Jersey Unreported Judgments

Planning - Third Party appeal against the decision of the Minister dated 10th August, 2011.

[2012]JRC117

Royal Court

(Samedi)

8 June 2012

Before     :

J. A. Clyde-Smith, Esq., and Jurats Clapham and Milner.

 

The Appellant appeared in person.

Mr Duncan Mills appeared for the Minister.

The Applicant appeared in person.

judgment

the commissioner:

1.        This is an appeal brought under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") against the decision of the respondent (to whom we will refer as "the Minister") on 10^th August, 2011, to give consent to the applicant to construct a two storey extension to the west elevation of the property known as Beach House, La Route de Plemont, in the parish of St Ouen. 

2.        Beach House is a newly constructed (2004/05) two storey detached property on the western or left hand side of La Route de Plemont, as the road descends down to Plemont beach.  The granite ground floor is set into the hillside to the south.  The timber-clad first floor contains the living areas and has a large balcony along part of its northern side and extending out over the whole of its western side by some 5 metres, with an external staircase that descends on to a decking area below.  Just beyond the point of the decking, the land slopes sharply down a bank to the west and the small valley and pond belonging to the appellant. The house is in a prominent position.  The coastal path passes along its northern boundary as does the National Coastal Park established under the 2011 Island Plan. 

3.        An application to construct a two storey extension to the western elevation was refused in 2010 for the following reasons:-

"The site lies in a prominent location in the Green Zone, as designated on the adopted 2002 Island Plan, wherein there is a general presumption against all forms of development for whatever purpose.  The proposals seek to extend an existing dwelling which itself replaced 2 much smaller buildings.  The proposed extension, by reason of its scale, siting and mass would result in visual harm to the character of the area and the scenic quality of the zone.  As such the proposals fail to meet the provisions of Policy C5, G2 and G3 of the Island Plan 2002."

4.        The plans that are the subject of this appeal were prepared in consultation with the Planning Department and it would appear that the applicant was told that he would receive a positive officer recommendation. 

5.        The previous refused extension added some 100 square metres to the existing 150 square metres of the property.  This new extension adds 53 square metres and is subordinate in form to the existing house with the ridge level below that of the existing house and being inset from the front and rear elevations. 

6.        At the western side towards the appellant's property, the new extension will come out as far as the existing large west facing balcony and that balcony is in turn being moved out towards the very edge of, if not beyond, the bank leading down to the appellant's valley.  In all, the property and the balcony will be advancing some five metres towards the appellant's land. 

7.        Only generic reasons were given for the decision (contrary to the decision in Steenson-v-Minister for Planning and Environment [2009] JLR 427).  Mr Mills, on behalf of the Minister, expressed regret that this should have occurred and referred to the Planning Officer's report dated 14^th July, 2011, for the reasons for the decision, which are as follows:-

"The proposed extension and residential curtilage are considered to be acceptable having considered all of the material considerations.  In particular, the development has been assessed against policies NE7 and GD1 of the June 2011 Island Plan, and the representations raised and it is considered that the proposal would accord with the terms of the policies of the Adopted June 2011 Island Plan".  

8.        The Planning Officer's report with its recommendation for approval was passed to the director of Planning (Development Control) for review.  The director visited the site (as had the Planning Officer).  The chairman of the Planning Applications Panel was consulted and without a site visit he agreed with the recommendation on the papers and it was therefore approved under delegated powers from the Minister on 10^th August, 2011. 

Relevant policies

9.        Beach House is sited within the Green Zone and on the boundary of the National Coastal Park.  Policy NE7 states that within the Green Zone, 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.  However, certain types of development will be permitted where the scale, location and design would not detract from, or unreasonably harm the character of the countryside.  There are then listed thirteen types of development that may be acceptable in the Green Zone.  Number 1 of the listed types of development that will be permitted is "Domestic extensions and alterations of an existing dwelling".

10.      Island Plan Policy GD1 - general development considerations - sets out general development control criteria which apply across the Island to all types of development.  The listed criteria include, amongst other considerations, the following two criteria:-

"Will not have an unreasonable impact on the character of the coast and countryside

Does not seriously harm the amenities of neighbouring uses and should, in particular:

a)        Not unreasonably affect the level of privacy to buildings and land that owners and occupies might expect to enjoy."

