Jersey Unreported Judgments

[2011]JRC029

royal court

(Samedi Division)

2^nd February 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Liddiard.

 

Mr Manning appeared in person.

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

judgment

the deputy bailiff:

1.        This is an appeal pursuant to Article 117 of the Planning and Building (Jersey) Law 2002 ("the Law") brought by the Appellant in respect of an Enforcement Notice dated 30^th June, 2010, issued on behalf of the Minister for Planning and Environment.  The Notice was issued pursuant to Article 40 of the Law and the essential terms of the Notice are these:-

"(2)      The Minister, having considered the facts of this case believes that a breach of the Planning Law has been committed at the above address with regard to the following matters.  There is an unauthorised external storage of items, to include storage of pallets, vehicles, boats, skips and oil tanks on land to the east of the existing storage building which lies outside and beyond the approved site curtilage to this building. 

(3)       THE MINISTER HEREBY GIVES YOU NOTICE TO UNDERTAKE THE FOLLOWING WORKS AT THE LAND AFFECTED: cease forthwith the unauthorised storage of any goods, materials, equipment and plant, including vehicles, boats, pallets, skips and oil tanks in the area to the east of the storage building lying beyond the approved site curtilage/boundary to this building. 

For the avoidance of doubt the approved site curtilage area on the eastern side of the storage building, as indicated on the existing planning permission drawings, extends out a distance of some 6.70 metres (22 feet) from the eastern gable end of this building."

2.        The land affected is described as Field 1007, La Grande Route de St. Jean, St. John. 

3.        The Notice of Appeal is dated 23^rd July, 2010, and is indicative of two grounds of appeal:-

(i)        Storage on the curtilage of the shed situated on the property is permitted pursuant to the terms of the planning consent granted to the Appellant on 12^th October, 2006; and

(ii)       Further or in the alternative the storage of goods and materials on the eastern end of the shed at the property has been authorised by the Planning and Environment Department. 

4.        The Master made an order that this appeal is suitable for hearing under the abbreviated procedure. 

History of Site

5.        We must take note of the fact that Field 1007 has a long planning history.  As was said by this Court on 11^th October, 2010,  ([2010] JRC 186) on an appeal by this appellant against this respondent at paragraph 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."

6.        As was clear from the Affidavit of Mr Roy Webster, sworn on behalf of the Minister, the whole of the site of Field 1007 includes the following:-

(i)        A storage building (approximately 30.5 metres long and 13.3 metres wide) located within the north west part of the site;

(ii)       An associated car parking area which is sited between the western end of the shed and the main road;

(iii)      A residential property Mandorey Villa, with associated garden, located within the south west part of the site;

(iv)      An access drive from the main road running east west between the shed on the north side and the house on the south side, given access to the rest of the field;

(v)       The rest of the field is an open field comprising most of the eastern part of the site. 

7.        The existing storage building is occupied in part by the appellant for his own, primary domestic, storage use, and in part by a tenant for commercial storage use.  To the east of the existing storage building is an area of land which forms part of its authorised curtilage, and to the east of that an area of hard standing.  The enforcement notice relates to allegedly unauthorised storage of various goods on this area of hard standing. 

8.        To the north of the site is a residential property known as Les Ruelles.  There are five dwellings north of that property, but to the east and north east of Les Ruelles and those dwellings is a very large commercial site, Les Ruettes, which includes two retail stores on the former B & Q site, plus a retail unit and depot.  Also located within this commercial area is a liquefied petroleum gas storage and bottling site.  The wider surrounding area is predominantly open countryside. 

9.        Field 1007 lies within the countryside zone on the Island Plan proposals map, approved by the States on 11^th July, 2002.  The site also lies within an area indicated as NR 13 SAFETY ZONE FOR HAZARDOUS INSTALLATION.  One assumes that the site is in the safety zone for hazardous installations because of the adjacent liquefied petroleum gas storage and bottling site operated by Jersey Gas, although we have not received any detailed evidence upon it. 

