Jersey Unreported Judgments

[2009]JRC244A

royal court

(Samedi Division)

14^th December 2009

Before     :

W. J. Bailhache, Esq., Deputy Bailiff, and Jurats de Veulle and Tibbo.

 

The Appellant appeared in person.

Mr D. Mills for the Minister

judgment

the deputy bailiff:

1.        The appellant is the owner of the property Vue des Illes, Rue de Grouet, Petit Port, St Brelade.  His neighbours are the owners of the property Eventide, in respect of which they submitted an application for a planning permission.  A supporting letter was dated 10^th December, 2007, and although there appears to be some confusion over dates, which is not a material matter for the purposes of this appeal, the application appears to have been received by the Planning and Environment Department on 15^th January, 2008.  The description of the works which were the subject of the application was:-

"Take down existing roof, replace existing roof with new roof structure.  Extension of existing floor space from 450 sq metres to 520 sq metres."

2.        The application was advertised in the usual way.  The appellant told the Court that he attended at the Planning Office to review the plans, and that he submitted thereafter letters of objection to the proposed application.  The primary grounds for objection were that the proposed development was out of keeping with the area, would substantially impact upon the privacy which the appellant enjoyed at his property, and would obstruct the view from his property. 

3.        The application was considered by a Design Review Group at Planning and Environment on 15^th August, 2008.  It appears that the focus of the group was, as its name suggests, design review, rather than a comprehensive focus on the nature of the application when set against the Island Plan and all the relevant planning considerations which had to be taken into account in order to determine the application.  The reference in the minutes of the meeting of the group in relation to this property read as follows:-

"Eventide

The first floor does not relate to the floor below.  The presentation of the drawings do not help bring this scheme to life, but nevertheless, there is simply no cohesive relationship between the new and the existing.  The stair access to roof does not need to be covered (and therefore the "pimple" on the roof is unnecessary)".

It seems clear that the Design Review Group was considering only the question of design. 

4.        The planning case officer subsequently contacted the applicants' architect to advise on recommendations for an amended planning application.  The Court was informed that the recommendations included:-

(i)        A suggestion that the character of the existing building should be retained, with the front gable feature to remain as a strong feature;

(ii)       Encouragement towards a simpler redevelopment of the scheme, namely the lifting up of the roof and insertion of a light-weight glazed floor above the existing upper ground floor.

5.        There were a number of discussions between the Planning case officer and the applicants and/or their architect, and amended plans were submitted on 20^th March, 2009, and re-advertised in the usual way.  The revised description of the work involved was as follows:-

"Remove roof and construct additional storey with balconies.  Construct stairwell extension to north west elevation.  Various external alterations.  AMENDMENT: revised design"

6.        The appellant informed the Court that he attended at the Planning Office to review the revised plans.  He submitted a further objection in writing on 28^th April, 2009.  He reinforced the views previously expressed in his letters in May 2008 and contended that the new proposals put forward by his neighbours would significantly impact upon the landscape even more than the proposals originally put forward. 

7.        On 4^th June, 2009, a planning permit was issued to the applicants.  The reason given for approval was that:-

"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"

8.        The permit was signed by Mr A Coates, on behalf of the Director of Planning, as we understand it on delegated powers from the Minister.  On 5^th June, 2009, the Planning and Environment Department notified the appellant that a planning permission had been given.  The reason for approval was that cited above.  The appellant was also notified of a standard condition in relation to the time within which the development had to commence and a further condition attached, namely that prior to the commencement of the development being permitted, samples of the roofing material, external wall finish, window and external doors and frames, rainwater goods, balustrade materials and any new external lighting to be used to construct the various new elements should be submitted to and approved in writing by the Department. 

9.        By letter dated 18^th June, 2008, the appellant responded to the Department's letter to indicate his dismay at the decision to grant planning permission.  He indicated that he had been expecting an opportunity to make oral submissions, which had been denied him, and that the generic wording of the reasons for the Minister's decision left him in a position of "having no idea at all as to the Minister's views on the various submissions which I made".  In the circumstances the appellant indicated that he had no option but to appeal, and accordingly he served a notice of appeal and the matter came before us. 

10.      The appeal is brought by the appellant as a person who falls within Article 114 in Part 7 Chapter 2 of the Planning and Building (Jersey) Law 2002 (the "2002 Law") in relation to that decision appealed against.

