Planning - reasons relating to appeal concerning Field 1007.
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Marett-Crosby and Liston |
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Between |
David Ronald Manning |
Appellant |
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And |
The Minister for Planning and Environment |
Respondent |
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The Appellant appeared in person.
Mr D. J. Mills for the Minister.
judgment
the deputy bailiff:
1. The Court sat on 27th November, 2014, to hear an appeal by the appellant pursuant to the modified procedure. A decision was given in his favour with reasons reserved. This judgment contains those reasons.
2. The appeal concerns Field 1007, St John, which has already been the subject of so many previous appeals to the Court and applications to States Review Boards. It arises because the Minister served an enforcement notice on the appellant on 31st January, 2012. The notice required the appellant to remove a lift truck from the concrete hard-standing immediately to the east of and abutting the existing commercial shed and to refrain from any outside storage or display of materials, waste or machinery on the site, and from any parking or storage of commercial vehicles within the area of hard-standing lying within the approved site curtilage to the east of the shed forming part of the appellant's property. The basis for the enforcement notice was that there was an apparent breach of conditions 3 and 4 on a permit granted by the respondent on 6th October, 2011, to a company called Advanced Glass Limited, a tenant of the appellant. The appellant appealed against the issue of the environment notice and that appeal was due to be heard on 12th July, 2012. As a result of the submissions which were then made by the appellant, the Court adjourned further consideration of the appeal to a date to be fixed and directed the parties to fix a date before the Master for a directions hearing. The enforcement notice was suspended pending further order. On 16th July, 2014, the Master directed that there should be a preliminary issue in respect of the appellant's first ground of appeal, namely whether or not the permit issued on 6th October, 2011, had been validly issued. That was the question with which the Court had to grapple on 27th November, 2014, and in respect of which the present reasoned decision is given.
3. The application which gives rise to the permit of 6th October, 2011, was made by Advanced Glass Limited. It was to vary one of the then existing conditions attached to a permit granted by the Minister in October 2006, namely condition No. 5 which stated that "the storage shed and its curtilage to the north side of the site shall be used for storage purposes only". The application description was to vary that condition to allow the storage shed and its curtilage to the north side of the site to be used for "storage and light industrial use", and it was on that basis that the application was registered and advertised. The appellant, as owner of the site, countersigned the application as one which was made with his knowledge and agreement.
4. Following the advertisement, Mr Stein, of MS Planning, the planning consultant for the neighbour to the north, Mrs Whitworth, made a representation to the Planning and Environment Department that the application had been wrongly described. It was contended by Mr Stein that in reality this was a change of use application as the proposal involved a material change of use which constituted development under the Planning and Building (Jersey) Law 2002 ("the Law"). In the circumstances, it was contended that the application description needed to be specific as to the proposed use rather than refer to "light industrial use" which could cover a range of different types of industrial use.
5. The Planning Department communicated with Mr Gurd of Advanced Glass by letter dated 13th December, 2010, with the suggestion that the application to use the shed and its curtilage to the north would be unlikely to be supported. It was suggested that a full planning application for a change of use of the shed should be submitted with an additional planning fee. Mr Gurd was unimpressed by that proposal, and said so in his letter of 21st December, 2010, when he said that his understanding from the appellant was that the Planning Committee were going to change the application.
6. In an affidavit sworn on behalf of the Minister, Mr Roy Webster, a principal planner of the Planning and Building Services Department, indicates that:-
"42. I subsequently agreed with Mr Manning and the Director (Development Control) that in order to ensure this matter was dealt with correctly, the best way forward was to have the application description changed to a "change of use" with the higher application fee waived given the particular circumstances.
With the agreement of all parties the description of the application was amended on 6th January 2011 to 'change of use from storage shed to manufacture of windows/door units', and was re-advertised on that basis".
7. The application was then advertised accordingly, and the relevant departmental reports were prepared. Mrs Whitworth and Mr Stein made representations, as did the appellant, and the Planning Applications Panel deferred the application in May 2011 pending reception of a full planning history of the original permit. The matter was further considered by the Planning Applications Panel on 6th October, 2011, and, having heard further representations from Mrs Whitworth and Mr Stein and from the appellant, decided to grant permission. The minutes of the meeting record that "... whilst the Panel was content with the general thrust of the conditions detailed within the Officer report, it was agreed that the exact wording of the conditions should be reviewed and amended as appropriate by the Director, Development Control."
8. There are two other matters to be taken from the minutes of the Planning Applications Panel meeting on 6th October, 2011. The first is that the minutes describe the Panel as having heard from the applicant, Mr D Manning. It is said that Mr Manning referred to the conditions set out within the officer report dated 23rd September, 2011, and in particular the wording contained within conditions 1, 2 and 5. We refer to that extract from the minutes for two reasons. The first is that it demonstrates that the appellant was present and addressed the Panel. The second is that it contains a material error in describing the appellant as the applicant. It is quite clear from all the other documentation that the applicant was Mr Gurd and/or his company Advanced Glass Limited.