10.      When permission was given by the Island Development Committee in 1996 for the appellant's house and storage shed to be erected, both the appellant and the Planning Authorities were acting under a different piece of legislation (the Island Planning (Jersey) Law 1964), a different Island Plan which zoned this site in the agricultural priority zone in respect of which there was a presumption against development and a different practical regime under which applications were considered.  In those days, applications for planning permission were treated separately from applications for development permission, notwithstanding that the 1964 legislation did not actually provide for a distinction between the two.  At all events the planning permission which was granted in April 1996 contained a number of conditions which remain of interest today.  These were:-

(i)        Condition 4 provided that no storage of goods, materials or plant should occur outside the storage building, and that all commercial vehicles should be parked within the storage building. 

(ii)       Condition 9 provided that the remainder of Field 1007 should be retained for agricultural use, and the dimensioned boundary was to be clearly shown on subsequent development drawings. 

(iii)      Condition 10 provided that the storage shed should only be used for storage and there should be no sale of goods from the premises. 

11.      Development permission was granted in November 1996. The conditions which are mentioned above were essentially repeated but there was a new condition which required that landscaping detail should be included as part of the plan submitted for the redesign of the storage building, including a wider landscaping belt to the eastern boundary between the shed and the remainder of Field 1007. 

12.      When amended permissions were granted in May 1997 and December 1997, all these conditions were carried forward. 

13.      In October 2000 a further permit was issued for the construction of the two-storey house, garage and steel-framed storage building at Field 1007.  The conditions which we have mentioned above were substantially carried forward albeit with some minor amendments.  Thus Condition 11 on the permit of 23^rd October, 2000, provided that the new shed on the northern part of the site should be used as storage only "to include a limited sale of goods to the extent that they are an ancillary part of Mr Manning's removals, clearance and storage business.  For avoidance of doubt there should be no storage or sale of goods anywhere outside the shed."

14.      It is important to recognise that quite consistently throughout this period to October 2000, the Planning and Environment Committee had insisted that the remainder of Field 1007, that is to say that part of the field which was not the subject of a development permission, should be retained for agricultural use with access retained through the development site from St. John's main road.  It is also important to recognise that a further condition which was consistently applied in the permits at this time was a condition that the storage building and the new house should remain within the same corpus fundi and should not be sold separately.  This no doubt reflected the perception of the Planning authorities that Mr Manning had obtained a permission from the authorities as a result of the States of Jersey being satisfied in 1996 that on a personal level he deserved to receive some form of permit. 

15.      In 2006, the appellant sold his business which thereafter relocated to a site elsewhere in the Island.  Our understanding is that the sale took place with the consent of the Planning authorities in the Island and there is therefore no breach of the corpus fundi condition that was previously imposed, although we have not seen in terms an amended permit which makes that plain. 

16.      Unfortunately there are some further twists in the planning history in relation to the site, however.  In the spring of 2004, Jersey Telecom Limited needed to find a storage area for some four hundred poles which required to be replaced.  There were discussions with the appellant, who told the Court that he agreed with Jersey Telecom that if that company obtained relevant clearance from the Planning authorities, he was prepared to allow them to store the poles on the area now covered by hard standing (but not so covered at that stage) in respect of which he would presumably have charged some rental.  The Court has been shown an e-mail exchange between representatives of the Planning and Environment Department indicating that Jersey Telecom were looking to store the poles over a period of some twelve to eighteen months starting in May 2004.  The poles were treated with creosote and it was said that ideally the poles should be stored on hard standing raised from the ground and covered.  There is a handwritten note on the e-mail from the Planning official we take to have been the more senior of those involved in these terms:-

"Request from JT to store poles at rear of shed on F1007 - temporary period - 18 months no more than 30/40 at a time - no structure required.  On this basis advised acceptable - write in to confirm details."

17.      The company duly wrote in to the Planning and Environment Department on 20^th April, 2004, to confirm the arrangement and there is an annotation which makes it plain that these proposals were agreed. 

