Planning - third party appeal brought against the decision of the Minister dated 4 July 2014.
Before : |
Advocate Matthew John Thompson, Master of the Royal Court, sitting alone. |
Between |
Darren Iezzoni |
Appellant |
And |
The Minister for Planning and Environment |
Respondent |
And |
Ian Webster |
Applicant |
The Appellant appeared on his own behalf.
Advocate D. J. Mills for the Respondent.
The Applicant appeared on his own behalf.
CONTENTS OF THE JUDGMENT
|
|
Paras |
1. |
Introduction |
1-2 |
2. |
Procedural history |
3-5 |
3. |
The appellant's grounds |
6-12 |
4. |
The nature of the proposed extension |
13-16 |
5. |
Legal test |
17-24 |
6. |
The respondent's decision |
25-30 |
7. |
Decision |
31-46 |
8. |
Conclusion |
47-48 |
judgment
the master:
1. This is a third party appeal brought by Mr Darren Iezzoni ("the appellant") against a decision of the Minister for Planning and Environment ("the respondent") dated 4th July, 2014, to grant planning permission to Mr Ian Webster ("the applicant"). The permission allowed the applicant to build a first floor extension to his bungalow, known as Massabielle, Les Champs Park Estate, St Helier, ("Massabielle") to create a two storey property.
2. The appellant is the owner and occupier, together with his partner, of a property known as Santa Rosa, which is next door to Massabielle. The appellant, having made submissions to the respondent about the application prior to the respondent reaching his decision is entitled to bring a third party appeal pursuant to Article 114 of the Planning and Building (Jersey) Law 2002 as amended ("the Planning Law").
3. In his notice of appeal, the appellant stated that he did not require an oral hearing of his appeal. The applicant indicated that he wished to be heard on the appeal and to be joined as a party and was therefore joined by an act of court dated 15th September, 2014. The respondent and the applicant consented to the matter being dealt with on the papers. Accordingly, I gave directions for the filing of evidence also by the act of court dated 15th September, 2014.
4. The position of the respondent is set out in an affidavit filed on his behalf by Andrew John Townsend, Principal Planner, sworn on 18th August, 2014. The appellant filed two affidavits sworn on 15th October, 2014, and 12th November, 2014. The applicant's affidavit was sworn on 28th October, 2014.
5. Written submissions were filed by the respondent on 11th December, 2014. The appellant's written submissions were received on 2nd January, 2014. The applicant provided a short letter dated 20th November, 2014, in relation to the appeal. The applicant has not otherwise provided any written submissions.
6. The appellant's notice of appeal in summary raised two grounds:-
(i) That the grant of planning permission would seriously harm the amenities of neighbouring property and in particular would:-
(a) unreasonably affect the level of privacy to buildings and land that owner and occupiers of neighbouring property might expect to enjoy including the proposed development being overbearing to the neighbouring property;
(b) unreasonably affect the level of light to buildings and land that the owner and occupiers of neighbouring property might expect to joy;
(c) unreasonably affect a unique outlook that the owner and occupiers of neighbouring property enjoyed.
(ii) He further contended in the notice of appeal that the proposed extension was not of a high quality design contrary to policies GD1(6), SP7 and GD7.
7. In his affidavit, the appellant also raised the argument that the dimensions supplied by the applicant were materially inaccurate in relation to the respective ridge heights of Massabielle and Santa Rosa. He therefore contended that the respondent had taken into account inaccurate measurements and therefore should not have granted planning permission. At paragraph of 34 of his first affidavit, the appellant stated as follows:-
"I have therefore taken measurements myself of the ridge height of the existing bungalow and the ridge height of Santa Rosa, which I was able to do from my balcony. The ridge height of the existing bungalow from my balcony is 2.4m and the ridge height of Santa Rosa from the balcony is 5.83m giving a distance between both ridges of 3.43 metres (a not insignificant difference of 500mm), and accepted as being accurate by the Planning Department. Additional to this, the architect's plan dimensions the distance between the east elevation of Massabielle and the west elevation of Santa Rosa being 3.394 metres, whereas I have measured it to be 3.29 metres. I therefore seriously question the accuracy of the plans and, therefore, the validity of the permit."
