Jersey Unreported Judgments

Planning - third party appeal against the decision of the minister dated 4th November, 2011.

[2012]JRC237A

Royal Court

(Samedi)

20 December 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats le Breton and Crill.

 

Mr K. O. Dixon appeared on his own behalf.

HM Solicitor General H. Sharp for the Respondent.

Mr A. G. Celik appeared in person.

judgment

the deputy bailiff:

1.        The appellants are the owners of the property Westward House, Les Hativieaux, St Ouen.  The property to the south and east of their property is called Le Vouest, and is owned by the applicant.  To the south and east of the applicant's property lies the property Les Vaux, belonging to Mr and Mrs R J Michel.  This is a third party appeal by the appellants against a planning permission given to the applicant by the respondent on 4^th November, 2011, which, if not set aside, permits as follows:-

"Demolish existing garage.  Remove main house roof and replace with green roof and terrace.  Construct extension to north east elevation to provide new garage, storage and bedrooms.  Various external alterations.  Amended plans.  Additional information submitted." 

2.        In accordance with the usual procedure, the Master indicated on the papers which he had seen that he proposed making an order that the appeal should be determined under the modified procedure, unless he received any representations to the contrary which he should take into account.  None were received, and accordingly the matter was listed under the modified procedure, albeit that it was indicated to the Bailiff's Judicial Secretary that the matter might take more than the 90 minutes which the modified procedure envisages for the hearing of the appeal and a half day was set aside.  Within this amount of time, the Court was invited to make a site visit, which we did.  In fact the appellants have lodged with the Court three red lever arch files containing case law and texts, statutes, bye-laws and planning guidance and the 2002 Island Plan and 2011 Island Plan; two blue lever arch files containing the appellants' submissions, a chronology plan index, correspondence and affidavit evidence; four green lever arch files containing exhibits to the affidavits; and an A3 file containing copy plans.  The appellants' written statement of submissions runs to 178 pages.  In addition, the appellants have filed a skeleton argument running to 25 pages.  We think the appellants must have realised that they wished to adduce before the Court material of this length, and in part of this complexity.  Although the first named appellant appeared at the hearing in person, he is an advocate of this Court, and most of the correspondence and skeleton arguments as settled in the papers were signed and settled respectively by one of the partners in the firm in which he works.  When the Master sent out the letter with a provisional decision that the matter should be dealt with under the modified procedure, as is his standard practice, it behoves lawyers to respond if they think there is any reason why that would not be the right decision.  The filing of papers of this quantity of itself shows that this could not possibly be dealt with under the modified procedure.  In part as a consequence of the approach taken, the Minister's defence has had to be supported by three affidavits sworn on his behalf, and a further lever arch file of documentation.  The Court regrets the delay in giving judgment.  Part of that has been caused by having to review this very substantial quantity of documentation in respect of much of which the oral submissions were naturally of limited help. 

The Application

3.        The first application was submitted by the applicant and his wife in December 2009.  The proposal involved remodelling the existing house, including the replacement of the existing mono-pitched roof with a lower flat green roof, part of which would be used as a roof terrace, some changes in external appearance, and the construction of a proposed rear two-storey extension in the form of two linked wings effectively forming a u-shape with the existing house.  Those plans indicated the enlargement of the property from an existing three bedroomed house measuring approximately 2,842 sq ft to a 5/6 bedroomed house measuring approximately 5,225 sq ft.  The application was advertised in the usual way and objection letters were submitted by four local residents, including the appellants, and also by the Parish of St Ouen.  Following a planning assessment, the Planning Applications Panel visited the site in March 2010, and having heard some representations, deferred the matter to give the Planning Department more time to consider an alternative design detail which had been suggested by the applicant's planning consultant at the meeting, and also to enable clarification to be obtained on any representations from the National Trust for Jersey.  The matter was further considered at the Panel meeting in April 2010 when the Panel decided to refuse the application on the grounds of excessive mass and size of the structure, and, because this was contrary to the Department's recommendation, the application was referred to the Minister for his consideration in accordance with the Minister's "cooling off" procedure.  The Minister reviewed the matter, but as he had no comment to make, it was referred back to the Panel which, at its meeting in May 2010 formally refused permission. 

4.        The grounds for the refusal were that although the principle of extending and altering the house in the style proposed was accepted, the Panel considered that the apparent scale of the rear wing would result in an increase in the scale and impact of the development which would be detrimental to the character of the area, and therefore outside the requirements of Policies C5, G2 and G3 of the Island Plan 2002.  The Panel also took into account Policy SO10 of the St Ouen's Bay Planning Framework and Policy SO15.  The Panel considered that the proposal would detract from the character of the area and the setting of the building and that the proposal failed to satisfy Policy SO15.  

5.        Two months later in July 2010, the applicant submitted a revised planning application.  It was this application which gives rise to the present appeal.  The application was re-advertised and comments were received, in accordance with the normal consultation process from Transport and Technical Services, the Natural Environment section of the Environment Department, the Environment Protection section of the Environment Department and the Parish of St Ouen.  Representations were also made by the National Trust for Jersey and by nine local residents all of whom objected.  Two of these objection letters came from the appellants and from the owners of the neighbouring property Les Vaux.  The case officer prepared a report for consideration by the Planning Applications Panel which visited the site in November 2010 and after a Panel meeting, at which the applicants were heard, the Panel decided to grant permission.  The Panel stressed that members of the Panel had viewed the site from a number of different positions and angles at St Ouen's Bay. 

6.        The appellants appealed and that appeal was due to be heard in April 2011.  However, it then came to light that the Planning Applications Panel was not properly constituted at the November 2010 public hearing because three Panel members had not been formally re-appointed by the States when their term of office expired.  The Minister having accepted that the Panel's decision was unlawful, the application had to be considered afresh.  The Panel considered the application on 26^th May, 2011, having visited the site the day before.  The appellants complained that they had not previously seen one of the plans included in the PowerPoint slides submitted by the applicant's architect and asked that the matter be deferred.  The Panel noted that a hard copy of the drawing was not on the application file and agreed to defer consideration until a subsequent meeting to ensure that due process could be followed.  

