Jersey Unreported Judgments

[2010]JRC105A

royal court

(Samedi Division)

4^th June 2010

Before     :

Sir Philip Bailhache, Commissioner, and Jurats Morgan and Marett-Crosby.

 

Advocate N. S. H. Benest for the Appellant.

H. Sharp QC, Solicitor General, for the Respondent.

judgment

the commissioner:

Introduction

1.        This is an appeal by Alpine Contractors Limited ("Alpine") against a decision of the Minister for Planning and Environment ("the Minister") made on 9^th October, 2009, to refuse planning permission for a housing development.  The application was to construct 28 first-time buyer dwellings and 26 social rented flats with a community hall on field 1248, La Pouquelaye, St Helier.  

2.        The Minister's reasons were set out in the refusal notice as follows:-

"Reason(s) for Decision:-

The site is identified in the Island Plan 2002 as being subject to Policy H3 of the Plan.  The purpose of that Policy was to provide the next tranche of Category A housing sites, which would be assessed and brought forward following public consultation after Policy H2 sites had been exhausted, and subject to there being a continuing need.  The expectation of States members was that the sites would be brought to the States Assembly for re-zoning, which had been the case with the only other developed H3 site (Bagot Manor Farm) which was brought to the States in 2005. 

The draft Island Plan 2010 has been published and does not recommend this site for development as it is considered that predicted housing needs can be met through developments within the designated Built-up Areas and the development of brown-field sites.  Accordingly, the application is considered to be prejudicial to the emerging Island Plan." 

Background

3.        It will be necessary to consider those reasons, and the terms of the Island Plan 2002 in more detail below.  We deal first with the background to the application and the decision. 

4.        Field 1248 currently has an agricultural use, although it has not been used for agriculture for at least 7 years.  It is bounded by fields to the north and east, by residential properties to the south, and by commercial buildings occupied by Channel Television Limited to the west.  It is well placed to receive all mains services, and is in close proximity to a bus route and to shops.  It is a site which could readily be developed for residential accommodation. 

5.        In the Island Plan 2002 it falls within the Built-up Area and is covered by Policy H3, the terms of which we shall consider later.  The Built-up Area is an area in which housing development will generally be approved.  Policy H8 provides:-

"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 ....."

Policy H8 then sets out a number of conditions.  It is not contended by the Minister that any of those conditions causes difficulty for Alpine, save one, namely paragraph (xi), that the proposal "is in accordance with other principles and policies of the Plan".  It is also conceded by the Minister that field 1248 is within the envelope of the Built-up Area. 

6.        Indeed the development of field 1248 has been under consideration for a long time.  It was amongst a number of areas of land which, prior to the adoption of the Island Plan by the States on 11^th July, 2002, had been proposed by the Planning and Environment Committee of the day for the construction of Category A housing.  It appears, however, that the Committee was unable to complete the necessary process of consultation before the States debate and field 1248, with other fields, found itself in July 2002 in a form of twilight zone.  It was included within the Built-up Area, but it was subject to Policy H3, headed "Sites for further consideration of Category A housing".  Policy H3 stated:-

"The Planning and Environment Committee will bring forward additional sites for Category A dwellings following public consultations in order to meet overall requirements for the first five years of the Plan and beyond.  Sites under consideration are identified on the Island Proposals Map and are listed below".  

The sites included field 1248 and adjacent land termed "the Channel TV site".  We will return to Policy H3 in the context of the submissions made to us. 

7.        There is no doubt that public consultation did take place on the proposed development of field 1248.  In September 2006 a joint letter was sent by the Ministers of Planning and Environment and Housing to all the Connétables, asking them to identify sites for lifelong homes within their respective parishes.  "Lifelong homes" were conceived as dwellings for those over 55, which would enable a greater number of older people to remain living independently in the community in their own homes.  In response to this letter, a Parish Assembly was held at the Town Hall on 26^th April, 2007.  Parishioners unanimously approved a proposal to build first-time buyer homes (55%) and social rented homes (45%) on field 1248.  Alpine accordingly prepared plans and made a presentation to a further Parish Assembly on 17^th July, 2007.  After a debate, the proposal to build Category A housing on the field was unanimously approved.   

