Jersey Unreported Judgments

Planning - appeal of Master's decision that the Parish's notice of appeal had been filed in time.

[2014]JRC091

Royal Court

(Samedi)

8 April 2014

Before     :

H. W. B. Page, Q.C., Commissioner, sitting alone.

 

Advocate P. G. Nicholls for the Third Party Appellant.

Advocate M. T. Jowitt for the Respondent.

Advocate M. W. Cook for the Applicant.

judgment

the commissioner:

1.        On 23^rd August last year the Minister for Planning and the Environment ("the Minister") granted planning permission to Plemont Estates Limited ("PEL") under the Planning and Building (Jersey) Planning Law 2002 ("the Planning Law") for the redevelopment of an area of land on the north-east coast of the Island known as Plemont Bay Holiday Village.  Just under three weeks later, on 12^th September, the Parish of St. Ouen's ("the Parish") gave notice of its intention to appeal against this decision but the Minister contended that the Parish's notice had missed the time-limit prescribed by Article 114(7) of the Planning Law for lodging a notice of appeal by 24 hours and was accordingly of no effect.  The Parish started proceedings in the Royal Court seeking a declaration that its notice was valid and following trial of the issue earlier this year the Master declined to strike out the Parish's claim, holding in his judgment handed down on 21^st February that its notice had indeed been filed within the requisite time.  The Minister, supported by PEL, now challenges the Master's decision as wrong in law.  Procedurally, the appeal requires me to consider the matter afresh (de novo).

2.        The merits or otherwise of the proposed development is not a matter for consideration on this present hearing.  The sole issue is whether the Parish's notice of appeal against the grant of planning permission was filed within time.  If it was, the Parish is entitled to pursue its appeal; if it was not lodged in time, the notice was ineffective and the court has no jurisdiction to entertain any appeal.  The Master held in his judgment that the court has no jurisdiction to extend time and that ruling is not challenged by the Parish.

3.        The facts that give rise to this dispute are not in dispute.  PEL's application for planning permission was lodged over two years ago, in December 2011.  Because it involved a substantial departure from the Island Plan and because of the widespread public interest in the proposal and the prominence of the site the Minister directed that the matter should be the subject of a public inquiry.  That inquiry took place over a period of two days in September 2012 before a planning inspector from England.

4.        In November 2012, following receipt of the inspector's report, the Minister announced that he had resolved to approve the application subject to completion of a planning obligation agreement and certain conditions, the terms of which were set out in Ministerial Decision Reference MD-PE-2012-0120, a document running to some six or seven pages of text.

5.        The nature and purpose of a planning obligation agreement will require closer examination later on; for the moment it is sufficient to note that it is a means by which a planning authority can secure what it regards as benefits to the community which, for technical reasons, could not be accomplished by attaching conditions to a grant of planning permission.

6.        In the event, it was not until some eight months later, on 21^st August, 2013, that a planning obligation agreement was concluded in the form of a written agreement between the Minister, PEL and Bank of Scotland plc as hypothecator ("the POA").  Next day it was formally registered in the Public Registry of the Island and recorded in an Act of Court issued by the Greffier Substitute (describing the subject of the agreement as "the former Pontins Holiday Village").  Put shortly, the POA requires PEL to create nature conservation and natural landscape area programmes over parts of the site and to refurbish an Occupation bunker as a bird hide.

7.        On Friday 23^rd August, 2013 the following events occurred (though not necessarily in this order):-

(i)        a formal document entitled "Decision Notice" and dated 23^rd August, 2013, was issued by the Director of Planning and Building Services granting permission to develop land under Article 19 of the Planning Law to the extent there described and making reference to the fact that the Minister had resolved to approve the application "subject to completion of a Planning Obligation Agreement" and compliance with certain conditions and approved plans; the agreement was specifically referred to in the Decision Notice but was neither reproduced in the body of the notice nor appended to it;

(ii)       Mr. Alistair Coates, Senior Planner in the Planning & Building Services section of the Department of the Environment (which for convenience I refer to from here on as "the Planning Department"), wrote to Mr. P. Harding of BDK Architects (PEL's agents for this purpose) enclosing the Decision Notice;

(iii)      A news release by the Planning Department concerning the grant of planning permission was e-mailed to all States Members at 4.25pm and immediately thereafter to news organisations.

