Jersey Unreported Judgments

Planning - appeal regarding proper interpretation of Policy C20 of the Island Plan concerning redundant greenhouses.

[2012]JRC090

Royal Court

(Samedi)

8 May 2012

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham and Crill.

 

Advocate D. G. Le Sueur for the Appellant.

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

judgment

the commissioner:

1.        This is an appeal against the decision of the respondent ("the Minister") to refuse permission to the appellant to construct 25 dwellings at De La Mare Nurseries, La Rue à Don, Grouville.  The central issue on the appeal is the proper interpretation to be given to Policy C20 of the Island Plan 2002 which concerns redundant glasshouses. 

2.        An earlier application by the appellant for the development of the same site had been refused on 12^th November 2009 and an appeal against that refusal was stayed, pending the outcome of the application which is the subject of this appeal.

3.        De La Mare Nurseries abuts upon the Rue à Don in the parish of Grouville close to the road junction which connects to the Coast Road.  The site is broadly square in shape, bounding to the North East and the South East (across roads) residential buildings, to the South West open agricultural fields and to the North West Grouville Marsh; thus on two sides, it adjoins residential buildings. Part of the site comprises a florist shop and office/staff accommodation which is in the Built-up Area on the 2002 Island Plan.  The rest of the site lies within the Countryside Zone and comprises:-

(i)        a derelict block of wooden glasshouses built, we believe, in the 1950s - this block adjoins La Rue à Don and is therefore visible from the road;

(ii)       a derelict block of aluminium glasshouses built in the 1970s;

(iii)      a block of more modern glasshouses built in 2000 which are not derelict;

(iv)      some seven poly-tunnels, a reservoir and an open field (situated furthest from Rue à Don towards Grouville Marsh).

4.        We were given an aerial photograph of the site and it would seem that taking a very broad brush approach, the three blocks of glasshouses cover similar areas (although the wooden glasshouses would appear to cover the largest area) so that one might say that at least two-thirds of the glasshouses are derelict and one-third not.  In his skeleton argument, Mr Le Sueur maintained that some 89% of the glasshouses were derelict.  It is not clear to us the basis upon which that assertion is made but it is not, in our view, material to the decision to which we have come.

5.        The site is owned by Roy Norman Smith who in his affidavit of 15^th December 2011 explained how he started working in the nursery in 1973 and eventually acquired it with the aid of an agricultural loan.  He developed it into one of the main commercial flower production sites in Jersey.  However, due to a number of factors including rising costs and lacks of government support, his business began to fail in 2007.  Due to the age of the glasshouses and poly-tunnels, their specifications in terms of design, height and layout of heating and irrigation they could only accommodate flower growing.  He could not see another viable crop to grow in them.  It was not, he said, financially viable to rebuild or repair the majority of glasshouses and poly-tunnels in the nursery. It would require a new climate control computer, heating boiler, water purification system, pipe-work and electrical wiring throughout the nursery to bring it up to the current day specifications, which was not possible for a business already losing money.  The business closed altogether in December 2008. 

6.        The application which is the subject of this appeal was filed in January 2010 and was considered by the Panel Applications Panel under delegated authority on 16^th December 2010 when it was refused for the following reasons:-

"Given that the Minister for Planning and Environment does not accept that the glass on the site is redundant or dilapidated, no exceptional circumstances have been advanced to outweigh the general policy presumption against new development in the Countryside Zone in compliance with the requirements of Policies C1: C6 and C20 of the Adopted Island Plan 2002.  Accordingly the proposed development is contrary to the aforementioned policies."

7.        Policy C6 concerns development within the Countryside Zone. It provides that there will be a high level of protection given and there will be a general presumption against all forms of new development for whatever purpose. 

8.        This appeal is primarily concerned with Policy C20, which it is helpful to set out with its preamble in full:-

"Redundant Glasshouses

5.83    Changes in the horticultural industry have led to many glasshouses falling into disuse and eventual disrepair and dereliction.  Many owners and growers consider such circumstances might enable development to be permitted on the site.  However, glasshouses are regarded as temporary structures related to the basic horticultural use of the land and subject to the policies for the countryside at large.

5.84    The dereliction of glasshouses blights the landscape in many parts of Jersey and sterilises the land for other agricultural use.  Only in exceptional circumstances will such derelict sites be appropriate for non-agricultural development and it is the intention of the Planning and Environment Committee that appropriate means are introduced to encourage or assist landowners and horticulturists to remove these eyesores and enhance the countryside.

