Sir Michael Birt, Kt., Bailiff, sitting alone.
Minister for Planning and Environment
Mary de Faye Herold
Sea View Investments Limited
Advocate D. J. Benest for the Appellant.
Advocate C. J. Scholefield for the Respondent.
The Applicant did not appear and was not represented.
1. This is an appeal by the Minister for Planning and Environment ("the Minister") against a decision of the Master given on 29th October, 2013, ( JRC 200A), whereby he dismissed the Minister's application to strike out the third party appeal of the respondent ("Mrs Herold") under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") because it had been brought outside the time limit fixed for third party appeals by the Planning Law.
2. On 28th November, I notified the parties that the appeal was dismissed. However, I made it clear that my reasons for doing so were somewhat different from those of the Master, not least because I was referred to a line of judicial authority which had not been brought to his attention. This judgment constitutes the reasons for my decision.
3. Article 114 of the Planning Law confers a right of appeal by third parties against the grant of planning permission to another person. The relevant provisions of Article 114 are as follows:-
"114 Persons who may appeal against grant planning permission
(1) 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) if a submission was made to the Minister in respect of the application prior to the Minister's making the decision by a person (other than the applicant) who -
(a) has an interest in land; or
(b) is resident on land,
any part of which is within 50 metres of any part of the site to which the planning permission relates.
(3) A decision to which this Article applies shall not have effect during the period of 28 days immediately after the decision is made.
(4) If during that period a person appeals in accordance with this Article the period shall be extended until either the appeal is withdrawn or is determined.
(5) When the appeal is determined the decision shall have effect, if at all, in accordance with the determination.
(6) The Minister shall serve a copy of the notice informing the applicant of the decision on each other person who made a submission to which paragraph (1) refers.
(7) The copy of the notice must -
(a) be served within 7 days of the decision being made; and
(b) be accompanied by a notice informing the person that the person may appeal against the decision or any part of it (including any condition of the planning permission) within 14 days of the service of the notice,
and that person, if aggrieved by the decision, may appeal to the Royal Court accordingly.
4. Article 108 of the Planning Law provides as follows:-
"108 Rules of Court
The power to make rules of court under Article 13 of the Royal Court (Jersey) Law 1948 shall include the power to make rules regulating practice and procedure in applications and appeals under this Part."
5. Part 15 of the Royal Court Rules deals with appeals from administrative decisions and the relevant provision for the purposes of this case is Rule 15/2 which provides as follows:-
"15/2 Notice of appeal and fixing day for trial
(1) An appeal to the Court shall be brought by serving on the respondent a notice of appeal:-
(a) in the case of an appeal other than a planning appeal or a high Hedges Law appeal, in the form set out in Schedule 4;
(b) in the case of a planning appeal, in the form set out in Schedule 4A; or
(c) in the case of a High Hedges Law appeal, in the form set out in Schedule 4B
and every such notice must specify the grounds of the appeal with sufficient particularity to make clear the nature of the appellant's case."
6. The only other relevant Rule of Court is Rule 1/5 which provides as follows:-
"1/5 Power to extend and abridge time
(1) The Court or the Viscount may, on such terms as either thinks just, by order extend or abridge the period within which a person is required or authorised by rules of court or by any judgment, order or direction to do any act in any proceedings.
(2) The Court or the Viscount may extend any period referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
7. The Master described the factual background very clearly in his judgment and what follows is based substantially on his summary.
8. On 12th October, 2012, Sea View Investments Limited ("the applicant"), subject to completion of a Planning Obligation Agreement, was granted permission to develop 17 residential units of accommodation at Keppel Tower, Elizabeth Cottage and Maison du Roc, La Grande Route des Sablons, Grouville.
9. It is not in dispute that Mrs Herold's property adjoins the property in respect of which planning permission was given. It is also agreed that she made representations against the application. She therefore meets the criteria set out in Article 114(1) of the Planning Law and has the right to bring a third party appeal.
10. Following negotiation and completion of the Planning Obligation Agreement, the applicant was granted unconditional planning permission on 31st July, 2013. That date is accepted by all parties as being the date of the Minister's decision for the purposes of Article 114.
11. Pursuant to Article 114(6) the Minister notified Mrs Herold of his decision to grant the planning permission by letter dated 2nd August, but it is accepted that the letter was not in fact posted until 5th August.
12. Attached to the letter was a document entitled "Development Control Practice Note No. 3A - Right of Appeal by a Third Party" which stated that the procedure as to how to appeal was set out in Part 15 of the Royal Court Rules 2004 and also stated "a third party appeal must be served on the Minister and filed with the Judicial Greffe in accordance with the Rules, within 14 days of the notice". That note is not in fact wholly accurate. The appeal must be served on the Minister within 14 days but the time for filing the appeal with the Judicial Greffe is two days later.