8.        The Decision Notice itself ran to some twelve pages (in the form in which it appeared in the court bundle, at least), each page being headed "Decision Notice" in bold, large (28-point or so) font followed by "PLANNING AND BUILDING (JERSEY) PLANNING LAW 2002" in smaller typeface and accompanied by the Planning Application number.  Occupying most of the right-hand margin of each page, reading from bottom to top, was the word "APPROVED" in large letters.  The body of the notice opened with a box-delineated text marked "IMPORTANT NOTICE" saying "This notice gives permission under Article 19 of the Planning and Building (Jersey) Planning Law 2002, as amended.  In accordance with Article 24(1) of the Planning Law and Building (Jersey) Law 2002 the grant of this permission enures (except insofar as the permission otherwise provides) for the benefit of the land to which it relates and of each person for the time being having an estate or interest in that land."  The text went on to point out that Building consent might also be required.

9.        Immediately below this box were the words:-

"The Minister for Planning & Development, having considered your application hereby GRANTS PERMISSION TO DEVELOP LAND under Article 19 of the Planning and Building (Jersey) Planning Law 2002".

In a separate paragraph there was then a summary description of the permitted demolition and the construction of 28 houses in 3 groups, together with landscaping, footpaths and a reed-bed rainwater recycling pond, at Plemont Bay Holiday Village, St. Ouen, followed, at the foot of the first page, by the heading "REASON FOR APPROVAL" and the words:-

"The Minister has resolved to approve the application subject to the completion [sic] of a Planning Obligation Agreement and to the compliance of Conditions".

10.      The statement of reasons continued for the best part of two pages to explain why the Minister had concluded that proposal represented a justifiable exception to the Island Plan.  There then followed the words "Subject to compliance with the following conditions and approved plan(s):", the heading "Standard Condition" and the words "A. If the development hereby permitted has not commenced within five years of the decision date, this permission shall cease to be valid.  Reason: The Minister for Planning & Environment reserves the right to reconsider this proposal consequent on any future change of circumstances or policy" and a further heading "Condition(s)".  Three and a half pages setting out eighteen separate conditions followed, each accompanied by a brief, italicised, statement of the reason for it.  

11.      Finally, there was a further heading "Reason(s): FOR YOUR INFORMATION: The approved plans can be viewed on the planning Register at www.gov.je/planning . The following plan(s) have been approved" and a list of drawings extending over the best part of three pages.

12.      The news release issued the same day was headed "Plemont planning permit issued". The opening paragraphs read as follows:-

"The Planning Department has issued a planning permit to allow the building of 28 new homes on the site of the former holiday village at Plemont.  The Planning and Environment Minister, Deputy Rob Duhamel, approved the application on the 14 Nov 2012, subject to certain environmental and landscaping obligations and conditions.  Following discussions and negotiations between the applicant and the Planning Department, a Planning Obligation Agreement (POA) has now been agreed and the permit issued". 

The substantive text of the release proceeded to refer to the public inquiry that had taken place, the inspector's report and the nature and purpose of planning obligation agreements, adding:-

"The Plemont POA includes:

- the ceding of land to an appropriate body for landscaping and habitat creation;

- the implementation of that landscaping and habitat creation;

- the restoration of an Occupation structure for use as a bird hide;

- a financial contribution towards a study into the state of the puffin colony that used to occupy the nearby cliffs;

- a financial contribution to the on-going maintenance of the new landscaping to ensure that a natural landscape is re-established."

13.      On Tuesday 27^th August, 2013 the Planning Department wrote to the Parish about the Minister's decision.  The letter, addressed to the Constable of St Ouen, was despatched by post and, it is accepted by the Parish, was received at some point during the following day.  Having set out a summary statement of the work proposed, the writer of the letter said:-

"I am writing concerning the above application which has now been considered.

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. 

REASON FOR APPROVAL: The Minister has resolved to approve the application, subject to completion [sic] of a Planning Obligation Agreement and to the compliance of Conditions".

As with the Decision Notice sent to PEL, that was all that was said about the POA: its terms were neither set out in the letter nor appended to it. For the rest, the content of the letter, though not its form, was to a large extent the same as that of the Decision Notice; in other respects there were significant differences, a matter to which I return later.

14.      At around 9.00am on Wednesday 28^th August, 2013 a meeting was held between the Constable of St Ouen, the Chairman of the Parish Planning Panel (Mr. Nigel Queree) and others to discuss the possibility of a third party appeal against the Minister's decision.  At that stage the Planning Department's letter, posted the previous day, had not arrived.  "Rather", as the Master recorded in his judgment, "the meeting occurred because the Minister's decision had been reported in the media".

15.      In the course of 28^th and 29^th August, 2013 a series of e-mails was exchanged between Mr. Queree and the Planning Department.  In the first, sent at 11.37am on 28^th and addressed to Mr. Townsend, the Planning Department's principal planner, Mr Queree wrote:-

"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".   