9. In the planning permission dated 12th October, 2006, there was a clear potential for conflict between three of the conditions imposed as part of that permission. Condition 5 was in these terms:-
"The storage and its curtilage to the north side of the site shall be used for storage purposes only." (emphasis added)
10. Condition 10 provided:-
"That no storage of goods, materials or plant shall occur outside the storage building on the northern part of the site."
11. Condition 12 was in these terms:-
"That the new shed on the northern part of the site shall be used as storage only to include a limited sale of goods to the extent that they are an ancillary part of Mr Manning's removals, clearance and storage building. For the avoidance of doubt there shall be no storage or sale of goods anywhere outside the shed."
12. The ambiguity between these various conditions has been explored on a number of previous cases in this Court. At all events, by the permit dated 13th October, 2011, and signed on behalf of the director of planning by Mr Alastair Coates, permission was given for a change of use from storage shed to manufacturer of window/door units. The conditions included:-
(i) A condition that the shed should only be used for the manufacture of window and door units by Mr Gurd trading as Advanced Glass Limited and/or for storage in connection with and ancillary to the adjacent property Mandorey Villa, and by no other person or business without the prior consent for the Minister for Planning and Environment. (The appellant is the owner of Mandorey Villa).
(ii) A restriction on hours was included such that the manufacture of window and door units could only take place between the hours of 8am and 6pm on a weekday or 8am and 1pm on a Saturday.
(iii) No outside storage or display of materials, waste or machinery was to take place on the site.
(iv) There should be no parking or storage of commercial vehicles within the area of hard-standing lying to the east of the land.
(v) There was a noise restriction.
13. As the Court understands the position, Mr Gurd is no longer trading at the application site.
14. Despite the complex background, the argument which is run by the appellant in this respect is straightforward. He says that he did not sign the application for permission for a change of use as submitted by Mr Gurd and/or Advanced Glass Limited, and a copy was never sent to him. It is common ground that although he did sign the application submitted by Mr Gurd and/or Advanced Glass for a variation of the condition, he did not sign the application for permission for a change of use. It is common ground that he did attend before the Planning Applications Panel at their public hearing prior to the decision to authorise the issue of permission for change of use.
15. The Minister's case is that after the first application had been made, Mr Stein suggested that there should be a change of use application, and that to avoid delay or further burden upon either Mr Gurd or Mr Manning, no additional planning fee was charged and no new application was required. To have required a fresh application was regarded by the department as being unduly bureaucratic, because the original application form, albeit for a different application, contained all the information that was needed for the application as amended by the department on the suggestion of Mr Stein. Thus it is said by the Minister that no injustice has been done by the course of action followed in the department.
16. Article 9 of the Law provides as follows, insofar as is material:-
"(1) A person who requires planning permission not granted by a Development Order must apply to the Minister for it.
(2) The application must -
(a) be in the form required by the Minister; and
(b) contain or be accompanied by particulars the Minister reasonably requires to determine the application.
(3) The application must be accompanied by -
(a) the prescribed fee; and
(b) if the applicant is not the owner of the land to be developed, a certificate by the owner of the land certifying that the owner approves the application being made.
(4) Where -
(a) paragraph (3)(b) applies in respect of a proposed application; and
(b) the owner of the land refuses or is unable, for any reason, to certify his or her approval of the application being made,
The Minister may nevertheless accept the application for consideration if the Minister is satisfied that to do so would be in the public interest.
..."
17. We note also that by Article 23 of the Law, the Minister is empowered to attach to the grant of planning permission one or more conditions provided that these fairly and reasonably relate to the proposed development.
18. Article 24 of the Law provides as follows:-
"Planning permission attaches to land.
The grant of planning permission enures (except insofar as the permission otherwise provides) for the benefit of the land to which it relates and of each person for the time being having an estate or interest in that land.
A condition attached by the Minister to the grant of planning permission binds and is enforceable by the Minister against a person for the time being having an estate or interest in the land subject to the condition."
19. The parties before us are agreed that Article 9(4), which allows the Minister to accept an application for consideration even if not signed by the owner of the land where he is satisfied that to do so would be in the public interest, does not apply in this case.
20. Article 9(3) is in our judgment clearly mandatory. The word "must" is used. Arguably, this does not confer on the Minister any discretion to grant a permit without the prescribed fee, unless the terms of the regulation prescribing the fees to be paid themselves confer some discretion on the Minister to waive a fee in particular cases.
21. It is unsurprising that Article 9(3) is expressed in this mandatory way given the terms of Article 24 which provide that the grant of planning permission and any conditions contained in such permission bind the land and can be enforced by the Minister against a person for the time being having an estate or interest in the land which is subject to the condition. If it were otherwise, the owner of land could find himself substantially disadvantaged by permissions obtained by third parties in respect of applications of which he was unaware.
