Jersey Unreported Judgments

Planning - application by the Parish that its notice of appeal was filed within time.

[2014]JRC043

Royal Court

(Samedi)

21 February 2014

Before     :		Advocate Matthew John Thompson, Master of the Royal Court.
Between	Parish of St Ouen		Appellant
And	The Minister of Planning and Environment		Respondent
And	Plemont Estates Limited		Applicant

Advocate D. S. Steenson for the Appellant.

Advocate M. T. Jowitt for the Respondent.

Advocate M. H. Temple for the Applicant.

judgment

the master:

1.        This is an application by the Parish of St. Ouen ("the Parish") for an order that its Notice of Appeal against the decision of the Minister for Planning and Environment ("the Minister") to grant planning permission to Plemont Estates Limited to demolish Plemont Bay Holiday Village and to allow 28 houses to be constructed was filed within time.  If the Parish's appeal was filed out of time, alternatively the Parish seeks an extension of time. 

2.        In view of the widespread public interest that the proposed development at Plemont has attracted, I am grateful to all counsel for their helpful submissions in relation to this matter. 

3.        Although the application was brought by the Parish, this followed correspondence between the Parish and the Minister's legal advisers when the Minister stated that the Parish's Notice of Appeal was filed out of time by one day and therefore there was no appeal for the Royal Court to determine.  I refer to this because I consider the legal basis pursuant to which I may grant the relief sought arises from Rule 6/13(1)(d) of the Royal Court Rules 2004 ("RCR") since in effect the Minister is asking me to strike out the Notice of Appeal.  The Minister's reasoning ( with which I agree) is that it would be an abuse of process to allow proceedings to continue if the Notice of Appeal was filed out of time and that the time period either could not be or was not extended by me.  The relief sought by the Parish is therefore consequent upon me being satisfied that it would not be appropriate to strike out the Parish's appeal on either of the two grounds formulated. 

Chronology of relevant events

4.        The decision of the Minister to grant permission was taken on 23^rd November, 2012.  The relevant part of the note of ministerial decision, reference number MD-PE-2012-A120, stated as follows:-

"The Minister has resolved to approve the application, subject to the completion of a planning obligation agreement and the compliance of conditions.  The terms of these obligations and conditions is as follows:-

The applicant shall, prior to any demolition or construction works, enter into a formal obligation with the Minister for planning and environment under Article 25 of the Planning and Building (Jersey) Law 2002.  The planning permit shall not have any effect until such planning obligation agreement is completed, signed and lodged with the Greffe.  Thereafter the conditions attached to the permit shall take full effect."

5.        On 21^st August, 2013, the planning obligation agreement was entered into by the applicant and the Minister. 

6.        On 22^nd August, 2013, the planning obligation agreement was registered by the Judicial Greffier acting through a Greffier Substitute in the Public Registry. 

7.        On 23^rd August, 2013, the applicant's architect, Mr Harding, was sent a document signed that day on behalf of the Minister called a decision notice.  Where I refer in this decision to the decision notice, this is the document I am referring to. 

8.        On Tuesday 27^th August, 2013, the Department of the Environment Planning and Building Services wrote to the Constable of St Ouen informing the Constable that the Minister had decided to grant permission.  The relevant parts of the letter are identical to the terms of the decision notice.  The relevant parts both state as follows:-

"Having taken into account all of the relevant information submitted with this application, the Minister for Planning and Environment has decided to GRANT PERMISSION, subject to the conditions noted below. 

REASONS FOR APPROVAL: The Minister has resolved to approve the application, subject to the completion of a Planning Obligation Agreement and to the compliance of Conditions. 

In reaching his decision, the Minister paid special regard to the Independent Inspector's Report and recommendations into the Public Inquiry which was held over the days of 25/26th September, 2012 and to the representations and consultations received on the planning application and the subsequent Inquiry. 

The Inspector originally called for the Public Inquiry as he considered that the proposal to develop the former holiday village by way of 26 new dwellings and 2 replacement dwellings constituted a substantial departure from Policy (Spatial Strategy) of the 2011 Island Plan.  Nonetheless, Article 19(3) of the Planning and Building (Jersey) Law 2002 states that the Minister may grant planning permission that is inconsistent with the Island Plan but shall not do so unless he is satisfied that there is sufficient justification for doing so. 

In this instance, the Minister is satisfied that there is sufficient justification for allowing a substantial department from the Island Plan. 

The crux of the issue has been whether the proposed re-development is justified as a means by which to secure a substantive, positive contribution to the repair and restoration of the landscape of the Plemont headland. 

Policy ERE 3 of the Island Plan makes permissible, as an exception, 'enabling development' which is something that would normally not be permitted but, may be permitted if it would provide a mechanism or funding to secure positive environmental benefits for the Island. 

Moreover, although Policy NE7 of the Island Plan presumes against the redevelopment of commercial buildings (for anything other than their original purposes) it does make an exception where it would make a positive contribution to the repair and restoration of the landscape. 

On this point, the Minister is satisfied that the proposal represents a clear and significant reduction in the building mass and floorspace area compared to the existing complex and that, by splitting the development into 3 clusters, this will further serve to break up the perceived bulk of the existing structures.  The new dwellings would certainly be visible on the skyline from various viewpoints but the Minister does not consider that this would result in a seriously detrimental impact upon the skyline, nor result in the loss of any strategic view or important vista. 

The proposed new dwellings also share a high quality of design following a rural vernacular with significant openness punctuating the 3 clusters.  Although not on the same footprint as the existing structures, the 3 clusters would be 'pulled' away from the North coast cliff path, offering a greater visual buffer between the coast and the development.  The Minister is satisfied that this approach to the development of the site is an appropriate response to the sensitivities of the site and its surroundings. 

The Minister has fully considered the thorough and balanced report of the Inspector and accompanying submissions, including a comprehensive Environmental Impact Assessment.  He has reached the conclusion that, notwithstanding the policy presumptions against the erection of new residential development outside of the Island's principle settlements, the proposal will result in the significant and substantial repair and restoration of landscape character.  It will enable the wholesale clearance of the existing Plemont Holiday Village structures which are, presently, a blight on the Island's sensitive North coast.  Accordingly, the Minister contends that the proposals represent a justifiable exception to Policy SP1 of the Island Plan, but also that they fall in with the exception permitted under Policy NE7 and ERE3."

9.        The remainder of the letter contained conditions.  The decision notice also had attached to it a list of three pages of plans and other materials that could be viewed electronically.  The planning obligation agreement was not one of the documents listed. 

10.      The letter to the Parish also had attached a document called a Development Control Practice Note No.3 A which 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 service of the notice."

