Jersey Unreported Judgments

Planning - third party appeal by the appellant against decision of the Minister.

[2014]JRC118

Royal Court

(Samedi)

27 May 2014

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Cornu and Nicolle.

 

The Appellant appeared on his own behalf.

Advocate G. G. P. White for the Minister.

Dr John Stanley Le Gresley for the Applicant.

judgment

the commissioner:

1.        This is a third party appeal under the modified procedure brought by the appellant ("Mr Winchester") under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") against the decision of the respondent ("the Minister") to grant planning permission to the applicant in respect of the Sion Methodist Church, La Grande Route de St Jean, in the parish of St John. 

2.        The appeal site comprises the Sion Methodist Church and church hall, a caretaker's cottage and a further detached dwelling to the west (rear) of the church known as "The Manse". 

3.        There were two applications for which approval was granted by the Planning Applications Panel ("the Panel") on 20^th December, 2013, the difference being the proposed treatment of the church itself (which is a Grade 1 listed building).  The first was for its conversion into an office and the second for its conversion into residential units, giving the applicant the option of which to proceed with.  This appeal concerns that part of the applications which was common to them both, namely the demolition of The Manse and the construction of a new building comprising two four bedroomed units and consisting of two floors and a pitched roof, which would be sited to the west of the church. 

4.        Directly to the north of the appeal site is No 9 La Chaumière ("No 9"), which belongs to Mr Winchester and which forms part of a close of nine properties built some fifteen years ago, of which No 9 forms the most westerly.  To the north, west and south of No 9 and the appeal site are agricultural fields. 

5.        No 9 comprises a triangular site with the base of the triangle to the east and the point of the triangle to the west.  The southern side of the triangle forms the boundary with the appeal site.  The two storey house at No 9 is built on the eastern and widest end of the triangle close up to the southern boundary with the appeal site and an existing out-building which forms part of the appeal site. 

6.        The Manse (which is to be demolished) is set back into the appeal site.  The proposed new building will be orientated north/south with the northern gable about two metres from the boundary with No 9.  Its gable end will be approximately half way down the garden of No 9 (commencing some ten metres from the house built at No 9). 

7.        A previous application was refused in December 2011 in part because the proposed new building was likely to have an unreasonable impact on the amenities of nearby residents namely No 9 by virtue of overlooking contrary to the provisions of policy GD1.  The applicant responded to this in the plans which are the subject of this appeal by moving the new building one metre further to the west away from Mr Winchester's property, by removing the windows in the north gable facing Mr Winchester's garden so that there are no windows in that gable and making the northern-most first floor bathroom window on the east elevation of the new building facing the church buildings and (at an angle) No 9 to be obscure glazed.  These changes were acceptable to the Planning Department who, in their report, recommended the applications for approval. 

8.        The report addresses the impact on No 9 in this way:-

"The closest neighbours border the north side of the site at Clos de la Chaumière.  This is a residential close, the rear of these properties back onto the application site with five of the gardens on the south side. 

Although the new dwelling to the north west of the site (House 1) is closer to the northern boundary than the Manse building, the significant distance of 10 metres from the west aspect of No 9 allows a noteworthy amount of south light to the garden and living space. 

The new dwelling has been relocated approximately 1 metre further west from the previous proposals under P/2011/1123, however, the previous grounds for refusal did not highlight an unreasonable loss of light or overbearing impact on No 9. 

The Department does accept that the neighbour will incur a loss of light to their garden (as shown on their submitted sun study for 21st March submitted) however for most of the day the house enjoys direct sunlight and the majority of the garden close to the site is not affected until 4-5 pm.  Crucially, No 9 will enjoy some level of sun light within the garden and most importantly close to the dwelling.  The Policy test under GD1 refers to 'serious harm to amenities of neighbouring uses.' Given the distance between the two buildings and the fact that House 1 is off set to the south west of No 9 it is not considered that the proposal will cause an unacceptable overbearing impact or unreasonable loss of light, resulting in serious harm. 

Notwithstanding the above analysis, this site is located in the Built Up Area, where it is anticipated that the level of impact of development on neighbouring properties may be greater than in the other more rural zones. 

The new bathroom window to the east elevation of House 1 is to be obscure glazed to prevent unreasonable overlooking and loss of privacy to the private amenity space of No 9 and the ground and first floor rooms. 

The large chapel windows to the north are however likely to result in an unreasonable loss of privacy to the gardens, ground and first floor rooms of the properties in Close de la Chaumière from the proposed stair wells either end of the building.  These windows are to be obscure glazed."

