Jersey Unreported Judgments

Planning - appeal against the decision of the Minister to list the property pursuant to Article 51.

[2013]JRC155

Royal Court

(Samedi)

2 August 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Marett-Crosby and Crill.

 

Mr D. J. Liddiard, Director of the Appellant.

Advocate G. G. P. White for the Minister.

judgment

the deputy bailiff:

1.        On 21^st December, 2012, the Minister for Planning and Environment made a decision to list the property Seymour Villa, Plat Douet Road, St. Saviour ("the property") pursuant to Article 51 of the Planning and Building (Jersey) Law 2002 ("the Law").  The Ministerial decision was confirmed by the signing of a document on 14^th January, 2013.  Formal notice of the listing was served on the appellant on 4^th February, 2013, and the appellant entered an appeal at the end of February against the Minister's decision, exercising the rights conferred upon it under Article 118 of the Law.  We are informed that this is the first occasion on which the Court has had to determine an appeal against a listing under Article 51. 

The Facts

2.        The property was identified as having some heritage value and considered worthy of inclusion on the register of buildings and sites of architectural, archaeological and historical importance in August 1992.  In July 1998, under the system of designation which had then been introduced, the property was designated as a Building of Local Interest.  The heritage status of the building was reviewed in July 2002 and confirmed as a Building of Local Interest by the Jersey Building Heritage sub-committee in that year.  More recently there has been a more comprehensive review of the historic environment protection regime, and the property's designation changed from a Building of Local Interest to a potential listed building, that change of designation taking place on 1^st January, 2011. 

3.        On or about 19^th August, 2011, the appellant purchased the property.  It had previously made enquiries of the Department of the Environment by way of legal search, the results of which described the property as "potential listed building - reference no SA0221".  That search also indicated that a planning application for the demolition of the existing buildings and construction of eight dwellings at the property was currently being processed by the Planning and Environment Department, but no decision had yet been made.  In fact the appellant made a planning application in January 2012 for six houses, and that was refused, under delegated powers, on 22^nd March.  The first and we think the most significant of the eight reasons for refusing planning permission was in these terms:-

"The proposed development would result in the unacceptable demolition of a building included on the Minister for Planning and Environment's register of buildings and sites of architectural, archaeological and historical importance in Jersey, as a potential listed building, contrary to policies GD2, HE1 and SP4 of the Island Plan 2011."

4.        This refusal of planning permission was the subject of a request for reconsideration, and the planning applications panel maintained the original decision to refuse planning permission on 21^st June, 2012.  No further appeal against the refusal of planning permission has been made. 

5.        In late 2010, the Minister had commenced a re-survey of all existing heritage assets.  This apparently involves over 3,500 sites.  The re-survey has been managed by the Jersey Heritage Trust, and in practice it has been undertaken by Aylin Orbasli Associates, a team of consultant historic building surveyors.  The property was surveyed on 26^th May, 2011, when the exterior only was surveyed, and again on 5^th October, 2011, when internal access to the property was secured.  A survey report was subsequently submitted to Jersey Heritage in February 2012 as part of a batch of data about many buildings.  Following receipt of that information, Jersey Heritage engaged with the Ministerial Listing Advisory Group which comprises a panel of local historians, architects and archaeologists.  That group considered the heritage value of the property at its meeting in April 2012, and in August 2012 the head of historic buildings at Jersey Heritage recommended that the site was of special architectural and historic interest, and as a consequence, it ought to be included in the Minister's list of Sites of Special Interest maintained under Article 51 of the Law.  It was recommended that the site be noted as a non-statutory grade 3.  As we understand it, listed sites are given a non-statutory grading in categories 1, 2, 3 or 4, the grading indicating in descending order the relative importance of the listing as compared with listed buildings in the other grades. 

6.        As a result of the Jersey Heritage report the Minister issued a notice of intent to list the property which was posted to the appellant on 17^th August, 2012.  This procedure followed that prescribed by Article 52 of the Law.  The Director of Policy, Projects and the Historic Environment, acting on delegated powers from the Minister, invited representations from the appellant in relation to the Minister's intent to include the property and place it on the List.  Attached to the letter from the Department was a schedule which set out why it was proposed to list the property.  The special interest was said to be architectural and historical, and the statement of significance made was that this was a "good example of a mid-late 19^th century detached town house with imposing ornamental exterior character surviving".  There then followed a description of the property, including in part a description of some interior features including an original mahogany dog-leg staircase, an attached plan showing its location and proposed restricted activities in relation to the property, finishing with the indication that the property would be given a potential listed building grade 3.  It is noted, in passing, that there has been substantial development of the adjoining area since the property was constructed. 