5.85    Any redevelopment of glasshouse sites should be considered on the planning merits of each individual site, judged against a range of criteria identified in the new Island Plan policies.  These will include the degree to which the development can be successfully integrated with the existing built-up area, its accessibility, and the capacity of the local physical infrastructure and environment to accommodate any such redevelopment.

Policy C20 - Redundant glasshouses

There is a presumption against the development of redundant and derelict glasshouses for non-agricultural purposes.  In exceptional circumstances the development of redundant glasshouse sites for non-agricultural purposes may be permitted, provided that the development:

(i)        can be successfully integrated with the built-up area of St Helier, or an urban or key rural settlement;

(ii)       will not have an unacceptable visual impact or unreasonably affect the character and amenity of the area;

(iii)      will not have an unacceptable impact on a Site of Special Interest, building of Local Interest or a Conservation Area;

(iv)      will not lead to unacceptable problems of traffic generation, safety or parking;

(v)       is appropriate in scale, form, massing, density and character to the site and its context;

(vi)      includes for the provision of satisfactory mains drainage and other service infrastructure; and

(vii)     is in accordance with other principles and policies of the Plan.

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

Where no alternative use of the redundant glasshouse site is appropriate the Planning and Environment Committee in conjunction with the Agriculture and Fisheries Committee will seek to encourage and assist in their removal and restoration of the land.  Where applications are approved for new glasshouses they will be accompanied by a condition requiring their removal, at the owners cost, if the use becomes redundant."

9.        No disuse and disrepair conditions were imposed on the permits for any of these glasshouses (as they are where such permits are issued today). The Minister could resort to using Article 86 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") to require their removal because they are adversely affecting the amenities of the Island. The cost of removing glasshouses and any contamination can be substantial and the use of this power could we are told be regarded as a draconian measure bearing in mind no compensation is paid under that article. Mr Le Sueur submitted that it would not make economic sense for the appellant to voluntarily incur such costs in order to return the land to productive agriculture.

10.      In its report of 3^rd December 2010, the Planning and Environment Department gave this advice on the interpretation of Policy C20 which it is again helpful to set out in full:-

"The Minister has absolute discretion in respect of making exceptions to Policy C20, however, because the policy is not specific, certain areas require further interpretation and in this respect, it is important to determine what is meant by the terms 'derelict' and 'redundant' and whether both should apply; it is necessary to understand what constitutes 'exceptional circumstances' and it is important to determine the type and extent of 'non-agricultural development' that might be acceptable.

The terms 'derelict' and 'redundant' are used in the policy to describe the condition of the glasshouse structures.  However, the policy only refers to the term redundancy when considering non-agricultural development, which could be quite confusing.  The terms 'derelict' and 'redundant' in their own right, can describe quite different circumstances and it is important to be clear about what is meant.  Whilst it is likely to be the case that a derelict glasshouse site will almost certainly be redundant, redundancy on its own may simply mean that the grower is no longer willing to invest in the industry and has decided to withdraw.

Accordingly, a redundant and derelict glasshouse site is assumed to be dilapidated, ruined or abandoned and of no value to the horticultural industry.  The glasshouse structure is likely to be old and there are unlikely to be any planning conditions requiring the removal of the structure should it fall into disuse or disrepair.

The aim of Policy C20 is to preserve the countryside and any glasshouse sites are still subject to the other countryside policies where there is a clear presumption against development."

11.      In terms of redundancy, the following advice had been received from the Land Controls and Agricultural Development Section of the Environment Department:-

"The applicant purchased the nursery in 1985, which included 15 vergees of land, part of which was covered by old, vinery style glasshouses.  Half an acre of old glass was replaced by a modern block in 2000.  The remainder of the old vinery style glasshouses have now passed their useful commercial life and it would not be viable to replace them with modern glass.

From 1985 to 2008, the applicant ran a successful flower production and supply business.  The applicant ceased to trade at the end of 2008 as a result of difficult trading conditions exacerbated by the rise in energy costs and cheaper imported flowers.

Because part of the nursery consists of a comparatively modern block of glass, the applicant was requested to advertise the nursery in the JEP on 3 occasions to enable this Section to ascertain any likely demand for the nursery and its potential loss to commercial agriculture.  It has been confirmed by the JEP classified section that there was no response to the adverts.