7.        Following the May Panel hearing, the departmental case officer requested the architect to submit a hard copy of the drawing in question, and also requested a site plan showing the position of the tight tank.  These drawings were received on 7^th June, 2011, and advertised in the normal manner, as a result of which further representations were made by the appellants and also by the owners of Les Vaux. 

8.        On 29^th June, 2011, the States approved the new Island Plan 2011 which thereupon replaced the 2002 Island Plan.  The following day the case officer requested further information in relation to foul sewage, that being necessary as a result of the new plan Policy LWM2.  There was a public ministerial meeting held on 12^th September, 2011, and representations were made by the appellants, the applicant's architect and the applicant's advocate.  The Minister deferred consideration for a further site visit, which he undertook on 26^th September, 2011.  As part of his assessment, he viewed the plans, photomontages and two scaffolding poles on site showing the height and extent of the proposed rear extension.  We are told the Minister assessed the proposal from the site itself, from the appellants' property both inside and out, and from various view points within the immediate and wider surrounding area of the bay. 

9.        Following the site visit the Minister decided he was minded to approve the application subject to the recommended conditions and three minor amendments.  The planning case officer requested the architect to submit revised drawings to include those amendments, and confirmed that because they were of a minor nature, they were not required to be re-advertised.  The three amendments in fact all supported the position of the appellants - the Minister wanted to take the opportunity to reposition the tight tank further away from the appellants' borehole, subject to further discussion with Transport and Technical Services; to require the angled bedroomed window on the extension to be changed to a rectangular oriel window, with the north side to be solid; and the external stairs to the existing house balcony to be removed and a privacy screen installed at the north end of this terrace.  Revised plans were submitted accordingly, and the Minister duly issued the planning permit on 4^th November, 2011. 

Reasons for Approval

10.      The planning permit gives full reasons.  The permit records that the Minister has taken account of all of the relevant planning policies, all consultations and representations received, information submitted, and the merits of the scheme and had visited the site and viewed it from the adjacent property to the north and from other view-points.  The permit notes that the site lay within the Green Zone in the 2002 Island Plan and that Policy C5 of that plan set a general presumption against development.  It also noted that the site lay within the area covered by the St Ouen's Bay Planning Framework, which sought to control development in the interests of maintaining the special character of the area.  It was noted that Policy C5 of the Island Plan 2002 and Policies SO10 and SO15 of the St Ouen's Bay Planning Framework did not prohibit extension to dwellings, and that proposals might be agreed where they did not detract from or unreasonably harm the sensitive character and scenic quality of the area, and provided the impact on neighbouring properties was not unacceptable and that no highways problem or separate unit was created.  

11.      The permit goes on to indicate that Policies G2, G3 and NR2 of the 2002 Plan had also been considered in respect of the impact of the development on adjoining properties, the area and foul drainage. 

12.      The permit then refers to the 2011 Island Plan which had by then been adopted.  It was noted that there was the strongest presumption against development.  It was also noted that house extensions were specifically noted as a type of development which might be acceptable as an exception to the general presumption against development provided they do not cause serious harm to the landscape character of the area and where the design is appropriate relative to existing buildings and their context.  The reasons then followed:-

"It is considered that the extension of the dwelling as proposed will not have any detrimental impact upon the character and appearance of the immediate area or the Coastal National Park as a whole taking into account its particular site context and setting against the hillside, the setback and the modest increase in height above the existing ridge.  The use of materials proposed for the extension and for the remodelling of the front part of the house are considered to improve the appearance of the existing building, helping it to blend into its setting and the scheme is supported by the Department Architect. 

The scale of the rear wing of the previous refused scheme has been significantly and satisfactorily reduced. 

A privacy screen has been included to the top floor balcony and the existing balcony, the window of the rear bedroom has been angled to avoid overlooking, and a condition is imposed requiring the first floor north facing windows in the extension to be obscurely glazed.  It is not considered that the scheme will result in harm to the adjacent properties. 

The small incursion into the slope at the rear of the property is not considered detrimental to the character of the area, and with the applicant's agreement a Condition is imposed to agree the extent of the residential curtilage which the Minister expects will not extend further east than that of the adjoining properties.  This will reduce the size of the approved residential curtilage and prevent further domestication of this area. 

Notwithstanding the objections raised, the application is not for the creation of a separate unit or an annex. 

As the application is otherwise considered acceptable, but will increase the number of bedrooms and hence the potential occupancy of the building, a tight tank is proposed in the absence of mains drains.  This has been repositioned away from the neighbour's boreholes and is considered a reasonable and realistic solution, which meets the requirements of the Buildings Bye-laws. 

It is therefore considered that the development satisfies the requirements of the Island Plan 2011 Policies GD1, GD7, NE6 and LWM2."

13.      A number of conditions were then added. 

The Law

14.      The test that is to be applied on this appeal is well settled.  The Court is required to apply the test as set out in Island Development Committee-v-Fairview Farm Limited [1996] JLR 306 as elaborated by the passages in the Royal Court's decision in Token Limited-v-Planning and Environment Committee [2001] JLR 698 as approved by the Court of Appeal in Planning and Environment Committee-v-Le Maistre [2002] JRL 389 and by the majority of the Court of Appeal in Trump Holdings Limited-v-Planning and Environmental Committee [2004] JLR 232. 