8. It was this paragraph that led the applicant to file an affidavit in response sworn on 28th October, 2014. Attached to the applicant's affidavit was a letter from his architect, Mr Harvey, dated 23rd October, 2014, and a drawing 969/05 which recorded the relative heights of Massabielle as it currently stood and the proposed extension.
9. What underlay the appellant's concerns as expressed by paragraph 34 of his first affidavit was the impact of the proposed extension on windows and a balcony on the first floor of the west gable of Santa Rosa. The appellant contended in his notice of appeal that the existing gable of Massabielle already blocked out light to these windows to a large extent. He therefore objected to the proposed development because it had the effect of raising the ridge height of Massabielle by a further 2.4 metres. This meant that the proposed extension would block out completely light to the first floor windows on the west side of Santa Rosa.
10. In response to this the letter of Mr Harvey exhibited to the applicant's affidavit, at paragraph 4 stated as follows:-
"The detailed survey suggests that the balcony and first floor of the Appellant's property are actually 307mm higher than originally measured so that the proposed eaves of Massabielle is only 1754mm above this level and not 2061mm as originally shown. The impact upon the Appellant's property is therefore less."
11. The appellant, in response, maintained his objection to the overbearing impact and serious harm caused to Santa Rosa and also emphasised that the difference between the ridge height of Massabielle for the proposed extension and Santa Rosa was only 1133 mm rather than 1439 mm, when the matter was considered by the respondent.
12. Finally, part of the appellant's contentions complained about the impact of an extension to Massabielle on the property on the other side of Massabielle which is known as Samarkand. However, the owner of Samarkand has not appealed against the granting of permission and so I do not consider it appropriate to have regard to submissions about the impact of the development on Samarkand specifically, as distinct from any submissions about the impact of the development of Massabielle on its immediate general location.
13. It is material for the purposes of this decision to set out the current size of Massabielle and what is proposed.
14. At present Massabielle is a single storey bungalow with a gable roof running from west to east. To the west of Massabielle is Samarkand, which is also a single storey bungalow but with a dormer extension. Based on the drawings produced by the applicant, which are those most favourable to the appellant, Samarkand at present is 987mm higher than Massabielle. If the proposed extension is permitted, Samarkand would be 1340mm lower.
15. Santa Rosa is a two storey extension. At present it is 3440mm higher than the ridge height of Massabielle and would be 1133mm higher than the proposed extension. The proposed extension to Massabielle in terms of the roof is different from the existing property because the new roof would no longer have gable ends butting right up to Santa Rosa but rather features a hipped roof. In other words the new roof would have 4 slopes which converge to create a central ridge.
16. As mentioned above Santa Rosa has a balcony and windows on its western gable which overlook Massabielle. Again, based on the drawings of Mr Harvey submitted by the applicant, the proposed development of Massabielle is 2325mm higher than the existing ridge height. Equally it is right to record that the height of the proposed extension to the first floor i.e. at the bottom of the hipped roof is 610mm lower than the current ridge height of the top of the current roof of Massabielle.
17. In considering the grounds set out the test to be applied on the planning appeals is well known. In Dixon v The Minister for Planning and Environment [2012] JRC 237A W. J. Bailhache Deputy Bailiff stated as follows:-
"The Law
14. The test that is to be applied on this appeal is well settled. The Court is required to apply the test as set out in Island Development Committee-v-Fairview Farm Limited [1996] JLR 306 as elaborated by the passages in the Royal Court's decision in Token Limited-v-Planning and Environment Committee [2001] JLR 698 as approved by the Court of Appeal in Planning and Environment Committee-v-Le Maistre [2002] JRL 389 and by the majority of the Court of Appeal in Trump Holdings Limited-v-Planning and Environmental Committee [2004] JLR 232.
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...."
