Jersey Unreported Judgments

Planning - costs judgment.

[2012]JRC214

Royal Court

(Samedi)

19 November 2012

Advocate N. Santos-Costa for the Appellants.

Mr D Mills for the Respondent.

Advocate R. A. Leeuwenburg for the Applicants.

judgment

the deputy bailiff:

1.        I sat as a single judge to determine the application of Advocate Santos-Costa on behalf of the appellants seeking an order for indemnity costs against the Minister following delivery of the judgment on the appellant's planning appeal under the modified procedure.  Advocate Santos-Costa in his summons also sought costs against the applicants on a standard basis, but in the course of argument he withdrew that application.  On his doing so, Advocate Leeuwenburg asked for an order for costs on behalf of the applicants against the appellants for convening them to Court.  He made no application in respect of the applicant's costs of the appeal itself.  At the end of the hearing I ordered the Minister to pay the taxed costs of the appellants, and I made no order against either party in respect of the costs of the applicants.  I indicated that reasons would follow, and this judgment reflects those reasons. 

Modified Procedure

2.        In relation to planning appeals conducted under the modified procedure, Practice Direction RC06/03 provides:-

"In such appeals, although either party is entitled to be legally represented or otherwise represented as provided by Rule 15/3B(1) of the Rules, the Royal Court will only make an award of costs in such an appeal in exceptional circumstances (whether or not a party is legally or otherwise represented)".

3.        There is a strong policy undertone to that Practice Direction.  When the Planning and Building (Jersey) Law 2002 ("the Planning Law") was first passed, there was provision contained within it for a Planning Appeals Commission.  As was fully explored in the Ruette Pinel Farm-v-Minister for Planning [2012] JRC 008 case in connection with whether or not the Court had jurisdiction under the Planning Law to remit a matter to the Minister for further consideration on successful appeal, the amendments made to the legislation in 2005 replaced the proposed Appeals Commission with the Royal Court.  For those who considered that the Court would be an expensive method of appeal which would discourage Island residents from exercising their legal rights to appeal, especially in the case of third party appeals, the Practice Direction, to which reference was made in outline in the report accompanying the draft legislation put before the States, was a substantial comfort.  Its purpose was to ensure that simple planning appeals could be brought forward at very little cost to the appellant, and in the Court's experience that has much more often than not proved to be the case. 

4.        As was indicated in the Court's judgment in this particular case, there were four lever arch files and three long skeleton arguments.  Both the appellants and the applicants were represented.  The Court has a site visit and a whole day was set aside for argument.  The Court proceeded to hear the appeal on the modified procedure basis because it would have been unfair not to do so.  The parties were ready to argue before the Court, and to move to the ordinary procedure would, as Advocate Santos-Costa pointed out, have caused a delay because different representation would have to have been organised for the Minister. 

5.        I can well see that where a party has engaged in the appeals process on the basis of the modified procedure, they are comforted that they will not have an adverse order for costs.  It will be rare, therefore, that the Court moves from a modified procedure appeal to an ordinary procedure appeal in the absence of consent from the parties.  The rules of Court however provide no reason why the Court should not redesignate an appeal under the ordinary procedure, and where that comes about at the request of the lay parties, as opposed to the Minister, it seems to me that that is a request with which the Court might generally wish to acquiesce. 

6.        In this particular case, Advocate Santos-Costa wrote to the Bailiff's Judicial Secretary in April to indicate his request for a number of preliminary directions.  The response sent to him by the Bailiff's Judicial Secretary, with my approval, was that the Court was prepared to make one of the directions namely a site visit, if all parties agreed, and would otherwise sit to hear an application.  The response went on to indicate that some of the other directions could only be made if there was an inter partes hearing, and the letter concluded by saying that in the light of the information provided, it would be inappropriate to treat the appeal under the modified procedure. 

7.        On 23^rd May, the Master reviewed the papers before him and made a provisional decision that the case was suitable for the modified procedure.  He so informed the parties.  It may be that he did not see the correspondence mentioned in paragraph 6.  Both Advocate Santos-Costa and Advocate Kelleher indicated that they did not believe it was suitable for the modified procedure.  They had different grounds for doing so - Advocate Santos-Costa contended that a site visit was necessary, and that it might well be that he would want to cross examine witnesses on their affidavits.  But he also said that he thought that lengthy submissions would be made to the Court.  Advocate Kelleher agreed that there were points of law arising on the appeal, although he did not think it was necessary to have a site visit; and while he denied that any cross examination was necessary or appropriate, he agreed that there would be lengthy submissions.  The submissions of the Minister were that it should be possible to deal with the matter in half a day, and therefore the Court could hear the appeal under the modified procedure.  The Master, having received these various submissions determined that it should be heard under the modified procedure. 

8.        With respect to the Master we think that was the wrong decision, but it was one which was encouraged by the Minister's stance.  We do not think the Minister's stance could be justified, and in this particular case, what actually transpired proved that to be so.  The hearing took place, there was a site visit, and the Court took up most of the day in dealing with the argument. 