13. On 7th August Mrs Herold wrote to the Planning Department seeking confirmation that, as the letter of 2nd August was not posted until 5th August, it was deemed, by reference to RCR 5/6(3) to be served on the second day after which it was posted i.e. 7th August. She therefore sought confirmation that the deadline for serving a notice of appeal was 14 days later, i.e. 21st August. The Department replied by email dated 8th August confirming that she had until 21st August to "submit an appeal".
14. By letter dated 21st August Mrs Herold wrote to the Viscount's Department with the following instructions:-
"Please serve a copy of the accompanying letter and notice of appeal on the Minister for Planning and Environment at the following address no later than the close of business today."
The address given was that of Planning and Building Services at South Hill.
15. Mr Paul Stephens, Acting Principal and Enforcement Officer of the Viscount's Department, described what happened in an email dated 10th October, 2013, as follows:-
"As you are aware you issued instructions on 21st August 2013, requesting that the Viscount serve a notice of appeal on the Minister for Planning and Environment. You asked for the letter to be served on the Minister on that same day.
Unfortunately, the Minister for Planning and Environment was out of the Island and was unavailable for service. The Viscount's officer was advised by the Minister's PA that the Minister would be at home for the whole day on 22nd August 2013.
On 22nd August 2013 at 11.55 am the Minister for Planning and Environment was served with your notice of appeal at the offices of Planning and Environment."
16. At paragraph 30 of her written submissions to the Master, Mrs Herold stated that her grandson, Mr Greg Herold-Howes had received a telephone call from a Mr de Gruchy of the Viscount's Department during the afternoon of 21st August, confirming that the Minister was not in fact in the Island that day and that service was therefore impossible. Mr Herold-Howes had questioned whether, despite the Minister's absence, service could instead be effected on another representative of the Planning Department. He said that Mr de Gruchy confirmed that this was not possible and service of the notice of appeal could under the Law only be effected on the Minister. Mr Herold-Howes accompanied his grandmother to the hearing before the Master and specifically confirmed the above matters. There does not appear to have been any challenge to this evidence.
17. In summary therefore, the notice of appeal was served on the morning of 22nd August, 2013, when it should have been served before midnight on 21st August, 2013, i.e. one day after the time limit in Article 114(7) but within 28 days of the Minister granting planning permission.
18. The Minister subsequently issued a summons that the appeal be dismissed for want of legal validity on the ground that it was served one day out of time and accordingly there was no jurisdiction in the Court to hear the appeal.
19. Before the Master, the Minister submitted that there was no jurisdiction in the Court to extend the period of 14 days referred to in Article 114(7) whereas Mrs Herold contended that there was, either on the basis that the time limit was directory rather than mandatory or, applying R v Soneji  1 AC 340, because the States should be taken as not having intended to completely exclude a right of appeal if there was non-compliance with the 14 day time limit.
20. The Master was referred to three Jersey cases but concluded that none of them appeared to have considered directly whether the Court had power to extend the time limits in the Planning Law. I agree with him in relation to the first two cases, but not in relation to the third.
21. The first case was Arbaugh v Island Development Committee  JJ 593. Article 21 of the Island Planning Law 1964 provided that an appeal against refusal of a planning permission must be brought within two months of notification of the Committee's decision. Although the appeal in that case was out of time, the Court noted that the Committee had agreed not to raise any objection and the Court therefore proceeded to hear the appeal as if it had been made within the time limit prescribed by Article 21. There was no discussion as to whether the Court could proceed on this basis. I agree with the Master that, as the matter proceeded by consent, it does not assist on whether there is in fact jurisdiction to extend the time limit prescribed by the statute.
22. The second case was Burnett v the Minister for Planning and Environment  JRC 143B. In that case, it was clear that there was an enormous procedural muddle which the Court found had stemmed entirely from the actions of the Planning Department. The consequence was that the appellant was not notified of his right to appeal against the decision, which was standard practice when a notice of rejection was issued. The Court (Bailhache, Commissioner) said at paragraph 13:-
"The result is an impossible procedural tangle. We think that the only fair approach for the Court to take is to cut the Gordian knot and to treat this appeal de bene esse as an appeal out of time against the Minister's decision to refuse to consent to the retrospective application to build the pool house and to change the use of part of Field 818. We take the grounds of appeal to be essentially those set out in the appellant's subsequent appeal against the decision of the Panel of 15th December 2009. We accordingly give leave to the appellant to appeal out of time against the decision of 5th February 2008 and will consider the appeal on its merits".
