Jersey Unreported Judgments

Planning - third party appeal against the decision of the Minister dated 24th June, 2013.

[2013]JRC227

Royal Court

(Samedi)

19 November 2013

Before     :

Matthew John Thompson, Master of the Royal Court.

 

The Appellant in person.

Mr D. J. Mills for the Respondent.

judgment

the master:

Introduction

1.        This is a third party appeal made by Margaret Carter ("the appellant") against a decision of the Minister for Planning and Environment ("the respondent") made on 24^th June, 2013, to grant planning permission retrospectively to Mr and Mrs Pallot ("the applicants") in respect of their property in St Peter.  The property is a potential listed building. 

2.        The appeal relates to erection of timber posts and wire fencing at the front and rear of the applicants' property.  The purpose of the fencing was to create a wind break by growing vegetation to be attached to the fencing and in due course acting as a screen.  The fencing adjoined property owned by the appellant.  Both properties are in the Green Zone. 

Procedural History

3.        In her notice of appeal the appellant indicated she did not require an oral hearing of her appeal.  The applicants although they were sent a copy of the notice of appeal on 10^th July, 2013, have not responded to the notice and have not played any role in relation to this appeal. 

4.        On 9^th September, 2013, I indicated that I was minded to deal with the appeal 'on the papers' under the modified procedure in light of the appellant's request to do so.  The appellant in response confirmed that she did not require an oral hearing.  The respondent has also confirmed that an oral hearing was not necessary. 

5.        In deciding that the matter may be dealt with on the papers I also give directions for the filing of further evidence and submissions.  Nothing further has been received from the appellant although she did indicate in her letter dated 13^th August, 2013, to the Law Officers' Department acting for the respondent that she was content to rely on her notice of appeal and the papers attached to her notice.  Mr Andrew John Townsend, principal planner of planning and buildings services filed an affidavit on behalf of the respondent dated 5^th August, 2013.  Written contentions were filed on behalf of the respondent on 31^st October, 2013. 

Preliminary Point

6.        The respondent raised with me the issue of whether the right to bring a third party appeal under Article 114 of the Planning and Building (Jersey) Law 2002, as amended, ("the Planning Law") applied to appeals against a decision to approve a development undertaken without planning permission.  This is because Article 114(1) of the law provides:-

"This Article applies to a decision by the Minister to grant planning permission on an application made to the Minister in accordance with Article 9(1)."  (emphasis added)

7.        Article 9(1) provides that:-

"A person who requires planning permission not granted by a Development Order must apply to the Minister for it."

8.        However Article 9 does not deal with applications for planning permission retrospectively.  Rather they are dealt with by Article 20 which provides as follows:-

"20     Application for planning permission for development already undertaken

(1)       This Article applies where development has been undertaken -

(a)       without planning permission; or

(b)       without complying with a condition subject to which planning permission was granted.

(2)       Where this Article applies a person may apply to the Minister for planning permission or for an amendment to the permission already granted.

(3)       The Minister may grant the planning permission sought or amend the planning permission already granted, otherwise the Minister shall refuse the application.

(4)       Planning permission granted or amended in accordance with paragraph (3) shall have effect from the date the development was undertaken.

(5)       Action taken by the Minister under this Article does not give any person the right to claim compensation in respect of any loss or damage the person may suffer as a result of that action."

9.        The position concerning Article 114 and retrospective planning permission has not been before the Court until this appeal.  To assist me, the respondent in his written submissions set out arguments both for and against retrospective planning permission being caught by Article 114.  The argument against is that because Article 114 only refers to Article 9(1) of the Planning Law, Article 114 does not allow a third party to appeal against planning permission granted retrospectively. 

10.      Such a construction is not attractive.  What it would mean is that if an individual were to seek planning permission before commencing any development as required by Article 9 then any person who has an interest in land or resided on land within 50 metres of the site in respect of which planning permission was sort could object; yet if an applicant develops property in breach of Article 9 and then seeks retrospective planning permission, a person owning or occupying an adjoining property could not object.  That would place an applicant acting in breach of the Planning Law in a more favourable position than a person who had complied with its provisions.  It would also deprive third parties of the right to appeal against developments which had not been properly notified or advertised at the time the development occurred.  That cannot be right. 