18. In Token Limited-v-Planning and Environment Committee [2001] JLR 698 Sir Philip Bailhache, Bailiff stated at paragraph 9 as follows:-
"The legal test
9. The test to be applied by this court in determining appeals under the Island Planning (Jersey) Law 1964 was settled by the Court of Appeal in Island Dev. Cttee. v. Fairview Farm Ltd. (2). Le Quesne, J.A. stated (1996 JLR at 317):-
The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable. It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view ...
The duty of the court on an appeal under art. 21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that that decision was, in its view, unreasonable.
The Solicitor General submitted that the decision in Fairview Farm did not entitle the court to find that the Committee's decision was reasonable but quash it because the court had reached an equally reasonable but different decision. We agree. The court might think that a Committee's decision is mistaken, but that does not of itself entitle the court to substitute its own decision. The court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene. There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken. To put it another way, there is a margin of appreciation before a decision which the court thinks to be mistaken becomes so wrong that it is, in the view of the court, unreasonable."
19. In The Minister for Planning and Environment v Hobson [2014] JCA 148 the Court of Appeal made further observations on the meaning of unreasonable at paragraphs 78 and 79 as follows:-
"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."
20. Insofar as the appellant complains about loss of light and privacy this was considered in Winchester v The Minister for Planning and Environment [2014] JRC 118. At paragraph 29 Commissioner Clyde-Smith stated as follows:-
"29. As to the loss of light and privacy, it is clear that the new building will harm the amenities of No 9 but the issue is whether, in the context of the Built-up Area, that harm is "serious". We have considerable sympathy for Mr Winchester and his family in that being on the very western end of the close, they have enjoyed almost complete privacy and uninterrupted light. The problem is that their property is in the Built-up Area and they have to accept the potential loss of light and privacy that goes with any property in the Built-up Area. Whether or not the harm here is serious is finely balanced - hence the split decision of the Panel, but in the end, the majority concluded that it was not serious and in our view, that decision was neither mistaken nor unreasonable."
21. Insofar as the appellant complained about a view being affected, thus causing a serious harm to the amenity of the appellants property, in Dunn v The Minister for Planning and Environment [2009] JRC 237 at paragraph 10 Sir Philip Bailhache, sitting as a Commissioner, stated:-
"The law, however, confers no legal right, in the absence of a servitude, to a view."
In the same paragraph he continued:-
"The loss of a view may be an element of the loss of amenity to be taken into account in that sense, but it is not per se a material planning factor. Put simply, you can buy a room with a view, but you cannot buy a view."
22. In Almondale v The Minister for Planning and Environment [2006] JRC 135 Birt, Deputy Bailiff in relation to an amenity stated as follows:-
"(i) It is of course correct for the appellant to state that the site has not been designated as an Important Open Space and does not fall within the Shoreline Zone. However that does not mean that the question of sea views and the provision of an open break need be ignored. In Guillou v Island Development Committee [1969] JJ 1225 the Court made reference to the definition in the Shorter Oxford Dictionary of 'amenity' as being "the quality of being pleasant or agreeable" and further noted that 'pleasant' is defined as "agreeable to the mind, feelings, or senses." The Court went on to say that amenity should be interpreted in a wide sense so as to include more than just visual matters. In the Island Plan itself amenity is described as "pleasantness of situation, attractive features of the locality".
23. In Moody v The Minister for Planning and Environment [2012] JRC 213 Commissioner Clyde-Smith at paragraph 30 stated as follows:-
"It seems to us inevitable that any development within the built-up area will harm the amenities of the neighbours to some extent."
In the same paragraph he continued:-
"Owners and occupiers of properties within the built-up zone cannot reasonably have the same expectations as to privacy as say those living in the Green Zone. If those expectations are set too high, then the Spatial Strategy as set out in the 2011 Island Plan in terms of the Island's housing needs will be seriously impaired."