It would seem that no argument was addressed to the Court on whether there was jurisdiction to give leave to appeal out of time and accordingly I agree with the Master that no weight can be placed on the decision in that case.
23. The third case was Stuart-Smith v Minister for Planning and Environment which was an unpublished judgment of the Deputy Judicial Greffier dated 22nd September, 2008. It concerned a third party appeal under Article 114 where the Minister sought the dismissal of the appeal on the basis that it had not been brought within the 14 day period specified in Article 114(7). The point at issue in the present case appears to have been the subject of adversarial argument and the Deputy Judicial Greffier held that, as the time limit was fixed by statute, there was no power under Rule 1/5 of the Royal Court Rules or otherwise to extend that period.
24. The Master distinguished that decision on the basis that the notice of appeal in that case was served two days outside the 28 day limit referred to in Article 114(3) and (4) whereas the notice of appeal in the present case was served within the 28 day period. I have to respectfully disagree with the Master that that is a valid reason for distinguishing the case. On reading the Deputy Judicial Greffier's judgment, it is clear that he did not consider this aspect; the judgment is entirely devoted to whether there is any power to extend beyond the 14 day period and he held that there was not. He had therefore ruled definitively on the point which the Master was considering in the present case. Nevertheless, I accept of course that the Master was free to depart from the decision in Stuart-Smith if he was convinced that it was wrong.
25. Before the Master Mrs Herold relied substantially on the important case of Soneji where the House of Lords held that the distinction between mandatory and directory provisions of a statute had outlived its usefulness and that the correct test was whether it was the intention of Parliament that total invalidity should be the consequence of non-compliance with a statutory provision. The Master helpfully set out a substantial extract from the leading judgment of Lord Steyn but it is sufficient for my purposes to quote only the following at paragraph 14:-
"VI The Core Problem
14. A recurrent theme in the drafting of statues is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided there was substantial compliance. ..."
26. Lord Steyn then went on to review a number of authorities both in England and Wales and elsewhere in the Commonwealth before concluding as follows at paragraph 23:-
"Having reviewed the issue in some detail, I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead, as held in Attorney General's Reference (No. 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction. In my view it follows that the approach of the Court of Appeal was incorrect."
27. The Master was also referred by Mrs Herold to Canivet Webber Financial Services Limited v Guernsey Financial Services Commission [2007-08] GLR 221 where the Royal Court of Guernsey had to consider whether it could hear an appeal under the Planning legislation where the appeal had been lodged out of time. Newman, Lieutenant Bailiff applied Soneji and her conclusion was summarised in the head note as follows:-
"(1) The appeal would not be struck out but the appellant would be instructed to prosecute it without further delay. The legislation did not give the court power to extend the time-limit, but nor did it set out the consequences of failing to comply with the time-limit. The question became one of whether in this particular context the States could be taken to have intended that no step in the proceedings could validly be taken outside the time limit, even with the permission of the court. The court was satisfied that it was not the intention that the time-limit should be operated in such a way as to cause injustice and it would therefore exercise its inherent jurisdiction to extend the time for service to avoid injustice in this case. The requirements of certainty should be tempered by a willingness to do justice, especially in a case in which the appellant was not legally represented and in which, though it had been dilatory, there were other factors beyond its control which had delayed its pursing the appeal."
28. The advocate appearing for the Minister referred the Master to Jones v AG  JLR 103 which concerned the issue of whether the Royal Court had inherent jurisdiction to allow a criminal trial to continue where the number of jurors fell below 12 during the course of the trial for a reason which was not "une maladie" or "une indisposition" and was therefore not covered by Article 56 of the Loi (1864) Réglant la Procédure Criminelle. At page 109, the Court of Appeal said this:-
"Plainly it is possible for an inherent jurisdiction to exist in respect of matters about which a statute is silent. Equally, an inherent jurisdiction may supplement a permissive jurisdiction granted by statute. What it cannot do is to confer a power inconsistent with a statutory provision which is itself mandatory."
The Court went on to state that the statutory provision in question concerning the constitution of the jury was mandatory, although in doing so it did not specifically enter into any consideration of whether it was directory or mandatory or indeed refer to that well-known distinction.
29. The Master took Jones as being an application of the traditional mandatory/directory distinction referred to by Lord Steyn in Soneji and expressed uncertainty as to whether he should therefore follow Jones and apply that distinction or whether he should follow the new approach outlined in Soneji. In my judgment, Soneji should be applied in place of the old mandatory/directory distinction. The Royal Court, endorsed by the Court of Appeal, has already done so on a number of occasions (see for example AG v Da Silva  JLR N 12; Re Dégrèvement Burby  JLR N 49) and this is not inconsistent with Jones because the Court of Appeal in that case did not in fact consider the directory/mandatory distinction other than simply by asserting that the relevant provision of the 1864 Law was mandatory. In any event it preceded Soneji.
