Jersey Unreported Judgments

Planning - Third party appeal against the decision of the Minister.

[2012]JRC213

Royal Court

(Samedi)

16 November 2012

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Morgan and Olsen.

 

Advocate D. G. Le Sueur

Mr Duncan Mills for the Respondent.

judgment

the commissioner

1.        This is a third party appeal under the modified procedure brought by the appellant under Article 114 of the Planning and Building (Jersey) Law 2002 against the decision of the respondent ("the Minister") to grant planning permission in respect of the property known as Tamaris, La Grande Route de la Côte, St Clement ("Tamaris"). 

2.        Tamaris forms one of a line of properties along what is known as St Clement's coast road with views across the road and a narrow public car park to the beach beyond.  It comprises a two-storey house built in the 1920s with an attached one bedroom flat.  The properties on either side have been developed recently into three storey apartment blocks.  Behind lie a number of residential properties including a recent development known as Seapoint, some of the units of which have an oblique view of the sea through the gap between Tamaris and its neighbouring property to the west.  

3.        There have been a number of unsuccessful applications by the owner to demolish Tamaris and construct apartments in its place.  The application, which is the subject of this appeal, was submitted on 3^rd December, 2009.  The Planning Department recommended refusal for the following reason:-

"The proposed development by virtue of its design (form, height, massing and design detailing) fails to contribute positively to the adjoining residential properties or the area within which it is located.  Accordingly, the proposal is contrary to Policies G2, G3, BE11 and H8 of the Adopted Island Plan 2002."

4.        The Planning Applications Panel, having visited the site, agreed that whilst it was content with the increased footprint of the proposed new building, the height and design were causes for concern.  It accordingly deferred determination of the application and requested the planning officers to work with the owner to redesign the proposed building, possibly incorporating a pitched roof. 

5.        Between May 2010 and October 2011, planning officers had a number of meetings with the owner's appointed agent in order to try and resolve the issues of height and design.  These culminated in the submission of revised plans, which incorporated a pitched roof, on 14^th October, 2011, which were re-advertised in the Jersey Evening Post and by way of a site notice.  In its report of 11^th January, 2012, the Planning Department now recommended approval on the following terms:-

"Summary: The existing property requires a great deal of refurbishment to bring it back to a good standard of accommodation. 

However, even with refurbishment, the property would still be poor in terms of style, form and character and as a consequence, the applicant has taken the view that the demolition and replacement of the property would be the most effective in terms of cost and the general enhancement of the area.  

The application was deferred at a meeting of the Planning Applications Panel in May 2010 to enable officers to work with the applicant to re-design the proposed building to possibly include a pitched roof.  The applicant's agent has reconsidered the submitted design of the development elevations following comments made at the Panel meeting and the latest proposal reflects the work undertaken in conjunction with officers. 

The proposed development is contemporary in design whilst containing some of the existing design characteristics of the area and will enhance the character and appearance of the area whilst at the same time satisfying the Minister's requirement to provide developments of high quality design when the opportunity arises to do so. 

Finally, the proposed development is not considered to lead to an unreasonable impact on the residential amenities of the surrounding residential properties and would meet the standard requirements for amenity space and car parking provision."

6.        There were a number of complaints, both when the original plans were advertised and when the revised plans were advertised, concerned in the main with what was felt to be an over-development of the site, its effect on the character and appearance of the area, the loss of privacy from windows and balconies and the loss of views from those properties behind.  A particular concern was the potential effect of the development on a surface water culvert along the north-west boundary of Tamaris, which drains all the developments and water courses in the area; it being significant that the land slopes down to the rear of Tamaris by some 3 metres. 

