W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Nicolle.
Andrew Alvin Hobson and Maureen Audrey Hobson
Minister for Planning and Environment
Bernard William Fairman and Judy Lumsden Fairman (née Coleman)
Advocate N. M. C. Santos-Costa for the Appellant.
Advocate D. J. Benest for the Minister.
Advocate J. D. Kelleher for the Applicants
the deputy bailiff:
1. This is an appeal by the appellants against a decision of the Planning Applications Panel on behalf of the Minister for Planning and Environment made on 27th June, 2013, to give permission for the development of land by the applicants at Beauport Place, Le Chemin du Beauport, St Brelade, by way of construction of a semi-basement double garage in the north west part of the site. It is the second appeal involving these parties in a period of less than two years. On 1st November, 2012, the Court gave judgment in favour of the appellants who were then appealing a decision of the Minister issued on 2nd March, 2012, to give the applicants permission to develop the same piece of land by way of a differently designed garage. The fundamentals of the case have in our judgment not changed since then. The development site lies in the Coastal National Park as designated by the Island Plan 2011, and as a result, one of the policies which needed to be considered is Policy NE6 which contains the strongest presumption against all forms of new development for whatever purpose. Although the previous appeal had been brought under the modified procedure, the instant appeal was dealt with under the ordinary procedure. By Act of the Master of the Royal Court dated 4th September, 2013, the recommendation for dealing with the appeal in that way was made on the basis of:-
(i) The nature and complexity of the issues raised;
(ii) The questions of law involved;
(iii) The matters of public interest which arise in the proceedings.
2. The Master considered that in particular two issues required the use of the ordinary procedure - the extent to which a Minister may depart from Policy NE6 in allowing development in an area within the Coastal National Park; and to what extent the Minister may make decisions which may be said to be inconsistent with previous decisions.
3. Much of the background is set out in the Court's judgment of 1st November, 2012, at Hobson-v-Minister for Planning and Environment  JRC 200. Policy NE6 and the explanatory language that led up to the formulation of that Policy is adequately set out at paragraphs 9 and 10 of that judgment. The planning history is set out at paragraphs 13 through to 23 and the Court's views in relation to Policy NE6 set out at paragraphs 34 to 45 inclusive. We rely on those paragraphs without setting them out again, although we are conscious that we are considering whether the present decision under appeal was unreasonable, not merely the nature of what has changed.
4. On 1st November, 2012, the Court had ordered the Minister to cancel the approval which had previously been given by the Planning Applications Panel. A further planning application was received on 21st December, 2012, for the construction of a semi-basement double garage in the north west of the site. It was advertised in the usual way. The appellants objected to the proposal. In summary the objections were:-
(i) The Minister had given a clear statement in 2007 that the development on the site which was then approved represented the maximum permitted accommodation and that further applications were unlikely to be considered favourably. On the basis that decisions following that statement should be consistent, the appellants had purchased their property.
(ii) An ancillary building in the Coastal National Park is outside the scope of what was intended by Policy NE6. In those circumstances an essential need for the development had to be demonstrated if an application were to be successful, and in this case, the need for a garage had only arisen because the applicants had converted their existing garage into a swimming pool.
(iii) Cars would still be parked externally and so there would be no visual improvements. Furthermore there would be a detrimental impact on the amenities of the appellants' property due to invasion of privacy from noise, headlights and a greater degree of overlooking.
(iv) It was unclear as to how excavated material would be dealt with, and any new landscaping would take years to mature.
5. In their response through Messrs Carey Olsen, the applicants made these points:-
(i) The Royal Court had not concluded in November 2012 that no future development would be permitted.
(ii) The Court had found that the Minister could depart from a previous decision as long as that departure was justified, and the planning history showed a series of approvals had been given since 2007.
(iii) The applicants accepted that the proposal did not sit within the exceptions to Policy NE6 and accordingly the Minister had to consider whether there was sufficient justification to depart from the Policy as envisaged by Article 19 of the Planning and Building (Jersey) Law 2002 ("the Law").
(iv) The proposal which was being made was entirely appropriate to the local and wider landscape context. It was said to be sensitively and sympathetically designed and sited and there would be no harm to the amenities of the neighbours.
6. The Natural Environment Section of the Department of Environment in its representations in January 2013 emphasised that in considering the application, the Minister should particularly consider incremental development and its cumulative impact on the landscape character, a feature highly valued in this location by virtue of its inclusion in the Coastal National Park. By limiting its comment in this way, it may be thought that the Natural Environment Section were not signalling any real objection to the development. The comment went on to highlight the applicants' responsibilities under the Conservation of Wildlife (Jersey) Law 2000 and suggested a condition be attached to the application - by which we think they must have meant the consent or permit - that the applicants should inform site workers that there might be protected species on the site and that if any were to be found, work should cease immediately.
7. Further letters from the lawyers for the applicants and appellants were put before the Planning Applications Panel. The planning case officer visited both the site and the property of the appellants, and made a recommendation for approval which was endorsed by the Director of Planning. The Planning Applications Panel conducted a site visit on 25th June and considered the application at its meeting on 27th June when Advocate Purkis and Mr Stein, representing the appellants and the Connétable of St Brelade spoke against the application. The applicant, his architect and Advocate Kelleher addressed the Panel in favour of the application.
8. The Chairman of the Panel, Deputy Power of St Brelade, did not participate in the hearing, and Deputy Le Hérissier was not present. The minutes disclose the material that was put before the Panel and there is mention of the contention of the Director, Development Control, who informed the Panel that the applicants and the Connétable of St Brelade were incorrect in their contentions that it was necessary under Policy NE6 to show an essential need for development in the Coastal National Park before any approval could be given. The minutes conclude:-
"Having considered the application and having been satisfied that the sufficient justification existed for making an exception to policy, unanimously approved the application, subject to the imposition of certain conditions detailed within the officer report. In doing so, and having regard to the conditions expressed by the Hobson's regarding the potential for the garage roof to be used as an amenity area, the Panel directed that proposed condition No. 2 be amended to ensure that this did not happen. The Panel delegated authority to the Director, Development Control, to approve the amended condition".