30. The Master went on to consider the position under both tests. He concluded that the language of Article 114(7) was not mandatory and (applying Soneji) that the States did not intend to exclude totally a right of appeal if there was non-compliance with the 14 day time limit. He did however hold that any extension could not exceed the 28 day period referred to in Article 114(3) and (4) because after that period the planning permission would come into effect and the applicant would be free to proceed with the relevant building work. The States could not have envisaged extending the limit for a third party appeal beyond the time when the applicant might well have incurred expenditure in reliance on the planning permission. He then went on to consider his discretion as to whether to grant an extension and, on the facts, decided to do so.
31. It is against that decision that the Minister appeals, as he submits that an important point of principle is involved.
32. Advocate Benest did not represent the Minister before the Master but has been instructed on this appeal. He submits that Soneji is not applicable to the present case and has referred me to a different line of authority. He accepts however that, on the particular facts of this case, the Court still has a discretion as to whether to extend the time limit. Advocate Scholefield reiterates the arguments made before the Master and contends that Soneji is the correct approach. As an alternative, he contends that, even if I find the law to be as submitted by Advocate Benest, there is still a discretion in the Court and I should exercise it in Mrs Herold's favour on the facts of this case.
33. In essence, I accept that the law is as submitted by Advocate Benest but, as will be seen, I agree with Advocate Scholefield that I should exercise my discretion in Mrs Herold's favour on the special facts of this case.
34. Advocate Benest referred me to Mucelli v Government of Albania  1 WLR 276. This concerned two extradition cases. In such cases the time limit for appealing is very short, namely seven days for appeals under Part 1 of the Extradition Act 2003 and fourteen days for appeals under Part 2. However, the relevant provision in respect of both reads:-
"Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is   days starting with the day on which the order is made."
What had happened in Mucelli was that his solicitors had filed the notice of appeal within the requisite period but had failed to serve it on the Crown Prosecution Service (CPS) as the proposed respondent until the next day. Two points arose in the appeal. The first was whether the requirement that a notice of appeal must be 'given' within the specified period meant that the notice of appeal had to be both filed in the High Court and served on all respondents to the appeal within the period. The House of Lords held that it had to be so served but that is not relevant for the purposes of this case.
35. The second point was whether the court had power to extend the time limit set out in the Act for the filing and/or service of the notice of appeal. On this aspect, the House held that there was no jurisdiction to extend a statutory time limit for appeal. Thus Lord Brown of Eaton-Under-Heywood said at para 38:-
"Against this background, it seems to me to tolerably plain both that section 26(4) is requiring the notice of any appeal to be both filed and served within the stipulated 7-day period and that this, being a statutory time limit, is unextendable. The rules of court are to dictate everything about the filing and serving of the notice save only the period within which this must be done; this is expressly dictated by the section itself. Whatever discretions arise under the rules are exercisable only in so far as consistent with the filing and serving of the notice before the statutory time limit expires."
36. The leading judgment was given by Lord Neuberger of Abbotsbury who dealt with this issue as follows:-
"74. On the face of it, at any rate, there is a clear and unqualified statutory time limit, namely 7 days, and there would therefore seem to be no basis upon which it could be extended. In that connection, viewed from the English and Welsh perspective, I would refer to the Civil Procedure Rules, which contain provisions whereby the court can extend time for the taking of any step, and the CPR r 3.1(2)(a) can make an order remedying any error of procedure, under CPR r 3.10, or can make an order dispensing with service of documents, under CPR r 6.9. However, these powers cannot be invoked to extend a statutory time limit or to avoid service required by statute, unless of course the statute so provides. Apart from being correct as a matter of principle, this conclusion follows from CPR r 3.2(a) which refers to time limits in "any rule, practice direction or court order" and from CPR r 6.1(a) which states that the rules in CPR Pt 6 apply "except where ... any other enactment ... makes a different provision."
75. Accordingly, it would be necessary to find some statutory basis for the Court having power to extend time, or indeed to dispense with the service which Section 26(4) requires. The only arguable such basis is to be found in the words "in accordance with rules of court", which , it is contended, incorporate the various provisions of the CPR to which I have just referred. I cannot accept that argument. First, the way in which the sub-section is linguistically structured appears to me to mean that those words govern the way in which "notice of an appeal" is to be "given", not the time within the such notice is to be given, which is dictated by the closing part of the subsection." [Emphasis added]
It is of note that this decision was reached even though the statutory time limit was extremely short and related to extradition, which can have such a significant effect on a person's liberty.
