Jersey Unreported Judgments

Planning - appeal against the decision of the Minister dated 11th February, 2013.

[2013]JRC141

Royal Court

(Samedi)

22 July 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Milner.

 

Advocate D. P. Le Maistre for the Appellants.

Advocate G. G. P. White for the Respondent.

The Applicant appeared in person.

judgment

the deputy bailiff:

1.        The appellants are the tenants of the property Ferncliff, La Rue des Barraques, St John but are supported by the owner in this appeal.  They are appealing to the Court against the decision of the respondent on 11^th February, 2013, to grant planning permission to the applicant to develop land at Tomona Cottage, La Rue des Barraques, adjoining Ferncliff.  The permission was for the construction of a new two-storey dwelling and garage.  The appeal was set down for hearing under the modified procedure, and the appellants sought an oral hearing.  The parties agreed that it would be helpful to the Court to have a site visit, and we duly attended on both Tomona and Ferncliff immediately before the hearing. 

2.        The application site is situated to the north of La Rue des Barraques and on the escarpment with very fine views over the north coast and Bonne Nuit Harbour.  The existing building Tomona Cottage is in the Green Zone, and the land dependent upon it is partly in the Green Zone and partly in the Coastal National Park.  The permission against which the appellants appeal as third parties was for the demolition of the existing dwelling and detached studio room, with the construction of the new two-storey dwelling and garage taking place in the Green Zone part of the site rather than the Coastal National Park.  On the face of it Policy NE7 is the primary policy which affects this application.  Nonetheless the appellants assert that the proximity to the Coastal National Park is such that Policy NE6 is the relevant policy which should be taken into account by the Minister. 

3.        It is material to note that the permission given so far is a planning permission in principle only.  What is clear from the permission which has been granted is that there is reserved by the Minister the question of any approval of design for the new dwelling and arrangements for detailed landscaping.  No application in relation to the reserved matters has yet been submitted. 

4.        The grounds of appeal, shortly stated are these:-

(i)        There was an unreasonable increase in the size and mass of the proposed new building compared to the existing buildings, contrary to Policy NE7. 

(ii)       Insufficient weight was given to the proximity of the proposed building to the Coastal National Park. 

(iii)      If constructed, the building would result in an unreasonable level of overlooking of the appellants' property, and loss of amenity to them contrary to Policy GD1; and the overlooking problem was compounded by the fact that the respondent had not attended on the appellants' property to assess the impact of the proposed new building. 

(iv)      Insufficient information had been provided to overcome the presumption against demolition of the existing buildings, contrary to Policy GD2. 

(v)       There was a discrepancy in the basis of assessing the size of the dwelling previously refused and the size of the proposed new building. 

(vi)      The Minister had failed to address properly the reason for refusing the previous application, which was refused on the basis that the building should make a positive contribution to the repair and restoration of landscape character compared with the existing situation. 

(vii)     The respondent had improperly encouraged the applicant to make an application for a larger development than what existed at present. 

(viii)    Insufficient information had been provided to justify the new building as an exception to the Green Zone Policy NE7. 

(ix)      The modern design of the proposed dwelling and its roof form was out of keeping with the character of the area. 

(x)       As this was a departure from the Green Zone Policy, there should have been a sitting of the Planning Applications Panel and/or the Minister in public. 

(xi)      The application site included land outside the domestic curtilage of the existing house and the applicant's application was misleading as to the extent of the existing domestic curtilage. 

(xii)     The application site included land outside the ownership of the applicant. 

(xiii)    The building would generate an unacceptable level of traffic on a narrow rural lane. 

5.        For the purposes of the hearing we had before us two affidavits from each of Mr Jonathan Gladwin, a senior planner with the Planning and Building Services, Mrs Sugden the applicant and Mr Alan Cox, the first appellant.  The Court was also provided, immediately before the hearing, with an exchange of correspondence relating to the size of the proposed dwelling.  In particular we had available to us a letter dated 19^th June, 2013, from Mr Michael Stein of MS Planning Limited to Advocate Le Maistre acting for the appellants, and we will return in more detail to this letter later in this judgment. 

6.        Given that this was a modified procedure appeal, we allowed each of the parties 40 minutes to address us, with a short time available to Advocate Le Maistre to reply.  The imposition of such a time limit seemed to come as something of a surprise to Advocate Le Maistre and we mention it only by way of warning to the profession that if an appeal is listed for hearing under the modified procedure, then the parties cannot expect, under the Rules and Practice Directions, to deal with the presentation of the application as though they had all the time in the world to do so. 

7.        In our view, Advocate Le Maistre correctly focused in his oral argument on the two important grounds of appeal - the first relating to the siting, size and scale of the proposed development, and the second relating to the asserted loss of amenity as a result of the loss of privacy of Ferncliff and overlooking that would follow from a development of the application site as approved. 

