James McNeill, Q.C., President;
Minister for Planning and Environment
Bernard William Fairman and Judy Lumsden Fairman (née Coleman)
Andrew Alvin Hobson and Maureen Audrey Hobson
Appeals of First Appellant and Second Appellants against the judgment of the Royal Court given on 29th January 2014 that the decision of the First Appellant of 27 June 2013 be cancelled.
Advocate D. J. Benest for the First Appellant.
Advocate J. D. Kelleher for the Second Appellant.
Advocate N. M. C. Santos-Costa for the Respondents.
1. This is the judgment of the Court.
2. This is an appeal from the decision of the Deputy Bailiff, assisted by Jurats Peter John Morgan and Paul Nicolle, dated 29th January 2014 ( JRC 028), in which it was directed that the First Appellant ("the Minister") cancel his decision to permit the construction of a semi-basement double garage at Beauport Place, Le Chemin De Beau Port, St Brelade ("the Property"). The Property is owned and occupied by the Second Appellants ("the Fairmans"). It is common ground that the proposed garage would be a standalone, but ancillary, building (of approximately 40 square metres) and would increase the footprint of the Property by between 5% and 8%. We will refer to the facts in greater detail later in the judgment.
3. There is an ancillary appeal by the Minister against the Costs Order made by the Royal Court, which it has been agreed will be resolved separately in light of the outcome of the substantive challenge.
4. At the heart of the appeal is a consideration of the meaning and effect of a planning policy, and various Articles of the applicable Law.
5. The Property is situated in the Coastal National Park ("CNP") within the States of Jersey Island Plan 2011. The Island Plan (original or revision) is prepared by the Minister, consulted on, and presented to the States for approval. The procedure is set out in Articles 3, 4 and 4A of the Planning and Building (Jersey) Law 2002 ("the 2002 Law"). The applicable policy statement in the Island Plan is National Environment 6 (known as "Policy NE 6") which, so far as relevant, provides:-
"The Coastal National Park, as designated on the Proposals Map, will be given the highest level of protection from development and this will be given priority over all other planning considerations. In this area there will be the strongest presumption against all forms of new development for whatever purpose.
The Minster for Planning and Environment recognises that there are existing buildings and land uses within the Coastal National Park and there will be a strong presumption against their redevelopment for other uses; their extension; and the intensification of their use.
Exceptions will only be permitted where it is demonstrated that:-
(1) Extensions to existing residential buildings will not cause serious harm to the landscape character of the area, and where their design is appropriate relevant to existing buildings and their context;
6. The Island Plan, of which Policy NE6 forms an integral part, is not legislation, and not an Act of the States. But, based on the fact that it is expressly approved by the States, and is not merely a statement of the Minister's policy, it attracts considerable and enhanced respect. To this extent it can be distinguished from "guidelines and policies". The 2002 Law clearly draws a distinction between different exercises of discretion in Article 6(3) and Article 19(3) - see paragraphs 11 and 12 below.
7. The statement of policy in Policy NE6 is supported by explanatory paragraphs 2.55-2.71 in the Island Plan. We here set out paragraphs 2.64, 2.65 and 2.70:-
"2.64 These areas contained within the Coastal National Park are accorded the highest level of protection in the countryside character appraisal, which will take priority over all other planning considerations. Accordingly there will be the strongest possible presumption against all forms of new development and the extension and/or intensification of existing development.
2.65 It has to be acknowledged, however, that Jersey's Coastal National Park is a living landscape, with many buildings and land uses within it. Whilst there should be a presumption against the introduction of new uses or buildings into the Coastal National Park that would detract from the existing landscape character, there may be opportunity to secure the repair and restoration of its character by allowing exceptions to the presumption against new development to be made where it is clear that a redevelopment of existing buildings or land uses might provide an opportunity to repair or reduce the damage caused to the landscape character by existing buildings and uses.
2.70 Proposals to extend the curtilage of existing residential premises in the Coastal National Park will also be resisted as their approval would lead to the cumulative erosion of the extent and quality of the predominant landscape character. It is, however, considered to be reasonable for the Minister to be able to permit small scale extensions to residential buildings in the Coastal National Park where they do not unduly harm or detract from the landscape character of the area and where the cumulative visual impact of the development of a property is not damaging to the wider landscape."
8. It is common ground in this appeal, first that the Property is covered by Policy NE6, and secondly, that the proposed garage is not an "extension to existing residential buildings" and, therefore, that exception (1) does not apply.
9. In 2012, draft supplementary planning guidance in respect of Policy NE6 was put out for consultation. At paragraph 6.3.7, under the heading "Extension to Existing Residential Buildings", the Minister suggested a relaxation in relation to the extension exception referred to above:-
"Whilst not explicitly referred to in Policy NE6, proposals to extend dwellings by the provision of ancillary buildings and structures, such as garages and outbuildings (which are not in the form of extensions to the principal dwelling house) should be considered in the same manner as extensions, where the key test will be the impact upon landscape character. As with extensions, the larger the ancillary buildings and structures are the greater their impact is likely to be."
We were informed that the proposed relaxation was not pursued further nor implemented.
10. It is also necessary here to set out the introductory wording of NE7 covering the Green Zone:-
"The areas designated as Green Zone on the Proposals Map will be given a level of protection and there will be a general presumption against all forms of new development for whatever purpose."
In the Green Zone, unlike under NE6, "limited ancillary or incidental buildings within the curtilage of a domestic dwelling" will be permitted, but only where "the scale, location and design would not detract from, or unreasonably, harm, the character of the area".
11. Article 19 of the 2002 Law recognises that planning permission can be granted even if the proposed development is inconsistent with the Island Plan:
"(1) The Minister in determining an application for planning permission shall take into account all material considerations.
(2) In general the Minister shall grant planning permission if the proposed development is in accordance with the Island Plan.
(3) The Minister may grant planning permission that is inconsistent with the Island Plan but shall not do so unless the Minister is satisfied that there is sufficient justification for doing so."
12. By contrast, Article 6(3), as mentioned above, applies to "guidelines and policies", but does not in our opinion apply to the Island Plan. It affords a wider measure of discretion:-
"The Minister shall take into account when considering an application for permission to develop land the extent to which the proposed development complies with any relevant guidelines and other policies he or she has published."
13. There is one additional policy to be considered - the General Development Consideration, particularly GD1 which provides, so far as relevant:-
"GD1 - Development proposals will not be permitted unless the following criteria are met such that the proposed development -
2. does not seriously harm the Island's natural and historic environment, in accord with Policy SP 4 "Protecting the natural and historic environment", and in particular;
(a) will not have an unreasonable impact on the character of the coast and countryside (Policy NE6 'Coastal National Park'; Policy NE7 'Green Zone'...).
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...".
14. The 2002 Law provides for appeals by third parties against the grant of planning permission - see Article 114(1), (5), (8) and (9):-
"(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 m of any part of the site to which the planning permission relates.
(5) When the appeal is determined the decision shall have effect, if at all, in accordance with the determination.
(8) On the appeal of the Royal Court may -
(a) confirm the decision of the Minister; or
(b) order the Minister to vary his or her decision or any part of it (including any condition of the planning permission) as the Royal Court may specify; or
(c) order the Minister to cancel his or her decision to grant the planning permission.
(9) The Minister shall comply with an order made under paragraph 8(b) or (c)."
15. Article 109 of the 2002 Law provides that an appeal under Article 114 "may only be made on the ground that the action taken by or on behalf of the Minister [here the grant of planning permission] was unreasonable having regard to all the circumstances".
16. An important issue in this appeal is the correct approach to the exercise of the Article 109 and 114 jurisdiction - in particular, what is meant by "unreasonable" in Article 109.
17. Article 19(3) of the 2002 Law requires consideration of the test "sufficient justification".
18. Although we invited submissions from the parties on the scope of the jurisdiction of this Court under Article 12 of the Court of Appeal (Jersey) Law 1961 on appeal from the Royal Court when exercising its jurisdiction under Article 114 of the 2002 Law, in view of the conclusions we have reached on other issues it is not necessary for us to deal with this in any detail.
19. There is a somewhat protracted history in relation to development at the Property and the neighbouring property La Cotte View House, occupied by the Respondents ("the Hobsons").