11.      The respondent in his written contentions suggested that the power in Article 20 of the Planning Law is a separate power from Article 9.  In support of this contention I was referred to Article 113 of the Planning Law which contains a separate right of appeal in respect of a refusal by the Minister to grant planning permission in accordance with Article 20(2), (see Article 113(1)(b)).  By contrast the right of appeal against a refusal under Article 9(1) is found in Article 113(1)(a).  However I note that the definition of "Planning Permission" in Article 1 of the Planning Law means "permission to develop land granted (a) by the Minister by a Development Order or on an application made to the Minister in accordance with Article 9" ( my emphasis).  The reference to planning permission in Article 20(1)(a) and Article 20(2) must therefore be read as meaning permission to develop land in accordance with Article 9.  This brings an application under Article 20 within Article 9 and therefore within Article 114. 

12.      While there is a separate right of appeal referred to under Article 113(1)(b) strictly speaking this is not necessary because the application for planning permission in light of the definition to which I have referred is always made under Article 9(1).  All that Article 20(2) does is allow applications under Article 9 to be made retrospectively.  I also note that the process for consideration of applications for planning permission is the same whether the application is made (as it should be) before development has started or retrospectively.  The procedural obligations on the Minister contained in Articles 10 to 19 are the same in respect of both kinds of applications.  Subordinate legislation produced under the Planning Law generally also applies to applications for planning permission made retrospectively just as it applies to applications made before development.  The only difference appears to be in respect of fees on an application for retrospective planning permission requires double the fees (see Planning and Building (Fees)(Jersey) Law 2008 Article 2(2).  That is not surprising. 

13.      I am therefore satisfied in relation to the preliminary point raised that a third party appeal can be brought in respect of applications for retrospective planning permission as well as in respect of applications made in advance of development. 

The Appellant's Grounds

14.      The three grounds relied upon by the appellant are as follows:-

(i)        A maximum height of ten feet hedge was agreed between Mr and Mrs R A Pallot and Mrs M Carter, Nicholas Carter and Caroline Carter on the conveyance dated 21^st May. 1999. 

(ii)       The Jersey Law of Voisinage protects neighbours, and in this case the detritus from the Pallot hedge has caused the roof to rot and the ceiling to fall in the Dower House extension. 

(iii)          It is understood that in normal circumstances fences are restricted in the bye-laws to 2 metres in height.

Applicable Law

15.      In considering the grounds set out the test to be applied on the planning appeals is well known.  In Dixon-v-The Minister for Planning and Environment [2012] JRC 237A W. J. Bailhache Deputy Bailiff stated as follows:-

"The Law

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

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

16.      In Token Limited-v-Planning and Environment Committee [2001] JLR 698 Sir Philip Bailhache Bailiff stated at paragraph 9 as follows:-

"The legal test

9         The test to be applied by this court in determining appeals under the Island Planning (Jersey) Law 1964 was settled by the Court of Appeal in Island Dev. Cttee.-v-Fairview Farm Ltd. (2). Le Quesne, J.A. stated ([1996] JLR 317):-

"The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable. It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view ...

    The duty of the court on an appeal under art. 21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that that decision was, in its view, unreasonable."

   

"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."

Ground One

17.      In relation to the first ground relied upon namely that a maximum height of 10 feet was agreed in a conveyance dated 21^st May, 1999.  The relevant part of the conveyance provides as follows:-

"QU'AFIN de plus amplement séparer et delimiter ladite propriété présentement vendue par lesdits côtés il sera loisible tant auxdits Acquéreurs qu'auxdits Vendeurs de faire planter des haies vives sur lesdites lignes de demarcation ci-devant mentionnées, moitié sur le terrain de l'une et moitié sur celui de l'autre desdites parties et ce aux frais de la partie entreprenant tel travail et une fois plantées telles haies vives n'excéderont jamais une hauteur de dix pieds royaux au dessus du niveau normal du sol et seront et demeureront mitoyennes entre lesdites parties pour être maintenues et entretenues comme telles à fin d'héritage."

18.      In response Mr Townsend in his affidavit at paragraph 20 stated as follows:-

"To be clear, the decision on a planning application is made on material planning considerations.  In the event that planning permission is granted that permission is by definition solely permissive and addresses the requirements for planning permission only.  It does not overrule nor take into account any other legal restrictions on a property such as stipulations in the conveyance of that property, covenants, or matters of ownership.  Therefore, whether there was an agreement between the Applicant and the Appellant is not a material consideration to be taken into account when assessing the merits of the planning application.  If there is such a formal agreement this would have to be enforced under Civil Law and not the Planning Law."