24. Finally, if a procedural irregularity occurs, by reference to paragraph 65 of Ferguson v The Minister for Planning and Environment [2013] JRC 022 , the approach to be taken is as follows:-
"The Court will not quash a decision in every case where there has been some procedural irregularity. The Court is concerned in an administrative appeal with considering whether the proceedings which were followed were, in all the circumstances, in general sufficient and satisfactory. Put another way it is only where any procedural errors or unfairness are sufficiently serious to render the decision itself unreasonable that the Court will intervene."
25. The decision was taken on the basis of a recommendation made by a planning officer. In her report dated 3rd July, 2014, she referred to the following policy considerations and commented on the application of these policies as follows:-
"Policy GD1 - General Development Considerations
Outlines the material considerations against which all development proposals will be tested, including the need to ensure development does not seriously harm the amenities of neighbouring users or character of the area.
In this instance there is considered to be no serious harm caused by the proposed development.
GD 7 - Design Quality
Requires a high quality of design that respects, conserves and contributes positively to the landscape and built context.
The proposed development is considered to be an acceptable standard of design.
BE6 - Building Alterations and Extensions
Development proposals to alter or extend existing buildings will be approved where they respect or complement the design, detailing and materials of the existing building; are sympathetic to the form, scale, mass and proportions of the existing building; complement the design of adjoining buildings and the quality of the surrounding area; and respect the space between buildings where it contributes to the character of the building group or surrounding area.
The proposed development is considered appropriate upon the existing dwelling and will not unreasonably harm the character and quality of surrounding properties or the wider area.
H6 - Housing Development within the Built-Up Area
Proposals for new dwellings, extensions or alterations to existing dwellings, or changes of use to residential, will be permitted within the boundary of the Built-up Area, as defined on the Island Proposals Map, provided that the proposal is in accordance with the required standards for housing as established and adopted by the Minister for Planning and Environment through supplementary planning guidance
The proposed development is considered to meet the standards for new development within the Built-up Area.
BE3 - Green Backdrop Zone
Development will only be permitted where the landscape remains the dominant element in the scene and where the proposed development is not visually prominent or obtrusive in the landscape setting.
The proposed development is not considered to unreasonably impact upon the appearance of the Green backdrop."
26. The planning officer carried out a site visit and recorded that she was permitted to look at the view currently enjoyed by Santa Rosa from the balcony on the western gable as well as inspecting both properties from the outside. She also noted the responses received from the appellant and the owner of Samarkand.
27. In the part of her report headed "officer analysis" she firstly dealt with design as follows:-
"The existing bungalow lies in close proximity to its neighbours to the West (Samarkand) and East (Santa Rosa), and both of these properties are larger than the existing Massabielle bungalow. Santa Rosa to the East dominates at a full two stories high with gables. Santa Rosa also has existing windows and patio doors onto a first floor terrace that faces West overlooking Massabielle and prejudicing Massabielle's privacy to a substantial degree and giving a sense of overbearing.
The Property to the West, Samarkand, is not substantially larger than Massabielle, but it does have existing dormers that results in a marginal loss of privacy - though this is not considered to be at level that is unreasonable in this context.
Raising and altering the roof of the bungalow is considered to be acceptable, such that the existing property is dominated by its neighbours and raising the roof will bring the property in-line with the rhythm of development that would be expected in this context; with a reasonable stepping up of the ridge heights."
28. In relation to the impact on neighbours she stated as follows:-
"Santa Rosa to the East has amenity at first floor level that is in very close proximity to the gable of Massabielle. This is an existing situation and is a situation that results in that property having substantial views into Massabielle's private amenity spaces. The proposed extension to Massabielle will feature a hipped roof, and therefore, whilst the elevation that faces Santa Rosa will be fuller, the nearest and highest point will not be greater and the higher roof will hip away from Santa Rosa. The majority of massing will therefore be concentrated into this area and it is not considered that this will result in an unreasonable loss of light or overbearing upon Santa Rosa.
The Samarkand building line is set back from Massabielle and is in close proximity. The proposed development will have some impact upon Samarkand, however this is not considered to be unreasonable and not unacceptably overbearing upon Samarkand nor is it considered to cause an unacceptable loss of light.