11.      By Article 109, the grounds for an appeal are as follows:-

"(1)     An appeal under Chapter 2 may only be made to the Royal 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.

(2)       Paragraph (1) applies to -

A refusal by the Minister to which Article 113(1) applies;

The grant by the Minister of planning permission to which Article 114 applies or of a part of any such permission"

12.      It is settled in the legislation and in the Rules that where a third party appeal of this kind is brought, the persons interested in the appeal include the person who would, but for Article 114, have the benefit of the planning permission for the time being, and that such persons may appear on the appeal.  The Court was informed that the appellant had served a copy of the notice of appeal on the applicants, who were aware of the appeal and who had determined not to participate in the hearing.  The Court notes that it was entirely their right to choose not to be joined to the appeal, and they must therefore be taken to acquiesce in whatever is the decision of the Court on that appeal.

Procedural Objections

13.      The Court has noted that the Master of the Royal Court ordered on 29^th September, 2009, that this appeal should be dealt with under the modified procedure pursuant to Rule 15/3A of the Royal Court Rules 2004.

14.      The appellant sought leave to adduce additional evidence before the Court namely two additional affidavits, one sworn by him and the other sworn by a Mr Jorg Gustav Haertwig, the architect, or (more accurately) perhaps former architect, of the applicants, both sworn on 28^th October.  The Minster objected to the admission of these affidavits on the grounds that the appellant, who is an Advocate of the Royal Court and could be expected to have a degree of familiarity with the Royal Court Rules, had paid little attention to the Rules and that the submission of the additional affidavits at that stage was an abuse of process, and unfair to the applicants, particularly insofar as the affidavits dealt with some matters personal to the applicants which indeed it was said by the Minister were among the reasons for the applicants not participating in the appeal.  The Minister also asserted that the architect was operating under a conflict of interest which meant that his affidavit should be disregarded in its entirety. 

15.      At the time of the hearing of the appeal the Minister's legal representative confirmed that the Minister did not rely on any of the personal circumstances of the applicants for the purposes of the decision which had been taken to grant planning permission.  In those circumstances, it appeared to the Court that the additional affidavits, which of course the Court had seen, were irrelevant to the matters before it, and we gave leave to the appellant to admit them but have in fact disregarded these affidavits for the purposes of our decision.

16.      A part of the hearing was taken up with submissions as to the reasons given on behalf of the Minister for the decision, and communicated to the appellant as described in paragraphs 8 and 9 above.  The appellant made the point that it was very difficult to say whether the decision was unreasonable when looking at the explanation for the decision which had been given, and that he had no real alternative but to appeal; indeed he had been encouraged by one of the planning officials to appeal.  For the Minister, it was contended that the fact that reasons are inadequate does not mean that the decision failed, and reliance was placed on the case of Caesar Investments Limited-v-Planning and Environment Committee [2003] JLR 566 at paragraph 31, where the Court cited with approval a passage from De Smith Woolf & Jowell Judicial Review of Administrative Action 5^th Edition, para 9-055 at 469-470. 

It was also contended on behalf of the Minister that the reasons for the decision were clearly set out in a Planning and Environment Department report headed ASS - HXT - Application Assessment Sheet House Extensions and Other Small Scale Proposals, referred to later in this judgment.  This document was supplied to the appellant with an affidavit sworn on behalf of the Minister on 29^th July, 2009, after the notice of appeal had been issued. 

17.      On the face of it, the reasons given by the Planning and Environment Department to the appellant as to why planning permission was granted to his neighbours must be found in the formal notification to the appellant.  That must be so unless, as the Court set out in Caesar Investments Limited-v-Planning and Environment Committee, there are real grounds to suspect that those reasons were not the true reasons, or were merely an ex post facto rationalisation of the decision.  In this case however, the reasons provided to the appellant were wholly uninformative.  They gave him no basis for assessing whether there was any realistic prospect of success if he were to exercise his statutory rights of appeal against the decision taken.  The approach which was adopted here was very much the approach of "parroting the statutory language" which was so criticised by the Court of Appeal in Housing Committee-v-Phantesie Investments Limited [1985-86] JLR 96 at page 112. 

18.      As it happens, the Court has been given the contemporaneous reasons for the Minister's decision, and we decide this appeal on that basis.  The insufficiency of reasons formally given to the appellant by the Minister is, therefore, on this occasion disregarded, but we think it right to add that there may well be occasions in the future when it would be right to penalise the Minister in costs if this approach were to recur, even in cases where the Minister successfully resists the appeal.  It is not right as a matter of principle that an appellant should be driven to commencing an appeal, with all the anguish, uncertainty and potential cost that taking such a decision involves, simply in order to ascertain the reasons why an administrative decision has gone against him.