7.        The appellant made representations which were referred to Jersey Heritage for comment in October 2012, and Jersey Heritage prepared a supplementary report.  Although he is not required to do so under the 2002 Law, the Minister's policy, where material representations against a proposed listing have been received, is to consider those representations in public, thus affording those with an interest in the site the opportunity of addressing him directly.  Accordingly a public ministerial meeting was held on 30^th November, 2012.  Mr Liddiard and a Mr Tim Brint on behalf of the appellant appeared, and Mr Liddiard addressed the Minister orally.  The Minister deferred his decision in order that he might have a site visit.  This took place on 20^th December, 2012, and was attended by the Minister together with the head of Historic Buildings from Jersey Heritage, and the Director of Policy, Projects and the Historic Environment.  The appellant was represented by Mr Liddiard and Mr Brint.  There was no, or no substantial further oral submission invited or made.  Mr Liddiard says he was told not to make any further submissions.  Following that site visit, the Minister considered that the building ought to be listed and assigned a non-statutory grade 3, but determined that the only internal feature of special interest was the mahogany staircase.  The Director was instructed to revise the draft Ministerial decision to reflect that view, and the written document was so revised and presented to the Minister for signature on 14^th January, 2013. 

The Grounds of Appeal

8.        The right of appeal is conferred by Article 118(2) of the Law which is in these terms:-

"A person aggrieved by an inclusion to which this Article applies may within twenty-eight days of being notified of the inclusion, appeal to the Royal Court."

9.        By paragraph (1) of Article 118, the Article applies to the inclusion of a property within the list pursuant to Article 51(2). 

10.      The grounds of appeal under Article 118(2) are the same grounds as those which apply to an appeal against the grant or refusal of a planning permission namely that the action taken by or on behalf of the Minister was unreasonable having regard to all the circumstances of the case (Article 109 of the Law).  In these circumstances, the questions for the Court are well settled:-

(i)        was the process which led to the taking of the decision satisfactory?

(ii)       was the Minister's decision in the Court's view, allowing to the Minister a margin of appreciation, reasonable?

11.      That test was originally settled in the case of Island Development Committee-v-Fairview Farm Limited [1996] JLR 306, and elaborated by the Royal Court's decision in Token Limited-v-Planning and Environment Committee [2001] JLR 698, and has been restated many times.  A recent restatement is in Dixon-v-Minister for Planning and Environment [2012] JRC 237A. 

12.      We have applied those tests to the present appeal accordingly. 

The Appellant's Complaints

13.      In relation to issues of process, the appellant's complaints amount to these:-

(i)        The Minister has delayed unnecessarily in clarifying the listed status of the property.  The appellant asserts that it was informed that the assessment of the status of the property would be commenced in September 2011, but the formal notice to list it was only issued on 2nd February, 2013, nearly eighteen months later.  It is said that this was an unreasonable delay which acted as a planning blight on the future use of the property and caused the appellant severe financial detriment.  The Minister's response to that criticism is to say that a number of properties were being reassessed at this time, and that the listing status of the site is irrelevant to the proposal to develop it.  Accordingly it is said the delay was neither here nor there.  We make further comment on these contentions below. 

(ii)       It was said that it was impossible to make effective and meaningful written representations to the Minister in accordance with Article 52(3) of the Law where the information upon which the Minister was basing his decision was not complete, and was not made available to the appellant.  In this case, the appellant had not and indeed still has not been provided with the reports to Jersey Heritage Trust by the consultant surveyors Aylin Orbasli Associates, although it has been provided to the Minister.  The Minister's response to that criticism is that the report by the surveyors was an electronic rather than hard copy report and extended to a description of many properties.  It was said that the contents of the Orbasli Associates report were repeated in the schedule attached to the letter sent by the Director, Policy, Projects and the Historic Environment, to the appellant in August 2012.  We were informed in argument that a copy was not made available because it was a document generated electronically, and because the report extended to a great many properties other than the property subject to this appeal.  For our part, we are troubled by this procedure.  It appears to us that the appellant ought to have access to a copy of any of the relevant documentation in the case, and it is no answer to that criticism to indicate that the information in a document has been replicated in another.  The citizen ought to have the opportunity of verifying for himself that there has been a complete and accurate transposition of the relevant material, which, after all, is the material upon which the Minister made his decision.  We do not see the fact that it was an electronically produced report to be relevant.  It would be quite possible for the Minister to print the relevant sections from the document generated electronically.  Nor do we really agree with the objection that there are a number of different properties referred to in this report.  There may well be more than one property referred to in the report, but, assuming the document is relevant which it clearly is, we think that the appellant was entitled to see such parts of the document as were obviously relevant to it as a minimum, and there may be circumstances in which an appellant might be entitled to more, based on relevance to the contentions on appeal.  We therefore think the Minister has gone wrong procedurally in this respect.  We are setting aside the Minister's decision on other grounds, and so we do not have to consider whether this objection by the appellant is sufficient of itself for us to set the Minister's decision aside also, on procedural grounds. 