37. Soneji was cited to the House of Lords in Mucelli but is not referred to in the speeches of any of their Lordships. One might ask why not? That is of course not stated by the judges but clearly they did not consider the case to be relevant. In my respectful judgment, that is not surprising. Soneji is concerned with the situation where a decision maker does not take his decision in accordance with time limits specified in a statute. This is clear not only from Soneji itself (which concerned the making of a confiscation order by the Crown Court) but a number of the cases cited by Lord Steyn in reaching his conclusion. Thus in the passage cited from the judgment of Lord Hailsham of St Marylebone LC in London and Clydeside Estates Limited v Aberdeen District Council  1 WLR 182 at 189 - 190, it is clear that Lord Hailsham is referring to a statutory requirement for the 'exercise of legal authority' imposed upon a public authority exercising power.
38. The same appears from the judgment of Lord Slynn of Hadley in Wang v Commissioner of Inland Revenues  1 WLR 1286, an appeal from Hong Kong which applied the dictum of Lord Hailsham in the context of a decision made by the deputy commissioner where he had not complied with the timetable imposed by the statute. Lord Slynn said this at 1296:-
"Their Lordships consider that when a question like the present one arises - an alleged failure to comply with a time provision - it is simpler and better to avoid these two words 'mandatory' and 'directory' and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision-maker of jurisdiction and render any decision which he purported to make null and void?" [Emphasis added]
39. In the Canadian case of Society Promoting Environmental Conservation v Canada (Attorney General) (2003) 228 DLR (4th) 693, again relying on Lord Hailsham's dictum, Evans JA said this at para 35:-
"(iv) ... the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity." [Emphasis added]
40. It follows, in my judgment, that the Master and the Royal Court of Guernsey in Canivet Webber erred in considering that the principles of Soneji - and the pre-existing principles of the mandatory/directory distinction - were applicable to the time limit for a proposed appellant in an appeal. Soneji is concerned with the sort of provision which says "the Minister shall reach a decision upon the application within 28 days of receipt". The question as to the validity of a decision by the Minister reached outside that period is clearly important and the principles in Soneji are applicable to that question. That is something very different from a time limit for a private party to set in motion an appeal process. I respectfully agree with Mucelli that there is no inherent jurisdiction in the court to extend a time limit for appeal fixed by statute unless the statute itself allows for this. The provision is of course different where the time limit is fixed by rules of court because, under RCR 1/5, the Court has power to extend any period within which a person is required to do something by 'rules of court' or by any 'judgment, order or direction.' That rule does not however give power to extend a statutory time limit.
41. A similar conclusion was reached in the Guernsey case of Carr v States of Guernsey Housing Authority (15th August 2012) where McMahon DB construed the appeal provisions of the Housing (Control of Occupation) (Guernsey) Law 1994 which provided that an appeal " ... shall be served upon the President of the Authority within a period of 2 months immediately following the date of the notice giving the decision of the Authority". He had regard to the decision in Mucelli and held that he had no jurisdiction to extend the time period in the statute.
42. In my judgment, the time limit in Article 114(7) - although somewhat unusually expressed by reference to what is to be contained in a notice from the Minister - is clear and unambiguous. A third party may appeal but only within 14 days. The Master considered the use of the word 'may' was significant. I must respectfully disagree. The only right of appeal conferred on a third party is the statutory right contained in Article 114. The only reference to that is in Article 114(7)(b) which states that the notice from the Minister to the third party must inform him that he may appeal within 14 days of service of the notice and then goes on to provide that such a person 'may appeal to the Royal Court accordingly' [emphasis added]. That can only be a reference back to the immediately preceding passage and incorporates the 14 day period. Thus a person may appeal, but only within 14 days. No other right of appeal exists.
43. Advocate Scholefield pointed out that Article 114(7) provides that a person 'may appeal' within 14 days but says nothing about when an appeal is deemed to have begun. He rightly points out that this is dealt with by Rule 15/2(1) which states that an appeal against an administrative decision is brought by serving a notice of appeal on the respondent. He submits that, as it is a rule of court which determines what constitutes the bringing of an appeal, the court can under Rule 1/5 extend the time for bringing the appeal.
44. A similar argument was made in Mucelli but was rejected by the House of Lords. I reject Advocate Scholefield's argument for similar reasons. Rule 15/2(1) specifies how a proposed appellant exercises a right of appeal but says nothing about when he can bring it. That is dealt with solely in Article 114(7) and therefore, for the reasons given in Mucelli, cannot be extended either under Rule 1/5 or under the Court's inherent jurisdiction.