The Legal Test on Appeal

19.      It is necessary to say a few words about the legal test on appeal because it was said on behalf of the Minister that the appellant was asking the Court to prefer his view to that of the respondent on the planning aspects of the matter and that the Court should not accept that invitation but only intervene if the appellant demonstrated that the respondent's decision was not only mistaken but positively wrong.  In that context, reliance was placed not only upon Token Limited-v-Planning and Environment Committee [2001] JLR 698 but also upon that part of the judgment of the Royal Court in Kerley-v-Minister for Planning and Environment [2008] JRC 199 at paragraph 38 where the Court said:-

"38.                The Solicitor General reminded us of the following:-

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 [2003] JLR 566. 

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).

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.

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).

The Minister needs to be satisfied that he has available the information necessary to reach a conclusion on the issues before (him) it (Secretary of State for Education and Science-v-Tameside MBC (1977) AC 1014 at page 1065."

20.      An appeal under Part 7 Chapter 2 of the 2002 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.  Although the 2002 Law now makes provision for Third Party Appeals, the grounds of appeal are the same as the grounds of appeal under the Island Planning (Jersey) Law 1964, and the basis upon which the Royal Court should approach appeals of this kind is well settled.  It is clear that if the proceedings of the decision taker are generally insufficient or unsatisfactory, or if the decision is one which the decision taker was not enabled by Law to take, the Court can intervene.  But it is also clear that the Court should intervene if it considers that the decision taker has arrived at a decision which is unreasonable in all the circumstances of the case.  This is not what is colloquially referred to as Wednesbury unreasonableness.  The Royal Court is called upon to exercise a judgment as to whether it thinks that the decision of the Minister was unreasonable.  In order to reach its conclusion the Court must obviously form its own view about the application; in the words of the Court of Appeal in IDC-v-Fairview Farm [1996] JLR 306 at page 317, the Court "cannot escape the responsibility of forming its own view".

21.      In Token Limited-v-Island Planning and Environment Committee [2001] JLR 698, at pages 703 to 704, the test was elaborated in this way:-

"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.      That approach was endorsed by the Court of Appeal in Planning and Environment Committee-v-Le Maistre [2002] JLR 389 at paragraph 25.  In the same case, the point was put slightly differently by Rokison J A when he said at paragraph 57 that:-

"the Royal Court did fall into the trap of construing the guidance given by this Court in Fairview Farm as requiring or entitling it to consider afresh whether it would be reasonable to permit the development, rather than whether or not the decision for the Island Planning and Environment Committee to refuse it was unreasonable.  The difference may be subtle, but in many cases it may be, and in this case in my view is, important".

23.      This passage therefore reminds us that the test in this case is not whether the Court would or would not have granted a planning permit, had it been the Minister, but whether it was unreasonable for the Minister to grant the permit which he did.  We think it is unhelpful to debate how mistaken a decision needs to be before it becomes unreasonable.  It is simply a matter for the Court to determine whether in its judgment the decision taken by the Minister was unreasonable in all the circumstances of the case, and in order to reach that decision the Court will of course have had to form its own view about the merits of the application.

24.      The Court has referred to what is an established test on these appeals because it seemed to be implied by, if not contended for, the Minister that the Royal Court should not interfere with the Minister's judgment as to the weight which he had ascribed to the different factors he had taken into account.  If that was the contention, it seems to us to be close to a submission that as long as the Minister had taken into account all the factors that he should have taken into account and not taken into account any factors he should not have taken into account, the Court should not interfere with his decision. 

25.      We do not think that is the right approach and we have noted that the Solicitor General's propositions described by the Royal Court as reminders in the case of Kerley were not contested; both the appellant and the applicant appearing in person.  Leaving aside the Caesar Investments decision, the other cases referred to were English cases based upon a different planning regime with differently framed statutory provisions.  Taking Bolton Metropolitan Borough Council-v-Secretary of State for the Environment and Greater Manchester Waste Disposal Authority [1991] 61 P. & C.R. 343 as an example, that case concerned an appeal under section 23 of the Acquisition of Land Act 1981 against the decision of the Secretary of State to order the compulsory acquisition of land belonging to the appellant.  It is not entirely clear from the judgment that the summary of its effect as put to the Court in paragraph 38 (ii) of the Court's decision in Kerley is 100% accurate, but even assuming that to be so, the statutory provision in section 23 of the 1981 Act is quite different from our own.  It is in these terms:-

"23     (1)        If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase order thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court."

