Planning - appeal against the decision of the Royal Court on 2 August, 2013.
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Before : |
James W. McNeill, Q.C., President; |
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And |
The Minister for Planning and Environment |
Appellant |
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And |
Seymour Villas Limited |
Respondent |
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Advocate G. G. P. White for the Minister.
Mr D. J. Liddiard, Director of the Respondent.
JUDGMENT
martin ja:
1. The Planning and Building (Jersey) Law 2002 ("the Law") requires the Minister for Planning and Environment ("the Minister") to maintain a list of sites of special interest. On 21 December, 2012 the Minister decided to include on the list a building called Seymour Villa, Plat Douet Road, St Saviour ("the Building"). That decision was formalized in a Ministerial Decision dated 14 January, 2013.
2. The owner of the Building, Seymour Villas Ltd ("SVL"), appealed against the listing. On 2 August, 2013 the Royal Court (the Deputy Bailiff and Jurats Marett-Crosby and Crill) allowed the appeal, quashed the Minister's decision to list the Building and remitted the matter to the Minister for reconsideration. The Minister now appeals to this Court.
3. This appears to be the first time that the courts in this Island have been required to deal with an appeal against the listing of a site of special interest.
4. The relevant legislative provisions are contained in Articles 50 to 56 of the Law. Of these, the most relevant are as follows:-
(i) Article 51, which so far as material is in the following 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."
(ii) Article 52, which so far as relevant is in the following terms:-
"(3) A person with an interest in the building or place referred to in the notice may make written representations to the Minister in respect of the proposed inclusion of the building or place on the List of Sites of Special Interest.
(4) In determining whether to include a building or place on the List, the Minister -
(a) shall take into account any representations made under paragraph (3) to the extent that they relate to the special interest of the proposed site of special interest; and
(b) where the building or place falls within the area of responsibility or concern of any Minister or a body or person created by statute, shall consult that Minister, body or person and shall take into account any representations made;
(c) may consult any person the Minister considers has a special knowledge of or interest in the building or place."
5. Other provisions are of potential relevance. Article 54 controls operations on or changes of use of a listed site that fall short of development but adversely affect the special interest of the site; and Article 55 restricts certain activities on a site of special interest. Article 84 - which applies to all buildings, not just listed buildings - provides that the Minister may serve a notice requiring that a building in a ruinous or dilapidated condition or a specified part of it be demolished, repaired, decorated or otherwise improved. Finally, the long title and Article 2 (defining the purpose of the legislation) are in the following terms respectively (so far as material):-
"A LAW to provide the means to establish a plan for the sustainable development of land and to 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."
"2.Purposes of Law
(1) The purpose of this Law is to conserve, protect and improve Jersey's natural beauty, natural resources and general amenities, its character, and its physical and natural environments.
(2) Accordingly it is the intention of this Law -
(a) to ensure that when land is developed the development is in accordance with a development plan that provides for the orderly, comprehensive and sustainable development of land in a manner that best serves the interests of the community;
(b) to protect sites, buildings, structures, trees and places that have a special importance or value to Jersey".
6. SVL appealed against the listing of the building on the ground that the Minister's decision was unreasonable having regard to all the circumstances (that being the criterion set out in Art 109 of the Law). Those circumstances were said to be, in summary, (i) that the Minister had not made a substantive case that the building was "special"; (ii) that the report of the Jersey Heritage Trust on which the Minister had relied was inaccurate and subjective; (iii) that there was uncertainty as to the meaning of the adjective "special" in the legislation; (iv) that there was uncertainty as to the extent to which the Law applied to a site which was only partially of special interest; (v) that although Article 56 of the Law gave the Minister power to make funds available for sites of special interest, no funds were in fact available, meaning that an unfair burden was placed on private owners of sites that had been listed for the benefit of society as a whole; (vi) that the Minister had not explained what view he took of SVL's representations against listing; (vii) that there had been unreasonable delay in the listing process to SVL's detriment; and (viii) that SVL had had inadequate opportunity to make representations.
7. These grounds of appeal in effect raise three points: first, that the Building was not of "special" interest; secondly, that the system of listing had an unfair financial impact on private owners; and thirdly, that there had been errors of procedure. In allowing the appeal, the Royal Court focused almost entirely on the second of these points.