20. This particular development relates to the construction of a garage close to, but not adjoining, the Fairmans' house. We can take much of the history, although here summarised, from the judgment of the Royal Court in November 2012 -  JRC 200 - which concerned an earlier application to the Minister to give permission for the development of a garage on the Property.
21. Some time ago, there was a single property known as Les Creux Hotel on the site. On 30th June, 2006, the Minister gave permission for the demolition of the hotel and the construction of two large dwellings with associated car parking facilities. The permission was granted under the Island Planning (Jersey) Law 1964, on the basis of the 2002 Island Plan. The reasons for the decision emphasised that the site lay within a particularly sensitive area of a zone of outstanding character.
22. In 2007 (RP/2007/0576), an application was approved for internal alterations to be made to the Property to create a wine cellar and enlarged garage space. When permission was granted the former Minister declared in the Ministerial meeting that "the increased floor space which would result from the revised application represented the absolute maximum that the site could be expected to accommodate. On that basis the applicant was invited to note that further incremental applications requesting an increase in floor space were highly unlikely to be considered favourably."
23. The Fairmans purchased the Property in January 2010. At that time, as when built, there was an integral lower ground garage at the front of the Property.
24. In February 2011 (application P/2011/0222), the Fairmans applied for permission for various changes and, relevant to this appeal: "to convert lower ground floor garage and guest suite into swimming pool...and double garage to north-west of existing dwelling". The application was refused in May 2011 on the grounds that the proposed detached garage "by reason of its position, size and design" would result in the loss of a strategic gap between the properties and would introduce an urban element into an otherwise open coastal location, which would be dominant and intrusive and cause significant harm to the character and setting of the surrounding Zone of Outstanding Character and to St Brelade's Bay.
25. In its written expanded reasons for refusal (by letter dated 11th May 2011) the Planning Department said:-
"In order to address the reasons for refusal of the garage, we are happy to discuss the options of re-positioning and re-design for the garage, to perhaps the rear western elevation. This would ensure the strategic gap between the properties is kept and that this type of structure would not be seen from this prominent coastal location, within the surrounding St Brelade's Bay area."
26. In June 2011 (application P/2011/0972) the Fairmans submitted a further application for the conversion of the existing garage into a swimming pool. That was granted in October 2011. The Royal Court described the position in paragraph 21 of the 2012 judgment:-
"In other words, the applicants had applied for the construction of a garage in May 2011 and had been refused, and in June 2011 applied to convert the existing lower ground floor garage and guest suite into an indoor swimming pool, and were given permission. If that work had been carried out, then of course the applicants' property would not have had the benefit of any garage."
27. On 26th October 2011 (application P/2011/1423) the Fairmans submitted an application for permission to build a proposed new, partly buried, garage. This (although larger and higher) was effectively the same application as the subject of the present appeal.
28. The 2012 judgment addresses this application as follows:-
"The very same day, the agents for the applicants signed a further application form for the creation of a semi-buried garage within extended landscaping. The application form was not actually received by the Planning Department until 27th October, but there is no doubt that the securing of the approval to convert the existing garage into an indoor swimming pool was but the first step in the overall scheme for the creation of a new garage on the applicants' property. The application was advertised in the usual way and objections from the appellants and others were received by the respondent. As a result, discussions with the applicants took place and revised plans were submitted. A landscape and visual impact assessment drawing was received in February 2012, and a planning department report written thereafter. This was considered by the Planning Applications Panel at its meeting on 1st March, the Panel having visited the site on 29th February, and the application was approved with four Panel members voting in support and one member voting for refusal...".
29. The impression from these paragraphs of the 2012 judgment is that there was some unrevealed plan by the Fairmans always to construct a replacement garage. In his 2013 Affidavit, Mr Fairman says, at paragraph 12:
"... our intention since the beginning of 2011 was to convert the garage into a swimming pool with leisure facilities which would have views across the bay, and construct a more suitable garage elsewhere on the property. That remains our intention: the garage conversion is now almost complete."
This accords with paragraph 11 of the May 2012 affidavit sworn by Mr Fairman. In contrast, Mrs Hobson points to the 2011 application by the Fairmans (RP/2011/0972) which highlighted that the proposal to convert the lower ground floor garage and guest suite into an indoor swimming pool, as noted above, would not have impacted on the current use of the land whereby vehicles are generally parked out in the open: "The proposal suggests no change in this pattern of use". It is perhaps unfortunate, and was likely to cause suspicion and concern, that the Fairmans' development intentions were not made completely clear in publicly available documents.
30. There was a third party appeal by the Hobsons against a decision of the Minister, issued on 2nd March, 2012, to permit the construction of the garage.
31. That appeal was successful, for the reasons set out in paragraph 56 of the 2012 judgment:-
".... the appeal succeeds because the Planning Applications Panel on behalf of the minister has granted a planning permission for a development which was inconsistent with the Island Plan 2011, albeit the Panel did not recognise that this was so and did not justify any departure from the Plan. Given the planning history of both this site and the neighbouring site, the need to have close regard to the Island Plan and to all material planning considerations was self-evident, but it seems that this was overlooked, especially insofar as Policy NE6 was concerned. This was unfortunate, because it is clear that the greatest care needs to be taken where an application site lies within the Coastal National Park, such that very high levels of protection are given to it and there is a strong, sometimes the strongest, presumption against development. We suspect from the material which we have seen that the planning officers considered that the scheme currently under appeal was a considerable improvement on an earlier scheme, and therefore that it ought to be recommended for approval - and indeed that approval be given. If that were the approach, we think it was the wrong one. The test on each application is not a comparison with what has gone before on the basis that any improvement suggests a consent, but rather, in accordance with Article 19 of the Planning Law, whether the proposal is consistent with the Island Plan and is appropriate given all material planning considerations, or whether a permission can be justified despite inconsistency with the Island Plan."
32. Relevant to the instant appeal, the Royal Court then criticised the March 2012 decision on the basis that there was a failure to recognise the inconsistency with Policy NE6, and therefore, no attempt to justify any departure from the Island Plan, as required by Article 19(3).
33. The 2012 judgment ended by explaining why the Minister was to be ordered to cancel the permission rather than merely reconsider in light of the Court's reasoning in the judgment:-
"For all these reasons the permission granted to the applicants cannot stand, and in accordance with the Court's powers under Article 114(8) of the Planning Law, we order the minister to cancel his decision. We add that we have considered whether simply to remit the matter to him for reconsideration but we do not think that would be the right course to adopt. First of all, the appeal has succeeded on more than one ground. Secondly, and more importantly in this case, the appellants bought their property in October 2008 in circumstances where the minister's approach to any further development of the footprint of both their house and that of the applicants was clear. They were entitled to rely upon it for at least the immediately foreseeable future. Yet here we are, only three to four years later, and the minister has taken a different approach as though this is a new planning chapter. We do not think that is fair."
34. The Fairmans' understanding of the 2012 judgment is set out in paragraphs 21 and 22 of the affidavit of Mr Fairman:-
"21. The Royal Court did not consider the merits of Application 1423, nor did it have cause to do so....
22. I understand that [the] Royal Court had cancelled the Minister's decision on the basis that there had been two fundamental mistakes in the planning consideration process in relation to Application 1423 and not on the merits of the Application. My wife and I are the individuals who have unfortunately suffered the most because of these mistakes and we would still like a suitable garage for our property. My understanding of the judgment was that it did not preclude my wife and I from submitting a further Planning Application for a garage."
35. That was November 2012. There was no appeal.
36. A further planning application was submitted on 21st December, 2012 (P/2012/1708), again for the construction of a semi-basement double garage in the north west of the site. The detail of that proposed garage can be taken from the Department of the Environment Report for the Planning Applications Panel Site Visit: -
"The structure has a depth of about 7m and (on average) is about 7.3 m wide. It provides generously to 2 cars, with space to get in/out. The whole structure is set into the ground so that the roof is level with the first terrace in the garden, with the garage level being about 1.7 m below the existing hard surface.
The access route to the garage would be via the existing driveway, which, beyond the back of the house, then ramps down to the garage.
With the whole structure being set into the ground, and the roof level then coinciding with the existing terrace, there will be very little impact externally. This situation would be reinforced by the replacement planting. The existing car parking area immediately to the north of the house would be a plateau, and when viewed from the end of the driveway, the proposed garage would be below the horizon formed by the plateau.