11.      As Birt, Bailiff, observed in Herold v Minister for Planning and Environment [2014] JRC 020, the note is not wholly accurate because it is only the notice of appeal that must be served on the Minister within 14 days.  The time for filling with the Judicial Greffe is 2 days later.  Nevertheless, the Constable on 28^th August, 2013, was served with a notice stating that he had 14 days from the date of service of the Minister's decision to file an appeal. 

12.      On the morning of 28^th August, 2013, a meeting was held between the Constable and Mr Nigel Queree and others to discuss the possibility of a third party appeal against the Minister's decision in respect of the development at Plemont.  Mr Queree was Chairman of the Parish of St. Ouen Planning Panel, which was authorised to act on behalf of the Parish, (although it has no legal status) and which had been established in August 2007 by Constable Vibert to advise the Constable on planning matters.  I was informed by Advocate Steenson during the hearing, in response to a question put by me, that this meeting occurred at around 9am and that the Parish had not received the letter from the Minister when this meeting took place.  Rather the meeting occurred because the Minister's decision had been reported in the media. 

13.      It is also right to note in passing that Mr Queree is familiar with planning matters, having held the post of President of Planning and Environment Committee during his time as a Senator of the States.  He also specifically introduced to the States in 2002 the concept of planning obligation agreements and Article 25. 

14.      On 28^th August, 2013, at 11:37am, Mr Queree wrote to Mr Townsend, principal planner of the Planning and Environment Department as follows:-

"I was wondering if you were still the Planning department's appeals man?

If so, I thought you would be the best person to confirm what the latest date for submitting a third party appeal against the Plemont decision, now that the Minister has formally made the decision. 

Also, would it be possible to have sight of the actual Ministerial decision as the press release does not have the specifics, although I imagine it would not be much different from the earlier published information, but if one was to mount a third party appeal, it would be best to have the formal documents to refer to"

15.      Mr Queree received an out of office response from Mr Townsend but received a reply by email sent at 7:53 the following day 29^th August, 2013, from Mr Alistair Coates as follows:-

"A Third Party Appeal has to be lodged within 14 days of the date on which we informed the party about the permission having been granted. 

The planning permission is dated 23^rd August, but notification didn't go out until 27^th August.  Giving, say 2 days for the post office to deliver, then a reasonable date for 'service of notice' would be 29^th August (today).  14 days from now, takes us to 12^th September."

16.      Mr Queree on 29^th August by an email sent at 15:17 "asked when the planning obligation agreement will be available as clearly that has a serious impact on the decision."

17.      Mr Coates replied that same day by an email sent at 15:36 indicating that the department was trying to upload a copy of the planning obligation agreement to their website.  At 17:02 Mr Queree was informed that a copy of the planning obligation agreement for Plemont could now be obtained on the States of Jersey website and the particular page was identified.  Mr Queree acknowledged receipt of that communication at 18:06 that evening. 

The Planning and Building (Jersey) Law 2002

18.      The material parts of the Planning and Building (Jersey) Law 2002 ("the Planning Law") are as follows:-

"7 Land not to be developed without permission

(1) A person who develops land except with, and in accordance with, planning permission shall be guilty of an offence and liable to a fine.

(2) A person shall be guilty of an offence under paragraph (1) if when undertaking development the person contravenes any condition subject to which planning permission for the development was granted.

(3) In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue or could have accrued to the person in consequence of the offence.

(4) A person may be convicted of an offence under this Article despite the fact that -

(a) an enforcement notice or a condition notice has been served in respect of the breach of development controls; and

(b) every step required by the notice to be taken has been taken.

19 Grant of planning permission

........

(5) The Minister may grant planning permission unconditionally or subject to conditions.

23 Conditions attached to the grant of planning permission

(1) A condition the Minister attaches to the grant of planning permission (including permission given by a Development Order) shall fairly and reasonably relate to the proposed development.

25 Planning obligations

(1) The owner of an interest in land may by agreement with the Minister enter into an obligation ("a planning obligation").

(2) A planning obligation may -

(a) restrict the development or use of the land in a specified way;

(b) require a specified operation or activity to be undertaken in, on, under or over the land; or

(c) require the land to be used in a specified way.

(3) The agreement need not be limited to land on which development is to be undertaken or to land in respect of which an application for planning permission has been made.

(6) A planning obligation may -

(a) be unconditional or subject to conditions;

(b) impose a restriction or requirement mentioned in paragraph (2) either indefinitely or for a specified period or periods;

(c) if it requires a sum or sums to be paid, require the payment of a specified amount determined as specified in the agreement;

(d) if it requires the payment of periodical sums, require them to be paid indefinitely or for a specified period.

(7) Except as provided by paragraph (8), a planning obligation in respect of land is enforceable by the Minister against the person who entered into the obligation and any person who derives title to the land from that person.

(9) A restriction or requirement under a planning obligation is enforceable by injunction.

(10) Without prejudice to paragraph (9), if there is a breach of a requirement in a planning obligation to undertake an operation in, on, under or over the land to which the obligation relates, the Minister may -

(a) enter the land and undertake the operation; and

(b) recover the expenses reasonably incurred by the Minister in so doing as a debt due to the Minister from the person or persons against whom the obligation is enforceable.

114 Persons who may appeal against grant of 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.

(2) For the purposes of paragraph (1), a person who has made a submission to the Minister includes a body or person created by statute (other than a Minister) that has commented on the application as a result of the Minister's compliance with Article 17.[

(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. "

Was the appeal out of time?

19.      The first submission of Advocate Steenson on behalf of the Parish was that the appeal was in time.  The Parish's argument is that the decision notice incorporated the planning obligation agreement by reference and that the decision notice must be viewed as a composite document, incorporating planning conditions and the planning obligation agreement.  Until a copy of the planning obligation agreement had been made available to the Parish, the entirety of the decision notice had not been served on the Parish as required by Article 114(6) of the Planning Law.  As a copy of the decision notice was only made available on 29^th August, 2012, then the 14 day time limit contained in Article 114(7) to file a third party appeal did not start to run until 29^th August.  Therefore the appeal filed by the Parish on 12^th September was filed within time. 

20.      Advocate Steenson also contended in his oral submissions that the application was in time because, even though the decision notice was served on 28^th August, apart from the planning obligation agreement, because the notice was served by post, it was not deemed to be served until 29^th August and therefore the notice of appeal was filed within 14 days of the 29^th August.  I will deal with this latter argument on deemed service first. 

Deemed service

21.      The basis of Advocate Steenson's submission as to when the notice of the Minister is deemed to be served relied upon RCR, 5/6(3), which provides as follows:-

"5/6 Ordinary service: how effected

(3) Without prejudice to Article 7 of the Interpretation (Jersey) Law 1954, a document sent by post to an address in Jersey shall, unless the contrary is proved, be deemed to have been served on the second day after the day on which it was posted, days on which there is no collection or delivery of letters excepted."