22. We assume for the purposes of this appeal, without deciding the matter on the facts because it is not conceded by the appellant, that he was aware of the nature of the change which the planning department introduced. The appellant's case is that he was told by the planning department that they had changed the application because this was what the Law required. He had not appreciated that the result of the change was that the Minister could change conditions in relation to the rest of his property, unrelated to the area of the storage shed which had formed the subject matter of Mr Gurd's original application.
23. The precise language of Article 9(3) requires a "certificate". The Concise Oxford English Dictionary defines "certificate" as follows:-
"(1) An official document attesting or recording a particular fact or event, a level of achievement, the fulfilment of a legal requirement, etc.
(2) An official classification awarded to a cinema film by a board of censors, indicating its suitability for a particular age group."
24. The use of the word "certificate" in our judgment imports a requirement for certainty. It excludes the possibility of argument, on the facts of this case, as to what the appellant understood the Planning Officer said or did not say, or meant or did not mean when they had a telephone conversation. In our judgment, the legislature must have intended that there could be no doubt that an owner knew and agreed the application to be made because otherwise Article 24 would be capable of operating most unfairly.
25. As there is no certificate in this case, in our judgment an essential pre-requisite of the permit dated October 2011 is missing because we cannot be sure the application was made with the owner's authority, and the permit must be set aside.
26. Before leaving this case, we should comment briefly upon a submission made by the appellant that the Planning Officers have not treated him fairly. This really goes beyond the objection that he did not fully understand the implications of the department changing the nature of Mr Gurd's application. He relies for example on a letter from Planning and Building Services to Mrs Whitworth, the appellant's neighbour to the north, which does describe the department's intentions. It says this:-
"I refer to our correspondence on the above matter and confirm that the planning application has now been converted into a full planning application for the change of use from storage shed to manufacture of window/door units.
This change will allow the department to fully assess the implications of the proposed use without being bound by the still - valid conditions on the original approval for the shed, although these may retain some relevance to the current application.
This change in situation will be advertised in the usual way and any comments you have to make on the proposal should be made within 21 days of the JEP advert of first appearance of the site notice whichever is the latter date. Please note that the application reference is also changed from RC/2010/1348 to P/2010/1348."
27. The Appellant received no similar letter.
28. A States of Jersey Complaints Board received a complaint from the appellant against the Minister for Planning and Environment regarding a different but related issue and published its findings on 23rd October, 2013. At paragraph 6.12 of its report, the review board said this:-
"A feature of this case that has caused a degree of dismay on the part of the board was the evident closeness to the department of the adviser to Mr Manning's "third party" adversary - his neighbour. (The adviser formerly worked in the department before leaving to found his own planning consultancy and obviously knew well, and was known by, his former colleagues.) The department was far too assiduous in responding to his many enquiries about Mr Manning's case and, in the Board's considered view, can be seen to have put aside its neutrality in what was, in considerable part, a dispute between neighbours. In so doing, it adversely affected Mr Manning's interests in a manner that demands the most forthright apology to him by the Minister. Not only did the department confide its unsureness about the "eight year rule" to this adviser but not to Mr Manning, but also informed him, the adviser, of crucial developments in Mr Manning's case before he, the latter, was able to. From this lack of even handedness in behaving, and being seen to behave, neutrally, it was not a large step for the officials concerned to be seen as showing a measure of favouritism to the neighbour's cause and dismissiveness towards Mr Manning's. These were, we believe, sins of omission, not commission, but they nevertheless had, or had the potential to have, a marked impact upon the fairness with which Mr Manning's case was treated."
29. We agree with those sentiments in this case too. The file which we have been shown on this occasion is littered with examples justifying the earlier expressions of dismay by the Complaints Board. They include:-
(i) The notion that the application for a change of condition should be converted into a full change of use application was that of Mr Stein, enabling the department to alter the conditions for Mr Stein's client's benefit.
(ii) The decision to follow this course of action, and the effect of it, was notified to Mrs Whitworth but not to the appellant.
(iii) It was Mr Stein's suggestion, subsequently endorsed by the planning officials in their report to the Minister/the Panel that the opportunity for a new permit should be taken to impose hours of trading conditions on the land.
30. Mr Mills submitted in his address that the Law was penal in nature, and we think this is indeed a fair assessment. An owner of land no longer can do what he wants with it. The Minister is provided a power to impose all sorts of conditions whenever an application for development is granted, and these enure to the benefit or the burden of the land in the future. Any breach of condition can lead to an enforcement notice and to quasi criminal penalties. In these circumstances, it is absolutely critical that those charged with the administration of this legislation act in a transparently fair and even handed way. Very regrettably this has not been the case here.
Authorities
Planning and Building (Jersey) Law 2002.