16.      An automated response from Mr. Towsend at about 2.33pm saying that he was out of the office until 4^th September having been received, the Parish evidently made contact with the Department in some other way as a result of which Mr. Coates sent an e-mail to Mr. Queree early in the morning of Thursday 29^th August saying:-

"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."

17.      Later the same day (Thursday 29^th August, 2103):-

(i)        at 3.17pm Mr. Queree replied "Many thanks. When will the planning obligation be available as clearly that has a significant impact on the decision";

(ii)       at 3.36pm Mr. Coates replied in turn: "I don't actually deal with the publishing of the POA, but am aware that the Dept is trying to get a copy uploaded to our website. I am copying this email into my colleagues Rebekah Porter and Angela Almeida who are working on the issue. Hopefully, one of them will contact you once it is on-line, or you could try emailing them tomorrow sometime";

(iii)      at 5.02pm Miss Almeida e-mailed to say that the POA could be found on the Planning Department's web-site as specified 'below'; and

(iv)      at 6.06 pm Mr  Queree acknowledged Miss Almeida's message.

18.      Fourteen days later, but fifteen days after the Planning Department's letter of 27^th August addressed to the Constable of St Ouen had in practice been received, the Parish filed its notice of appeal on Friday 12^th September, 2013.

19.      The statutory provisions concerning the time within which a third party appeal may be brought are to be found in Article 114 of the Planning Law concerning "Persons who may appeal against grant of planning permission". Paragraphs (1), (6) and (7) of that Article provide as follows:-

"(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.     

.......................................................

(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 -

(c) be served within 7 days of the decision being made; and

(d) 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".

20.      There is no dispute that the Parish is a person qualified to appeal against the grant of planning permission in question here.  The sole issue is whether its notice of appeal was given in time; that turns on the question when the stipulated 14-day period laid down by Article 114(7) is to be regarded as having started; and that, in turn, depends on the content and form of the Minister's Decision Notice and the Planning Department's letter dated 27^th August, 2103 addressed to the Constable of St Ouen.

21.      The Minister's case, supported by PEL, is that time started to run when the Parish received the Planning Department's letter on Thursday 28^th August, 2013 and that the Parish's notice of appeal was, accordingly, out of time when it was lodged on Friday 12^th September, 2013.

22.      The Parish, on the other hand, contends that this is wrong for two reasons.  First, at best (from the Minister's point of view), it was only when the Parish was informed by e-mail on the evening of the Friday 29^th August, 2013 that the POA was available to view on the Planning Department's web-site that the Minister's full decision can be said to have been made known to the Parish and the start of the 14-day appeal window was triggered, the POA being an essential part of that decision as expressed in the Decision Notice.  Secondly, irrespective of the first contention, material differences of form and content between that Planning Department's letter of 27^th August, 2013 and the Minister's Decision Notice supplied to PEL under cover of the Department's letter of 23^rd August, 2103 mean that the Minister's obligation under Article 114(6) of the Planning Law to serve on the Parish "a copy of the notice informing the applicant of the [Minister's] decision" was never satisfied and the Parish's notice of appeal was lodged before the 14-day appeal period even started to run let alone expired.

23.      The first of these two contentions by the Parish was accepted by the Master as correct, holding that the POA was an integral part of the Minister's decision.  The second point was not addressed before him.

24.      Until part way through Advocate Jowitt's opening address on behalf of the Minister at the hearing before me, the first of the Parish's contentions appeared to be the sole live issue in the case (two other points argued by the Parish in front of the Master having been abandoned). However, in the course of looking at paragraph (6) of Article 114 of the Planning Law, I observed that it was not immediately obvious that the Planning Department's letter of 27^th August addressed to the Constable of St Ouen was, strictly speaking, a "copy" of what had been sent to PEL (via its architect).  Advocate Jowitt confirmed that the point was not one that had been taken by the Parish on the previous hearing or "yet" on the appeal. After all, he suggested, the point was a technical, unmeritorious one.  That, however, was not a view shared by Advocate Nicholls, representing the Parish, who, when it came to his address, took up the point, developed it and formally advanced it as a second string to the Parish's bow.  This was a course that he was entitled to take, he submitted, given that the appeal was by way of a hearing de novo and the point was essentially one of law; Advocate Jowitt, for his part, did not suggest that the fact that the point had not previously been canvassed was a bar to the Court entertaining it: only - for reasons to which I shall come in due course - that the point was substantively a bad one.