(iii)      It is said that the Minister went procedurally wrong by not affording the appellant a substantial enough opportunity to address him in person, whether at the public meeting or subsequently at a site visit.  It seems to us that the Minister may not have been obliged to permit address at a public meeting at all subject to the fairness of the process as a whole, but he certainly did not have that obligation at a second meeting, the purpose of which was to allow him to view the property.  We are satisfied that there is nothing in this particular objection. 

14.      As to substance, the appellant's objections really amounted to these:-

(i)        The change of listing status since 1992 had not been justified. 

(ii)       The Minister had failed to take into account planning policies in determining whether or not to list this particular property. 

(iii)      The Minister had failed to take into account the alterations to the property since it was first constructed, and in particular had failed to demonstrate that this was a property which fell within the category of having special characteristics justifying its inclusion in the list of Sites for Special Interests.  In that connection it was said that a "good example" is not good enough for the purposes of deciding to list a building.  

(iv)      Although there was reference to a non-statutory grading, the fact was that on the planning side the applications are all treated the same regardless of grading.  Reliance was placed on Policy HE1.  In the circumstances, it was unfair and/or there was a breach of the rights under Article 8 of the European Convention and Article 1, paragraph 1 of the First Protocol both of which were infringed by this particular listing.  This was particularly so as there was no public money available for the upkeep of listed properties in private ownership. 

(v)       These points were particularly significant given the large number of properties subject to potential listing. 

The Convention for the Protection of the Agricultural Heritage of Europe

15.      The Minister contends that under the terms of the Convention for the Protection of the Agricultural Heritage of Europe, extended to Jersey in 1988, the Minister is required to identify the Island's architectural heritage and to take statutory measures to protect it.  We have reviewed the Convention from the Council of Europe website as it was not in our bundle of papers, despite the Minister's reliance upon it.  We noted that it was ratified by the United Kingdom on 13^th November, 1987.  The instrument of ratification does indeed extend that ratification to the jurisdiction of Jersey.  In Benest-v-Le Maistre [1998] JLR 213 the Court of Appeal determined that where the Island was bound by an international convention or treaty that was not part of domestic law, the convention or treaty could be used to help resolve ambiguities in legislation, determine the principles upon which courts should exercise their discretion, or resolve uncertainties in the common law.  In a planning case - we leave over whether this is of more general application although even on judicial review one might expect a Minister to have regard to the agreement which the Island has made with other nations and it would be unreasonable to do otherwise - the Court has an area of discretion to exercise on an appeal and the convention was rightly brought to our attention.  The existence of an international obligation is something which the Court should take into account in assessing the reasonableness of a ministerial or States policy and the decision at which the Minister arrived which is under review. 

16.      Article 1 of this Convention is, in these terms:-

"For the purposes of this Convention, the expression "architectural heritage" shall be considered to comprise the following permanent properties:-

(i)        Monuments:- All buildings and structures of conspicuous historical, archaeological, artistic, scientific, social or technical interest, including their fixtures and fittings;

(ii)       Groups of Buildings:- Homogenous groups of urban or rural buildings conspicuous for their historical, archaeological, artistic, scientific, social or technical interest which are sufficiently coherent to form topographically definable units;

(iii)      Sites:- The combined works of man and nature being areas which are partially built upon and sufficiently distinctive and homogenous to be topographically definable and are of conspicuous historical, archaeological, artistic, scientific, social or technical interest".

17.      The various undertakings which each State Party agrees under this Convention are related to the expression "architectural heritage".  We have not been addressed on the detail of the Convention, but we simply say for the purposes of the present judgment that, before accepting that it was critical to what we have to decide, we would want to receive detailed submissions as to the extent to which this Convention could reasonably be said to contemplate a listing exercise of the kind which has resulted in the listing of the property subject to this appeal.  It clearly does not form part of any group of buildings, nor is it obviously a site, partially built upon and sufficiently distinctive and homogenous to be topographically definable and of conspicuous interest in the relevant categories.  It would seem, however, that although it might be hard to describe this particular property as a "monument", the broad language of the Convention is probably not inconsistent with the listing of this structure, if it is one to which society attributes any value in keeping with the qualitative criteria set out in Article 1.  A broad summary of our approach is that, in the absence of detailed argument, we treat the listing of the property as not inconsistent with the Convention but not required by it. 

18.      Before leaving the Convention though, it is it interesting to note Article 6 which is in these terms:-

"Each Party undertakes:-

(i) To provide financial support by the public authorities for maintaining and restoring the architectural heritage on its territory, in accordance with the national, regional and local competence and within the limitations of the budgets available;

(ii) To resort, if necessary, to fiscal measures to facilitate the conservation of this heritage;

(iii) To encourage private initiatives for maintaining and restoring the architectural heritage."