19.      In relation to this ground I agree with Mr Townsend for the reasons he gives.  The respondent in addition in his written submissions referred me to the case of Watson and another-v-Croft Promosport Limited [2009] EWCA Civ 15.  Paragraphs 32 and 33 of the judgment state as follows:-

"32. First, it is well established that the grant of planning permission as such does not affect the private law rights of third parties. This was clearly stated by Cumming-Bruce LJ in Allen v Gulf Oil Refinery Ltd [1979] 3 All ER 1008 at 1020, [1980] QB 156 at 174 and has been consistently applied in all the subsequent cases, see per Buckley J in Gillingham BC v Medway (Chatham) Dock Co Ltd [1992] 3 All ER 923 at 934, [1993] QB 343 at 359, all three members of the Court of Appeal in Wheeler v JJ Saunders Ltd [1995] 2 All ER 697 at 704-705, 706, 710-711, 713-714, [1996] Ch 19 at 28, 30, 34, 38, Pill LJ in Hunter v Canary Wharf Ltd, Hunter v London Docklands Development Corp [1996] 1 All ER 482 at 491, [1997] AC 655 at 669 and the speech of Lord Cooke of  Thorndon on appeal ([1997] 2 All ER 426 at 466, [1997] AC 655 at 722). Second, the implementation of that planning permission may so alter the nature and character of the locality as to shift the standard of reasonable user which governs the question of nuisance or not. This too is clearly recognised in the judgments of Staughton and Peter Gibson LJJ in Wheeler v JJ Saunders Ltd [1995] 2 All ER 697 at 706, 711-712, [1996] Ch 19 at 30, 35 and the speech of Lord Cooke of Thorndon in Hunter v Canary Wharf Ltd, Hunter v London Docklands Development Corp [1997] 2 All ER 426 at 466, [1997] AC 655 at 722.

33. In the light of these two well-established principles I find it hard to understand how there can be some middle category of planning permission which, without implementation, is capable of affecting private rights unless such effect is specifically authorised by Parliament. It has not been suggested to us that there is any section in the statutory code governing the application for and grant of planning permission which could have that result. For that reason alone I would reject the second ground of appeal put forward by the defendants."

20.      In my judgment there is no difference between the law in England as set out in Watson and the law of Jersey in relation to the effect of the grant of planning permission on the private rights of individuals.  The first ground advanced by the appellant is not therefore a basis for me to conclude that the respondent acted unreasonably. 

Ground Two

21.      The second ground advanced makes an allegation that the duty owed by the applicants to the appellant under the Jersey Law of voisinage has been breached.  This allegation overlaps with ground one in that the appellant is invoking a private right as a basis for arguing that the respondent acted unreasonably.  This ground also for the same reasons as apply to ground one is not therefore a basis for me to conclude that the respondent acted unreasonably. 

22.      In addition the relationship between the granting of planning and voisinage was expressly considered in by the Court of Appeal in Reg's Skips Limited-v-Yates [2008] JLR 191. The appellants in that case argued that the Royal Court had erred in finding against the appellants under the doctrine of voisinage because planning permission had been granted.  In particular it was submitted that if the use of the land was lawful because it was within the scale of a planning permit it could not be unlawful in the sense of a breach of the duty of voisinage.  That argument was expressly rejected by the Court of Appeal at paragraphs 65 to 67 of its decision. 

23.      The present case is not the same as Reg's Skips Limited-v-Yates.  The appellant here is not resisting a claim in voisinage on the basis of planning permission having been granted.  Rather the appellant is contending that because the duty in voisinage owed by the applicants is alleged to have been breached the Minister acted unreasonably in granting planning permission.  In my judgment however if by reference to Reg's Skips case the granting of a planning permit does not mean that a breach of the duty of voisinage cannot occur, the opposite must also be true namely that an arguable breach of the duty of voisinage is not of itself a basis to refuse to grant a planning permit.  That does not mean that the respondent should not look at the underlying factual matters alleged to give rise to a breach of duty.  The respondent is required to look at those matters not to form a view on whether or not there is a claim in voisinage but to see if any of the factual allegations are matters relevant to a decision to grant planning permission. 

24.      The only qualification to this view would be if the granting of a permit had the inevitable consequence of authorising what might otherwise amount to a breach of the duty of voisinage.  However this is not the case here.  What the planning permission allowed was the erection of a fence.  The complaint in voisinage however relates to excessive vegetation growing on the fence.  While I make no observation on the strength of that claim it is a claim that is not affected by the granting of planning permission.  I am not therefore satisfied that ground two is a basis to interfere with the respondent's decision. 

