Jersey Unreported Judgments

[2010]JRC038

royal court

(Samedi Division)

22^nd February 2010

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Le Brocq and Le Cornu.

 

Mr and Mrs Burgess in person.

Mr D. Mills for the Respondent.

judgment

the bailiff:

1.        This is a third party appeal under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Law") by Mr and Mrs Burgess ("the appellants") against a decision made on behalf of the Minister under delegated authority by the assistant director of Planning (Development Control) on 18th August, 2009, whereby planning permission was granted for an extension to the property known as St Anne, La Petite Route des Mielles, St Brelade. 

Background

2.        St Anne is a white rendered detached bungalow situated on the south corner of the junction between La Petite Route des Mielles and Tabor Lane, which runs west into a cul de sac off La Petite Route des Mielles.  In 2008, the owner of St Anne ("the property") applied for planning permission to "remove roof and reconstruct new first floor.  Construct single story extension to rear, extend garage to southwest."  This application was refused on 6th March, 2009, on the following grounds:-

"At present St Anne is a simple and attractive property which has retained much of its original character and which benefits the character of the area in general.  It is considered that the proposed works (significantly, the awkward and contrived roof shape, the overly-large dormer windows and poor composition to the front elevation), would be inappropriate in scale, form and general design with regard to the property itself, as well as unreasonably affecting the character and amenity of the area.  Moreover, the rear-facing dormer windows would also have a detrimental effect on the privacy of neighbouring properties.  For these reasons, it is considered that the application fails to satisfy the requirements of Policies G2, G3 and H8 of the Jersey Island Plan, 2002."

3.        On 10th June a second application was submitted in respect of the property.  This was described as "raise roof to created living space at first floor.  Construct ground floor extension to rear of dwelling.  Construct extension to rear of garage."  The proposed development involved raising the roof by 0.8metres, creating two bedrooms and a bathroom in the new first floor with dormer windows to the front and rear, the creation of a sun room at ground floor level over what is presently a small terrace and an increase in the width of the garage.

4.        Six letters of objection were received from residents in the area and these were similar to objections to the first application.  The relevant grounds of objection for present purposes were summarised by the planning officer in his report to the assistant director as follows:-

"(i) Any increase in first floor accommodation will affect the privacy and general residential amenity of neighbours.  It could also set a precedent for other properties in the area to do similar;

(ii) The proposed development would alter, and be detrimental to, the whole character and appearance of Tabor Lane.  The 7 cottages making up Tabor Lane have survived with their original character largely intact;

(iii) The examples, provided by the architect, of other properties in the vicinity which have been altered over the years has created a 'mishmash of architecture, losing the quaintness and historical character of the area'".

5.        Following a site visit and the production of photographs, the planning officer submitted a report recommending approval.  This was considered by the assistant director of Planning (Development Control) on 18th August, 2009, and, as we say, planning permission was granted.

6.        Originally, four neighbours appealed against the decision on broadly similar grounds to those put forward by Mr and Mrs Burgess.  However on 1st November, 2009, they gave notice of abandonment of their appeals subject, as they put it, to "Planning and Environment implementing the following compromise:-

(i)        that the rear west facing dormer windows are removed from the application and replaced with high level Velux windows;

(ii)       that the extended garage is not to be used for any commercial;

The appeal

7.        The appellants essentially put forward two grounds of appeal before the Court:-

(i)        the scale and design of the development will detrimentally alter the character of the property St Anne and the area.

(ii)       the position, size and proximity of the rear first floor windows will result in overlooking and a loss of amenity to the appellants' property.

We would add that we had the benefit of a site visit on the morning of the hearing of the appeal which enabled us better to understand and appreciate the submissions being put forward by both parties.

8.        We propose to consider each of the two main grounds in turn but, before doing so, we should set out the relevant policies from the Island Plan.  The property lies within the 'Built Up Area' designated in the Island Plan 2002.  Para 8.127 of the Island Plan says this:-

"The intention of designating a built-up area boundary is to continue to contain future development within existing limits and thus prevent encroachment into the countryside.  Housing development will not therefore generally be allowed outside of the boundary except for the replacement of existing dwellings and conversions of existing buildings.  It is often said that there are many small corners of land in the countryside, which could take 'infill' developments.  On its own, such a development might not appear intrusive but the cumulative impact would be severe for the Island's countryside, travel patterns and cost of providing community and utility services."

