Sir Michael Birt, Kt., Bailiff, and Jurats Fisher and Crill.
John Keith Haden
The Minister for Planning and Environment
The Appellant appeared in person.
Mr D. Mills appeared for the Respondent.
1. This is a third party appeal against a decision of the respondent ("the Minister") to grant planning permission to Mr and Mrs McLaughlin ("the applicants") for the construction of a double garage on part of the premises known as The Farm, La Vallée des Vaux, St. Helier ("the property"). The property lies immediately to the east of the road in Vallée des Vaux, not far north of the Waitrose supermarket.
2. The site of the proposed garage is a parking area forming part of the property. The main building of the property ("the Main Building") lies immediately to the south of the car parking area. It was formerly a farm with barns but has now been converted into three residential units. The main building is of a traditional style, largely constructed in granite with a slate roof. It was a Building of Local Interest ("BLI") under the old Island Plan and has been identified as a potential listed building (and therefore equivalent to a Site of Special Interest) under the current Island Plan.
3. A granite roadside wall runs north from the northern gable of the main building. This forms the western edge of the car parking area. There used to be an outbuilding which was built against the roadside wall. It had a pitched roof which was higher in the northern part of the building than in the area immediately adjacent to the northern gable of the main building.
4. The outbuilding was demolished in two phases. The northern part appears to have been demolished in late 2007/early 2008 and the entire outbuilding had been demolished by 2009.
5. On 17th November, 2008, permission was granted to Mourier Developments Limited to "demolish outbuildings. Construct 4 car garage block, rearrangement of gardens and vehicular parking." The proposed four car garage was to be constructed broadly in the location where the old outbuilding had been, although we shall consider this aspect in more detail shortly.
6. Although the demolition and the rearrangement of gardens and vehicular parking referred to in the planning permission has been effected, the four car garage has not been built. All the car parking is therefore external at present.
7. The applicants are the owners of Unit 1 at the property. They have the right, inter alia, to two parking spaces which, very broadly speaking, form the northern two spaces of what would have been the four car garage had it been built. They have now applied for permission to build a double garage to incorporate those two spaces.
8. The application was submitted on 13th December, 2012. Because the Department considered the application to amount to a revision of the 2008 permission the application was described as follows:-
"Demolish outbuildings. Construct four car garage block. Rearrangement of gardens and vehicular parking. REVISED PLANS: reduce approved garage to double garage."
9. The application was advertised in the Jersey Evening Post and a notice was put up on the site. The Department's historic environment team was consulted on the application as the site included a potentially listed building, namely the main building. The team concluded that the proposals would not have any adverse impact on the character or setting of the listed building.
10. There were two letters of objection, one of which was from the appellant. He objected on the ground that the development would adversely affect his residence Pomona Villa, which is situated directly opposite the proposed garage on the other side of the road. He said that the garage, if constructed, would overshadow his property, blocking out sunshine to his terrace and reducing sunlight to his property as a whole. He strongly objected to the application. The other objection was from his neighbour who commented that the drawings could not be accessed. It turned out that the proposed site plan and drawings had mistakenly not been published on the website of the Planning Department, but they were subsequently published. No further objection was received from the owner of that property.
11. The relevant planning officer prepared a report dated 13th February, 2013, recommending approval. She referred to the relevant Planning Policy considerations, to the objections and to the general background. She then summarised her recommendation as follows:-
"The proposed pitched roof traditional garage building located within the existing parking bays, providing cover to bays 7 and 8, for the occupiers of Unit 1 is considered to be in keeping with the scale and design of the existing development and is not considered to compromise the setting or have an adverse impact on the character of the potential Listed Building.
Furthermore, the height, scale and location of the garage is not considered to result in an overbearing impact or unacceptable loss of light to the neighbouring properties.
Accordingly, the proposals are considered [to] meet the requirements of Policies GD1, GD7, BE3 and HE1 of the Jersey Island Plan 2011."
She summarised her reasons for recommending approval as follows:-
"The proposed development is considered to be acceptable having considered all of the material considerations raised. In particular, the development has been assessed against Policy GD1 of the 2011 Island Plan, which requires that proposals do not seriously harm the Island's natural and historic environment and contributes to a more sustainable form and pattern of development. In this case, the proposed garage is regarded as acceptable because it is of an appropriate scale and design and is located within the domestic curtilage of the site.
In addition, the representations raised to the scheme on the grounds of loss of light and overbearing impact have been assessed. However, it is considered that the proposal accords with the terms of Policy GD1 of the 2011 Island Plan, in that it does not have an unreasonable impact on neighbouring uses. Both Pomona Villa and Wittsende are in an elevated position located at a significant distance, where the majority of the living space and external terraces are at a higher level than the proposed garage.
The site is located within the Built-Up Area where there is a greater expectation of proximity to new developments."