8.        In the meantime, the Minister had been preparing the ground for amendments to the Island Plan with a view to re-zoning land for lifelong dwellings.  Formal consultations on a number of sites, including field 1248, took place on 23^rd November, 2007, and 15^th February, 2008.  A meeting at La Pouquelaye Community Centre on 15^th January, 2008, was one of several public meetings and was attended by 40 people; matters relating to field 1248 were aired at that meeting.  On 18^th April, 2008, a meeting between the Ministers of Planning and Environment and Housing, together with their assistant Ministers, took place.  Deputy Hilton, notwithstanding her position as assistant Minister of Housing, argued against the development of field 1248 on the basis of representations made to her by some of her constituents in St Helier.  The Minister apparently accepted those arguments.  On 22^nd May, 2008, a report and proposition was lodged au Greffe, recommending the re-zoning of a number of sites for Category A housing, which was to be redefined to include lifelong homes.  The list of sites for re-zoning under Policy H2 did not include field 1248.  Policy H2 lists those sites approved by the States for the construction of Category A housing.  The Minister's proposition was adopted by the States on 16^th July, 2008. 

9.        Notwithstanding the Minister's refusal to recommend field 1248 for re-zoning under Policy H2, officers of the Planning Department apparently agreed with representatives of Alpine that the field remained appropriate for development for Category A housing.  According to an affidavit sworn by Mr Geoffrey Noel, a director of Alpine, the Department gave Alpine's architect detailed advice and guidance regarding policy and design with a view to a formal application for planning permission.  No evidence was filed by the Minister suggesting that this contention was inaccurate.  An application was accordingly submitted to the Planning Department on 2^nd September, 2008, with the requisite fee of £19,750. 

10.      Despite the encouragement from officers of the Department, the application made no progress, and frustration grew amongst the directors of Alpine.  Correspondence ensued between the Department and Alpine's legal advisers, culminating in threatened litigation if the application was not dealt with timeously.  Eventually, 9 months after its submission, the application was referred to the Planning Applications Panel on 11^th June, 2009.  The Panel considered the officers' recommendation for approval, but was not minded to agree.  Following that meeting, an updated and unsigned report was prepared for consideration by the Planning Applications Panel at its next meeting so that its stance could be confirmed.  The report stated:-

"This report is presented to the Panel for the purposes of confirming the reasons following the indication at the meeting of 11^th June, 2009, that it was minded to refuse permission ...contrary to the Department's recommendation".  

The "reasons for refusal" part of the report was left blank.  For some unexplained reason, this report was sent to Alpine. 

11.      The Panel reconsidered the matter on 9^th July, affirmed its position, and referred the application to the Minister for adjudication.  The Minister received the papers, including a departmental report, on 16^th September and deferred his decision in order to obtain legal advice.  In the meantime, on 25^th September, 2009, the revised draft Island Plan was published for the purpose of consultation.  Having received legal advice, the Minister refused to grant planning permission on 9^th October, 2009.  The notice of appeal was filed on 2^nd November, 2009. 

Relevant parts of the Island Plan

12.      It is convenient here to detail those parts of the Island Plan and the Planning and Building (Jersey) Law 2002 ("the Law") which are relevant to this appeal.  Article 3 of the Law provides that the Minister shall present to the States for approval an Island Plan.  He is under a further duty to present a revision of that Plan to the States within 10 years of the approval of the Plan by the States.  As indicated above, the Island Plan currently in force was approved by the States on 11^th July, 2002.  Article 4 of the Law provides that the Plan shall be in two parts.  Part 1 shall be a written statement of the Minister's policies in respect of the development and use of land, together with a reasoned justification for each of those policies.  Part 2 of the Plan shall consist of Maps illustrating the Minister's proposals for the development and use of land on a geographical basis and such other descriptive matter as the Minister thinks fit. 