In terms of impact upon private amenity, no windows will face onto either of the neighbouring properties and the proposed development will rather improve an existing privacy problem."
29. Her conclusions stated:-
"The proposal to raise and alter to the roof of Massabielle is considered acceptable, such that it will not cause unreasonable loss-of-light, overbearing impact or loss of privacy upon neighbouring property. The proposed conservatory is also considered acceptable.
The representations received concerning the impact upon Santa Rosa have been assessed, though it is considered that the existing situation with the amenity and windows/doors at first floor level (belonging to Santa Rosa) will not be unreasonably affected by the increase in development mass by means of overbearing impact or loss of light. Furthermore, the argument for a loss of view is not deemed a material consideration but it is of note that this view is enjoyed by looking over Massabielle's property. This property has been visited by the Case Officer, from both the inside and outside.
The representations received concerning the impact upon Samarkand have been assessed, however it is not considered that the development will cause unacceptable loss of light, privacy or cause any significant overbearing impacts upon that property.
The site does lie within the Built-up Area, wherein there is the presumption in favour of new development and, in accordance with the strategic policies, a desire for a higher density of development. The scale relationship of the development in its context, is not considered unreasonable or significantly harmful.
With regard to the statement regarding design quality, it is noted that the design remains cotemporary with the simple architectural style of the original dwelling and in this respect is considered to be acceptable.
With regard to the statement that the height of the development will be out of character, it is considered clear that the existing situation is out of character; Massabielle is much lower than its neighbours, and bringing the height of the property up will allow for a more typical and contextual form of development.
All other requirements of the Island Plan are considered to be met and no other representations or consultations have been received."
30. In her reasons for recommending approval she stated:-
"In this case, the proposed first floor extension and conservatory is not considered to cause unreasonable loss of amenity to neighbours or cause harm to the wider character of the area.
In addition, the representations raised to the scheme on the grounds of overbearing development, loss of light, loss of privacy, design quality and impact upon the wider character of the area have been assessed. However, it is considered that the proposal accords with the terms of Policies GD1, GD7, BE6 and H6 of Island Plan, in that it does not have an unreasonable impact on neighbouring users and is of a reasonable design standard that is appropriate in its context."
31. In relation to this ground, what is complained about by the appellant is loss of amenity because the extent of the development is visually intrusive and overbearing in relation to the western elevation of Santa Rosa that causes harm to the appellant's amenities; it causes a loss of light and unreasonably affects a unique outlook.
32. The conclusion I have reached in relation to the application is that the effect of the proposed development does reduce the amenity of Santa Rosa because the proposed development increases the height of Massabielle by the addition of a first floor. This was recognised by the planning officer in her assessment of the impact on neighbours. However, she also reached the conclusion that the proposed development would not result in "an unreasonable loss of light or overbearing upon Santa Rosa". This was because the nearest point of the construction was not greater or higher than the existing roof of Massabielle. In fact, as noted above, it would be 600mmm lower. Furthermore, while the proposed new roof is higher, this roof would slope away from Santa Rosa because it was a hipped roof rather than a roof with gable ends. The planning officer also considered the view not just by an external inspection of the properties but by looking at the view from inside Santa Rosa with permission of the appellant.
33. The planning officer therefore concluded that the proposed development did not seriously harm the amenities of Santa Rosa and did not unreasonably affect the level of privacy that owners or occupiers might be expected to enjoy or the level of light that owners and occupiers might be expected to enjoy. In doing so she clearly considered that Massabielle, if permission was granted, would be larger and some additional loss of light would occur.
34. Having considered all the documentation there is nothing I have seen which would lead me to conclude the view reached by the planning officer and accepted by the respondent was unreasonable. The officer listened to and evaluated the appellant's concerns and clearly took those into account in reaching her recommendation which the respondent accepted. Nothing that the appellant has produced has persuaded me that this is a case where it is appropriate to interfere with the respondent's decision. The respondent has not applied any policies of the Island Plan incorrectly or failed to consider the issues raised by the appellant.