8. The Royal Court's judgment, delivered by the Deputy Bailiff, dealt (in paragraph 13) with what it held to be an error of process, although - because it was setting aside the Minister's decision on other grounds - the Court did not consider whether or not the error was sufficient in itself to justify setting aside the decision on procedural grounds . I return to this at the end of this judgment.
9. In paragraph 28, the Court identified the question that it had to decide as being "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."
10. The court answered that question in paragraphs 32 and 33, as follows:-
"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.... We do not think that they should be considered as irrelevant and accordingly the minister has not had regard to all the material circumstances."
11. The Court's reasons for reaching that view were, in summary, as follows. They considered, by reference to the long title, that the Law - which covered both planning control and listing, among other things - was to be construed as a cohesive whole. They regarded that approach as supported by Article 84, dealing with enforcement. They pointed out that it was reasonable to suppose that a repair notice, as opposed to a demolition or make safe notice, would be more likely in the context of a listed building. The cost of repair would be a material consideration for the minister in determining whether to issue a notice under article 84. It would be a disproportionate interference with the right to protection of property assured by Article 1 of the First Protocol to the ECHR for a notice to be served where the cost of the repair made the issue of repair impractical. In those circumstances, "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" [paragraph 37].
12. Similar considerations applied in relation to the condition of the property, leading to the conclusion 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 [paragraph 40]. Listing had a potentially significant effect on the planning process; and "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" [paragraph 43].
13. 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 persuaded the court that the Minister's policy of excluding consideration of those factors which are extrinsic to the special interest of the property was likely to cause a substantial disruption to the planning system [paragraph 44]. The absence of state funding for the carrying out of repairs and for preservation of listed properties meant that, if the Minister did not take into account the current condition of the building or the cost of repair, there might be a planning blight going beyond the ordinary planning consequences resulting from the mere existence of the planning laws. "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" [paragraph 45].
14. The Court summarised its conclusions in paragraph 50 as follows: "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 cohesive 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."
15. The Minister appealed to this Court. The notice of appeal contains twenty grounds of appeal; but in the skeleton argument filed by the Solicitor General, and in the oral argument presented by Advocate White, the primary contention was that the provisions of Article 51(2) precluded the Minister from taking into account any considerations other than the public importance of the site.
16. The case for SVL was argued by David Liddiard, a director of SVL. He contended that, although Article 52(4)(a) restricted the extent to which the Minister could take into account representations from a person interested in the site, there was no such limitation under Article 52(4)(b), which required the Minister to consult any minister or body or person created by statute within whose area of responsibility the site lay, and to take into account any representations made. One of the responsibilities of the Minister was in relation to planning, and the effect of Article 52(4)(b) was to require the Minister to consult his planning officials and have regard to their representations, leading to the result that planning considerations were to be taken into account. He contended further that the unavailability of any financial assistance towards the repair and maintenance of the listed buildings was a relevant consideration in the listing process. It was noteworthy that the listing provisions of the Law gave the Minister no power to require a listed building to be maintained; and Mr Liddiard suggested that that was because the legislature contemplated that grants would be made under Article 56 and, since there was not in fact any public financial assistance, the legislative intention would be frustrated if a site could be listed without regard to the financial consequences. Separately, he contended that the absence of any financial assistance was contrary to the provisions of Article 1 of the First Protocol to the ECHR as imposing an excessive burden which was not proportionate to the legitimate aim which the system of control of listed buildings sought to achieve. Finally, he contended again that the Building was not "special" and so should not have been listed, and that the Minister's decision had been unreasonable in all the circumstances.
17. Article 51(2) provides that the Minister "shall" include on the List "each" building that the Minister is satisfied has public importance by reason of certain matters, including the special architectural or historical interest that attaches to the building. As the Royal Court recognised (paragraph 32 of the judgment), these requirements are mandatory. What they mean is that the Minister is obliged to include a building on the list once he is satisfied that it has public importance because of its special interest. He has no discretion in the matter. He cannot list a building that has no special interest but has public importance for some other reason, such as a hospital. Conversely, once he is satisfied that a building does have public importance because of its special interest, he cannot decline to list it. It follows that he cannot decline to list a building of public importance by reason of its special interest merely because, for example, listing will have adverse financial and planning consequences for the owner. Since he cannot decline to list even if such consequences will ensue, those consequences can make no difference to the decision to list; and since they cannot make any difference to the decision, they cannot be material considerations when the decision comes to be made.
