Jersey Unreported Judgments

Planning - appeal against decision of Planning panel dated 22nd August 2011.

[2014]JRC031

Royal Court

(Samedi)

3 February 2014

Mr D. J. Liddiard for the Appellant.

Mr D. Mills for the Respondent.

judgment

the commissioner:

1.        This is an appeal against the decision of the Planning Applications Panel ("the Panel"), formally taken on the 22^nd August, 2011, under delegated authority from the Minister for Planning and Environment ("the Minister"), to refuse permission to the appellant for the construction of a two storey timber barn adjacent to the existing farm buildings at Field Farm, La Rue de la Golarde, in the Parish of St Lawrence to create tractor parking, a juice pressing room and an incubation room on the ground floor and a farm office and training facilities on the first floor. 

2.        Field Farm is owned and run by Mrs Jenni Liddiard, formerly Riggall.  The appellant is a property development and project management company owned by her husband, David John Liddiard, which he informed us would be undertaking the work if consent was granted. 

3.        Mrs Liddiard has fought long and hard to establish a farm in Jersey and was eventually given consent in principle in July 2007 to construct stable type animal infrastructure at Field Farm and to form an appropriate access.  She was, however, refused consent to establish a residential unit.  Whilst she was recognised as a smallholder, thus able to occupy agricultural land and conduct a farm business, she was not yet established as a "bona fide agriculturist" for planning purposes, as defined in the Rural Economic Strategy adopted by the States of Jersey in 2005 (the "RES"), the purpose of which was to encourage new entrants into the agricultural industry.  The view taken by the then Minister was that she did not justify a permanent dwelling until she had achieved bona fide agricultural status. 

4.        In due course, the Minister was persuaded to give Mrs Liddiard permission to erect a small temporary dwelling for the period ending 28^th February, 2015, giving her that time to obtain bona fide agricultural status by achieving a gross margin of £40,000 per annum from the agricultural practices undertaken on the farm (derived from the value of crops and livestock produced) for three consecutive years as required by the RES.  If she succeeded in reaching these milestones and obtaining bona fide agricultural status, then the temporary condition in respect of the dwelling would be removed.  If not, then the temporary dwelling would have to be removed.  This part of the consent in relation to the temporary dwelling was made personal to Mrs Liddiard and did not inure for the benefit of the land.  At the same time as being given permission to erect the temporary dwelling, Mrs Liddiard was also given consent to erect (and has since erected) farm buildings and that part of the consent did inure for the benefit of the land. 

5.        That decision of the Minister was subject to an unsuccessful third party appeal brought by a neighbour, Mrs Susan Kerley, as set out in the judgment of the Court dated 27^th November, 2008, (Kerley-v-Minister for Planning and Environment [2008] JRC 199).  That judgment sets out in greater detail the full history of the matter. 

6.        Mrs Liddiard, who is now working full time on the farm, achieved gross margins of £13,000 in 2011 and £35,000 in 2012.  At the time of the Panel's substantive decision on 25^th July last year, it was projected that she would achieve a gross margin of £43,000 for 2013; we were informed that the margin of £40,000 had been achieved for 2013 and so it would seem that Mrs Liddiard is on track to obtain bona fide agricultural status although she must now maintain that margin for another two consecutive years. 

7.        It is important, however, to appreciate that these financial targets by which Mrs Liddiard is hoping to achieve bona fide agricultural status, as defined by the RES, relate solely to the temporary dwelling on the farm and not to the farm buildings that have now been built there.  Irrespective of whether she achieves bona fide agricultural status as defined, and whether or not the residential unit becomes permanent, she is a smallholder entitled to occupy the land and conduct the farm business, irrespective of whether she can live there. 

8.        In 2012 an application was submitted (we are not clear whether by Mrs Liddiard or by the appellant) to increase the size of the temporary dwelling by creating habitable space within the loft and constructing a new barn similar to that which is the subject of this appeal.  The Planning Department was unable to support the increase in residential accommodation for the temporary dwelling until there were signs that the farm business was starting to make healthy profits as required and there were also concerns that insufficient justification had been made for the new barn.  The application was therefore refused. 

9.        The application which is the subject of this appeal is for the proposed new barn alone and is made in order to address difficulties Mrs Liddiard is encountering within the existing farm buildings (the facilities to be provided on the ground floor) and in part to provide a new income stream for the farm through training courses for those interested in smallholdings (from the first floor).  The proposed new barn covers the same surface area as the temporary dwelling and the proposed first floor training facility is accommodated by raising the pitched roof (i.e. it is a single storey building with a raised pitched roof) which is accordingly 1.9 metres higher than the remaining roof structures, although, we were told by Mr Liddiard, it is still way below the surrounding tree line.  Both the Rural Economy Manager, Mr John Jackson, and the Planning Department had considerable input, we were told, into the application which had their support. 