Due to recent events in the protected crop industry with main growers either ceasing to trade or downsizing to grow for the local market only, it was to be expected that there would be a lack of interest in this nursery.  Therefore, it can be assumed that the nursery is now redundant because of the lack of response for the relatively modern glass."

12.      In the draft Island Plan published for consultation on 25^th September 2009, the Minister had earmarked the appeal site as a site for the development of category A housing (affordable housing).  The draft describes the existing glasshouses as redundant:-

"The development of the site offers the opportunity of removing a large area of redundant glass and improving the visual amenity of the area by restricting the extent of development, with careful design, and the use of appropriate material, colour and landscaping."

13.      This draft Island Plan was due to be debated by the States Assembly in October 2010. It is the contention of the appellant that the Minister delayed the processing of the application to allow his proposal to be considered by the States Assembly but when the debate was delayed by six months and there was no alternative but to consider the application, the Minister influenced the decision of the Panel directly or indirectly through the Planning Officers Report; all of this was in order to keep open his political ambition to have the site re-zoned for Category A housing.

14.      The Panel was chaired by Constable John Le Sueur Gallichan.   In his affidavit he explains that in accordance with usual practice, the Panel made a visit to the site.  They were not there more than 15 minutes.  They could see the wooden greenhouses adjacent to Rue à Don were derelict but to the north they saw the relatively modern glasshouses constructed in 2000, which looked quite new to them. 

15.      At the public meeting on 16^th December 2010, at which they were addressed by Roy Smith, they reached the view that because the Policy required the greenhouses on the site to be both redundant and derelict and because the relatively new glasshouses were clearly not derelict, the application should be refused on that ground.  They did not go on to consider redundancy.

16.      The Solicitor General submitted that the advice given to the Panel on the interpretation of Policy C20 was correct.  Policy C20 should be construed with purpose (See Alpine v Minister for Planning [2010] JRC 105A). He pointed to the preamble at paragraphs 5.83 and 5.84 set out above and emphasised that part which said:-

"Dereliction of glasshouses blights the landscape .... Only in exceptional circumstances will such derelict sites be appropriate for non-agricultural development ...."

It was plain, he said, from this commentary that the Policy envisaged that only derelict sites that scarred the landscape would be the subject of development in exceptional circumstances.

17.      He accepted that the Policy was headed "Redundant Glasshouses" and that the second sentence of the Policy itself read:-

"In exceptional circumstances the development of redundant glasshouse sites for non agricultural purposes may be permitted...."

18.      In his view, "redundant" in this context can only mean derelict.  The Planning Department could not be expected to assess "economic" redundancy of a glasshouse that is in physically good condition and the States of Jersey did not intend such a process.  Conversely, whether something is derelict or not is obvious in most cases from the physical appearance with perhaps short additional evidence on the point.  If the appellant was right, he said, then the moment that an islander can prove that there is no market demand for a modern glasshouse, he is entitled to apply for planning permission to develop in the Countryside Zone and need take no other steps to use the land in a manner that enhances the countryside.  That, he said, would run directly contrary to the central principle of enhancing the countryside.

19.      "Redundant", according to the Oxford English Dictionary means superfluous or no longer needed.  We think that "redundant" in the context of Policy C20 means glasshouses that are no longer needed either by the owner or by other agriculturists. "Derelict" means abandoned or neglected.  The refusal somewhat confusingly made reference to "dilapidated" which means in a state of decay or potential ruin.

20.      The Solicitor General maintains that for Policy C20 to be engaged glasshouses must be both redundant and derelict, i.e. no longer needed and neglected, but as Mr Le Sueur argues, if that is the case, why was the Policy not headed "Redundant and Derelict Glasshouses" as opposed to "Redundant Glasshouses"?

21.      Turning to the precise wording of the Policy itself, one must start with the presumption that the words are used correctly and exactly.  In the first line of the Policy, it is made clear that there is a presumption against development for both redundant and derelict glasshouses; in other words, the presumption is very widely drawn.  The second sentence, however, goes on to say that in exceptional circumstances, the development of "redundant" glasshouses may be permitted.  It does not refer to "redundant and derelict" glasshouses. The Solicitor General says that "redundant" in this context must be interpreted as meaning "derelict" - in other words, that it was a mistake on the part of the draftsman, who should have either used the word "derelict" or added the words "and derelict". 