22.      However, RCR 5/6(3) commences with the words "Without prejudice to Article 7 of the Interpretation (Jersey) Law 1954"

23.      Article 7 of the Interpretation Law provides as follows:-

"7. Meaning of service by post

Where an enactment, whether passed before or after the commencement of this Law, authorizes or requires any document to be served by post, whether the expression "serve", "give" or "send", or any other expression is used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

24.      The Planning Law itself does not state how the notice should be served.  RCR 5/6(1) specifies a number of ways in which ordinary service can be effected.  The reference to ordinary service is to distinguish such service from when personal service or service through the Viscount's Department is required.  Service through the Viscount's Department is required under RCR 5/5 (c) in the case of a summons "to reply to an appeal, the determination of which, onto a reference that determination of which, is within the competence of the court."  This includes any appeals filed under the Planning Law. 

25.      However, the obligation to serve through the Viscount's Department does not apply to the Minister giving notice of a decision to a potential third party appellant as required by Article 114(6) of the Planning Law.  Such notice can be effected by ordinary service.  One of the options available to the Minister therefore is to serve by post which is what the Minister did in this case.  It is the fact that the Minister elected to serve by post that brings into play Article 7 of the Interpretation Law. 

26.      There are two parts to Article 7.  Firstly service by post is effected at the time at which the letter would be delivered in the ordinary course of post, but secondly the contrary may be proved. 

27.      For post within the Island, the service offered by Jersey Post is for delivery on the next delivery day on a Monday to Friday unless a bank holiday occurs.  The reference to "unless the contrary being proved" allows a recipient to demonstrate that delivery was not effected in accordance with the service offered by Jersey Post and that delivery either did not occur at all or occurred at some later date.  However in this case it is accepted by the Parish that delivery of the Minister's letter of 27^th August occurred on 28^th August.  Service therefore actually occurred when it should have occurred according to Article 7.  The provisions of RCR 5/6(3), as Advocate Steenson accepted in argument, cannot override the terms of Article 7.  Accordingly his contention that the deemed date for delivery is 29^th August, by reference to RCR 5/6(3) does not succeed. 

Is the planning obligation agreement part of the decision notice

28.      I therefore revert to Advocate Steenson's primary argument advanced that the completion of service of the decision notice was not effected until 29^th August because the planning obligation agreement is part of the decision notice and was not made available until that date.  By reference to the chronology I have set out at paragraphs 4-17 above, the Minister's decision was taken on 23^rd November, 2012.  At that stage he resolved and approved the application subject to completion of a planning obligation agreement.  It is clear, from the affidavit of Mr Townsend filed on behalf of the Minister at paragraphs 110 to 112, that negotiation of the planning obligation agreement took place between the Minister's decision on 23^rd November, 2012, and its execution on 21^st August, 2013.  The restriction recorded in the Minister's decision on 23^rd November, 2012, that the planning permit did not have the effect until the planning obligation agreement was completed, signed and lodged with the Judicial Greffe, was fulfilled on 22^nd August when an Act of Court was issued registering the planning obligation agreement in the Public Registry.  Once registration occurred, the applicant then had the benefit of planning permission allowing him to develop the Plemont site.  As the Minister's decision of 23^rd November, 2012, had noted:-

"Thereafter the conditions attached to the permit will take full effect"

29.      As completion of the planning obligation agreement meant that the permit took full effect, it appears that this was the trigger for the Minister to then be required to send a notice to the applicant and to the Parish within 7 days informing them of his decision pursuant to his obligations under Article 114(6).  I agree this is the correct approach as, before completion of the planning obligation agreement, the applicant could not develop the site and had no permit to do so. 

30.      Does the fact that the planning obligation agreement had been entered into however make the planning obligation agreement part of the decision notice?  Advocate Jowitt on behalf of the Parish contended that contended that it did not for the following reasons:-

(i)        The planning obligation agreement is not a condition;

(ii)       The planning obligation agreement is one of a number of documents the Minister looked at.  Those documents are not part of the decision itself;

(iii)      If the Parish's application were successful then there is a serious danger of satellite litigation being created as to whether or not a decision notice complied with Article 114(6) therefore there would be extensive arguments as to whether or not time had started to run.  This was not what was intended by the legislature having regard to the clear words of Article 114(7). 

31.      The legal authority for the Minister to enter into a planning obligation agreement is found in Article 25 of the Planning Law which I have set out above.  Such an agreement does not have to relate to the land on which development is undertaken or be in respect of land where an application for planning permission has been made.  The agreement is in essence a contract between the Minister and the other party to the agreement and the Minister can enforce the other party's obligations.  However, a failure by a party to adhere to the terms of a planning obligation agreement is not a criminal offence.  A contravention of any condition subject to which planning permission was granted is by contrast a criminal offence (see Article 7(2) of the Planning Law).  A planning obligation agreement is therefore separate from a condition falling within Article 23 of the Planning Law which can be imposed under Article 19(5) when permission is granted. 

32.      When the concept of planning obligation agreements was introduced to the States (by Senator Queree as President of the Planning and Environment Committee) the rationale for such agreements was said in the projet to be required to enable the Committee to have the power "to control the mix and tenure of development on sites zoned for Category A housing development to ensure that all housing needs are met".  The report seeking agreement of the States explained that the Committee wanted the ability to secure the Island's objectives in social housing provision through binding agreements with the private sector. 

33.      The potential use for planning obligation agreements is however much wider than simply controlling social housing and Article 25 is not limited to the specific rationale for which the legislation was introduced.  The concept of such agreements is also one that has existed in England since their introduction under the Town and Country Planning Act 1971.  Both the Jersey and English provisions appear to be broad in scope. 

34.      I was referred by Advocate Jowitt to the case of JA Pye (Oxford ) Limited v South Gloucestershire DC (No.1) [2001] EWCA Civ 450 on the interrelationship between planning permission and planning obligation agreements.  In Pye the court of appeal referred to in the decision of Tesco Stores Limited v Secretary of State for the Environment & Ors [1995] 1 WLR 759 and stated as follows:-

18. In Tesco Stores v. Environment Secretary, supra, the House of Lords was asked to consider how the court should approach a case where it was suggested that a developer had sought to buy permission by the offer of a s.106 agreement. In that case the appellant had offered to provide by way of such an agreement full funding for a link road as part of its application for permission for an out of town superstore. The inspector had found that the need for the link road was not created by the proposal for the superstore, although there would be an increase in traffic generated by the store. The inspector recommended that permission be granted to the appellant, and that a rival proposal, which was not accompanied by the offer of funding for the link road, should be rejected. The Secretary of State rejected the inspector's recommendations and refused the appellant's application, stating that the relationship between the funding of the link road and the proposed food store was tenuous and could not be treated as a reason for granting the appellant planning permission. In dismissing the appellant's ultimate appeal, the House of Lords held that the offer of funding for the link road was sufficiently related to the proposed development to constitute a material consideration for planning purposes but that the Secretary of State had been entitled to consider that it was of insufficient weight to justify the grant of permission.