9. The formal decision notice which is dated 27th June, 2013, gives as the reason for the planning permission:-
"Reason for approval: the proposed development is considered to be acceptable having due regard to all of the material considerations raised. In particular, the development has been assessed as an exception outside the terms of Policy NE6 of the Jersey Island Plan within the Coastal National Park, and is justified by reference to its appropriate design and siting, plus its enhancement of the landscape to reinforce the gap between the neighbouring dwellings, as viewed in its local and wider context, including across St Brelade's Bay.
The impacts on the neighbouring property La Cotte View House have also been considered, including by visiting the site and the neighbour. By reference to the existing context of the application site and the neighbouring property, the proposal is not considered to result in serious harm or unreasonable impacts, and so accords with Policy GD1 of the Jersey Island Plan.
The planning history of the site, and its neighbour, have also been assessed. The proposal is considered to accord with the approach demonstrated in the chronology of previous applications. The sensitivities of the site are recognised and decisions have been made on their merits in accordance with the framework of Island Plan Policies including the consistent understanding of the objectives behind those policies".
10. This appeal in essence raises two significant issues. The first is whether or not the proposed development falls within Policy NE6 in the Island Plan, and if not, whether there is sufficient justification for the decision of the Planning Applications Panel so that, on the application of Island Development Committee v Fairview Farm Limited  JLR 306 and Token v Planning and Environment Committee  JLR 698, it cannot be said to be unreasonable. The second issue is whether the planning history is such that the present decision of the Planning Applications Panel can be considered, as Advocate Santos-Costa urged us, to be unreasonable on the grounds of inconsistency - the planning history amounting to a material planning consideration for present purposes. There are other points that arise peripherally to these issues, but these were the main issues which were canvassed before us in argument.
11. On behalf of the Minister, Advocate Benest confirmed that this application represented "new development". As a result, it was conceded by the Minister that there is "the strongest presumption against all forms of new development for whatever purpose" as per paragraph 1 of Policy NE6. The Coastal National Park is to be given the highest level of protection from development.
12. Advocate Benest also conceded that the application which gives rise to this appeal was not an exception which falls within the listed exceptions in Policy NE6. He submitted that the question was whether or not there was sufficient justification for a determination that a permission should be granted despite the inconsistency of the application with the Island Plan, as envisaged by Article 19(3) of the Planning and Building (Jersey) Law 2002 ("the Law"), and that the Court would need to find that the justification was unreasonable for the purposes of overturning the decision. There was no procedural impropriety. He said the Panel had acted reasonably; Panel members had been onsite and had looked carefully at the Policy framework, identifying the mischief at which Policy NE6 is directed which is said to be the adverse impact of development in the Coastal National Park. He submitted that if a proposed development comes very close to the exceptions listed in Policy NE6 - and on this hypothesis he must be proceeding on the basis that the instant development did not come within those exceptions - the Minister should not be bound by the Policy and should be free to depart from it if it were reasonable to do so.
13. Advocate Kelleher supported those contentions and addressed us at length in relation to some English statutory provisions and English decisions, and we will turn to these shortly. By contrast, Advocate Santos-Costa said that really nothing much had changed. The proposed development remained outside Policy NE6. The applicant had chosen to surrender their existing garage for the purposes of creating a new swimming pool, and now it did not lie in their mouths to say that there was sufficient justification for departing from the Island Plan because they were entitled to have a garage on the site. According to Advocate Santos-Costa, the only reasons for supporting the decision were that the officers liked the look of the proposal, and that putting a garage in a strategic gap makes the gap somehow better. This was a planning construct to circumvent Policy NE6 and the Court should not allow it. He submitted that if the fact that the decision taker liked the design and siting of the proposed development was sufficient, neither Policy NE6 nor the Island Plan generally was needed. This would be the antithesis of a strong presumption, let alone the strongest presumption against any form of new development.
14. This appeal really requires us to reach a view as to when the Court will sanction a departure from the policy of the Island Plan. Advocate Benest submitted that the Island Plan was merely a policy. He said that policy did not have the same force as statute. The policy set down some guidelines and did not amount to a contract which had to be enforced, and the guidelines were not to be followed slavishly. Article 19 of the Law contained provision for a departure from the policy.
15. In Tesco Stores Limited v Dundee City Council  UKSC 13 278, the Council had determined to grant outline planning permission to Asda Stores Limited and McDonalds Estates Group Plc to develop a superstore on a large out-of-centre industrial site. Tesco presented a petition under the Judicial Review Procedure in the Court of Session, seeking a review of the decision to grant that outline planning permission. The petition for judicial review was dismissed and Tesco appealed. The appeal failed, and the appellants appealed to the Supreme Court. The nature of the case is well summarised in paragraph 1 of Lord Reed's judgment when he said:-
"If you drive into Dundee from the west along the A90, you will pass on your left a large industrial site. It was formerly occupied by NCR Corporation, one of Dundee's largest employers, but its factory complex closed some years ago and the site has lain derelict ever since. In 2009 Asda Stores Limited and McDonalds Estates Group Plc, the intervenors in the present appeal, applied for planning permission to develop a superstore there. Dundee City Council, the respondents, concluded that a decision to grant planning permission would not be in accordance with the development plan, but was nevertheless justified by other material considerations. Their decision to grant the application is challenged in these proceedings by Tesco Stores Ltd, the appellants, on the basis that the respondents proceeded on a misunderstanding of one of the policies in the development plan: a misunderstanding which, it is argued, vitiated their assessment of whether a departure from the plan was justified. In particular, it is argued that the respondents misunderstood a requirement, in the policies concerned with out-of-centre retailing, that it must be established that no suitable site is available, in the first instance, within and thereafter on the edge of city, town or district centres."
