[2009]JRC147
royal court
(Samedi Division)
28th July 2009
Before : |
F. C. Hamon Esq., O.B.E. Commissioner and Jurats Tibbo and Le Cornu. |
Between |
Kenneth Charles Dorey and Cheryl Dorey |
Appellants |
And |
The Minister for Planning and Environment |
Respondent |
Advocate A. D. Hoy for the Appellants.
Mr D. M. Mills for the Minister.
judgment
the commissioner:
1. This is an appeal under Article 113 of the Planning and Building (Jersey) Law 2002 against a decision by the Minister for Planning and Environment on 19th February, 2009, to refuse permission for a new vehicular access to the appellants' house, the "Crow's Nest", Le Mont les Vaux, St Brelade. The reason for the refusal is:-
"The proposed works would necessitate substantial engineering operations upon, and the partial loss of, a very prominent vegetated bank which is in the Green Zone and also forms part of the "Enclosed Valleys" landscape character type. Such works will not be sympathetic to the local landscape context or character and accordingly, the proposal is considered to be contrary to the provisions of Polices C2 and C5 of the Jersey Island Plan 2002."
2. We have attended on site and heard both Advocate Hoy for the appellants and Mr Mills for the respondent. We also have a copious bundle of agreed documentation. We are grateful to Mr Mills for letting us have a copy of the Appointed Day Act for the Planning and Building (Jersey) Law 2002 which only came into force on 23rd May 2006 (four years after it was devised). The reason for the delay was not explained to us. We have seen where it is proposed to build the access road. The property at the moment is served by a parking space or lay-by owned by the Parish of St Brelade which crosses a busy main road which was in existence before the Duke of Richmond's map of 1785 (though not as well used). There are horse troughs at the top of the hill. The appellants have two children, twins aged 4 and a dog and although we saw the road in excellent weather conditions we can only marvel at the ability of a mother with shopping and two small children in her ability to cross the road with any safety. A question from the Court elicited from Mrs Dorey that in the last year she has had a narrow escape from a bus, and a private car crashed into the steps leading up to The Crow's Nest. The hill is a very fast hill indeed for motorists and the thought of a parent crossing the road with two small children in the rain carrying shopping is indeed a frightening one. There is, however, a twist to this appeal. The present access to the property is by climbing fifty-three steps. Article 6 of the Island Planning (Jersey) Law 1964 made a provision that "the Committee shall not exercise its powers under this Article in such a manner as to deny reasonable access to land either to persons or to vehicles." The Court dealt with this Article in the case of Craven and Elliott v The Environment and Public Services Committee [2004] JRC 061. In four situations, the Committee had a duty to consult with the Highway Authority and take account of any representations from the Highway Authority. The Committee is clearly not bound by any such representations. The four situations, any one of which leads to the duty to consult are:-
"i. an application to do work referred to in Article 5(2)(b) i.e. to create a new means of access to land from a road;
ii. where in respect of any application for permission to develop land it appears to the Committee that the work would be a source of danger to persons using any adjoining road;
iii. where it appears to the Committee that the work would involve an increase in public expenditure;
iv. where it appears to the Committee that such work would hinder any proposals for the improvement of any such road previously notified to the Committee by the Highway Authority."
Article 6 was repealed by the 2002 Law and the Minister, under the new law, which came into force in 2006, had no obligation to allow reasonable access. But there is a clear provision in Article 14 of the Planning and Building (Jersey) Law 2002 which reads:-
"(1) This Article applies in respect of an application for planning permission:-
(a) where the proposed development involves the creation of a new means of access or the enlargement of an existing means of access to a road; or
(b) where it appears to the Minister that if the development were to be undertaken it might create a problem specified in paragraph (2).
(2) Those problems are that the development of the land might -
(a) be a source or cause of danger to people using or entering a road bordering the land;
(b) have a significant effect on the volume or type of traffic using the roads leading to and from or in the vicinity of the development;
(c) involve an increase in the cost of undertaking any improvement of a road bordering the land; or
(d) hinder the improvement of a road bordering the land which the highway authority has notified the Minister it intends to improve.
(3) Where this Article applies the Minister shall refer the application to the highway authority (if any) in respect of the road.
(4) The Minister shall take into account in determining the application any comment made by that authority."
3. The twist comes when on 8th August, 2008, the Minister gave planning permission for the appellants to construct a pitched roof on the existing bungalow to create further habitable space. The developer would have had to climb the steps to get to the site carrying timber, bricks, scaffolding, machinery and new windows. As Mr Mills told us, if the lay-by had not been there, permission for the extension would not have been granted. Mr Lane, who has a driveway built some twenty years ago, was a Centenier in the Parish and is a near neighbour of the appellants. He wrote this letter which the Minister considered:-
"Gentlemen,
I write in support of an application by my neighbours Mr and Mrs K Dorey to cut a vehicular entrance into the property at a point a little above the Shell House on Mont les Vaux.