In this instance the garage will have no discernible impact in the immediate or wider landscape, commentary has been provided on this issue elsewhere in the Report and the external views have been tested by site visit. The two dwellings have been purposefully developed as separated buildings, and the history of applications across the sites demonstrates the importance given to this separation. The application will not undermine this objective. Indeed, the inclusion of the landscaped terrace on top of the garage will facilitate further planting in lieu of what would otherwise be hard surfacing can enhance the gap, to the benefit of the immediate environment and the Coastal National Park."
37. The main differences between the 2011 and the 2012 Applications (based on the evidence, and summarised in a letter from Advocate Kelleher dated 12th February, 2013) are a reduction in floor area of the garage from 53.9 to 40.3 square metres, and by sinking the garage into the ground by 1700mm (a further 1400mm) so as not to project above the height of an adjoining link fence separating the two houses.
38. The Hobsons again objected to the proposal, identifying four grounds (taken from paragraph 4 of the judgment of the Royal Court now under appeal, but with the names of the parties added):-
(i) The Minister had given a clear statement in 2007 that the development on the site which was then approved represented the maximum permitted accommodation and that further applications were unlikely to be considered favourably. On the basis that decisions following that statement should be consistent, the Hobsons had purchased their property.
(ii) An ancillary building in the Coastal National Park is outside the scope of what was intended by Policy NE6. In those circumstances an essential need for the development had to be demonstrated if an application were to be successful, and in this case, the need for a garage had only arisen because the Fairmans had converted their existing garage into a swimming pool.
(iii) Cars would still be parked externally and so there would be no visual improvements. Furthermore there would be a detrimental impact on the amenities of the Hobsons' property due to invasion of privacy from noise, headlights and a greater degree of overlooking.
(iv) It was unclear as to how excavated material would be dealt with, and any new landscaping would take years to mature.
39. Representations and counter-arguments were duly made in support of the development. The planning case officer visited both the site and the Hobsons' property, and made a detailed recommendation for approval (brief extracts are set out above) which was endorsed by the Director of Planning. The Planning Applications Panel conducted a site visit on 25th June 2013 and considered the application at its meeting on 27th June 2013. Advocate Purkis and Mr Stein, representing the Hobsons, and the Connétable of St Brelade spoke against the application. The Fairmans, their architect and Advocate Kelleher, addressed the Panel in favour of the application. The Minutes of that meeting ended:-
"Having considered the application and having been satisfied that sufficient justification existed for making an exception to policy, unanimously approved the application, subject to the imposition of certain conditions detailed within the officer report. In doing so, and having regard to the conditions expressed by the Hobsons regarding the potential for the garage roof to be used as an amenity area, the Panel directed that proposed condition No. 2 be amended to ensure that this did not happen. The Panel delegated authority to the Director, Development Control, to approve the amended condition".
40. The formal decision of the Minister (dated 27th June 2013), allowed the 2012 Application, granted permission under Article 19 of the 2002 Law, and imposed conditions:-
"Reason for approval: the proposed development is considered to be acceptable having due regard to all of the material considerations raised. In particular, the development has been assessed as an exception outside the terms of Policy NE6 of the Jersey Island Plan within the Coastal National Park, and is justified by reference to its appropriate design and siting, plus its enhancement of the landscape to reinforce the gap between the neighbouring dwellings, as viewed in its local and wider context, including across St Brelade's Bay.
The impacts on the neighbouring property La Cotte View House have also been considered, including by visiting the site and the neighbour. By reference to the existing context of the application site and the neighbouring property, the proposal is not considered to result in serious harm or unreasonable impacts, and so accords with Policy GD1 of the Jersey Island Plan.
The planning history of the site, and its neighbour, have also been assessed. The proposal is considered to accord with the approach demonstrated in the chronology of previous applications. The sensitivities of the site are recognised and decisions have been made on their merits in accordance with the framework of Island Plan Policies including the consistent understanding of the objectives behind those policies".
41. The main condition, relevant to this appeal, was to impose a planting scheme, and to ensure that the space above the garage could not be used as an amenity or sitting area, and thereby overlook the Hobsons' property. The planting conditions required compliance with the approved scheme over a five year period, but not beyond.
42. That decision was in turn appealed to the Royal Court under Article 114(1) of the 2002 Law.
43. The planning history is further set out and expanded in the Affidavits prepared for the hearing - by Jonathan Gladwin, senior Planner of Planning and Building Services of the Ministry of Planning and Environment, sworn 9th August 2013, by Maureen Hobson sworn 30th August 2013, and by Bernard Fairman also sworn 30th August 2013, together with the exhibits. Within the exhibits are a number of plans and photographs which clearly set out and show the proposed development. This is the factual material presented to the Royal Court.
44. Two members of the Royal Court, the Deputy Bailiff and Jurat Morgan, had visited the Property and the Hobsons' house, when hearing the 2012 appeal. The stated reason for the visit (see paragraph 2 of the 2012 judgment) was "for the purposes of reaching a conclusion as to whether the minister's decision was or was not reasonable". What they found on that visit, and how (if at all) it influenced the decision is not described in the 2014 judgment, nor in the 2012 judgment. We would observe that both in Trump Holdings Limited-v-Planning and Environment Committee  JLR 232 at pages 249-250 and in Minister for Planning and the Environment v Dorey  JCA 219, this court expressed disquiet about site visits not directed solely to enabling the Court to understand the issues and which might involve the court in taking into account factual or opinion evidence which had not been before the decision maker on an application to develop land. That remains the view of this court. Site visits can be valuable, particularly where, as here, the Royal Court must reach its own views. But it is not in general the function of the court to receive new evidence: see paragraph 76 below. Finally, if there is to be a site visit it is in our judgment very desirable that all the potential fact-finders should attend at the same time so that the whole court has access to all the same evidence. In this case only one of the eventual fact-finders, Jurat Morgan, had been on a site visit and that in connection with the earlier appeal.
45. On the consistency issue and the planning history, Mr Gladwin summarises the Minister's position at paragraph 58 of his affidavit:-
"In conclusion on this issue, the Minister's comments in RP/2007/0576 should not be construed as an embargo on future development on the appeal site, instead any planning application should be considered on its own merits taking into account all the material planning considerations at that time. The site is located within the Coastal National Park where there is the highest level of protection against development, but this zoning does not rule out any future development, rather sets a high-bar on what shall be permitted. The [Minister] considered that in this particular case there was sufficient justification for granting planning permission as a suitable exception to Policy NE6 of the Island Plan 2011."
46. At paragraph 10, the Royal Court summarised the two significant issues before it:-
"The first is whether or not the proposed development falls within Policy NE6 in the Island Plan, and if not, whether there is sufficient justification for the decision of the Planning Applications Panel so that, on the application of Island Development v Fairview Farm Limited  JLR 306 and Token v Planning Environment Committee  JLR 698, it cannot be said to be unreasonable. The second issue is whether the planning history is such that the present decision of the Planning Applications Panel can be considered, as Advocate Santos-Costa urged us, to be unreasonable of the grounds of inconsistency - the planning history amounting to a material planning consideration for present purposes. There are other points that arise peripherally to these issues, but these were the main issues which were canvassed before us in argument."
47. At paragraph 14 of the judgment the Royal Court held that the appeal "really requires us to reach a view as to when the Court will sanction a departure from the policy of the Island Plan". That subject was explored by the Court in the following paragraphs of the judgment, to which we will return.
48. The appeal was allowed on the following grounds: first, that the proposed development breached Policy NE6 in the Island Plan, (and the Minister was unreasonable in deciding that a departure from the Island Plan was sufficiently justified for the purposes of Article 19(3) of the 2002 Law); and second, that the decision was inconsistent with earlier decisions and the planning history more generally. The Royal Court directed the Minister to cancel his decision to grant the permission in principle.
49. The basis (in summary) for finding in favour of the Hobsons on the first ground was:-
(i) The proposed development breached Policy NE6, and did not fall within any exception - paragraphs 41-49 of the decision;
(ii) It was impossible for the Minister, properly directing himself, to conclude that there was sufficient justification for departing from the Island Plan, as compliance with other policies was not relevant, the approved design and siting of the proposed garage "does not begin to justify a departure from Policy NE6", and the reference to enhancing the gap "does not come close to providing a justification to depart from Policy NE6" - paragraphs 50-59.