12. The application was approved under delegated authority because there were fewer than three objections. It is against that decision that the appellant appeals. Following a direction of the Master the appeal has been heard under the modified procedure. With the agreement of the parties the Court attended upon site in the presence of the appellant and Mr Mills together with an officer from the Planning Department. The Court inspected the site itself and was also invited onto the terrace of the appellant's property. The visit was useful in enabling the Court better to appreciate the submissions of the parties.
13. The affidavit of Mr Andrew Townsend, principal planner of planning and building services refers to a number of planning policies which fell to be considered in relation to this application. However, it was clear from the submissions to us that nothing turns on most of them. Therefore we propose to refer specifically only to those which are particularly significant for the purposes of this appeal.
14. The site lies within the built-up area of the 2011 Island Plan. It also forms part of the area designated as the "Town of St. Helier". Under Policy SP1 (Spatial Strategy), development is to be concentrated within the built-up area and, in particular, within the Town of St Helier. The presumption therefore is in favour of development.
15. Policy GD1 deals with general development considerations and the parts of that Policy of particular relevance for this application are as follows:-
"Development proposals will not be permitted unless the following criteria are met such that the proposed development;
(2)(c) will not unreasonably affect the character and amenity of the area, having specific regard to the character of the coast and countryside (Coastal National Park and Green Zone) and the built environment.
(3) does not seriously harm the amenities of neighbouring uses and should, in particular;
(a) not unreasonably affect the level of privacy to buildings and land that owners and occupiers might expect to enjoy;
(b) not unreasonably affect the level of light to buildings and land that owners and occupiers might expect to enjoy ..."
16. The site is also part of the Green Backdrop Zone in that it adjoins the Green Zone. In that connection Policy BE3 (Green Backdrop Zone) is relevant which provides:-
"Within the Green Backdrop Zone, development will only be permitted where;
1. The landscape remains the dominant element in the scene and where the proposed development is not visually prominent or obtrusive in the landscape setting; ..."
17. Article 109 of the Planning and Building (Jersey) Law 2002 provides that an appeal against a decision of the Minister lies only on the ground that the decision was unreasonable having regard to all the circumstances of the case.
18. Assistance with what constitutes an unreasonable decision is to be found in the well-known passage of the judgment of Bailhache B in Token-v-Minister for Planning and Environment  JLR 698 at paragraph 9:-
"The Solicitor General submitted that the decision in Fairview Farm did not entitle the court to find that the Committee's decision was reasonable but quash it because the court had reached an equally reasonable but different decision. We agree. The court might think that a Committee's decision is mistaken, but that does not of itself entitle the court to substitute its own decision. The court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene. There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken. To put it another way, there is a margin of appreciation before a decision which the court thinks to be mistaken becomes so wrong that it is, in the view of the court, unreasonable."
In other words, the Court cannot overturn a decision merely because, if it had been the Minister, it would not have reached that particular decision. It has to conclude that the Minister's decision is erroneous to the extent that it can be categorised as unreasonable.
19. The appellant has made it clear that he does not completely oppose the construction of a garage on the proposed site. But he has put forward a number of arguments as to why he considers the Minister's decision to allow this particular proposal to be unreasonable.
20. First, he is concerned about "add ons" to the proposed garage and the potential for a later application for change to residential use. He points out that the pitched roof is far higher than is necessary for a garage and that there are windows in the proposed roof.
21. We fully understand the applicant's concern on this aspect. But it is not a valid ground for rejecting an application that there might potentially, in the future, be further applications either to extend the proposed building or to change its use. Concern about a future application cannot be a valid reason to refuse something that at present accords with planning policies. Any such future application would have to be considered on its merits at the time and in this connection, it is of note that the Minister has on two occasions (in 2007 and 2008), refused permission for the construction of a dwelling house on the site of the proposed garage.
22. Secondly, he submits that the decision is unreasonable because the garage will have a serious impact on the light to and view from his property, which is immediately across the road opposite where the garage will be built. He also submits that the design and height of the garage is totally out of keeping with the old building which was there previously and has now been demolished. He submits that the fair solution would be to construct a lean-to garage against the wall. Thus the western end of the garage would be either at the height of the wall or perhaps a metre or so above it and the roof would then slope down to the east. This would provide entirely satisfactory parking for two cars but would not intrude upon the amenity of his property or the general aspect of the area.
23. We should deal with this latter submission first. Again, we can fully understand this as a sensible proposal. The appellant tells us that he wrote to the applicants to suggest this but has not had the courtesy of a reply. If correct, that seems very unfortunate. One could well understand that an appropriate spirit of neighbourliness would lead to discussion, which might in turn lead to a compromise satisfactory to all parties.
24. But that is not the role of the Minister. He has to deal with applications as they are submitted to him. It is primarily for a landowner to decide what he wishes to build upon his land. The Minister's role is to apply the relevant planning policies and decide whether that application should be allowed. It is not the Minister's role to reject an otherwise permissible application merely because he can think of a better application. We therefore have to revert to the issue of whether the Minister's decision to allow this particular application is unreasonable.