22.      Mr Le Sueur submits that the words used are intentional.  Redundancy is the first stage towards dereliction. As the preamble says many glasshouses have fallen into disuse (redundant) and that leads to "eventual disrepair and dereliction".  It is therefore entirely rational to have a policy addressing redundant glasshouses even though the state of dereliction may not yet have occurred.  To require redundant glasshouses to be also derelict would mean that a redundant site would need to remain redundant until after an indeterminate period of time when the redundant and useless glass had moved to the next stage and fallen into a state of neglect.  That passage of time serves the Island no purpose. If the passage of time was necessary in order that redundant glass fell into neglect, then an owner would simply be encouraged to quicken the process of dereliction by taking a crowbar to the glass.

23.      Notwithstanding reference to disrepair and dereliction in the preamble, we accept the submission of Mr Le Sueur that the Policy itself is engaged where the glasshouses can be shown to be redundant.  It is not necessary to wait until the stage of dereliction has come about.  The protection of the Countryside Zone lies in the clearly stated presumption in the first line of the Policy itself against development of both redundant and derelict sites and the fact that development of redundant sites will only be permitted in exceptional circumstances.

24.      We reject the suggestion that the Planning Department cannot be expected to assess redundancy. It is perfectly capable of procuring advice on a range of matters and routinely does so. In this case it had advice from the Land Controls and Agricultural Development Section which the Minister had no difficulty in accepting for the purposes of the draft Island Plan.

25.      The Panel were mistaken and in our view unreasonable in rejecting the application without even considering redundancy.

26.      If we are wrong in accepting this interpretation of the Policy, then in our view the Panel were mistaken and unreasonable in the implementation of the advice given by the Planning Department. According to that advice the policy is concerned with both redundancy and dereliction. In deciding whether the policy is engaged, the Minister must approach the criteria in a reasonable and proportionate manner. It would be unreasonable to insist that every square foot of every glasshouse is both redundant and derelict. There is a continuum progressing from very recently redundant glasshouses which are all in good repair at one end to redundant glasshouses that are wholly derelict at the other.  The Panel should have considered the issue of redundancy (upon which we comment below) and the issue of dereliction. In this case, assuming they were found to be redundant, the great majority of the glasshouses were derelict and taking them as a whole they were sufficiently advanced towards dereliction for the policy to be engaged. That does not mean of course that development permission would follow as the appellant then faces the hurdle of the presumption against development and the exceptional circumstances test.

27.      To ignore the evidence of redundancy and rely solely upon the fact that a minority of the glasshouses were not derelict was, in our view, both mistaken and unreasonable.

28.      Even though the Panel had not considered redundancy, the Solicitor General went on to argue that there was no evidence before the Panel that the modern glasshouses were redundant. The three advertisements placed in the Jersey Evening Post merely provided, he said, a snapshot of the position at the time of each advertisement, showing there was no great demand at that precise time. That could not equate to demonstrating permanent redundancy.  The Agricultural Department keeps a register of agricultural land and buildings for sale or lease on the States of Jersey website and a copy of that website as at 22^nd February 2011 showed under "Buildings wanted" that there was a requirement for a glasshouse of 3,600 square metres plus.  We note that the contact named in the web site is Simon Surcouf, who is the same person who wrote the letter of advice from Land Controls and Agricultural Developments Section, advising that the more modern glass was redundant. 

29.      The Solicitor General went on to say that the Minister's views expressed in the draft Island Plan were based upon the same information as that provided by Land Controls and Agricultural Developments Section and therefore added nothing.  The only sensible conclusion that the Panel could have reached, he said, if they had considered redundancy, was that the modern glasshouses were not redundant. We can only assume from this that in the Solicitor General's view the conclusion reached by the Minister in the draft Island Plan that the glasshouses were redundant was not sensible.

30.      We reject these arguments.  The Panel had clear advice that the modern glasshouses were redundant.  The Land Controls Section had undertaken an exercise in terms of advertisements, with which the appellant had complied, and had reached a conclusion.  If the Panel had concerns as to that advice, then it would have been open to them to have the issue investigated further. 

31.      The Minister was clearly content to rely on the advice of the Building Controls Section on redundancy for the purposes of the draft Island Plan. It would seem to us unfair from the perspective of the appellant for the Minister to proclaim publicly that all the glasshouses on the site are redundant and at the same time for the Panel, as his delegatees, to argue to the contrary.  In any event, the Panel never got to the stage of considering the issue of redundancy. 