50. The second basis, and again we summarise, was reached because nothing had been done "to tackle the inconsistencies which are set out in the Court's judgment in November 2012" and, although substantive legitimate expectation was not being applied, there was no proper basis for "opening a new chapter or turning a new page" in the planning history - paragraphs 60-74.
51. Whilst the Royal Court rejected the submission made on behalf of the Hobsons that the fact that the Fairmans bought a property with a garage which subsequently they converted into a swimming pool should be taken into account, it went on to state (in paragraph 76):-
"We do not see the motivation for the different applications as relevant to this appeal. In our view, the applicants purchased the property which they own in January 2010 in the knowledge of the then Island Plan and the possibility of revisions to it, and in the knowledge of the existing planning history in relation to the site. The fact that it lies within the Coastal National Park is one which has implications for any proposals which require planning permission, whether in respect of that property or that of its neighbours, and this fact no doubt has both positive and negative implications in terms of the possible enjoyment of those properties, and in terms of their value. In our judgment, these considerations were not relevant for the Minister, who must apply the Island Plan save where there are material planning considerations to be taken into account such that justify a departure from it, nor are they considerations for us."
We agree with that analysis.
52. There is a one page Notice of Appeal lodged by the Minister with three grounds, and a thirty five paragraph Notice of Appeal lodged by the Fairmans. There is some duplication and overlap in the Fairmans' grounds, and it seems to us that the Notices can usefully be combined to produce a set of grounds which cover the various heads of complaint:-
(i) Ground 1 - The Royal Court erred in its interpretation of the status and application of the Island Plan and its policies, and in so doing failed to acknowledge the correct approach to policy and the circumstances in which it might be departed from as required by Article 19(3) of the 2002 Law.
(ii) Ground 2 - The Royal Court erred in law in determining that no design or siting could provide "sufficient justification" for a departure from the Island Plan.
(iii) Ground 3 - The Royal Court fundamentally misunderstood the nature and purpose of the "strategic gap" and why retaining the "strategic gap" was of importance to the local context, and erred in law in determining that it was impossible for a development to enhance the gap between the dwellings.
(iv) Ground 4 - The Royal Court erred in its finding that the Minister is bound by a previous planning decision unless he can demonstrate a sufficient reason to justify a departure from that previous decision.
(v) Ground 5 - The Royal Court erred in substituting its own view as to the merits of the planning application without giving sufficient consideration to the resultant fettering of the Minister's discretion.
53. Grounds 1 and 5 above require an understanding of the role of policy, the circumstances in which the decision-maker can depart from policy, and the function of the Court when there is an appeal. We consider these issues in turn.
54. There is a degree of common ground. The Royal Court, at paragraph 20, held that the policies contained in the Island Plan are not the only material considerations which the Minister may take into account on any particular application - see Article 19(1), (2) and (3). In paragraph 21, the Royal Court continued:-
"It follows from these three paragraphs of Article 19 that there may be material planning considerations which are outside the Island Plan, and these may provide sufficient justification for the Minister to grant a permission which is inconsistent with it. The starting point therefore is to recognise that there may be material planning considerations which fall outside the Island Plan. Where this happens, those material considerations must be balanced against Island Plan policies - the Minister is given a jurisdiction under Article 19 to determine where that balance lies, and the Court can be asked to review his exercise of power under the appellate provisions."
55. This theme continues through the judgment and in paragraphs 47 to 49 the Court indicated that, proceeding on the conceded basis that the proposed development would involve breaching Policy NE6: (i) "to grant a permission for this particular application would put the Minister in the territory of having to justify his decision on the Article 19(3) of the Law", and (ii) "the first question on the appeal must be whether or not it can be said that the Minister was unreasonable in considering that a departure from the Island Plan was justified for the purposes of Article 19(3) of the Law".
56. There is a helpful summary of this principle in Kerley v Minister of Planning and Environment and Riggall  JRC 199, at para 38(iii):-
"The decision maker need not adhere slavishly to policy as to do so would be in breach of the requirements of Article 19(1) of the Planning Law which requires the Minister 'to take into account all material considerations'. This is amplified by the provisions of Article 19(2) and(3) whereby in general the Minister shall grant planning permission that is in accordance with the Island Plan but should not grant planning permission that is inconsistent with the Island Plan unless satisfied that there is sufficient justification for doing so."
57. It is also common ground that in order to act lawfully the decision-maker (here the Minister) must properly understand the policy, and a decision founded on a failure to understand the policy will be as defective as it would be if no regard has been paid to the policy. This is consistent with the English law approach known as the "Gransden test" (after Gransden & Co Ltd v Secretary of State for the Environment and another  54 P&CR 86). It is unnecessary here to refer to the other cases (from England and Scotland) referred to in the parties' contentions which address the limits of policy - City of Edinburgh Council v Secretary of State for Scotland  1 WLR 1447, Lord Hope at 1449; J A Pye (Oxford) Ltd v Oxford City Council  EWHC Admin 870 and  EWCA Civ 116, Tesco Stores Ltd -v- Dundee City Council  UKSC 13 (at paragraph 19 of the judgment, per Lord Reed; British Oxygen Co Ltd -v- Board of Trade  AC 610; or R (on the application of Alconbury Developments Ltd) -v- Secretary of State for the Environment  2 AC 295, Lord Clyde at para 143.
58. In any event, such cases must be treated with care as the statutory framework in Jersey is materially different from that in England, Wales and Scotland.
59. Jersey case-law itself offers some assistance when considering the proper interpretation of the words "sufficient justification" in Article 19(3) of the 2002 Law. This is clearly a materially different test than "shall take into account" in Article 6(3). The phrase is sometimes used in statutes following a list of events that will be deemed to provide "sufficient justification" but here it sets a standard. "Sufficient" could be read as "adequate", but that merely begs the question. Advocate Santos-Costa pointed in his contentions to various dicta of the Jersey Courts which also use the word "adequate" - Steenson v Minister for Planning and Environment  JLR 427, at paragraph 57(i); Manning v Minister for Planning and Environment  JRC 086A, at para 29.
60. In Planning and Environment Committee v Le Maistre  JLR 389, dealing with a different provision, the Court of Appeal endorsed the following statement of the learned Bailiff at first instance: "A presumption is not a straitjacket. A presumption carries the connotation that, in the absence of more compelling considerations, a decision will go a particular way. But if there are other compelling considerations, a presumption may be overridden". However the use of the concept of "compelling considerations" may be inappropriate where Article 19(3) itself sets the standard of adequacy - "sufficient justification". What is, or is not, sufficient is therefore essentially a question of fact, and must be considered not only in the context generally of the Island Plan but in the context of the particular policy. Here, Policy NE6 provides in clear and strong terms that the Coastal National Park is to be given the "highest level of protection" and "this will be given priority over all other planning considerations". And, finally, "there will be the strongest presumption against all forms of new development for whatever purpose". There is also the specific list of exceptions, with their own internal standards and tests. Advocate Benest, for the Minister, contended when considering Article 19(3) and Policy NE6: "...the Law quite readily permits a decision that is inconsistent with the Island Plan taken as a whole, and therefore any policy in particular" (our emphasis). We do not agree. This formulation dilutes the requirement of "sufficient justification", and the need to consider the precise requirements of the Island Plan. The Appellants also argued, relying on a text book reference, and J. Sainsbury Plc v Secretary of State for the Environment and Another  2 PLR 32 that the "absence of harm" to the objectives of a policy (here Policy NE6) is a sufficient justification to depart from that policy. The J. Sainsbury decision was overruled by the Court of Appeal,  E.G. 203, but in any event, we do not accept that in Jersey, whatever the position in England, the mere absence of harm to the underlying objectives of a policy can, without more, justify departure - or satisfy the requirements of Article 19(3) of the 2002 Law.