25. In considering this, one must have regard to the history of the site. As mentioned already, there was previously an old outbuilding with a pitched roof on the site of the proposed garage. The evidence of the Planning Department is that the height of the roof of that old building was 4.5 metres. The height of the proposed garage is 4.85 metres; thus it will be only 0.35 metres (1 foot 1½ inches) higher. As to the extent of the old building, it extended a total of 15.8 metres north from the gable of the main building. However the first 6.6 metres had a roof of only 3.5 metres and, as the photographs show, would not have impacted to any material extent on the neighbouring properties. The northernmost 9.2 metres had a roof height of 4.5 metres (or in the case of the most northern part fractionally less).
26. As already stated, that building was in fact demolished in 2008/2009 and permission for a four car garage in its place was granted. That garage also had a pitched roof and its height was also 4.85 metres. Its southern end was 8 metres north of the gable of the main building and its width was 11.4 metres, meaning that its northern end was 19.4 metres north of the gable of the main building. It therefore extended further in both directions than the higher part of the old outbuilding.
27. The present proposal is exactly the same height and its roof is the same pitch as the four car garage. However it is of course much less wide (5.4 metres as compared with 11.4 metres). Its southern end will now be at 13 metres from the gable of the main building (compared with 8 metres for the four car garage) and its northern end will be 18.4 metres north of the gable (compared with 19.4 for the four car garage).
28. The 2008 planning permission still exists. It contained a condition that, if the development permitted by the permission had not commenced within five years of the decision date, the permission would cease to be valid. However, the demolition and the rearrangement of the gardens and vehicular parking has taken place and accordingly the development has commenced. The permission therefore remains valid and the four car garage could be constructed without further application even if this appeal were to be allowed and the Minister's decision overturned. From the Minister's perspective - and indeed the perspective of the appellant - the current proposal for a two car garage is a considerable improvement on the four car garage, as it will interfere with the appellant's view and be overbearing to a very much lesser extent than the four car garage. When this was pointed out to the appellant during the hearing, he responded by saying that, at the time of the application for the four car garage (which he did not oppose as he was not aware of it at the time) the whole parking area was owned by the developer and it was the developer who applied for the four car garage. The area covered by the four car garage is now in split ownership with two of the parking spaces being owned by one unit and each of the other two parking spaces being owned by different units. He considered therefore that in practical terms, it was unlikely that the four car garage would be built even if the appeal were allowed, because it would require three owners to get together to build a garage which would straddle land in three sets of ownership.
29. This may well be so as a practical matter, but the fact remains that there is in existence planning permission for a four car garage. The Minister had to take this into account. In those circumstances, it is very hard to conceive that a decision to allow a smaller double garage would be unreasonable, as it could only amount to an improvement in planning terms for the appellant and for the neighbourhood as compared with the existing permission.
30. We suspect that the real difficulty in this case is that the appellant has grown used to a view of the valley without interruption since the old outbuilding was demolished. Prior to that, his view would have been blocked to a material degree by the old outbuilding, albeit not quite to the extent (in terms of height) as the present application, but to a greater extent in terms of width (9.2 metres for the old outbuilding compared with 5.4 metres for the proposed double garage). If the proposed double garage had replaced the old building immediately, we suspect that it might well have been seen as an improvement in terms of light, view and overbearing. It is certainly an improvement in that respect over the four car garage.
31. We have spoken of the view and we accept that there will be an impact on the view of the appellant as compared with the present position, where there is no building, but we do not think that there will be a very significant effect on light given the distance and the relative heights of the building. In all the circumstances, we do not think that it can be said to be unreasonable for the Minister to have concluded that the proposed double garage will not unreasonably affect the level of privacy and light of the appellant's property and will not seriously harm the amenities of that property.
32. In summary, whilst fully understanding why the appellant has brought this appeal and whilst also fully understanding that a lean-to garage would be preferable, we cannot find that the Minister has failed to take account of any material planning policy or has reached an unreasonable decision. The application is in the built-up area where there is a presumption in favour of development, the garage is not out of keeping with the amenity of the neighbourhood and the two car garage will be a considerable improvement for the appellant and other neighbours as compared with the four car garage for which permission already exists, and will not be materially worse for them than the old pre-existing outbuilding.
33. In all the circumstances, we have no alternative but to dismiss this appeal. However, we would wish to conclude by paying tribute to the moderation, reasonableness and courtesy with which the appellant made his points. His suggestion of a lean-to garage would seem to have much to commend it and we would urge the applicants to meet with the appellant to discuss whether some suitable compromise, which would be acceptable both to them and to the appellant, can be found.
2011 Island Plan.
Planning and Building (Jersey) Law 2002.