Section 23(2) allows a similar application where the person aggrieved wishes to contend that a relevant requirement has not been complied with. 

26.      Such a statutory provision is some distance away from the right of appeal conferred by Part 7 of the 2002 Law.  The Court is bound to note that that right of appeal is the only mechanism, other than judicial review to the extent that is available if at all, by which in Jersey a person aggrieved can have an administrative planning decision by the Minister reviewed, unlike the position in the United Kingdom.  There would seem to be much merit in allowing as full a review of the decision as the language of the statute permits. 

27.      It is not clear whether the Court in Kerley accepted the arguments advanced by the Solicitor General and summarised at paragraph 38 of its judgment.  Furthermore, this Court has not heard reasoned argument on these matters and it is not minded therefore to reach any concluded view on them in this appeal.  If the situation should arise again whereby it is likely to be contended that the approach summarised in paragraph 38 of the Court's judgment in Kerley should be adopted, it would be desirable that there be full argument and that the modified procedure for the appeal should not be used. 

28.      Before leaving this issue of the approach which the Court ought to take on these appeals, we would like to add only this.  In Trump Holdings Limited-v-Planning and Environment Committee [2004] JLR 232 the Court of Appeal was considering again the nature of an appeal against a planning decision (under the Island Planning Law 1964, but that is of no consequence as the grounds of appeal are the same under the 2002 Law).  Southwell J A said this at paragraph 69:-

"I agree entirely with the judgment of Smith, J. A. and add only the following points which I wish to emphasise:-

(1) In my judgment the statement of the test under Article 21 of the Island Planning (Jersey) Law 1964, as amended, contained in the Bailiff's judgment in Token is the correct statement of the test.  It materially differs from the statement in this Court in Fairview Farm.  The difference is not merely a semantic one.  The statement of the test in Token is the one which, in my judgment should be followed by the Royal Court in cases arising under Article 21 of the Planning Law, and the statement in Fairview Farm should no longer be followed"

29.      We refer to this because this passage was referred to by the Royal Court in its judgment in the case of McCarthy-v-Planning Minister [2007] JLR 167 at paragraph 32 and we think it would be helpful to restate the position. 

30.      In our view the Royal Court must follow the authority of Fairview Farm.  It is clear that that case has been applied by the Court of Appeal not only in the case of Planning and Environment Committee-v-Le Maistre but also indeed by the majority in Trump.  The Royal Court's elaboration of the test in Token has similarly been approved.  This Court has approached the present appeal on the legal tests adumbrated by Fairview Farm, as elaborated by the passages in Token which have been approved by the decisions of the Court of Appeal referred to above. 

Appeal Contentions

31.      The main grounds of appeal advanced by the appellant were these:-

(i)        There was a lack of transparency on the part of the Planning Department and it was difficult to unearth how Planning came to their eventual decision. 

(ii)       Insufficient consideration was given to the Island Plan and in particular the conditions imposed on Green Zone areas; to the need to treat the area consistently based on previous oral assurances regarding development in and around Petit Port; to the need to conserve flora and fauna at Petit Port and to the appellant's objections as owner of the neighbouring property. 

32.      In the written submissions, the appellant also placed reliance on the affidavit evidence which was put before the Court and which deals with personal matters regarding the applicants and their architect, none of which the Court considers to be relevant for the reasons already given, the Minister has confirmed that these matters were not material to the grant of planning permission in the first instance.

33.      In addition the appellant contends that the Planning Department has engaged in processes which are incompatible with the Human Rights (Jersey) Law 2000 in that he was led to believe that he would have the opportunity to make oral submissions to the Minister, and was not informed that his objection would not be considered in terms of the loss of his private view and the effect on the value of his own property were a permit to be granted.

The Minister's submissions

34.      It was contended on behalf of the Minister that-

(i)         The reasons for the decision could be ascertained from the materials supplied;

(ii)       The Appellant's objections were taken into account, although the respondent did not agree with them.  The fact of such disagreement did not make the respondent's decision unreasonable, and the weight to be given to the objections was a matter for the Respondent. 

(iii)      There is no right to be heard on a planning application as the appellant contended. 