15.      As noted in the Fairview Farm case, the Royal Court cannot escape the responsibility of forming its own view.  This is because the Court is reviewing whether the decision of the Minister was unreasonable and in order to conduct that review, it must naturally look at what the Minister should and should not have taken into account in terms of relevant policies and objections.  When conducting that exercise, the Court is likely to form a view in any event on the merits of the application, but it needs to do that so as to be able to weigh up the relative significance of the various factors and thus form a view as to whether the decision of the Minister was or was not reasonable.  The appeal is not a full merits appeal because the Court must allow, as Bailhache, Bailiff, put it in Token, a margin of appreciation to the Committee, now the Minister.  Nonetheless, given the absence of any other form of appeal against the Minister's decision, the Court should not be too unwilling to intervene where that is appropriate.  This is not an appeal based on Wednesbury unreasonableness, where the applicant has to show the administrative decision was so unreasonable, no reasonable person could have taken it, such as where the stairs constructed by the decision taker do not reach the attic bedrooms. 

16.      In the second stage of the appeal, considering the decision of the Minister, the Court has regard to whether the process was lawful and fair (see for example Caesar Investments Limited-v-Planning and Environment Committee [2003] JLR 566 and Ruette Pinel Farm Limited-v-Minister for Planning and Environment [2012] JRC 008) and then the reasonableness of the Minister's decision.  Comparing that decision with the Court's evaluation will:- (a) sometimes lead to a conclusion that the Minister has acted unreasonably; (b) sometimes show the Minister has reached a different view from the Court but a view which is nonetheless reasonable; (c) sometimes show the Court's view and the Minister's view are the same. 

17.      In the first case the appeal will succeed.  In the second and third cases, the appeal fails.  We add that if the Minister has failed to take a relevant policy into account at all, it would seem very unlikely that his decision can stand. 

18.      We have applied these principles to the present appeal. 

Which Plan?

19.      Article 19 of the Planning and Building (Jersey) Law 2002 ("the Law") in its material parts provides as follows:-

"(1)     The Minister in determining an application for planning permission shall take into account all material considerations. 

(2)       In general the Minister shall grant planning permission if the proposed development is in accordance with the Island Plan. 

(3)       The Minister may grant them a planning permission that is inconsistent with the Island Plan but shall not do so unless the Minister is satisfied that there is sufficient justification for doing so..."

20.      The reference in Article 19(2) to the Island Plan must mean the current Island Plan as approved by the States under Article 3 of the Law. 

21.      Planning policy changes from time to time and these changes will be reflected in changes to the Island Plan as approved by the States.  An amended Island Plan does not arrive overnight.  There is a process of publication of the draft, consultation, and then the lodging of the Island Plan and the subsequent debate of it by the States.  There will always be applicants at different stages of the planning process while changes to the Island Plan are considered, consulted upon and ultimately agreed.  Those whose applications have not been determined at the time the new plan comes into force might well prefer the application to have been considered under the previous plan, which if history is anything to go by is generally likely to be less restrictive than the new plan.  While that might be their preference, they have no right to it under the present legislation.  The general rule is that the Minister must give consideration to an application in accordance with the Island Plan which is in force at the time the application is considered. 

22.      The facts in this case are similar to those which applied in the case of Webb-v-Minister for Planning and Environment [2012] JRC 107.  Then, as now, the Planning Applications Panel was not properly constituted at the relevant time and the delay was such that although the application should have been considered under the 2002 Island Plan, in fact by the time it was lawfully considered, it had to be dealt with under the 2011 Island Plan.  The Royal Court in that case was referred to a note of a case in the Queen's Bench Division before Woolf J, as he then was, in 1983.  There is no formal law report, but the case note sets out the judge's view that it was right, in a case where other planning considerations did not compel a different view, to bear in mind that the proper application of planning policy required that it should be fairly administered, and there would be situations where it would be proper to take into account the fact that a particular site had a planning history requiring the grant of planning permission to achieve fairness where all other things were equal. 

23.      The Royal Court in Webb found that it would be unfair if in those circumstances the applications which complied with the requirements of the 2002 Island Plan failed because they fell foul of stricter policies brought in by the 2011 Island Plan when it was entirely the fault of the Planning Department that the applications were delayed.  This would be a "sufficient justification" for the purposes of Article 19(3) of the Law. 

24.      We agree that one criteria for the purposes of Article 19(3) is that of procedural fairness.  The failure to have the application considered under the 2002 Plan in this case was entirely the fault of the Minister, or his department.  That is capable of providing a reason which amounts to justification for departing from the 2011 Plan if the applicant would have been entitled to a permission under the 2002 Plan.  It would depend on the facts as to whether in any particular case the reasons for not dealing with the matter under the earlier plan were such that it would be unreasonable to apply the later plan strictly. 

25.      As is clear from paragraphs 9-11 above, the Minister in this case ultimately gave permission on the grounds that the application fell within the 2011 Island Plan.  The preliminary language in the planning permit indicates that the 2002 Plan was also noted, and the relevant planning policies under that plan considered.  In our judgment this was entirely right.  Even if the Court were to find that the Minister's decision on the application of the 2011 Island Plan policies was unreasonable, it would be necessary for us to consider the application under the 2002 Plan because in the circumstances of this case, it would be unfair to the applicant not to do so. 

Alleged Procedural Irregularity

26.      It is contended by the appellants that the Minister acted unreasonably by committing various procedural irregularities namely:-

(i)        Failing to return and/or refuse the application on the basis that the information provided was inaccurate and/or incomplete;

(ii)       Depriving the appellants of the ability to make submissions with respect to what were contended to be significant elements of the application;

(iii)      Meeting the applicant's architect during the course of the Minister's site visit. 

27.      The first of these objections is based on the proposition that when the application was submitted in July 2010, it did not contain sufficient information regarding the proposed use of a tight tank or cess pit for the purposes of drainage.  Reliance was placed on an English planning text book called Planning Law Practice and Precedents published in 2010 by Mr Stephen Tromans and Mr Robert Turrall-Clarke, both barristers at law.  It appears to be an extremely helpful volume if one is dealing with English planning Law.  It may on occasion be useful in dealing with applications under the Law.  However in order to reach that stage, one has to be satisfied that the primary legislation as well as the underpinning secondary legislation is similar.  Information was not put before us to show that that was so.  We regard this text book therefore as only of potential assistance. 