61. It follows, in our view, that Article 19(3), when applied to the terms of Policy NE6, means that there can only lawfully be "sufficient justification" where there are other material considerations such as to outweigh the strong presumption identified in the policy. When "sufficient justification" exists will be a question of fact and degree. Advocate Santos-Costa referred the Court to examples from cases of procedural unfairness (such as departmental delay during which policies changed to the disadvantage of the applicant) considered to be capable of falling within "sufficient justification") - see JK Limited v Minister for Planning and Environment  JRC 090, Alpine Contractors Limited v Minister for Planning and Environment  JRC 105A, Webb & others v Minister for Planning and Environment  JRC 107, and Dixon v Minister for Planning and Environment  JRC 237A. In Wakeham v Minister of Planning and Environment  JRC 106B, at paras 40-43, the Royal Court held that a planning gain could, and in that case did, provide not only a legitimate and material consideration but also a sufficient justification for departing from plan policies. These are merely examples from decided cases, and do not, indeed cannot, lay down the only circumstances, or a definitive test, for when the Minister could reasonably conclude that there is sufficient justification for a departure from Policy NE6. Personal circumstances, fairness or unfairness, cannot be the only circumstances, and in any event personal circumstances may be overridden by the wider public interest in the policy being maintained. However, as Advocate Santos Costa contends, we acknowledge that these examples are all based on circumstances where there was some positive, and substantive reason - outside the terms of the policy - for departing from it.
62. It is therefore common ground between the parties, and in any event we hold it to be the position, that when considering the statutory structure:-
(i) The policy set out in the Island Plan 2011 has legal status and effect;
(ii) The decision-maker applying (or departing from) the policy must properly understand its terms. But interpretation of the meaning of the Island Plan is, a matter for the Courts, and its terms must be construed purposively and in context;
(iii) The Island Plan 2011, and therefore Policy NE6, is a lawful policy endorsed or approved by the States, and the decision-maker (here the Minister) must have regard to that policy;
(iv) However, the policy is not mandatory and although it influences, it does not completely fetter the exercise of discretion and planning judgment by the decision-maker;
(v) If the policy set out in the Island Plan is to be departed from, then clear reasons must be given for doing so. Those clear reasons must, as required by see Article 19(3), disclose "sufficient justification" for granting permission that is inconsistent with the Island Plan;
(vi) Following from (ii) above, a failure properly to understand and apply the policy (or depart from its terms), is an error of law and the decision so made is susceptible to challenge, and may be struck down;
63. We turn now to the role and function of the Court when considering an appeal under Article 114 of the 2002 Law, when, as here, the essential question before the Royal Court was whether or not the Minister erred when concluding on the facts of this case that there was sufficient justification for granting planning permission, even though this would be contrary to Policy NE6?
64. It is common ground that the Minister's role was not to mediate or negotiate between the neighbours, the Fairmans and the Hobsons, but to make an impartial decision on the merits of the application before him - see Haden v Minister for Planning and Environment  JRC 161A at paragraphs 23 to 24. There is no suggestion here of procedural impropriety, or unfairness.
65. The Royal Court, in paragraph 12 of the 2012 judgment summarised the approach as follows:-
" .... we remind ourselves of the legal test which is to be applied. It is well established. We must apply the test as set out in Island Development Committee-v-Fairview Farm Limited  JLR 306 as elaborated by the passages in the Royal Court's decision in Token Limited-v-Planning and Environment Committee  JLR 698, as approved by the Court of Appeal in Planning and Environment Committee-v-Le Maistre  JLR 389 and by the majority of the Court of Appeal in Trump Holdings Limited-v-Planning and Environment Committee  JLR 232. We cannot escape the responsibility of forming our own view, as so directed by the Fairview Farm case. Having formed that view, we must consider then whether the Minister's decision was unreasonable in all the circumstances, 'unreasonable' being assessed in accordance with the cases which we have just mentioned."
66. This summary was common ground between the parties, but it seems to us helpful to remind ourselves of the constituent parts of the Fairview/Token test. In Fairview, the Court of Appeal, at page 317, held in relation to Article 21 of the Island Planning (Jersey) Law 1964:-
"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.
In our judgment, therefore, the above statement of the Royal Court in Taylor v. Island Dev. Cttee. (6) (1969 J.J. at 1280, para. (3)) was wrong. 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 that decision was, in its view, unreasonable."
67. The test therefore is "unreasonableness" but not "whether any reasonable body could have reached the decision". Mere disagreement with the decision, on the merits, is not enough. The learned Bailiff (Bailhache) put it this way in Token, at page 702/3:-
"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."
68. This gloss on Fairview was approved by the Court of Appeal in Planning & Environment Committee v Le Maistre  JLR 389, at paragraph 25 and 29, and Trump Holdings Limited v Planning and Environment Committee  JLR 232, at para 10.
69. The gloss suggests that, for a decision to be set aside, it must be so "wrong" or so "mistaken" as to be "unreasonable". Further, it appears not to be a full merits appeal, as the primary decision-maker has a margin of appreciation. But, whether or not the decision is "unreasonable" could be seen as largely a matter of impression - see Steenson v Minister for Planning and Environment  JLR 427, at para 23:-
"We think it unhelpful to debate how mistaken a decision needs to be before it becomes unreasonable. It is simply a matter for the Court to determine whether in its judgment the decision taken by the Minister was unreasonable in all the circumstances of the case, and in order to reach that decision the court will of course have had to form its own view about the merits of the application."
70. The reading of "unreasonable" in Article 109, and similar provisions in other Jersey and Guernsey provisions, is not without difficulties, both of application and more broadly. There is a helpful summary in "The Test for Appeals Against Decisions of Administrative Bodies: Unreasonable or Just Plain Wrong?", Nicole Langlois, Jersey and Guernsey Law Review, February 2008, at paragraphs 26-32. We do not agree with the author's view that the correct, and intended, test is really nothing more than the Wednesbury standard. But we do share her concerns in paragraph 32:-
"... the lack of clear guidance as to how the courts should go about exercising their discretion to quash decisions will inevitably add an unwelcome layer of uncertainty and inconsistency to the appeal process."
71. Recent attempts to apply the "unreasonableness" test (but not a full merits appeal) have been made not only by the Royal Court in this case, and in its 2012 judgment, but also in Dixon v Minister for Planning and Environment  JRC 237A, at para 15:-
"As noted in the Fairview Farm case, the Royal Court cannot escape the responsibility of forming its own view. This is because the Court is reviewing whether the decision of the Minister was unreasonable and in order to conduct that review, it must naturally look at what the Minister should and should not have taken into account in terms of relevant policies and objections. When conducting that exercise, the Court is likely to form a view in any event on the merits of the application, but it needs to do that so as to be able to weigh up the relative significance of the various factors and thus form a view as to whether the decision of the Minister was or was not reasonable. The appeal is not a full merits appeal because the Court must allow, as Bailhache, Bailiff, put it in Token, a margin of appreciation to the Committee, now the Minister. Nonetheless, given the absence of any other form of appeal against the Minister's decision, the Court should not be too unwilling to intervene where that is appropriate. This is not an appeal based on Wednesbury unreasonableness, where the applicant has to show the administrative decision was so unreasonable, no reasonable person could have taken it, such as where the stairs constructed by the decision taker do not reach the attic bedrooms."
72. And, see Manning v Minister for Planning and Environment  JRC 086A, at paragraph 17:-
"If there is much to be said on both sides [by which I understand the arguments to be broadly in balance], then, absent illegality or impropriety, it will follow that the Court, allowing a proper margin of appreciation to the Minister, should not intervene and should therefore dismiss the appeal."
73. Advocate Kelleher misstated the test in Jersey when he said, at paragraphs 37 to 39 of his Contentions (after a reference to Fordham, Judicial Review Handbook (4th Ed)):-
"37. Thus, the Royal Court's role is as a reviewing body; an appeal to the Royal Court against the grant of planning permission is not a full merits appeal. The Royal Court needs to form its own view on the merits of the application so that it is able to weigh up the significance of the various factors in determining whether the decision of the Minister was unreasonable. A degree of latitude must be afforded to the Minister and his decision making.
38. It follows that a Minister's decision as to the weight to be given to a particular factor considered in the planning balance must be found to have been mistaken and unreasonable in order for the Royal Court to interfere in that decision.
39. If the Court could simply displace the Minister's decision as to the weight to be given to a particular factor because it differed on the weight to be applied then it could overturn decision more easily, but impermissibly."