8.        Advocate Le Maistre submitted that although the four-bedroomed house which had been approved would be in the Green Zone, it was next to the Coastal National Park and his primary submission was that Policy NE6 was the policy which should have been applied, because one third of this site was in fact in the Coastal National Park.  Accordingly NE6 ought to have been taken into account.  The proximity of the building once constructed to the Coastal National Park is such that it would be absurd to ignore it. 

9.        In our judgment this submission fails as being put too widely.  The area of land on which the building was proposed did not lie in the Coastal National Park.  It lay in the Green Zone.  Accordingly one could only apply to the application the policies which applied in the Green Zone.  To hold otherwise would be to determine that the zoning in the Island Plan was of only peripheral significance because one could apply to an application for building in one zone the policies which had been designed in relation to a different zone.  We reject this submission.  Nonetheless we accept that where the proposed building is proximate to an adjacent zone, it may well be that that proximity is such that the policies in relation to the adjoining zone will be of some influence in determining how to apply the policies which do directly relate to the land where the building is to take place.  We think Advocate White was therefore correct to concede that, in relation to the application site, Policy NE6 (the Coastal National Park Policy) could be taken into account in deciding how to apply Policy NE7 (the Green Zone Policy).  Indeed he contended the Minister had done this.  Nonetheless the Minister was required to apply Policy NE7 and not Policy NE6. 

10.      The arguments around size and mass really fall into two distinct parts.  The appellants contend that objectively the proposed new building is of too big a size and mass to be treated as falling within Policy NE7 in any event.  We reject the submission that there is anything in size and mass which objectively makes this decision of the Minister unreasonable.  We apply to that question the long established test in relation to planning appeals of this kind, namely that laid down in Island Development Committee-v-Fairview Farm Limited [1996] JLR 306 as elaborated by the Royal Court's decision in Token Limited-v-Planning and Environment Committee [2001] JLR 698.  As was said at paragraph 16 of the Court's judgment in Dixon-v-Minister for Planning [2012] JRC 237A, comparing the Minister's 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. 

11.      Adopting that approach, we think this decision of the Minister in terms of size and mass falls within category (c) and there is little to add to that assessment.  It is really a question of looking at the site conditions and forming a view as to whether the proposal is or is not of a size and mass such as would take the development outside the relevant Island Plan policies.  We looked at a photomontage of the proposed development which did not persuade us that there was any particular difficulty. 

12.      The second part of the objection on the grounds of size and mass related to an earlier decision taken by the Minister on a slightly different application, to which we now turn. 

13.      This application was submitted in April 2012 and was for outline permission to remove the existing dwelling and day room and construct a significantly larger two-storey contemporary building.  There were only indicative elevations submitted to illustrate design and scale, and consequently the footprint and siting of the new building were particularly what fell to be considered.  The departmental recommendation was to accept in principle the redevelopment of the site for a single dwelling, notwithstanding Policies NE7 and GD2 of the Island Plan, but despite this, the Department reported that:-

"The proposed increase in the footprint of the building from approximately 147m² to 610m² is clearly beyond the scope of what would be allowed in the Coastal National Park and contrary to the intention, purpose and spirit of Policy NE7 of the Island Plan 2011. 

A proposal to replace the existing building with a building of similar scale and siting (like for like) may be potentially acceptable in principle as an exception to the normal presumption against any development."

14.      The application was refused on the grounds that the proposal would be contrary to Policy NE7, and that the resiting of the building to the north of the existing building made it more visually prominent within the highly protected Coastal National Park overlooking Bonne Nuit.  Furthermore, having in mind Policy GD2, the quantum of new build proposed was considered to be outside the acceptable limits of the exception to the presumption against all forms of new development for whatever purpose. 

15.      The officer report in relation to the application which was subsequently approved in its material part said this:-

"The scale and massing of the dwelling has been reduced to an acceptable level from what was previously refused.  The two-storey section is confined in front of the existing cottage and the proposed footprint would be a modest 255m² which is approximately 100m² greater than the existing but considerably reduced from the previous proposal. 

The proposed footprint of the building is in a similar position to the existing building and is therefore relatively discreet in its setting unlike the previously refused scheme which was repositioned further north in the site towards the Coastal National Park."

16.      On this basis the officer recommendation was to approve the application, and indeed it was approved as being an application which would not harm the character of the Green Zone. 

17.      However, the appellants' architectural adviser, MS Planning Limited, was able to measure the site and the proposed dwelling and the findings were that the approved dwelling was actually larger in size than the one which had been refused, both in terms of footprint and floor area.  The fact that the approved development was larger than the development which had been refused on the basis of its size was not disputed.  It was contended by Advocate Le Maistre that the correspondence showed that the whole basis of the Minister's decision to approve the new development was flawed, as from the officer's report he must have considered that he was dealing with a scheme which was smaller than the one which had been refused whereas in fact it was bigger.  This demonstrated that the approval was given on a false premise. 