32.      In the premises and applying the well established test laid down in Token Limited v PEC [2001] JLR 698, we conclude that the decision of the Panel was not only mistaken but unreasonable.  We therefore allow the appeal and, following the decision in Ruette Pinel Farm v Minister of Planning [2012] JRC 008, we quash the decision and remit the matter back to the Minister for further consideration.

33.      In giving further consideration to the matter, the Minister will be required to apply the policies under the 2011 Island Plan, which was adopted by the States Assembly on the 29^th June 2011, and this pursuant to Article 19(2) of the Planning Law and although we have not considered the new policies in relation to redundant glass houses, we were informed by Mr Le Sueur that the application would not meet the new requirements.

34.      In that respect we note that Article 19(3) allows the Minister to depart from the current Island Plan if there is justification for doing so. In our view the Minister will need to consider whether an issue of procedural fairness arises here in that this application was first submitted as long ago as January 2010. Not only was it subjected to what was on any analysis a very long delay but then the Planning Applications Panel acted unreasonably as we have found. The Minister may feel that as a matter of procedural fairness he would be justified in departing from the requirements of the 2011 Island Plan to the extent that it imposes hurdles which did not exist under the 2002 Island Plan.

35.      That suffices to dispose of the appeal but two further matters are raised by the appellant. 

36.      Mr Le Sueur argued that if Policy C20 was engaged, then the seven criteria set out in the Policy constituted the exceptional circumstances in which development would be permitted. He contended that the seven criteria were met in this case and therefore that permission to develop should have been granted.  The Solicitor General argued that the existence of exceptional circumstances is a stand-alone test quite separate from the seven listed criteria.  The primary aim he said is to encourage and facilitate the continued use of the land in a manner that enhances the countryside and it follows that only in exceptional circumstances will the Minister wish to consider a planning application for development in respect of these sites. This, he said, is a separate test which allows the Minister to balance the potential benefit of the development against the importance of maintaining the countryside area. Ordinarily, the balance would come down in favour of preserving the countryside.

37.      However, the seven criteria set out in the policy are immediately followed by the following words:-

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

It followed from this, Mr Le Sueur submitted, that if the criteria were met then permission would normally be granted. The Panel never got to the issue of the seven criteria and it is therefore not for us to comment on whether they are or are not met.

38.      We construe the policy in this way. It states that "In exceptional circumstances the development....may be permitted, provided that...." and it then sets out the seven criteria. It follows as a matter of construction that if those criteria are met then the development "may be permitted" (our emphasis). Thus the Minister retains a discretion even if the criteria are met. If the criteria are not met then "the development will not normally be permitted" (our emphasis). We therefore reject Mr Le Sueur's contention that if the criteria are met then permission has to be granted. He is right to say however that if the criteria are met then permission will normally be granted but the Minister retains a discretion.

39.      As mentioned above, the appellant argued that the Minister's desire to see Category A housing on the site led him to improperly influence the matter, firstly by delaying the application in the hope that the States would debate the draft Island Plan with his proposal for the site to be re-zoned for Category A housing and secondly, when that was no longer feasible, by influencing the recommendation of the Planning Department to the Panel.

40.      It is true that the application took nearly a year to be considered. It was in substance the same as the previous application which itself took a year to consider. In his affidavit of the 12^th September 2011, Christopher Jones, Senior Planner, explained that the delay was caused by a combination of factors namely the timing of the responses, the Director of Planning becoming involved, the request for legal advice from the Law Officers and his caseload. It is fair to say that Roy Smith had considerable reservations as to the adequacy of the explanation put forward for this delay and questioned whether the full file of documents had been disclosed to the Solicitor General, who had stated that any evidence of impropriety that he encountered would be drawn to the attention of the Court.

41.      We have no means by which we can measure the time taken on this application against other applications before the Planning Department at that time, although we accept that there was a long delay. The key assertion is that the Minister had improperly influenced the Planning Officer's report. In that respect we note that the advice given by the planning officers as to policy C20 in this application is the same as the advice they gave in the earlier application and the advice given in 2010 in the entirely unrelated application in respect of Trident Nurseries. The consistency of this advice belies any suggestion of undue influence on this particular application. The fact of the matter is that we have no evidence before us to support any allegation of impropriety on the part of the Minister or the Planning Officers.

Authorities

Planning and Building (Jersey) Law 2002.

Alpine v Minister for Planning [2010] JRC 105A.

Token Limited v PEC [2001] JLR 698.

Ruette Pinel Farm v Minister of Planning [2012] JRC 008.