16. So that was what the case was about.
17. Section 25 of the Town and Country Planning (Scotland) Act 1997 provides:-
"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise -
(a) To be made in accordance with that plan."
18. Section 37(2) of the Town and Country Planning (Scotland) Act 1997 provides as follows:-
"In dealing with [an application for planning permission] the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. In his advice to the council, the Director of City Development considered that the proposal did not fully comply with the provisions of the development plan, but he identified two other material considerations of particular significance. First of all he noted that the proposed development would bring economic benefits to the city, because the closure of the NCR factory had been a major blow to the economy, and the redevelopment of the application site would create more jobs than had been lost when the factory closed. Secondly, the development provided a number of planning developments - there would be improvements to the strategic road network, thus assisting the free flow of traffic along the A90. Accordingly, in his view the other material considerations were of sufficient weight to justify granting permission notwithstanding inconsistency with the development plan."
19. In his judgment, with which all the Supreme Court justices agreed, Lord Reed said this:-
"(17) It has long been established that a planning authority must proceed upon a proper understanding of the development plan... The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the plan by Sec 25 of the 1997 Act...
(18) In the present case, the planning authority was required by sec 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of ... 'a proper interpretation' of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority; the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive secs 25 and 37(2) of the 1997 Act of much of their effect, and would drain the need for 'a proper interpretation' of the plan of much of its meaning and purpose. It would also make little practical sense. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others..., policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.
(19) That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse... Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."
20. Although the structure of the Scottish planning process is not the same as our own, not least because the grounds of challenge of a decision of the Minister here are wider than irrationality or perversity as described in paragraph 19 of Lord Reed's judgment, it seems to us that the passage which has been cited above is helpful in setting the approach we should take to a comparison of the Minister's decision with the Island Plan, and the impact of Article 19 of the Law. In particular, the policies contained in the Island Plan are clearly not the only material considerations which the Minister may take into account on any particular application. Article 19(1) requires the Minister to take into account all material considerations. By paragraph (2), he is to grant planning permission "in general" if the proposed development is in accordance with the Island Plan. This therefore indicates that the Island Plan is itself a material consideration. However, Article 19(3) permits the Minister to grant a planning permission that is inconsistent with the material considerations of the Island Plan, but only if he is satisfied that there is sufficient justification for doing so.
21. It follows from these three paragraphs of Article 19 that there may be material planning considerations which are outside the Island Plan, and these may provide sufficient justification for the Minister to grant a permission which is inconsistent with it. The starting point therefore is to recognise that there may be material planning considerations which fall outside the Island Plan. Where this happens, those material considerations must be balanced against Island Plan policies - the Minister is given a jurisdiction under Article 19 to determine where that balance lies, and the Court can be asked to review his exercise of power under the appellate provisions.
22. The second point which flows from the Tesco Stores decision above is that we should treat the Island Plan as a carefully drafted and considered statement of policy. We are not sure what the provisions are in Scotland for the preparation of development plans there - they may well be similar to the statutory provisions under the Law, but it is particularly noteworthy that the Island Plan results from a process in Articles 3, 4 and 4A of the Law which permit the widest consultation and publication of proposals before they are in fact debated and approved by the States as a whole. The Island Plan is therefore the principal governing document in relation to the taking of planning decisions, and, adopting the approach of the Supreme Court, the Island Plan should be followed by the Minister in decision making unless there is sufficient justification to depart from it. We will return to this analysis of the significance of the Island Plan in the context of third party appeals when considering the second ground of objection by the appellants in this case.
23. In his submissions, Advocate Benest relied upon dicta in the decision of the Queen's Bench Division in Gransden & Co Limited and Another v Secretary of State for the Environment and Another 54 P&C.R. 86. In that case, the Court was considering an appeal by the plaintiff applicants for planning permission against a refusal of permission. The particular grounds of appeal were that the council, and on appeal the Inspector, had failed to construe circulars issued by the Secretary of State which were designed to ensure that sufficient land was available for housing development. Advocate Benest relied upon a passage from the judgment of Woolf J, as he then was, at the foot of page 93:-
"What then is the significance of the inspector having failed to follow the policy? Does that mean that this court has to quash his decision? The situation, as I see it, is as follows: first, Section 29 lays down what matters are to be regarded as material, and the policy cannot make a matter which is otherwise a material consideration an irrelevant consideration. Secondly, if the policy is a lawful policy, that is to say, if it is not a policy which is defective because it goes beyond the proper role of the policy by seeking to do more than indicate the weight which should be given to relevant considerations, then the body determining an application must have regard to the policy. Thirdly, the fact that a body has to have regard to the policy does not mean that it needs necessarily to follow the policy. However, if it is going to depart from the policy, it must give clear reasons for not doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken.
Fourthly, in order to give effect to the approach which I have just indicated it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy.
Fifthly, if proper regard, in the manner in which I have indicated, is not given to the policy, then this Court will quash its decision unless the situation is one of those exceptional cases where the Court can be quite satisfied that the failure to have proper regard to the policy has not affected the outcome in that the decision would in any event have been the same."