Ground Three

25.      In relation to ground three the appellant produced to me correspondence sent to the planning department and the Minister for Planning in 2008 objecting to erection of a 2 metre fence by the applicant.  It is not clear what happened in relation to this correspondence.  The appellant alleges it was not answered in 2008 which if correct is not satisfactory.  The next correspondence that was produced was a letter to the Planning Department dated 30^th January, 2013, from the appellant's husband again raising the issue of the erection of the fence and in particular that it went "beyond the 2 metre fence bye-law limit". 

26.      A further letter was sent on 20^th February, 2013, by the appellant's husband which produced a response from Mr Coates Senior Planner of Planning and Building Services dated 22^nd February.  The response suggested that the problems described in the letter of 20^th February were caused by the applicant's vines growing through onto the appellant's property.  The letter of 22^nd February did not appear to address the concern that the fence was more than 2 metres in height. 

27.      The appellant's husband wrote a further letter on 2^nd March, 2013, trying to ascertain whether the fence was erected with planning permission and repeating the point that under bye-laws fences should only have a height of 2 metres.  I have not seen any reply to this letter. 

28.      On 30^th April, 2013, the applicants made a retrospective application for the erection of timber fence posts and visual screening.  It has not been explained to me how this application came about and whether it occurred as a result of the letters of complaint filed by the appellant's husband.  It would also have been helpful to understand whether the application was made as a result of the Planning Department contacting the Applicants and to have seen evidence of any such communication and any reply. 

29.      Planning and Building Services notified the appellant of the retrospective application by a letter dated 21^st May, 2013.  She objected to the application.  It appears that the occupier of the adjoining property also objected to the granting of planning permission. 

30.      An officer assessment sheet for general development dated 20^th June, 2013, was completed by the planning officer.  That sheet listed the relevant planning conditions namely "GD1 General Development conditions, GD7 Design Quality, BE6 Building Alterations and Extensions, HE1 Protecting Listed Buildings and Places, SP4 Protecting the Natural and Historical Environment, NE7 Green Zone." 

31.      In relation to the design of the fencing the report expressly noted:-

"The proposed works are not considered to detract from, or unreasonably harm the character of the area contrary to Policy NE7."

The proposed fence was said to be a very functional design.  

32.      It also appears that the Planning Officer visited the site.  The officer assessment stated:-

"The Planning Officer viewed the "vine" from both the Applicant and objector's property and saw very little evidence of the vast amounts of vegetation on the objector's side which has been reasoned as the source of structural damage.  The fence is a lightweight minimal structure which is not considered to have detrimental impact upon the residential amenity of the neighbour's property."

33.      The report noted that the proposal would result in an increase in green vegetation. 

34.      The historical environment team were also consulted resulting in their report dated 30^th May, 2013, from Jayne Fawdry.  Her comments were as follows:-

"The fence/windbreak attached to the top of the garden walls although not an ideal structure is preferable to a solid fence.  The windbreak is an ephemeral structure commonly used for climbing plants and overall does have an undue adverse impact on the character or setting of the PLB.

Policy considerations are SP4 and G1 of the Jersey Island Plan 2011.

HET no objections to the proposal."

35.      The assessment therefore recommended approval of the application for the following reasons:-

"The proposed development is considered to be acceptable having considered all of the material considerations. In particular the development has been assessed against Policy GD1, GD7 and NE7 of the Jersey Island Plan 2011 in which the proposed fence would complement the design of the existing building and the quality of the surrounding area.

In addition the representation raised to the scheme on the grounds the proposal would have an extremely intrusive impact on the neighbouring residential property.  The fence is a lightweight minimal stretch which is not considered to have a detrimental impact upon the residential amenity of the neighbour's property.  Therefore it is considered that the proposal accords with the terms of Policy GD1 of the Island Plan 2011 and it does not have an unreasonable impact on neighbouring residents."

36.      The decision to grant permission was taken on 24^th June, 2013, for the reasons set out in the officer's assessment sheet. 

37.      The decision was made under delegated powers granted by the respondent to officers within Planning and Building Services.  It was communicated to the appellant by letter dated 26^th June, 2013. 