Their present access is pedestrian only, by a long and steep flight of steps which issues on to the busy road on a dangerous curve. When I was a Centenier of the Parish I attended accidents at this point, in one of which a lady was knocked to the ground by a passing car which did not stop. Miraculously she was not hurt but the memory of it always makes me apprehensive when I see Mrs Dorey crossing the road to her parked car with her young twin girls in tow.
Mrs Dorey also tells me that you are concerned about the cutting of the rock face which would result from this work. I cannot say that I experienced this problem when I did some similar work on my own property about twenty years ago.
I found that the application of top soil to the affected area, followed by the planting of appropriate bushes and grass seeding resulted in its restoration to a natural state in a surprisingly short time, a matter of about three months in the growing period of spring and early summer.
I am confident that Mr Dorey would do everything he can to minimize the impact of this work, as I know that he, like myself, is anxious to maintain the character of Mont les Vaux as it is at the moment.
Yours faithfully
D K Lane".
4. One of the arguments raised by the Minister is that the proposed driveway is contrary to Policies C2 and C5 of the Island Plan. Policy C2 states that:-
"The Planning and Environment Committee will promote the conservation, management, enhancement and restoration of the Island's countryside character. Development proposals and land management should be informed by, be sympathetic to and wherever possible, restore the local landscape context and local character."
Policy C5 states that :-
"In all cases the appropriate tests as to whether a development proposal will be permitted will be its impact on the visually sensitive character of this zone"
And again in dealing with Green Zone character paragraph 5.41 states:-
"The landscape character types of this Zone have been created mainly through human intervention and their quality and distinctiveness makes them particularly sensitive to the effects of extensive development. Accordingly there will be a strong presumption against any new development to retain this quality and distinctiveness and to ensure that the character of the zone remains intact."
5. It appears that it was suggested at the Applications Meeting that the appellants investigate the possibility of sharing their access with their neighbour Mr Lane but, although this was explored, Mr Lane does not wish to share his driveway as this would decrease the value of his property and, in any event, the suggestion was impracticable as the positioning of the houses would not allow access to any parking on the appellants' property.
6. We have seen where the new entrance is proposed and it is, unlike Mr Lane's driveway which is practically on the bend, well down the road towards the Shell House. Of course the Minister contacted the Highways Authority who wrote on 27th June, 2008:-
"The property currently has no vehicular access. Pedestrian access is via several flights of steps which meet the road at the south property boundary. The final set of steps runs parallel to the road and is opposite the parking lay-by on the east side of the road where the property owner currently parks.
At the base of the steps, nearside visibility extends uphill to the bend over 70m away. Offside visibility is reasonable by normal standards. However the wide road and proximity to the bend results in a situation where an approaching uphill vehicle will travel from a blind position to the crossing point in a similar time that it takes to cross.
In this case, this is not considered particularly hazardous as the good nearside visibility allows sufficient time for pedestrians that have taken a couple of steps into the road to pause or return to the base of the steps when faced with a speeding uphill vehicle.
The proposed access must provide at least 2.4m by 50m visibility splays.
The access point must be perpendicular to the road to allow ingress and egress without crossing the opposite land of traffic. Also, a 4m radius is required each side of the access to facilitate this.
The proposed access is to be cut into a bank which is over 15m high and exceeds 45 degrees in places. For a distance of 5m back from the edge of the carriageway, the gradient of the access ramp must be no more than 1:20 gradient. Internal ramps can be steeper, up to a maximum of 1:10. The proposed 70m long ramp is closer to 1:5 which is considered impassable. It is estimated that the driveway would need to be at least 150m long to meet acceptable standards. As no information on levels or construction have been provided, it is difficult to comment on these points precisely.
It is possible to create a vehicular access to this property that meets full highway standards; however it will require an enormous amount of excavation work to quarry a zig-zag driveway into the bank."
7. In the Planning and Environment Department report under "Landscaping issues" the Department writes:-
"The proposal would, inevitably, result in the loss of some vegetation including trees. However, it was noted that several of the trees likely to be affected are dead or dying already. Nonetheless, the bank has a natural vegetation cover and helps give Mont les Vaux its characteristic green and enclosed level. It may be possible to re-plant following any works, but the effect would not be the same owing to the new bank profile."
8. The appellants have noted the words of their neighbour, Mr Lane, who said "I found that the application of top soil to the affected area followed by the planting of appropriate bushes and grass seeding resulted in its restoration to a natural state in a surprisingly short time.""
9. There is also the problem of waste being removed from the site. The appellants feel that it could all be moved within the course of three or four days. Much of the shale, which was clearly put there when the road was first made, will be used near the house as hard standing for the car parking.
10. The Minister makes reference to the case of Craven v Department of Public Services Committee [2004] JRC 061 which was heard on 2nd April 2004. In the case the learned Deputy Bailiff said:-
"In our judgment, if one had a street scene of a particularly high quality which contributed very greatly to the visual amenity of the street, it might well be the case that to allow the demolition of part of the scene to allow a car to be parked would be so detrimental to the high quality of the street scene that such access should be refused on the grounds that it would not be reasonable access. In other words we do not think that the Committee should shy away from such a finding in the right case."