18.      It also has emerged that at some point there was a discussion between the appellant and the Director of Planning.  The appellant told us that there had been heavy rainfall and he noticed creosote draining into the ground below some of the telegraph poles.  He said that the telephone discussion took place he thought in 2006, and the Director of Planning gave him approval to put down hard standing in the area in question.  The Court has been shown correspondence between the appellant's lawyer and the Director of Planning in 2009 which makes it plain that the Director accepted that at some point, although he could not recall exactly when, he discussed the matter of potential contamination with the appellant over the telephone, and agreed that a hard standing could be provided at Field 1007 where in fact it has now been laid.  It is apparent on the Director's letter that his recollection is that he gave permission for the provision of hard standing on which to store the telegraph poles.  The appellant contends that the telegraph poles were removed at the time of, or immediately after the conversation with the Director took place in or about 2006. 

19.      The appellant relies upon this correspondence for his assertion that the Planning authorities have in fact given him approval to use the area of hard standing for the purposes of storage notwithstanding the conditions which appear explicitly in the permissions he has received, and notwithstanding the absence of any application for change of use and the absence of any approval in writing to such a change.  The appellant's position was that the definition of "hard standing" as taken from the English Collins Dictionary was "a hard surface on which vehicles such as cars or aircraft may be parked", or if one looked at the free dictionary online, the definition of "hard stand" was "a hard surfaced area for parking aircraft or ground vehicles".  The subordinate definition, taken from the dictionary of Military and Associated Terms published by the US Department of Defense in 2005 was:-

(i)        A paved or stabilised area where vehicles are parked to open ground area having a prepared surface and used for the storage of material. 

20.      We note that the definition of "hard standing" in the New Shorter Oxford English Dictionary is "an area of hard material for a vehicle to stand on when not in use". 

21.      The other matter upon which the appellant relied was a letter from the Director of Planning dated 23^rd April, 2010.  This letter was a response to the appellant's letter of 16^th April, 2010, regarding the use of Field 1007.  We have not seen that letter.  The response says this:-

"Field 1007 St. John. 

I refer to your letter dated 16^th April, 2010, regarding the use of Field 1007. 

My view is that the (then) Chair of the Planning Applications Panel clearly stated that you could mow the grass at Field 1007.  I therefore consider that, de facto, the land can be used as a lawn. 

However I do not consider that it can be regarded as domestic curtilage, in the light of a previous refusal for change of use". 

22.      The appellant's position is that this letter is further evidence that the land does not have a use for horticultural or agricultural purposes.  That is based on the premise that if it can, de facto, be used as a lawn, it follows that it has at least a domestic use and not merely an agricultural use. 

23.      The Court has recited the planning history in some detail because the terms of the enforcement notice require the appellant to cease "unauthorised storage".  The unauthorised storage clearly relates to the storage of material on the area of hard standing.  It seems to us that consideration of the validity of such a notice requires consideration of these matters in relation to the use of that area of land:-

(i)        Was there an established use?

(ii)       Was there an authorised use in accordance with the permit?

(iii)      Had there in fact been a material change of use, on the basis that if no such material change of use had taken place, the enforcement notice was inappropriate?

24.      We understand that both the appellant and respondent agreed these were material questions.  The fourth question, which the appellant contended was relevant, and the respondent contended was not relevant, was whether there had been any authorised change of use outside the terms of the permit, as a result of the communications of the Director of Planning. 

25.      The first question can be answered reasonably easily.  It seems to us to be clear that the established use of Field 1007 was an agricultural use.  This is confirmed by the explicit terms of the permits granted for development on this area of land in the sense that save and so far as those permits give permission for development, there is expressly the requirement that the remaining parts of Field 1007 should retain their agricultural use.  These permits also make it plain that so far there has been no permitted change in the established use. 

26.      As to whether there had been any material change of use, the appellant produced a photograph of the area of hard standing taken on the day the enforcement notice was served.  It was said that this photograph did not show commercial use of the area.  The photograph does appear to reveal one vehicle, a small boat, a trailer, a storage cabin, two plastic oil tanks, some fencing and various other relatively small stored items. 

