Jersey Unreported Judgments

[2009]JRC093

royal court

(Samedi Division)

14^th May 2009

Before     :

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Le Breton and Newcombe.

 

Advocate C. L. Nicolle for the Appellants.

Mr D. J. Mills of the Law Officers' Department for the Minister

judgment

the deputy bailiff:

1.        This is a third party appeal against a decision of the Minister to grant planning permission for certain development by way of extension and renovation of the current buildings at the property High View, Park Estate, St Brelade.  The appeal has been heard under the modified procedure established pursuant to RCR15/3B. 

2.        The Court has received an affidavit from Mr Smith, the first appellant and two from Mr Jonathan Gladwin, a senior planner in the Department of Planning and Environment.  The Court has also had the advantage of a site visit which has enabled it fully to appreciate the points made by the parties. 

Background

3.        The appellants, Mr and Mrs Smith, live at Park House, Park Estate, St Brelade.  This is a substantial property which they purchased in April 2005, for £3.875m.  The property lies at the top of the escarpment leading down to St Brelade's Bay and has extensive views to the south over the bay.  Mr Smith says in his affidavit that he and his wife chose the property because of its views and its privacy.  Having been on site, we can readily accept that evidence. 

4.        High View is the property immediately to the west of Park House.  It too lies on the top of the escarpment and has views to the south over St Brelade's Bay.  Because it is the most westerly house of Park Estate at that level, it also has views to the west over the valley which leads from Quennevais down to St Brelade's Bay.  The property has substantial grounds.  The house is at present unoccupied having apparently been purchased in 2008 for development by a company called Prime Estates (High View) Limited ("the company").  The purchase price was no doubt also fairly substantial. 

5.        On 29^th April, 2008, the company applied to the Minister for permission to "construct extensions to south, east and north-west elevations including new roof with habitable accommodation". 

6.        It is not necessary to describe the plans in detail but for ease of comprehension of this judgment we think it helpful to divide the proposed development into three different areas:-

(i)        The north-west extension

This involved the construction of a new wing lying to the west of the present house and extending towards the north.  It would contain, inter alia, an indoor swimming pool.  The appellants raise no objection in connection with this part of the development and we shall accordingly not consider it further.

(ii)       The north-east extension

At present there is a double garage at ground floor level to the north-east of the house.  The proposal involves extending the present north-east wing towards the north so as to make room for an additional car and some stairs and to construct a first floor above the garages, which would contain a separate flat. 

(iii)      The south-east extension

This would involve the construction of a two-storey extension in the south-east corner of High View close to the boundary with Park House.  At present there is no building in this area.  The eastern part of the existing building does not extend as far south as the central part of the house.  The proposal would extend the eastern part of the building to the south so as to bring it nearly into line with the southern facade of the central part of the house.  The ground floor would form part of an extended kitchen and the first floor would be a bedroom (referred to as bedroom 4) with a balcony.  There would also be alterations to the central part of the southern facade of the house. 

7.        Following the usual advertisements, the Minister received a letter of objection dated 2^nd June, 2008, from Mr David Rothband, a construction and development consultant instructed on behalf of the appellants.  The letter annexed a 5 page report setting out the grounds of objection.  In summary, the appellants objected to the proposed development on the ground that it would have a significant impact on the enjoyment of their property, that there would be a loss of privacy and there would be a loss of view. 

8.        The planning officer visited High View with the Principal Planner for St Brelade on 16^th June, 2008, although they did not visit Park House or meet with the appellants or Mr Rothband.  Following this visit, the planning officer had a telephone conversation with the company's architect on 10^th July, during which the planning officer highlighted the concerns of the appellants and suggested amended plans to reduce the impact on the appellants' property. 

9.        Following this, the company's architect sent an e-mail at 11.56 on 12^th July, responding to the objections listed by Mr Rothband.  In relation to the suggestion of loss of privacy the architect said the following:-

"Loss of privacy - at present there is a wall in the SE corner of High View.  There is a hedge on either side of the wall owned respectively by High View and Park House.  This hedge is sufficiently high to avoid any loss of privacy.  We attach 2 photos .... taken from the current balcony of the master bedroom clearly showing that the hedge is sufficiently high to avoid any overlooking.  We understand from the previous owner that High View maintains his hedge at the same height as that of Park House.  The statement 'balcony areas introduced which facilitate a clear view into the neighbour's back garden' is simply incorrect given the height of the hedge.  Secondly, given the relative heights of the properties, we think it is hard to argue that High View's extension is imposing in any way." (emphasis added).