13.      Article 19 of the Law contains a number of provisions relating to the grant of planning permission.  The relevant paragraphs are set out below:-

"19.    Grant of planning permission

(1)       The Minister in determining an application for planning permission shall take into account all material considerations.

(2)       In general the Minister shall grant planning permission if the proposed development is in accordance with the Island Plan.

(3)       The Minister may grant planning permission that is inconsistent with the Island Plan but shall not do so unless the Minister is satisfied that there is sufficient justification for doing so.

(4)       The Minister may grant planning permission in detail or in outline only, reserving specified matters to be subsequently approved by the Minister.

(5)       The Minister may grant planning permission unconditionally or subject to conditions.

(6)       The Minister may also refuse to grant planning permission."

14.      The Island Plan contains in Part 1 a number of general policies.  Although we have already referred to some of them, it is convenient to reiterate those policies that are relevant to this appeal.  Paragraphs 1.8 - 1.10 of the Island Plan deal with its purpose and status:-

"Purpose of the Island Plan

1.8      The Island Plan plays a major role in the Island's strategic and local planning, which is crucial to the success of the economy, the protection and enhancement of the quality of the environment and the welfare of the local community.  The new Island Plan will be the principal document in land-use planning in Jersey and the first consideration when making decisions on planning proposals during the Plan period. 

1.9      The main purpose of the Plan is to provide a framework of policies and proposals as a basis for land-use planning decisions for Jersey to the year 2011, although many of the policies and proposals will have a much longer-term influence.  In particular, the Plan sets out to:-

§  establish a framework of land-use policies and proposals to address the Island's social, environmental and economic requirements at both a strategic level and in relation to specific areas of land;

§  provide a framework of policies that allow for considered decisions to be made on proposals to develop land or change its use;

§  provide a detailed basis for co-ordinating the development and other use of land by the States of Jersey, other public bodies, private organisations and individuals;

§  provide a measure of certainty about what types of development will, or will not be permitted and where; and

§  bring strategic and detailed planning issues before the public. 

Island Plan Status

1.10    The Island Plan is a fundamental part of the responsibilities of the Planning and Environment Committee.  For most people who come into contact with the planning process and for most planning issues affecting the Island, it is the most relevant document.  The new Planning and Building (Jersey) Law, which is to replace current planning legislation, places a statutory requirement on the Planning and Environment Committee to prepare an island Plan for approval by the States and to prepare a revision of the Plan for approval by the States at intervals of not less than ten years.  Under the Law, the Island Plan will be the principal instrument for planning and the use of land in the Island.  According to the Law, the Committee must not grant permission to develop land unless the development is consistent with the Island Plan, thus giving the Plan precedence in decision-making - a 'plan-led' system."

15.      Paragraphs 3.3 and 3.4 speak of the Vision for Jersey:-

"The Vision for Jersey

3.3      A clear long-term vision for Jersey is fundamental to the new Island Plan.  Without a vision for the future there is a danger of planning for the short term.  There is a need to identify objectives to move towards the vision.  The vision and the objectives are the driving force behind the Plan, providing the values to be followed and giving direction and a framework for developing the strategies and policies. 

3.4      The new Island Plan will primarily guide development for the ten year period.  It also must provide a long-term approach to the development of Jersey in order to ensure that the social, cultural, environmental and physical resources of the Island are sustained for future generations to enjoy.  The Vision for the new Island Plan therefore looks beyond the Plan period and strives to define how Jersey should look and feel in the future.  In the context of the ten year plan, it provides a framework for objectives and policies."