45. In reaching these conclusions, I would echo some remarks of McMahon DB at pages 7-8 of his judgment in Carr. It is very important for the rule of law that courts should not exceed their proper role which, in this context, is to interpret statutes passed by the legislature. As the late Lord Bingham said in his book, The Rule of Law at 168:-
"We live in a society dedicated to the rule of law; in which Parliament has power, subject to limited, self-imposed restraints, to legislate as it wishes; in which Parliament may therefore legislate in a way which infringes the rule of law; and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed."
If the States wish to give the courts a discretion to extend a time limit, it is of course easily done by inserting a specific provision to that effect in the legislation. If the legislature has chosen not to and if it has inserted a clear and unambiguous time limit, it is not permissible for the courts to invent a power of extension merely because they consider that the absence of such a power has led in a particular case to a result which is unjust or unfair. To do so would be to exceed the role which our constitutional model gives to the courts.
46. It follows that, had the matter rested there, I would have allowed this appeal.
47. However, Mucelli has since been the subject of further consideration by the Supreme Court in a case where the rights of a person under the ECHR were in play. In Pomiechowski v District Court of Legnica, Poland  1 WLR 1604, there were four appeals in connection with extradition heard together. The first three appellants were Polish but the fourth, a Mr Halligen, was a British national. In his case, although, as in Mucelli, an appeal had been filed within the requisite period, the appellant's solicitors were one day late in serving the CPS. The Supreme Court refused the invitation to depart from Mucelli but held that, in the case of Mr Halligen, the extradition proceedings would determine his common law right as a British national to enter and remain in the United Kingdom, which was a 'civil right' so that Article 6 ECHR was engaged. The Supreme Court accepted that the statutory provisions regarding the permitted periods for appeals must not impair "the very essence of the right" of appeal if they were not to be contrary to Article 6. It went on to hold that the shortness of the time limits in extradition cases could in certain circumstances "impair the very essence" of the right of access to the courts and that in such cases, there would not be "a reasonable relationship of proportionality between the means employed and the aims sought to be achieved". The Supreme Court held that, in order to ensure consistency with the Convention rights, the Court should, under Section 3 of the Human Rights Act 1998, read down the relevant provisions of the Extradition Act so as to be consistent with the Convention rights. This involved exercising a discretion to extend the time limit in exceptional cases if necessary to prevent a breach of the right of proper access under Article 6.
48. The position was summarised in the speech of Lord Mance at para 39:-
"39. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that, in the case of a citizen of the United Kingdom like Mr Halligen, the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under Article 6.1 in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously."
49. The observation of the European Court of Human Rights in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 referred to by Lord Mance was (in the context of a different Article of the ECHR) that rights of appeal cannot be made the subject of limitations which "restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired" and that any such "restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
50. An example of the application of Pomiechowski is to be found in Adesina v Nursing and Midwifery Council  1 WLR 3156. In that case two nurses appealed from different decisions of the Nursing and Midwifery Council to remove them from the register of nurses. The statutory period of appeal was 28 days. One nurse lodged her appeal nine days late and the other two days late. The judge ruled that both appeals had been lodged out of time and should be struck out. Both nurses appealed on the ground that their Convention rights were engaged and therefore, in order to ensure compatibility with Article 6 ECHR, the 28 day time limit was not to be construed as absolute and the court had a discretion to permit an extension. The decision is conveniently summarised in the head-note which reads:-
"Held, dismissing the appeals, that the time limit of 28 days in Article 29(10) of the Nursing and Midwifery Order 2001 by which to lodge an appeal to the High Court from a decision of the Nursing and Midwifery Council excluding someone from the profession was not absolute. But, in the light of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, were subject to the court's discretion; that the discretion would only arise in exceptional circumstances and where the appellant personally had done all she could to bring the appeal within the prescribed time limit; that, accordingly, the absolute approach was no longer invariable but the scope for departure from the time limit was extremely narrow; and that, since both nurses had had immediate knowledge of the Council's adverse decisions against them and since, in all the circumstances, there was nothing exceptional in either case, there was no basis for departing from the 28 day limit and the appeals had rightly been struck out."
51. In my judgment, this Court should adopt the principles established in Mucelli and Pomiechowski. I would summarise the position as follows:-
(i) Subject to (ii), where a statute provides a fixed time limit for an appeal, the Court has no discretion under RCR 1/5 or under its inherent jurisdiction to extend that period. It has no jurisdiction to hear an appeal brought out of time. If the States wishes to confer a discretion on the Court to extend the time limit, it may of course do so by specifically conferring such a power in the relevant statute; but if it does not do so, that is the end of the matter.