10.      The e-mail went on to comment that the writer understood that the planning department required some modification which would further ameliorate any perceived concerns of the appellants and referred to a privacy screen to the east of the balcony to the new bedroom in the south-east extension and to a lowering of the north-east extension by approximately one metre. 

11.      The architects sent a further e-mail shortly afterwards referring to the telephone conversation and confirming their understanding that the department would support the application subject to three alterations which are material for our purposes namely:-

(i)        The insertion of a frosted glass privacy screen to the east side of the balcony to bedroom 4;

(ii)       omission of the projecting balconies on the main south elevation and replacement by glass 'tight' balconies; and

(iii)      lowering of the north-east extension by approximately one metre. 

12.      The e-mail went on to say that the writer understood that these amendments would overcome the appellants' objections and urged that the matter be dealt with under delegated powers as "I can't see there is anything contentious with the application once the revisions are in place".  Amended plans showing these changes were submitted to the department on 27^th August, and the planning officer spoke to Mr Rothband informing him of the amended plans.  Mr Rothband then submitted a further objection making it clear on behalf of the appellants that he did not consider that the changes had ameliorated the position.  In particular, he invited the company and their representatives and the planning officer to attend a meeting on site, although this was never taken up by the planning officer.  He also made it clear that the appellants would look more favourably on an application where the main emphasis of the development was shifted to the west wing.

13.      The planning application was recommended for approval by the planning officer on 15^th October, 2008, and he then passed the entire file, together with his report, to the Assistant Director of Planning Development Control. 

14.      The Court has had an opportunity of considering the report of the planning officer to the Assistant Director.  We would quote three passages from the report. 

(i)        Under the heading 'Impact on Neigbours' the report said this:-

"High View is close to the neighbouring property to the east (Park House).  The occupants of Park House have expressed considerable concern at the proposals believing that the scheme would lead to a loss of privacy and constitutes a deviation from planning policies (see their comments below in 'Summary of Representations'). 

Notwithstanding the objections, the proposed development is not considered to have an unreasonable impact on the residential amenity of Park House. 

Regarding the eastern extension, Park House is at a higher level than High View and has only a single window facing towards High View.  There are no windows to the east elevation of High View facing Park House.  Therefore, there are no over-bearing, over-looking or over-shadowing concerns. 

Regarding the proposed first floor balconies to the south, that which is closest to the boundary (for bedroom 4) is just 800 mm deep and will have a privacy screen.  There is a larger balcony to the centre of this elevation which will be shared by bedrooms 1, 2, and 3.  There may an oblique view of the neighbouring garden but the balcony is largely hidden by the new projecting bay extension to bedroom 2.  Overall, the effect of these balconies is considered to be negligible."

(ii)       Under 'Responses from Applicants/Amendments' , the following was included:-

"As noted in the section 'Impact on Neighbours' the case officer does not believe the proposals will unduly affect the neighbours' residential amenities. 

A response was received from the agent to the letter of representation.  Photographs submitted (taken from first floor level) show that the boundary hedge will obscure any potential view to the east.  Also, given the relative heights of the properties, it is difficult to argue that High View is imposing...." (emphasis added)

(iii)      Under the heading 'Summary/Conclusion' the planning officer wrote the following:-

"The existing house is being extensively remodelled including two significant extensions to the north.  The changes are all considered to be acceptable.  Notwithstanding the letters of representation received, the scheme is acceptable in terms of its impact on the neighbours."

15.      The same day, the Assistant Director considered the report and the case file (including the objections) and decided to grant the application under his delegated powers from the Minister.  The formal planning permission was dated 15^th October, and stated the reason for approval as:-

"Permission has been granted having taken into account the relevant policies of the approved Island Plan, together with other relevant policies and all other material considerations, including the consultations and representations received."