27.      The Court was also shown a photograph of an area of land immediately east of the eastern gable of the storage area.  This would appear to be an area which falls within the curtilage of the storage shed, and it shows storage of pallets, a metal barrel, plastic barrels, concrete slabs and so on.  Another photograph, taken at the same time, shows a Portacabin trailer, concrete mixer, concrete blocks, oil tanks and other material.  These photographs were allegedly taken in September 2010, some three months after service of the notice now appealed. 

28.      Having considered these photographs, we think that the land in question was being used for storage purposes to a material degree and that therefore it is critical to determine whether or not there is an authorised storage use. 

29.      As we have found that there was an established agricultural use which has not been amended by the existing express planning permissions, the only matter remaining for us to consider is whether there was any authorised storage use permitted outside the formal structure of the permissions which have been mentioned. 

30.      It is clear to us that the representations of the Director of Planning are capable of being relevant to any application to the Minister for change of use.  When the most senior planning official makes representations to a member of the public, that member of the public ought to feel able to rely upon them.  Of course the Planning authority which considers an application for a change of use must have regard to all material planning considerations, of which the Director's representations would be just one.  In this case, the fact that the area of hard standing lies in the countryside zone is an important consideration as is made plain by Island Plan Policy C6.  There may well be other material planning considerations, however, which would support an application for a change of use in relation to this area.  The aerial photograph appears to show as much commercial use as domestic use in the immediate environs of the hard standing in question.  There appears to be good screening of the area from neighbouring properties.  It does not seem to us that it would be at all reasonable to require the removal of the hard standing itself given the confirmation provided by the Director of Planning that it was in order to lay that hard standing, and although it is true that hard standing does not prevent the land being used for other agricultural purposes such as the parking of tractors or other agricultural machinery, ancillary to another agricultural use, it does not seem very likely that such would be an appropriate way forward.  For these and no doubt other reasons, it may well be that an application for a change of use of the hard standing area to storage, and the removal of some of the existing conditions which would prohibit such a user might well be reasonable, but, of course, we have only seen part of the picture and the appropriate authority would have to consider carefully all the factual circumstances and all relevant planning considerations before reaching its conclusion. 

31.      We accept the submission of Mr. Mills, however, that even if it were the case that an application for a change of use would be successful, no such application has been made and it remains true that the enforcement notice is to stop or prevent an unauthorised use.  If permission were to be given for a change of use, it might well have conditions attached to it.  To strike down the   enforcement notice would in effect be to grant a change of use without any application, without consideration perhaps of all material considerations, and without the ability to impose conditions. 

32.      We add that the permission given in 2004 for the storage of telegraph poles for twelve to eighteen months is also a significant feature in what the approved user of the land ought to include.  We assume that the permission was not given because Jersey Telecom Limited is owned by the States.  It must be right to assume that the Planning Minister would not have given an approval to Jersey Telecom Limited that would not have been available to an ordinary member of the public, and accordingly that there must have been material planning considerations which legitimated the decision to permit storage of telegraph poles on this site for twelve to eighteen months.  The permission given at that stage is relevant in our view for two reasons - first of all because it shows that there is no material planning reason why the land should not be used for storage purposes, at least over a short period, and secondly because the fact that it was a temporary permit emphasises the need for an application for any change of use on a permanent basis.  

33.      For these reasons, we consider that the appellant fails in his appeal.  We therefore direct that the enforcement notice was validly served and stands.  We have gone into the detail we have in the hope of giving guidance both to Mr Manning and to the Planning authorities.  Notwithstanding our upholding the enforcement notice, the Court has some real reservations about the maintenance of the conditions preventing a change of use of the area of hard standing lying to the east of the storage shed.  What the approved use should be is clearly a different matter, for all the reasons we have stated, but the issue merits some attempts at discussion and agreement between the appellant and the respondent, and, of course, a formal application by the appellant for any change of use would have to be made and handled by the respondent in the appropriate way.  This would give the opportunity for public consultation and, if the application were to be granted, for the imposition of appropriate conditions.  

34.      For all these reasons the appeal is dismissed. 

Authorities

Planning and Building (Jersey) Law 2002.

Manning-v-Minister of Planning and Environment [2010] JRC 186.

The Island Planning (Jersey) Law 1964.