonable before it can intervene (see Token Limited v Planning and Environment Committee  JLR 698). 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 (Sunier v Planning and Environment Committee  JLR N 49).
38. The Solicitor General reminded us of the following:-
(i) The Minister's discretion is not fettered by previous decisions. Although consistency is important, the Minister may adopt a different approach if that is reasonable (Caesar Investments Limited v Planning and Environment Committee  JLR 566.
(ii) The Minister, in determining an application, must take into account all material considerations (Article 19(1) of the Planning Law), but the weight to be attributed to such considerations is a matter for him (Bolton Metropolitan Borough Council v Secretary for the Environment (1991) 61 P. & C.R. 343).
(iii) The decision maker need not adhere slavishly to policy as to do so would be in breach of the requirements of Article 19(1) of the Planning Law which requires the Minister "to take into account all material considerations". This is amplified by the provisions of Article 19(2) and (3) whereby in general the Minister shall grant planning permission that is in accordance with the Island Plan but should not grant planning permission that is inconsistent with the Island Plan unless satisfied that there is sufficient justification for doing so.
(iv) The precise meaning to be given to a provision of planning policy is primarily a question for the Minister, as long as the meaning is one that the policy is legally capable of bearing and is not a perverse meaning (R v Derbyshire C.C. ex parte Woods (1997) JPL 958).
(v) The Minister needs to be satisfied that he has available the information necessary to reach a conclusion on the issues before it (Secretary of State for Education and Science v Tameside MBC (1977) AC 1014 at page 1065.
39. The appellant's objections stem not so much from her private interests as adjoining occupier (her property being some distance from field 1566), but from the interests of the Island as a whole. She submitted that this was a permission for a permanent development of a dwelling and unnecessarily large farm buildings in the Countryside Zone, contrary to Policies C6, C16 and C17 by someone who is not a bona fide agriculturalist under the RES criteria based upon an unproven but optimistic business plan. The dwelling would be permanent because, although described as temporary, this was based upon the period of occupancy not the structural nature of the building. In reality, it would never be demolished. If the criteria were not met, the applicant would resist enforcement of any demolition notice over what would then be her home, relying on her rights to home and family life under Article 8 of the Convention. She had understood from the Agricultural Section of the Environment Department that this had been tested in the courts in relation to farm buildings and found to be against farmers Convention rights.
40. Her submissions can be summarised as follows:-
(i) The Minister failed to take full account of Policies C6, C16 and C17 of the Island Plan.
(ii) The Minister failed to give proper consideration to the appellant's offer of accommodation adjacent to the site which negated the need for a dwelling to be built.
(iii) In determining the application, the Minister failed to take into account the requirements of the RES strategy under which only bona fide agriculturalists can be considered under the Island Plan under development control regulations.
(iv) The Minister gave disproportionate consideration to the applicant's unproven commitment to become a bona fide agriculturalist and to the applicant's questionably achievable and unproven business plan.
(v) The Minister failed to take due cognisance of the decisions of his predecessor Planning Committees which refused two planning applications for developments which were materially the same.
(vi) The Minister granted permission for a dwelling which he described as being temporary, the description of temporary being based on the period of occupancy, not on the structure of the building.
(vii) The Minister modified and personalised the policies of the Island Plan and the RES strategy to enable an individual, not wholly or mainly employed in agriculture, to build a dwelling and extensive outbuildings on agricultural land in order that she could follow a chosen lifestyle.
(viii) The farm outbuilding went far beyond what was 'essential' for the current farm undertaking.
(ix) The decision of the Minister was predetermined.
41. We take the appellant's appeal in relation to the farm outbuildings first. In the report of the Planning and Environment Department prepared for the purposes of the 2006 Application, it noted that as that was an in principle application, there is no indication of scale in relation to the proposed farm outbuildings. Despite this, the Department assumed that the livestock would be housed in agricultural structures of a similar scale found across the Island and indeed as could be seen in an adjacent field to the west, which contained a number of chicken sheds. In its view, similar structures would not harm the appearance of the area in accordance with Policy C6.
42. The 2007 Application with its enhanced business plan provided for a U shaped stable building, some 33 metres long, 20 metres wide and just under 4 metres high. It is certainly a larger building than the Department appear to have envisaged in its report on the 2006 Application.