16.      It is against that decision, made by the Assistant Director on behalf of the Minister, that the appellants now appeal.  We shall on occasion refer to the 'Ministers' decision, as it was his decision in law, albeit not made by him personally. 

17.      The only other matter that we would mention at this stage is that in December 2006, planning permission was granted for a development to the north-east part of the property.  The proposed development involved the creation of a first floor over the existing garages.  Unlike the present proposal, it did not extend to the north of the existing building but, as can be seen from the drawings, it would have been higher than the currently proposed north-east extension.  Although permission was granted, the development was never in fact carried out. 

Applicable planning policies

18.      The site in question lies within the Built Up Area and within a Green Backdrop Zone for the purposes of the Island Plan.  The parties were agreed that the relevant planning policies as taken from the Island Plan were certain aspects of Policy G2 and Policy G3. 

19.      Policy G2 sets out general development considerations which apply across the island to all types of development.  The relevant parts for our purposes are as follows:-

"Applicants need to demonstrate that the 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......

Applications which do not comply with these principles will not normally be permitted."

20.      Policy G3 is concerned with the quality of design and states as follows:-

"A high standard of design that respects, conserves and contributes positively to the diversity and distinctiveness of the landscape and the built context will be sought in all developments.  The [Minister] will require the following matters to be taken into account as appropriate:

(i)  the scale, form, massing, orientation, siting and density of the development, and inward and outward views;

(ii)  the relationship to existing buildings, settlement form and character, topography, landscape features and the wider landscape setting.....

Proposals that do not demonstrate that account has been taken of the above matters, as appropriate, will not normally be permitted."

21.      Article 109(1) of the Planning and Building (Jersey) Law 2002 ("the 2002 Law") provides that an appeal may only be made to this Court on the ground:-

"that the action taken by or on behalf of the Minister was unreasonable having regard to all the circumstances of the case". 

Authoritative guidance on the test of unreasonableness was laid down in Token-v-Planning and Environment Committee [2001] JLR 698 at 703 where Bailhache, Bailiff said this:-

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

22.      The observations of the Bailiff have been endorsed by the Court of Appeal - see for example Planning and Environment Committee-v-Le Maistre [2002] JLR 389 at para 25.  In order to find that a decision of the Minister was unreasonable for the purposes of an appeal, it is not of course necessary to go so far as to find that the decision was irrational in a judicial review sense i.e. that it was a decision to which no reasonable Minister could come (see Anchor Trust Company Limited-v-Jersey Financial Services Commission [2005] JLR 428 at paras 13 and 14). 

Grounds of Appeal

23.      In their notice of appeal the appellants contended that the decision to grant planning permission was unreasonable on three grounds:-

(i)        The Minister failed to have proper regard to the representations submitted on behalf of the appellants;

(ii)       the decision was contrary to Policy G2 in that the works would have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations, viz the loss of privacy that would be suffered by the appellants; and;

(iii)      the decision was contrary to Policy G3 in that the approved works were of a scale, mass, orientation, siting and density that were inappropriate in view of their relationship to the existing buildings. 

24.      With the leave of the Court, the appellants added a fourth ground of appeal which had been foreshadowed in their written contentions, namely that, in the particular circumstance of this case, there should have been a site visit by the Assistant Director before he made his decision. 

Discussion

Ground (i)

25.      We can deal with this ground briefly.  It is clear from the narrative of events set out above that the Minister (through his department) did give consideration to the objections raised on behalf of the appellants.  In the first place, the department suggested certain changes to the original plans in response to the original objections on behalf of the appellants.  In the second place, the appellants continuing objections were referred to in the report of the planning officer to the Assistant Director and there is no evidence to suggest that the Assistant Director did not give them consideration. 

26.      The real complaint on behalf of the appellants is that the Assistant Director, on behalf of the Minister, did not accept their objections but instead granted planning permission.  Whether that decision can be upheld turns on whether it was an unreasonable decision and that falls to be dealt with under grounds (ii) and (iii).  In summary, in the particular circumstance of this case, we do not think that ground (i) adds anything to the remaining grounds. 