(iv)      The proposed development was not of character with the surrounding landscape. 

(v)       The proposed development did not materially increase the degree to which the appellant's property is presently overlooked. 

(vi)      The appellant had no right to a view but in any event, the appellant's property would continue to have a considerable angle of view even after the proposed development. 

(vii)     Any diminution in the value of the appellant's property is not a relevant planning consideration nor a matter that gives rise to any possible infringement of Article 8 of the European Convention of Human Rights. 

35.      Insofar as the claim to an infringement of Article 8 of the Convention is concerned, and in the absence of any local authority, the Minister relied upon two decisions of the English Court of Appeal:- Lough and Others-v-First Secretary of State [2004] 1 WLR 2557 and R (on the application of Dicken)-v-Aylesbury Vale DC [2007] EWCA Civ 851.

36.      Lough concerned an application to the High Court to quash the grant of planning permission given to a proposed development involving the demolition of existing buildings and redevelopment to provide for a 20 storey building with 28 dwellings and shops and restaurants on the ground floor on the grounds that the proposed development breached residents rights of respect for their private and family life and homes under Article 8 of the Convention.  The principle judgment was given by Pill L J.  After a lengthy review of some authorities, he said at paragraph 43:-

"It emerges from the authorities:

(a) Article 8 is concerned to prevent intrusions into a person's private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered.

(b) Respect for the home has an environmental dimension in that the Law must offer protection to the environment of the home.

(c) Not every loss of amenity involves a breach of Article 8(1).  The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances but it must be substantial.

(d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded. 

(e) It is also open to the public authority to justify an interference in accordance with Article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the Article. 

(f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered.

(g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with Article 8. 

(h) The margin of appreciation may be wide when the implementation of planning policies is to be considered."

37.      On the facts of that case, it was found that Article 8 made no significant impact upon the task to be performed by the Inspector.  As the Judge put it at paragraph 45:-

"Article 8 with its reference to the protection of the rights and freedoms of others, and Article 1 of the first protocol with its reference to a persons entitlement to the peaceful enjoyment of his possessions, acknowledge the right of a landowner to make beneficial use of  his land and subject, amongst other things, to appropriate planning control.  As Sullivan J stated in R (Malster) the Ipswich Borough Council (2001) 5 PLCR 251, 275 para 89 in relation to Article 1, the prospective developer "is equally entitled to the enjoyment of its possessions".

"Paragraph 46 I am far from persuaded that, in circumstances such as the present, domestic law in general and the planning process followed in this case in particular, failed to have regard to the Article 8 rights of people in the vicinity of the appeal site, including the applicants".

38.      The Judge concluded:-

"There remains the discrete question on the Inspector's finding that "matters of property valuation" do not amount to material planning considerations, and its bearing on convention rights.  I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent but, in his reply, Mr Clayton, as I understand it, sought to create diminution of value as a separate and distinct breach of Article 8 and Article 1 of the first protocol.  Having regard to the background and purpose of each Article, I do not accept that submission.  A loss of value in itself does not involve a loss of privacy or amenity and it does not effect the peaceful enjoyment of possessions.  Diminution of value in itself is not a loss contemplated by the Articles in this context.

I do not underestimate the importance to landowners of a loss of value caused by neighbouring developments but it does not in my view constitute a separate or independent basis for alleging a breach of the convention rights involved.  The weighing of interests should not be converted into an exercise in financial accounting to determine the loss to the respective land owners and to the community". 

39.      This decision was considered by the Court of Appeal in the case of R-(on the application of Dicken)-v-Aylesbury Vale DC, where Laws LJ, having cited the conclusions set out in Pill L J's judgment, said this:-

"[That reasoning] disposes of the suggestion which Mr Clayton would pursue, if it were open to him, that there is here a potential violation of Article 1 of the first protocol to the European Convention on Human Rights.  It also establishes that diminution in property values per se is not generally to be regarded as a planning consideration.  So far as the loss of value is said to be evidence of loss of amenity, loss of that kind is as it seems to be better judged directly, and it cannot be argued here that the local authority failed to have regard to the development's prospective effects on amenity."

40.      The appellant did not contest this analysis of the proper approach to consideration of his convention rights.  Notwithstanding that we have not heard argument in relation to the matter, this Court finds the reasoning set out in the two English Court of Appeal cases above to be compelling and adopts it. 