43. The difficulty for the appellant is that the decision under the 2006 Application to approve in principle stable type animal infrastructure has not been appealed. It was this decision that opened the door to the establishment of a farm on the site and which brought with it the inevitable impact such an undertaking would have on the Countryside Zone. Once that decision is made, then, as advised by the RES Group, stables not just for shelter for the livestock but for lambing, incubating, processing and so on becomes essential. The extent to which the proposed buildings are essential is very much a matter of expert advice. The Minister took advice, in particular from the RES group which in turn consulted the States Vet. The applicant had also taken expert advice on the farm buildings. The advice of the RES group in relation to the farm building is set out in its report as follows:-
"'The proposed layout of Miss Riggall's farm infrastructure is of a sufficient size to meet the husbandry and welfare requirements of the livestock enterprises in her current business plan. In particular the open fronted sheep pen will have a floor area of 137m2 sufficient to accommodate 80 pregnant ewes together with the provision of individual lambing pens and sheep handling facilities. The stable type accommodation (10 units) will be used for the storage of animal feed stuffs, as an office and storage of veterinary supplies, a meat storage area, an apple juice storage area, a poultry plucking and processing area and for chick incubation, chick rearing and meat bird accommodation with 2 units for machinery storage. The area and infrastructure of the buildings proposed for Field Farm, St Lawrence would seem to be designed to meet the requirements of Miss Riggall's business plan and should provide a good working and animal welfare friendly environment2".
44. The appellant did not oppose the principle of farm buildings, but in her view the applicant's farm undertaking could operate, certainly in the short term, with much reduced and simpler buildings. She accepted however that she is not an agricultural expert and she adduced no expert evidence to support her view.
45. Whatever view the Court may have as to the size of the farm outbuildings, it has no grounds upon which it can find that the decision of the Minister as to what is essential, taken on expert advice, was mistaken let alone unreasonable. To intervene in the decision of the Minister would be to impose its own inexpert view of what is essential for this farm undertaking.
46. We deal with the arguments of the appellant in the following manner and order.
47. The Solicitor General submitted that the Minister's approach to this part of the application was not in fact inconsistent with his refusal to grant permission for a dwelling under the 2006 Application or with the earlier decisions of the Planning Committee. Those had all been concerned with applications for permanent buildings. Policy C17 (New Dwellings for Agricultural Workers) was by its terms concerned with 'new and permanent buildings' (our emphasis).
48. The proposal for the first time put forward by the applicant in 2007 was for temporary, not permanent, accommodation, in accordance with UK practice. We were informed by the Solicitor General that under National Policy, Guidance No. 7, temporary accommodation was permitted for a period up to 2 years to enable new entrants to the farming industry to establish themselves but was limited, as we understand it, to mobile homes, caravans or similar that could be taken on and off the premises.
49. There is no such policy in Jersey. We were informed that the Minister did not approve of caravans or the like on such a site and certainly not for a period which, under the criteria laid down, could extend to 8 years. Instead, he approved a very small (7.7 square metres) 4 roomed timber clad single storey building, that was in keeping with the farm outbuilding, for a period of up to eight years, and which could be removed if the criteria were not met.
50. We find there is no inconsistency in the Minister's decision. The purpose of granting a temporary personal permission was precisely to ensure that if bona fide status was not achieved in accordance with the business plan, no permanent dwelling would be left on site in contravention of the planning policies. The material considerations which the Minister was required to take into account included both those policies which restricted such development in the Countryside Zone and the policy (as set out in the RES report approved by the States) to diversify the rural economy and encourage new entrants into the industry. A further material consideration was that he had already given permission in principle (not appealed) for the establishment of farm infrastructure and the use of a personal permission for a temporary dwelling was a perfectly reasonable way of giving the applicant the opportunity of achieving bona fide status and protecting the Countryside Zone if she failed to do so.
51. The appellant contended that a truly temporary dwelling would be one that had a chassis or wheels which could be easily moved on and off site. In our view the word "temporary" is not descriptive of the dwelling but of the time it will be there. The Concise Oxford English Dictionary defines "temporary "as meaning "for a limited period". Thus the permission is for a dwelling that will be on the site for a limited period of time. An immobile structure can be temporary in that it can be erected on site and removed after a period of time and a mobile home can be on site permanently. We accept that a mobile home is easier to remove than a structure but in the light of the period of time involved here (potentially eight years) we see nothing unreasonable in the Minister preferring a minimal structure, in keeping with the farm outbuilding, to a mobile home.