10.      In its report of 18^th June, 2013, the Planning Department addressed the key policy considerations including in particular:-

(i)        In relation to Policy NE7 (the Green Zone):-"The existing building is 4.6m high.  The new two storey extension will be 6.6m.  Set against the backdrop of the existing farm buildings, the existing site boundary screening and the building materials, it is considered that the proposed development will not impact on the character and appearance of the Green Zone in this location."

(ii)       In relation to Policy ERE6 (Agricultural Buildings, Extensions and Horticultural Structures):-"In conjunction with the Department's Rural Economy Manager, information has been submitted to demonstrate that the proposals are an essential requirement to secure the proper function of the farm holding, given the inadequate buildings currently existing on site."

11.      The Planning Department noted that, although it had been unable to support the 2012 application which sought to extend the temporary residential unit, the current application purely sought permission for the extension to the farm holding and had been accompanied by additional information to demonstrate why it was required.  It accordingly recommended that the application be approved. 

12.      However, notwithstanding that recommendation, the Planning Department proposed that the new barn should be a temporary structure by having imposed upon it the same conditions as are currently imposed on the temporary accommodation so that it too would be removed if the gross margins over three consecutive years were not achieved. 

13.      It would appear that these proposed conditions had the effect of sidetracking the Panel when they first met to consider the application on 27^th June, 2013, because they decided to defer the matter as they wished to have certified figures produced and more information as to why the gross margin had been set at £40,000 per annum.  That information was produced but in the meantime, the Planning Department amended its report recognising that seeking to impose the same conditions upon the new barn was inappropriate:-

"Given that the restrictive requirement to reach the required gross margins of £40k per annum refers specifically to the existing temporary dwelling on the site and not the farm buildings, the conditions imposed on the original Department report to the Planning Applications Panel on 27^th June, 2013, have been reconsidered to the extent that they are not considered to be relevant for this particular proposal."

14.      Notwithstanding this at the next meeting of the Panel on 25^th July, 2013, considerable time was again spent on the issue of gross margins.  Mr Jackson informed the Panel that the income derived from the training courses would not be taken into account in assessing the gross margins which led to the chairman saying, according to the minutes, that he found it difficult to interpret the figures and was concerned that financial issues should not overshadow planning considerations.  The Panel was minded to refuse the application by a majority of three to two, the minutes recording their reasons as follows:-

"Having considered the application, all members, with the exception of Deputy J M Macon of St Saviour and G C L Baudains of St Clement, were minded to refuse the application, contrary to the officer recommendation.  In reaching this conclusion all members complimented the applicant on the pristine appearance of Field Farm, describing it was "a model farm".  However, real concerns existed regarding the size and impact of the proposed building and the proposed uses, some of which lacked relevance to agriculture.  The Panel expressed strong reservations with regard to any further intensification of the farm at this stage, describing this as premature, and noted a suggestion from the Chairman that the applicant should consider formulating a Masterplan."

15.      Having made a decision that was contrary to the recommendation of the Planning Department, the matter was deferred for a month so that it could be referred to the Minister in accordance with Ministerial Decision PE-2-6-0012, which provides that where the Panel is minded to reach a decision which is opposite to the Department's recommendation, the decision will not be taken at that meeting, but referred to the Minister who may seek further information, issue advice to the Panel, or decide the application himself.  The Minister decided not to intervene and accordingly at the meeting of the Panel on 22^nd August, 2013, the application was formally refused.  It was agreed by the parties however that the substantive decision was that taken by the Panel on 25^th July, 2013. 

16.      The Planning Department, working from the views expressed by the Panel members on 25^th July, 2013, then formulated the reasons for the refusal in this way:-

"1.       The site is located within the Green Zone as defined on the Adopted Island Plan 2011 where there is a presumption against all forms of development for whatever purpose.  In this instance, insufficient information has been submitted to justify why the new farm buildings and in particular, the new meeting rooms, are essential to the proper running/functioning of the farm holding and agriculture in general as required by Policies GD 1, NE 7 and ERE 6 of the aforementioned Plan.  

2.        The existing development on site is, in part temporary, pending the discharge of Condition 1 of Planning Permit P/2007/2789.  In advance of this discharge given that the applicant is not a bona-fide agriculturist, it is considered premature to permit further permanent development on site which is contrary to the requirements of Policies GD 1 and ERE 6 of the Adopted Island Plan 2011. 

3.        Given its size, height and scale, the proposed timber barn would be visually intrusive and harmful to the character and appearance of the Green Zone in an area where there is a presumption against all forms of development for whatever purpose.  Accordingly, the proposal is contrary to policies GD 1; GD 7 and NE 7 of the Adopted Island Plan 2011."