18.      In response to this contention, Advocate White, for the Minister, submitted that the mistake about the footprint of the building was not material.  On his instructions apparent scale and massing were taken into account.  The Minister agreed that the new dwelling would be larger than the dwelling which had been refused, but the building was substantially moved on its own axis, and in that respect the additional size was not material.  He went on to contend that the decision taker took the decision on its merits.  This was not a case where there was a comparison with the previous decision, but he agreed that it was unfortunate that there was a reference in the case papers relating the decision under appeal to the decision which had been given previously. 

19.      Mrs Sugden, speaking in person as the applicant, accepted that there had been a mistake made by the Planning Department on the figures, but she thought the first plan should have been approved anyway.  She also thought there should not have been a comparison by the Minister of the proposal, now approved and subject to appeal, with the earlier one. 

20.      In reply Advocate Le Maistre urged us to the view that a comparison of the approach taken to the two different applications showed inconsistency on the part of the Minister.  They were of not dissimilar overall size, and yet one application had been refused and the other granted and in connection with the one granted, he contended that it was clear the decision had been taken on a mistaken understanding of fact. 

21.      This issue has concerned us.  We agree that there seems little doubt that wrong information was contained in the planning officer's report that went to the decision taker.  We note, however, in relation to the arguments about inconsistency that if the appeal were to be allowed on this ground and the matter remitted to the Minister, there would be further complaints thereafter about inconsistency whatever decision the Minister then took, because, in effect, there would be decisions going both ways in relation to applications of a similar size and mass - and indeed the proposed new development is larger than the one that was refused.  On balance, however, we have concluded that we accept Advocate White's submission that the mistake about footprint as contained in the report of the planning officer was not material to the decision.  It seems to us that it must have been obvious to the decision taker that size and mass were relevant factors to be considered, and we have already expressed the view that in our judgment, the Minister's acceptance of size and mass in relation to the proposed new building was not unreasonable.  In that context, the fact that the building has been moved around within the site is perhaps relevant.  Furthermore the Court has already said in other cases that the Minister must be careful to avoid a comparison between different applications in relation to the same site, especially if it results in him feeling pressured to grant an application simply because it is an improvement on one which had previously been refused.  The fact is that all applications must be considered afresh against relevant Island Plan policies.  One can well see how a planning officer, giving advice to the Minister, may well wish to compare applications himself so as to orientate himself in relation to the site and for the purposes of avoiding inconsistency, but it is undesirable in our judgment to see the direct comparisons as appeared in the instant case.  Reading those comparisons indeed takes us into the territory proposed by the applicant, namely that the Minister was wrong to have refused the first plan. 

22.      Finally, in this connection, we note that it is not suggested that the actual footprint as assessed in relation to the approved plan was wrongly assessed.  What is said to have been done wrongly was the comparison between the footprint on the approved plan and the footprint on the earlier plan, and the reason for the difference is that certain landscaping and other works not forming part of the building itself were taken into account in identifying the footprint in relation to the refused plan but were not taken into account in identifying the footprint in relation to the approved plan.  In other words, the decision taker was misled not as to the footprint of the approved plan but as to the comparison.  We think it would be wrong to conclude that as a result he did not have an accurate idea of the actual scale and mass of the building which he approved. 

23.      As to the second argument in relation to loss of amenity and loss of privacy and overlooking, the Court has had the benefit of the site visit and in particular had the benefit of seeing the application site from the property Ferncliff.  We are satisfied that there is already some overlooking from the existing property Tomona Cottage.  We have been told that the proposed new dwelling will be designed as an "upside down" house, with the living room upstairs.  Some parts of the developed building will be closer to Ferncliff than the existing property Tomona Cottage.  Nonetheless, it is clear that privacy is not an absolute right.  We do not think that the Minister can be criticised for concluding that there would not be such material overlooking and loss of privacy such as to justify a refusal of the application.  We are conscious that this is planning permission only, and that at the development stage it may be possible to introduce restrictions and/or design requirements which will reduce the impact of overlooking.  It may be that conditions will be introduced which ensure that there is appropriate screening.  In that connection, from our site visit, the Court was of the view that a relatively recent pruning of the hedge on the appellants' property had been achieved with a vigour with which it had not been approached in previous years.   We noted that some quite thick branches had been cut back, and we were of the view that, had they been allowed to continue in their growth, the loss of privacy would not have been so substantial.  We intend no criticism of the appellants in this respect, but comment in this way simply to emphasise that there may be scope for appropriate screening arrangements which will reduce the amount of overlooking and loss of privacy, and these can be considered at the time that the application on the reserved matters receive consideration. 