19. At 769, Lord Keith of Kinkel having cited the passage in the speech of Viscount Dilhorne in the Newbury case to which I have already referred, said at 769:

"The same test, so it is claimed, falls to be applied to a planning obligation for the purpose of deciding whether it amounts to a material consideration in connection with an application for planning permission. The parallel, however, cannot be exact. No doubt if a condition is completely unrelated to the development for which planning permission is sought it will not be lawful. But this case is not concerned with the lawfulness of Tesco's planning obligation, and there may be planning obligations which have no connection with any particular proposed development. Further in Good v. Epping Forest District Council [1994] 1 W.L.R. 376 the Court of Appeal held that an agreement under section 52 of the Town and Country Planning Act 1971, the predecessor of section 106 of the Act of 1990, might be valid notwithstanding that it did not satisfy the second of the Newbury tests. So I do not think that reference to the Newbury case is particularly helpful for the purpose of deciding whether a particular planning obligation is material to the determination of a planning application with which the obligation is associated."

20. At 770, he said:

"An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission. If it has some connection with the proposed development which is not de minimis, then regard must be had to it. But the extent, if any, to which it should affect the decision is a matter entirely within the discretion of the decision maker and in exercising that discretion he is entitled to have regard to his established policy." (my emphasis)

21. Lord Ackner and Lord Browne-Wilkinson and Lord Lloyd of Berwick agreed with the reasons given by Lord Keith. Lord Hoffmann also agreed; in his speech at 779, he dealt with the same topic. He said:

"But the use of the Newbury tests in relation to planning obligations can cause confusion unless certain points are borne clearly in mind.

First, the Newbury case was concerned with the validity of a condition and there is a temptation to regard a planning obligation as analogous to a condition. But s.70(2) does not apply to planning obligations. The vires of planning obligations depends entirely upon the terms of s.106. This does not require that the planning obligation should relate to any particular development. As the Court of Appeal held in Good v. Epping Forest District Council [1994] 1 W.L.R. 376 the only tests for the validity of a planning obligation outside the express terms of s.106 are that it must be for a planning purpose and not Wednesbury unreasonable. Of course it is normal for a planning obligation to be undertaken or offered in connection with an application for planning permission and to be expressed as conditional upon the grant of that permission. Once the condition has been satisfied, the planning obligation become binding and cannot be challenged by the developer or his successor in title on the ground that it lacked a sufficient nexus with the proposed development."

22. It is therefore clear that it is not a pre-condition for the validity of a s.52 agreement that it should relate to any proposed development. The vires of any such agreement depends simply and solely upon whether or not it was entered into "for the purpose of restricting or regulating the development or the use of the land". The October 1979 agreement was clearly entered into for the relevant purpose. Indeed there is, in effect, no dispute about Avon's powers to enter into it. The question is whether or not, in doing so, it acted unreasonably in a Wednesbury sense.

23. The basis of the argument is that, on the assumption that we have to make for the purpose of these proceedings, the conditional obligation to be undertaken by Pye by the October 1979 agreement could not have been a material consideration for the purposes of considering the planning application. It is submitted that the only conclusion that we can properly reach on the material before us is that it was taken into account. The planning application was accordingly not lawfully granted. In those circumstances, the agreement, dependent as it is on the grant of planning permission, must itself be vitiated, on the basis that no reasonable planning authority could decide to enter into such an agreement or alternatively that in determining to enter into the agreement, it must have taken into account immaterial considerations.

24. In support of this submission, we have been referred not only to the passages from Lord Keith's speech to which I have already referred, but also a further passage from Lord Hoffmann's speech, at 781:

"It is I suppose theoretically possible that a Secretary of State or Local Planning Authority may say in terms that he or it thought that a proposed development was perfectly acceptable on its merits but nevertheless thought that it was a good idea to insist that the developer should be required to undertake a planning obligation as the price of obtaining his permission. If that should ever happen, I should think that the courts would have no difficulty in saying that it disclosed a state of mind which was Wednesbury unreasonable."

25. In my judgment, these arguments do precisely what Lord Keith and Lord Hoffmann warned against. They confuse the tests to be applied to the validity of the planning permission on the one hand, and the agreement on the other. I accept that if Avon, as planning authority, took into consideration the agreement when determining to grant planning permission, the grant of planning permission could properly have been challenged. That is because Avon would have taken into account the matter which it was not entitled to take into account under section 29 of the Town and Country Planning Act 1971. But it does not follow that the agreement is in any way infected. There is nothing to suggest that the considerations which were taken into account by Avon when deciding to enter into the agreement were anything other than proper highway or planning considerations. The underlying planning application provided an opportunity to obtain a perfectly proper benefit for the locality. If there was any vice, it was in granting the planning permission, not in determining to enter into the agreement. The passage in Lord Hoffmann's speech upon which reliance has been placed is dealing with the question of materiality in relation to the grant of the planning permission, and is not concerned with the lawfulness of entering into the agreement. In any event, it is to be noted that the state of mind of the decision maker described by Lord Hoffmann is not the necessary consequence of assuming that there is no connection between the agreement and the proposed development. And it is not a state of mind that we are required to assume for the purposes of the issue before us. (emphasis added)

35.      In light of the passages I have emphasized, I consider there is a distinction between a challenge to the validity of a planning obligation agreement and a challenge to the grant of a planning permission where the Minister took into consideration a planning obligation agreement when resolving to grant planning permission. 

36.      In the former case, as in England, if a third party in Jersey wishes to challenge only the decision by the Minister to enter into a planning obligation agreement which was not linked to the grant of planning permission, then such an application would have to be brought by way of judicial review.  The right of appeal contained in Article 114 is only in respect of a grant of planning permission, Article 114(1) commences:-

"This Article applies to a decision by the Minister to grant planning permission..."

37.      However if a third party appellant wished to challenge a grant of planning permission on the basis that the Minister took into account as a relevant consideration the willingness of an applicant to enter into a planning obligation agreement then in my judgment such a challenge does fall within Article 114.  The third party appellant is challenging the grant of planning permission.  As the English Court of Appeal noted at paragraph 25 of Pye "if a planning authority took into consideration the agreement when determining to grant planning permission, the grant of planning permission could probably have been challenged."  As Lord Keith noted in Tesco Stores Limited v Environment Secretary in the passage at paragraph cited in Pye set out above, there has to be some connection with the proposed development with regard to be had to the planning obligation agreement in considering whether or not the grant of planning permission may be set aside. 