9.        Mr Winchester, who is an architect, wrote a detailed letter objecting to the proposed new building and to the loss of privacy and light it would cause.  He enclosed a sun study showing the extent of shadowing as at 21^st March in any given year.  He also enclosed north and west elevations showing the proposed impact of the new building.   The Planning Department accept the accuracy of these documents. 

10.      The Panel conducted a site visit on 17^th December, 2013, and held a meeting on 20^th December, 2013, at which Mr Winchester spoke.  The minutes record him as making the following points:-

"The Panel heard from Mr M Winchester of No 9 Clos de la Chaumière.  Mr Winchester made the following points:-

●   That there had been no consultation with neighbours regarding the proposed development.

●   That the proposed development would have a detrimental impact on the area.

●   That the model was misleading and that his property had been drawn incorrectly on the submitted drawings.

●   That a large gable would impact on every single window on the western elevation of his property.

●   That a scaffold profile should be erected.

●   That the proposed development would impact upon the value of his property.

●   That a scheme in which new development was more subservient to the existing church was preferred."

11.      Mr A Farman of MS Planning responded to these points on behalf of the applicant in this way:-

●     "That at no point previously had size, scale or orientation been a factor in relation to Mr Winchester's property.

●     That it would be difficult to re-orientate the dwelling referred to by Mr Winchester as this would result in overlooking not previously created.  It was suggested that in any case there was a sufficient gap between the proposed new development and Mr Winchester's property.

●     That there would be obscure glazing in the bathroom/cloakroom windows.

●     Whilst there had been no meetings with neighbours close attention had been paid to concerns raised.

●     That the density of development proposed was relatively low."

12.      Having considered the application, three Panel members expressed concerns regarding the relationship between the new building and Mr Winchester's property and therefore felt unable to support it.  The remaining four members supported the application so it was passed by that majority. 

Grounds of appeal

13.      In his notice of 9^th January, 2014, Mr Winchester sets out the following grounds of appeal:-

(i)        The application contained erroneous and misleading information contrary to the requirements of Article 9 of the Planning Law, which provides that the application must contain the particulars the Minister reasonably requires to determine the application.  It was not asserted that the applicant had provided false information which is an offence under Article 10 of the Planning Law. 

(ii)       The Panel and the Planning Department failed to accurately establish and ascertain the level and degree of adverse impact on his house arising from constructing the new building, and

(iii)      The new building would result in serious adverse loss of privacy and light to his home and garden, contrary to Policies GD1 and BE6 without having adequate justification.  

14.      He expanded on those grounds of appeal in a letter to Mr D Mills, of the Law Officers' Department which we set out in full as it encapsulates the submissions he made to us at the appeal hearing. 

"Grounds (a) erroneous and misleading

1.     The Planning Panel visited the site 17.12.13 (after calling me near 9 pm the night before) and failed to bring to site the relevant drawings.  I had to provide a set for review - which demonstrated the officer's careless attitude towards my concerns.  Exact dimensions should have been marked out on site to show the width and height of the proposals to the panel on site.

2.     I note also the Planning officer showed only a selection of the drawings I submitted at the panel meeting of the 20.12.13.  I submitted elevations clearly demonstrating the voluminous scale of the proposed gable which will overlook my garden showing that 1/3 of my garden boundary will be seriously over looked.  I cannot be sure the panel had reviewed all of these images?

3.     I also state that during the panel meeting an application prior to this application namely P20/13/1405 which was recommended for APPROVAL was in fact put on hold until scaffold profiles were erected.  This was decided after the Panel, Applicant and Neighbour had already spoken and the neighbour was then invited to intervene - which is not technically allowed?

4.   I was also amazed when I raised the fact that the model provided was incorrect that this had no bearing upon the panel's decision - then why was it at the panel meeting?

Grounds (b) ascertain the level and degree of adverse impact

5.   I asked within my 5 min slot to have scaffold profiles erected too but it was disregarded by the panel.  I was never asked to speak again and for this inconsistency I am concerned this application has been APPROVED without thorough consideration to the detrimental effect it will have upon my home.

6.   In my opinion the applicant should have been asked to provide a complete overall sun study of the proposal to demonstrate the environmental impact the proposal will have on the neighbouring properties.

7.   As also stated in my "5 minute slot" I have invested to make this my family home and to have this oppressive gable towering over our garden could have been avoided by investigating alternative designs and lay outs with a hipped gable and dormers.  Instead of the huge 9 m x 6 m gable approved.  All the rooms to my west elevation will lose privacy, despite what the planning officer has advised or the applicant.  It is very clear on site how this will seriously affect our home."