9.         The principal planning policies which are relevant to this application are as follows:-

"Policy H8 - Housing Development within the Built Up Area

Proposals for new dwellings, extensions or alterations to existing dwellings or changes of use to residential, will normally be permitted within the boundary of the Built Up Area as defined on the Island Proposals Map, provided that the proposal:-

(i) ...

(ii) will not unreasonably affect the character and amenity of the area;

(iii) will not have an unreasonable impact on neighbouring uses and the local environment by reason of noise, visual intrusion or other amenity considerations...

(vii) is appropriate in scale, form, massing, density and design to the site and its context...

Proposals which do not satisfy these criteria will not normally be permitted."

10.      Policy G2 is entitled "General Development Consideration" and includes the following:-

"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 ..."

11.      The relevant part of Policy G3, "Quality of Design" 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 [Planning 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..."

The test on appeal

12.      As the Court emphasised to the appellants during the hearing, the Court is not the planning authority for the Island.  That responsibility rests with the Minister.  Whether to grant planning permission in a particular case is very much a matter of judgment and requires many competing factors to be taken into account.  There is room for reasonable disagreement as to the right result.  The Court may not intervene simply because the individual members of the Court might have reached a different decision from that of the Minister.  This is clear from Article 109(1) of the Law which provides that an appeal may only be allowed where the decision of the Minister "... was unreasonable having regard to all the circumstances of the case."  Guidance on what is meant by "unreasonable" is to be obtained from the well known decision in Token Limited-v-Planning and Environment Committee [2001] JLR 698 where Bailhache, Bailiff said this at para 9:-

"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."

Scale and design

13.      The appellants contend that the scale and design of the extension will detrimentally alter the character of the property itself and of the area.  They refer to the first application which was rejected.  In particular they cite the reasons given by the Minister to the effect that St Anne is a simple and attractive property which has retained much of its original character which benefits the character of the area in general and that the Minister considered that the proposed works would be inappropriate in scale, form and general design with regard to the property itself as well as unreasonably affecting the character and amenity of the area.

14.      They submit that the second application is very similar and that such differences as there are, are insufficient to justify a completely different decision.  They point out that St Anne is one of 7 originally identical bungalows constructed on the south side of Tabor Lane together with the two semi-detached houses at the western end of the lane.  Although a number of the bungalows have had extensions added to them over the years, all such are extensions situated on the ground floor.  The general shape and height of the roofs of the bungalows have not been changed.  Tabor Lane is situated on the edge of the built up area and, because of the low lying nature of the properties, there is a feeling of space and peace which is accentuated by the fact that the other side of La Petite Route des Mielles is countryside.  The proposed development of St Anne would be wholly out of keeping with the neighbouring properties, particularly those bungalows on the south side of Tabor Lane, of which St Anne is one.  It is a substantial development which would double the number of rooms in the property.  It would alter the feel of the area as one drove north up Le Petite Route des Mielles before turning into Tabor Lane.  In short, the decision in relation to the first application was correct and should be maintained in respect of the current application.

15.      On behalf of the Minister it was submitted that there were considerable differences between the first application and the second application.  The Court has been taken through the plans for each of them and the differences have been explained.  The key differences are as follows:-

(i)        The first application involved raising the roof and creating accommodation over the existing flat roof single floor extension at the north western end of the property.  In the second application, that is no longer the case and the existing single floor extension will not be built over.

(ii)       The first application involved the creation of four large dormer windows some 2.5 metres in width, compared with the smaller dormer windows in the current application which are only 1.1 metre in width.

(iii)      The size of the new first floor accommodation has been reduced in the second application, so that there is no longer an irregular partial extension of the roof towards the northern end of the western side.  This has reduced the mass of the building and also means that the roof will now be regular in appearance.

(iv)      There have been minor alterations to the front elevation addressing the "poor composition" referred to in the refusal of the first application, although this was accepted to be a fairly minor aspect.

16.      It was emphasised on behalf of the Minister that, under the Island Plan, the Built Up Area was considered the most appropriate area to extend property or to build new property so as to accommodate the Island's housing needs.  The Minister strongly supported this policy.  This would help prevent encroachment into the countryside.  The property in question was located in close proximity to amenities such as shops, bus routes, doctors and schools and could be seen as an ideal location for family housing.  It was therefore just the sort of area where extension of a property to increase the accommodation should be allowed where appropriate.