38.      In Jersey, the test pursuant to which the Royal Court may set aside the grant of planning permission is different from the test in England.  In England the test is one of Wednesbury unreasonableness.  In Jersey, as was noted in, for example, Steenson v Minister for Planning and Environment [2009] JLR 427 at paragraphs 19-30 the Royal Court has to decide whether or not it was unreasonable for the Minister to grant the permit which it did. In doing so, the court has to form its own view of the application.  That involves putting the court in the position of the Minister in the sense of looking at what materials and information the Minister relied upon or considered when the decision to grant permission was made as well as what the Minister actually decided. 

39.      I am therefore of the view that a third party appellant, in principle, is entitled to appeal under Article 114 of the Planning Law against a grant of planning permission where such a decision includes the entering into a planning obligation agreement.  However there must be an arguable causal link between the permission granted and the planning obligation agreement so that it is possible that the Court might conclude that the Minister acted unreasonably. 

40.      In this case, the decision to enter a planning obligation agreement was an exercise of a power by the Minister.  When the Minister decided on 23^rd November, 2012, to grant permission he also decided that he would exercise the power vested in him to enter into a planning obligation agreement.  Furthermore, he made it clear that, until the applicant had entered into a planning obligation agreement under Article 25 of the Planning Law, the planning permit granted in November 2012 would not have any effect. 

41.      The planning obligation agreement itself at recital (F) stated:-

"Having regard to the purposes of the law, the Island Plan 2002 the inspectors report and all other material considerations, the Planning Minister by ministerial decision reference MDPE20120120 resolved to approve the Application subject to the completion of this agreement without which planning permission for the development pursuant to the application would not be granted by the planning Minister (emphasis added)."

42.      The planning obligation agreement also related to the site in respect of which planning permission was sought.  In summary it required the developer to create a nature conservation area and natural landscape area programme, both over different parts of the site, as well as refurbishing an occupation bunker as an accessible bird hut. 

43.      In this case, therefore, there was clearly a direct link between the granting of planning permission and the Minister exercising his power to enter into a planning obligation agreement.  Although not a condition, as that term is defined in Article 23 of the Planning Law, it was an essential prerequisite or precondition of the grant of planning permission. 

44.      Advocate Jowitt contended that the planning obligation agreement in this case was not part of the decision notice because it did not contain any reasons for the Minister's decision.  He stated that the decision notice dated 23^rd August and sent to the Parish by post on 27^th August contained the reasons for the Minister's decision and therefore that time had started to run against the Parish. 

45.      He further warned in the strongest terms that, if third party appellants were entitled to challenge a notice as not having been served because reasons were inadequate or because individuals had not access to all the materials available to the Minister, then that would run the risk of creating serious satellite litigation.  This would in turn defeat the objective of a planning appeal process that for most cases should be straightforward and capable of being concluded within 4 months of any appeal being filed. 

46.      I agree with Advocate Jowitt that, if a decision notice contains reasons that are defective or do no more than parrot the statutory language (see Steenson paragraph 17 where this practice was criticized), then that is not a basis to argue that the decision notice is defective. 

47.      Similarly, if a third party applicant has not had access to all the materials that the Minister relied upon, that is also not a basis to challenge that a decision notice has not been served by the Minister.  The fact that the Minister may have looked at documents does not make those documents part of the decision process.  As an illustration, the decision notice in the current matter stated:-

"The Minister has fully considered the finally balanced report of the inspector and accompanying submissions, including a comprehensive environmental impact assessment."

48.      This reference does not make either document referred to part of the decision.  Rather they were materials considered by the Minister in reaching his decision. 

49.      If an applicant found itself in a position where reasons were inadequate or defective or the Minister did not make the materials he had considered available (contrary to the approach taken in this case where an extensive list of materials was made available on a website and referred to expressly in the decision notice) an appellant still has to appeal within 14 days of service of the decision notice.  This is because of the clear terms of Article 114(7).  As Birt, Bailiff, noted in Herold at paragraph 45, if the legislator "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."

50.      That does not mean that in such a circumstance the courts are powerless.  If a Minister were to serve a decision notice where the reasons were initially defective but which were later clarified, that might lead to the Minister being penalized in costs (see Steenson at paragraph 18).  An appellant in those circumstances might also be permitted to amend its case with leave of the court (See RCR 15/2(2)).  While it is not desirable, as W. J. Bailhache, Deputy Bailiff, noted in Steenson, for an appellant to have to issue an appeal where reasons are not clear or underlying material has not been provided, the express clear time limits contained in the statute at Article 114(7), as construed in Herold, may leave an appellant with no choice but to do so.  It is however right to observe, based on judgments in planning cases in recent years,  the Minister's practice is to give reasons which allow a third party to assess whether any appeal had a realistic prospect of success and to make materials available.  This occurred in this case as is clear from the parts of the decision notice I have set out above or referred to earlier in this decision.  

51.      Advocate Steenson's submissions focused on the fact that the Parish, at the time it was sent the decision notice, had not seen the planning obligation agreement.  He argued forcefully that the Parish did not know what was actually in the planning obligation agreement.  It also did not know whether or not it contained anything material to an argument that the Minister had acted unreasonably in granting planning permission.  It might have contained further reasons than those specified in the decision notice.  It might have contained other matters which the Parish could have relied upon to argue that the Minister had acted unreasonably. 

52.      I am of the view that the planning obligation agreement is in a different category from reasons or materials relied upon by the Minister.  This is because the decision to require a planning obligation agreement was part of the exercise of powers by the Minister to grant planning permission.  As I have noted above it was therefore an integral part of the decision as, without the planning obligation agreement, the Minister would have not granted planning permission.  

53.      If the Minister's notice had not, for example, contained details of what development was allowed or did not set out any conditions required by the Minister, he would not have informed the potential appellant of his decision as required by Article 114(6).  Why should a failure to provide a planning obligation agreement, where there is a clear connection between that agreement and the permission and where the agreement is not explained at all, be viewed any differently?

54.      In my view it should not be viewed differently.  Until the Minister provided a copy of the planning obligation agreement or made it available to the Parish, the Parish had not received the full decision of the Minister.  While the Parish had received a document called a decision notice, it had only received part of the documentation containing the Minister's exercise of his powers which made up his decision.  It had not been informed how of all the powers had been exercised by the Minister.  I am therefore of the view that the Minister had not fully complied with the obligation contained in Article 114(6) until he made a copy of the planning obligation agreement available.  He had not informed the Parish of the full ambit of his decision because the Parish did not have access to a material part of it, namely the planning obligation agreement.  I agree with Advocate Steenson's contentions that this is important because, until the Parish saw the planning obligation agreement, it was not in a position to know whether it contained anything relevant to a potential appeal. 