Ground (iv)

27.      We take this ground next as it can be dealt with quite shortly.  The appellants contend that the Assistant Director should not have reached his decision without a site visit.  The correct approach to site visits was established as long ago as 1969 in Guillard-v-Island Development Committee [1969] JJ 1225 where the Court said this at 1228:-

"We do not consider that the Members of the Committee must in person visit every site for which application for consent to develop is made.  It is, however, essential that the Committee 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 its qualified officers, will suffice."

28.      That approach was applied recently in Sunier-v-Planning and Environment Committee [2003] JLR N49, [2003] JRC 188, where the Court held that the photographs supplied to the Committee were misleading and the fact that the Committee's officers had visited the site was not sufficient; the Committee should have visited the site itself. 

29.      The Court fully understands the pressures upon the Planning Department.  We accept that the majority of applications will not require a site visit by the decision maker.  However, the department must be alert to those applications which cannot properly and fairly be dealt with without a site visit.  The Court visited the site at the request of the appellants.  These are two very substantial properties situated in substantial grounds.  One of the key objections made by the appellants was the effect on their privacy, particularly in relation to the proposed south-east extension, which would be situated extremely close to their property.  We do not think that a proper appreciation of the arguments being raised by the appellants in this respect could be obtained without a site visit.  We accept that the Assistant Director is an experienced planner who will have a better appreciation of plans and drawings than an ordinary person, but the plans do not show the hedge nor do they give a fair impression of the relationship between the two properties and the effect which the proposed development, particularly in the south-east, would have upon the amenity of the neighbouring property.  Furthermore, the photographs provided by the company were very limited and did not give a fair reflection of the overall position.  

30.      As will be seen shortly, the result of the site visit was that further enquiries had to be carried out.  Had the Assistant Director conducted a site visit, these issues would have manifested themselves at the time and he could have taken account of the additional information before reaching his decision.  As it is, he reached his decision in ignorance of all these matters.  We have no hesitation in concluding that the Assistant Director ought to have carried out a site visit in this particular case in order properly to appreciate the arguments which were being put forward by the appellants.  Mr Rothband, on behalf of the appellants, had sought a meeting on site but this was rejected by the department. 

Grounds (ii) and (iii)

31.      Although she relied on both grounds in relation to the north-east extension and the south-east extension, Miss Nicolle accepted during the course of her submissions that, in relation to the north-east extension, she was relying primarily upon ground (iii) i.e. a breach of Policy G3, whereas in relation to the south-east extension she was relying primarily on the amenity effect on the appellants' property i.e. a breach of Policy G2.  In the circumstances we think it convenient to deal with the north-east and south-east extensions separately. 

(a)     The north-east extension

32.      The existing north-east wing is a one-floor building containing space for two garages.  The proposed development involves extending the wing to the north to make space for an additional garage and staircase and building a first floor above which will contain a separate flat.  Above this there will be a pitched roof.  There are no windows in the eastern elevation of the proposed extension.

33.      As already stated, there is an existing planning permission for this area which also involves the creation of a first floor and pitched roof above the existing wing but, unlike the present proposal, does not involve an extension of the existing wing to the north.  However, the height of the building which has already been approved is (at its peak) approximately 1.5 metres greater than the existing proposal. 

34.      Miss Nicolle submits that the scale and mass of the north-east wing is entirely out of proportion with the existing buildings in the area.  It is a substantial building and the eastern elevation will be particularly imposing because of the lack of windows.  She also submits that there is likely to be an overshadowing effect as the roof of the proposed extension will mask the western sunlight in the latter part of the afternoon and evening.

35.      We do not consider that the decision to grant permission, insofar as it relates to the north-east extension, can be categorised as unreasonable.  Because of the alignment of the buildings, the proposed extension will be noticeably further from the boundary with the appellants' property than is the case with the south-east extension.  No substantial amenity issue arises because there are no windows in the eastern elevation.  The occupants of the flat on the first floor will therefore not be able to overlook the appellants' property nor are any noise issues likely to be material given the lack of windows.  We accept that the extension will be fairly large and the eastern elevation in particular will present a substantial wall facing the appellants' property.  However there is a high hedge which will mask a substantial part of the building and most of this hedge lies on the appellants' property in this particular area.  As to overshadowing, the position is not clear cut and we would not be able to make any finding in the absence of expert evidence.  Furthermore, in this connection, it is not irrelevant that there is an existing planning permission which could be put in effect by the company.  The roof of the building allowed for by that permission would be higher by some 1.5 metres than the roof of the currently proposed extension, albeit that it would not extend so far to the north. 