15.      At the hearing on 8^th May, 2014, the Court heard submissions from Mr Winchester, Advocate White for the Minister and Dr Le Gresley for the applicant, the latter having also submitted a short affidavit.  Following the hearing, the Court made a site visit in the presence of the parties and reserved its decision. 

Legal test on Planning appeals

16.      The test to be applied by this Court in determining appeals under the Planning Law (and its predecessor Law) is set out in Island Development Committee v Fairview Farm Ltd [1996] JLR 306 as elaborated by the passages in the Court's decision in Token Limited v Planning and Environment Committee [2001] JLR 698 where Bailhache, Bailiff, said this at paragraph 9:-

"The test to be applied by this court in determining appeals under the Island Planning (Jersey) Law 1964 was settled by the Court of Appeal in Island Dev. Cttee v. Fairview Farm Ltd (2) Le Quesne, J.A. stated (1996 JLR at 317):

'The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable.  It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view ...

...The duty of the court on an appeal under art. 21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that this decision was, in its view, unreasonable.'

The Solicitor General submitted that the decision in Fairview Farm did not entitle the Court to find that the Committee's decision was reasonable but quash it because the Court had reached an equally reasonable but different decision. We agree.  The Court might think that a Committee's decision is mistaken, but that does not of itself entitle the Court to substitute its own decision.  The Court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene.  There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken.  To put it another way, there is a margin of appreciation before a decision which the Court thinks to be mistaken becomes so wrong that it is, in the view of the court, unreasonable."

Island Plan Policies

17.      One of the strategic aims of the States Strategic Plan 2009-14 is to adequately house the population and to this end the Island Plan's Strategic Policy (SP1) provides that development will be concentrated within the Island's Built-up Area. 

18.      The appeal site and No 9 lie within the Built-up Area to which Policy H6 applies:-

"Policy H 6

Housing development within the Built-up Area

Proposals for new dwellings, extensions or alterations to existing buildings, or changes of use to residential, will be permitted within the boundary of the Built-up area, as defined on the Island Proposals Map, provided that the proposal is in accordance with the required standards for housing as established and adopted by the Minister for Planning and Environment through supplementary planning guidance."

19.      Of general application to all development is Policy GD1, which sets out the criteria that must be met, such that the proposed development:-

"3.      does not seriously harm the amenities of neighbouring uses and should, in particular;

a         not unreasonably affect the level of privacy to buildings and land that owners and occupiers might expect to enjoy.

b         not unreasonably affect the level of light to buildings and land that owners and occupiers might expect to enjoy."

20.      Mr Winchester refers to policy BE6 but that relates to building alterations and extensions and did not seem directly relevant to us. 

Decision

21.      It is unfortunate that Mr Winchester was phoned as late as 9 pm on the evening before the site visit, but it needs to be remembered that the site visit is to enable the Panel members to see the site for themselves and it is not a venue for the hearing of submissions by any of the interested parties.  That is made clear in the Code of Conduct dated January 2012 which provides as follows:-

"9.      Site visits by the Panel may be made in connection with some applications so as to better understand the context of the application.  These visits are made with officers and are usually identified when the Panel agendas are drawn up and the visits made in the days prior to the Panel meeting.  There may be some cases where the benefit of a visit only becomes apparent at the Panel meeting.  In these cases, the application will be deferred pending a visit prior to a subsequent Panel meeting.

10.      Site visits are solely to enable members of the Panel to familiarise themselves with the context of the application.  No representations can be made by any parties to the members during the site visit and members should make this clear if anyone tries to engage them in conversation over the merits of the application."

22.      We were told that the Panel receive the plans and other relevant documents (including letters of objection) a week before the hearing and they would have had these documents in this case five days before the site meeting.  

23.      It is clear from the affidavit of Mr Jonathan Gladwin, a senior planner at the Planning Department, (which was not challenged) that the Planning Officer and Panel members did have the plans when they attended first at the appeal site.  The Planning Officer was able to show the Panel the approximate position of the corner of the new building nearest No 9, so that they could see the relationship between the two properties.  

24.      The Panel members and the Planning Case Officer then walked round to No 9 where they met Mr Winchester.  The principal planner drove the Panel minibus round and inadvertently left the plans on the minibus.  Once on Mr Winchester's property, it was not necessary for the plans to be recovered as Mr Winchester had a set of the relevant drawings with him.  The Planning Case Officer was again able to make clear to the Panel members where in relation to the garden the proposed new building would be sited, namely in line with a certain holly bush and approximately two metres off the boundary fence.  Indeed, we saw the same holly bush when we visited the site and it was not in dispute that it accurately indicated the sight line. 