Enforceability of Conditions
52. Clearly the Minister granted the application for a temporary dwelling on the basis that the conditions imposed to ensure that temporary status were enforceable. If there is case law, questioning the enforceability of these conditions (as believed by the appellant) then grounds might exist for our finding that the Minister's decision was mistaken. However, the appellant has not cited any such case law and the Solicitor General has not drawn any such case law to our attention. He did cite to us the case of R (on the application of Gosbee) v The Secretary of State (2003) EWHC 77 Admin in which the claimants had obtained planning permission for a dwelling in an orchard adjoining their property, on condition that their property was demolished within one month of the date of occupation of the new dwelling. This was pursuant to a policy which permitted new dwellings on the same site as its replacement, provided there is no increase in the number of dwelling units. The claimants then sold off the orchard with the benefit of the planning permission, remaining in their property, the demolition of which they then sought to resist. One of the arguments put forward was that the demolition of their home constituted a breach of their Convention rights. Article 8 of the Convention is in the following terms:-
"1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
It was common ground that the requirement imposed upon the claimants to demolish their house involved an interference with their Article 8(1) rights, but the question was whether that interference could be justified under Article 8(2) as a proportionate response to protect a legitimate public interest:- in that case the environmental interest of the public. In determining whether the interference was proportionate the Court adopted the twofold test adumbrated by Dyson LJ in the case of R (Samaroo) v Secretary of State for the Home Department (2001) UKHRR 1150, when in the course of giving judgment, his Lordship said this at paragraph 19:-
".... that in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights...
20. At the second stage it is assumed that the means employed to achieve a legitimate aim are necessary in the sense that they are the least intrusive Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?"
53. In Gosbee, it was contended that the fact that the claimants had brought their misfortune upon themselves was an irrelevant consideration, but as Elias J pointed out in his judgment:-
"I do not accept that. As Mr Maurici pointed out, there are a number of cases where the European Court of Human Rights has taken the view that it is a material fact in a proportionality analysis that the claimant has deliberately chosen to take a risk in the knowledge that his rights might be adversely affected: see the cases referred to in the book, Human Rights Practice by Emmerson and Simor at paras 15056 and 15057. The point is not of course to be decisive, but it is, in my view, capable of being a material consideration, as the inspector was fully entitled to take it into account".
54. Paragraphs 15.056 and 15.057 of Human Rights Practice by Emmerson and Simor are as follows:-
"15.056 Knowledge of possible restrictions prior to purchase. Where the individual was able to foresee the relevant state action, (as, for example, where an individual buys property that is subject to specific planning controls), that knowledge will prejudice any claim that the interference suffered is disproportionate. In Andrews v United Kingdom, one of a series of cases relating to the effect of the Firearms Amendment legislation on handgun retailers and other similar groups, the mere existence of industry regulation was one of the factors taken into account by the Court in upholding the legislation. The Court noted that the applicant 'has at all times had to operate within the framework of legislative control which has existed in the United Kingdom.... [he therefore] had not legitimate expectation that the use of particular types of firearm, including handguns, would continue to be lawful.
15.057 Development/business risks. The Court and Commission have been particularly unsympathetic towards those who have taken development or business risks and who have subsequently found the value of their investments affected by state action or inaction".
55. Turning to the facts of this case, the following observations can be made:-
(i) Current planning policy would not normally permit a permanent dwelling on the site.
(ii) It was the applicant who suggested and applied for temporary accommodation.
(iii) The imposition of the conditions contained in the permission is reasonable to ensure that the dwelling is indeed temporary.
(iv) In proceeding with the construction of the temporary dwelling (which will apparently cost some £70,000) the applicant does so in the full knowledge of the risk that if she fails to meet the criteria set down by the Minister and accepted by her, the dwelling will have to be removed and the land reinstated.
(v) Demolition of the dwelling in those circumstances (i.e. where the criteria had not been met) would be in conformity with existing planning policies which do not normally permit permanent dwellings in the Countryside Zone.