7.        At a Planning Application Panel meeting on 25^th January, 2012, having heard from the appellant amongst others, the application was approved.  The permit cites the following reasons for the giving of approval:-

"The proposed development is considered to be acceptable having considered all of the material considerations raised.  In particular, the development has been assessed against Policies GD1, Gd7 and BE6 and H6 of the 2011 Island Plan in which the principles of residential development are acceptable in the Built-Up area subject to criteria such as the suitability of the site to accommodate development without adversely impacting on amenities of both local residents and the area in general and with suitable access, parking and drainage arrangements available.  In this case, the erection of residential development is regarded as acceptable because the design, siting and appearance of the dwellings are acceptable: they can be accommodated on the site without adversely impacting on the amenities of adjoining neighbours; the development makes best use of previously developed land in accordance with the principles of sustainability and the development can provide suitable drainage and parking arrangements without compromising the proper function of the existing surface water culvert located to the north-eastern boundary of the site. 

In addition, the representations raised to the scheme on the grounds of height, scale and relationship to adjoining properties have been assessed.  However, it is considered that the proposal accords with the terms of policy GD1 Island Plan, in that it does not have an unreasonable impact on the outlook or amenities of the immediately adjoining residential properties."

Grounds of appeal

8.        The appellant owns 14 La Cache de la Ronde in the Seapoint development, which is situated to the north of Tamaris.  From his property, and in particular his balcony, the appellant has a view to the left through the gap between Tamaris and the neighbouring property to the sea.  The proposed new building will, like its neighbours, extend in part to three storeys, comprising two two-bedroom flats and two one-bedroom flats.  It will extend beyond the footprint of the current building and it will therefore reduce the view currently enjoyed by the appellant, both through narrowing the gap through which the view is enjoyed and by its height.  

9.        Mr Le Sueur, for the appellant, advanced three grounds for the appeal, namely:-

(i)        The harm to amenity and view;

(ii)       The effect on the surface water culvert; and

(iii)      The failure to demonstrate that the existing building was beyond repair. 

Which we take in turn. 

Harm to amenity and view

10.      Mr Le Sueur submitted that the Minister had failed to give sufficient consideration of the harm to the amenities of the neighbours, and in particular the appellant, caused by the proposed development and had failed to give sufficient weight to the harm caused to the appellant's view due to the height and mass of the new building.  The appellant produced photographs on which he had indicated how the new building would impact upon his view, which Mr Le Sueur described as a very valuable and precious amenity.  Mr Le Sueur referred the Court to paragraph 50 of the judgment in the case of Steenson-v-Minister for Planning and Environment [2009] JLR 427 in which he said the Court had recognised that a loss of view and privacy were relevant planning considerations.  He also referred the Court to paragraph 29(i) of the judgment in the case of Almondale-v-Planning and Environment Minister [2006] JRC 135 where Birt, Deputy Bailiff, said:-

"In Guillou-v-Island Development Committee (1969) JJ 1225 the Court made reference to the definition in the Shorter Oxford Dictionary of 'amenity' as being "the quality of being pleasant or agreeable" and further noted that 'pleasant' is defined as "agreeable to the mind, feelings, or senses."  The Court went on to say that amenity should be interpreted in a wide sense so as to include more than just visual matters.  In the Island Plan itself amenity is described as "pleasantness of situation, attractive features of the locality".  In our judgment, sea views and an open break in ribbon development are undoubtedly matters which may contribute to the amenity of an area and accordingly the Committee was entitled to have regard to such matters when considering the effect of the proposed development upon the amenity of the area."

11.      Whilst the Court in Steenson acknowledged that as a matter of law the owner of land has no legal right to a view, Mr Le Sueur argued that the proximity of a construction and the interference to the amenities (light, privacy and view) are matters to which the Minister is obliged pursuant to the policy of GD1 to have regard to.  The balcony and french windows of the proposed top flat overlook the balconies and bedrooms of 14 La Cache de la Ronde.  The appellant's view of the sea and sky from his property is seriously impinged, he said, as a result of the design, mass and siting of the new property.  The pitched roof of the proposed development was higher than the adjoining three storey flat roof apartments to the east and Mr Le Sueur contended that the mass and scale of the proposed development was out of all proportion to the existing building.  