16.      Chapter 8 of the Island Plan deals with housing.  Paragraph 8.6 provides:-

"8.6    Recent studies have demonstrated a shortage of housing, but reconciling the need for housing with other objectives for the environment and sustainable development is difficult.  Few issues arouse fiercer passions among local communities than the prospect of new housing development.  It has been the subject of intense, contested debates in Jersey over the last fifteen years.  There are no easy solutions, but the challenge must be confronted if the vision and objectives for the island are to be achieved."

Paragraph 8.9 speaks of integrating development with the Built-up Area.  Policy H2 provides:-

"In order to contribute to meeting the requirements for Category A housing for the first five years of the Plan from 2002 to the end of 2006, sites comprising a total of 45.9 acres/approximately 103.3 vergées of land, will be zoned for Category A housing at the following locations, as shown on the Island Proposals Map".  

There follows a list of eleven sites.  Policy H2 continues:-

"Within these sites, planning applications will be invited for a mix of social rented and first-time buyer dwellings". 

The following passage was added after the adoption of the Minister's proposition to which reference has been made at paragraph 8 of this judgment:-

"In order to contribute to meeting the requirements for Category A housing, particularly the need and demand for dwellings for older people (over 55), from 2008 until the adoption of the new Island Plan, eight sites comprising a total of approximately 26 acres/58.5 vergées, will be zoned for
Category A housing at the following locations, as shown on the revised Island Proposals Map". 

There follows a list of a further eight sites.

17.      Policy H3, to which reference has already been made, provides that "the Minister for Planning and Environment will bring forward additional sites for Category A dwellings following public consultation, in order to meet overall requirements for the first five years of the Plan and beyond.  Sites under consideration are identified on the Island Proposals Map and are listed below".  The site list of sixteen sites follows, including the Channel TV site and field 1248.  The Policy continues:-

"There will be a presumption against development that will prevent the future use of these sites for Category A housing."

18.      Paragraph 8.138 provides:-

"Sites safeguarded for future housing needs will be brought forward by the Jersey Housing Task Force.  Sites 11, and sites 13-20 will require a proposition for re-zoning when the need for the site is identified."

There follows Policy H4 headed "Sites safeguarded for future category A housing needs", and a list of twenty-one sites. 

19.      Paragraph 8.151 provides:-

"8.151 Policies H2 to H6 deal with sites specifically identified to meet the requirements for Category A homes in the Plan period.  The majority of Category B homes will come forward as windfall developments within the normal development process on sites within the built-up area which are not specifically allocated for this purpose in the Plan."

20.      Finally, Policy H8 provides, as indicated above, that:-

"proposals for new dwellings .... will normally be permitted within the boundary of the Built-up Area.....". 

The legal test

21.      Both counsel agreed that the legal test was to be found in the judgment of the Court of Appeal in Island Development Committee-v-Fairview Farm Limited [1996] JLR 306, as elaborated in the remarks of this Court in Token Limited-v-Planning and Environment Committee [2001] JLR 698, at 703.  The Court stated:-

"The legal test

9.        The test to be applied by this court in determining appeals under the Island Planning (Jersey) Law 1964 was settled by the Court of Appeal in Island Dev. Cttee-v-Fairview Farm Ltd. (2). Le Quesne, J.A. stated (1996 JLR at 317):-

'The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable.  It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view ...

... the duty of the court on an appeal under art. 21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that the decision was, in its view, unreasonable'. 

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

22.      The elaboration of the test by this Court in Token was subsequently approved by the Court of Appeal in Planning and Environment Committee-v-Le Maistre [2002] JLR 389 and Minister for Planning and Environment-v-Dorey [2009] JCA 219, where the Court of Appeal confirmed that the same test was applicable in appeals under the Law. 

Submissions of Alpine

23.      Miss Benest, who presented the case for Alpine persuasively and with great ability, advanced her grounds of appeal under three general headings.  First, she submitted that the Minister had failed to apply his published policies.  Secondly, she submitted that the Minister had taken into consideration irrelevant considerations and applied incorrect presumptions.  Thirdly, she contended that the Minister had been guilty of inordinate delay and had acted inconsistently in his treatment of sites listed in Policy H3. 