56. Whilst it is not possible to foresee the circumstances under which the enforcement of these conditions might in the future be challenged, we have no grounds to believe that they would not be enforceable in accordance with their terms. Even though the demolition of what would then be her home would be an interference with her Article 8(1) rights, it would, in our view, be justified under Article 8(2), as a proportionate response to protect the public interest - as in Gosbee, the environmental interest of the public:- in circumstances where the applicant has deliberately chosen to take the risk of constructing a temporary dwelling in the knowledge that her right to a home will be adversely affected if she fails to meet the criteria.
57. The reported rejection by the applicant of the appellant's offer of alternative accommodation was clearly of concern to the Minister as the minutes of the public meeting held on 13th February, 2008, demonstrate. His department obtained clarification from the appellant as to the terms of the offer and the matter was considered at the meeting held with the applicant on 5th March, 2008. The Minister heard the applicant's explanation and the views of his officers and, after due consideration, accepted that explanation.
58. This Court might not have accepted that explanation but that does not entitle us to quash the Minister's decision. As Bailhache, Bailiff put it in Token:-
"'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 the 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".
59. We regard the decision as to whether or not to accept the explanation as finely balanced and it would have been reasonable to decide either way. We do not consider that there are grounds for regarding the Minister's decision to accept the explanation as mistaken, let alone unreasonable.
60. In paragraph 34 of his affidavit Mr Gladwin, Senior Planner of Planning and Building Services, stated that the application for the temporary dwelling was approved because the Minister regarded this case as an exceptional one due to the applicant's obvious commitment and genuine long running desire to become a bona fide agriculturist. It was clear to the Minister that this was no short term opportunist attempt to have a dwelling in the Countryside Zone. This was reflected in Reason 4 of the permission which makes it clear that the personal permission for a temporary dwelling was granted because of "the exceptional circumstances of the applicant".
61. The appellant questioned the applicant's commitment. Her true objective, she contended, was to build a home in the Countryside Zone in order to follow a chosen lifestyle and not to become a bona fide agriculturalist. This is a matter of judgement and without setting out the appellant's detailed submissions on this point, we are satisfied that the Minister had sufficient grounds to conclude that the applicant was committed and, importantly, his department and the RES Group supported this view. On the strength of the consent in principle to establish the farm infrastructure the applicant has sold her home and purchased the site. She informed us that she will be investing some £50,000 in the farm outbuildings and some £20,000 on bringing in services. She will be investing some £70,000 on the temporary dwelling on the basis of a personal temporary permission in the full knowledge that if she fails to achieve bona fide status it will have to be demolished. In our view the Minister was entitled to take her circumstances into account as a material consideration in the way that he did.
Planning Policies and RES Strategy
62. We do not accept the appellant's submission that the Minister failed to take into account planning policies C6, 16 and 17 and the requirements of the RES strategy. They clearly informed his refusal to grant permission for a permanent dwelling under the 2006 Application. He made express reference to them at the public meeting held in respect of the 2007 Application. The advice of the RES Group, whilst supporting the application for a temporary dwelling, reiterated its strategy and that advice was expressly referred to by the Minister at the meeting held on 5th March, 2008, when the decision was made .It was because of these policies and requirements that the Minister was only prepared to grant a personal temporary permission.
63. The appellant submitted that the Minister had decided to allow temporary accommodation on the site prior to the 2007 Application being submitted and considered. She relied principally on the Department's letter of 4th September, 2007, in which the applicant was informed that the Minister had agreed to support the erection of temporary habitable accommodation for her full-time occupation, provided that it was a well designed structure. She also relied on the following extract from the minutes of the public meeting held on 16th February, 2007:-
"The Minister went on to say that whilst he would make no promises he had no doubt as to Miss Riggall's dedication and commitment to agriculture and he believed that she deserved to be given a chance to realise her ambitions. The Minister stated that he had been impressed by the level of support she had received from relevant professional bodies".
We have not taken into account other matters referred to by the appellant which were hearsay.
64. As submitted by the Solicitor General, there is a difference between predisposition, which is consistent with a preparedness to consider and weigh relevant factors in reaching a final decision and predetermination, which involves a mind which is closed to the consideration and weighing of relevant factors It is for the appellant to demonstrate that, in all the circumstances, a fair-minded and informed observer, having regard to the identified facts, would conclude that there was a real possibility of bias or predetermination on the part of the Minister (See Porter v Magill (2002) 2 AC 357. In Condron v National Assembly for Wales (2006) EWCA Civ 1573, the English Court of appeal made reference (Paragraph 43) to a number of English cases drawing the distinction between the legitimate predisposition towards a particular outcome and an illegitimate predetermination of the outcome.