12.      As noted by the Planning Officer in his second report "the area comprises a mix of Victorian "seaside" architecture and inter-war bungalows and has seen some of the most unsightly post war development, including high-rise blocks and development spreading along almost the entire coastal edge."  In this case, Mr Le Sueur said the decision is yet another brick in the wall in terms of redefining the character of the area away from the mix of seaside architecture and inter-war bungalows.  The existence of Tamaris in its current build, style and proportions serves to maintain the agreed and recognised character of the area.  To demolish and replace it with a three storey apartment building only serves to continue the unabated ribbon development of large apartment blocks along the coast and represents the loss of another larger family home.  

13.      In the design statement, the applicant's architect states that "The building has been orientated to face south for the purpose of light but to also make the best of the views overlooking the south coast."  Mr Le Sueur found it difficult to reconcile the ability of the applicant to site and design the proposed construction having regard to his light and his view whilst effectively riding roughshod over the privacy and views of pre-existing properties. 

14.      Furthermore he said that the panel failed to take into account the effect on this area of the coast road.  Permission for this development will result in four consecutive "apartment blocks" in what was and remains a residential area with important spaces between the apartments to afford property occupiers in properties sitting back from the road pleasant amenities.  The space afforded by the existing building provides an important break for those property owners behind the coast road who might otherwise be faced with a row of four apartment blocks.  Not only is the proposed development higher than its neighbour, but the properties to the north are all constructed on sites below the height of the coast road thereby exacerbating the height. 

Surface Water Culvert

15.      Article 17 of the Drainage (Jersey) Law 2005 provides that no work can be carried out within five metres of a storm drain without the consent of the Minister for Transport and Technical Services:-

"17     Disturbance of public sewers

(1)       No person shall construct, demolish or remove -

(a)   A building or other structure on or over a public sewer or public outfall, or within 5 metres of a public sewer or public outfall; or

(b)   Any apparatus on or over a public sewer or public outfall, or within one metre of a public sewer or public outfall

unless he or she has the written consent of the Minister to do so."

The revised plans show that the new building will come within this five metre zone.  The Planning Department consulted Transport and Technical Services ("TTS") over the original plans and received this response, by letter dated 11^th January, 2010:-

"The existing property has a foul connection to the public foul sewer in the gardens of the private dwellings to the north-east to which any re-development of the site should utilise.  More importantly, there is a critical surface water culvert along the north-west boundary of the property within the Seapoint site that drains all development and water courses in the area including Le Squez and Le Marais estates and the estates on the Hodges nursery site to the east.  The development of this site falls within a 5m requirement of Article 17 of the Drainage (Jersey) Law 2005 and before demolition/construction work takes place, the Department must receive from the developer a method statement to protect the culvert."

16.      The Planning Department did not consult further with the TTS over the revised plans and when approval was granted for the development the following condition was imposed:-

"Before any development first commences on site (to include any demolition works), a method statement to include details of the proposed retention and continued maintenance arrangements (for both the demolition of the existing building and the construction of the new development) in respect of the existing surface water culvert located to the north-western boundary of the site, shall be submitted to and approved in writing by the Minister for Planning and Environment in conjunction with the Minister for Transport and Technical Services.  The approved scheme shall be implemented in full and thereafter retained and maintained as such."

17.      Mr Le Sueur submitted that it was wrong for the Minister to approve the development without a detailed and informed assessment of the plans by TTS.  There is a risk that the subsequent assessment of the works might result in TTS vetoing the entire plans or requiring changes or revisions to the proposed development, which might have an adverse effect upon the appellant's amenities.  The storm drain is an old one and the appellant understands a somewhat fragile structure.  Given this fact, Mr Le Sueur submitted that there should have been a full and proper assessment of the proposals by TTS and that assessment should have been before the decision was made by the Planning Applications Panel.  That would have afforded the appellant the opportunity to consider any assessment or recommendations by TTS and make submissions to the Panel.  The issue of the storm drain was, he said, a critical issue in terms of the feasibility of a development of this scale and mass. 