24. We are hesitant about adopting that summary as helpful for the purposes of appeals under the Law. The Gransden case was concerned not with the construction of a development plan but with circulars issued by the Secretary of State as to how the development plan should be construed. We think the word 'policy' is used with these circulars in mind. The factual and legal basis upon which the Court reached its decision in Gransden is therefore not the same as appears to us to be in point here. The Island Plan is always a material consideration for the purposes of determining whether planning permission should be granted, as provided by Article 19(1) of the Law. In other words, a policy of the Minister could not make the Island Plan an irrelevant consideration. Equally, so it seems to us, the Island Plan (which is also a policy) cannot make any other matter an irrelevant consideration. For the reasons we have given above, Article 19 of the Law contemplates that there may well be material considerations which are inconsistent with the Island Plan.
25. Secondly, it is clear that the Island Plan is a lawful policy. It is adopted by the States pursuant to the terms of the Law. It is, indeed, the material planning consideration unless there are other planning considerations in exceptional cases under Article 19(3) which are to be held in the balance against it. As at present advised, it seems to us that the dicta of Woolf J may be extremely valuable if a court has to deal on judicial review grounds with the construction or application of ministerial policy where there is no statutory framework for that policy, but in the instant case we are guided of course by the statute which we have to apply.
26. In his submissions, Advocate Kelleher also addressed the question of what is meant by the references to policy. He adopted many of the submissions of Advocate Benest. In particular he accepted that the Minister's role was not to mediate or negotiate between neighbours - rather he has to make an impartial decision on the merits of the application before him (see Haden v Minister for Planning and Environment  JRC 161A at paragraph 23 to 24).
27. Advocate Kelleher made reference to the decision of the House of Lords in R (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions  2 AC 295. He referred in particular to the judgment of Lord Clyde at paragraphs 140 and 143, which contain some comments of a general nature in relation to planning decisions and the formulation of planning policies. We did not find this helpful in the context of this case. Alconbury was a case where the Secretary of State was appealing against a decision of the Divisional Court that its exercise of power under the Town and Country Planning Act 1990 was incompatible with the provisions of Article 6(1) of the European Convention on Human Rights. The focus of the House of Lords was on that issue, and not on the issue of when it was appropriate that a decision taker could depart from a policy, or the extent to which a policy might be binding upon the decision taker.
28. Advocate Kelleher also referred us to the City of Edinburgh Council and the Secretary of State for Scotland v Revival Properties Limited  1 WLR 1447. This case concerned an appeal by the appellants Revival Properties Limited and the Secretary of State for Scotland against a decision by the Second Division of the Court of Session which had allowed an appeal by the City of Edinburgh District Council under the relevant Scottish legislation. The appeal concerned two matters - the first was an appeal in respect of listed building consent, which is not material for the purposes of the present appeal. The second related to the approach which was to be taken under Section 18(A) of the Town and Country Planning (Scotland) Act 1972 which provides that "where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise." The majority judgment was given by Lord Clyde, much of which was cited to us.
29. There are clearly some similarities between the Scottish legislation and the Law, but there are some differences as well. One of the differences appears to relate to the nature of the Court's jurisdiction in connection with a planning appeal. At page 1458, paragraph F, Lord Clyde indicates that the introduction of Section 18A:-
"...has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it."
30. Lord Clyde continued in this way at paragraph 1459 D:-
"In the practical application of Section 18A it will obviously be necessary for the decision maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."
31. These extracts which were cited by Advocate Kelleher show that the case is not very helpful to what we have to decide. There may be some similarity between Section 18A of the relevant Scottish legislation and Article 19 of the Law - there may also be some nuanced differences between them - but what is sure is that the function of the Court, assuming Lord Clyde's summary of the position to be accurate, is not the same, as his summary is not in accordance with the Fairview Farm and Token tests which this Court is charged to apply in relation to an appeal under the Law. This case is therefore not very helpful to the matters we currently have to decide.
32. Advocate Kelleher went on to refer to J A Pye (Oxford) Ltd v Oxford City Council  EWHC Admin 870 where, referring to planning policy guidance and circulars, Ouseley J noted at paragraph 73 that these non-statutory guidance documents were to be interpreted and applied purposively in their planning context. The judge went on:-
"The tools and approach which inform the interpretation and application of each of those documents will be wider than those permitted to a court engaged in the construction of statute or of a contract. A judgment based on informed and specialist understanding is required."
33. Also cited to us was an extract from Planning Law Practice and Precedents  by Tromans and Turrall-Clarke at paragraph 5.06B on page 5015 where the authors say this:-
"Development plan policies and underlying objectives. It is relevant for the Secretary of State or his inspector to ask themselves not only whether the proposal would or would not be in accordance with a development plan but also what harm, if any, would be caused to the plans objectives if permission were granted, bearing in mind that the reason for having a policy in the plan in the first place is to fulfil the objectives in question: J Sainsbury Plc v Secretary of State for the Environment and Bexley LBH  JPL B45, and David Keane QC sitting as a deputy judge in the Springimage case."
34. The reference to the Springimage case is to R v Canterbury City Council and Robert Bret and Sons Limited  68 V&CR 171. In this case, outline planning permission was granted in February 1993 to Robert Brett Ltd by Canterbury City Council for a food store, non-food retail warehousing, associated parking, park and ride facility and residential development. The grant of permission was subject to what we would call a planning obligation agreement which dealt with the requisition of off-site sewage for drainage purposes. Springimage Limited had an option to purchase some land adjoining New Dover Road in Canterbury, and wished to obtain planning permission for retail development on it but had not at that time made a planning application to that effect. The company applied for judicial review of the Council's decision on the application of Robert Brett Limited inter alia on the grounds that the requirements of Section 54A of the Town and Country Planning Act 1990, and the provision of off-site sewage fell outside the scope of Section 106 of the same Act. The preliminary argument concerned whether or not the applicant Springimage Limited had locus standi to bring the challenge.
35. The Court (David Keane QC sitting as a deputy judge) dismissed the challenge on the grounds of locus standi and decided that Springimage Limited did have a sufficient interest. Having rejected that contention, the judge then turned to the substantive issues.