36.      As Token makes clear, the Minister has a margin of discretion before a decision can be categorised as unreasonable.  We do not think that the decision in relation to the north-east extension can properly be categorised as unreasonable. 

(b)     The south-east extension

37.      There is at present a high hedge which separates the appellants' property from High View and provides a substantial measure of privacy.  When the Court attended on site and was shown the area which would be affected by the south-east extension, it became clear that the south-east corner of the south-east extension would intrude into the hedge.  It was asserted by Mr Rothband that, when one also allowed for scaffolding and foundations, the hedge in the area would have to be demolished. 

38.      The existence of the hedge had clearly been a significant factor in the Assistant Director's decision.  It was referred to in the report from the planning officer quoted earlier and was given by Mr Gladwin in paras 33, 34 and 36 of his affidavit as being part of the justification for the Assistant Director's decision.  It was clear from the site visit that there was certainly an issue as to whether the hedge in this area could survive the construction of the south-east extension.  We therefore gave leave to the parties to file evidence on this point and to make further written submissions following the filing of the evidence.  Both parties took advantage of this opportunity.

39.      The appellants filed a further affidavit by Mr Rothband.  He had consulted a Mr Felton, a landscape architect.  Mr Rothband explained that the 'hedge' in fact comprised a series of evenly spaced evergreen oak trees and that the height and width of that hedge was controlled over time by regular cultivation.  He said that, in order to prepare his further affidavit, he returned to the site.  He calculated the position of the south-east corner of the south-east extension to within 50mm.  He found that it was impossible actually to place a peg to mark that south-east corner because of the high density of the foliage of the hedge in that area.  He was forced to establish a reference point 1.5 metres to the south of the south-east corner, which he could reach because of the gap in the hedge to which we shall refer later. 

40.      He then explained that, in order to construct the south-east extension, the ground would have to be cleared beyond the footprint of the proposed building itself in order to dig out the ground to lay the foundations and to allow for scaffolding to be erected in due course to construct the higher part of the extension.  He exhibited a number of sketch plans to his affidavit which were the result of his calculations.  Suffice it to say that, in his opinion, the hedge would have to be demolished over some 8 metres, which is the greater part of the area adjacent to the south-east extension.  The only part that would survive would be a small part at the northern end of the extension (i.e. just to the south of the footprint of the current building).  In addition, that part of the hedge which lay to the south of the proposed extension would not be affected. 

41.      Mr Gladwin filed a further affidavit in response on behalf of the Minister.  He too had attended a further meeting on site in order to prepare his affidavit.  He had met with the States Arboricultural Officer, Mr Armstrong, the architects for the company and representatives of the company itself.  The purpose of the meeting was to agree a working methodology to enable the hedge to be retained whilst allowing for the realistic construction of the extension. 

42.      We would summarise the effect of Mr Gladwin's further affidavit as follows:-

(i)        The distance from the face of the hedge on the High View side to its trunks is approximately 90cms.  The proposed methodology would involve cutting back the hedge by some 70cms in the area adjacent to the proposed extension. 

(ii)       The foundations would be designed in such a way that they avoid destroying the roots of the hedge.  The method of foundations (depending on the ground conditions) would likely comprise the proposed use of piles or other suitable form of footings which enable the hedge to be retained.  The final method of dealing with the foundations is to be agreed by the States Arboricultural Officer prior to the commencement of works to ensure that the roots are not adversely affected to an unacceptable degree. 

(iii)      The extension will be constructed from inside the proposed external walls so as to minimise any damage to the hedge.  This would remove the need for scaffolding during the construction of the block work wall in the south-east corner. 

(iv)      Having consulted with a director of SGB Scaffolding, it is said that scaffolding could be erected inside the extension, which would mean that scaffolding would not be necessary to the outside of the extension until the block work walls had been constructed and the extension needed to be rendered and painted, as well as the fascias of the roof fitted.  Furthermore, such outside scaffolding would start at about 2mtrs in height and be in 2 mtr intervals.  It would be bolted into the actual extension so as to stabilise it and remove the need for scaffolding at ground level in this area.  The proposed scaffolding would be three boards in width with the result that the distance of the outer edge of the scaffolding from the face of the extension would be 96.5cms. 