9.        Had the appeal been heard under the ordinary procedure, it would have been most likely that costs on a standard basis would have followed the event.  Mr Mills agreed that that was so. 

10.      I think that the case should have been dealt with under the ordinary procedure, and I am therefore going to make an order for costs as though it had been.  There would have been a good deal of hesitation in following that course had the party suffering the adverse costs consequences been other than the Minister; but here, the Minister was really responsible for persuading the Master to follow the wrong course, and it seems to me that it is not right in principle for the Minister to have the benefit of that position now the Minister has been found by the Court on appeal to have acted wrongly in giving consent.  On the facts of this case I am satisfied that it is fair for the appellants to have their costs and that those costs should follow the event. 

11.      Before leaving the matter of the ordinary procedure/modified procedure, I would like to make it plain that at the time the Master made his decision, he did not of course have available to him all the information which, in my view, led clearly to the conclusion that the modified procedure would not be the correct procedure for this appeal.  The parties did have that knowledge, and certainly the Advocates for the appellants and the applicants used the knowledge to indicate to the Master that the ordinary procedure would be better.  Given that the purpose of the modified procedure is to protect appellants and applicants in the circumstances, rather than the Minister, it might have been better for the Master to adopt the submissions which they then made. 

12.      In the hearing before me some time was taken up with whether or not, assuming it remained under the modified procedure, the case involved special circumstances.  The question of special circumstances was analysed at some length by Clyde-Smith, Commissioner, in JK Limited-v-Minister for Planning and Environment [2012] JRC 193.  With one small qualification, I entirely endorse what Commissioner Clyde-Smith said in his decision in that case.  The small qualification is this.  It was contended that the length and complexity of the hearing amounted to exceptional circumstances.  In dealing with that contention, at paragraph 8, Commissioner Clyde-Smith said that he accepted that the hearing took the best part of a day as opposed to the one and a half hours in the practice directions, but that was in part due to the appellant maintaining its contention of impropriety on the part of the Minister and in part the Court not imposing stricter time limits.  Stripped of those contentions of impropriety, the Commissioner found the case was not complex. 

13.      It seems to me therefore that the Commissioner was not saying that long and complex cases could not amount to exceptional circumstances.  In my view, where there is the probability of a long and complex appeal, the ordinary procedure will normally have been adopted, but there may be circumstances where the length or complexity could not be anticipated in advance but emerges during the appeal itself.  I consider this would be sufficient to count as an exceptional circumstance in principle, and therefore amount to a factor which might justify the Court in departing from the usual rules in relation to the non-awarding of costs in modified procedure cases.  I emphasise however that any such departure will be fact specific, and the Court will of course have regard to the primary reason for the practice direction in the first place, namely to ensure that the parties are not inhibited from bringing appeals as a result of their fear of adverse costs orders. 

14.      In this case, it was always going to be a long and complex hearing.  It was unsurprising that both the appellants and the applicants were legally represented; and of course the Minister as usual was also legally represented.  Given that the award was being sought against the Minister in circumstances where the applicants and the appellants had contended that the ordinary procedure should have been adopted, I would have been inclined to award taxed costs against the Minister even on a modified procedure basis.  

15.      The application for indemnity costs was made upon the basis that the planning officers were grossly negligent - that by accident or by design they deliberately created a situation where Policy NE6 was wrongly interpreted, and as a result of thus having encouraged the applicants to spend a considerable amount of money on new plans, the Planning Department was obliged to procure that the Panel supported the applicants once the application had gone in.  From this conduct it was said, all expenses incurred by the appellant should be met by the Minister. 

16.      As is clear from the Court's judgment on the appeal, we considered that the Planning Applications Panel and indeed the planning officers had not properly construed Policy NE6.  We think that was a mistake, but it is a big step from that point to contend that there was gross negligence or deliberately improper behaviour.  I am quite satisfied that that was not the finding of the Court and there is no basis in my judgment for making an award of indemnity costs. 

17.      That leaves over the question of the applicants' costs of the costs hearing.  The hearing was convened in the first place in order that the judgment could be formally handed down and so that applications for costs might be ventilated should that be appropriate.  It mischaracterises the occasion therefore to say that the applicants were dragged along to Court for the costs hearing.  Secondly, I take the view that although Advocate Santos-Costa was right to concede that the applicants might feel hard done by given the wrong advice which they had been given by the Planning Department, and that therefore he would not seek to make a costs application against them, it was nonetheless the position that the applicants had by their submissions - which were not the same as those of the Minister - lengthened and in some respects made more complex the proceedings on the appeal.  No adverse costs order was being made against the applicants, but in the circumstances I thought overall fairness was such that they should not have the benefit of any costs order against the appellants in relation to the hearing when the formal judgment on the appeal was handed down.  

Authorities

Planning and Building (Jersey) Law 2002.

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

JK Limited-v-Minister for Planning and Environment [2012] JRC 193.