25.      Turning to the first of the Parish's contentions, it is convenient at this point to deal with a point of fact that appeared at one stage as if it might be contentious but in the end was not.  An essential component of the Parish's case was, as I have indicated, that the first occasion on which it was informed of the terms of the POA was when the link to it on the Planning Department's web-site was supplied by the Department with its e-mail at 5.02pm on Thursday 29^th August, 2013. In PEL's skeleton argument it was argued that, in practice, by Wednesday 28^th August the Parish was well aware of what the POA concluded on 21^st August, 2013 was likely to contain because, following the public inquiry the previous year the inspector had recommended, and the Minister in his subsequent announcement in November 2012 (Ministerial Decision Reference MD-PE-2012-0120) had stated his intention of requiring, the conclusion of a POA in terms substantially the same as those that were in due course actually agreed on 21^st August, 2013; because the essence of the POA was the subject of the Department's news release the next day; and because that the news release was, it seems, circulated to all States Members by e-mail at 4.25pm on Friday 23^rd August, 2013.

26.      The Constable of St Ouen might, therefore, be expected in the ordinary course of things to have been aware of the terms of the news release shortly after its circulation by e-mail.  However, he has deposed on affidavit that he was on leave, without access to e-mail, at the time when the news release was circulated to States Members and has no recollection of having seen it prior to 29^th August, 2013.  In any event, he says, even if he had seen it, it would still have been necessary for the Parish to see the full POA - which appears to me to be no less than one would expect.  Abbreviated summaries are not the same thing as the full text of a document; and, given that negotiation of the terms of the POA appears to have taken some nine months after the Minister's November 2012 announcement and that the news release contained no more than a perfunctory description of the content of the POA in the form of five short bullet-points, there could be no certainty that the agreement actually concluded did not contain (or fail to include) provisions of materiality to a possible appeal that were not immediately evident from a mere summary.  As it was, this line of argument was not developed by Advocate Cook, representing PEL, at the hearing before me and was not one that was adopted by Advocate Jowitt on behalf of the Minister.

27.      A further line of argument canvassed in PEL's skeleton argument was that from the moment when the concluded POA was registered in the Public Registry on 22^nd August, 2013 its full terms were available to the Parish to consult, the Registry being open to any member of the public to inspect.  For reasons that remain unexplained, however, the news release did not say that the POA was available for inspection in the Public Registry (whereas the accompanying Notes to Editors included a link to a government web-site where the inspector's report could be viewed) and, as already observed, it was not for some eight days after the POA had been concluded that it was available in its entirety for inspection on the Planning Department's web-site and the Parish was so notified.  Here again, when it came to the hearing of the appeal, this argument was not developed by Advocate Cook; nor was it adopted by Advocate Jowitt. In any event, so far as it may be necessary for me to rule on the point, (1) there is no reason not to accept the unchallenged evidence of the Constable of St Ouen and of Mr. Queree that the Parish did not in fact have sight of the POA itself until the link to the Department's web-site was provided on 29^th August; and (2) I do not consider, as a matter of law, that the registering of the POA in the Public Registry was not sufficient to fix the Parish with knowledge of the terms of the POA for the purpose of  paragraph Article 114(7).  

28.      The power of the Minister to enter into planning obligation agreements derives from Article 25 of the Planning Law.  That Article provides among other things that the owner of an interest in land may by agreement with the Minister enter into an obligation ("a planning obligation"); that such an agreement may restrict the development or use of the land in a specified way, require a specified operation or activity to be undertaken in, on, under or over the land, or require the land to be used in a specified way; that it 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.  The Article also provides that, for the most part, 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 (including, in the case of an agreed restriction, enforcement by injunction); that in the event of  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 enter the land and undertake the operation and recover the expenses reasonably incurred by the Minister in so doing as a debt.

29.      The role and purpose of such agreements was succinctly described by the Master in paragraphs 31 to 33 of his judgment as follows:-

"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. 

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. 

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."

30.      Much of the debate at the previous hearing and on the present appeal, revolved around the status of planning obligation agreements and their standing in relation to "conditions" which may be attached to a grant of planning permission (Article 19(5) of the Planning Law empowers the Minister to grant permission subject to conditions), "material considerations" (Article 19(1) requires the Minister to "take into account all material considerations" in determining a planning application) and "reasons" for a Minister's decision (Article 22 of the Planning Law requires the Minister, in circumstances such as the present, to explain the reasons for his or her decision).