28.      The extract to which we were referred suggests that the planning authority has an obligation to ensure that questions on the application form are answered in sufficient detail to enable the true nature of the proposal to be understood.  We agree that that statement makes sound common sense.  Both the decision taker and potential objectors need to know sufficiently what is being proposed in order to make their decision or objections respectively.  In the present case, the normal consultation process was followed once the application had been received.  Transport and Technical Services ("TTS") provided a comment that the application property, together with the neighbouring properties to the north and south drain into a tuke and bell treatment plant septic tank system.  TTS indicated that if an alternative system was to be considered, the location and access route for tankers must be checked and approved by them.  

29.      The Environment Protection section of the Environment Department also commented that the foul drainage was to a communal septic tank and soakaway which would need to be investigated further should permission be given, and any alternative drainage system should be forwarded for consideration by the environment protection section.  Further details of the proposals were obtained by the Minister.  What is absolutely clear is that the Minister was well able to consider the application, and whatever shortfall there was in information regarding foul sewage facilities was not a matter which disguised the true nature of the proposal.  This ground of appeal is rejected. 

30.      Secondly, the appellants submit in this connection that they were deprived of the opportunity of making proper submissions in relation to foul sewage because they had insufficient information.  The position is that the Minister accepted and publicised the applicant's plan on 10^th June, 2011, in relation to the first application, which showed a proposed tight tank location approximately seven metres away from and up ground water gradient of the borehole situated at the appellants' property.  The plan did not contain any text to explain the way in which the tight tank would be used and/or connected to the application site.  On 4^th November, 2011, the Minister approved a second plan which had not previously been publicised which showed the proposed tight tank location with an inlet for emptying. 

31.      In our view, the procedural objections on this point too are insufficient to get the appellants home on the appeal.  They were aware from the first application that the sewage proposal involved a tight tank.  They were also aware that the applicant's proposals for a tight tank were referred to in the Planning and Environment Department report, which was put in the public domain a week before the relevant hearing of the Panel/the Minister.  More to the point however, it is clear that the appellants were able to make substantial objections on the grounds of the proposed foul sewage facilities, and we therefore consider that the procedural irregularities did not materially inhibit them in this respect.  Indeed we note that by their letter dated 8^th June, 2011, the appellants expanded on earlier foul drainage objections which they had made, and added that this was not just a building bye-laws issue, but a matter which should be considered in determining the planning application, and that they would lodge a third party appeal against any development involving installation of a tight tank on the basis of a breach of policy and loss of amenity.  Accordingly, we consider that the procedural irregularity complaint fails and we will deal later with the foul drainage objections on their merits. 

32.      The last procedural irregularity which the appellants claim is that the Minister met the applicant's architect on site when conducting his site visit.  There is no dispute that the Minister did so.  He was accompanied by two of his officers.  He carried out a thorough visit so as to understand the nature of the scheme and he did indeed as we understand it speak to the applicant's architect while on the property Le Vouest.  When visiting Westward House to the north, he also spoke to the second named appellant.  On both properties, he was attempting to get a full understanding of the situation. 

33.      The appellants rely on the Court's comments in Ruette Pinel Farm Limited-v-The Minister for Planning (supra).  At paragraph 37 of that judgment, a summary of the conduct of the then Minister was set out, leading to some criticisms.  The conduct of the Minister in this case is nothing like that which occurred in the Ruette Pinel Farm case.  We do not see that there is any complaint to be made legitimately that the Minister happened to see the applicant's architect when conducting a site visit to familiarise himself with the proposal.  It is not alleged he made any comments indicating his mind was made up, or that he gave the architect any advice as to what might or might not be acceptable.  He was simply gaining a full understanding of what was being proposed, and he did that by receiving no doubt information from both the applicant's architect and indeed from the second named appellant.  There was nothing clandestine about the arrangements, because planning officers were with him.  We do not see any impropriety in this whatever. 

Applicable Planning Policies

34.      The application site lies within the Coastal National Park under the 2011 Island Plan, and is therefore subject to Policy NE6 which is in these terms:-

"The Coastal National Park, as designated on the Proposals Map, will be given the highest level of protection from development and this will be given priority over all other planning considerations.  In this area there will be the strongest presumption against all forms of new development for whatever purpose. 

The Minister for Planning and Environment recognises that there are existing buildings and land uses within the Coastal National Park and there will be a strong presumption against their redevelopment for other uses; their extension; and the intensification of their use. 

Exceptions will only be permitted where it is demonstrated that;

(1)       extensions to existing residential buildings will not cause serious harm to the landscape character of the area, and where their design is appropriate relative to existing buildings and their context. 

...."

35.      The exceptions to the Policy after the first exception set out above are inapplicable in this case. 

36.      The difference between the first two paragraphs of Policy NE6 is that there is the strongest presumption in the first paragraph against all forms of new development, whereas in the second paragraph there is a strong presumption against either redevelopment or the extension of existing buildings and land uses.  The present case falls within the second paragraph and there is therefore a strong presumption against an extension to an existing building.  The exception to that presumption is where the extension will not cause serious harm to the landscape character of the area and where its design is appropriate relative to existing buildings and context.  We note in passing that, as shown in our comments at paragraph 49 below, this Policy attaches significantly greater protection than Policy C5 under the 2002 Plan. 