24.      We will take each of these contentions in turn.  Miss Benest submitted that the Minister had ignored the fact that field 1248 sits in the Built-up Area in relation to which Policy H8 provides that development "will normally be permitted".  She contended that Policy H8 gave rise to a presumption in favour of development.  She referred to a dictum of this Court in Le Maistre-v-Planning and Environment Committee [2001] JLR 452, subsequently cited with approval before the Court of Appeal:-

"A presumption is not a straitjacket.  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."

Counsel submitted that there were here no compelling considerations to avoid the presumption to which Policy H8 gave rise.  These submissions place insufficient weight, in our judgement, on the qualifying adverb "normally".  Policy H8 must be read in conjunction with all the other policies set out in the Island Plan and in particular, Policies H2 and H3.  While development may in general be permitted within the Built-up Area, it may not be allowed if development conflicts with other policies. 

25.      Field 1248 is specifically mentioned in Policy H3.  That policy provides that the Minister will "bring forward additional sites for Category A dwellings following public consultation in order to meet overall requirements for the first five years of the Plan and beyond."  It is true, as submitted by Miss Benest, that the proposed development does not breach the constraint imposed by Policy H3 in relation to Category A dwellings.  The proposed development involves the construction of 100% Category A dwellings.  The complaint that the Minister failed to take account of this fact does not seem to us to hold water.  If it were the case that any developer had the right to construct Category A dwellings listed in Policy H3, there would be no need for the Minister to "bring forward [these] additional sites".  The phraseology employed in Policy H3 implies to us that there should be an orderly progression of development of the sites covered by Policy H3, and that that progression should be determined by the Minister.  This seems to us consistent with Article 2 of the Law which provides:-

"2       Purposes of Law

(1) The purpose of this Law is to conserve, protect and improve Jersey's national beauty, natural resources and general amenities, its character, and its physical and natural environments.

(2) Accordingly it is the intention of this Law -

(a) to ensure that when land is developed the development is in accordance with a development plan that provides for the orderly, comprehensive and sustainable development of land in a manner that best serves the interests of the community;" (our emphasis)

Counsel also submitted that, the public consultation having been completed, the Minister was under a legal duty to grant planning permission, absent some compelling consideration.  We cannot accept that submission.  Public consultation does not mean telling the public what you are going to do.  Public consultation involves placing a set of proposals in the public domain and inviting responses.  Almost inevitably, some will approve the proposals but some will not.  It is then for the Minister to balance the conflicting responses and to make a reasoned decision.  That is what happened in this case.  It is only if the Minister's decision is unreasonable that it can be set aside. 

26.      Miss Benest's second general heading was that the Minister had taken into account irrelevant matters and had applied incorrect presumptions.  This general heading embraced two principal complaints:-

(i)        that the Minister had incorrectly assumed that it was necessary to return to the States for field 1248 to be re-zoned before any development could take place; and

(ii)       that the Minister had wrongly taken account of the revised draft Island Plan. 

27.      If it was necessary for field 1248 to be re-zoned by the States before development could take place, why, counsel asked rhetorically, was Alpine not advised of this requirement and why was the company encouraged to submit an application for planning permission?  This is a good question, and we will revert to it below.  Whether or not, however, the Minister is under a general duty to return to the States for land listed in Policy H3 to be re-zoned involves a construction of the different policies.  The Solicitor General invited us to consider Policies H2, H3 and H4 together.  Policy H2 is headed "Sites to be zoned for Category A housing".  There follow eleven listed sites.  Paragraph 8.130 of the Plan provides:-

"The re-zoning of all of the eleven sites would yield approximately 313 dwellings, which with commitments and sites included in Policy H2, would achieve 2,863 homes compared to the requirement of 2,860".  