18. This position appears to me to be confirmed by Article 52(4)(a), which the Royal Court did not quote and mentioned only in passing. It requires the Minister to take into account any representations made by a person interested in a site "to the extent that they relate to the special interest of the proposed site of special interest". He is not obliged to take into account representations made by an interested person about any other matter. The adverse consequences of listing mentioned by the Royal Court, such as additional cost and planning difficulties, are consequences that will affect only persons interested in the listed site; but the Minister need not take representations about them into account, because they do not relate to the special interest of the site. Since he need not take them into account, they cannot be material to his decision.
19. It is true, as Mr Liddiard pointed out, that Article 52(4)(b) requires the Minister to take into account, without limitation, any representation made by a minister or body or person created by statute within whose area of responsibility or concern a site of special interest falls. Contrary to his submission, however, this does not in my view require planning considerations to be taken into account. That is for two reasons. First, the Article contemplates that representations will be made by parties other than the Minister himself. That is so as a matter of language, and also because the Law contemplates - as the long title and purpose section make clear - that the system of planning and listing forms part of an overall scheme of protection and management of the environment, to be administered by a minister having responsibility for all aspects of that scheme. It cannot have been intended that the Minister should have to consult himself, and take into account representations from himself, before discharging one of the tasks imposed on him by the Law. Secondly, and more fundamentally, the mandatory wording of Article 51(2) would prevent the Minister from taking into account representations on any matters other than public importance or special interest. Advocate White suggested that the purpose of Article 52(4)(b), which was introduced by amendment, was to allow the Minister to take into account the views of public bodies on public importance generally. He gave the example of an airport runway constructed of a type of concrete of special historic interest; if the Minister was considering listing it, he would have to take into account representations from the airport authority that it was of greater public importance that the runway was not listed so that the airport's freedom of action would not be impeded. It may be that the motive behind the amendment was indeed to allow conflicting policy considerations to be taken into account; but if that was the intention I do not consider that the legislature has achieved the intended result. The public importance that is relevant to listing is public importance "by reason of" special interest. If a site is important for that reason, the Minister is obliged to list it, even if other publicly important considerations weigh against listing. The only representations that the Minister may take into account under Article 52(4)(b) are those which go either to the special interest of the site or to the public importance of the site by reason of its special interest. To that extent, but to that extent only, the representations that may be taken into account under Article 52(4)(b) extend to matters that are not to be taken into account under Article 52(4)(a).
20. It follows from what I have said that, in my view, the answer the Royal Court gave to the question it had posed itself - whether the Minister had taken into account the relevant considerations - was wrong. The sole matter that the Minister is to take into account is whether or not a site he is proposing to list has public importance by reason of its special interest. That follows from the wording of Article 51(2). It is true, as the Royal Court remarked, that Article 51 does not in terms direct the Minister to consider any other questions than the special interest of the site; indeed, the wording of that Article on its true construction precludes a consideration of any other matters than those to which it refers. I would add that any other result seems to me impractical. If the Minister is to take into account planning considerations, for example, he must do so either in general terms or specifically in relation to each property he proposes to include on the list. If he is required to take them into account in general terms, that is to say no more than that he must take into account that listing will have some effect on future planning applications; and that adds nothing of substance to his consideration. If, on the other hand, he is to consider the planning implications for each property, he must attempt to envisage every planning proposal that an owner of the property might reasonably be expected to make, which is a task of such complexity that it would be in practice impossible to list any property.
21. I now turn to Mr Liddiard's points about the lack of public financial assistance for the owners of listed buildings. As to the first of them, it seems to me impossible to contend that the legislature in some way intended listing to be conditional on the availability of public funds. In the first place, the purpose of the legislation is the preservation and management of Jersey's heritage, and the achievement of that purpose cannot have been intended to be deferred until such time as funds might be available to provide assistance to owners. Secondly, it is wholly unclear what, on Mr Liddiard's argument, was to be the extent of the funding and to whom and in what circumstances it was to be provided. The legislation contemplates that the Minister may make funds available; but that is all it does, and there is nothing to suggest that listing cannot occur until he does so.