55.      That obligation was only fulfilled on 29^th August when the Parish was sent by email a link to a website where a copy of the planning obligation agreement could be obtained.  Accordingly, I am satisfied that time, for the purposes of Article 114(7), did not start to run until 29^th August because it was only on that date that the Parish had been informed of all of the decision, in particular the planning obligation agreement.  Prior to that date it had only been told that a planning obligation agreement existed without being told its terms.  The fact that the planning obligation agreement did not actually contain any reasons does not matter.  The Parish were entitled to know what the Minister had decided, to see the planning obligation agreement or at least a summary of its terms and to evaluate that agreement in deciding whether or not to appeal and if so on what grounds.  I also consider that the view I have reached should not give rise to the risks of satellite litigation, because my decision is not based on a lack of reasons or a failure to prove materials upon which the Minister based his decision.  How the Minister has exercised his powers is fundamental to informing a potential appellant of the decision the Minister has made.  The obligation to explain why he has exercised his powers, by contrast, arises from decisions of the Courts and not from an obligation imposed by statute. 

56.      As I have found in favour of the Parish on the first ground of its summons, I therefore refuse to strike out the notice of appeal and accordingly grant the Parish the declaration sought, namely that the appeal was within time.  However, in deference to the arguments put before me and because of the general interest in this matter, I will deal with the second ground of the Parish's application on the assumption that my decision that the Parish served its notice of appeal within time is incorrect. 

Extending time for an appeal which is out of time

57.      In relation to extending time, two grounds were relied upon:-

(i)        That the doctrine of estoppel applied so as to prevent the Minister from challenging an appeal served out of time; and

(ii)       As a matter of discretion vested in me I should extend time. 

(i) Estoppel

58.      In relation to the question of estoppel the Parish relied upon the email sent by Mr Coates on the morning of 29^th January, 2013.  I have set out the terms of the email at paragraph 15 above. 

59.      In relation to the first paragraph of the email, what is said is no more than a statement of Article 114(7) of the Planning Law.  It is not therefore a representation which might form an estoppel.  

60.      In relation to the second paragraph, in my judgment it is drafted on the assumption that the deemed date for service is two days after the decision notice was served.  However, as I found at paragraphs 21-27 above, both the actual date and the deemed date of service on the Parish of the letter and the decision notice was 28^th August, not 29^th August, 2013.  Mr Coates did not know that the Parish had in fact been served on 28^th August and appears to have been referring (incorrectly) to RCR, Rule 5/6(3), but not Article 7 of the Interpretation Law.  In my judgment his email, in suggesting that the Parish had until 12^th September to appeal, is based on an incorrect assumption of the law and an incorrect assumption of when the Parish had been served.  Mr Coates does not ever appear to have been told when the Parish had been served by anyone on behalf of the Parish.  I do not therefore construe the email as an unequivocal statement by the Minister that the Parish had until 12^th September to serve its notice of appeal by reference to the email of Mr Coates.  This is sufficient to dispose of this ground of appeal.  However, I will address the other points raised in relation to the aspect of the argument. 

An officer's authority

61.      Firstly, Advocate Jowitt argued that Mr Coates did not have power to bind the Minister, assuming in the Parish's favour, that the statement made was otherwise a representation that the Parish had until 12^th September to file a notice of appeal.  He relied on statements in Coopers & Lybrand Deloitte v Island Development Committee [1992] JLR 70 at page 95 lines 16 to 30, page 98 lines 21 to 24 and AG v Giggles [1985-86] JLR 179 at page 182 lines 14 to 25. 

62.      I agree with Advocate Jowitt that in general terms an individual officer, absent an express power of delegation, cannot bind the Minister in the exercise of the Minister's statutory duties.  However, given this is a strike out application which requires me to strike out cases where it is plain and obvious to do so, I would not have struck out the case on the basis of Mr Coates not having authority to bind the Minister.  The email sent by Mr Coates was not Mr Coates making a decision on behalf of the Minister or exercising a statutory function but rather indicating when Mr Coates thought that the time for filing an appeal expired.  No evidence was adduced before me either from Mr Coates or from the Minister about whether or not Mr Coates in fact sent his email with the Minister's authority or whether he discussed it with the Minister either in advance or subsequently.  I would not therefore have found in Advocate Jowitt's favour in respect of this submission. 

Legitimate expectation

63.      Advocate Jowitt also contended that the doctrine of estoppel should not apply in the public law arena as it was essentially a private law concept.  He cited in support of this submission R (Reprotech (Pebsham) Limited) v East Sussex County Council (HL (E) [2003] 1 WLR 348.  He further contended by reference to R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 that the doctrine of legitimate expectation arises where a Minister is exercising a statutory function and it did not apply to statements made by a Minister as to how a third party might exercise a right of appeal vested in that third party. 

64.      I agree with Advocate Jowitt that private law concepts of estoppel should not apply in the public law field and that the analysis of the House of Lords of a public authority creating a legitimate expectation is now the relevant doctrine applicable.  In that regard Coopers & Lybrand Deloitte v Island Development Committee, although decided on the basis of estoppel, would now be decided on the basis of a legitimate expectation created by the committee at the time.  I also agree that the concept of a legitimate expectation only applies to a Minister exercising his own statutory functions.  Statements made by or on behalf of the Minister outside those functions as to how a potential appellant or a member of the public might act, do not create a legitimate expectation as to how the Minister might behave.  In addition to the Minister not exercising a function vested in him when such statements are made, such statements cannot also bind third parties.  In this case even if the Minister indicated that he would not challenge an appeal brought out of time, any such statement does not bind an applicant.  An applicant is entitled to insist on adherence to the strict terms of Article 114(7).  I did not therefore consider that the doctrine of legitimate expectation assists the Parish.  

65.      After the hearing, in support of his submission, I was referred by Advocate Jowitt to Jeune v AG [2000] JLR Note 42 which is consistent with the view I have formed.  

66.       Where a statement made (by or on behalf of a Minister that he would not insist on adherence to a time limit) may be relevant, as Mr Jowitt conceded, is that such a statement is a factor that can be taken into account in exercising any discretion available to me to extend time.  I will deal later in this decision with whether or not I have a discretion in this case and, if so, how it might be exercised.  

Extending time as a matter of discretion

67.      The discretion to extend time for a planning appeal filed out of time was considered by Birt, Bailiff, in Herold.  As cited at paragraph 49 above it is not permissible for the court to invent a power of extension to address in a particular case a result which is unjust or unfair. 

68.      However, in Herold the court recognised by reference to the Supreme Court decision of Pomiechowski v District Court of Legmica Poland [2012] 1 WLR 1604 a court could exercise a discretion to extend the time limit in exceptional cases if necessary to prevent a breach of the right of proper access to a court under Article 6 of the European Convention of Human Rights ("ECHR").  At paragraphs 48 the court in Herold cited from Pomiechowski as follows:-

"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."

69.      In deciding whether or not an appellant had acted timeously the court in Herold at paragraph 60(i) of its judgment stated "in context this word in my judgment means that all she can to bring the appeal within the prescribed time limit."