74. This approach concentrates too much on any particular factor, and calls for a conclusion that there has been a mistake before there can be a conclusion on unreasonableness -and, thereby, veers into Wednesbury unreasonableness or irrationality. Article 109 sets a statutory ground of "unreasonableness" for the decision "the action taken" - not for any particular factor. The Royal Court, attempting to apply the Fairview/Token legal test must give due respect to the expertise of the Minster's planning judgment, and mere disagreement with the decision on the basis that it is mistaken or wrong is not enough, but in the end, the Royal Court has to form its own view as to whether or not the decision under challenge was unreasonable - nothing more, or less. As the Court of Appeal in Fairview said, at page 316, "[the Royal Court] cannot escape the responsibility of forming its own view".
75. In summary, a full right of appeal to a higher body permits the appellant a wider canvas than a judicial review: he or she is able to put before the appellate court the all the material which was before the lower court and to seek to persuade it to come to a different view. Generally speaking, of course, appellate bodies are reluctant to differ from the first instance decision maker on findings of fact unless there was no material before the latter which could have supported the relevant finding. Interpretation or declaration of the law is a different matter. This approach works in a perfectly satisfactory manner when the issues in the dispute are as to rights or duties or as to claims to benefit from an exercise of judicial discretion. The intricate web of law now supporting the power judicially to review what may broadly be termed administrative action is testament to the much finer lines of judicial interference where the issue relates to the action of a person properly charged with the making of a decision, acting within his or her jurisdiction.
76. In cases such as the present, and as declared by this Court in Fairview, the Royal Court sits as a court of appeal, not merely a court of review (Fairview page 316). But the ground upon which the appeal may be presented under Article 109 is restricted to seeking to show "that the action taken by or on behalf of the Minister was unreasonable having regard to all the circumstances of the case." Accordingly the exercise is not so much a full merits appeal as a combination of a full consideration of the merits followed by an appraisal of the view taken by the decision maker. In carrying out this task, the Royal Court will only rarely consider new evidence: Trump Holdings Ltd v Planning and Environment Committee  JLR 16 at paragraphs 18 - 20 (Birt, DB). It seems to us that such a task is not an exercise by the Royal Court of a discretion, to be treated as if carrying out the same discretionary exercise as the Minister. Rather it is an evaluation of what the Minister has done.
77. In considering this issue we have noted certain of the views expressed by the Royal Court (Birt DB) in Anchor Trust Company Ltd v Jersey Financial Services Commission  JLR 428, a case dealing with the Financial Services (Jersey) Law 1998 which provided a right of appeal against a decision of the Commission on a ground in identical terms to that of Article 109 in the 2002 Law. At paragraphs 13 and 14 of that decision it was identified that an appeal would be allowed not only where the decision was Wednesbury irrational but also where the Jurats would categorise the decision as unreasonable.
78. Although we do not support the Deputy Bailiff's reference to "degrees of wrongness" that view accords with our own. It seems to us helpful not to speak in terms of mistakenness, wrongfulness or, separately, of margins of discretion. In our view the Royal Court will be able to interfere (a) manifestly if a Wednesbury ground is identified but also (b) where the decision is unreasonable, not in the sense of being incapable of reasoned justification, not in the sense of being beyond the range of decisions that a reasonable decision-maker could reach, but in the sense of being beyond the bounds of reasonable justification in the mind of the Royal Court. An evaluation in the latter manner strikes the balance between respecting the experience of the Minister as planning authority and allowing an aggrieved participant a proper appeal to another respected Island authority, the Jurats, whether alone or with the guidance of the Bailiff.
79. As part of the evaluation, the Royal Court will have looked at matters at a similar level of thoroughness to that carried out by the Planning Committee, doubtless with the much more focussed approach which comes with appellate submissions. But it is not sufficient for the Royal Court to reach a different view from that of the Minister. It must also have found the decision to be beyond the bounds of reasonable justification, perhaps because, in the mind of the Royal Court, the decision is the result of flawed logic or is supported only by somewhat threadbare reasoning.
80. The application of the "reasonableness" test is perhaps slightly more straightforward here where the terms of the policy are so clear, and the Law sets the standard for granting planning permission that is inconsistent with the requirements of the policy - "the Minister is satisfied that there is sufficient justification". Article 109 does not focus on the reasonableness of the Minister's satisfaction, but on the reasonableness of "the action taken by or on behalf of the Minister". It follows that if the Royal Court, forming its own view of the merits, concludes that there is no "sufficient justification" for departing from the requirements of the policy, it would be difficult for the Court to conclude that the Minister's contrary view was reasonable.
81. If it were the case that the Royal Court here was exercising a discretion, then applying Crociani v Crociani  JCA 089, Beloff JA at paragraph 51, this Court would only interfere if:-
(i) The Royal Court has misdirected itself as to the principles governing the exercise of its discretion;
(ii) The Royal Court has taken into account matters which it ought not to have done or had failed to take into account matters which it ought to have done; or
(iii) Its decision was plainly wrong (see United Capital Corporation v Bender  JLR 269).
82. In our opinion the Royal Court was not exercising a discretion. It was determining a substantive appeal, and deciding whether or not the impugned decision of the Minister was reasonable, as required by Article 109 of the 2002 Law. This is an exercise of judgment, determining the facts, ruling on the law, and applying the law to the facts, but is not an exercise of discretion.
83. Returning to Grounds 1 and 5 set out in paragraph 51 above, the Royal Court correctly identified the policy and its contents (see paragraphs 11-47 of its judgment), and we reject the Appellants' contentions to the contrary. The proposed development was clearly in breach of Policy NE6, properly interpreted, and did not fall within the stated exceptions - this was confirmed before the Royal Court in paragraph 35 of Mr Gladwin's Affidavit. The Royal Court fully understood the meaning of Article 19(3) of the 2002 Law, and was well aware of the Fairview/Token legal test. The Royal Court did not fall into the error, as contended for by the Appellants, that Policy NE6 acted as a complete fetter, and the Court recognised that the Minister retained a discretion to depart from the requirements of the policy where there was sufficient justification. There is, therefore, nothing in these grounds.
84. These grounds can be taken together. The Royal Court addressed "sufficient justification" in paragraphs 50 - 59 of the judgment. In the reasons for the Minister's approval (set out in paragraph 40 above) the proposed development is considered to be acceptable (even though it is in apparent breach of Policy NE6, and does not fall within an exception) "having due regard to all of the material considerations raised", and because, in particular:
".. the development has been assessed as an exception outside the terms of Policy NE6 of the Jersey Island Plan within the Coastal National Park, and is justified by reference to its appropriate design and siting, plus its enhancement of the landscape to reinforce the gap between the neighbouring dwellings, as viewed in its local and wider context, including across St Brelade's Bay."
85. The Royal Court identified only this passage as setting out the justification to be considered under Article 19(3) of the 2002 Law. The later passages dealing with compliance with Policy GD1 (and the impact on the Hobsons not being considered to result in serious harm or unreasonable impacts), and considerations of the planning history of the site, were held by the Royal Court not to be aspects of the justification, but rather "neither here nor there in deciding whether there is justification for departing from the Island Plan".
86. The justification reasons in the decision are consistent with, and almost a repetition of the department recommendation:-
"It is our opinion that the garage is appropriately designed, within the domestic curtilage and will have virtually no impact in local or more distant views. It is sympathetic and appropriate in its immediate and wider context within the Coastal National Park, and may indeed enhance the perception of a gap between the two properties to the benefit of the context. For these reasons it is considered to be a suitable exception to Policy NE6."
87. We accept, as submitted by Advocates Benest and Kelleher, that this is a case where, although there is no specific adoption of the planning officer's report and recommendation, it is clear that the Committee was in fact doing just that, and we can safely look to that report if there is a need to supplement and explain the short reasons in the formal decision. That this is the correct approach here is reinforced by the fact that those formal reasons are a word for word repetition of the suggested "Reasons for Approval" at paragraph 17 of the report.
88. Assisted by the officer's report, we can better understand the basis upon which the Planning Committee decided that there was some potential planning advantage in that "the inclusion of the landscape terrace on top of the garage will facilitate further planting in lieu of what would otherwise be hard surfacing and can enhance the gap, to the benefit of the immediate environment and the Coastal National Park"....... "the removal of the hard landscape to be replaced by terraced planting will reinforce the landscape and enhance the visual gap between properties. This would be to the advantage of the over-riding objectives of the Coastal national Park" - paragraph 14, Assessment.