38.      In her letter dated 28June, 2013, the appellant objected that she had not been given notice of a meeting to highlight any points directly to the Planning Applications Panel ("Panel") or to the Minister.  In his affidavit at paragraph 32 Mr Townsend explained that such notification is only given where the application is to be considered by the Panel or the Minister and does not apply where an application is considered under powers delegated to Officers within the department.  Mr Townsend further referred me to the letter of acknowledgment to the appellant dated 29^th May, 2013, which letter made it clear that the right to address the Panel or the Minister only arose in respect of applications to be determined either by the Panel or the Minister. 

39.      In relation to ground three the first issue I have to consider is the suggestion that all fences are restricted by bye-laws to a height of 2 metres. 

40.      Mr Townsend in his affidavit at paragraph 24 explains that under the Planning and Building (General Development)(Jersey) Order 2011 ("the GDO"), there are certain types of minor developments which can be undertaken without the need to apply for planning permission.  This can include the erection of fences up to 2 metres in height as long as all the criteria set out in the GDO are met. 

41.      The relevant part of the GDO however does not apply to the erection of the fence by the applicants in this case firstly because the fence is more than 2 metres in height.  It is not therefore a requirement of the Planning Law that if planning permission is granted to erect a fence that fence has to be limited to 2 metres in the height.  The appellants have therefore misunderstood the effect of the GDO in advancing ground three. 

42.      Secondly Mr Townsend in his affidavit also set out that the GDO does not apply to the erection of fences for listed buildings or potential listed buildings which is clear from the GDO itself.  The applicant's property as noted above is a potential listed building.  For both these reasons therefore the applicants were never entitled to erect a fence without planning permission. 

43.      The appellant in her letter of 21^st May, 2013, also raised the issue that the fence was extremely obtrusive and that the vines produced so much detritions they rotted her roof.  It therefore appears that in advancing ground three the appellant also objects to the granting of planning permission on this basis.  Accordingly I consider I am required to consider whether the granting of planning permission was unreasonable on the basis that the fence was obtrusive and had the effect of creating excessive vegetation. 

44.      In my judgment I do not consider this a decision in where I can conclude that the respondent acted unreasonably in granting planning permission for the following reasons:-

(i)        The officer considered the relevant Policies; in doing so she has not misapplied or misunderstood those policies;

(ii)       The officer carried out a site visit which specifically considered the applicant's concerns;

(iii)      The officer considered the nature and character of the fencing; while it is always possible to debate the quality of the fencing erected, based on the materials provided the officer was entitled to form the view that the fencing was acceptable.  I have not seen any material which allows me to conclude that her view was unreasonable;

(iv)      The officer considered the extent to which the fencing and the vegetation had a detrimental impact upon the residential amenity of the neighbour's property; she saw little evidence of vast amounts of vegetation.  The photographs I saw are consistent with the officer's opinion;

(v)       The officer considered whether the fence would complement the design of the existing dwelling and the quality of the surrounding area; in my view, having considered all the materials provided to me, that view is not an unreasonable one to have formed;

(vi)      The officer recognised that the property was a potential listed building and consulted with the historical assessment team who had no objections to planning permission being granted.  I can find no fault with this approach;

(vii)     The officer in her decision had regard to the fact that the property was in a Green Zone and that general development should not be permitted save for alterations to existing dwelling where the scale location or design would not detract from or unreasonably harm the character of the area;

(viii)    I also consider that the view the officer formed in the reasons she gave is a view which is within the margin of appreciation recognised in Token; I have not seen anything in considering the material placed before me that would lead me to conclude that the view reached is an unreasonable one which I should set aside; and

(ix)      I am not satisfied that the granting of the planning permission is outside that margin of appreciation to allow me to conclude that the Minister acted unreasonably. 

45.      For these reasons I therefore dismiss the appeal.  As the appeal was adjudicated by me under the modified procedure 'on the papers' I make no orders to costs.  

46.      Finally I note that the applicant in her letter of 12^th September, 2013, to the Court also accepted that much of the offending foliage had been removed.  While this is a matter that occurred after planning permission was granted and would only have been relevant had I concluded that the respondent had acted unreasonably, it is right to commend the applicants for taking a step which addressed some of the appellant's concerns.  I hope that such co-operation between neighbours will continue in the future. 

Authorities

Planning and Building (Jersey) Law 2002.

Planning and Building (Fees)(Jersey) Law 2008.

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

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

Watson and another-v-Croft Promosport Limited [2009] EWCA Civ 15.

Reg's Skips Limited-v-Yates [2008] JLR 191.

Planning and Building (General Development)(Jersey) Order 2011.