19.      It is clear that the second and third paragraphs of Article 6 provide the ways and means of financial support other than a direct provision by the public authority in question.  The explanatory note attached to the Convention indicates that measures might include the granting to private owners of special concessions in respect of property taxes or death duties, or they might extend specifically favourable tax arrangements to enterprises and associations.  In expanding the role of private citizens and associations, the explanatory note indicates that the burden of conserving an ever more extensive heritage should be shared by the community as a whole as it cannot be borne by public authorities alone. 

The Criteria for Listing

20.      The Minister's policy in relation to the listing process has been published by the Environment Department.  The principles which are to be applied for listing buildings and places are as follows:-

"Principles for Listing Buildings and Places

Listed buildings or listed places are defined as buildings and places of "public importance".  For a building or place to be listed the following criteria will be used to assess each case on its merits.  There will be a logical assessment made which will test whether the standard is met. 

The issues taken into account for listed buildings will include:-

The age of the building or place. 

The history of the site and why is this of interest. 

The type of building and how unusual or common it is. 

An assessment of all aspects of the physical building leading to an appreciation of its architectural interest. 

An assessment of all aspects of the place including appreciating its archaeological interest. 

Important historical associations. 

An assessment of the landscape/setting of the building or place and its impact on interest. 

An assessment of whether the building or place is representative of its type, age, style and quality. 

The building's special character and its value within different building types illustrating key phases of architectural or cultural history. 

Authenticity and integrity will also be a factor.  This can be defined as a building's closeness to the original built form and fabric.  This will add value and be reflected in the statement of significance. 

On a small island where land is at a premium the extent to which buildings survive in their original form is limited.  Incremental change through many generations can be very positive.  In making a judgment as to the historic merit and character of buildings it is essential to assess whether that change has been detrimental or is now part of its interest. 

... "

21.      As to the different grades, the guidance issued by the Minister says this:-

"What do the different grades mean?

Each listed building or place will be allocated a non-statutory grade.  The purpose of allocating each building or place a non-statutory grade is to help determine the significance of the heritage asset to the Island.  It will also help to inform the extent to which proposed changes to the site will be controlled and help inform decisions about its future development."

22.      Listed buildings or places at grade 3 are described as follows:-

"Buildings and places of special public and heritage interest to Jersey, being important, good quality examples of a particular historical period, architectural style, building type, or archaeological site;  but with alternations that reduce the special interest and/or particular elements worthy of listing."

23.      By comparison a listed building or place at grade 4 is described as follows:-

"Buildings and places of special public and heritage interest to Jersey, being good examples of a particular historical period, architectural style or building type; but defined particularly for their exterior characteristics and contribution to townscape, landscape or group value."

24.      It is to be noted that there is no appeal provided under the Law against a non-statutory grading within the class of listed building.  Nonetheless, the Minister's guidance indicates that the non-statutory grading is potentially important in the way in which the Minister will approve prospective development.  This is demonstrated by other guidance issued by the Minister.  Under the heading "New heritage protection system", the Minister's guidance explains what changes were introduced in January 2011.  In relation to buildings which had been designated as buildings of local interest, the future control would apply to work to the interior and exterior of the building that would affect its special interest, and would require permission, if the building were at grade 3; but if at grade 4, there would be no change and future control would be exercised only over the development of the exterior of the building such as would affect its special interest.  There is therefore an important distinction between grade 3 and grade 4 in listing of a building previously designated as a building of local interest insofar as the practical consequences for development in the future are concerned.  The grading, against which there is no appeal, affects the development potential of the listed property and, it seems to us, could therefore be a relevant matter for consideration on any appeal against a planning permission or refusal. 

The Minister's Contentions

25.      In summary the Minister's position can be set out in this way.  Under Article 51 of the Law, the Minister is obliged to include a site on a list of sites of special interest once he is satisfied of the public importance of that site by reason of any of the matters set out in the Article.  The Minister is obliged to make proper enquiry into matters which are relevant to the decision he has to make, and it is contended he did so in this case with a comprehensive enquiry before he reached his decision based upon the advice offered by Jersey Heritage, the representations of the appellant and the responses by Jersey Heritage and the Environment Department to those responses.  In addition he took into account the written and oral representations made at the public hearing on 30^th November, and made a personal visit to the site. 

26.      The criteria for taking a decision are set out in the guidance notes published by the Department.  The Minister is said to be limited to the matters which he can take into account for the purposes of a listing decision as these must relate to the special interest of the proposed site of special interest.  The condition of the building, the cost of putting it in a proper state of repair and the availability of any grants of public money to assist the owner in doing so are not relevant considerations for a listing decision - nor, the Minister submits, are planning considerations in relation to the potential development of the property.  Thus the Minister contends it is of no relevance that from a planning perspective the property might be suitably located for the purposes of development and that there is a housing need which requires to be met.  The listing provisions are said to be quite independent of the planning and development provisions in the Law and although there may be planning consequences of a decision to list the property, these should not be taken into account for the purposes of listing; nor should the Court take them into account for the purposes of any appeal.  The intellectual approach to listing ought, in the Minister's submission, to ring-fence those parts of the Law dealing with listing from the remaining provisions in the legislation. 