18.      By reason of the Panel simply imposing a condition on the permission, he argued that parties with an interest to be sure that the storm drain does not fail, will be deprived of the ability to make representations.  It may be the case that due to the fragility of the storm drain structure, no method statement or works practice would allow for the development to take place in which case arguably the last seven years or so in terms of time and energy dealing with this application would have been wasted.  The time for consultation, he said, should have been before the application was considered for approval. 

Failure to demonstrate that existing building was beyond repair

19.      Policy GD2 provides:-

"Demolition and replacement of buildings

The demolition of a building or part of a building will not be permitted unless the proposed development:

1.     Involves the demolition of a building or part of a building that is not appropriate in sustainability terms to repair or refurbish;

......

The replacement of a building or part of a building will not be permitted unless the proposed development:

5.        enhances the appearance of the site and its surroundings;

6.        replaces a building that is not appropriate to repair or refurbish."

The Planning Department had relied upon a condition report dated August 2008 prepared by the architects for the scheme, which had not been made available to members of the public.  It had been produced for the purposes of the appeal and Mr Le Sueur submitted that the Planning Department were not sufficiently robust in terms of scrutinising the report and verifying its contents. 

20.      The report had reached the following conclusions:-

"Conclusions

Given the issues raised above we believe that the existing building falls far short of current standards and would be impractical to re-furbish and virtually impossible to extend in a coherent manner.  The previous extensions have ruined the integrity of the building and there is no merit architecturally in this building. 

The accommodation provided within the building at present is of a poor standard with the rooms being cold and damp. 

We therefore have no hesitation in recommending that this building be demolished to allow for a modern replacement."

21.      Given the interest of both the owner and the architect in the application being successful, any report, said Mr Le Sueur, was bound to present the most pessimistic prognosis for the property and should therefore have been received with considerable caution. 

22.      The Planning Department's report describes the character of the area as containing a mix of Victorian and seaside architecture and inter-war bungalows.  Replacement of Tamaris, one of the inter-war bungalows (albeit two stories), is contrary to Policy GD2, Mr Le Sueur argued, unless the proposed replacement enhances the appearance of the site and its surroundings and replaces a building that is not appropriate to repair or refurbish.  He submitted that the replacement of a two storey building on a small footprint with a three storey building apartment development which obscures a substantial part of the space between the neighbouring blocks of apartments does not enhance the appearance of the site or the surroundings.  It constitutes, he said, yet another concrete mass along this section of the coast road. 

Decision

23.      We have considered the submissions carefully, but conclude, substantially for the reasons put forward by Mr Mills, that they do not meet the test as laid down in Token Limited-v-Island Planning and Development Committee [2001] JLR 698 at pages 703 - 704:-

"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."

24.      Taking first the harm to the amenity and view, we accept that the appellant will suffer some loss of view from his property.  As Mr Mills points out, his property is orientated so that it faces across towards the properties immediately opposite and the view of the sea is to the left; what Mr Mills described as an oblique view. 

25.      The loss of a view is not a material planning factor per se as made clear in Dunn-v-Minister of Planning and Dandara [2009] JLR 237, where Sir Philip Bailhache, Commissioner, said this at paragraph 10:-

"10.    Two points raised by the appellant, but realistically not pursued with any energy by his counsel, can be shortly dealt with.  The appellant complained that he would lose the fine view of St Aubin's Bay and Elizabeth Castle if the development proposed by Dandara went ahead.  The Minister conceded that this was so.  The law, however, confers no legal right, in the absence of a servitude, to a view.  If a property owner could prevent development from taking place because some desirable view from his property would be adversely affected, hardly anything would ever be built.  As Lord Goff of Chievley stated in Hunter-v-Canary Wharf [1997] AC 655:-

'As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls.  Moreover, as a general rule, a man's right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour's enjoyment of his land.  The building may spoil his neighbour's view (See Attorney General-v-Doughty [1752] 1 Dick. 163; in the absence of an easement, it may restrict the flow of air on to his neighbour's land (Bland-v-Mosely) (1587) 9 Co. Rep. 58A, cited in Alfred's case (1610) 9 Co.Rep.57b, and Chastey-v-Ackland [1895] 1 Ch. 389; and, again in the absence of an easement, it may take away light from his neighbour's windows (Dalton-v-Angus (1881) 6 AppCas 740, per Lord Selborne L.C., at pp. 794-795, per Lord Blackburn, at p. 823): nevertheless his neighbour generally cannot complain of the presence of the building, though this may seriously detract from the enjoyment of his land.'

