Jersey Unreported Judgments

Inferior Number Sentencing - contravention of the Planning and Building (Jersey) Law 2002.

[2013]JRC140

Royal Court

(Samedi)

19 July 2013

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Morgan and Olsen.

The Attorney General

-v-

ARD Limited

Rupert John Huelin

Carl Gerrard Putka

Andrew Mitchell Robertson

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

ARD Limited

1 count of:	Contravention of Article 7(1) of the Planning and Building (Jersey) Law 2002, as amended (Count 1).
1 count of:	Contravention of Article 33(1) of the Planning and Building (Jersey) Law 2002, as amended (Count 2).

Plea: Guilty.

Details of Offence:

Defendant company purchased a property called the Good Companions Club for £675,000 in November 2009 at which time it was commercial premises, used as a day centre for elderly persons.  At some time after the purchase, the property was placed for sale with Troy's Estate Agents for £750,000.  Various enquiries were made to Planning and Building Services from would-be purchasers regarding the possible future development of the property.  Enquiries included those from the defendants and/or their agents to convert the property into dwellings.  There then followed approximately two years of liaison, including telephone calls, emails and meetings, between the directors of the company and senior planning officers in relation to what was required by the Department to render the property habitable.  Following a visit to the property by an officer from the Population Office which was made at the request of one of the directors, it was reported to Planning that substantial building work had been carried out and it now comprised separate dwellings.  The defendants had thus decided to carry out the building work anyway, without having first acquired the necessary consents.  When the property was later inspected by Building Control, serious doubts were expressed in relation to fire safety, thermal and sound insulation standards.  Enforcement Notices were served. 

Details of Mitigation:

Admitted infractions on Indictment. 

Previous Convictions:

None.

Conclusions:

Count 1:	£10,000 fine.
Count 2:	£10,000 fine.

Total: £20,000 fine plus costs of £1,500 making a total of £21,500.

Sentence and Observations of Court:

The Court sentenced on the basis that the directors had been guilty of reckless conduct rather than a deliberate decision to flout the Law and Bye-Laws.

Count 1:	£10,000 fine.
Count 2:	£10,000 fine.

Total: £20,000 fine plus costs of £3,000 making a total of £23,000.

1 year given in which to pay.

Rupert John Huelin

2 counts of:

Contravention of Article 123(1) of the Planning and Building (Jersey) Law 2002, as amended (Counts 3 and 4).

Age:51.

Plea: Guilty.

Details of Offence:

See ARD Limited above.

Details of Mitigation:

See ARD Limited above.

Previous Convictions:

None.

Conclusions:

Count 3:	£5,000 fine or 5 months' imprisonment in default.
Count 4:	£5,000 fine or 5 months' imprisonment in default.

Total: £10,000 fine plus costs of £500 making a total of 10,500.

Sentence and Observations of Court:

See ARD Limited above.

Count 3:	£2,500 fine or 3 months' imprisonment in default.
Count 4:	£2,500 fine or 3 months' imprisonment in default.

Total: £5,000 fine.

28 days given in which to pay.

Carl Gerrard Putka

2 counts of:

Contravention of Article 123(1) of the Planning and Building (Jersey) Law 2002, as amended (Counts 3 and 4).

Age:57.

Plea: Guilty.

Details of Offence:

See ARD Limited above.

Details of Mitigation:

See ARD Limited above.

Previous Convictions:

None.

Conclusions:

Count 3:	£5,000 fine or 5 months' imprisonment in default.
Count 4:	£5,000 fine or 5 months' imprisonment in default.

Total: £10,000 fine plus costs of £500 making a total of £10,500.

Sentence and Observations of Court:

See ARD Limited above.

Count 3:	£2,500 fine or 3 months' imprisonment in default.
Count 4:	£2,500 fine or 3 months' imprisonment in default.

Total: £5,000 fine.

28 days given in which to pay.

Andrew Mitchell Robertson

2 counts of:

Contravention of Article 123(1) of the Planning and Building (Jersey) Law 2002, as amended (Counts 3 and 4).

Age:50.

Plea: Guilty.

Details of Offence:

See ARD Limited above.

Details of Mitigation:

See ARD Limited above.

Previous Convictions:

None.

Conclusions:

Count 3:	£5,000 fine or 5 months' imprisonment in default
Count 4:	£5,000 fine or 5 months' imprisonment in default.

Total: £10,000 fine plus costs of £500 making a total of £10,500.

Sentence and Observations of Court:

See ARD Limited above.

Count 3:	£2,500 fine or 3 months' imprisonment in default.
Count 4:	£2,500 fine or 3 months' imprisonment in default.