11.      Island Plan Policy GD7 - design quality - states that:-

"a high standard of design that respects, conserves and contributes positively to the diversity and distinctiveness of the landscape and the built context will be sought in all developments". 

This is judged against a series of criteria, the following two criteria being the principal considerations in this case:-

"1.      the scale, form, massing, orientation, siting and density of the development, and inward and outward views;

2.        the relationship to existing buildings, settlement form and character, topography, landscape features and the wider landscape setting;"

Grounds of appeal

12.      The appellant appealed on the grounds that the decision was unreasonable in all the circumstances and in particular:-

(i)        the increase in size and scale of the building would detract from and cause unreasonable harm to the character of the area; and

(ii)       the proposal would result in overlooking and loss of amenity to his property to the west and that insufficient weight had been given to this issue in the determination of the application. 

Planning Officer's report

13.      Since the Planning Officer's report in effect constitutes the decision, it is helpful to refer to it.  The report describes the property as "situated on elevated land in an isolated and prominent location with clear views over open countryside within the Green Zone as designated by Adopted June 2011 Island Plan Policy NE7.  It has clear views of Plemont Bay to the north which forms the National Coastal Park as designated by Policy N6 of the June 2011 Island Plan .... The closest residential properties are some distance away.  These comprise a two storey detached house to the east and a farm on the western side of an extensive valley."

14.      In a check list of material considerations, the report lists the design factors, namely "in keeping, subservient to main building, windows and doors sympathetic and materials" as being acceptable.  In relation to the impact on neighbours, it notes as follows:-

"Given distance from adjoining occupiers the proposed extension would not result in any material loss of amenity by reason of dominance, overshadowing or overlooking".  

15.      In response to the objection received from the appellant, it noted "The adjoining occupier to the west comments that the extension would result in loss of privacy as their land/valley would be overlooked.  Whilst their concerns are appreciated, this property is some distance away and presently overlooked by the flank of the application premises and its open balcony and to refuse the application on this ground would not be reasonable."  The report sets out the applicant's response to this objection, stating that the appellant's house is surrounded by trees and that the proposed extension is no closer than the current balcony.  He said he would be happy to plant trees and that there had been no objections by his closest neighbours. 

16.      The report summarises the position as follows:-

"SUMMARY

The proposed extension would be in accordance with pre-application advice on file P/2033/-741 where a two-storey side extension of the form and massing proposed in the application now under consideration was proposed.  Correspondence to the applicant said this would be likely to receive a positive officer recommendation. 

The extension would be reduced by approximately 1m from that refused in 2010 and would be of a subordinate form to the main house, with ridge level below that of the main house and inset from front and rear elevations. 

The application premises does have a prominent siting and thus any extension would be visible but this would be to an acceptable degree given the siting of the house and the built up landscape to the rear; the extension would not result in sufficient harm to the character of the green zone or the national park, to warrant refusal.  Materials would match the existing house. 

Whilst the neighbour's concerns regarding harm to the character of the locality and that it would result in overlooking his valley, the property to the west would be some distance away and would not result in loss of amenity by reason of dominance, overlooking or overshadowing, particularly given that the applicant can look out across this land at present given the existing configuration of the western elevation; although the land would be overlooked, this takes place at present and it would not be reasonable to refuse the application on this ground. 

The application has been amended to include delineating the residential curtilage as should have been undertaken when the house was constructed but this opportunity has been taken by officers to include this important delineation as part of this application."

Submissions of Minister and applicant

17.      Mr Mills supported the reasoning put forward in the Planning Officer's report.  The view was reached, he said, that the extension, due to its subordinate form to the existing house, use of materials and location on the far western end of the house, would be acceptable in terms of impact on the character of the area.  He submitted that the appellant was effectively asking the Court to prefer his view to that of the Minister on the planning aspects of this matter, which was not an invitation which it was open to the Court to accept.  The Court had to apply the legal test which we accept is that set out Island development Committee-v-Fairview Farm Limited [1996] JLR 306 as elaborated in Token Limited-v-Planning and Environment Committee [2001] JLR 698 as follows:-

"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, JA 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 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."