37.      The application property backs up against the scarp slope which rises from St Ouen's coastal plain to the summit, details of which are set out in the Countryside Character Appraisal for the Jersey Island Plan review in December 1999 prior to the adoption of the 2002 Island Plan.  In this area many of the cotils have reverted to bracken, although rock outcrops are a distinctive feature.  The Countryside Character Appraisal sets out threats to local character as being these for the purposes of this appeal:-

(i)        Loss of contrast between the terraces of cotils with their granite walls and the open heath land as more land comes out of agricultural production begins to scrub up;

(ii)       The need for management of the areas of semi-natural vegetation to retain and enhance habitat diversity and particularly restoration of heath land habitat;

(iii)      The impact of further visually prominent developments on the scarp slopes and along the ridgeline. 

38.      At page 117 of the report, under the heading "Levels of Protection and Capacity to Accept Change" the report sets out this guidance:-

"Development is restricted to the renewal, conversion and small scale extension of existing buildings.  Even small scale developments can be very prominent over a large area of the Bay.  It is particularly important that developments on the ridgeline are subject to strict controls to ensure that proposals for extensions/renewals or conversion do not result in an overall increase in mass, thereby creating very intrusive visual features.  Opportunities should be sought to ameliorate the visual impact of existing buildings, for example through more suitable colour schemes (not white) and screening through planting (pine plumps or broad leaf species).  Enclosures created by hard boundary fences of coniferous hedges will not be appropriate. 

The granting of permission for any development within the character area, should wherever possible aim to procure the environmental enhancement and management measures outlined above."

39.      It is essential therefore to look at the scale of the development because the larger the scale the more likely that there will be an impact on the character of the area.  In doing so, the important measure is whether there is an overall increase in mass which creates intrusive visual features - and by contrast, if a planning permission were granted, whether the opportunity could be taken to ensure that the visual impact of any existing buildings is ameliorated by the adoption of more suitable colour scheme. 

40.      The second primary policy which is applicable under the 2011 Island Plan is Policy NR1 which has as its objective the protection of the Island's water resources.  It is in these terms:-

"Development that would have an unacceptable impact on the aquatic environment, including surface water and ground water quality and quantity, will not be permitted.  In particular development proposals that rely on septic tanks, soakaways or private sewage treatment plants, as a means of foul waste disposal, will not be permitted except where they accord with Policy LWM2 "Foul Sewage Facilities". 

The Minister for Planning and Environment will also seek to encourage a high quality environmental design for development to minimise surface water runoff and to reduce the demand for and consumption of water in accordance with Policy LWM3 "Surface Water Drainage Facilities. 

If a development proposal is within the water pollution safeguard area, Jersey Water will be consulted prior to determining the planning application, to ensure that the public water supply is not put at risk from pollution."

41.      Although the application site lies a few metres outside the water pollution safeguard area, the septic tank and soakaway to which the existing property connects lies within the water pollution safeguard area.  If the proposed extension had been connected to the existing foul drainage arrangements for Le Vouest, then the development proposal would have required consultation with Jersey Water.  However, it appears that it will not be connected to that existing system but instead there will be a tight tank installed somewhere in the Le Vouest property.  Policy NR1 is still applicable.  The Minister is required to consider whether the proposed development would have an unacceptable impact on the aquatic environment. 

42.      In addition, the Minister is required to consider Policy LWM2, which is in these terms:-

"Development which results in the discharge of sewage effluent will not be permitted unless it provides a system of foul drainage that connects to the mains public foul sewer (to the satisfaction of the Minister for Planning and Environment in consultation with the Minister for Transport and Technical Services). 

...

Planning permissions may be granted in exceptional circumstances for small scale development which results in an increase of foul sewage discharge and relies on non-mains sewage disposal, including existing septic tanks (where these have been shown to be performing adequately) and tight tanks.  Such developments might include:  extensions and alterations to existing residential properties... where these would otherwise be considered appropriate having regard to Policies NE6 "Coastal National Park ...

In such cases the applicant must successfully demonstrate that;

(1)       Connection to mains drains is not feasible;

(2)       The installation of a package treatment plant would be unreasonable; 

(3)       The increase in the amount of effluent as a result of development will be negligible; 

(4)       Ground conditions are appropriate and the development plot is of adequate size to provide an adequate sub-soil drainage system;

(5)       Development will not create or add to a pollution problem; 

(6)       The development will not place an unacceptable burden on amenity or cause public health or environmental problems; 

(7)       Adequate provision is made for maintenance and monitoring; and  

(8)       The development is in accordance with other principles and policies within the plan. 

...

For the avoidance of doubt, proposals for the use of ... tight tanks... will not be permitted where:

(1)       "A discharge permit" is unlikely to be forthcoming..."

43.      Assuming that the applicant manages to persuade the Minister that the application meets the criteria of Policies NE6 and LWM2, he must still persuade the Minister that permission ought to be given in accordance with Policy GD1 namely the general development considerations.  Some of the polices in GD1 are simply repetitive of the same policy considerations in Policy NE6 but the additional requirements might be treated as these:-

(i)        The development must not seriously harm the amenities of neighbouring uses, and in particular should not unreasonably affect the level of privacy or the level of light to buildings and land that owners and occupiers might expect to enjoy; and

(ii)       Generally the development must be of high quality design. 

44.      In summary, the appellants' objections to the application on planning grounds are that the application amounts to an intensification of the use of a reasonably sized residential property which is well beyond that which it is contended the site can bear and outside the requirements of the Island Plan.  The appellants say that there is a 74% increase in the footprint of the building; an 83% increase in the floor space available; the addition of five sizeable rooms, which, notwithstanding their present designation, are all potentially capable of being used as double bedrooms and therefore ought to be assessed as such; and seven WCs.  Thus it is said that there is potential for the property to be occupied by 16 persons which is a considerable increase on the present maximum occupancy of six persons; and there would be an extension of the curtilage and the excavation of a significant area of the cotil resulting in harm to the environment by reason of the loss of unspoilt and natural gorse or scrubland.  Finally the appellants contend that apart from the drainage problems, there would be a significant overlooking prejudice to them, and loss of privacy, which would mean that the proposed development would breach Policy GD1. 