35. In particular, I accept that the relative scale of the proposed development was not one that I could conclude is unreasonable. The effect of the permission granted means that where as previously Massabielle was smaller than both its neighbouring properties it will now be larger than Samarkand which is a bungalow with a dormer extension in the attic but smaller than Santa Rosa. The fact that in the immediate location of Les Champs Estate there are more bungalows (some of which have dormer extensions) than two storey properties does not, by reference to the drawings and photographs presented to me, mean that the proposed development is inconsistent with the relevant policies of the 2011 Island Plan. There is nothing in the paperwork presented to me to suggest that the proposed development is out of proportion and certainly not to the extent that would make the proposed development unreasonable. If anything, as the planning officer noted, it is the existing development that is out of character.
36. As in Winchester and Moody, this is an application for development in a built-up area. As mentioned by policy H6, which the planning officer took into account, there is a presumption in favour of development. As with Mr Winchester and Mr Moody, the appellant in principle has to accept potential loss of light and therefore its impact on his amenity, unless the decision can be shown to be unreasonable. The planning officer and the respondent recognised the possibility of such harm, but in the event concluded it was not serious. Policy GD1 requires serious harm to amenities to justify refusal of planning permission. As in Dunn loss of a view only is not generally loss of an amenity; the planning officer also concluded that the proposed development would not cause any significant overbearing impact on Santa Rosa. There is nothing to suggest that she did not appreciate what was meant by amenity or its loss (see the citation from Almondale above). The correct approach has therefore been applied and I am not able to conclude either that the development would seriously harm the amenities of Santa Rosa or that the respondent's decision on loss of amenity was unreasonable.
37. Finally, the appellant complained that an earlier application in respect of Massabielle had been rejected. However, past applications are generally not relevant to appeals against any decision by the respondent. What the court has to consider is whether the existing decision is reasonable. From the papers before me, it appears that an earlier application was submitted and indications appear to have been received that the previous application, which involved a gable roof rather than a hipped roof, would not have been acceptable and accordingly the application was withdrawn. The fact that an earlier application was withdrawn, because it might not have been approved had the application been progressed, is not relevant to a later decision to approve a fresh application. An earlier but different previous application which is withdrawn simply confirms that a later application where permission is granted is a fresh application. The existence of a previous application that is then withdrawn should not be confused with a criticism of the respondent taking inconsistent decisions (see The Minister for Planning and Environment v Hobson). A criticism of inconsistent decisions is not the same thing as a suggestion that a later application should be refused simply because an earlier but different application was not pursued. The latter suggestion is not a basis to conclude that the respondent has acted unreasonably.
38. The appellant referred to two other planning applications which had been refused, which appeared to be the bases of an allegation that the respondent had acted inconsistently. The first of these decisions were related to a property known as Agavi. However this property is not in the same location as the appellant's property. It was also an application to construct a basement and a two storey extension which the respondent considered did have an overbearing impact of the properties in the immediate location of Agavi.
39. In his written submissions the appellant criticised the respondent's decision as also being inconsistent with a decision to refuse planning permission in respect of a property known as Pont De L'Arche. While this property is located closer to Massabielle, it is still not in the immediate vicinity of Massabielle as it does not form part of Les Champs Estate. The application was also to demolish an existing two storey property and replace it with three, three-bedroom and one, two-bedroom houses. The nature of the application was totally different to a single floor extension to Massabielle. I do not therefore regard either of the two applications referred to by the appellant as a basis to conclude that the respondent had reached an inconsistent decision in respect of Massabielle compared with the other two properties identified.
40. In relation to this ground, the appellant complained that the proposal was not of a high quality design and was therefore contrary to policy SP7 and GD7. The relevant parts of policy SP7 provide as follows:-
"Policy SP 7
Better by design
All development must be of high design quality that maintains and enhances the character and appearance of the area of Jersey in which it is located.
Applications must, where appropriate, be accompanied by a Design Statement to demonstrate and explain how the principles of good design have been incorporated into the development proposal."
