Jersey Unreported Judgments

[2011]JRC160A

Royal Court

(Samedi)

16 August 2011

Advocate M. H. D. Taylor for the Appellant.

Advocate R. C. P. Pedley for the Respondent.

judgment

the commissioner:

1.        This is an appeal under Rule 20/2 of the Royal Court Rules 2004 against the decision of the Master (acting as a Greffier Substitute) of 25^th May, 2011, that the appellant's planning appeal be heard by way of the modified procedure, pursuant to Rule 15/3A of the Royal Court Rules 2004. 

2.        The planning appeal relates to a decision of the respondent to refuse the appellant permission to construct 25 dwellings at De La Mare Nurseries, La Rue a Don, Grouville.  

3.        The test on such an appeal is set out in Garfield Bennett-v-Phillips 2002/214:-

"This is an appeal from the decision of the Master.  In accordance with long established practice in such cases, the Court has therefore to consider the matter afresh and reach its own conclusion whilst, of course, talking due account of the decision of the Master and the reasons for his decision."

4.        Under Rule 15/3A(1) and (2) the Master is required to proceed as follows:-

"15/3A Planning Appeals

(1) Within 5 days of the respondent having complied with Rule 15/3(1) the Greffier shall consider the notice of appeal and the respondent's affidavit and any accompanying documents and, having regard to -

(a)       the nature and complexity of the issues raised;

(b)       the questions of law (if any) involved;

(c)       the extent to which any matter of public interest may arise in the proceedings; and

(d)       any other circumstances of the appeal,

shall, subject to Rule 15/3C, notify the parties in writing whether the Greffier is minded to treat the appeal as an appeal to be dealt with under the ordinary procedure or under the modified procedure and shall give the parties the opportunity to make written representations in that regard within such time as the Greffier may determine. 

(2) The Greffier shall consider any such representations and determine whether the appeal is to be dealt with under the ordinary procedure or under the modified procedure."

5.        The Master had before him the notice of appeal, the affidavit sworn on behalf of the respondent and accompanying documents and a letter from Bedell Cristin, acting for the appellant, dated 13^th May, 2011.  

6.        By his letter dated 21^st July, 2011, the Master confirmed that he had these documents before him, that he had considered the matters listed in Rule 15/3(1) as set out above and that having done so, had decided that the modified procedure was appropriate.  

7.        Mr Taylor, for the appellant, submitted that the decision of the Master was unreasonable and wrong in the circumstances for the following reasons upon which he elaborated at the hearing but which I will set out in summary:-

(i)        The Master, he said, did not get to grips with the complexity of the issues that will be before the Royal Court.  An important issue of interpretation of the Planning Policy C20 arose, in particular, whether glasshouses have to be both redundant and derelict for the purposes of that Policy, upon which the guidance of the Royal Court is required. 

(ii)       The respondent made inconsistent statements as to whether the glasshouses in this case were redundant, namely in the planning decision that they were not redundant and in the draft Island Plan presented to the States Assembly that they were redundant. 

(iii)      The respondent intentionally delayed the appellant's planning application so that he could obtain approval from the States Assembly pursuant to the draft Island Plan for the site to be used for Category A housing.  Although ultimately it was not so approved, it would have been a political coup for the respondent if it had been. 

8.        These issues were of considerable public importance, Mr Taylor argued, to which the Master had given insufficient weight. 

9.        Central to the appellant's case is its contention that these matters can only be dealt with by way of oral evidence and in particular, by way of cross examination of the respondent personally, which it says would be prejudiced by the imposition of the modified procedure which was designed for a short hearing (no more than1 hour to 1½ hours), where cross examination would be the exception, where the parties would not generally be legally represented and where costs would only be awarded in exceptional circumstances. 

10.      Mr Pedley, for the respondent, pointed out that there are essentially three differences between the modified and ordinary procedures as made clear in RC 05/25 and  RC 06/03, namely the timing of the hearing, whether the parties are legally represented and costs.  

11.      RC 06/03 provides that the amount of time allowed for a hearing before the Royal Court "will normally be no more than 1½ hour."  It is an aim not a restriction more honoured in the breach in my experience.  Even under the ordinary procedure RC 05/25 makes it clear that the expectation is for hearings to last no more than half a day. 

12.      Under the modified procedure the parties are entitled to be legally represented but the expectation is that they would not ordinarily be legally represented, with the proceedings being conducted with as much informality as is consistent with the proper administration of justice.  In this case both parties are legally represented. 

13.      In terms of costs, it is the position that costs orders are seldom made under the modified procedure, a neutral point as Mr Pedley observed, but one which gives very valuable protection to the appellant.  In my view, that protection is an important issue that the Master would take into account when deciding upon which procedure to apply.  

14.      Mr Pedley submitted that this is not a complex planning appeal and there is no reason why the issues raised cannot be dealt with by way of affidavit evidence and oral submission in the usual way.  Furthermore, there is simply no evidence, he said, that the Master failed to take into account the matters raised both in the notice of appeal and the letter from Bedell Cristin.  Indeed the Master had confirmed that he had done so. 

15.      The key point for the purpose of this appeal is that under both procedures it is provided that they will be dealt with primarily by means of affidavit evidence and if a party wishes to cross examine a deponent on the contents of his affidavit, he must obtain the leave of the presiding judge which will only be granted in exceptional circumstances. 

Decision

16.      This appeal is driven by the desire of the appellant for there to be oral evidence and the concern that the imposition of the modified procedure will prejudice its chances of obtaining leave.  However it is clear that leave is required under both procedures and in considering whether to grant leave the Court will be concerned with the merits of the application.  It will not be concerned with or fettered by an earlier procedural decision made by the Master on more restricted documentation.  

17.      The stage has not been reached when the Court can properly deal with an application for the hearing of oral evidence.  At the moment, an affidavit has been sworn on behalf of the respondent by Jonathan Gladwin dated 3^rd March, 2011, with the usual accompanying documents and an affidavit has been filed on behalf of the appellant sworn by Jonathan Charles Stratford dated 1^st April, 2011, which sets out the appellant's complaints in some detail.  There is shortly to be a directions hearing when the Court will need to consider whether the respondent or someone on his behalf should file a further affidavit responding to the allegations raised in Mr Stratford's affidavit and providing further documentation by way of discovery.  It is at the stage that all the affidavit evidence has been filed that the Court can determine whether there are relevant issues of fact which require to be resolved for the purposes of the planning appeal by the unusual step, in the context of administrative proceedings, of the hearing of oral evidence.   

18.      Furthermore the procedural decision of the Master is not set in stone as made clear by Rule 15/3A(3) which is in the following terms:-

"(3)     The appeal shall then proceed in accordance with that determination, but paragraph (2) does not affect the power of the Court at any stage of the proceedings of its own motion or on the application of any of the parties to order that the appeal be dealt with under whichever procedure the Court thinks fit."

The Court is thus in a position that it can alter the procedure at any stage. 

19.      Approaching the matter afresh as I am required to do, I conclude that the Master was correct in determining that this planning appeal proceed under the modified procedure with the protection as to costs which it gives the appellant and have no reason therefore to interfere with his decision.  The matter can proceed under the modified procedure until such time as an application is made by the appellant for the hearing of oral evidence when the procedure can be reviewed.  The key difference if the procedure is changed will be to remove the appellant's protection as to costs, which the Court might well feel appropriate if oral evidence is to be heard at the appellant's request. 

20.      The appeal is therefore dismissed. 

Authorities

Royal Court Rules 2004.

Garfield Bennett-v-Phillips 2002/214.