But that was a very special case and though it is strongly argued by the Minister that this is a "very prominent vegetated bank" we cannot see but that within a very short space of time (if replanting is carried out) there will be nothing to make the new bank any different from the old bank and, having visited the site, the learned Jurats cannot tell where the main part of Mr Lane's driveway lies because it is entirely shaded with vegetation. This is not a pedestrian road; only cars travelling up and down Mont les Vaux will see the affected area.
11. When the Applications Panel reconsidered the application on 19th February, 2009, it was able to see the model which Mr Roger Norman of Roger Norman Design Consultants had prepared, together with the waste management plan which showed that some 415 tonnes of rubble, green waste etc. would have to be removed from the site and, if taken off the site, this would require some 37 truck movements. Mrs Dorey in her Affidavit says that if the 425 tonnes need to be removed this would only take three or four days. In any event the appellants have stated that much of the excavation would be reused for car parking near The Crows Nest. As Mr Roger Norman set out in his waste management plan, any excess would be processed by specialist aggregate recycling contractors.
12. The request for reconsideration was refused by the Planning Panel who maintained the original decision. The grounds for refusal were:-
"The proposed works would necessitate substantial engineering operations upon, and the partial loss of, a very prominent vegetated bank which is in the Green Zone and also forms part of the "Enclosed Valleys" landscape character type. Such works will not be sympathetic to the local landscape context or character and accordingly, the proposal is considered to be contrary to the provisions of Policies C2 and C5 of the Jersey Island Plan 2002."
13. Mr Jonathan Gladwin, the senior planner of Planning and Building Services of the Ministry included, in his affidavit, the minutes of that meeting which read:-
"The Panel heard from the applicant's agent, Mr R Norman of Roger Norman Design Consultants. Mr Norman acknowledged that the formation of the proposed new access would, in the short term, scar the existing bank until such time as the natural vegetation had grown back. He advised that the existing bank was made up of a mix of rock and shale. Mr Norman went on to state that his client had advised him that he had spoken to an officer of the Department in the past with regard to the possibility of forming a vehicular access. He had been advised at that time that it was unreasonable to refuse permission for a vehicular access where none existed. The Assistant Director, Development Control advised that the former Island Planning (Jersey) Law 1964 had contained a provision to this effect. However, this provision had not been included in the existing Planning and Building (Jersey) Law 2002 as it had caused particular difficulties in the past with the Department being unable to prevent the removal of cast iron railings (to facilitate vehicular access) in front of Victorian Terraces.
Having considered the application the Panel decided to refuse the same on the above grounds. In doing so it suggested that the applicant might wish to consider discussing the possibility of sharing an access associated with a neighbouring property."
14. What of the grounds of refusal? In Le Maistre v Planning and Environment Committee [2001] JLR 452, the Court said:-
"Human beings are mortal and personal circumstances may and do change. Yet land, once developed will for practical purposes never be returned to its natural state. The personal circumstances of an applicant for development permission should not be ignored but they should rarely carry much weight and never be determinative of an application".
But the Court went on to say:-
"A presumption is not a straightjacket. A presumption carries the connotation that, in the absence of more compelling considerations, a decision will go a particular way. But if there are other compelling considerations, a presumption may be overridden."
15. The test on appeal has been well stated in Token Ltd v Planning and Environment Committee [2001] JLR 698 at 703 by Bailhache, Bailiff:-
"The Solicitor General submitted that the decision in Fairview Farm did not entitle the Court to find that the Committee's decision was unreasonable 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 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."
16. We feel that the "Enclosed Valley" is below the road. The Court, as we have said, has visited the site and listened most carefully to the arguments but we have little doubt but that the decision of the Minister was wrong, particularly in the light of the development permission which was "adjudged to improve the appearance of the dwelling". Additionally, anyone crossing the road, including the Appellants and their family, is in peril. The Court has examined most carefully Mr Lane's property and his driveway cannot be seen from the road and while the appellants are prepared to replant and re-seed the bank, the Minister could impose conditions on replanting. There is no reason, as far as the Court can see, why within twelve months it would be difficult, if not impossible, to see the access road. As the officer reporting to the Applications Panel said "the proposal would, inevitably, result in the loss of some vegetation, including trees. However it was noted that several of the trees likely to be affected are dead or dying already." We do not conclude that this particular section of the bank is "very prominent" as claimed in the reason for the refusal.
17. There were no objections to the development from such bodies as The National Trust or The Men of the Trees and we cannot see that Policy C5 is relevant for the purposes of the new proposed driveway. The Court, on a fine day, found the crossing of the road extremely hazardous and the decision to protect a small portion of the roadside bank is both unreasonable and mistaken.
18. We are prepared to grant the appeal. It will be for the Minister to impose such conditions on the replanting of the bank, the meeting of highway standards and the putting up of temporary traffic lights until the work is completed.
Authorities
Planning and Building (Jersey) Law 2002.
Island Planning (Jersey) Law 1964.
Craven and Elliott v The Environment and Public Services Committee [2004] JRC 061.
Le Maistre v Planning and Environment Committee [2001] JLR 452.
Token Ltd v Planning and Environment Committee [2001] JLR 698.