45.      The starting point is the policy which contains a strong presumption against development which means the application was liable to be refused unless it came within the exceptions to Policy NE6.  In the context of this case, that requires the Minister to consider whether the proposed extension could properly be regarded as such or whether its mass and scale took it out of the category where, on the ordinary use of language, it could be regarded as an extension to the main house.  Once established that it was properly to be regarded as an extension, the Minister had to consider whether the proposed extension might cause serious harm to the landscape character of the area; whether the design was appropriate relative to the area, the immediate neighbours and the existing property; and whether the proposal was consistent with Policy LWM2 in relation to drainage.  If the answer to any of these questions was in the negative, the Minister had to refuse consent by virtue of Article 19 of the Law unless satisfied there was sufficient justification for granting permission. 

46.      It is clear the Minister considered these questions and concluded that the application fell within the 2011 Plan.  The only question for us therefore is whether that conclusion was unreasonable, a question we must decide giving an appropriate margin of appreciation to the Minister's decision.  We think it was unreasonable for each of these reasons:-

(i)        The scale and mass of the proposed development is very large.  The proposed flat roof design is also different in character from adjacent buildings and generally the roofs in the area are pitched.  If it does not cross the boundary line of what is no longer an extension to an existing property, it certainly comes very close to it.  Whether the percentage increases given by the appellants as referred to in paragraph 44 above are or are not precisely accurate, the plans and photomontages we have seen make it clear there will be a very substantial increase in the size of the existing building.  That increase in mass and scale has been very cleverly dealt with by the architect such that it would be visually only apparent from the south west and the north west, and of course from the appellants' property; but the Court is satisfied it would be apparent from those angles, particularly from the south west. 

(ii)       The question whether this scale and mass would cause serious harm to the area seems to us to be one that the Minister had to consider having special regard to the fact the application site is in St Ouen's Bay.  This area of Jersey has been recognised in the 2011 (and earlier) Island Plan as especially important and was given detailed treatment in the Countryside Character Appraisal in 1999 and in the St Ouen's Bay Planning Framework.  In our view, those planning assessments and policies are such that the Minister is required to give them the closest attention; and that he should also have regard to the need for consistency in that the grant of a permission in the present case might leave him fatally exposed to challenges in relation to decisions to refuse applications for development of a similar (or even lesser) mass and scale in other parts of St Ouen's Bay. 

(iii)      We do not think that Policy LMW2 has been met.  That policy is based upon the proposition that developments involving the discharge of sewage should only occur where there are mains drains.  There are exceptional cases where this is not so.  We do not think it is an answer to this objection to say that the proposed sewage disposal arrangements are in accordance with the relevant bye laws.  If that were a sufficient standard, there would be no need for Policy LMW2 - the existence of that Policy in addition to the bye-laws shows there is an extra policy consideration. 

Policy LMW2 makes it plain that proposals for the use of tight tanks will not be permitted where a discharge permit is unlikely to be forthcoming.  In his third affidavit Mr Webster indicates at paragraph 50 that TTS have confirmed that there will be no dispensation for tanker emptying.  The Court accepts that the unacceptable risk of groundwater pollution is low in the case of tight tanks, and indeed the report of Mr Roscouet, the Director of Building Control, shows that the rupturing of tight tanks is not a significant risk.  Nonetheless, the risks of an accidental discharge of sewage at the time of emptying the tight tank must be higher or it is hard to see what the purpose of this part of Policy LMW2 might be. 

In any event, it is clear that the extension would house the main bedrooms for the property, if it were constructed.  The appellants' contentions that one would be looking at a possible occupancy of up to sixteen persons are not material in this respect as the existing Tuke & Bell system would continue to serve that part of Le Vouest which it currently serves. 

With a maximum occupancy of four bedrooms in the extension, there would be eight people.  That would tend to suggest the tight tank would need to be emptied every two weeks or so.  The applicant contends that occupancy would be more limited and that emptying once a month would be sufficient.  There is some support for that estimate from TTS.  The Court thinks it would be reasonable to assume the tank would need emptying every 3-4 weeks. 

In his third affidavit at paragraph 52, Mr Webster accepts that the process of emptying a tight tank releases unpleasant smells.  He says this would occur approximately 12 times a year - on the Court's approach therefore, between 12 and 17 times a year.  The Court considers that does represent a considerable loss of amenity for the appellants which, given the purpose of Policy LMW2, would be unacceptable, and that the Minister acted unreasonably in disregarding this. 

47.      For these reasons, the Court has found that the decision of the Minister to grant the applicant permission on the application of the 2011 Island Plan was unreasonable and, were there no other considerations, would be set aside.  However, on the application of Webb-v-Minister for Planning and Environment, and given the history recited at paragraphs 19 to 25 above, we consider that it would be unfair to the applicant to leave the matter there, and we must consider the reasonableness of the decision when set against the 2002 Island Plan policies.  

48.      Under the 2002 Island Plan, the application site lay within the Green Zone.  Policy C5 contains a general presumption against development, expressed in these terms:-

"Policy C5 - Green Zone

The areas designated as Green Zone on the Island Proposals Map will be given a high level of protection and there will be a general presumption against all forms of new development for whatever purpose. 

The Planning and Environment Committee recognises, however, that within this Zone there are many buildings and established uses and that to preclude all forms of development would be unreasonable.  Thus, the following types of development may be permitted but only where the scale, location and design would not detract from, or unreasonably harm the visually sensitive character and scenic quality of this Zone:

(i)        domestic extensions and alterations;

(ii)       limited ancillary or incidental buildings within the curtilage of a domestic dwelling;

....

Proposals for new developments which must occur outside the built up area will only be permitted in the Green Zone where it is demonstrated that there are no suitable alternative sites available in the Countryside Zone and wherever possible, new buildings should be sited next to existing ones or within an existing group of buildings. 