89. We can now turn to consider the two limbs to the decision on "sufficient justification":-
(i) It has the benefit of "appropriate design and siting"; and
(ii) It enhances the landscape "to reinforce the gap between the neighbouring dwellings".
90. The Royal Court addressed, and rejected, these reasons in paragraphs 52-58 of its judgment. We set them out here verbatim:-
"52. In our view the first of those reasons simply does not begin to justify a departure from Policy NE6. We agree with Advocate Santos-Costa's submission that a statement that the design and siting was acceptable was in effect to throw away Policy NE6, and, to the extent that this policy is one of those policies in the Plan which contains the strongest presumption against development, was in effect to dispense with need for the Island Plan generally, and to decide that the only real test was whether the Minister liked the design and siting of the proposed building. We agree that if this is sufficient as a reason for departing from a Plan policy, there is really not much reason for having a plan at all.
53. The second reason was that building in the gap enhanced the landscape by reinforcing the gap. Advocate Santos-Costa had some fun with this proposition. If a strategic gap is important, he contended it was impossible to reinforce it by building in it. He went on to say that "virtually no visual impact" means that there is a visual impact, and it is impossible therefore to say that the gap was thereby enhanced.
54. In answer to this proposition, Advocate Benest contended that Advocate Santos-Costa had simply taken a simplistic approach. The landscaping that would be introduced would enhance the gap.
55. Advocate Kelleher submitted that the proposal would provide more vegetation and less hard standing than existed at present. This made the proposal a very appropriate design which was appropriately sited. He went on to say that, adopting a painting analogy, old masters frequently enhanced a gap in perspective by putting something in between two different objects in their painting.
56. We have considered these submissions, but in our judgment it was impossible for the Minister reasonably to conclude that the building of a garage, however well sited, and however well designed, would enhance what is currently a gap between the two buildings. By definition, building in a gap must reduce the size of the gap. We note that the reference in the planning officer's report in this context was extremely understated. The planning officer described the development as falling outside the scope of what was permitted within Policy NE6 but emphasised the appropriate design of the garage within the domestic curtilage, and stated that it would have "virtually no visual impact in local or more distant views". The officer went on:-
"It is sympathetic and appropriate in its immediate and wider context within the Coastal National Park, and may indeed enhance the perception of a gap between the two properties, to the benefit of the context. For these reasons it is considered to be a suitable exception to Policy NE6."
57. In our view, the reference to enhancing the gap is more of an afterthought than a justification. As with the argument over design and siting, it does not come close to providing a justification to depart from Policy NE6.
58. In concluding that the design and siting of the proposed garage and/or the enhancement of the gap were sufficient justification for departing from the Island Plan, we conclude that the Panel acted unreasonably."
91. The rejection by the Royal Court in paragraph 52 of its judgment of the "appropriate design and siting" limb of the justification is criticised by the Appellants on the basis that, if upheld, this would impose an unlawful fetter on the Minister's ability to allow development outwith the strict wording of Policy NE6. Advocate Kelleher contended:-
"As a matter of law it is incorrect to hold that a development which is so designed and sited that it enhanced the landscape and appearance of the CNP but which conflicts with the express wording of Policy NE6 could not be justified by reference to the enhancement brought about by that design and siting."
This analysis conflates "design and siting" and "enhancement", and thereby misleads. In any event it is incorrect on the facts of this case. The overall design and siting add nothing to the enhancement of the environment. It is only the planting scheme, to which we will return below, that could be seen as adding to the environment. We do not consider that the Royal Court erred in law when it held, when considering the strong wording of Policy NE6, that a mere approval by the Minister of the design and siting of a proposed development that fell outside any of the exceptions could provide any form of "sufficient justification" for granting permission. If that were the position, the intention and purpose of Policy NE6 could be avoided simply because the Minister liked the design, and where it was sited. We cannot fault the Royal Court's reasoning on this ground, and if and insofar as we are to form our own view of the evidence, we also cannot see how the fact that this is a well-designed garage, and sited (at least to some degree) underground, leads to a conclusion that there is justification (let alone sufficient justification) for permitting development which is inconsistent with the clear wording of Policy NE6, whether read on its own or read in the context of Policy NE7. Put simply, what is required - and missing - is the planning justification for the development proposed, namely a garage. Cosmetic aspects such as design and siting might be material considerations in determining whether a development acceptable in principle has an acceptable or unacceptable visual impact. They do not, in our opinion, constitute justification for development of then nature proposed.
92. We turn then to the second justification - the enhancement of the gap between the properties.
93. The rejection by the Royal Court of the "reinforce the gap" limb of the justification is further criticised by the Minister and by the Fairmans on the basis:-
(i) "Here the Royal Court wandered into territory that it was ill equipped to deal with; against the expert view of planners in the Minister's department, the Royal Court found that the addition of a structure in a gap could not enhance the gap and therefore the landscape." - Minister's contention, at para 40.
(ii) "No evidence was presented to the Royal Court which contested the view of the Department of the Environment as to the enhancing of a gap. That expert view was clear; the addition of a structure into a gap can enhance the gap and therefore the environment. Dismissing this view, the Royal Court essentially substituted what it described as one incorrect test applied by the Minister - whether or not he liked the design and the siting - with its own incorrect test - whether or not it liked the design and the siting - concluding that it did not." Minister's contention, at para 42.
(iii) "The Royal Court fundamentally misunderstood the nature and purpose of the 'strategic gap', and why maintaining the 'strategic gap' was of importance in the local context", and "it is impossible to see how in the evidence before it the Royal Court could have found that 'the reference to enhancing the gap is more of an afterthought than a justification'" - see the Fairmans' Contentions, paragraph 102 and 105.
94. Advocate Kelleher, for the Fairmans, emphasised in his Contentions the overall design of the proposed development and, in relation to the enhancement: "There will be an environmental gain from the proposed development due to the increase of further vegetation and a visual improvement of the landscape from the cliff paths and the distant views".
95. In developing his argument on the "reinforce the gap" point, Advocate Benest for the Minister submitted (in paragraph 42 of his Contentions): "Was the Minister mistaken? He was not. He took into account everything he was supposed to consider. Was he unreasonable? He was not. He consulted who he had to consult and reached a decision on the Application. The Hobsons and the Royal Court did not like that decision. But it was not mistaken nor unreasonable and therefore does not satisfy either limb of the Fairview test." This seems to us to confuse and dilute the Fairview test. The fact that the Minister "consulted who he had to consult" does not mean that the decision reached was "reasonable" or "not unreasonable". The fact that he took into account everything he was supposed to consider does not mean that his decision was "reasonable" or "not unreasonable". This is the language of Wednesbury, of proper investigation (in the Tameside sense - Secretary of State for Education and Science v Metropolitan Borough of Tameside  AC 1014), and/or procedural fairness.
96. We explored with Advocate Benest and Advocate Kelleher what was understood as the basis for the conclusion that there might be enhancement. It was accepted that the possible enhancement of the existing gap between the properties was understood to arise solely from the new planting scheme above the garage. However, it was conceded (a) that, should the owners so wish, such planting could take place without the creation of the garage, (b) that the proposed planning condition for replacement and maintenance of the planting had a limited life with no control mechanism after five years, and (c) that the creation of the garage would not necessarily result in the elimination of parking on the hard standing.
97. But there are problems with the Royal Court's analysis, and there is a concern that the reasoning on this point is deficient or at least incomplete. It is not a fair reading of the decision, alone or when read with the supporting material including the officer's report, that the reference to a enhancing the existing gap was some form of afterthought. It was clearly more than that, and formed part of the overall conclusion that the design and siting of the garage (including the planting scheme) was such as to provide a positive enhancement of the existing landscape. (We have accepted above, that the Report can here be considered with the formal reasons for the Minister's decision, even though not expressly incorporated - see, although not on all fours, Hereford Waste Watchers Ltd v Herefordshire Council  Env LR 29).
98. The reason, according the Minister's officials, why the effect of the development is to enhance the existing gap is that the vegetation on the roof and boundary planting will replace the existing hard standing which is presently visible from the cliff paths above. The existing gap between the properties is not filled, in the sense of reducing the gap but, in visible terms, changed from hard-standing to vegetation.