36. Sections 54A and 70 of the Town and Country Planning Act 1990 are in very similar terms to Sections 25 and 37(2) of the Town and Country Planning (Scotland) Act 1997. This is therefore the statutory basis which underlay the judge's consideration of the issues in the Springimage case. The judge, in dealing with the proper construction of Sections 54A and 70(2) found that there was force in the criticism made of some of the advice given to the committee - in particular that the committee was encouraged to think that it only had to have regard to the development plan amidst other material planning considerations; whereas the proper status of the development plan was, pursuant to Section 54A, that the committee was required to make a determination in accordance with the development plan, unless material considerations indicated otherwise. To that extent, therefore, the position under the two sections to which I have referred is similar to that under Article 19 of the Law.
37. Although the Court therefore found in that case that the decision was ultra vires because of the failure of the council to apply the provisions of Section 54A, there remained the question of the Court's discretion which arose in proceedings on judicial review. In that case, the judge decided that the decision would not have been any different if the matter went back to the Committee for redetermination. As a result, he declined to quash the decision of the planning committee.
38. Relying on this case and on a case comment in relation to J Sainsbury Plc v Secretary of State for the Environment and Bexley LBH  JPL B45, Advocate Kelleher submitted that both in England and Jersey the relevant position was:-
(i) in interpreting Policy NE6 it is for the Minister to interpret it objectively and by reference to its context;
(ii) Policy NE6 is to be construed purposively so as to give effect to its policy objectives;
(iii) It is for the decision-maker to weigh any conflict with the Island Plan against any other material considerations;
(iv) In the context of a development that is contrary to NE6, it is for the decision maker to determine the weight to be given to the conflict with that policy and to determine the weight to be given to any other material considerations;
(v) the weight to be ascribed to a conflict with policy is also a matter which should be assessed by reference to the degree of conflict with the objectives of that policy;
(vi) It is for the decision-maker to strike the balance between the conflict with Policy NE6 on the one hand and the material considerations on the other; and
(vii) The Court is to give the Minister a margin of appreciation.
39. We agree that the approach taken in paragraphs (a) to (b) above is a correct statement of the position in Jersey law, as far as it goes - we add the words "as far as it goes" because the Court has a slightly different approach to take in relation to the appeal provisions than is the case in England. Accordingly it is for the Court to construe objectively the terms of Policy NE6 and its purpose in the Island Plan. The Court must do so not least because it is to form its own view upon the application. To adopt the approach taken in the Tesco case referred to above, the status of the plan conferred by Article 19 of the Law requires that its interpretation is a matter of objective assessment, and not merely an assessment by the Minister; and the nature of the appeal rights is such that it is for the Court to make its own assessment of the appropriate weight to be given to the different polices in the Island Plan to the extent that they conflict with each other in connection with the decision under review. It would similarly be for the Court to determine the weight to be given to the plan policies compared with any other material planning considerations, were they to be raised in a particular case, although none appear to have been raised in this case.
40. We do not agree with the proposition under paragraph f. It is not the right approach to indicate that the decision maker must strike the balance between the conflict which Policy NE6 may have on the one hand with material planning considerations on the other. This is to fall into the same trap as the one into which the planning official fell in the Canterbury case. What the Minister had to do was to assess whether the application was or was not consistent with the Island Plan. To the extent that the Island Plan contains policies which were themselves in conflict, the Minister was required to consider which were the governing policies, so that he could then make an assessment of the application against those. If he then decided that the application was inconsistent with the governing policies of the Island Plan, he was still able to grant a consent, but only within the ambit of Article 19(3) of the Law.
41. Advocate Kelleher and Advocate Benest made similar submissions as to the purpose of Policy NE6. Advocate Benest said that the mischief which Policy NE6 addressed was the adverse impact of development in the Coastal National Park. If a proposed development came very close to the exception, he submitted one should not be bound by the Policy. Advocate Kelleher said that the purpose of the Policy was to prevent development which detracts from the existing landscape character and allows a development which enhances that character. To support that submission he relied upon the introduction to the Coastal National Park which is to be found at paragraphs 2.59 to 2.65 of the Island Plan.
42. Although there is arguably little extra to be gained from the relevant introductory paragraphs referred to, because most of the content is to be found in Policy NE6 itself, it appears to us from an objective reading of what is set out that the States intended, by the adoption of the Island Plan, to establish a National Park (see paragraphs 2.56 and 2.59 in particular). At 2.59, admittedly with reference for St Ouen's Bay, it was determined that that area had no capacity for any new development, and was considered to warrant "the highest level of protection".
43. 2.59 goes on to say that such an approach "accords with the primary objectives identified for a National Park for Jersey emerging from the recent consultation exercise".
44. If there is a question as to the relative importance of Policy NE6 compared with other policies, it is answered by paragraph 2.64.