31.      Although the ultimate question was hotly contested, there was considerable common ground and much in the Master's judgment that was not contested by the Minister or PEL.  Thus there was no real dispute about the following:-

(i)        the statutory regimes governing planning obligation agreements and planning "conditions" are different; breach of a planning condition is a criminal offence, whereas the remedies for failure to comply with the terms of a planning obligation agreement are akin to those available in the case of a breach of contract; and unless a planning obligation agreement has been wrongly taken into account in connection with a grant of planning permission (in which case it would be a ground for an appeal under Article 114), its validity can only be challenged by way of judicial review; as Lord Hoffmann observed in Tesco Stores Ltd. v. Environment Secretary [1995] 1 WLR 759, HL at 779, one must guard against the temptation to regard a POA as analogous to a planning condition in that the source of their vires differs;

(ii)       a planning obligation agreement which has more than a de miminis connection with a proposed development (which will more often than not be the case) is a "material consideration" to which the Minister is bound to have regard in arriving at his or her decision, although the extent to which it influences the outcome is a matter of discretion for the Minister: Tesco (but whether more than this can properly be derived from this case was a matter of dispute);

(iii)      the Minister's "reasons" for granting planning permission must ordinarily be taken to be those contained in the document by which a person entitled to be informed of the result of an application is notified under Article 114(7); such reasons ought to be properly informative; simply "parroting the statutory language" is deprecated; "It is not right as a matter of principle that an appellant should be driven to commencing an appeal, with all the anguish, uncertainty and potential costs that taking such a decision involves, simply in order to ascertain the reasons why an administrative decision has gone against him": Steenson-v-Minister for Planning and Environment [2009] JLR 427, per Bailhache DB at paragraphs 17 and 18.

32.      In the end it was also common ground that a statement of reasons that is insufficiently informative to allow an interested party to judge whether it is worth appealing, while open to serious criticism and potentially leading to adverse consequences in costs for the decision-maker - as the learned Deputy Bailiff suggested in Steenson - will not prevent time running for the purposes of Article 114(7).  The Master seems to have accepted Advocate Jowitt's argument that this was a correct reading of that decision (paragraph 46 of his judgment); and, while it might be open to argument that the observations of the Deputy Bailiff were no more than obiter having regard to the facts of that case and the real point at issue as Advocate Nicholls' skeleton argument had suggested, when it came to the hearing before me Advocate Nicholls accepted Advocate Jowitt's submission as correct.

33.      The key point on which Advocate Jowitt and Advocate Cook parted company from Advocate Nicholls and from the Master's judgment was, in effect, whether a planning obligation agreement, while retaining its character as a "material consideration", can - and in this case did - also assume the status of an essential component of the Minister's "decision".

34.       Advocate Jowitt's fundamental submission was that the Minister's "decision" is something entirely separate from considerations that he may have regarded as material to his decision and the reasoning that led him to that conclusion. The error in the Master's reasoning and in the Parish's case was a failure to keep this distinction in mind: to confuse, as Advocate Jowitt succinctly put it, the "destination" with the "journey".

35.      The importance of maintaining this distinction was emphasised, he suggested, in the decision of the House of Lords in Tesco, relying in particular on a passage in the speech of Lord Keith at 770 in which 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" (underlining as in Advocate Jowitt's skeleton argument).              

36.      But I do not accept that it is possible to extract from that passage or from any other part of Lord Keith's speech (with which the other members of the House agreed) the proposition for which Advocate Jowitt contended.  The point that this present appeal raises was not in issue in Tesco: that case concerned the circumstances in which it is proper for the decision-maker to take account of a planning obligation agreement, whether in the circumstances in question it had been proper for regard to be had to it, and what weight had in fact been given to it. It was solely in this context and for this purpose that the planning obligation agreement in that case was referred to as a "material consideration", not with a view to considering whether it was also to be regarded as part of any "decision".

37.      Nor in my judgment does the case of JA Pye (Oxford) Ltd v. South Gloucester DC & Ors [2001] EWCA Civ 450 help.  This too was cited by Advocate Jowitt as indicative of the mutually exclusive concepts of "decision" and "material consideration", relying on the following observations of Latham LJ (with whose judgment Peter Gibson LJ and Lord Philips M.R. concurred):-

"They [the appellant's arguments] 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 s.29......But it does not follow that the agreement was in any way infected."

38.      Here again it seems to me that Advocate Jowitt seeks to read too much into this passage. As Latham LJ emphasised in paragraph 11 of his judgment, the court was concerned "not with the validity either of the grant of planning permission, or of any conditions attached to that permission, but with the vires if the agreement under s.52" (the equivalent of Article 25 of the Planning Law).  What the learned Lord Justice, in the passage cited by Advocate Jowitt, said must not be confused was exactly what his words indicated, namely "the tests to be applied to the validity of the planning permission on the one hand and the agreement on the other".  The specific point with which this appeal is concerned was not addressed.