(ii) However, where an appeal involves the determination of a 'civil right' for the purposes of Article 6 ECHR (but not otherwise) the Court may read down the provisions of the statute in accordance with Article 4(1) of the Human Rights (Jersey) Law 2000 so as to give effect to the statute in a way which is compatible with Convention rights. This involves asserting a discretion to extend the time limit in the case before it if it concludes that application of the time limit to the particular facts would 'impair the very essence' of the right of access to the Court for the appeal.
(iii) Such a discretion can only arise in exceptional circumstances and where the appellant personally has done all he can to bring the appeal timeously (i.e. within the prescribed time limit). Adesina indicates how difficult it may be for an appellant to convince the court that his circumstances are exceptional and emphasises that the scope for departure from the time limit is extremely narrow.
52. It follows that I must first consider whether this appeal involves the determination of a civil right for the purposes of Article 6 ECHR, that being the only Convention right which it is argued may be applicable. If it does not, that is the end of the matter and the time limit cannot be extended. If it does, I must then go on to decide whether there are exceptional circumstances which require an extension to be granted so as not to impair the very essence of the right of access to the Court. I shall take each of these in turn.
53. In his written submission, Advocate Benest contended that this case did not involve the determination of a civil right. However, shortly before the hearing his researches disclosed the case of Ortenberg v Austria (1994) 19 EHRR 524. That case involved a third party appeal against the issue of planning permission in Austria. Before the European Court of Human Rights the appellant argued that the procedures before the Austrian courts on her appeal against the grant of planning permission had not complied with Article 6.
54. She brought her appeal under both 'public law' grounds (such as environmental concerns etc) and 'private law' grounds (in order to prevent any infringement of her pecuniary rights). The Austrian government contended that Article 6 was not applicable on the basis that a right of objection to the grant of planning permission to a neighbour was essentially a public law right. It was designed to ensure compliance with legal provisions, in particular those for the protection of the environment and it concerned the relationship between a public authority and an individual; it did not directly affect the owner of the adjacent land and thus did not involve determination of a 'civil right'.
55. The Court rejected this submission and held that determination of a 'civil right' was involved so that Article 6(1) was engaged. It expressed its conclusions as follows:-
"28. The Court points out that Article 6(1) applies where the subject-matter of an action is 'pecuniary' in nature and is founded on an alleged infringement of rights which are likewise pecuniary or where its outcome is 'decisive for private rights and obligations'. It notes that Section 46(2) of the Building Regulations Act of the 'Land' of Upper Austria expressly provides that neighbours may object to the granting of planning permission by complaining that their personal rights will be infringed, which may 'be derived from either private law (private law objections) or public law (public law objections)'. In this instance the applicant relied on public law and alleged that the provisions of Section 23(2) of the aforementioned Act had not been complied with. In so doing, she nonetheless wished to avoid any infringement of her pecuniary rights, because she considered that the works on the land adjoining her property would jeopardise her enjoyment of it and would reduce its market value. Having regard to the close link between the proceedings brought by Mrs Ortenberg and the consequences of their outcome for her property, the right in question was a 'civil' one. Accordingly, Article 6(1) applies."
56. That decision was followed in an English case to which Advocate Benest has also referred us, namely R (Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions  1 WLR 1450. In that case the third party objector (Friends Provident) to the grant of a planning permission sought judicial review of the refusal of the Secretary of State to call in the determination so that it could be considered by an independent inspector at a public enquiry. The question arose as to whether Article 6 ECHR applied to the matter. Having considered the decision in Ortenberg Forbes J, at paragraph 69 of his judgment, accepted as correct the submission of counsel for Friends Provident which he described in the following terms:-
"68. It was Mr Katkowski's contention that there was no difference in principle between Friends Provident's position and that of Mrs Ortenberg. He submitted that Friends Provident 'civil right' was its right of property in Castle Mall and, in making its objection to Lend Lease's planning application, Friends Provident was seeking to protect its enjoyment of that property and its market value - not from the effects of noise or other physical nuisance, but from the effect of competition. Mr Katkowski submitted that it is clear that the right in question is a 'civil right' within Article 6 and that, just as there was in Ortenberg's case, there is a 'close link' between the outcome of Friends Provident's objections to Lend Lease's planning application and the impact such an outcome will have on Friends Provident's right of property in Castle Mall (i.e. its value will be protected if planning permission is refused and it will be diminished if permission is granted), which also shows that Friends Provident's civil rights will be directly affected by the determination of Lend Lease's planning application."
