Jersey Unreported Judgments

Planning - appeal against decision of the Minister dated 9th October 2014.

[2015]JRC054

Royal Court

(Samedi)

10 March 2015

Before     :		W. J. Bailhache, Bailiff, and Jurats Nicolle and Blampied
Between	Sylvia Lagadu		Appellant
And	The Minister for Planning and Environment		Respondent

The Appellant appeared in person.

Advocate D. J. Mills for the Respondent.

judgment

the bailiff:

1.        On 9^th October, 2014, the respondent granted permission to Mona Lisa Developments Limited to the following development of land:-

"Retain existing residential unit & convert offices into 5 No. residential units with private amenity space. Various external alterations to façade.

To be carried out at:

10 La Chasse Chambers, La Chasse, St Helier, JE2 4UE."

2.        The development was considered to be acceptable having regard to all material considerations and in particular Island Plan policies SP1, SP2, GD1, GD7, HE1, BE6 and H6, which supported the principle of the conversion of office space to residential use where proposals maintain and enhance the character and appearance of the surrounding area.  The approval given recognised that there had been representations made against the proposed development on the grounds that it would have an overbearing impact and create an unacceptable loss of light on the property of the representors.  Having assessed the application against those representations, the Minister had been satisfied that the development would not cause unreasonable harm to the amenities of neighbouring uses, including living conditions for nearby residents given the small scale nature of the additional balconies located on 10 La Chasse.  It was noted that there would be provision for appropriate screening preventing overlooking and allowing light to penetrate.  It was also noted that in the assessment of the Minister, the proposed development would not adversely affect the architectural or historic interest, character or setting of Number 12 La Chasse which, at the time of the approval was proposed to be listed, but which was in fact listed by the time the appeal was heard.  In the present case, the relevant decisions were taken by officers under delegated powers from the Minister but as they were taken in his name it is convenient to refer in this judgment to "the Minister". 

3.        The appellant is the owner of Number 12 La Chasse, which is a Grade 3 listed building.  It was suggested that we attend on site so that we could see the existing structures and better assess the impact of the proposed development, and the Minister did not object to this course of action - and indeed thought it might be helpful.  We note the comments of the Court of Appeal in Trump Holdings Limited v Planning and Environment Committee [2004] JLR 232 at pages 249 - 250 and in Minister for Planning and the Environment v Dorey [2009] JCA 219 where disquiet was expressed about site visits which might involve the Court in taking into account factual or opinion evidence which had not been before the decision maker on the application to develop land.  That is clearly an appropriate constraint to put on the conduct of site visits, and we had close regard to it.  Nonetheless, although this is unlikely to be of continuing relevance given the impending changes to the appeal provisions in the Planning and Building (Jersey) Law 2002, the Royal Court has generally found site visits to be extremely helpful in enabling the Court to conduct the exercise which it is required to conduct, as emphasised by the Court of Appeal in Island Development Committee v Fairview Farm Limited [1996] JLR 306 when the Court said that the Royal Court:-

"... cannot escape the responsibility of forming its own view".

Indeed, as the decision taker has often looked at the site, it is unsurprising that the Court in conducting its review exercise should sometimes wish to do the same. 

4.        When we attended on site, the appellant's son asked if he might address us on her behalf and as the appellant endorsed that request we agreed that he could do so.  The material things which he said to us at that time were three-fold:-

(i)        The drawings submitted in support of the application were not entirely accurate in the sense that they conveyed the wrong impression as to the height of the existing building on the application site, relative to the neighbouring buildings;

(ii)       The balconies which were proposed to be constructed would take away light from the windows in the north gable of Number 12 La Chasse; and

(iii)      Number 12 and Number 10 La Chasse had originally been in the same ownership but on the death of that owner, her two daughters had split the property so that one inherited Number 12 La Chasse and the other inherited the garden, on which the building forming part of 10 La Chasse had subsequently been built.  Mr Lagadu told us that it had been understood and agreed by the two inheriting sisters that the building constructed on 10 La Chasse would be set back, as it currently is, so as not to impede the light access into the windows on the north gable of Number 12. 