27.      As far as human rights arguments are concerned, the Minister accepts that a listing decision can constitute an interference with the property rights contained in Article 1 of Protocol 1 of the European Convention.  However he contends the decision is proportionate, and is made in the general interest, which has been afforded a wide definition, and encompasses measures such as planning controls enacted for protecting the environment.  In summary the Minister's position is that he has followed a correct process, has taken into account the matters listed in the criteria which he has published, received proper independent advice and made a decision which ought to be respected, even if the Court disagrees with it, as being a decision within the band of reasonableness.  This requires the appeal to fail. 

Discussion

28.      The ground of appeal conferred by Article 109(1) of the Law is that the action taken by or on behalf of the Minister was unreasonable having regard to all the circumstances of the case.  An early question therefore is what "all the circumstances" means, and whether the Court should construe Article 109(1) in relation to a listing decision by limiting the circumstances into which enquiry was made.  It is obvious that the Court should look at the same circumstances as the Minister should look at - put another way, if the Minister does not look at circumstances which the Court considers ought to be looked at, the Minister's decision is likely to be found unreasonable.  In the context of this case therefore, the question for us is whether the criteria to which the Minister has regard in taking a listing decision are sufficient.  More specifically, it seems to us we have to consider whether the Minister was right to exclude consideration as to the current state of repair of the buildings forming part of the property, and the cost of repairing them.  It seems to us we also have to consider whether the Minister was right to exclude the planning consequences of a decision to list. 

29.      The starting point in our consideration is naturally Article 51 of the Law, the relevant parts of which are in these terms:-

"(1)     The Minister shall maintain a list, called the list of Sites of Special Interest. 

(2)       The Minister shall include on the list each building or place that the Minister is satisfied has public importance by reason of:-

(a)       its special zoological, ecological, botanical or geological interest; or

(b)       the special archaeological, architectural, artistic, historical, scientific or traditional interest that attaches to the building or place. 

(3)       On the list the Minister shall, in respect of each site of special interest;

(a)       specify the site's special interest;

(b)       describe the site either in words or by reference to a plan, or both, with sufficient particularity to enable it to be easily identified;

(c)       if the site relates to the habitat of a wild creature or a plant, specify the type of habitat;  and

(d)       specify any activity referred to in Article 55(1) which may be undertaken on the site without the Minister's permission."

30.    The remaining parts of Article 51 place obligations on the Minister to make the list available for inspection by the public, to remove a building from the list if satisfied that its special interest has ceased to exist, and to serve a notice of the Minister's intention to list before doing so.  There are further process requirements placed on the Minister by Article 52.  Article 53 contains arrangements for provisional listing, and Article 54 enables the Minister to exercise control over certain operations in relation to a listed site, even if the operations do not in law amount to development.  By Article 55 restrictions are introduced in relation to sites of special interest.  These are not relevant for the case before us.  However Article 56 will need consideration as it touches on a matter raised by the appellant.  It is in these terms:-

"56. Minister may make funds available in respect of sites of special interest etc.

(1)       The Minister may by way of grant or loan make funds available to the owner or occupier of a site of special interest or any other site or building the Minister is satisfied it is in the public interest to preserve towards any cost necessary to protect, repair or restore the site or building. 

(2)       The Minister may make funds available on such terms as the Minister determines."

31.    In the context of Article 56, it is common ground that there are currently no schemes which provide grants or loans to be made available to an owner or occupier of a site of special interest to assist in the costs of protection, repair or restoration of the site or the building.  The Minister has indicated that he hopes that such a scheme might be introduced in 2014. 

32.    It is clear from Article 51(1) that there is a positive obligation on the Minister to maintain a list of sites of special interest.  Furthermore, by paragraph 2, the Minister is obliged to include on the list any building or place which he is satisfied has public importance by reason of the matters set out in that paragraph.  Once he is satisfied of the public importance of a particular site such that it is to be listed, he is required to specify the special interest on the list, and describe the site with sufficient particularity to enable it to be identified.  These are all mandatory requirements.  It is true that Article 51 does not in terms direct the Minister to consider any other questions than the special zoological, ecological, botanical, geological, archaeological, architectural, artistic, historical, scientific or traditional interest that attaches to the building or place.  If the criteria which the Minister has published are right, then the condition of the building, the cost of repair, the absence of public funds to carry out the repairs, and the clog on any development of the building by reference to planning considerations are all irrelevant matters.  Advocate White submitted that they are irrelevant and indeed that they were political matters which ought not to concern the Court. 

33.    We do not think that they should be considered as irrelevant and accordingly the Minister has not had regard to all the material circumstances.  Our reasons for reaching that conclusion are as follows. 