17.      It was submitted that the Minister was fully aware of the points on scale and design made by the appellants.  Thus the report from the planning officer to the assistant director had referred to the fact that many of the objectors pointed to the fact that the cottages forming the southern row of houses along Tabor Lane (of which St Anne was one) had survived since the 1930's with their original character largely intact and that, collectively, they have a distinct group value and identity which would be harmed by allowing the proposed development to go ahead.  The planning officer pointed out that the department certainly sympathised with that view and the general built character of the area was a key consideration when the first application was refused.  However the planning officer went on to say that the character of the area and the degree to which it would be affected by the proposal had to be balanced against the wishes of the applicant to improve, update and generally have the enjoyment of the family home.  The report went on to say that on balance, the planning officer believed it reasonable to permit the changes.

18.      It was also submitted on behalf of the Minister that, although the seven bungalows were built at the same time to a similar design, the surrounding area was in fact quite mixed.  On the opposite side of Tabor Lane there was a vacant open plot, a large shed and an extended one and a half story detached property.  There was no particular character of the neighbourhood on the northern side.  Furthermore, because St Anne was situated on the corner of Tabor Lane and La Petite Route des Mielles, it derived its character from both roads.  It was not aligned with the other bungalows in Tabor Lane but was set at an angle with its front elevation showing onto La Petite Route des Mielles.  That road itself was of mixed character with houses having been built at different times, some with extensions and some with roof conversions.  It was accepted that the variations in property were greater towards the northern end of the road, which was some distance away but even two houses to the south of St Anne, there was a property with a first floor extension and large dormer windows.

19.      In summary, Mr Mills submitted that the degree to which the extension would affect the nature and character of the area was a matter of opinion and degree and it could not be said that the decision was unreasonable.

20.      We accept that there are differences between the two applications as described above which are sufficient to justify a different decision being reached.  In particular, the fact that there will now be no extension over the top of the existing ground floor extension in the north west and that the proposed accommodation on the new first floor has been reduced so that there will no longer be an irregular and partial extension of the roof in the northern part of the western side, means that the mass of the proposed extension has been reduced and the appearance has been improved as compared with the first application.

21.      We fully understand the concerns of the appellants as to the relatively uniform appearance of the bungalows on the south side of Tabor Lane and if St Anne had been one of the bungalows which are in a straight line situated at a uniform distance from Tabor Lane itself, we might have allowed this appeal.  However, we accept the point made by the Minister that St Anne is situated at an angle at the corner of the junction of the two roads and takes its character from both Tabor Lane and La Petite Route des Mielles.  We also accept that the character of La Petite Route des Mielles, even at the south end, is not uniform or of a particular style in the way that the southern side of Tabor Lane is.

22.      Ultimately, as we have made clear earlier, the question for us is not what individual members of this court might have decided had they been the Planning Minister; it is whether the decision which the Minister took can be categorised as being sufficiently mistaken as to be unreasonable.  Having considered all the points made by the appellants and having had the benefit of a site visit so that we can fully appreciate the points which they have made, we have come to the clear conclusion that we cannot categorise the Minister's decision as being unreasonable in respect of the scale and design of the proposed extension.

Overlooking

23.      The first application involved the construction of substantial dormer windows in the west facing roof of the first floor extension.  These would clearly have enabled the appellants' property, which lies immediately to the west of St Anne, to be overlooked, both as to the front and rear gardens.  One of the grounds for refusal was that the rear facing dormer windows would have a detrimental effect on the privacy of neighbouring properties.

24.      In relation to the current application, the planning officer dealt with the matter in his report as follows:-

"There will clearly be some increase in the extent to which neighbouring properties could possibly be overlooked by virtue of the proposed rear dormers.  It is a subjective view, however, as to whether the scheme constitutes an unacceptable proposal in this respect.  In the department's view (which, admittedly, is subjective), the views afforded by the rear dormers is (sic) fairly oblique towards the nearest property, "St Mirren", to the south.  The private rear garden of "La Lande des Fleureuse" is in a direct line of sight of the southerly-most of the two proposed dormers around 15 - 20m away,  whilst the northern-most of the two dormers will look largely into the side elevation of [the appellant's property] to the immediate west.