5.        We say immediately in relation to the last point that it is unclear whether this was ever material brought to the attention of the Minister, but even if it was, it does not seem to us to be relevant for the purposes of a planning decision nor for a planning appeal.  The property rights of adjoining owners are essentially governed by the contractual arrangements which they make together and can enforce respectively, and although the absence of particular servitudes might in some cases be a relevant planning consideration, a general agreement of the kind described to us by Mr Lagadu is clearly not.  The Minister can only have regard to material planning considerations.  We do note, however, that if such an agreement existed, it is possible that it is reflected in the relevant real estate contracts or testamentary dispositions, copies of which will be found in the Public Registry, and in those circumstances it may well be worth the appellant verifying whether, through her ownership of 12 La Chasse, she has any formal contractual relevant rights. 

6.        When on site, we did look closely at the respective heights of the building currently forming part of 10 La Chasse and its neighbouring buildings.  We think that probably the plan submitted in support of the application is a little misleading in this respect, but we do not think that has had any material impact on the decision which was made. 

7.        It was clear to us that the main issue surrounded the proposed balconies to be constructed on the eastern façade of the building currently forming part of 10 La Chasse.  It was also apparent that the appellant, who lives at Number 12 La Chasse, was personally very upset by the proposal.  As far as she is concerned, the creation of the balconies would cause a life-changing situation which would result in effect in her losing her home and having to resort to States housing for somewhere to live.  The Minister - and as this is an appeal from the Minister's decision, the Court - is entitled to have regard to loss of privacy and amenity for the neighbouring premises, to the extent that any proposed development would unreasonably affect it, but we do have to emphasise that as a matter of law we are not to have regard to the impact which a proposed development might have personally upon the owners of neighbouring properties because such personal reaction is not a material planning consideration.  Indeed it could not be so, because the personal reactions of neighbours will vary according to the characteristics of individuals.  The planning process is an objective process, and therefore excludes such considerations. 

8.        In her written submissions, the appellant drew a distinction between the interests of a Jersey resident and the interests of a limited company motivated by the greed of making a profit out of property development.  For similar reasons, we do not think this is a material consideration either.  It is not correct to say that financial considerations can never be material, because, objectively, it may sometimes be necessary for a planning authority to have regard to the lack of feasibility of a particular proposal in considering whether or not a planning permission should be given.  However, it is a fact of life that planning permissions are liable to have an impact on the value of the property having the benefit of them, usually positively, and are liable to have an impact on adjoining properties - frequently negatively.  The planning authority does not measure these considerations of financial gain or loss as material planning considerations but does take into account the considerations which the planning policy requires to be taken into account - thus Policy GD1/2(a) is framed as follows:-

"Development proposals will not be permitted unless ... the proposed development ... does not seriously harm the Island's natural and historic environment in accordance with Policy SP4 "Protecting the natural and historic environment" and in particular:

a. Will not have an unreasonable impact on the character of the coast and countryside ..."

9.        More directly for the purposes of the present case, policy GD1/3 provides:-

"Development proposals will not be permitted unless the following criteria are met such that the proposed development:

...

3 does not unreasonably the harm [sic] the amenities of neighbouring uses, including the living conditions for nearby residents. In particular;

(a) not unreasonably affect the level of privacy to buildings and land 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 ..."

10.      Taking in to account these features will doubtless have an impact on the financial consequences of a proposal, but the material consideration is not a financial one but instead is as framed in the planning policies. 

11.      A further objection which arises on the papers is that the balconies will be constructed using modern materials which are not in keeping with the area and will conflict with the Minister's responsibilities to protect and enhance listed buildings, of which one is Number 12 La Chasse.  We do not think that that objection can stand given that the approval notice contains this condition:-

"Notwithstanding the indications on the approved plans, prior to the commencement of the development hereby permitted, samples of all external materials to be used to construct the development shall be submitted to and approved by the Minister of Planning and Environment ."

12.      The reason given for that condition on the permit includes the safeguarding of the visual amenities of the area as well as the implementation and subsequent maintenance of an agreed scheme of public art in accordance with policy GD8. 

13.      It seems to us therefore that as the Minister has retained control over the construction materials, an objection based upon the design impact of new materials cannot succeed.  