In all cases, the appropriate tests as to whether a development proposal will be permitted will be its impact on the visually sensitive character of this zone and whether it accords with the principles of sustainability which underwrite the plan. 

For the avoidance of doubt: 

(a)       large scale developments will be strongly resisted, unless they are proven to be in the Island interest;

...". 

49.      It is immediately to be noted that the Island Plan 2002 gives increasing levels of protection against development to the Countryside Zone, the Green Zone and the Zone of Outstanding Character.  Insofar as the Green Zone was concerned, it was to be given a high level of protection.  The general presumption was against all forms of new development for whatever purpose.  It seems to us that there must be a distinction between "development" and "new development".  In other words, the Court should give some meaning to the addition of the word "new" in the policy.  It would seem to follow that there are some forms of development which require a planning consent which would not fall into the category of being new for the purposes of Policy C5.  That construction of the Policy seems to be consistent with its second paragraph where there is a statement that the Planning and Environment Committee recognise that it would be unreasonable to preclude all forms of development in the Green Zone.  It seems to us therefore that there is no general presumption against development in the Green Zone pursuant to Policy C5, as long as it is not a new development.  The Policy envisages that permission might be given to developments in the Green Zone which are domestic extensions and alterations.  The planning authority is in this case required to give the application site a high level of protection.  There is an element of semantics here but nonetheless it seems to us that there was under the 2002 Plan in relation to this policy an important distinction between a general presumption against all forms of new development, and a watered down protection against other forms of development such that the latter would be permitted where the scale, location and design would not detract from, or unreasonably harm the visually sensitive character and scenic quality of the Green Zone. 

50.      As is plain from paragraph 5.39 of the Island Plan 2002, the St Ouen's Bay coastal plain and the main escarpments of St Ouen's Bay are, among other areas, identified as having an intact character and comprising an important range of environmental features needing a high level of protection. 

51.      At paragraph 5.41 of the 2002 Plan, it is said:-

"These areas are designated as Green Zone on the Island Proposals Map.  The landscape character types of this zone have been created mainly through human intervention and their quality and distinctiveness makes them particularly sensitive to the effects of intrusive development.  Accordingly, there will be a strong presumption against any new development to retain this quality and distinctiveness and to ensure that the character of the zone remains intact. 

5.42    It is however, acknowledged that as landscape largely created by human intervention, it would be unreasonable to preclude all forms of development in the future... as in the zone of outstanding character, to ensure the retention and, where possible, the enhancement of the character of the Green Zone the redevelopment of existing buildings will only be permissible where environmental benefit is secured.  This might be the case where, for example the scale and mass of a non-residential building is reduced through redevelopment thereby lessening its impact on the landscape...."

52.      The Planning and Environment Committee produced in 1999/2000 the St Ouen's Bay Planning Framework as a robust planning policy and land management tool to guide the future development of St Ouen's Bay.  Policy SO10, referred to in the permit is as follows:-

"Development within St Ouen's Bay 

There will be a strong presumption against new development.  Where development is considered appropriate, it must be located and designed so as not to adversely affect the unique character of St Ouen's Bay. 

Appropriate development may comprise: 

(1)       Essential agricultural and fishing uses;

(2)       Informal outdoor recreational facilities;

(3)       Replacement, alteration or extension of existing buildings for residential use;

(4)       The change of use of redundant agricultural buildings to small business or residential uses;

(5)       Small scale leisure, retail or other tourist facilities. 

All development proposals will be tested against the objectives of the St Ouen's Bay Planning Framework." 

53.      Once again, there is the addition of the words "new" where reference is made to a strong presumption against new development.  It would seem from the way Policy SO10 is expressed that a residential extension is not regarded as a new development, because it potentially falls into the class of appropriate development.  Accordingly, the expression falls to be given a different meaning than it carries in Policy NR2, where the Minister issued relevant supplementary Planning Guidance in October 2005. 

54.      The planning permit that was granted rightly also describes the application site as being subject to Policy SO15 of the St Ouen's Bay Planning Framework.  This Policy was in these terms:-

"Extensions and alterations to dwellings. 

Extensions and alterations to dwellings will only be permitted where the proposal does not: 

(1)       Detract from the character, appearance or amenity of the original building, its setting or neighbouring buildings;

(2)       Dominate the original dwelling where it is of architectural, historic or vernacular merit;

(3)       Create a separate dwelling or an annex that could be used as a separate dwelling; or

(4)       Cause highway safety or parking problems." 

55.      In relation to the present appeal, the questions for the Minister, assuming the 2002 Plan Policy was to be applied, therefore were these:-

(i)        Does the proposed extension detract from the character, appearance or amenity of the original building, its setting or neighbouring buildings? 

(ii)       Would the extension create a separate dwelling or an annex that could be used as a separate dwelling? 

56.      If the answer to either of these questions were to be in the affirmative, then the proposal would appear to breach Policy SO15. 

57.      The Court considers that the labels attached to intended uses of built accommodation are not of great significance unless one is considering whether a different use would be so material as to amount to a development which would require a consent under the Law.  Accordingly, where what are currently bedrooms in the existing property are shown as a study, gym room or pool room in the revised plans, we accept the appellants' contentions that they could just as easily be described as bedrooms.  There has been no material change of use in either case - it remains residential accommodation, forming part of a dwelling house. 

58.      To convert a single unit of accommodation into two units is a material change of use and amounts to development - see Article 5(2)(e) of the Law. 

59.      For the purpose of Policy SO15(3), the issue is not only whether the proposed extension does create a separate dwelling, which needs consent in its own right, but also whether it could do so.  The policy required the Minister to consider whether, if this extension were built, it created accommodation that could be described as a separate dwelling.  The appellants argued that it could and the removal of the outside staircase showed it was in fact intended to be a granny flat or separate dwelling. 