I have already set out the relevant part of policy GD7 above.
41. The planning officer however took into account the fact that this was a development of an existing building. Her conclusion was therefore that policy BE6 which is also set out above applied. She considered the proposed development was appropriate to the existing dwelling and was not unreasonable having regard to the character and quality of the surrounding properties. In her conclusion she stated:-
"....it is noted that the design remains cotemporary with the simple architectural style of the original dwelling and in this respect is considered to be acceptable."
42. Again in my view there is nothing in the submissions and the documentation provided to me to lead me to conclude that this view was either mistaken or was an unreasonable view. In my judgment the planning officer and the respondent appeared to have applied policy BE6 correctly and therefore I see no basis to interfere with their decision. While policy GD7 does require a high quality design, this has to be read subject to policy BE6 for extensions to existing buildings which may in part produce a qualification of the requirements of policy GD7. This is the approach the planning officer has taken in this case which I cannot criticize.
43. This ground relates to the appellant's concerns that the respondent did not have before him accurate drawings and therefore was not able to appreciate the size and scale of the development of Massabielle and its impact on the appellant's property, Santa Rosa. In deciding this appeal, the approach I have taken is to take into account the drawings filed on behalf of the applicant which are those most favourable to the appellant. I have also noted that the planning officer visited the location and was therefore able to assess for herself the impact of the proposed development.
44. In relation to this aspect of the appellant's submission, I accept that the respondent did not have accurate drawings before him. This might be a basis for the court to quash a decision and send it back to the respondent. However, as noted in the Ferguson case cited above, the court will not quash a decision in every case where there has been some procedural irregularity. What the court is concerned with is whether the procedures followed were in general sufficient and satisfactory and the materiality of any mistake.
45. In this case, apart from the drawings not being as accurate as those originally filed for the appellant by Mr Harvey, for the purposes of this appeal, the processes of the respondent were generally sufficient and satisfactory. Furthermore, while the ridge height of Massabielle by reference to the drawings provided by the applicant is some 300mm higher than the plans submitted to the respondent, the height of the balcony of the first floor of the appellant's property is also just over 300mm higher than originally measured. This has the consequence that the proposed eaves of Massabielle were only 1754mm above the balcony on the first floor not 2061mm. In my judgment, these two matters broadly cancel each other out and therefore the appellant's complaint is not a basis to conclude that mistakes in the drawings originally filed by the applicant are sufficient to find that the respondent's decision was unreasonable or that I should send the matter back to the respondent to reconsider his decision.
46. For all these reasons, I therefore dismiss the appellant's appeal, as I am not satisfied there is any basis to conclude that the respondent's decision was unreasonable and should be set aside.
47. Finally, I note that, in his written contentions, the appellant made the observation that "if all parties did comment and dialogue was open at an early stage, a lot of stressful unpleasant situations such as that myself and my family are currently experiencing could be avoided". I can only echo those sentiments and repeat the observations I made in Carter v The Minister for Planning and Environment [2013] JRC 227, where I expressed the hope in respect of another planning issue between neighbours that cooperation between neighbours would continue in the future. Where an individual wishes to develop their existing property, in particular in a built-up area, which might impact on neighbours, I would encourage any person contemplating a development to discuss what they are proposing with neighbours sooner rather later to seek to avoid difficulties if possible.
Authorities
Planning and Building (Jersey) Law 2002.
Dixon v The Minister for Planning and Environment [2012] JRC 237A.
Token Limited-v-Planning and Environment Committee [2001] JLR 698.
The Minister for Planning and Environment v Hobson [2014] JCA 148.
Winchester v The Minister for Planning and Environment [2014] JRC 118.
Dunn v The Minister for Planning and Environment [2009] JRC 237.
Almondale v The Minister for Planning and Environment [2006] JRC 135.
Moody v The Minister for Planning and Environment [2012] JRC 213.
Ferguson v The Minister for Planning and Environment [2013] JRC 022.
Carter v The Minister for Planning and Environment [2013] JRC 227.
2011 Island Plan.