Does the ECHR apply at all?

70.      In this case the appellant is the Parish.  It is therefore firstly necessary to consider if the Parish is entitled to invoke the ECHR at all.  I raised this issue with all the parties in advance of the hearing.  In my judgment the Parish cannot invoke Article 6 and therefore there is no basis for any discretion to be exercised.  This is because of the terms of Article 34 of the ECHR which provides as follows:-

"ARTICLE 34

Individual applications

The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

71.      Under Article 3 of the Human Rights (Jersey) 2000, which gave effect to the convention as part of the domestic law of the Island (see Article 2) including Article 6 of the ECHR, I am required in determining a question which has arisen in connection with a convention right to take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. 

72.      I was provided with copies of two decisions of the European Court Rothenthurm Commune v Switzerland application 13252/87 and Ayuntamiento de M v Spain application 15090/89.  While both of these decisions were in respect of Article 25 of the ECHR, the precursor to Article 34, both held that the commune council in the Rothenthurm case and the city council in the Ayuntamiento case were governmental organisations and accordingly could not invoke the ECHR.  Advocate Jowitt also referred to a Scottish decision, Grampian University Hospital NHS Trust v Napier [2004] JC 117.  On the facts the Court in Grampian held that an NHS Trust was not a non-governmental body and therefore could not invoke the ECHR.  The court expressly considered whether the NHS Trust concerned was a non-governmental organisation falling within Article 34 and cited amongst other cases the Ayuntamiento authority to which I have referred in support of its reasoning. 

73.      At paragraph 14 of the Grampian judgment three possible tests were formulated as follows:-

"14     From the foregoing case law it was not disputed by either counsel for the appellants or the Advocate-depute that three possible tests as to whether an organisation was a governmental one could be distilled:

(1) Is the organisation a decentralised authority which exercises public functions?

(2) Would the acts of the organisation engage the responsibility of the State under the Convention? and conversely,

(3) Can it be said that the organisation is not under the supervision of the State and is accordingly an entity distinct from the State of which it is completely independent?"

74.      In relation to these tests, I am satisfied that the Parish is a local authority and therefore is a governmental organisation falling within Article 34.  This can be seen from Part 11 of the 1861 Commissioners report starting at page 40.  In relation to roads, the Loi (1914) Sur La Voirie places an obligation on each parish to maintain by-roads or les chemins vicinaux within that parish.  Under the Roads Administration (Jersey) Law 1960, a parish has power to acquire land for the purposes of road construction and improvement.  Both of these statutes are entirely consistent with the summary of duties owed by a parish as set out in the 1861 Commissioners report.  If a parish did not discharge its duties, that could be a basis for a judicial review application; if an individual had suffered loss or damage the Parish might face a civil action in damages for breach of statutory duty. 

75.      In relation to the second and third questions posed in Grampian, if a parish acted in breach of convention rights, although I was not addressed on the point specifically, it is difficult to see why a parish's breach would not engage the responsibility of Jersey and indirectly the United Kingdom under the ECHR.  I also consider that it cannot be said that the parishes do not fall under the supervision of the States of Jersey or are completely independent of the States.  Ultimately, subject to the sanction of the Privy Council, the States has power to legislate in all aspects of domestic affairs.  The States could therefore determine the nature and extent of the obligations of the parishes and which obligations the parishes will assume and which will or might be assumed by the States.  A relatively recent example is the transfer of the administration of poor relief from the parishes to the Minister for Social Security. 

76.      I have therefore concluded that the Parish is a governmental organisation within Article 34 of the ECHR and cannot therefore invoke Article 6 to ask the Court to extend the strict time limit set by the States in Article 114(7). 

A civil right

77.      If I am wrong, and the Parish is a victim for purposes Article 34, the next question that arises is whether a civil right was engaged.  In relation to this issue it was accepted by all parties that the reason why the Parish had standing to appeal was because it owned a road adjoining this site which it was required to maintain under the Loi (1914) Sur la Voirie.  In Herold the Royal Court cited the decision of the European Court of Human Rights of Ortenberg v Austria [1994] 19 EHRR 524.  The European Court's conclusions are contained in paragraph 28 of its judgment.  The final sentence of the quotation is instructive and states:-

"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."

78.      The Herold decision also cited R (Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions [2002] 1 WLR 1450.  The relevant part of the Friends Provident decision cited in Herold stated:-

"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."

79.      In this case the position is different.  While it is true that the Parish owns a plot of land adjoining the site, I am not satisfied that the same close link, referred to in the Ortenberg and Friends Provident cases, exists in this case.  The grounds relied upon in the notice of appeal filed by the Parish do not anywhere state that the value of the Parish's interest in the by-road will be damaged if planning permission is granted.  Rather the whole focus of the grounds contained in the notice of appeal is that the Minister acted in manner inconsistent with the Island Plan, the Green Zone Policy, the Coastal National Park Policy and acted to contrary to the ERE Policy and Policy NE7.  There is also a suggestion of procedural irregularity/unfairness. 

80.      The Parish's position was also set out in its letter of representation to the inspector appointed which was repeated in the notice of appeal as follows:-

"The Parish believe that this site is totally unsuitable for a new community of this size; there is poor public transport service; no social provision and a general lack of amenities.  The application does not meet the objectives contained in the Island Plan designed to protect such areas from large-scale development.  The Parish supports the removal of intrusive and ugly development; the proposed residential development is significant and may not provide the environmental and character improvements it seeks to achieve."

81.      The Parish's position is therefore very far removed from that of Mrs Herold.  She was concerned about the impact of a development of 17 flats immediately adjoining her property which was a listed building.  In her case the Bailiff found there was clearly a close link between the development and the impact on Mrs' Herold's property.  The focus of the appeal of the Parish, by contrast, is not on the impact of the development on the by-road.  It is a much more a fundamental objection of principle to the development as a whole. 

82.      Mr Steenson did argue that the granting of a development might cause the Parish to have to expend additional sums to keep the by-road in a good state of repair.  His submission was not supported by any evidence.  In any event, this obligation is a public duty not a private obligation on the Parish.  I also note that, in the inspectors report at paragraphs 202-209, a traffic assessment was carried out which did not suggest that the increase in traffic would be significant.  I am therefore not persuaded by Advocate Steenson's submission that a possible increase in the costs of maintaining the relevant by road is enough to establish a sufficiently close link for the Parish to have a civil right for the purposes of Article 6.  

The exercise of discretion

83.      If I am wrong that the Parish cannot invoke Article 6 at all or, alternatively, I am wrong that it does not have a sufficiently close link to do so, and therefore there is a discretion vested in me, I now turn to consider how I would exercise that discretion.  