Total: £5,000 fine.

9 months given in which to pay.

Mrs S. Sharpe, Crown Advocate.

Advocate C. G. Parslow for the Defendants.

JUDGMENT

THE BAILIFF:

1.        The company in this case is the owner of Crown House in St Helier, which used to be the Good Companions Club, having purchased the property in November 2009.  At the time of the purchase it was not being used for residential purposes.  Thereafter a number of enquiries were made, on behalf of the company, of the Planning Department about the possibility of converting the property so that it could be used for residential purposes.  During these discussions the Department made it clear that there were considerable difficulties in the various proposals which were being put forward and these would need to be addressed. 

2.        In January 2010, Mr Robertson, one of the defendants and one of the directors of the company, was told by the Population Office, which he had approached about letting the property temporarily for residential purposes, that so far as the Population Office was concerned, the whole site was deemed as commercial and the company would have to obtain a temporary change of use consent from the Planning Department if it wished to let the premises for residential purposes.  Despite this, it is clear that at some stage thereafter the main part of the property had work undertaken to it so that it could be let for residential purposes.  There is some dispute as to whether in fact it is let as two or three flats; the Planning Department say it is let as three flats, the defendants say that it is let as two flats with the second flat being a duplex and a lodger being on the top floor.  That difference is not material for our purposes. 

3.        The fact that the property had been let was discovered in due course and, despite numerous discussions with the Planning Department thereafter, the position has not been resolved by the grant of a retrospective planning consent, although there is still a second one outstanding at present.  Enforcement notices have been served and it will require significant expenditure on behalf of the company to comply with those notices.  One of the problems is that the works which have been undertaken apparently do not comply with the relevant Building Bye-Laws in connection with thermal insulation, fire precautions and other matters, and that is of course one of the purposes of requiring Bye-Law consent, so as to ensure that properties are now of adequate standards. 

4.        The Prosecution say that this was a deliberate decision by the company and the directors to flout the known view of the Planning Department.  However, Advocate Parslow has asserted that there was confusion as to exactly what it was that the Planning Department was refusing to countenance and that the company and directors thought that they could do what they have done, although they now accept that they could not. 

5.        Our view is that even if they did think this, that was reckless conduct on their part.  They took no steps to ascertain from the Planning Department whether they could do this work and to clarify the position.  Two of the directors are estate agents and one is a builder and they could be expected to know the importance of complying with the planning laws.  Nevertheless we treat this as reckless conduct rather than a deliberate breach of what Planning had said. 

6.        Fines are sought both against the company and three out of the four directors; the three directors are also shareholders each owning 25% of the company.  The fourth director is said to have had no involvement in these decisions. 

7.        The company has received a gross rental from the flats of some £39,000 as a result of the letting but, as already stated, it will now face the expenditure of complying with enforcement notices and it incurred the expenditure of doing the work in the first place.  As to the company's financial position, its sole asset is the property; we have seen a valuation and we understand there are borrowings against it.  We have been provided with the figures. 

8.        In our judgment the right approach here is to consider the fines in the round.  Each person, that is the company and each director, faces two counts, one; failing to get planning permission for the change of use and two; making a change of use without the relevant Building Bye-Law approval.  In addition both the company and the directors must pay fines.  As we say we think the right way of approaching this is to look at the aggregate fine.  The Crown move for aggregate fines of £50,000.  We think, having regard to all the circumstances, the right aggregate fine is £35,000.  We are going to divide that up as follows.  There will be a total fine of £20,000 against the company, £10,000 on Count 1 and £10,000 on Count 2.  We accept that the company will either have to sell the property or will have to borrow against it in order to pay the fine.  We therefore give the company a year to pay, but we are going to order Acte Enregistré to make sure that the property cannot be sold without the fines being paid.  As to the directors we think that the aggregate fine against each director should be £5,000, so we are going to impose on Count 3; a fine of £2,500 and on Count 4; £2,500, and in each case 3 months' imprisonment in default. 

9.        As to the costs, we think that the total costs asked for of £3,000 are correct but we think that should all be paid by the company.  Therefore we make an order for costs of £3,000 against the company and no individual costs against the directors.  We are willing to allow Huelin and Putka 28 days in which to pay the fines and, in the unusual circumstance of Mr Robertson, we are willing to allow 9 months in which to pay. 

Authorities

Planning and Building (Jersey) Law 2002

Building Bye-Laws (Jersey) 2007.

AG-v-Keenan [2011] JRC 143.

AG-v-Camerons and Another [2003] JRC 227A.