39.      More forceful at first blush was Advocate Jowitt's submission that the answer to the Parish's case lies in a straightforward reading of the relevant statutory provisions of the Planning Law and that the Master's error was to fail to engage with those provisions.  The rights of a third party to appeal a decision to grant planning permission is a creature of statute, namely Article 114, and it is to that provision and that provision alone within the wider context of the Planning Law as a whole that one must look, taking as one's guide in particular the principles enunciated in Bennion on Statutory Interpretation, 5^th Edn. at Section 195, "The plain meaning rule", and Section 313, "Avoiding an unworkable or impracticable result". Adopting that approach, the key provision is found in Article 114(1) which opens with the words "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) ...........". This, said Advocate Jowitt, effectively defines "decision", wherever the word subsequently appears in Article 114 as "a [or the] decision by the Minister to grant planning permission" in response to an application: no more and no less. And so, when one finds in Article 114(6) a requirement on the Minister to serve on third parties "a copy of the notice informing the applicant of the decision", that is the extent of the Minister's obligation: nothing about including a list of considerations regarded by the Minister as material to his decision or statement of reasons.  Nor could it be right that any one particular material consideration (the POA) or reason should be picked out as requiring specific mention in the decision. If one were to be mentioned all would have to be.  Any other conclusion would lead, almost routinely, to satellite litigation as to the sufficiency of the decision and uncertainty whether time was or was not running.  The merit of the Minister's construction, reflecting the intent of the legislation, is that it produces certainty and allows all concerned to know within a desirably short space of time whether a grant of planning permission is going to be challenged.  The short time-limit for appeals is designed to strike a fair balance between the rights of objectors and the right of the recipient of planning permission to enjoy the benefit that it confers.

40.      On this basis, argued Advocate Jowitt, the Minister's decision in the present case is to be found in the three lines immediately following the boxed text in his Decision Notice of 23^rd August, 2013 as previously mentioned:-

"The Minister for Planning & Development, having considered your application hereby GRANTS PERMISSION TO DEVELOP LAND under Article 19 of the Planning and Building (Jersey) Planning Law 2002".

41.      Although he expressed his argument in terms that emphasised these three lines, Advocate Jowitt did not intend by that to exclude the conditions referred to later in the document.  On any view, conditions attaching to a grant of planning permission form part of that substantive permission and need to be communicated to all concerned, as must the description of the permitted works and the identification of the site. Advocate Jowitt's point was that a planning obligation agreement is a different creature altogether from a condition.

42.      What, then, is to be made of the fact that when the reader arrives at the first mention of "Conditions", at the foot of the first page of the Decision Letter, it is coupled with and, indeed follows reference to, the POA in the same sentence.  And what is to be made of the fact that this sentence appears under the rubric "REASONS FOR APPROVAL" which is an odd heading with which to introduce the subject of conditions?    

43.      Advocate Nicholls was justifiably critical of the way in which the Decision Letter had been formulated, particularly in its statement at this point in the document that the Minister had resolved to approve the application "subject to the completion of a Planning Obligation Agreement" when such an agreement had already been signed and a more accurate rendering would have been "subject to the terms of a Planning Obligation Agreement concluded on 21^st August 2012 between the Minister and the applicant".  The point is, no doubt, illustrative of the dangers of cutting and pasting word-processed documents without appropriate attention to the sense of the end result.  But it does not detract from the fact that the Minister's decision was expressed in a way that evidently attached as much importance to the existence of the POA as to the conditions accompanying the planning permission.

44.      Advocate Nicholls did not suggest that it is every planning obligation agreement that is to be regarded as a constituent element of a "decision" to grant planning permission: his argument was limited to the particular circumstances of the present case.  What makes the POA in the present case special, he submitted, is the fact that it was singled out for specific mention in the Minister's Decision Notice in the way described above, reflecting its high profile in the history of this application.  At least from the time of the inspector's report onwards, it was, he suggested, the key consideration.  The Minister's announcement in November 2012 had made it clear that approval of the application was subject to conclusion of a planning obligation agreement to the effect described in Decision Reference MD-PE-2012-0120; recital (F) in the agreement finally signed some eight months later acknowledged, in effect, that without such agreement "permission for the Development pursuant to the Application would not be granted by the Planning Minister"; and the prominence given to it in the news release of 23^rd August, 2013 was and is testament to its crucial role.  The Master's description of it as "an essential prerequisite or precondition of the grant of planning permission" was entirely appropriate.