22. As to the second of his points, that the absence of financial assistance imposed an excessive burden that infringed SVL's rights under the First Protocol, the position seems to me to be this. As the Minister acknowledges, the system of listing constitutes an interference with the owner's right to protection of his possessions conferred by Article 1 of the First Protocol to the Convention. He asserts, however, that the interference is proportionate in the light of the legitimate aims of the listing system; and I did not understand SVL to dispute that. Although there appears to be no direct authority on the point, the case of Cannell v The Scottish Ministers 2003 SLT 554 proceeded on that basis - see paragraph 32: "No submission was made that, but for the alleged deficiency in relation to expenses, the system of control of listed buildings imposed an excessive burden disproportionate to its legitimate aims". I accept that the system itself does not impose an excessive burden. However, as Immobiliare Saffi v Italy (1999) 30 EHRR 756 makes clear, the way a system that is in itself unobjectionable operates may impose an excessive burden on an owner and accordingly upset the balance that must be struck between the protection of the right of property and the requirements of the general interest. It is therefore possible that all or some of the adverse effects identified by the Royal Court will amount to an excessive burden. Whether that is so or not will be specific to the facts of any given case; and it is accordingly only when the facts are known that the effect can be assessed. That will not occur at the time of listing, but at some later stage or stages. Accordingly, it seems to me that SVL's point on the First Protocol is premature, and so does not amount to a ground for upholding the Royal Court's decision.
23. As I indicated earlier in this judgment (paragraph 8), the Royal Court took the view that there had been an error in the procedure followed by the Minister. That error took the form of a failure to provide SVL with a copy of the report prepared for Jersey Heritage Trust by a firm of chartered surveyors. The report, which was in electronic form, related not only to the Building but also to other sites of special interest. It was provided to the Minister, and Advocate White conceded that it should have been provided to SVL. Up to a point, I accept that that concession was correctly made. If a person interested in a site that the Minister proposes to list is to have an effective right to make representations, as Article 52(3) entitles him to do, he must in my view be entitled to see the information on which the Minister intends to rely when deciding that the site is of special interest. To the extent that the report did that, it - or the information it contained - should have been provided to SVL. I do not think, however, that SVL was entitled to see the parts of the report that did not relate to the Building (except so far as necessary to understand those parts that did relate to the Building): what is in question is the special interest of the Building, not a comparison of its interest with that of other properties.
24. The Royal Court did not find it necessary to decide whether or not the failure to provide the report was in itself a sufficient ground to quash the Minister's decision. Given the view I have taken of the rest of this appeal, it is now necessary to decide that point. We were told by Advocate White, on instructions, that the only information from the report that was relied on by the Minister in relation to the Building was replicated in a schedule attached to a letter sent to SVL by the Department of Environment on 17 August 2012. If that was the case, then in my view SVL will have had all the material necessary to enable it to make effective representations, and there will be nothing in the process point. I would require the information given to us by Advocate White to be verified on affidavit within 28 days from today; and if it is, the process point will fall away. If, however, it is not, then I consider that the Royal Court's order will stand on this ground alone.
25. Subject to two points, I would allow the appeal and restore the Minister's decision. The question of costs, about which Mr Liddiard made several points, will be dealt with separately in the usual way.
26. The two points are the process point, which I would deal with in the way identified immediately above; and a further point, which is this. SVL has in the Royal Court and before us contended that the Building is not of sufficient interest to justify listing. The Royal Court did not decide this point. Although we have jurisdiction to decide the point ourselves, I do not think we should do so: we have not had full submissions on the point, and an appellate court should in any event ordinarily decide appeals, leaving the first instance courts to make the primary decisions. However, SVL is entitled to a decision on the point if it wants one; and I would propose directing that the matter be remitted to the Royal Court to hear this issue if within 28 days of today SVL notifies the Minister that it wishes to have the issue determined. If it does not give that notification, the order I have suggested above will take effect.
president:
27. I agree.
calvert-Smith ja:
28. I agree.
Authorities
Planning and Building (Jersey) Law 2002.
Seymour Villas Limited-v-Minister for Planning and Environment [2013] JRC 155.
European Convention on Human Rights.
Cannell v The Scottish Ministers 2003 SLT 554.
Immobiliare Saffi v Italy (1999) 30 EHRR 756.