34.     We agree with the submission of Advocate White that the Law needs to be construed as a whole.  It is a cohesive piece of legislation and a strict bifurcation of the listing provisions from the other provisions in the legislation would be inconsistent with this overall approach.  The preamble to the Law supports the view that we should look at the legislation in the round.  It is in these terms:-

"A Law to provide the means to establish a plan for the sustainable development of land and control development in accordance with that plan, to prescribe the functional requirements of buildings and to provide the means to enforce those requirements, to provide the means to protect, enhance, conserve and to use wisely the natural beauties, natural resources and biodiversity of Jersey and to preserve and improve Jersey's general amenities, to confer powers to acquire land for the purposes of the law and to make other provisions in similar respects." 

35.    In our view, the provisions for listing sites of special interest should be construed in accordance with the overall objectives of the legislation as set out in the preamble.  Those objectives are set out conjunctively and do not necessarily all point in the same direction and as a result there may be some balancing which is required from time to time of the different objectives which are engaged.  Nonetheless, they set the framework for an understanding of the Law.  It is interesting to note that the Law is divided into different parts.  Part 2 deals with the Island Plan, part 3 with planning control, part 4 with building controls, part 5 with enforcement of development controls and part 6, which deals inter alia with the listing provisions is entitled "Additional Controls".  The different parts of the Law are therefore dealing with different mechanisms for control, but all for the purposes set out in the preamble.  In our judgment, there is every reason to approach the Law as a cohesive whole. 

36.    This approach is supported by looking at the enforcement provisions.  The Minister has power under Article 84 of the Law to require the repair of ruinous or dilapidated buildings.  Article 84 is in these terms:-

"(1)     If it appears to the Minister that a building is in a ruinous or dilapidated condition the Minister may serve a notice requiring the building or a specified part of it be demolished, repaired, decorated or otherwise improved and that any resulting rubbish be removed."

Such a notice is served on the owner of the land on which the building is situated or displayed in a conspicuous place on or near the building.  The provisions of Article 84 are capable of being used by the Minister in relation to both listed buildings and other buildings.  Nonetheless, one might reasonably anticipate that a repair notice, as opposed to a demolition or make safe notice may be more likely in the context of a listed building.  When we put the question to him in the course of argument, Advocate White came close to accepting that the cost of repair would be a material consideration for the Minister in determining whether to issue a notice under Article 84.  Even if he did not in terms accept it, we think that it is clear that the cost of repair would be a material consideration, and even if it is unclear from the drafting of Article 84 itself, the effect of Article 1 of Protocol 1 to the European Convention on Human Rights is such that it would be disproportionate for a notice to be served where the cost of repair made the issue of repair impractical. 

37.    It seems very odd to us therefore that the financial considerations relevant to a repair of the building should be taken into account under Article 84, but apparently not taken into account in relation to a listing decision under Article 51.  Put another way, there seems little purpose in listing a building if it is falling down when the enforcement mechanisms for ensuring that it continues to stand, namely Article 84, would require that the cost of repair is taken into account, thus perhaps preventing any valid service of a repair enforcement notice. 

38.    By contrast, there will be buildings which one might think would almost certainly be listed as sites of special interest even though they are in considerable disrepair.  Grosnez Castle might be one such example.  No one would sensibly contend that the Minister could validly issue an enforcement notice under Article 84 for the repair or reconstruction of Grosnez Castle, but equally it would not be seriously contended that Grosnez Castle ought not to be listed.  It seems to us that these examples only go to demonstrate that in some cases the possibility of an enforcement notice by way of repair may be relevant, but in other cases it will not.  Another way of putting that is that financial considerations are capable of being relevant to the listing process although they will not necessarily be the dominant consideration. 

39.    Similar considerations apply in relation to the condition of the property.  One can imagine, for example, that there may be farms in the Island where, housed in an outbuilding which is dilapidated and dangerous, is to be found a fifteenth century bread oven.  Without doubt, the bread oven is capable of falling within the terms of Article 51, because it would have a special architectural historical and traditional interest.  Nonetheless, it cannot sensibly stand on its own, and the building which houses it is in such a state of repair that it constitutes a danger to people passing by it.  It seems to us that in considering a listing decision the Minister is bound to have regard in those circumstances to the state or condition of the building in which the bread oven is housed. 

40.    In this present case, there is evidence that the appellant has provided which suggests that the building at the property has now reached the end of its natural life.  It may well once have had architectural quality of public importance, and it may now have a historical interest.  However, to disregard evidence as to its current state of repair seems to us to take one towards a position which is incompatible with the objectives of the legislation as recited in the preamble.  We consider that the Minister should have included as material considerations among others for a listing decision the actual condition of the building and the likely cost of repair. 

41.    It was contended by Advocate White that planning control is quite a different matter from listing, and that the Court should disregard any planning consequences of the listing decision.  In order to assess that submission, it seems to us to be worth looking first at what the planning consequences are likely to be. 