The loss of a view may be an element of the loss of amenity to be taken into account in that sense, but it is not per se a material planning factor.  Put simply, you can buy a room with a view, but you cannot buy a view." 

26.      In Steenson, a case which involved a development within the Green Zone in a sensitive area of St Ouen's Bay, the Court acknowledged that the appellant had no right to a view:-

"54.    While the appellant has no right to a view, he does have a right to expect planning policies in the Green Zone to be applied, sensibly and sensitively.  In this case the applicant's property is in the sensitive area of St Ouen's Bay, albeit at its southern extremity, and on a reading of the Island Plan and policies contained in it, the appellant would be entitled to think that significant development of an adjoining property was unlikely."

On the facts of that case, the Court found that the Minister's view that development would not result in a significant loss of privacy to the appellant was so wrong as to be even Wednesbury unreasonable. 

27.      The Almondale decision is of limited assistance to the appellant as Mr Mills points out.  In that case the Court was concerned with whether the committee was entitled to have regard to sea views and an open break in a ribbon development when considering the effect of the proposed development upon the amenity of the area in general:-

"29(ii) The Committee has made clear that the two considerations which have weighed with it most heavily are the preservation of a valuable open break in the ribbon development along the road and the preservation of the distant view to La Cotte and the sea.  We are quite satisfied that the Committee was entitled to conclude that these two aspects contribute materially to the amenity of the area.  The fact that there are other open breaks further along the road and that these aspects are only experienced by those walking or driving along the road does not render this conclusion unreasonable.  On the contrary, it can properly be said that these two aspects are 'an attractive feature of the locality.'"

28.      In this case we are concerned with a development within the built up area where, unlike the Green Zone, there is a presumption in favour of housing development (see Policy H6 of the 2011 Island Plan).  Furthermore, under the Spatial Strategy (Policy SP1) it is to development within the built up area that the Island must look to meet its housing needs. 

29.      As a matter of general consideration Policy GD1 provides under paragraph 3 that the proposed development should not "seriously harm the amenities of neighbouring uses" (our emphasis) and should in particular "not unreasonably affect the level of privacy to buildings and land that owners and occupiers might expect to enjoy".  (our emphasis).

30.      It seems to us inevitable that any development within the built-up area will harm the amenities of the neighbours to some extent, but in our view the harm to the amenities of the neighbouring properties to the north of Tamaris, of which the appellant's property forms part, cannot be regarded as serious.  Owners and occupiers of properties within the built-up zone cannot reasonably have the same expectations as to privacy as say those living in the Green Zone.  If those expectations are set too high, then the Spatial Strategy as set out in the 2011 Island Plan in terms of the Island's housing needs will be seriously impaired.  In our view the effect on the level of privacy of the neighbouring properties to the north, including that of the appellant, is not unreasonable. 

31.      Whilst the ridge level of the roof of the proposed new building is higher than its neighbours, we agree with the planning officer's report that it is in the main consistent with its neighbours and will not appear out of character with the street scene. 

32.      Turning to the issue of the storm water culvert, we think that the appellant's submissions are misconceived.  Mr Christopher Jones, senior planning officer at the Planning Department, in his affidavit of 3^rd May, 2012, explained that as the footprint of the development had not altered between the original submission and the revised submission there was no need to consult again with TTS.  Changes to the planning application were in design and external appearance, primarily by the introduction of a gable roof instead of a flat roof as part of the design.  The decision to grant planning permission does not affect in any way the legal requirement on the part of the developer to have the prior permission of the Minister for TTS under Article 17 of the Drainage (Jersey) Law 2005, which forms part of a separate regime for which the Minister of TTS is the competent authority. 