57. In the light of these two authorities, Advocate Benest conceded that, on the particular facts of this case, Article 6 was engaged because the appeal will involve the determination of Mrs Herold's civil right by reference to the fact that, if the development were to proceed, it would be likely to affect the market value of her property. However, he emphasised that this would not necessarily be the case with every third party objection to a planning application and every case would have to be considered on its individual facts.
58. It follows that I must turn to the second question posed above.
59. Advocate Benest argues that I should not in my discretion grant an extension of time. He submits that this case is not exceptional. Mrs Herold was fully aware of the date on which the 14 days would expire and the importance of keeping to it. She had ascertained the date in advance and duly instructed the Viscount's office to serve the Notice of Appeal. The difficulty was that she had left it to the last day. That was the operative cause of the failure to serve within the time limit because it transpired that the Minister was out of the Island. There was no reason why she could not have instructed the Viscount's office a day earlier in which event there would have been no problem. She had not acted 'timeously' as required by Pomiechowski.
60. I have carefully considered Advocate Benest's submissions but have come to the clear conclusion that I should grant the extension. I would summarise my reasons as follows:-
(i) 14 days is not a long time to consider the reasons for the grant of a planning permission and to formulate any grounds of appeal. As Lord Neuberger states at paragraph 81 in Mucelli, the shortness of a time limit makes it particularly likely that formalities of instituting the appeal will occur towards the last minute. I do not consider that this means that the proposed appellant has not acted 'timeously'. In context, this word in my judgment means that she has done all she can to bring the appeal within the prescribed time limit. That she did by instructing the Viscount's office in sufficient time to allow service on the last day of the period. Clearly the longer the time limit, the more difficult it will be for an appellant to persuade a court that he has acted timeously.
(ii) The difficulty was that the Minister was not in the Island and the Viscount's Department informed Mrs Herold's grandson, in response to his question, that service of the notice of appeal could only be effected on the Minister.
(iii) That is in fact incorrect. RCR 5/9 provides as follows:-
"5/9 Personal Service on the States, a Minister or an administration of the States
Personal service of a document on the States, a Minister or an administration of the States may, in cases where provision is not otherwise made by any enactment, be effected by serving it in accordance with Rule 5/7 on the Greffier of the States."
There was no reason why the Viscount could not have served the notice of appeal that day on the Greffier of the States.
(iv) It would seem that there was a second alternative in that, under Article 27(2) of the States of Jersey Law 2005, the Chief Minister may 'personally discharge the functions of that Minister' where a Minister is temporarily absent. It would seem therefore that service could also have been effected on the Chief Minister. Unfortunately the Viscount's Department did not suggest either of these alternatives to Mrs Herold and, not surprisingly, she herself was not aware of them.
(v) In all the circumstances, given that she did all that she reasonably could to ensure service of the notice of appeal within the time period by giving instructions to the Viscount's office in good time on the last day, that the failure to do so arose out of the absence of the Minister from the Island, that the Viscount's Department could in fact have validly served the notice of appeal that day on the Greffier or the Chief Minister, that the period for appeal was only 14 days and that the service was effected only one day late, I consider that this is an exceptional case, that Mrs Herold acted timeously and that to refuse her an extension would impair the very essence of her right of access for an appeal to this Court so as to breach her Article 6 rights.
61. I therefore dismiss this appeal. The effect is that the extension of time granted by the Master remains and the appeal may proceed. It will however be clear that the law and the nature of the discretion which I have found to exist are very different from that described by the Master. I should emphasise however that none of the cases which I have relied upon were cited to the Master. Before him, all parties conceded that the applicable principles were either the mandatory/directory distinction or the principle in Soneji. It is therefore not surprising that he proceeded on the erroneous basis that that was the correct position.
Planning and Building (Jersey) Law 2002.
Royal Court Rules 2004.
Arbaugh v Island Development Committee  JJ 593.
Island Planning Law 1964.
Stuart-Smith v Minister for Planning and Environment. Unpublished 22 Sept 2008.
Canivet Webber Financial Services Limited v Guernsey Financial Services Commission [2007-08] GLR 221.
Loi (1864) Réglant la Procédure Criminelle.
AG v Da Silva  JLR N 12.
Re Dégrèvement Burby  JLR N 49.
Extradition Act 2003.
Wang v Commissioner of Inland Revenues  1 WLR 1286.
Society Promoting Environmental Conservation v Canada (Attorney General) (2003) 228 DLR (4th) 693.
Carr v States of Guernsey Housing Authority (15th August 2012).
Housing (Control of Occupation) (Guernsey) Law 1994.
Human Rights Act 1998.
Human Rights (Jersey) Law 2000.
Ortenberg v Austria (1994) 19 EHRR 524.
States of Jersey Law 2005.
The Rule of Law, Lord Bingham.