Jersey Unreported Judgments

[2010]JRC186

royal court

(Samedi Division)

11^th October 2010

Mr D. R. Manning appeared personally on his own behalf.

Mr D Mills appeared for the Minister of Planning and Environment.

judgment

the commissioner:

Background

1.        This is an appeal by David Ronald Manning ("the appellant") against a decision of the Minister for Planning and Environment on 15^th May, 2010, to refuse permission to construct an agricultural shed on Field 1007, St John.  The reason given by the Planning Applications Panel ("the Panel") under delegated powers from the Minister, was as follows:-

"The proposed shed is not connected to a commercial agricultural use and a compelling case has not been put forward to prove that the shed is essential for the needs of agriculture.  Furthermore, the shed does not constitute a limited or ancillary domestic outbuilding and it is considered that by virtue of its scale, location, design and cumulative impact when viewed with the existing shed, it would detract from the character and scenic quality of the Countryside.  Accordingly, the proposal is contrary to the provisions of Policies G2 and C6 of the Jersey Island Plan, 2002". 

2.        Field 1007 has a long planning history, but it is unnecessary to recount it in detail for the purposes of this judgment.  Suffice it to state that the appellant acquired the field in March 1973.  After many years of submitting unsuccessful applications, and campaigning against decisions of successive planning committees, the appellant obtained permission in February 1996 for the construction of a house and store on part of Field 1007.  The permission was subject to various conditions, which have led to subsequent applications and refusals.  The appellant feels strongly that the planning authorities have acted inconsistently over the years and have been unfair in their treatment of him.  It is not for us to say whether those feelings are justified or not, but they are very real. 

3.        In April 2004, Jersey Telecoms Limited wrote to the Planning Department, seeking to store telegraph poles temporarily at Field 1007 on land adjacent to the existing store.  The project in question involved the replacement of 400 telegraph poles in the Island.  It was said that the project would be completed within 20 months, and that no more than 30 to 40 poles would be stored there at any one time.  Permission was given orally by one of the Department's officials.  In order to avoid any possible ground contamination by creosote, an oral permission was also given for the installation of a concrete hard standing on the area subject to the present appeal.  That hard standing remains in position. 

4.        On 14^th December, 2006, the appellant submitted an application for permission to construct a storage building in the area where the telegraph poles had been stored.  The stated purpose of the building was "domestic storage", and more specifically, to store a tractor, lawnmower, and sundry garden equipment for the maintenance of his house and the remaining part of Field 1007.  The application was refused on the ground that:-

"The site lies in the Countryside Zone and as such there is no justification for a shed of the size and siting proposed, and on land outside the domestic curtilage, to serve the domestic needs of the property." 

5.        On 1^st December, 2009, the appellant submitted an application to construct a ("storage building for agricultural/horticultural equipment and machinery").  The dimensions of the proposed building were essentially the same as those contained in the 2006 application.  The information given to the Planning Department was, however, supplemented by a letter from the appellant's architect which asserted (inter alia) that:-

(i)        the extent of land owned by the appellant was 8.5 vergées, including Field 1009 which was subject to a lease expiring at Christmas 2009;

(ii)       the proposed use of the building was for the storage of agricultural and horticultural equipment/machinery and of fencing, logs, seeds and bulbs etc;

(iii)      the proposed building had been sited closer to the existing storage building than in the 2006 application;

(iv)      the site in question was not a viable piece of agricultural land;

(v)       favourable consideration had been given by the Minister to other storage buildings even where the applicant had not been a bona fide agriculturalist. 

6.        Two objections to the proposed storage building from individual objectors were received by the Department, including one from a neighbour whose swimming pool was adjacent to the site in question.  A further objection was received from the National Trust for Jersey on the ground that the land was in the Countryside Zone.  There were no objections from any of the statutory authorities. 

7.        On 15^th April, 2010, the Panel considered the application, having undertaken a site visit the day before.  The appellant made oral representations, as did Deputy Duhamel who urged the Panel to be consistent.  The Panel refused the application on the ground set out in paragraph 1 above. 

Contentions of the appellant

8.        The appellant's notice of appeal set out four grounds for the contention that the Panel's decision was unreasonable in all the circumstances of the case.  Those grounds were:-

"(1) The Minister failed to consider or give sufficient weight to the need for the storage shed for agricultural purposes;

(2) The Minister failed to consider or give sufficient weight to the location for the proposed development on an existing developed area adjacent to the existing commercial storage building;

(3) The scale, location and design would not detract from or unreasonably harm the character and scenic quality of the countryside;

(4) The refusal of Planning permission is inconsistent with the Minister's decision in similar applications."

We will consider each ground in turn.

9.        (1)     The appellant conceded that he was not an agriculturalist.  He has retired from business and he told us that he would like nonetheless to work on his land and keep it in good order.  For those purposes he needed somewhere to store machinery and equipment.  The proposed store has an area of some 1200 square feet.  The existing store has an area of some 3000 square feet; part of it is open plan, part is on two floors.  Part of the existing store is let to a tenant and the other part is occupied by the appellant.  The appellant contended that the existing store was unsuitable for storing his agricultural equipment.  The ceiling of the part which he occupies is too low, and the door was too small to admit a tractor and trailer.  Furthermore, he submitted that it would be dangerous to store petrol driven equipment inside.  