24.      The other matters on which we were addressed included a complaint about the design of the proposed new building, which was modern with a flat roof and substantial use of glass.  It was said that this was out of character with the area.  The adjoining properties were built in a more traditional way, and Tomona was not being replaced on a like for like basis.  It seems to us that the answer to that criticism is that the design is still at an early stage, as indeed the applicant urged upon us.  It may be that the final design will be rendered incorporate, granite or will involve the use of wooden cladding.  As she said, the Planning Department have rightly taken the view that the current design of Tomona has no intrinsic merit, and we add that from our perspective, our site visit showed that there is no grouping of adjacent properties such as would make a differently designed Tomona Cottage stand out like a sore thumb.  In those circumstances, we do not consider the Minister's decision to be unreasonable in relation to the question of design. 

25.      The appellants also contended before us that the proposed new development resulted in a larger domestic curtilage for the property Tomona Cottage.  That seems to us to be a factual contention on which it is difficult to express a view.  It is true that the Planning Department appears to have no fixed information as to where the domestic curtilage of the existing property stops.  It is possible that the domestic curtilage would be considered to end at an existing wall to the north of the building as it exists, and if that were so, then it would be right to conclude that the approved building would have the effect of extending the domestic curtilage.  By contrast however, the applicant told us that when she and her brother were children, growing up at Tomona, the stretch of grass, which forms part of Tomona's property and lies to the north of what has been described as a boundary wall, was an area where the children played, and indeed beyond that down the hill towards Bonne Nuit.  She told us that their family animals are buried further down the hillside.  In other words her contention was that the family always treated the property past the existing wall as part of the domestic garden. 

26.      We think it is impossible to resolve the appeal on this objection by the appellants, who have to show the Minister's decision was unreasonable in all the circumstances of the case.  They have to show that on the balance of probabilities, and unless they are able to establish where the domestic curtilage is, they are not in a position to establish that the new approved building goes beyond it.  In those circumstances the objection on the grounds of domestic curtilage fails. 

27.      We propose to deal with the remaining objections briefly.  There is a complaint that there was an inadequate level and detail of information.  We do not find that to be so, particularly in the circumstances that the Minister has reserved control over detailed design matters which will be taken into account at the time of considering the reserved matters application.  Secondly, we do not consider that the grant of planning permission falls outside Policy NE7 because we have little doubt from what we have seen that the applicant is right when she says that the existing property is not worthy of repair and that it would not make sense to plough money into it.  Policy NE7 is in these terms:-

"NE7 - Green Zone.  The areas designated as Green Zone on the 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 Minister for Planning and Environment 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 will be permitted only where the scale, location and design would not detract from, or unreasonably harm, the character of the area:

.....

3. replacement of a dwelling;

.....

For the avoidance of doubt:

a. There will be a presumption against the extension of domestic curtilages;

.....

Development proposals that are potentially permissible exceptions to the presumption against new development in the Green Zone will only be permitted where they do not seriously harm the character of the area."

28.      In his submissions, Advocate White contended that Policy NE7 allows reasonable harm to be done.  He emphasised that the Policy envisages the replacement of a dwelling.  It seems to us that these are matters which fall within the reasonable assessment of the Minister from time to time in relation to the different properties which are the subject of development applications.  We do not feel able to say that the Minister has acted unreasonably in connection with the objections made to the present application which he has approved. 

29.      As a matter of process, we do not think that approving this application amounts to a departure from the Green Zone Policy.  On the contrary, we consider that the approval fell within the terms of the Green Zone Policy, and in those circumstances there was no need for the application to have been referred to the Planning Applications Panel or to the Minister.  If the Minister considered it appropriate to delegate his powers so that the application could be considered by neither the Panel nor himself personally, that was an executive matter for him, and it is not open to the appellants to complain as matter of process that they have been deprived of an opportunity to put their objections orally at a public meeting.  Indeed the Minister is not required by the Law to hold a public meeting anyway, although it has been his policy to do so when proposals are considered by him. 

30.      As to the contention that the application site includes land that is outside the ownership of the applicant, that has not been established before us and in any event it appears to us to be a private law matter to be dealt with by the relevant owners of land.  It does not arise on the papers we have seen in this appeal. 

31.      Finally the objection that the building will generate an unacceptable level of traffic on a narrow rural lane is not an objection which in our judgment holds any attraction at all.  Once the work has been completed, the revised access into the application site will be further away from the appellants' property than it currently is, and that will be to the advantage of the appellants.  It is true that during the course of any building works, there is bound to be a level of disruption and a higher use of the narrow rural lane - but such disruption will be temporary, and is not a reason for refusal of permission, or for the overturning of the Minister's decision pursuant to Article 114 of the Law. 

32.      For all these reasons, the decision of the Minister stands and the appeal is refused. 

Authorities

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

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

Dixon-v-Minister for Planning [2012] JRC 237A.