(v)       According to the States Arboricultural Officer, the hedge is hardy in character and is very tolerant of hard cutting so given time it will recover.  The plan would be for the trimming of the hedge to be conducted by a qualified tree surgeon. 

(vi)      It was accepted that there would be some degree of root damage because of the construction and there could be no guarantee that, when cutting back the trees, comprising the hedge, one or more may not die.  Accordingly it was recommended that, should any tree in the hedge die, any replacement tree should be at least 3mtrs in height.

(vii)     There was an existing gap lying just to the south of where the south-east corner of the extension would be situated.  That had been caused by disease of the tree in the relevant area.  This gap should be replaced by a new tree 3 mtrs in height. 

43.      In summary, the Minister contended that, with the amended methodology, the probability was that the hedge would survive the building of the extension.  However, in order to address the issues which had arisen, it was suggested that three additional conditions could be imposed on the planning permission (although the exact wording would need to be the subject of further consideration):-

(i)        There would need to be a condition that the construction of the extension should take place in accordance with a working method designed to minimise disturbance to the hedge, which would need to be approved in writing by the Minister. 

(ii)       There should be a condition that no part of the hedge should be cut down, uprooted or destroyed nor should any part of the hedge be topped or lopped other than in the manner approved by the Minister.  Should any part of the hedge be destroyed or die, another tree should be planted of such size and species as might be directed by the Minister, with the plan being that this should be at least 3mtrs in height. 

(iii)      The proposed projecting balcony on the first floor of the southern façade of the proposed extension should be replaced by a Juliette style balcony with a frosted screen. 

44.      Miss Nicolle, on behalf of the appellants, submitted that the Minister's proposals were insufficient to protect the privacy of the appellants' property.  She pointed out in particular that no detail as to the suggested methodology concerning the foundations was given.  It was merely asserted that the foundations would be designed in such a way as to avoid destroying the roots of the hedge.  There was only speculation in Mr Gladwin's affidavit as to some methods which might be used. The final method had not been ascertained and it was simply asserted that it would have to be agreed with the States Arboricultural Officer prior to commencement of the works.  There was no evidence that this could in practice be achieved and the only evidence before the Court was that of Mr Rothband, who gave as his opinion that the hedge would in all probability be destroyed in the vicinity.  Furthermore, she asserted that the proposed method of scaffolding contained certain safety risks which were unlikely to be acceptable to the health and safety authorities.  As to the likelihood of damage to the hedge, she asserted that the existing gap in the hedge to the south of the proposed extension was caused when part of it died following the digging of a test hole on site.  This suggested that the hedge was likely to react in a similar manner to more intrusive digging or piling. 

45.      The Court has no hesitation in concluding that the decision on the part of the Assistant Director was unreasonable.  As Mr Gladwin's original affidavit in support of the decision makes clear, the Assistant Director relied on the existence of the hedge as a screen as one of the reasons for concluding that the proposed development would have only a limited impact on the amenity of the appellants.  Because he did not carry out a site visit and because the plans and the report from the planning officer did not alert him to the issue, the Assistant Director was wholly unaware that the development would intrude into the hedge and that there was a real issue as to whether the hedge could survive the construction of the south-east extension.  This fact only emerged following the site visit made by the Court.  The further evidence now produced has made it clear that a radical re-think of the methodology to be adopted in constructing the development has been necessary.  Indeed, the Minister in effect concedes that additional conditions will need to be imposed in order to try and protect the amenity of the appellants' property.  Furthermore, as the hedge lies on the company's property, there would be nothing, under the permission as granted, to prevent any future owner from demolishing the hedge.  In those circumstances there would be a clear view from the south-east extension across the rear garden of the appellants and the presence of the extension so close to the appellants' property would have a dramatic effect on the privacy of their property.  

46.      The question then is whether the position can be rescued by the imposition of conditions along the lines suggested by the Minister or whether the decision should be quashed altogether.  We have reminded ourselves that the test is not what we ourselves might think is the correct decision; it is whether the Minister's decision is unreasonable in the sense described at para 21 above.