The Reasons For The Decision

41.      It was contended by the Minister that the reasons for the decision could be found in the Planning and Environment Department report presented to us.  This is a pro forma sheet with a number of boxes requiring completion.  The sheet contains a requirement to fill in the address where the works are to be carried out, and a description of the work in question.  There is a box requiring completion to indicate the zone in which the property falls, and whether or not the property is a listed building.  A reproduction of the entirety of the form and the answers given in this case is set out below.

ASS-HXT - APPLICATION ASSESSMENT SHEET HOUSE EXTENTIONS AND OTHER SMALL SCALE PROPOSALS

 

Application No:
Address:	Eventide, La Rue du Grouet, St Brelade
Description of Work:	Remove roof and construct additional storey with balconies.  Construct stairwell extension to north west elevation.  Various external alterations. AMENDMENT:  Revised design.
Zones/Listed:	Green Zone

 

MATERIAL CONSIDERATIONS:	OK	NOT OK or MARGINAL
-        No history that affects this application	X
-        Design
In keeping	Ok
Subservient to main building	Complementary to the main building
Windows & Doors sympathetic	Ok
Materials
-        Impact on Neighbours
Overlooking	X
Overbearing	X
-        Car Parking and Highways	OK
-        No Consultations	X
-        Any Consultee Objections addressed	N/A	Describe
-        No Objections	Objection from neighbour - see below
-        Drainage	OK
-        No other Issues	X

 

SUMMARY The original plans were the subject of a Design Review Group session where it was agreed that the "character" of the existing dwelling should - if possible - be retained, with the front gable feature to remain as a "strong" element.  Encouragement was given to a more simple re-development of the scheme, namely the lifting up of the roof and insertion of a lightweight glazed floor above the existing upper ground floor. Case Officer subsequently met with applicant and architect on a number of occasions to secure suitable revisions.  Latest plans reflect these discussions. Letter of objection from neighbour to the west who raises the following concerns: -        They doubt that the development is for the applicant's disabled daughter as stated in the applicant's case.Affect on view from first floor balcony. -        Proposal will be out of keeping with area. -        Loss of privacy from terrace and balconies which are unnecessary. -        The objector's house would not be granted today if it was a new proposal, so we shouldn't be looking to approve other large developments. Case Officer's Notes: View - the objector's wide angle of view will not be impinged, other than, perhaps, that element that actually traverses the application site - a view that the objector has no legal right to maintain. Character of area - There is no defining property type in the Petit Port area, and the character of the applicant property will not be fundamentally different under the new scheme.  The resultant property would retain the linear feel which would not significantly alter or detract from the character of the area.  Loss of privacy - The new works should not result in any significant loss of privacy to the neighbour.  The properties are in close proximity to each other and the objector's property overlooks the applicant property to the greater extent. THE PROPOSED WORKS ARE IN LINE WITH RECOMMENDATIONS FROM THE DEPARTMENT'S DESIGN REVIEW GROUP AND DO NOT CONFLICT WITH THE POLICIES OF THE ISLAND PLAN. THE CONCERNS OF THE OBJECTOR HAVE BEEN CAREFULLY CONSIDERED, BUT IT IS NOT ENVISAGED THAT ANY SERIOUS DISAMENITY WOULD ACRUE.  ACOATES

 

JEP ADVERT	X
SITE NOTICE	X
RECOMMENDATION
Officer	Approval, subject to conditions A Coates
Signature		Date:
Drawings to be approved	A:  Location Plan B:  Existing Elevation & Section G:  Design Statement H:  Waste Management Plan I:    Proposed First & Second Floor Plans 1 J:   Proposed Elevation & Section K:  Proposed Elevations
Any Conditions/Reasons	Materials

 

42.      It is apparent from this document that although it is noted that the application is in respect of a property which falls into the Green Zone, there is no analysis of the application when set against the policies which are to be applied in the Green Zone in accordance with the Island Plan.  When this was put to those representing the Minister, there were two responses.  The first was that the planner was a planning official who knew the Island Plan and it was unnecessary for the form to indicate his reasoning in reaching the views he did.  It was said that it was always a difficult balancing exercise when planned (planning) policies had to be applied, and in effect the Court could rely upon the fact that the planner would have regard to the relevant policies.  The second answer was that the fact that the Design Review Group had looked at the proposal and made suggestions as to the retention of the character of the existing dwelling, showed that there was no objection in principle to the development in the Green Zone, and the only question was as to the type of development which ought to be encouraged.  We will return to this matter later in this judgment.