45.      Against this background, the notion that the Minister's decision in the present case was sufficiently conveyed to the Parish by a document which prominently declared that the Minister had "resolved to approve the application, subject to the completion of a Planning Obligation Agreement and to the compliance of Conditions" but did not disclose the terms of the POA, append it or indicate its availability on the States' or Planning Department's web-site is, Advocate Nicholls submitted, untenable.  The Decision Notice itself, on a straightforward reading, was a composite document, essential elements of which included both the POA and the conditions to which the grant of planning permission was said to be "subject".  Failure to disclose the terms of the POA to third parties rendered the communication of the Minister's decision incomplete just as much as would omission of the terms of the conditions attached to the grant of permission.  The Master was right when, at paragraph 53 of his judgment he said "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?" 

46.      There is, it seems to me, considerable force in these submissions.  For my part, I would put the matter slightly differently from the way in which the Master expressed himself in the second sentence of the passage cited above.  The key consideration is not merely that there was a "clear connection" between the POA and the grant of permission, but the fact that the Minister chose to give the conclusion of the POA the prominence that he did in his Decision Notice, putting it on a par, in terms of importance, with the conditions to which the permission was "subject".  This is not to suggest that the POA was, as a legal concept, equivalent or analogous to a planning condition (which, as Lord Hoffmann pointed out in Tesco is not the case): simply that in terms of the importance rightly attached to it by the Minister in his Decision Notice and reflected in the Department's news release, it evidently ranked every bit as highly as the specified planning conditions.

47.      I would also add this.  The Minister's case proceeded on the basis that Article 114(6) did not require more than that the essence of the Minister's decision should be notified to the Parish.  Leaving aside for the moment the question whether that can be right having regard to the wording of that Article, it is plainly implicit in Article 114(6) that the result of such notification will put any third party recipient on the same footing as the applicant for permission so far as information about the Minister's decision is concerned: in other words, that there should be parity of knowledge.  But that objective, quite evidently, was defeated when the letter of 27^th August, 2013 to the Constable of St Ouen failed to do more than refer to a planning obligation agreement in the limited way that it did.  PEL, for its part, obviously had no difficulty in knowing exactly what the Decision Notice was referring to when it spoke of the Minister having resolved to approve its application "subject to the completion of a Planning Obligation Agreement"; but without communication by the Minister in one way or another of the terms of that agreement the Parish was denied knowledge of a crucial element of the Minister's Decision Notice and, as a result, was left at a disadvantage by comparison with PEL.  In these circumstances, the communication of the Minister's decision to the Parish in the form of the letter of 27^th August, 2013 may, it appears to me, well be described as incomplete. Restricting the term "decision" in the way that Advocate Jowitt suggests is not, I think, justifiable, confusing as it does the substantive grant of planning permission under Article 9 of the Planning Law with the way in which the Minister chose to promulgate the result of the application for that permission.  If the Minister elects to express his decision in terms that go beyond those necessary to confer statutory authority on the applicant for the proposed development, he is at liberty to do so; but having done so, he is bound by the terms of Article 114(6) to ensure that third parties are put on an equal footing with the applicant so far as the record of his decision goes.

48.      That said, I cannot pretend that I find the answer to the question raised by this first limb of the Parish's case easy.  Although the heart of the dispute falls within a very small compass and does not admit of extended argument, it does not lend itself to any obviously correct and wholly satisfactory answer. In the end, however, it seems to me that the Parish's analysis of the position is to be preferred.  If, therefore, it were necessary for me to decide the point - which, for the reasons that follow, it is not - I would hold that the Master's conclusion was correct: until the Parish was notified that the terms of the POA could be found on the Department web-site at 5.02pm on 29^th August, 2013 there had been no communication to the Parish of the full terms of the Minister's decision and time for lodging an appeal did not start to run.

49.      However, even I were wrong in this conclusion, what I described at an early stage in this judgment as the second string to the Parish's bow affords an unequivocally clear and certain answer to any suggestion that its notice of appeal was out of time.  The point is a short one and turns on the specific wording of Articles 114(6) and (7).  The former bears repetition at this point:

"(6) The Minister shall serve a copy of the notice informing the applicant of the decision on each other person who made a to which paragraph (1) refers."

As regards paragraph (7), the effect of this is that any appeal by an aggrieved third party must be lodged "within 14 days of the service of the notice" - that is, the copy notice prescribed by paragraph (6).   