17.      The principal ground of appeal relates to the second reason put forward in that notwithstanding the revision of the Planning Department's report, it was submitted by Mr Liddiard that the members of the Panel either did not read the revised report or if they did, did not understand it, because it was clear from the minutes and from the reasons given that they were concerned with whether or not Mrs Liddiard achieved the gross margins pursuant to the conditions imposed upon the temporary dwelling whereas the application was concerned with an extension to the existing farm buildings which were permanent.  Indeed, they are recorded as having "strong reservations" in effect over any further development of the farm until those margins had been achieved.  This mistake, Mr Liddiard said, was reflected in the second reason given for the refusal. 

18.      Mr Mills, for the Minister, accepted that the Panel should not have taken these matters into account and having considered Mr Liddiard's contentions, did not seek to rely on the second reason put forward for the refusal but he still maintained that the decision overall was not unreasonable.  However, he very fairly conceded that it was very difficult to know the extent to which the need for Mrs Liddiard to achieve bona fide agricultural status for the purpose of the temporary dwelling permeated the thinking of the Panel in relation to the other policy considerations.  The minutes show that they had strong feelings on the issue of her achieving that status. 

19.      It is clear to us both from the minutes and from the formal reasons given for the refusal that this irrelevant issue was mistakenly taken into account by the Panel and on the balance of probabilities we find that it permeated the thinking of the Panel in relation to the application as a whole sufficient to render the decision unreasonable.  Therefore, applying the test in Token v Planning and Environment Committee [2001] JLR 698, the appeal must succeed.  That being the case it is not necessary for us to deal with the other contentions put forward on behalf of the appellant. 

20.      There are a number of policy considerations at play in respect of this application and we do not feel qualified to judge whether, if that issue had been disregarded, the application would have been granted or refused.  Mr Mills made it clear that what concerned the Minister was the first floor and whether there was a genuine need for a training room facility.  Accordingly, we think it appropriate that the decision be set aside and the application returned to the Minister for re-consideration (following Ruette Pinel Farm Ltd v Planning and Environment Minister [2012] (1) JLR 73).  We suggest more information in relation to what is proposed in relation to this training facility should be supplied by the appellant. 

21.      We would add this further observation.  Mr Jackson advised the Panel that any income derived from the training facility would not be taken into account in calculating the gross margins in relation to the conditions imposed upon the temporary dwelling, but it would still of course be income generated for the farm and contributing therefore to its viability.  In this respect, we question whether Policy ERE 2 (Diversification of Agriculture and the Rural Economy) might be of relevance to the Minister's consideration.  Paragraph 5.144 of the Adopted Island Plan 2011 provides:-

"Changes in the structure of agriculture and economic challenges will drive diversification in the industry.  The States Rural Economy Strategy promotes diversification in the industry and looks to the Minister for Planning and Environment to support the objectives of the strategy.  Diversification might include organic production, energy crops or low intensity farming, or alternatively might include appropriate countryside activities outside farming, such as recreation, crafts, product processing or environmental management.  The Minister for Planning and Environment will generally support these activities where they do not introduce unwanted impacts and help support the farming community."

22.      In conclusion, we set aside the Panel's decision taken in the name of the Minister contained in the formal notice of 22^nd August, 2011, to refuse the application and remit the matter back to the Minister for further consideration. 

23.      Finally, we should record that before sitting to hear this appeal, we raised with the parties the fact that Jurat Kerley, who is a neighbour, had written to the Planning Department objecting to the application and his wife, Mrs Susan Kerley had spoken at the Panel Meeting against the application.  Furthermore, she was the third party appellant in the case of Kerley v The Minister.  Inevitably, the Jurats sitting on the appeal know Jurat Kerley as a fellow Jurat and Mrs Kerley, through the various official functions at which they had met.  The Commissioner was in the same position.  We had given this careful consideration and concluded that notwithstanding this connection, we felt able to discharge our judicial duties impartially and did not intend therefore to recuse ourselves.  However, we recognised that perception is important and therefore wanted to know from the parties whether they had any objection to our sitting.  The well-established test is "whether a fair minded and informed observer, having considered the facts, will conclude that there was a real possibility that the tribunal was biased."  (see Pitman v Jersey Evening Post and another [2013] JCA 149 at paragraph 8.)  It seemed to us that a fair minded observer might well be concerned about bias in these circumstances and we were therefore only prepared to sit with the informed approval of both parties.  That approval was given.   

Authorities

Kerley-v-Minister for Planning and Environment [2008] JRC 199.

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

Ruette Pinel Farm Ltd v Planning and Environment Minister [2012] (1) JLR 73.

Adopted Island Plan 2011.

Pitman v Jersey Evening Post and another [2013] JCA 149.