42.    One of the planning consequences of listing is the applicability of Policy HE1 of the Island Plan 2011, which is in these terms:-

"Protecting listed buildings and places

There will be a presumption in favour of the preservation of the architectural and historic character and integrity of listed buildings and places, and their settings.  Proposals which do not preserve or enhance the special or particular interest of a listed building or place and their settings will not be approved.  Permission will not be granted for:-

(i)        The total or partial demolition of a listed building;

(ii)       The removal of historic fabric, which might include roofing materials, elevational treatments (such as render or stucco) and their replacement with modern alternatives;

(iii)      The addition of external items such as satellite dishes, antennae, signs, solar panels and roof lights, which would adversely affect the special interest or character of a listed building or place, and its setting;

(iv)      Extensions, alterations and changes which would adversely affect the architectural or historic interest or character of a listed building or place, and its setting;

(v)       In those exceptional cases where there is a loss of the historic fabric of a listed building or place, the Minister will ensure that the recording of that fabric to be lost is undertaken, as appropriate;

(vi)      Applications for proposals affecting listed buildings and places which do not provide sufficient information and detail to enable the likely impact of proposals to be considered, understood and evaluated, will be refused."

43.    It is obvious therefore that listing has a potentially significant effect on the planning process.  It is to be noted that Policy HE1 makes no distinction between the different non-statutory grades of listed buildings.  It is also to be remembered that the Law contains provision for third party appeals.  Although Article 19 of the Law allows the Minister to grant a permission which is contrary to the provisions of the Island Plan, he is obliged not to do so unless satisfied that there is a sufficient justification for doing so.  It is clear from Policy HE1 that the total or partial demolition of a listed building is only to take place in "exceptional cases".  The impact of listing where it does not take into account the then current state of the building or the cost of repair or reinstatement is capable of taking the owner of the building into territory where he has a severely uphill battle to persuade the Minister to grant a planning permission which involves demolition of a dilapidated structure, and even if he were to be successful in that respect, he then faces the uncertainty of third party appeals where the adjoining owners, who might well not be in favour of the development, assert vigorously that the granting of permission was contrary to Policy HE1 which is so clearly intended to provide protection for listed buildings. 

44.    It is no answer to this to say that the different non-statutory grades permit a different approach.  The Planning Policy contains no reference to non-statutory grades.  We add that while we were generally unimpressed with the argument that the Minister has apparently some 3,500 provisionally listed buildings to consider, the prospect of uncertainty as to the planning consequences of listing decisions taken without regard to those consequences and the likelihood of resulting appeals on a very wide scale persuades us that the Minister's policy of excluding consideration of these factors which are extrinsic to the special interest of the property is likely to cause substantial disruption to the planning system.  For that practical reason also we consider that the Minister's submission that the listing process needs to be bifurcated from the other provisions in the Law is not one which should be accepted, not as a matter of politics but as a matter of construction of what was intended by the States when adopting the Law. 

45.    Finally in this connection, we would like to say something about the absence of any state funding for the carrying out of repairs and for preservation of listed properties.  The arrangements in Article 56 of the Law permissively entitle the Minister to make grants or other funds available on terms to enable repairs to be carried out by a property owner.  There is no scheme currently in operation.  The result is that if the Minister does not take into account the current condition of the building or the cost of repair, the practical consequence given policy HE1 is that in relation to the listed building there may be a planning blight which goes beyond what one might call the ordinary planning consequences with which all property owners have to live as a result of the existence of the Planning Laws at all.  In effect, the community has decided that particular properties should be protected as they have a public importance.  That is all very well for as long as the community does not at the same time visit upon the property owner actual loss imposed because it is considered to be in the interests of the community that the listing take place.  In this connection, there seems to us to be a difference of emphasis in the listing process between properties which are in public ownership and those which are in private ownership, because financial considerations may be less relevant in the context of buildings in public ownership than they are in the context of privately owned buildings.  Again, this seems to us to justify the conclusion that financial considerations are capable of being relevant to a listing decision, just as they are capable of being relevant in relation to other planning or development controls which are contained in the Law.  The Law should be treated as a cohesive whole. 

46.    In argument before us, Mr Liddiard, on behalf of the appellant, disassociated himself from the view that financial factors should be taken into account by the Minister when he made a decision to list a particular building.  For the reasons we have given, we do not share that view.  However we now go on to consider the submission of Mr Liddiard that the Minister should have taken into account the need to provide work for the building industry, the Island housing needs, and other Island policies.  It was in this context that he made the submission that a holistic view needs to be taken. 

47.    There is in our view undoubtedly some logic in this approach but in our judgment those considerations are political and not legal matters.  Taken to absurd lengths, a Ministerial policy, for example, to list every property in the Island on the ground that it had some historical or traditional significance, even if the history or tradition were relatively short-lived would undoubtedly come into a serious clash with other Island policies.  Nonetheless we have examined the listing criteria by reference to the Law rather than to political considerations.  The purpose of listing is to recognise the public importance in the Island's built heritage.  When introducing the historic buildings register, this comment was made by then Senator Querée as President of the Planning and Environment Committee in January 1999:-

"William Morris, founder of the Society for the Protection of Ancient Buildings, said that the great buildings of the past "do not belong to us only; they have belonged to our forefathers and will belong to our descendants unless we play them false.  They are not in any sense our property, to do with as we like.  We are only trustees for those who come after us."