43.      Having read the papers in advance, the Court considered that it would be useful to pay a site visit so as to gain a better impression of the effect of the planning permit which had been granted.  The site visit was particularly useful for the purposes of reviewing the assessment made by the Minister of the objections of view and loss of amenity, and loss of privacy, which the appellant had put forward.  It was also particularly helpful to enable the Court to form a view as to the character of the general area. 

44.      That character is described in the Island Plan 2002 as Area G1, St Ouen's Bay.  The description of land form and shoreline is as follows:-

"The bay forms a smooth arc containing a wide, gently sloping sandy shoreline.  It is over 6 km in length comprising almost the whole of the west coast of the Island.  As well as the sandy bay the area also includes small rocky inlets at Le Pulec, Le Petit Port and Le Grouet.  The two rocky prominences at La Grande Etacquerel in the north and La Corbiere in the south are very conspicuous landmarks, visually containing and defining the character area." 

The evaluation continues:-

"Integrity of character: the inter tidal area of St Ouen's Bay is one of the few areas on the Island where a landscape/seascape can be experienced on a vast scale.  It is extremely important in being the only large inter tidal area backed by a virtually undeveloped coastal edge and this is especially valuable in engendering a sense of remoteness and wildness.  It is the only inter tidal area on the Island which faces directly westward and lies exposed and open to the full force of the Atlantic.  The distinctive and unique local character and wild, rugged seascape of St Ouen's Bay should be conserved and enhanced".

Among the identified threats are:-

"further large scale development (hotels etc) along the coastal edge (in the adjacent terrestrial character area) will have an effect on the sense of remoteness.  Developments should be encouraged to relocate away from the extreme coastal edge". 

45.      The Island Plan policies relevant to this area are these:-

"Island Planning Policy C5 - Green Zone

The areas designated as Green Zone on the Island Proposals Map will be given a high level of protection and there will be a general presumption against all forms of new development for whatever purpose. 

The Planning and Environment Committee recognises, however, that within this zone there are many buildings and established uses and that to preclude all forms of development would be unreasonable.  Thus, the following types of development may be permitted but only where the scale, location and design would not detract from, or unreasonably harm the visually sensitive character and scenic quality of this zone:

Domestic extensions and alterations

...

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 whether it accords with the principles of sustainability which underwrite the plan."

46.      Mr Jonathan Gladwin, a senior planner at Planning and Building Services, in his affidavit, suggested that Plan Policy C5 (ii) was also relevant, which concerns limited ancillary or incidental buildings within the curtilage of a domestic dwelling.  We do not see the relevance of this particular sub-paragraph although it does not affect the decision which the Court has made.  In our view the present application is for a domestic extension and/or alteration, and cannot be described as an ancillary or incidental building within the curtilage of the existing dwelling. 

47.      The second relevant policy is Policy G2 which is as follows:-

"General Development Considerations

Applicants need to demonstrate that the proposed development:

Will not unreasonably affect the character and amenity of the area;

Will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations;

..."

48.      The remaining plan(ning) policy to which Mr Gladwin referred was Plan Policy G3 the material parts of  which are in these terms:-

"Quality of Design

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 Planning and Environment Committee 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;

(iii) the degree to which design details, colours, materials and finishes reflect or compliment the style and traditions of local buildings;

...

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

49.      The site visit conducted by the Court revealed that the property Eventide is constructed some 15 yards from and only very slightly elevated above the main coastal road.  Other properties in the neighbourhood, including the property belonging to the appellant, have been constructed further up the escarpment.  The site visit revealed clearly to the Jurats that the proposed development not only did not retain the character or mass of the original building, and was therefore out of scale and proportion and would make the property a wholly different type of property, but that it was also quite out of scale with the buildings in the near vicinity, other perhaps than the former Seacrest Hotel. 

50.      The Court was also of the view that there was no doubt at all that there would be a very substantial impact on the appellant were this development to go forward.  As is presently noted in the case officer's notes, the appellant's property currently overlooks the applicant property to the greater extent, by nature of the appellant's property being built further up the escarpment.  The appellant currently has a private back garden, and, perhaps to a lesser extent, some privacy from his front balcony.  The effect of the proposed development would be to remove any privacy from the back garden, and also to affect adversely the privacy on the front balcony.  Finally the site visit confirmed that the effect on the views which the appellant enjoyed not only from his front balcony but also from his back garden would be very significant.  Indeed, the view to the north would be very restricted indeed.  The appellant produced photographs to the Court which confirmed this potential impact of the development. 