47.      We certainly agree that the three additional conditions are the minimum that is required to attempt to remedy the situation.  However, the Court has concluded that the decision to grant permission for the south-east extension would remain unreasonable even if the three conditions now suggested by the Minister were added.  We would summarise our reasons for so concluding as follows:-

(i)        These are very substantial properties standing in large grounds.  We accept that the purchaser of such a property expects a reasonable degree of privacy.  We also accept that the rear garden i.e. the garden to the south of the house, of Park House is an area where the appellants sunbathe or otherwise sit and which currently provides a reasonable degree of privacy both from the point of view of being seen, from the point of view of any noise and from the point of view of not being in too close proximity to an inhabited neighbouring property.

(ii)       The properties are at present separated by a very substantial hedge.  We have not been given measurements of its height but, in the area in question, it is clearly well in excess of twice the height of a person.  In the area adjacent to the proposed south-east extension, the hedge is situated almost entirely on land belonging to High View.  We agree with the Assistant Director in concluding that the continued presence of the hedge is an important feature when considering the effect of the construction of the south-east extension on the amenity of the appellants' property. 

(iii)      We are unable on appeal to resolve the difference of opinion between Mr Rothband, who says that the hedge will be lost over approximately an 8mtr length adjacent to the south-east extension, and Mr Gladwin, who says that the hedge ought to survive the cutting back and damage to the roots which will have to accompany the construction of the south-east extension.  However, what we do conclude is that, putting it at its lowest, there is a substantial risk of the hedge being destroyed or seriously damaged by the proposed development.  Should this occur, then until the hedge re-grows to something like its present height, there would be a very major effect on the amenity of the appellants' property.  We do not see why the appellants should be subjected to that substantial risk.

(iv)      Even if the hedge survives the development or re-grows following any damage or is re-planted with 3mtr high trees, we consider that allowing the construction of a two-storey extension in the south-east of High View is unreasonable.  The extension will, at its south-east corner, be only some 2 mtrs from the boundary.  It will be so close to the boundary that it will intrude into the boundary hedge.  The boundary is in turn only 1 mtr from the appellants' house at Park View.  Furthermore, the rear garden used by the appellants is very close to the boundary.  Even if the balcony on the first floor of the south-east extension is replaced by a Juliette balcony, as now suggested, anyone looking out of the window of bedroom 4 will look to the south-east because of the alignment of the properties.  Furthermore there will be a general sense of intrusion and loss of privacy as a result of the construction of a building so close to the boundary, with its accompanying risk of noise etc.  The character and amenity of both these substantial properties would be adversely affected by the extension in this south-east corner.   Given that High View is a very large property and that there is plenty of room upon which to build to the west and to the north, we have asked ourselves whether it is reasonable to allow the existing building to be extended to the south-east so as to be so close to the neighbouring property as to intrude on its amenity in this way. There is no need whatsoever to build an extension in this particularly sensitive area when there is so much space elsewhere and the Court finds that that the decision to allow the south-east extension was so mistaken as to be unreasonable.   The decision was contrary to the requirements of Policy G2, described earlier in this judgment.  

48.      We therefore allow the appeal and direct in accordance with Article 114(8)(c) of the 2002 Law  that the Minister cancel his decision to grant planning permission for the company's application.  In order to assist the Minister and the company we emphasise that there is no question of all development of High View being unreasonable.  On the contrary, as the Court has made clear, it would seem unlikely that any appropriate development to the west or to the north would have any unreasonable impact on the appellants' property and we have not found that part of the decision which relates to the north-east extension to be unreasonable.  It follows that, if the company submits new plans which achieve its desired increase in the size and facilities of High View but which do not involve any extension to the south-east of the current building, there would appear to be no reason on the face of it why, assuming he is satisfied on all other appropriate matters, the Minister should not grant approval to such development. 

Authorities

RCR15/3B.

Planning and Building (Jersey) law 2002.

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

Planning and Environment Committee-v-Le Maistre [2002] JLR 389.

Anchor Trust Company Limited-v-Jersey Financial Services Commission [2005] JLR 428.

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

Sunier-v-Planning and Environment Committee [2003] JLR N49, [2003] JRC 188.