25.      Mr Gladwin went on to say that the Panel members had Mr Winchester's letter of objection including the sunlight analysis and the elevations showing the impact of the development with the papers for the Panel hearing and these were included in the PowerPoint presentation made to the Panel members. 

26.      In relation to the model, Mr Winchester had pointed out inaccuracies in relation both to the orientation and position of his house and the levels between the two sites which were accepted.  The Director of Planning therefore highlighted these errors on the model to the Panel members who understood these discrepancies and relied instead on the drawings as well as Mr Winchester's submissions and observations.  The model was not part of the stamped approved plans. In showing the model to us Mr Winchester agreed that it did accurately show the position of the new building vis-à-vis his garden.  

27.      Although the minutes of the meeting do not record the Panel members' response to a request for a scaffold profile, it is implicit that they decided that it was not necessary; in other words, they sufficiently understood the application to be able to proceed without that assistance.  It is at the end of the day a matter for the Panel members whether or not they require such assistance; it is not something which neighbours can demand.  We could not take Mr Winchester's point about the (unconnected) application heard before this application at the Panel meeting, where a profile was apparently ordered, any further.  The minutes of the previous application that were in our papers make no mention of it and we therefore know nothing of the circumstances.  We can only assume that in that application the Panel did need profiles in order to assist them understand the impact of the proposal.  

28.      In this case, the Panel members were assisted not only by their site visit but by the sunlight study and profiles submitted by Mr Winchester, which they accepted as being accurate and thus, in our view, they were in a position to understand the impact of the new building upon No 9.  Accordingly, we do not agree that the Panel members "failed to accurately establish and ascertain the level and degree of adverse impact" of the new building on No 9. 

29.      As to the loss of light and privacy, it is clear that the new building will harm the amenities of No 9 but the issue is whether, in the context of the Built-up Area, that harm is "serious".  We have considerable sympathy for Mr Winchester and his family in that being on the very western end of the close, they have enjoyed almost complete privacy and uninterrupted light.  The problem is that their property is in the Built-up Area and they have to accept the potential loss of light and privacy that goes with any property in the Built-up Area.  Whether or not the harm here is serious is finely balanced - hence the split decision of the Panel, but in the end, the majority concluded that it was not serious and in our view, that decision was neither mistaken nor unreasonable. 

30.      Mr Winchester was aggrieved at what he felt was a lack of community spirit on the part of the applicant in its failure to consult with him over the proposed plans.  There were a number of ways in which he said the impact upon his property could have been mitigated whilst preserving the same level of new accommodation.  The possibility of alternative ways of proceeding were discussed at the Panel meeting as made clear in the minutes set out above.  Mr Winchester is of course only one of a number of neighbours and Dr Le Gresley informed us that the applicant had called a public meeting to discuss the plans and to hear objections.  The majority who attended were supportive, but the applicant had taken into account the views of those who raised objections (including Mr Winchester) and indeed changes were made specifically to address the issue of "overlooking" No 9 that had been one of the reasons for the earlier application being refused. 

31.      The role of the Minister, however, is to apply the policies to the application actually before him, as made clear in Hayden v Minister for Planning and Environment [2013] JRC 161A, where Sir Michael Birt, Bailiff, said this at paragraphs 23 and 24:-

"We should deal with this latter submission first.  Again, we can fully understand this as a sensible proposal.  The appellant tells us that he wrote to the applicants to suggest this but has not had the courtesy of a reply.  If correct, that seems very unfortunate.  One could well understand that an appropriate spirit of neighbourliness would lead to discussion, which might in turn lead to a compromise satisfactory to all parties.

But that is not the role of the Minister.  He has to deal with applications as they are submitted to him.  It is primarily for a landowner to decide what he wishes to build upon his land.  The Minister's role is to apply the relevant planning policies and decide whether that application should be allowed.  It is not the Minister's role to reject an otherwise permissible application merely because he can think of a better application.  We therefore have to revert to the issue of whether the Minister's decision to allow this particular application is unreasonable."

32.      We have to decide whether the Panel's decision to allow this particular application was unreasonable and we conclude that it was not.  The appeal is therefore dismissed. 

Authorities

Planning and Building (Jersey) Law 2002.

Island Development Committee v Fairview Farm Ltd [1996] JLR 306.

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

Hayden v Minister for Planning and Environment [2013] JRC 161A.