Jersey does not take enough pride in its built heritage.  The Planning and Environment Committee has embarked upon a programme of changing attitudes before it is too late; before the wonderfully rich stock of idiosyncratic buildings which help to make Jersey the beautiful place that it is, is lost forever. 

No, we don't believe that we should save everything, merely because it is old.  That would be neither desirable nor practically possible.  The buildings which should be saved are valuable because they have special archaeological, architectural, historical or cultural interest. 

The Committee's register of Jersey's historic buildings lists those which are important.  Being on the register does not mean that these buildings cannot be changed.  It means that pressure for change and modernisation will be carefully managed in order that the essential character of our Island is preserved for our descendants to enjoy.  In providing this protection we will be properly carrying out our responsibilities to future generations.  We will simultaneously strive for the highest quality in all new development in the Island and in doing so will help to enhance that unique "look" which makes Jersey special." 

Of course that foreword was written fourteen years ago and predates the current reassessment of buildings which have been provisionally listed, but the sentiments which are set out emphasise why the contentions of the appellant in this respect, while conceivably relevant if the policy were taken to absurd limits, in our view rather miss the purpose of the whole listing process. 

49.    We think that the guidance published by the Department which is referenced KP1/19 in the documents before us, is too prescriptive in the issues which should be taken into account by the Minister in considering whether buildings should be listed.  We agree the bullet point criteria which the guidance note sets out are reasonable having regard to the statutory powers to list property, but we do not think that those criteria go far enough.  In our view, the Minister should also take into account, when deciding whether or not to list a building or place, the overall planning consequences of listing.  This does not mean that a building of special public importance will be liable not to be listed simply because, for example, it is in a prime development area.  All it does mean is that the planning consequences of listing are a factor to be taken into account, with all the other factors, in reaching a conclusion as to whether the listing should take place.  In our judgment, the fact that land is in short supply in this Island absolutely justifies this approach being taken, to ensure that the Law is taken holistically and that the objectives set out in the preamble to the Law are achieved. 

50.    We recognise that the Minister will be considering carefully the consequences of this judgment.  In particular, we recognise that the arguments around whether listing should be bifurcated from the planning process raise difficult considerations.  One of the particular difficulties lies in Policy HE1, which seems to us to be drafted in very inflexible terms and which does not even match the guidance in relation to non-statutory grading which the Minister's Department has issued.  The fact is that the legislature has included within the Law both the environment considerations relating to listing and the planning considerations relating to the proper use of land, and for as long as that union has been made, it is likely that a court will construe and apply the Law as a conclusive whole.  It becomes even more likely when the Island Plan policies in relation to listed buildings appear to give very little flexibility.  For as long as all the considerations are currently as they are, as reflected in this judgment, we think that it is unreasonable for the Minister to ignore material planning considerations when exercising the listing powers, knowing that, having exercised them, his hands are close to being tied in relation to planning matters.  It is essentially for that reason that we consider the correct construction of the Law requires the Minister, when considering listing issues, to include all material planning considerations in his assessment of the listing result.  Another way of putting that is that the public importance attached to listing must equally take into account the public importance attached to planning.  Where the balance lies in relation to each individual property will of course vary from case to case, but it would be wrong in our judgment to determine listing, and very largely predetermine planning, by having regard only to the special characteristics of the site as determined in accordance with the current listing criteria.  This case demonstrates that difficulty.  Although there were other grounds for refusal, it seems to us that the refusal of planning permission in March 2012 was subsequently based upon the status of the building which at that stage was only potentially listed.  The refusal of permission was exacerbated by the delay mentioned at paragraph 13(a) above in reaching a concluded listing decision. 

51.    We therefore decide that this appeal succeeds, and we quash the decision of the Minister to list the property.  We remit the matter to the Minister for reconsideration, so that he can take into account the matters to which we have referred as being matters he should take into account, as well as the matters which he has properly taken into account.  Whether that results in the same or a different conclusion will be a matter for the Minister, and given that it is not impossible that the Court may be asked to sit again in that respect, we do not intend to add any further comments on the merits of listing.  However, we consider the Minister ought to take a fresh listing decision, one way or the other, as soon as possible as the present uncertainty represents an unfair planning blight on the property.  In doing so, he will need to evaluate how special the character of the building is when compared with the other criteria to which we have been referred and which he should also take into account. 

Authorities

Planning and Building (Jersey) Law 2002.

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 and Environment [2012] JRC 237A.

Benest-v-Le Maistre [1998] JLR 213.

Island Plan 2011.