Decision

51.      The Court's view is that the description of the proposed works as advertised was some way away from the reality of what the application entailed.  If the development proceeds, the applicant's property, we were told, would have a built area of approximately five hundred and sixty square metres, a substantial increase on what is currently there and a building of a mass which in the Court's judgment would be out of proportion to the neighbouring area both in size and in character.  It is true that the ridge line of the property would probably be no higher than the ridge lines of the properties of the appellant and also of the neighbours to the east, but the applicant's property is built lower down the hill, which emphasises the difference in mass. 

52.      As far as building character is concerned, there is nothing in the Petit Port area which is very similar.  The Court notes the observation of the planning officer that there is no defining property type in this area, and accepts that in the sense of building style, but not in the sense of building size and mass. 

53.      The Court also accepts that the impact on the appellant's privacy, particularly in his garden behind the house where his swimming pool and sitting out area are to be found, would be very significant.  That privacy would be lost to a great degree. 

54.      While the appellant has no right to a view, he does have a right to expect planning policies in the Green Zone to be applied, sensibly and sensitively.  In this case the applicants' property is in the sensitive area of St Ouen's Bay, albeit at its southern extremity, and on a reading of the Island Plan and policies contained in it, the appellant would be entitled to think that significant development of an adjoining property was unlikely. 

55.      Policy G5 essentially amounts to a presumption against development in the Green Zone.  That does not mean there will never be development in that Zone; as is said in the Plan, that would be unreasonable.  Each site, each proposal, must be viewed on its merits.  But the starting point is the presumption which Policy G5 sets out and an assessment against that presumption of the proposal's "impact on the visually sensitive character of this Zone and whether it accords with the principles of sustainability which underwrite the plan".

56.      The Court had absolutely no difficulty in reaching the view from its site visit that it would not have granted the applicants this permission on the grounds that the mass and scale of the proposed development was out of all proportion to the existing building and to the character of the area.  The new building, if approved, would dominate the area in an overbearing way, as well as impact very significantly on the privacy enjoyed by the appellant. 

But that is not the test.  The question is whether the grant of the permission is unreasonable in all the circumstances. 

57.      The Court thinks it was.  Adopting the approach set out at paragraph 13 of the Court's judgment in Anchor Trust-v-Jersey Financial Services Commission [2005] JLR 428, we have asked ourselves not just whether the Minister's decision is one the Court would have reached, forming our own view of the merits as Fairview Farm enjoins us to do, but whether, if not, it is one which the Court would categorise as unreasonable.  The Court considers it was, having been much assisted by the opportunity of carrying out a site visit, for essentially these reasons:-

(i)        The Minister has shown no adequate basis for displacing the Island Plan's required presumption against development in the Green Zone;

(ii)       The Minister's view that the proposed development would not result in any significant loss of privacy to the appellant was so wrong as to be even Wednesbury unreasonable;

(iii)      The view that the applicant's property, if the development were approved would "retain the linear feel which would not significantly alter or detract from the character of the area" was also plainly unreasonable because the height and mass of the new building would significantly do just that.  

58.      In the circumstances, the appeal is allowed and the planning permission given to the applicants is set aside.  The permission given is not capable of being saved, as the legal representative of the Minister contended, by the imposition of a condition requiring the construction of a privacy screen, for reasons which must be apparent from paragraph 56 above. 

Authorities

Planning and Building (Jersey) Law 2002.

Island Planning (Jersey) Law 1964.

Acquisition of Land Act 1981.

Human Rights (Jersey) Law 2000.

Royal Court Rules 2004.

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

De Smith Woolf & Jowell Judicial Review of Administrative Action 5th Edition.

Housing Committee-v-Phantesie Investments Limited [1985-86] JLR 96.

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

Kerley-v-Minister for Planning and Environment [2008] JRC 199.

IDC-v-Fairview Farm [1996] JLR 306.

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

Bolton Metropolitan Borough Council-v-Secretary of State for the Environment and Greater Manchester Waste Disposal Authority [1991] 61 P. & C.R. 343.

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

McCarthy-v-Planning Minister [2007] JLR 167.

Lough and Others-v-First Secretary of State [2004] 1 WLR 2557.

R-v-Aylesbury Vale DC [2007] EWCA Civ 851.

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