84.      The starting point for an exercise of discretion is the principles in Herold that I have already referred to.  As Birt, Bailiff, noted in Herold the discretion vested is an extremely narrow one and only arises in exceptional circumstances.  I further construe the decision in Herold to mean that the circumstances must relate to why the appeal was filed out of time and must include me being satisfied that Parish did all it could to bring the appeal within sufficient time.  I am not satisfied it did so for the following reasons:-

(i)        The email from Mr Coates on which the Parish relies, as I have noted at paragraph 60 above is based on an assumption.  At no stage did the Parish ever communicate with Mr Coates to set out the relevant time when the Parish had received the Minister's letter of 27^th August.  Although Mr Queree, as I was informed in submission, did not know when he emailed Mr Coates on 28^th and 29^th August that the decision notice had been received by the Parish, the Parish did know.  If Mr Queree did not know he could have been informed and if he did know at a later date before the time limit had expired then he should have clarified the question asked on 28^th August;

(ii)       When the planning obligation agreement was received on 29^th August the Parish or Mr Queree did not ask whether they had 14 days from receipt of the planning obligation agreement to appeal.  The Parish could easily have done so;

(iii)      In submission and in Mr Queree's second affidavit at paragraph 6, it was accepted that the notice of appeal could have been filed on the 11^th September.  The only reason that the notice was not filed was because "it was deemed sensible to take advantage of this to ensure that the notice of appeal was as well prepared as possible."(see paragraph 6 Mr Queree's second affidavit); this is not acting timeously;

(iv)      In his second affidavit at paragraph 5 Mr Queree also accepted he did not respond further to Mr Coates's email because it was his interpretation of Mr Coates's email that the notice of appeal was not due on 28^th August.  The appeal notice was not therefore filed on 12^th September, not in reliance on Mr Coates' email, but because of Mr Queree's interpretation of that email which he did not clarify with anyone.  Yet he could have contacted Mr Coates, the Minister or taken legal advice.  He did not take any of these steps. 

85.      I was urged by Advocate Steenson, for the Parish, that I could take into account, in exercising my discretion, the level of public interest in this development.  In my judgment that is not how I construe any discretion vested in me by Herold.  The discretion is a much narrower one and in my judgment focuses on the reasons why the appeal was not filed in time.  I do not consider that the discretion vested in me, assuming there is one, allows me to take into account the fact that a number of individuals and groups are opposed to the development or that it is a matter of some controversy within the Island. 

86.      If therefore there had been a discretion for me to exercise, I would not have exercised my discretion in favour of the Parish. 

The Applicant

87.      It is right also I deal with a particular submission of the applicant.  Generally the applicant supported the Minister's arguments.  The one outstanding point it is necessary for me to deal with concerns the fact that the applicant was not served correctly.  The point raised is that the notice of appeal was not served by the Viscount's department on a director or other officer of the applicant or at the applicant's registered office.  

88.      The obligation to serve the applicant arises from RCR 15/3D(3), which requires an appellant when the notice of appeal is served on the Minister to also serve a copy upon the applicant.  Quite frequently this requirement is overlooked. 

89.      It is accepted that the Parish purported to serve the applicant by sending a copy of the notice of appeal by registered post on 13^th September, 2013, to Mr Harding the architect for the applicant.  On 12^th November, 2013, Mr Harding was also served personally by the Parish acting through the Viscount's Department with the notice of appeal. 

90.      On this point, if service is not effected in accordance with RCR 15/3(D)(3), I do have a discretion to extend time by virtue of RCR 1/5.  It is not therefore an issue governed by the Interpretation Law or by the terms of Article 114(7) of the Planning Law.  As I have found that the appeal was served within time, it is necessary for me to consider whether I would exercise my discretion to allow the applicant to be served out of time.  In my judgment I should allow the applicant to be served out of time for the following reasons:-

(i)        Mr Harding is well known as being the public face of the applicant in relation to this appeal.  He has consistently represented the applicant. 

(ii)       The Minister himself served a copy of the decision notice on the applicant by sending it to Mr Harding.  No complaint is made by the applicant that it has not been notified of the decision although a director or officer was not served.  

(iii)      The notice of appeal was served the day after it was served on the Minister.  This is not therefore a case of a notice of appeal not being served at all or an applicant starting to commence a development because they believe that planning permission had been granted and there had been no appeal. 

(iv)      There is no evidence before me to suggest that Mr Harding did not immediately draw the attention of the notice of appeal to directors and officers of the applicant.  Given his involvement I would have been very surprised if a copy of the notice of appeal was not either immediately or very promptly sent to the applicant. 

(v)       While the affidavit of Mr Grindrod did refer to prejudice that his client might suffer if the appeal was allowed to continue, the sort of risks he referred to are those inherent in any significant development where a development might be delayed because of a third party appeal, including an unsuccessful third party appeal.  Both Article 114 and the terms of the decision notice itself make it clear planning permission does not take effect until 28 days after its decision to allow third party appeals to be presented and if one is presented that the planning permission cannot take effect until the appeal is determined. 

(vi)      No evidence of prejudice was shown to me as a result of allowing the Parish to serve the applicants in accordance with the Rules at this stage, if the Parish was otherwise authorised to proceed with its appeal. 

91.      For all these reasons and in the exercise of my discretion I therefore allow the Parish to serve the applicant out of time.  Such service shall be effected by the Viscount by close of business Friday, 28^th February, 2014. 

Conclusion

92.      For the reasons set out in this judgment I am satisfied that, although the letter notifying the Parish of the Minister's decision was served on 28^th August, 2013, because a copy of the planning obligation agreement was not made available to the Parish until 29^th August, 2013, the Minister only informed the Parish of all aspects of his decision and the exercise of his powers on 29^th August.  Accordingly, I am satisfied that the 14 day period within which the Parish had to serve a notice of appeal did not start to run until 29^th August so that the Parish was within time when it served its notice of appeal on 12^th September, 2013.  I therefore refuse to strike out the Parish's notice of appeal and grant the declaration sought that the appeal is within time. 

93.      If I am wrong on the above conclusion then for the reasons also set out above, there is no discretion vested in me to extend time.  Had there been such discretion I would not in any event have exercised it in favour of the Parish to extend time. 

94.      As far as the applicant is concerned, given my finding that the appeal is within time, I therefore extend time for the Parish to serve its notice of appeal on the applicant as required by the RCR. 

Authorities

Royal Court Rules 2004.

Herold v Minister for Planning and Environment [2014] JRC 020.

Town and Country Planning Act 1971.

JA Pye (Oxford ) Limited v South Gloucestershire DC (No.1) [2001] EWCA Civ 450

Tesco Stores Limited v Secretary of State for the Environment & Ors [1995] 1 WLR 759.

Steenson v Minister for Planning and Environment [2009] JLR 427.

Coopers & Lybrand Deloitte v Island Development Committee [1992] JLR 70.

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