60.      Having considered the plans for the proposed development, the Court is satisfied that it could be described as creating two separate dwellings; if a minimal change were introduced of a door at the top or bottom of the stairs were created, it would do so.  Because it could be used as a separate dwelling as it stands, the Court thinks the proposal breached Policy SO15 and the Minister acted unreasonably in considering that it did not. 

61.      Regardless of whether this conclusion is or is not correct, the Court considers that the Minister otherwise considered the application against the 2002 Plan as well as the 2011 Plan but acted unreasonably in concluding that it should be granted.  The Court's reasons for this are essentially the same as are set out in paragraph 46 above, adapted to reflect the different Plan policies.  In other words, despite the change in polices the underlying objections remain so as to make a grant of consent under the 2002 Plan also unreasonable. 

62.      In our judgment the scale and mass of the proposed extension was such that it was unreasonable to conclude it would not harm the visually sensitive character and scenic quality of the Green Zone, having regard to the 2002 Plan, the St Ouen's Bay Planning Framework and the Countryside Character Appraisal.  Accordingly it breached Policy C5 of the 2002 Plan. 

63.      The other policies which were relevant this application under the 2002 Island Plan were Policies G2 (General Development Considerations), G3 (Quality of Design) and NR2 (Foul Sewage Facilities).  Insofar as Policy G2 is concerned, these general development considerations are very largely covered by the relevant considerations under Polices C5, SO10 and SO15, insofar as concerns the application site, but the following provisions may be thought to be relevant. 

"Policy G2 - General Development Considerations

Applicants need to demonstrate that the proposed development: 

...

(2)       Will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations; 

...

(10)     Will not have an unreasonable impact on public health, safety and the environment by virtue of ... effluent;

(16)     Includes the provision of satisfactory mains drainage and other service infrastructure.

Applications which do not comply with these principles will not normally be permitted." 

64.      Policy G3, insofar as is relevant, is as follows:-

"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.  The Planning and Environment Committee will require the following matters to be taken into account as appropriate:-

(1)       The scale, form, mass, 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;

(3)       The degree to which design details, colours, materials and finishes reflect or compliment the style and traditions of local buildings;

...

Proposals that do not demonstrate that account has been taken of the above matters, as appropriate, will not normally be permitted." 

65.      For the purposes of this appeal, the additional considerations from Policy G2 relate to the question as to whether the proposed development would have an unreasonable impact on neighbouring uses by virtue of visual intrusion or other amenity considerations, and whether the proposed development would have an unreasonable impact on public health, safety and the environment by virtue of effluent, given the absence of satisfactory mains drainage to the application site.  

66.      For the purposes of Policy G3, scale, mass, siting and design are all relevant features for the purposes of this appeal. 

67.      The last relevant policy considered by the Minister in relation to the 2002 Plan was Policy NR2 in relation to foul sewage facilities.  This Policy is in these terms:-

"New development proposals that rely on septic tanks, soakaways or private sewage treatment plants as a means of waste disposal will not normally be permitted." 

68.      The introduction of this Policy recognises at paragraph 13.15 that there remain a large number of properties, predominantly in rural areas (such as the application site) that rely on private sewage treatment and disposal systems including septic tanks and soakaways.  The Plan recognises that new development using these systems should not be permitted as it frequently causes pollution of the water environment.  The Plan continues at paragraph 13.16:-

"There may be some exceptional circumstances where other methods of treatment such as reed beds might be allowed in order to reduce energy consumption used in the process of sewage treatment and disposal systems to avoid the risk of pollution associated with conventional private treatment plants and to increase biodiversity." 

69.      It is interesting to note that there is nothing in this part of the 2002 Island Plan that deals with an extension of the developed area using alternative private sewage treatment and disposal systems such as a tight tank or a Tuke and Bell.  Once again, there is at first glance some difficulty with the addition of the word "new" into Policy NR2 as the question arises as to whether the Policy refers only to a wholly new building, or whether it also applies to the extension of an existing building.  However, in our judgment, it is intended to apply to the development of an existing building because pages 1 and 2 of the Minister's Supplementary Guidance published in October 2005 make that clear. 

70.      In this case, the proposed extension would not use the Tuke and Bell and soakaway system which serves the main property at Le Vouest.  Instead, it is proposed that a tight tank be created.  Even ignoring the Supplementary Planning Guidance, in our judgment that makes the proposal a new development proposal for the purposes of Policy NR2, because it would not be relying on the existing private sewage treatment and disposal system.  Accordingly, under the 2002 Plan, Policy NR2 would apply, and the application of the Policy would mean that the proposal would not normally be permitted.  Of course the use of the word "normally" in Policy NR2 envisages that there will be circumstances where the proposal would be permitted.  In our view, that is where Policy G2 applies, and the Minister is required to have regard to whether there would be an unreasonable impact on public health, safety and the environment by reason of the foul sewage system which was proposed. 

71.      For the reasons given at paragraph 46(3) above, the application failed to meet Policy G2 as well, and the appeal is allowed on this ground also. 

72.      For the reasons given, the Court is of the view that, having considered the voluminous papers and made a site visit, the Minister's decision fell outside the parameters of what was reasonable and the appeal is thus allowed, and we order the Minister to cancel his decision to grant planning permission. 

Authorities

2002 Island Plan.

2011 Island Plan.

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

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

Planning and Environment Committee-v-Le Maistre [2002] JLR 389.

Trump Holdings Limited-v-Planning and Environmental Committee [2004] JLR 232.

Associated Provncl. Picture Houses Ltd-v-Wednesbury Corp [1948] 1 KB 223.

Caesar Investments Limited-v-Planning and Environment Committee [2003] JLR 566.

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

Planning and Building (Jersey) Law 2002.

Webb-v-Minister for Planning and Environment [2012] JRC 107.

Planning Law Practice and Precedents published in 2010 by Mr Stephen Tromans and Mr Robert Turrall-Clarke.