"2.64 These areas contained within the Coastal National Park are recorded the highest level of protection in the countryside character appraisal, which will take priority over all other planning considerations. Accordingly there will be the strongest possible presumption against all forms of new development and the extension and/or intensification of existing development". (emphasis added)
45. The case for saying that Policy NE6 was more about preventing development which would detract from the existing landscape character and permitting development which would enhance that character, as opposed to what it appears on the face of it actually to say, seems to rest on paragraph 2.65 which is in these terms:-
"It has to be acknowledged, however, that Jersey's Coastal National Park is a living landscape, with many buildings and land uses within it. Whilst there should be a presumption against the introduction of new uses or buildings into the Coastal National Park that would detract from the existing landscape character, there may be opportunity to secure the repair and restoration of its character by allowing exceptions to the presumption against new development to be made where it is clear that a redevelopment of existing buildings or land uses might provide an opportunity to repair or reduce the damage caused to the landscape character by existing buildings and uses." (emphasis added)
46. It seems to us that paragraph 2.65 addresses quite a limited proposition. The underlined extract does not in our judgment suggest that an assessment has to be made as to whether the introduction of new uses or buildings would detract from the existing landscape character on the assumption that if the decision-taker considers they would not so detract, it is open to him to grant a consent. In our judgment, applying an objective construction to this paragraph, the underlined section describes why the presumption exists against the introduction of new uses or buildings into the Coastal National Park. If the underlined section invited an assessment to be made in any particular case as to whether the proposal would detract from the existing landscape character, the way would be clear for developments in the Coastal National Park to be routinely approved, depending on the skill and tact of the architect presenting the plans. That conclusion is so far distanced from "the highest level of protection from development" and "the strongest presumption against all forms of new development for whatever purpose" that we cannot construe paragraph 2.65 in the way Advocate Kelleher suggests. In our judgment this paragraph addresses the limited proposition that where there is a proposal which involves a redevelopment of existing buildings or land uses in such a way as might repair or reduce the damage caused to the landscape character by existing buildings and uses, Policy NE6 should not prevent it.
47. It appears to us that once it is conceded, as it has been, that this proposal by the applicants involves new development, it is impossible not to conclude that to approve it would involve breaching the first paragraph of Policy NE6. The development site is in the Coastal National Park and is to be given the highest level of protection from development. This is to receive priority over all other planning considerations. There is the strongest presumption against all forms of new development for whatever purpose. There appears to be no doubt at all that to grant a permission for this particular application would put the Minister in the territory of having to justify his decision under Article 19(3) of the Law.
48. It is interesting to note that the exceptions which Policy NE6 is concerned with only apply to a redevelopment or extension of existing buildings, and this proposed development does not fall into either category. In other words, those framing the Island Plan polices - and the States - must be taken to have anticipated as far as possible the cases where a development in the Coastal National Park might be contemplated, and this is not one of them.
49. For these reasons we find that the appellants succeed in their first contention, which is that the proposed development breaches the relevant polices in the Island Plan and it follows that the first question on the appeal must be whether or not it can be said that the Minister was unreasonable in considering that a departure from the Island Plan was justified for the purposes of Article 19(3) of the Law.
50. The decision notice, which is dated 27th June, 2013, provides the reasons for approval as follows:-
"The proposed development is considered to be acceptable having due regard to all of the material considerations raised. In particular, the development has been assessed as an exception outside the terms of Policy NE6 of the Jersey Island Plan within the Coastal National Park, and is justified by reference to its appropriate design and siting, plus its enhancement of the landscape to reinforce the gap between the neighbouring dwellings, as viewed in its local and wider context, including across St Brelade's Bay.
The impacts on the neighbouring property La Cotte View House have also been considered, including by visiting the site and the neighbour. By reference to the existing context of the application site, and the neighbouring property, the proposal is not considered to result in serious harm or unreasonable impacts, and so accords with Policy GD1 of the Jersey Island Plan.
The planning history of the site, and its neighbour, have also been assessed. The proposal is considered to accord with the approach demonstrated in the chronology of previous applications. The sensitivities of the site are recognised and decisions have been made on their merits in accordance with the framework of Island Plan polices including the consistent understanding of the objectives behind those policies."
51. It seems to us that only the first paragraph of the reasons for approval addresses the question as to whether there was sufficient justification for departing from the Island Plan. We say this because the fact that the proposed development may accord with Policy GD1 is neither here nor there in deciding whether there is justification for departing from Policy NE6. Policy NE6 is expressed to have priority over all other policies in the Island Plan, and therefore compliance with GD1 cannot be enough to warrant a departure from NE6. The better approach on this analysis seems to us to be that if there were sufficient justification to depart from Policy NE6 then any such departure would be constrained by the application of Policy GD1; but one has to find the reasons for departing from Policy NE6 first. Indeed we think that the natural construction of the decision notice would suggest that the Minister himself considered that the two reasons for departing from Policy NE6 were the design and siting of the proposed garage, and secondly the enhancement of the landscape to reinforce the gap between the neighbouring dwellings.
52. In our view the first of those reasons simply does not begin to justify a departure from Policy NE6. We agree with Advocate Santos-Costa's submission that a statement that the design and siting was acceptable was in effect to throw away Policy NE6, and, to the extent that this policy is one of those policies in the Plan which contains the strongest presumption against development, was in effect to dispense with need for the Island Plan generally, and to decide that the only real test was whether the Minister liked the design and siting of the proposed building. We agree that if this is sufficient as a reason for departing from a Plan policy, there is really not much reason for having a plan at all.
53. The second reason was that building in the gap enhanced the landscape by reinforcing the gap. Advocate Santos-Costa had some fun with this proposition. If a strategic gap is important, he contended it was impossible to reinforce it by building in it. He went on to say that "virtually no visual impact" means that there is a visual impact, and it is impossible therefore to say that the gap was thereby enhanced.
54. In answer to this proposition, Advocate Benest contended that Advocate Santos-Costa had simply taken a simplistic approach. The landscaping that would be introduced would enhance the gap.
55. Advocate Kelleher submitted that the proposal would provide more vegetation and less hard standing than existed at present. This made the proposal a very appropriate design which was appropriately sited. He went on to say that, adopting a painting analogy, old masters frequently enhanced a gap in perspective by putting something in between two different objects in their painting.
56. We have considered these submissions, but in our judgment it was impossible for the Minister reasonably to conclude that the building of a garage, however well sited, and however well designed, would enhance what is currently a gap between the two buildings. By definition, building in a gap must reduce the size of the gap. We note that the reference in the planning officer's report in this context was extremely understated. The planning officer described the development as falling outside the scope of what was permitted within Policy NE6 but emphasised the appropriate design of the garage within the domestic curtilage, and stated that it would have "virtually no visual impact in local or more distant views". The officer went on:-
"It is sympathetic and appropriate in its immediate and wider context within the Coastal National Park, and may indeed enhance the perception of a gap between the two properties, to the benefit of the context. For these reasons it is considered to be a suitable exception to Policy NE6."