Paragraphs 8.132 - 8.133 continue:-

"8.132             A number of sites which were put forward in the Island Plan Consultation Draft for zoning or safeguarding are no longer included in a policy.  While these sites are not favoured for development at this time, it is quite possible that they will be given further consideration as part of efforts to address housing needs in the future. 

8.133               The sites in Policies H2 and H3 are expected to meet requirements for the first five years of the new Island Plan.  It is intended that the annual monitoring and review of the Plan will measure the extent to which sites are taken up, as well as other opportunities, and will bring forward new sites for zoning as necessary within the criteria used for evaluating the initial list of sites."  (our emphasis)

28.      Policy H3 is headed "Sites for further consideration for Category A housing".  The Plan continues:-

"The Minister for Planning and Environment will bring forward additional sites for Category A dwellings following public consultation in order to meet overall requirements for the first five years of the Plan and beyond."

Paragraphs 8.134 - 8.135 state:-

"8.134             In addition to the sites recommended for zoning for housing in the initial five years, [i.e. H2 sites] there are other sites that represent opportunities for development but are either not appropriate or are not likely to be developable in the first five years.  The potential of these sites for meeting longer-term housing needs, however, should not be lost. (our emphasis)

8.135   Included in these sites are eight that were zoned in the 1987 Island Plan and which may come to fruition in the Plan period.  The opportunity for providing for Category A homes on these sites should be safeguarded."

Paragraph 8.138 continues:-

"8.138             Sites safeguarded for future housing needs will be brought forward by the Jersey Housing Task Force.  Sites 11, and 13 to 20, will require a proposition for re-zoning when the need for the site is identified." (our emphasis)

29.      Policy H4 is headed "Sites safeguarded for future Category A housing needs", and continues:-

"The Minister for Planning and Environment will protect the following sites, as designated on the Island and Town Proposals Maps in order to meet longer term housing needs for Category A housing."

There follows a list of sites where a presumption against development that would prevent the future use of these sites for Category A housing applies.  

30.      Policy H6 is headed "Preparation of Development Briefs" and continues:-

"Development permission will not be granted for sites zoned for Category A housing by the States until a development brief has been approved by the Minister for Planning and Environment."

31.      Despite Miss Benest's powerful submissions, we agree with the Solicitor General that, on a purposive construction of the Island Plan, the Minister is correct in his view that he is in general required to return to the States for a re-zoning of Policy H3 sites before planning permission can be granted.  We reach that conclusions for three reasons:-

(i)        The statement in Policy H3 that "the Minister for Planning and Environment will bring forward additional sites ...." must mean "bring forward to the States for approval".  If it was intended to give the Minister discretion to approve sites in Policy H3 without reference to the States, the wording would surely have followed the precedent for H2 sites and stated "The Minister .... will invite planning applications for Category A dwellings following public consultation ...", or words to that effect.  It is true that the wording is ambiguous. 

(ii)       A reference to paragraph 16.11 of the report of the Planning and Environment Committee which accompanied the Island Plan (P.69/2002) makes it clear, however, that further reference to the States was intended.  Paragraph 16.11 provides:-

"All other sites in Policy H3, H4 and other suitable opportunities which may arise, will, subject to public consultation, be brought forward for zoning as necessary following adoption of the Plan."

(iii)      Article 19(2) of the Law imposes a general duty upon the Minister to grant planning permission if the proposed development is in accordance with the Island Plan.  Article 3(1) provides that it is the States who approve the Island Plan, including the zoning of land for different uses.  See Article 4(3)(b) of the Law which provides that the policies in the Island Plan must "designate land for particular development or use".  It seems to us inherently improbable that the States can have intended to delegate to the Minister the power to make zoning decisions off his own bat. 