33.      The main fear of the appellant appears to be that the TTS will require alterations over which the neighbours will have no say, but it is clear that any changes to the plans would need to be addressed through the submission by the developer of a "Revised Planning Application", which would be advertised in the ordinary way.  The process is explained in Supplementary Planning Guidance Practice Note 2. 

34.      We regard as unreasonable the suggestion that at this stage of the planning process this aspect of the proposal should have been the subject of a detailed assessment by TTS.  It is also unnecessary, in our view, in that one is entitled to presume firstly that TTS will appreciate the importance of the storm water culvert (its letter of the 11^th January, 2010, expressly acknowledges its importance) and secondly, that TTS will discharge its statutory duty properly when dealing with the application under Article 17 for consent to carry out works within 5 metres of the storm water culvert. 

35.      Turning finally to the issue of the demolition of the building, Mr Mills accepted that the condition report should have been available to the public at the time the application was being considered, but it was referred to in the Planning Department's report of 11^th January, 2012:-

"The existing dwelling has little architectural merit and is poorly insulated.  A condition report has been submitted to demonstrate the constructional defects of the property.  There are no objections to its removal....

The dormer bungalow is of poor quality construction and is not of any architectural or historical merit.  The proposals to demolish it and replace with a contemporary apartment building within the built-up area are considered to be acceptable in policy terms."

36.      The appellant relies on Policy GD2, which provides that demolition will not be permitted unless the proposed development involves the demolition of a building that is not appropriate in sustainability terms to repair or refurbish, but as Mr Mills points out, it is important not to treat these general development indicators in isolation, as made clear in paragraph 1.5 of the preamble to the Plan:-

"The considerations identified in the policy are applicable to most types of planning applications, to a greater or lesser degree.  They should not, however, be treated in isolation but considered within the context of the strategic policies at the front of the Plan, together with the more specific policies, where relevant, in this or other topic specific chapters as well as any relevant supplementary planning guidance".  

The strategic policies of the Plan seek to meet the housing requirements of the Island within the designated Built-Up areas (see paragraph 6.127) and it is inevitable that that will result in the more efficient use of large plots with a house or houses standing on them.  In the Built Environment section of the Plan it states at paragraph 4.10:-

"It needs to be clearly recognised, however, that unless land in the Built-Up Area is developed at higher and more land-efficient densities than have previously been achieved, in accordance with the strategic policies of the Plan (SP2 Policy SP2 'Efficient use of resources'), it will not be possible to meet all the Island's identified needs, particularly for housing, without reviewing the need to release greenfield sites for development during the Plan period."

37.      Paragraph 1.9 of the Plan, the section dealing with general development control policies, provides that:-

"Where there are existing buildings on a site proposed for development, developers should carefully examine their potential for re-use or adaption and should seek to incorporate them into the new development where practical and possible.  Proposals for demolition and for demolition and replacement will need to be properly considered and justified."

38.      It seems to us that in this development of four modern units it would not be practical to incorporate the existing 1920's building. 

39.      In our view, the Planning Department and the Planning Applications Panel have given proper consideration to the demolition of the existing building and reached the reasonable conclusion that it was not appropriate in sustainability terms to repair or refurbish it. 

40.      As to the point that the report was prepared by the architects to the scheme, we accept the possibility of a conflict arising to which the Planning Department needs to be alive and there may be cases where an independent report should be requested.  We have been able to read the report, and taking into account the other evidence before us we see no grounds for this Court to intervene in that part of the process. 

41.      In conclusion, having applied the Token test, we do not regard the decision of the Minister to grant planning permission to be unreasonable having regard to all the circumstances of the case, and we therefore reject the appeal.  

Authorities

Planning and Building (Jersey) Law 2002.

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

Almondale-v-Planning and Environment Minister [2006] JRC 135.

Drainage (Jersey) Law 2005.

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

Dunn-v-Minister of Planning and Dandara [2009] JRC 237.

2011 Island Plan.