57. In our view, the reference to enhancing the gap is more of an afterthought than a justification. As with the argument over design and siting, it does not come close to providing a justification to depart from Policy NE6.
58. In concluding that the design and siting of the proposed garage and/or the enhancement of the gap were sufficient justification for departing from the Island Plan, we conclude that the Panel acted unreasonably.
59. For these reasons we find the appellants succeed on their first ground of appeal.
60. The essence of the appeal on this ground is the same as that which supported the appeal in 2012. Advocate Santos-Costa contended that when his clients had purchased their property in October 2008, the enquiries made of the Planning Department showed that no further floor space would be permitted either on the property they were purchasing or on the applicants' property. She and her husband took comfort from the fact that the developer had had extensive negotiations with the Planning and Environment Department, and that one of the reasons given for the approval of the demolition of Les Creux Hotel and the construction of the two properties was that that development achieved a significant reduction in floor area and a substantial environmental improvement. Indeed when the 2007 permit was given, the then Minister informed the applicant that further incremental applications requesting an increase in floor space were highly unlikely to be considered favourably. Indeed that is the structure of the planning history since that time.
61. As the Court indicated in the first appeal in November 2012, there was not much clear water between the submissions of all parties as to the correct approach which should be taken in the context of alleged inconsistency. The Court indicated at that time that it endorsed the approach taken by the Court in Caesar Investments Limited v Planning and Environment Committee  JLR 566 where, at paragraph 74, Birt DB said:-
"As to the argument on inconsistency, we agree that consistency is an important factor as described by Lord Widgery in Collas Radio and Rockerson JA in Le Maistre. But the need for consistency cannot elevate an earlier decision into a binding precedent as Mr Voisin seemed to consider. If, for example, the Committee were to conclude that it had made an error in relaxing the standards to the extent which it had at the Aubin Lane development, we think it would be open to the Committee, in the case of an identical site, to admit its error and decide not to relax the standards to such an extent in future. No doubt such a decision could be said to be inconsistent with the first decision, but, assuming the Committee could satisfy the Court that it was acting reasonably in revising its views, we think that any such decision would survive an appeal."
62. As we said in November 2012, inconsistency on the part of the decision-taker in a planning matter is capable of being a sufficient ground for setting aside the decision on appeal, and the decision-taker may be required to justify any change of approach on his part.
63. There is furthermore a difference between the Caesar Investments scenario, where the Court is considering the hypothetical position of the decision-taker receiving an application in relation to a similar site, but applying a different policy, and the instant case where the decision-taker is considering exactly the same site. In the former case, there may well be differences on the facts which make it difficult to establish that there has in reality been a substantial inconsistency, especially so where the nature of the court's investigation is one of judicial review rather than appeal. This is not a difference of principle, but rather a difference of likely application. Mann LJ said in North Wiltshire District Council v Secretary of State for the Environment  65 E&CR 137:-
"A practical test for the Inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the Inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
64. Where the decision which has been given is inconsistent with a previous decision relating to the same property, then there is more obvious force in the complaints about inconsistency, and there is all the more need for the Minister to justify the departure from the previous decision.
65. In his written submissions, Advocate Kelleher referred to the minutes of the Ministerial meeting held in 2007 granting permission which include the comments of the Minister that "the increased floor space which would result from a revised application represented the absolute maxim that the site could be expected to accommodate. On that basis the applicant was invited to note that further incremental applications requesting an increase in floor space were highly unlikely to be considered favourably". Advocate Kelleher contended that this was not a statement that there would be no increase in floor space - only a statement that it was highly unlikely that any such increase would be considered favourably. It is true that that is part of the Ministerial statement, but the other part of the statement in question is that the revised application "represented the absolute maximum" that the site could be expected to accommodate.
66. Advocate Kelleher then submitted that as a consequence of the introduction of the new Island Plan in 2011, with Policy NE6, there was removal of the restriction which previously existed in the 2002 Plan and that the new Plan therefore did permit the footprint of a building to be extended, as Policy NE6 specifically permits extensions. There might be some force in this argument if the proposed application fell within Policy NE6. However, everyone agrees it does not. In those circumstances it does not appear to us that this submission helps the applicants much. It is then said that the 2007 decision allowed for a subsequent determination on the merits of any future application, and for an increase in floor space to be permitted if it was justified on the merits. Assuming that to be so, that would be highly uncontroversial. It would not have been possible in 2007 for the Minister to have precluded a determination on the merits of a future application. That is not the force of the argument on inconsistency. The force of the argument on inconsistency is that there has to be demonstrated a reason for departing from the previous decision.
67. When one looks at the reasons for the decision as set out above in paragraph 50, the third reason suggests that the planning history has been assessed. The statement is made that the proposal is considered to accord with the approach demonstrated in the chronology of previous applications, but apart from stating that the sensitivities of the site are recognised, no reason is given for the conclusion that the proposal was consistent with the planning history of the site. Nothing is said to tackle the inconsistencies which are set out in the Court's judgment in November 2012. It is impossible to say whether the Minister was or was not reasonable in the conclusion reached on the grounds of inconsistency, because one simply cannot understand the reasoning which underlies the decision which was taken in his name. Advocate Kelleher suggests that the Minister gave his reasons that further floor space could be permitted, which were that the proposed development was such that on its merits it was acceptable because it resulted in enhancement of the existing landscape character. It is impossible to tell whether that was or was not the reason for the decision. For that reason alone, the submission cannot succeed; but additionally, we have already found that the objectives of Policy NE6 have not been achieved by this proposal, and it follows that if the reason for the departure was the achieving of the policy objectives of NE6, such conclusion would also have to be unreasonable.