32.      So far as the reference to the emerging Island Plan is concerned, Miss Benest submitted that this was an irrelevant consideration.  The Minister's own press release when the draft revised Island Plan was published indicated that the "2002 Island Plan will continue to provide the planning policy regime for the Island until the new Plan is approved".  If the second reason given in the Ministerial Decision of 9^th October, 2009, had stood alone, we doubt that it would have afforded a legal basis for the refusal to grant planning permission.  Nonetheless, we do not accept that the emerging Island Plan was an irrelevant consideration.  If the emerging Island Plan, even though still a consultation document, had recommended that field 1248 be moved to H2 status, we doubt that counsel for Alpine would have ignored the point as being irrelevant.  In our judgement, it is a relevant factor, even if not of very great weight. 

33.      Miss Benest's third general heading was that the Minister had acted inconsistently, and had been guilty of undue delay in determining the application.  Dealing with the latter point first, we think that there was undue delay in determining Alpine's application.  We will revert to that below.  The complaint of inconsistencies stems from the Minister's treatment of two other H3 sites.  One was the CTV site adjacent to field 1248.  The other was a permission granted by the Minister on 7^th April, 2010, for the development of fourteen lifelong retirement homes and one warder unit (all Category A) in field 633, St Peter. 

34.      We take first the CTV site.  The affidavit of Mr G C Noel, a director of Alpine, explains that the CTV site was linked with field 1248 in the Island Plan in order to ensure access to field 1248 from the public road.  Prior to its designation as an H3 site in 2002, the CTV site was already in the White Zone, the precursor to the Built-up Area, and available for the development of Category B housing.  Its transfer to the list of H3 sites for Category A housing was done without any reference to the owner.   The Solicitor General conceded that this had been a mistake.  The Minister had accordingly taken the view that this was an exceptional case where it would have been unfair to the owner of the CTV site to hold him to the H3 Policy.  He accordingly concluded that there was "sufficient justification" pursuant to Article 19(3) of the Law for granting a planning permission that was inconsistent with the Island Plan.  This seems to us to have been an entirely reasonable decision.  

35.      The decision in relation to field 633, St Peter is however in a different category.  It was inconsistent with the Island Plan and there was no "sufficient justification" for the decision.  The Solicitor General told us candidly that the Minister recognised that a mistake had been made and, notwithstanding the grant of planning permission, had lodged a report and proposition before the States on 20^th April, 2010, seeking the re-zoning of the land. 

36.      A third H3 site has been developed since 2002, namely field 812A, St Saviour.  In this case, the Environment and Public Services Committee (as it then was) lodged a report and proposition on 25^th January, 2005, seeking the approval of the States "to re-zone this site for Category A housing".  That approval was granted on 8^th March, 2005. 

Conclusion

37.      We find that the Minister did act inconsistently with the Island Plan by granting planning permission for field 633.  There may well have been good reasons for so doing, but they did not on the face of it justify departing from the provisions of the Island Plan.  The Minister has also been guilty of undue delay in determining Alpine's application, although that delay may well have been the result of confusion in the Planning Department to which we refer below.  The application was made on 2^nd September, 2008, and the Minister's decision was not made until 9^th October, 2009, thirteen months later.  That was too long. 

38.      What is the relevance of these findings?  As the Court explained in McCarthy-v-Planning Minister [2007] JLR 167, it is not the case that inconsistency or other error now inevitably leads to the decision under appeal being set aside.  The Court's duty is to apply the Token test to the Minister's decision.  Field 1248 is in the Built-up Area and subject to Policies H8 and H3 of the Island Plan.  As we have found, there was extensive public consultation in relation to the proposed development of the field for Category A housing.  Having given due consideration to the views expressed during that period of consultation, the Minister decided in May 2008 that he would not include field 1248 in the list of sites for which a re-zoning would be sought.  Field 1248 has not been re-zoned and remains, at present, as a potential site for future development under Policy H3.  We conclude that the Minister's decision to refuse planning permission was not mistaken, let alone unreasonable.  Indeed, given his decision in May 2008, it was the only decision at which he could sensibly have arrived.  It follows that the appeal must be dismissed. 