10.      Mr Mills, for the Minister, responded that there was no reason why the existing storage building could not be used for the appellant's limited agricultural or gardening purposes.  He pointed out that the remaining part of Field 1007 had been sown with grass and was essentially a lawn.  It was not being used for agricultural purposes.  The Panel had taken this argument of the appellant into account, but had not considered that it was worthy of much weight.  It was open to the appellant to adapt or modify the existing storage building so that it would be suitable for his purposes. 

11.      (2)     The appellant contended that the site adjacent to the existing storage building was a developed area in that it had been largely covered with concrete since the informal permission was given in 2004.  Mr Mills' response was that this area of hard standing had resulted from a concession made on a temporary basis for the storage of telegraph poles.  That concession did not justify what would otherwise be a breach of the relevant Policy by constructing a building in the Countryside Zone. 

12.      (3)     The appellant contended that the proposed building would not harm the character and scenic quality of the countryside. It was smaller than the existing building.  The ridge height was only 15 feet, compared with the existing building which was 22 feet high.  The design and colour of the proposed building had been arranged to match those of the existing building.  Because the proposed building had no windows on the north elevation, it would not overlook the neighbour's swimming pool, as the neighbour had complained.  Generally, it would not have any significant adverse effect upon the character of the neighbourhood. 

13.      Mr Mills submitted that the proposed shed fell within the Countryside Zone which was subject to Policies C6 and G2 of the Island Plan.  Policy C6 provided that there was a "general presumption against all forms of new development for whatever purpose".  None of the exceptions applied.  The site of the proposed building was not within the curtilage of the main house and it was not "essential to the needs of agriculture."  The Panel had been justified in finding that the proposed development would unreasonably affect the character and amenity of the area. 

14.      (4)     The appellant contended that the Panel's decision was inconsistent with other decisions made by the Minister where agricultural or storage buildings had been permitted in circumstances similar to those of the appellant's site.  The appellant placed before us at the hearing a long list of applications for the construction of buildings or other development which had, it was said, been approved.  Consistency of decision-making is of course important, but we were unable to take account of any of the sites on this list because detailed information about the applications was not available.  But in any event, it is difficult to compare applications for development on different sites unless the points of similarity are very striking.  More often than not, there will be differences of siting, of design, of scale or other circumstances which have weighed with the decision-maker and led to the decision in question. 

15.      The appellant did refer to two particular cases of which notice had been given to the Minister.  The first related to a permission given to a wealthy individual who was not an agriculturalist to construct an agricultural building for the storage of machinery and equipment associated with the management of adjacent agricultural land.  The appellant complained that there appeared to be two classes of citizen - the rich, to whom development permissions were given - and the rest.  Having heard the submissions of Mr Mills, we do not think that this serious allegation is made out.  The area of land in question in relation to this agricultural building was considerably greater than the area of Field 1007, and even Fields 1007 and 1009 combined, but, more importantly, there was no other existing or appropriate storage building at this other property.  The comparison was between an apple and a pear.  The second development related to the demolition of a large residential property and associated staff accommodation and outbuildings set in a large estate of over 50 vergées of land.  The development in question was certainly larger than that for which the appellant had sought permission, but it involved a high design quality with classical details and proportions which the Minister had considered to be appropriate and indeed an enhancement to the landscape setting.  Clearly, we are not able to judge whether the Minister's decision in that case complied with the requirements of the Island Plan, but such information as we have does serve to emphasise how difficult it is to make meaningful comparisons in this context. 

Legal test

16.      Both parties agreed that the test to be applied by the Court was that set out in Token-v-Planning and Environment Committee [2001] JLR 698 as follows:-

"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 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 that 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."

Conclusion

17.      The strongest point advanced by the appellant, in our judgement, was that the proposed building would not harm the character and scenic quality of the countryside.  It is true that the site of the proposed building is largely covered in concrete and the Planning Department appears to have taken no steps to procure that what was done in the context of a temporary permission is restored to its natural state.  Be that as it may, it is impossible to criticise the Panel for taking a decision in strict accordance with the provisions of the Island Plan.  The proposed building is in the Countryside Zone and the Plan provides a high degree of protection for that zone.  As this Court has said on other occasions, even small incursions into the Countryside Zone can cumulatively have a very detrimental effect.  The justification for encroachment in this case could equally be advanced for a further encroachment if this appeal were to be allowed and the proposed storage building constructed.  There seems to us to be no good reason why the existing storage building should not be adapted to provide the appellant with the accommodation that he needs.  The decision of the Panel cannot be described as so mistaken as to be unreasonable, and the appeal is accordingly dismissed. 

Authorities

Jersey Island Plan, 2002.

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