68. The evidence from the appellants was that they had checked the planning position when they purchased the property, not only in relation to the property they were buying but also in relation to neighbouring properties. The ability to carry out such checks coupled with the rights of neighbours to object to proposed developments and indeed to appeal any permission which is granted all show that the States have recognised that the neighbour has a legitimate interest in the taking of planning decisions. Furthermore, this is not just an interest which could give rise to an application by way of judicial review, but is an interest which gives rise to the wider rights of appeal which are contained in the Law.
69. In Token Limited v Planning and Environment Committee  JLR 698, said at page 709:-
"We do not find it necessary to decide today whether the English doctrine of legitimate expectation should be adopted in Jersey, and if so, how it should be adopted for our purposes. We have no doubt that the general principle enunciated in De Smith, Wolfe and Jowell's Judicial Review of Administrative Action, which we have cited above, is part of the law of Jersey. "Legitimate expectation" may be a convenient label but it appears to us essentially an expression of the requirement for consistency and fairness in relations between the individual and the state. A number of decisions on planning appeals (e.g. Whiteman v Island Development Committee and Scott -v- Island Development Committee) could be explained in the context of the disappointment of a legitimate expectation, although that terminology was not used."
70. The matter was considered in Trump Holdings Limited v Planning and Environment Committee  JLR 232, an appeal by the appellant which sought to overturn the Committee's decision to deny planning permission. One of the arguments of the appellant was that it had acquired 12 Halkett Street with the knowledge of the earlier decisions in relation to it, and that this raised a legitimate expectation that a consistent decision would be made in relation to Nos. 12 and 14 Hilgrove Street.
71. The Court of Appeal did not seem to dispute the proposition that the doctrine of legitimate expectation was one upon which a party could rely if the facts supported it. At paragraph 59, Smith JA summarised four requirements set out by Scott-Baker J in Association of British Civilian Internees (Far E. Region) the Defence Secy  EWHC 2119, those requirements being:-
(i) A clear and unequivocal representation;
(ii) The expectation was confined to one person or a few people, giving the representation the character of a contract;
(iii) That it is reasonable for those who have the expectation to rely upon it and that they do so to their detriment; and
(iv) That there is no overriding public interest that entitles the representor to frustrate that expectation.
72. In that case, the Court of Appeal found that the appellant failed to meet at least three of those four requirements, and on the facts, the case therefore bears no comparison. We do not decide the present appeal on the grounds of the doctrine of legitimate expectation, but it does seem to us to be right to acknowledge, when reviewing a complaint about inconsistency, that purchasers of property are entitled to expect that at least for a reasonable period assertions which have been made by the Planning Minister in relation to the property which they are purchasing or the neighbouring properties will not be departed from unless there is good reason to do so. This point has not been fully argued in this case, but these considerations in our judgment emphasise the extent to which the appellants are entitled to rely on grounds of inconsistency in advancing the present appeal.
73. In 2012 it was contended on behalf of the Minister that the previous planning permission was in relation to the Les Creux Hotel site, and now there were two different sites with a new planning chapter. This contention was rejected for the reasons which were set out in that judgment. In the present appeal, Advocate Benest submitted that a new planning chapter had not opened, but that we have turned the page. By this we took him to mean that we could on similar grounds as asserted by the Minister previously, ignore the planning history. In our view there is not much difference between opening a new chapter and turning the page. Both are metaphors for ignoring planning history and neither is acceptable if the result is inconsistency.
74. For these reasons we consider that the appellants succeed on the grounds of inconsistency as well as breach of Policy NE6. Accordingly the appeal is allowed and we direct the Minister to cancel his decision to grant the permission in principle.
75. The parties will note that we have not addressed one of the contentions made by the appellants, namely that the applicants bought a property with a garage which subsequently they converted into an indoor swimming pool; and the appellants therefore contended that to the extent that the applicants now have a very fine property without a garage, that is a matter for their choice and no basis upon which the present application should succeed. To that contention, the applicants submitted that the previous garage was never very satisfactory in any event.
76. We do not see the motivation for the different applications as relevant to this appeal. In our view, the applicants purchased the property which they own in January 2010 in the knowledge of the then Island Plan and the possibility of revisions to it, and in the knowledge of the existing planning history in relation to the site. The fact that it lies within the Coastal National Park is one which has implications for any proposals which require planning permission, whether in respect of that property or that of its neighbours, and this fact no doubt has both positive and negative implications in terms of the possible enjoyment of those properties, and in terms of their value. In our judgment, these considerations were not relevant for the Minister, who must apply the Island Plan save where there are material planning considerations to be taken into account such that justify a departure from it, nor are they considerations for us.
Island Plan 2011.
Planning and Building (Jersey) Law 2002.
Conservation of Wildlife (Jersey) Law 2000.
Planning and Building (Jersey) Law 2002.
Tesco Stores Limited v Dundee City Council  UKSC 13 278.
Town and Country Planning (Scotland) Act 1997.
Gransden & Co Limited and Another v Secretary of State for the Environment and Another 54 P&C.R. 86.
Town and Country Planning Act 1990.
European Convention on Human Rights.
Town and Country Planning (Scotland) Act 1972.
J A Pye (Oxford) Ltd v Oxford City Council  EWHC Admin 870.
Planning Law Practice and Precedents 2013.
R v Canterbury City Council and Robert Bret and Sons Limited  68 V&CR 171.
J Sainsbury Plc v Secretary of State for the Environment and Bexley LBH  JPL B45.
North Wiltshire District Council v Secretary of State for the Environment  65 E&CR 137.