18.      In terms of loss of privacy, he submitted that the proposed development would not materially increase the degree to which the appellant's property is presently overlooked.  The appellant's house and private garden are some 110 metres away to the south, set at a higher level than Beach House and screened by various mature trees.  The valley and pond which are situated to the west of Beach House are of agricultural use, although not actively used for agricultural purposes at present.  They do not form part of the domestic curtilage of the appellant's property.  Loss of amenity therefore had to be considered in that context. 

19.      The applicant supported the Minister's position. 

Decision

20.      The Court visited both the appeal site and the appellant's property, an exercise which it found helpful, being required as it is to first form its own view as to the merits.  Beach House is indeed in an elevated and prominent position.  It is highly visible from the car park above Plemont Beach and as you descend down the coastal path towards La Route de Plemont, and as you ascend the coastal path the other side.  It is equally visible from the more northerly path leading down from the car park to Plemont Beach itself.  Even though the ground floor is set into the bank behind, the first floor and balconies are not.  

21.      This prominence was recognised by the Planning Department when it granted consent to the current building on 26^th October, 2004, to replace two much smaller buildings; a consent which it is clear increased the visual impact of what was there before very materially.  One of the conditions imposed very strict restrictions on what could be done on the site, namely that no works could be undertaken involving the erection of a building, extension, gate, wall, fence or other means of enclosure, tank, or the introduction of any hard standing to any ground surface, other than those shown on the drawings approved without the prior approval of the then Committee.  The reason given for these restrictions were "The prominence of the site requires strict control over the form of any additional development which may be proposed." 

22.      We find it surprising, therefore, that the Planning Department had apparently given positive signals to the applicant over an extension of some 33% of the existing area of the property, and even if it is now subordinate, to the very material increase in the visual impact it will have in such a location.  This increase is on top of the increase in the visual impact caused by the existing property built pursuant to the 2004 consent. 

23.      The Planning Officer's report states that although the extension would be visible this would be to an acceptable degree "given the siting of the house and the built up landscape to the rear".  In our view, this is mistaken on both counts.  The built up landscape to the rear shields the ground floor only and the siting of the house in such a prominent position in place of two much smaller buildings (as noted in the 2010 refusal), makes any extension of what is there particularly sensitive, requiring strict controls as recognised in the 2004 consent. 

24.      We agree with the appellant that the scale and location of the proposed extension does detract from and does unreasonably harm the character of the area; the character which the consent itself describes as "a high quality environment".  This is an area of outstanding beauty on the edge of the National Coastal Park and the coastal path within it.  There has already been some unattractive development there.  The property of the applicant has been developed with some sensitivity to the location.  However the proposed extension to the building (increasing it by 33%) in this prominent site is a step too far.  Given the history and the location, the decision in this respect is in our view not only mistaken but unreasonable. 

25.      Turning to the issue of privacy, Mr Mills accepted that neither the Planning Officer nor the director or anyone else from the Planning Department had viewed the proposal from the appellant's property.  They apparently relied on the photos that the appellant had submitted.  It was a mistake not to have done so.  From the appellant's home, there are sycamore trees which in summer shield Beach House from some parts of his property.  You descend down through the appellant's garden and kitchen garden into a small valley, (which is not extensive in our view) with a stream leading to a pond.  The use of the valley may be agricultural (although we doubt that it could today be used for agricultural purposes) but there is no question that it is an important amenity to anyone living there. 

26.      From the valley, the existing balcony at Beach House is intrusive enough but moved five metres towards the appellant's property, it would, in his words, be "dreadfully overbearing".  Although it would be some eight or nine metres from the boundary, it would be sited right up to and in part over the top of the bank leading down to the valley.  We found the proposal in this respect not just unreasonable but oppressive, almost aggressive; it would be like having a high watch tower directly over your land.  

27.      We did not think the offer to plant trees and shrubs to screen Beach House from the valley realistic.  Apart from the time it would take for trees to reach the heights required, the extension and balcony are just too close. 

28.      In conclusion and applying the legal test, we concluded that the decision of the Minister taken through delegated authority was not only mistaken but unreasonable and this on account both of the scale of the extension and the unreasonable affect it would have on the level of privacy to land which the appellant might expect to enjoy. 

29.      Accordingly, pursuant to Article 114(8) of the Planning Law, we order the Minister to cancel his decision to grant the planning permission.  

Authorities

Planning and Building (Jersey) Law 2002.

2011 Island Plan.

Steenson-v-Minister for Planning and Environment [2009] JLR 427.

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

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