50.      The wording here is striking. In the recent decision in the case of Minister for Planning and Environment-v-Herold [2014] JRC 020 the learned Bailiff noted that the time limit provided by Article 114(7) was "somewhat unusually expressed by reference to what is to be contained in a notice from the Minister".  The obligation could easily have been expressed in less specific terms if all that was intended was that third parties should be notified of the essence of the Minister's decision, but that is not what the Article says.  And the reason suggests Advocate Nicholls, correctly to my mind, is obvious enough: elementary fairness dictates that there should be exact parity of information, or parity of arms, between the applicant for planning permission and any third party, particularly one who might wish to consider an appeal. It is right therefore that a third party should be served with a copy - not a précis, summary or distillation - of what has been given to the applicant.  Copies, these days may, of course, be produced in a variety of ways and there is no reason to construe "a copy" as necessarily meaning an exact photographic replica.  A computer-generated copy or a typescript version would no doubt do; but the requirement for "a copy of the notice informing the applicant of the decision" clearly connotes the provision of a document that reproduces the full terms of that notice in substantially the same form.

51.      Judged against this requirement, the Department's letter of 27^th August, 2013 to the Constable of St. Ouen, falls significantly short of what is required.  As Advocate Nicholls pointed out there are several respects in which that letter differs from the Decision Notice supplied to PEL in both form and content. In the first place, it takes the form of a letter from the Department rather than a copy of the Decision Notice itself and contains few of the distinctive features in the way of headings (particularly those that appear on each and every page of the Decision Notice as described earlier in this judgment), boxed text, and variations of typographical font indicative of a deliberately formal document.  Secondly, the letter omits what is described in the Decision Notice as "Standard Condition - A." Any one these differences, taken by itself, might be said to be de minimis, but cumulatively they result in two documents of essentially different characters: one, the Decision Notice, a definitive document of record issued by the Director of the Planning Department, the other a significantly less formal indirect report of what the Minister has decided signed by the Applications Manager. More importantly, the letter to the Constable of St. Ouen omits altogether the words that appear on the third page of the Decision Notice (immediately following the statement of reasons) reading "Subject to compliance with the following conditions and approved plan(s)" (my emphasis) and the long list of plans that appears over the equivalent of three pages towards the end of the Decision Notice preceded by the words "FOR YOUR INFORMATION: The approved plans can be viewed on the Planning Register at www.gov.je/planning. The following plan(s) has/have been approved".

52.      Advocate Jowitt's response was dismissive of what he described as a wholly technical point. More particularly he submitted that Article 114(6) should be construed "purposively" - by which he appeared to mean no more than that it should not be taken too literally if that were to defeat the desired objective of ensuring that any appeal against a grant of planning permission is instituted promptly; that, while the purpose of that Article might be to ensure parity of information, which he accepted, there was in reality no material difference between the two documents; and that to accede to Advocate Nicholls argument would be to allow form to triumph over substance.  As to this last point, Advocate Jowitt suggested that Article 14 of the Interpretation (Jersey) Law 1954 ("Deviation in forms") while not directly applicable, was illustrative of a principle that should be applied by analogy here.

53.      I do not find any of these arguments persuasive.  Not surprisingly, Advocate Nicholls made much of the inconsistency in the Minister's case between its insistence in one breath on a strict reading of Article 114(6) when responding to the Parish's submission concerning the completeness or otherwise of the Minister's decision as notified in the Department's letter of 27^th August, 2013 and the Minister's readiness to advocate a more relaxed reading of the same provision for the purpose of countering this second limb of the Parish's case.  And when it comes to the failure of that letter to replicate the sections of the Decision Notice concerning approved plans, Advocate Jowitt could do no more than say that he questioned whether it made any difference, a submission that I am unable to accept: the significance of the list of plans is all too evident from the immediately preceding words "Subject to compliance with the following conditions and approved plan(s)".  Even if all the other points of difference are overlooked, this omission from the letter of 27^th August, 2013 renders untenable any suggestion that that letter fulfilled the Minister's obligation to "serve a copy of the notice informing the applicant of the decision" made by him on PEL's application.  It follows that receipt of that letter was ineffective to start time running against the Parish and that it cannot be said that the notice of appeal lodged by the Parish on 12^th September was out of time.

54.      For these reasons I decline to strike out the Parish's notice of appeal against the minister's grant of planning permission to PEL. 

Authorities

Parish of St Ouen-v-Minister for Planning and Environment and Plemont Estates Ltd [2014] JRC 043.

Planning and Building (Jersey) Planning Law 2002.

Tesco Stores Ltd. v. Environment Secretary [1995] 1 WLR 759.

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

JA Pye (Oxford) Ltd v. South Gloucester DC & Ors [2001] EWCA Civ 450.

Bennion on Statutory Interpretation, 5th Edn.

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

Interpretation (Jersey) Law 1954.