The applicant has offered to install obscure glazing to the southwest facing dormer if this was considered necessary."

25.      In his affidavit explaining the decision, Mr Jonathan Gladwin, Senior Planner, stated that there would be no overlooking into the actual neighbouring houses and that any possible overlooking was only into the neighbouring gardens.  Mr Gladwin went on to say that the applicant has offered to install obscure glazing in both rear facing dormer windows or substitute them with 'Velux' roof lights if deemed necessary in order to reduce the degree of overlooking.

26.      It is clear that this is a matter of considerable importance to the appellants.  At present they have complete privacy in their garden in that any overlooking windows are a considerable distance away and do not intrude.  The proposed dormers at St Anne would be comparatively close and the appellants would lose their privacy, particularly in their rear garden.

27.      We have no hesitation in concluding that the decision not to insist on obscure glazing or Velux roof lights was unreasonable.  Privacy is important to people and a sudden loss of privacy can greatly affect the quality of life.  In this case there was no valid reason not to address the overlooking issue in one of the two ways now suggested.  It would not have a dramatic impact on the development and, as Mr Mills accepted during argument, the installation of Velux roof lights, with the lower edge of the roof light at the standard height of 1.7 metres above floor level would completely eradicate the risk of overlooking.  The Minister should have insisted on it.  We propose therefore to direct the Minister to add an additional condition to the planning permission to the effect that Velux roof lights at the height described should be installed on the rear side of the roof in place of the two dormer windows.  We leave the Minister to determine the exact wording. 

28.      Accordingly we allow the appeal to the extent of directing the Minister to add a condition in these terms.

Postscript

29.      We would make four observations by way of postscript.

30.      The first relates to the reasons which were given on 18th August, 2009, in support of the decision to grant planning permission.  The reasons were as follows:-

"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."

31.      In Steenson-v-Minister of Planning and Environment [2009] JRC 244A the Court made it clear that a statement of reasons in this form was whole uninformative and did not comply with the Minister's obligations (see paras 18 - 19 of the judgment of Bailhache, Deputy Bailiff).  We entirely agree.  Mr Mills emphasised that the department had taken on board the Court's observations in Steenson and that statements of reasons since then have been more detailed and informative.  The decision in this case was given before the judgment in Steenson and was accordingly in the old format.  We note that this will be a short term problem and should not arise in the future.

32.      The second observation relates to the terms of the standard letter which is sent by the department to those who have written in objecting to an application.  The letter to the appellants contained the following passage:-

"In the event that this application is put before the Planning Applications Panel for determination you will be notified of the date, time and venue shortly before the meeting."

33.      This was interpreted by the appellants as meaning that they would have an opportunity of putting their objections in person before a decision was taken.  In fact this did not happen and the next thing they heard was when notification of approval was received.  Mr Mills explained that the policy of the department was that, where matters went to the Planning Applications Panel, objectors would be notified of the date and time so that they could attend in person.  However, where matters were decided by officers under delegated authority, no hearing was held and accordingly objectors were not notified of the date and time that the decision would be taken. 

34.      We accept that, when read strictly and with an understanding of these different procedures, the letter is not untrue.  However, it is clearly liable to lead to misunderstanding and to give a false impression to objectors that they will have an opportunity of presenting their objections in person.  Mr Mills accepted that this was so and undertook to review the matter with officers of the department.  The standard letter should make clear that planning applications may be dealt with by the Planning Applications Panel or may be dealt with by officers under delegated authority and that (assuming this remains the policy) it is only in the former case that objectors will be notified of the hearing and have an opportunity of voicing their objections in person.

35.      Thirdly, we mention briefly the matter of the garage.  The appellants did not pursue the point mentioned in some of the objections that the garage had allegedly been used for commercial purposes.  They were correct not to do so.  However, as Mr Mills confirmed during the hearing, if the garage were to be used for commercial purposes, this could amount to an unauthorised change of use (the current use being purely residential), in which event the appropriate enforcement action could be taken.

36.      Finally, we wish to pay tribute to the manner in which the appellants presented their case.  No doubt they will be disappointed with the outcome, but they may rest assured that they put forward all their points to the Court in a very clear, coherent and persuasive manner which was most appreciated by the Court.

Authorities

Planning and Building (Jersey) Law 2002.

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

Steenson-v-Minister of Planning and Environment [2009] JRC 244A.