14.      So we come to the real question at stake which is whether or not the Minister has acted unreasonably in giving consent for the proposal to construct balconies on the eastern façade of 10 La Chasse.  The proposed balconies are to be constructed at first, second and third floor level.  The balconies do not run to the most southerly end of the building, but they do take up approximately two thirds of the façade; and at the southern end of each balcony they are approximately two metres in width, tapering back to approximately one metre in width at the northern end of the balcony.  The impact on the appellant's property, which we were able to see more plainly from a site visit and was apparent from the plans is such that, albeit some four or five metres from her windows, the balconies will be built out to a point approximately half the width of those windows.  There will undoubtedly be some loss of light to the appellant as a result, and the appellant is also concerned that the noise levels will increase exponentially.  She said to us that her windows are invariably open during the summer months, and noise from the balconies and possibly smells from barbeque cooking, would permeate her living and bedroom accommodation.  The Minister's response to these criticisms is that he has not acted unreasonably.  The Plan policies require him to make a judgment call on the effect of the proposed development on the amenities and privacy of neighbouring properties.  The question he has to consider is whether the proposal will result in unreasonable harm, or whether it has an unreasonable effect on the neighbour.  He contends that as the balconies lie to the north of the appellant's property, they will not materially cut out sunlight, and indeed it was clear from a site visit that the major impact on light in this area will come from the Forum development lying to the east of La Chasse. 

15.      In submission, Advocate Mills contended that the Minister's decision was defended on the grounds that although not necessarily the decision which the Court would have made, it was not an unreasonable decision for the purposes of the right of appeal conferred by Article 114 of the 2002 Law.  However, Advocate Mills went on to say that if the Court was minded to intervene in that decision, the Court could always order that the permission be maintained subject to the balcony being reduced in size.  This would not materially affect the development, and in any event, the Minister would still require a privacy screen at the south end of the balcony.  If this course were to be followed, the intended balcony measuring approximately 9.75 square metres would be reduced to something in the order of 6.5 square metres. 

16.      We remind ourselves that the test on appeal is well established.  As was said in Hobson v Minister for Planning and Environment and Fairman [2012] JRC 200 at paragraph 12:-

"We must 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 Masitre [2002] JLR 389 and by the majority of the Court of Appeal in Trump Holdings Limited v Planning and Environment Committee [2004] 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."

17.      The appeal is not based on Wednesbury unreasonableness, where the applicant has to show the administrative decision was so unreasonable that no reasonable person could have taken it, and the Court must allow a margin of appreciation to the Minister in relation to the decision which has been taken because the appeal is not a full merits appeal.  As was said by the Court of Appeal in Minister for Planning and Environment and Fairman v Hobson [2014] JCA 148:-

"75. In summary a full right of appeal to a higher body permits the appellant a wider canvas and a judicial review: he or she is able to put before the appellate court ... 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 ...

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.  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 ... It seems to us that such a task in 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."

18.      The evaluation of a development proposal in the town of St Helier will inevitably take into account that the extent to which privacy and loss of amenity are relevant factors is likely to be less significant than where a similar development proposal in the countryside is being evaluated.  This is because there is, almost by definition, less privacy in the town to start with.  As the Court said in Moody v Minister for Planning and Environment [2012] JRC 213 at paragraph 30:-

"It seems to us inevitable that any development within the built-up area will harm the amenities of the neighbours to some extent, but in our view the harm to the amenities of the neighbouring properties  ... cannot be regarded as serious. 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. In our view, the effect on the level of privacy of the neighbouring properties to the north, including that of the Appellant, is not unreasonable."

19.      We do take the view that amenity space for a proposed residential development in the town of St Helier is from a planning perspective important and we think it was not at all unreasonable for the Minister to take that into account.  What he was required to do was to balance that factor against the loss of privacy and amenity to the appellant.  If the Court had been making a decision on the application, we would have taken the view that the balconies are too oppressive as designed, and that they should be reduced in their width, probably as suggested by the Minister in submissions to us.  It may be of course that the applicant for development permission will in any event moderate the plans to take these comments into account, and it is to be hoped that it might do so.  Nonetheless, our function on this appeal is to apply the law as it stands, and we cannot reach the view that the Minister's decision to approve the development was unreasonable, even if it is not a decision which we would ourselves have made. 

20.      For these reasons, the appeal fails. 

Authorities

Trump Holdings Limited v Planning and Environment Committee [2004] JLR 232.

Minister for Planning and the Environment v Dorey [2009] JCA 219.

Planning and Building (Jersey) Law 2002.

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

Hobson v Minister for Planning and Environment and Fairman [2012] JRC 200.

Minister for Planning and Environment and Fairman v Hobson [2014] JCA 148.

Moody v Minister for Planning and Environment [2012] JRC 213.