Postscript

39.      That is not, however, quite the end of the matter.  Given that field 1248 had not been zoned for development, and that the Minister had expressly decided that it should not be included in the list of H3 sites to be taken to the States, it is surprising that Alpine was advised by the Planning Department to submit an application for planning permission.  Officials must have been aware, notwithstanding the ambiguity of Policy H3, that it was a necessary preliminary to any development that States approval for re-zoning should be obtained.  That was the line taken in 2005 when development took place on field 812A, St Saviour.  Counsel for Alpine was right to express surprise that her clients were not so advised.  To encourage Alpine to submit an application for planning permission on the ground, it is said, that in the view of officials the site remained appropriate for development, was not only misleading, but also subversive of the authority of the Minister.  The Minister had expressly resolved on 18^th April, 2008, in Ministerial Decision MD-PE 20080105:-

"not to progress the following sites for re-zoning for Category A housing at this time:-

2007/01 - field 1248, La Pouquelaye"

The Ministerial Decision recorded that "this site would not be taken forward for re-zoning and referred to the Island Plan review for further consideration".  Yet, according to the affidavit of Mr Noel, "the Planning Department gave Alpine's architect in depth advice and guidance regarding policy and design prior to formal submission of the application" on 2^nd September, 2008. 

40.      It seems that the first departmental report on Alpine's application was dated 26^th May, 2009, nearly nine months after the filing of the application.  The summary conclusion acknowledged that the site was subject to the constraints of Policy H3 "and has not specifically been zoned for Category A development by the States".  Yet the officer recommendation was "grant outline planning permission".  The report was considered by the Planning Applications Panel on 11^th June, 2009, when the Panel was addressed, inter alia, by Deputy Hilton for the residents of the area.  The minute records that "as far as the residents were concerned field 1248 remained un-zoned and it was unclear as to precisely how the present application had come about".  After full consideration the Panel decided, entirely correctly, "that the zoning issues associated with field 1248 should be referred to the States".  

41.      As this decision was contrary to officer advice, the application was referred to the Minister.  A revised report, apparently compiled in or about October 2009, was placed before the Minister.  The warning that the site had not specifically been zoned for Category A development by the States had been omitted.  Instead, advice had been added in these terms:-"The site lies within the Built-up Area as defined by the Plan and is constrained by a policy which prevents development which could prejudice the provision of Category A homes.  What is proposed in this application is Category A homes and as such the constraint placed on the site by virtue of Policy H3 has been accommodated".  The officer recommendation was to grant planning permission.  This was gravely misleading advice to the Minister because the officers must have known that planning permission ought not to be granted without first referring the matter to the States so that the site could be re-zoned. 

42.      We have recorded these apparent inadequacies in the advice tendered to the Minister only because, in our judgement, Alpine has on the face of it been unfairly treated.  It seems inexplicable, and certainly no explanation was offered to us, that Alpine should have been encouraged to submit a planning application against the background set out in this judgment.  As a result, Alpine has paid a planning application fee of £19,750 and incurred considerable expense in having architectural drawings prepared.  We are conscious that there may be factors of which we are unaware, and we have heard no evidence from officers of the Planning Department.  It would not be right to form any concluded opinion in these circumstances.  We express the hope, however, that the Minister will see fit to inquire into the matter and, if appropriate in the light of those inquiries, to consider making an ex gratia payment to Alpine Contractors Limited. 

Authorities

Island Plan and the Planning and Building (Jersey) Law 2002.

Island Development Committee-v-Fairview Farm Limited [1996] JLR 306.

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

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

Minister for Planning and Environment-v-Dorey [2009] JCA 219.

Le Maistre-v-Planning and Environment Committee [2001] JLR 452.

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

Island Plan 2002.