99. In light of our concern that the Royal Court's reasons are, at least, incomplete on this point, we have considered in some detail the design statements, the many drawings and photographs and photomontages (existing and proposed) of the Property and the surrounding area. We have re-read the officer's report, the transcript of the Planning Applications Panel Meeting on 27 June 2013, and all the related affidavits and supporting documents. With the benefit of that reading, the same evidence as presented to the Royal Court (but without the possible benefit of a site visit), we fully understand the Royal Court's conclusion that the so-termed "enhancement of the gap" fell far short of providing a justification to depart from Policy NE6. Most of the hardstanding at the Property will remain - the driveway off the private road to the side of the house, the terracing in front of the house, the parking area outside the house, and the ramped driveway down to the garage. All that will be covered with vegetation (at least for the next 5 years) is the roof area of the garage - see the view plan in drawing 54-704. This element of camouflage is insignificant in terms of the overall layout of the property, and insignificant in terms of the view from the footpaths above or from the distance, and (as accepted by Advocate Benest) there is no guarantee that the planting would remain. Whether or not it was an afterthought is perhaps irrelevant. What is clear, however, is that there is no serious planning gain here, no significant advantage to the environment, no enhancement of the gap, that could reasonably outweigh the requirements of Policy NE6, or provide sufficient justification for granting permission to build outside the exceptions set down in the policy.
100. Even accepting there has been a degree of misunderstanding by the Royal Court, when the Minister's claimed justification is properly understood, we do not accept that the Royal Court's decision is wrong. If we, as the Court of Appeal, have to form our own view on this point, we also conclude that the "gap enhancement" reason provides no sufficient justification for the departure from Policy NE6.
101. We have considered the application by the Minister of GD1, and the impact of the proposed development on the Hobsons. In light of our conclusions set out above it is not necessary to consider that aspect of the decision, but we cannot see any basis for criticism of the Minister's conclusion that, if permitted under Article 19(3), the proposed development would not seriously harm the amenities of neighbouring uses, and would not unreasonably affect the privacy that the Hobsons might expect to enjoy.
102. It follows, that as there is here no sufficient, no adequate, justification for the decision, then the Minister's decision is unreasonable on the Fairview test, and the Royal Court did not err in law in directing that the permission is to be cancelled.
103. In light of our conclusions on the other grounds, it is perhaps unnecessary to consider and address the inconsistency arguments. However, as this may be relevant to the question of costs, and as the point was fully set out in the competing contentions we will consider it, if only shortly. The point is, in any event, reduced in terms of disagreements between the parties, the Hobsons accepting (see paragraph 42 and 43 of their Contentions) that the Minister was not bound by previous planning decisions and therefore was entitled to reach a decision which was inconsistent with previous planning decisions in relation to the site, arguing only that he was required (but failed) to give reasons for so doing. Further, the Hobsons do not rely on substantive legitimate expectation (and, in our view the argument would be bound to fail, and in any event was not the basis for the Royal Court's decision).
104. The Royal Court held that the Hobsons succeeded on the grounds of inconsistency, on the basis that the Minister failed to demonstrate any reason for departing from a previous decision, and the planning history of the site - see paragraphs 67 and 72. Paragraph 72 is important, omitting the first sentence:-
"We do not decide the present appeal on the grounds of the doctrine of legitimate expectation, but it does seems to us to be right to acknowledge, when reviewing a complaint about inconsistency, that purchasers of property are entitled to expect at least for a reasonable period assertions which have been made by the Planning Minister in relation to the property which they are purchasing or the neighbouring properties will not be departed from unless there is good reason to do so. This point has not been fully argued in this case, but these considerations in our judgment emphasise the extent to which the appellants are entitled to rely on grounds of inconstancy in advancing the present appeal."
105. The reference to what was said by the Planning Minister is to the statement of Senator Cohen at a meeting in 2007 at the time when RP/2007/0576 was approved. He is recorded as saying that "further incremental applications requesting an increase in floor space were highly unlikely to be considered favourably." The full text is set out in paragraph 17 of the 2012 judgment, and a larger extract in paragraph 22 above.
106. A previous appeal decision is capable of being a material planning consideration. The Minister (himself or by the Planning Applications Panel) was entitled to reach a decision that was inconsistent with previous planning decisions, but if there is a departure from a previous decision, he ought to have regard to that decision and to give reasons for departing from it - see Trump at paragraphs 45-46, and Caesar Investments Limited v Planning and Environment Committee  JLR 566, at paragraph 74, accepted by the Royal Court in its decision in the instant dispute in its 2012 judgment,  JRC 200, at paragraph 29.
107. There is a wider public interest in the making of planning decisions, whether in favour or against a proposed development. Therefore, unless (which is not the case here) there is a clear promise sufficient to found a legitimate expectation in law, the previous statements of a Minister are merely a part of the background - a matter to have regard to, if brought to the attention of the later decision-maker.
108. We accept the Contentions of Advocate Benest that there must be a need for some degree of flexibility, because of changing requirements, environmental, housing and social concerns, and the factual differences between different applications for planning consent. There cannot be any objection, in our view, to the Fairmans making an application for development, and the Minister in this case, on this application would, in our view, have acted unlawfully if the application had been rejected on the sole basis that a Minister, some years ago, had said that applications for increase in floor space were "highly unlikely" to be granted. In any event, Policy NE6 expressly recognises that even in the context of the strong wording of the constraints on development, "extensions to existing residential buildings" demonstrated not to cause serious harm to the landscape character of the area (and satisfying other requirements), may be permitted.
109. We also note that the planning history of the site and the Property was set out in some detail in the Report and thereby expressly brought to the attention of the Panel - as recommended by the Royal Court in its 2012 judgment. Indeed, the comments of Senator Cohen were specifically mentioned.
110. It seems clear to us that the Fairmans were not prevented by precedent from presenting their application for consideration by the Planning Department, or by the Panel, and the Panel was not prevented by the planning history (including the 2012 judgment - see, in particular, paragraph 56, set out below) from giving full consideration to that application on the merits:-
"The test on each application is not a comparison with what has gone before on the basis that any improvement suggests a consent, but rather, in accordance with Article 19 of the Planning Law whether the proposal is consistent with the Island Plan and is appropriate given all material considerations, or whether a permission can be justified despite inconsistency with the Island Plan."
111. The inconsistency argument in the end collapses into a contention that there was no good reason for the Minister's decision to permit the development. If there had been sufficient justification as required by Article 19(3), the planning history would not have prevented the grant of planning permission. But, as we have held, there was no sufficient justification. The appeal turns on those words, and although the planning history provides a useful and informative background, it does not here affect the outcome.
112. If we had decided that the Minister's decision did have sufficient justification for his decision, as required by Article 19(3) of the 2002 Law, we would not have dismissed the appeal on the basis of inconsistency of decision-making, and Ground 4 would have succeeded.
113. For all these reasons we dismiss the appeals.
114. We are conscious that there is a degree of tension between, perhaps among, neighbours in relation to the application, the planning history, and the appeal. This, regrettably, is not uncommon in such cases, but having read the papers with some care, including the exchanges between the Planning Department and the Fairmans' advisers and representatives, we have not seen anything to suggest that the applications in relation to the garage were made other than in good faith, and on the basis of professional and expert advice, and with serious efforts made to minimise the impact of any such development on their neighbours. We note that this also appears to have been the view of the Royal Court - see paragraph 55 of its 2012 judgment.
Planning and Building (Jersey) Law 2002.
Court of Appeal (Jersey) Law 1961.
Island Planning (Jersey) Law 1964.
2002 Island Plan.
Gransden & Co Ltd v Secretary of State for the Environment and another  54 P&CR 86.
J A Pye (Oxford) Ltd v Oxford City Council  EWHC Admin 870 and  EWCA Civ 116.
J. Sainsbury Plc v Secretary of State for the Environment and Another  2 PLR 32.
J. Sainsbury Plc v Secretary of State for the Environment and Another  E.G. 203.
The Test for Appeals Against Decisions of Administrative Bodies: Unreasonable or Just Plain Wrong?", Nicole Langlois, Jersey and Guernsey Law Review, February 2008.
Fordham, Judicial Review Handbook (4th Ed).
Financial Services (Jersey) Law 1998.
Hereford Waste Watchers Ltd v Herefordshire Council  Env LR 29.