65. In Token, the Planning Committee gave two indications in relation to applications before it. Bailhache, Bailiff said this:-
"One might ask whether the Committee should have given this indication. It is well established that the Committee must, when considering an application, take into account all material circumstances, including, as appropriate the views of the parochial and statutory authorities and any objections which might be made by neighbours or other interested parties. At the time when the indication was given, none of those circumstances could have been taken into consideration. On the other hand, it seems to us that sensible administration would be paralysed if the Committee were to be precluded from giving any indication as to the likelihood of development permission being forthcoming by the fear that it would be held strictly to the last letter of its indication. Equally, it would be very unfair upon neighbours and others with a legitimate interest in the application if an indication were to be construed as decisive of a subsequent formal application. An indication of this kind is merely a preliminary view or an amber light".
66. We agree that sensible administration of the planning process must permit the Minister to indicate his preliminary views on proposed applications whilst remaining prepared to consider and weigh up relevant factors in reaching his final decision. The applicant had written asking if she could be granted temporary accommodation. It was helpful of the Minister to indicate whether he would support such an application. That is not to say, and the applicant could not have expected, that his mind would thereafter be closed to considering objections or other material considerations that arose at the relevant time.
67. It is clear to us that the Minister's mind was not closed. At the very outset of the public hearing on 15th February, 2008, he informed all those present that he had given an indication to the applicant that he would support the erection of temporary habitable accommodation. He then proceeded to hear those in favour and against the application, and having taken all of the considerations into account, indicated that he remained minded in principle to support the application, subject to certain issues. In particular, he wished to consider further the issue of the offer of accommodation. That matter was the subject of a further meeting on 5th March, 2008, which we have described above.
68. This is a case of legitimate predisposition not illegitimate predetermination.
69. In conclusion we are not satisfied that the actions of the Minister in relation to the dwelling were unreasonable in all the circumstances of the case and, in the light of our decision on the size of the farm outbuilding, the appeal fails.
70. We recognise the sincerity of the views held by the appellant and her strongly felt desire to protect the Countryside Zone. Her written submissions were well researched and would have done credit to an experienced lawyer. She presented her case with clarity and great courtesy. The decisions facing the Minister were difficult, as he himself acknowledged, and opinions on his actions will differ. However as the Solicitor General pointed out, the Court is not there to substitute its own views. Rather it must be satisfied that the actions of the Minister were unreasonable and we are not satisfied that they were.
71. It became clear during the course of the appeal that the conditions attaching to the permit need clarification. At this stage, we set out our observations on those conditions upon which we would wish to hear from the parties when this judgment is handed down, with a view to our making an order under Article 114(8)(b) of the Planning Law:-
(i) Condition 1: In our view, this condition should set out the 'gross margins'.
(ii) Condition 2: This introduces a further undefined term 'required earnings'. We assume that it means the same as 'gross margins'. It is not clear what happens if the Planning and Environment Department and the applicant cannot agree on the date. We presume the Planning and Environment Department can ultimately determine the date. The condition is silent as to what happens if the three consecutive year requirement is not achieved. We assume the dwelling would then be removed.
(iii) Condition 4: It should be made clear that is only that part of the permission relating to the temporary dwelling which is personal to the applicant and shall not inure for the benefit of the land.
(iv) Condition 9 needs to be amended to permit the applicant to occupy the temporary dwelling.
72. Finally as a result of this appeal the applicant has been delayed in the implementation of her business plan. Fairness dictates that the time periods in conditions 1 and 2 should be reset.
Planning and Building (Jersey) Law 2002.
Rural Economic Strategy.
Sunier v Planning and Environment Committee  JLR N 49.
Bolton Metropolitan Borough Council v Secretary for the Environment (1991) 61 P. & C.R. 343).
R v Derbyshire C.C. ex parte Woods (1997) JPL 958.
Secretary of State for Education and Science v Tameside MBC (1977) AC 1014.
R (on the application of Gosbee) v The Secretary of State (2003) EWHC 77.
R (Samaroo) v Secretary of State for the Home Department (2001) UKHRR 1150.
Human Rights Practice by Emmerson and Simor.
Porter v Magill (2002) 2 AC 357.
Condron v National Assembly for Wales (2006) EWCA Civ 1573.