Jersey Unreported Judgments

Planning - reasons for allowing third party appeal.

[2015]JRC089

Royal Court

(Samedi)

1 May 2015

Before     :

W. J. Bailhache, Bailiff, and Jurats Fisher and Grime

 

Advocate G. C. Staal for the Appellants.

Advocate G. G. P. White for the Respondent.

judgment

the bailiff:

1.        On 14^th October, 2014, the Minister for Planning and Environment determined a retrospective application by Reg's Skips Limited ("the applicant") for use of part of the site of McQuaigs Quarry, Les Charrières de Bonne Nuit, St John for the storage and sorting of mixed skip loads before onward recycling.  The decision notice refers to the fact that amended plans had been submitted including additional information and an environmental impact assessment.  The application indicated that sorting of the skip loads was to be within the existing building. 

2.        The decision notice approved the application and gave reasons as follows:-

"The Minister has granted planning permission following two ministerial meetings and a site visit, and after careful consideration of the details of the application, the EIA (the Environmental Impact Assessment) submitted, the policies of the Island Plan and the comments made by both consultees and residents.

The Island Plan, particularly in Policies WM2, WM4, WM6 and MR2, encourages responsible waste management, recycling and operations which facilitate these activities. Moreover, whilst there is a general presumption against development in the green zone, allowance is made for changes of use of existing developed sites and Policy EIW5 allows in principle for waste management and recycling in the countryside.

The Minister has been mindful of the need to avoid an unacceptable impact upon the landscape, the environment and the amenities of adjacent properties. In so doing the Minister has also noted that this is a commercial site with a longstanding authorised use for storage, which can involve the movement of vehicles into and out of the site.

The application in hand is not for the storage of skips nor for the use of any other part of the site than that used by Reg's Skips Limited as shown on the amended drawings; it is solely for the sorting of mixed loads and the onward movement of sorted waste. The additional information submitted clarifies the scale and nature of the operation and how it will be undertaken. The scale of the development is relatively modest. It is considered that the number of vehicle movements specifically generated by the sorting operation as opposed to the authorised storage uses, is such that it will not have an unreasonable impact upon the amenities of the area, adjacent properties or the road network.

The application has also been amended so that all sorting will be undertaken inside the building on site and not in the open air as has happened previously, which will reduce the impacts of noise, dust, fumes and potential pollution.

It is considered that in its amended form, the development will not unreasonably harm the amenities of neighbours, nor will it significantly increase traffic movements, create undue noise or disturbance nor pose a serious environmental risk. As no new buildings are proposed and the site is not in a prominent position, the proposals will not have any detrimental impact on landscape character.

It is therefore considered that this small scale commercial use upon an existing commercial site is not unacceptable."

3.        A number of conditions were attached to the approval.  They included a requirement that the permission should be operated in accordance with the environmental impact document which Mr Reginald Pinel submitted on behalf of Reg's Skips Limited dated 7^th April, 2014, and that no sorting or movement of skips should be undertaken outside the working hours stated and no work should be undertaken on site on Sundays or public holidays.  The condition included a requirement that all sorting must be undertaken inside the building. 

4.        The third condition attached to the permit was that "within 3 months of the date of this permission, the levels of potential contaminants in the yard shall be investigated.  Any risks to human health or the wider environment shall be assessed and mitigation measures proposed in a scheme to be submitted to and approved in writing by, the Department of the Environment ..."

5.        The appellants live at Sous les Bouais, Les Charrières de Bonne Nuit, St John, adjacent to the quarry.  They have brought this third party appeal under the modified procedure.  The applicants Reg's Skips Limited have not participated in the appeal. 

6.        At the conclusion of the hearing, we indicated that we would allow the appeal with reasons to be given later.  We indicated that an environmental impact assessment ought to be submitted within three months and if it were not, then in our view the proceedings for enforcement should be resurrected.  This was a reference to an enforcement notice issued against Reg's Skips Limited on 9^th December, 2009, in which it was indicated that the respondent considered that the applicant had effected an unauthorised change of use in relation to the site.  The enforcement notice was then held in abeyance pending the determination of a retrospective application for consent which has given rise to the present proceedings. 

7.        The essence of the appeal was that the respondent had given approval for proposals which would unreasonably harm the amenities of neighbouring users and living conditions for nearby residents, adversely affecting the health, safety and environment of users of buildings and land by virtue of emissions to air, land, buildings and water including noise, vibration, dust, odour and fumes, without having adequate information for the purposes of giving such an approval.  Tacked on to that submission was the contention that the decision was given by the Minister the very day before he faced election; that this was inappropriate, and was of itself a reason for striking down the decision.  This is a short summary of 49 pages of submissions filed on behalf of the appellants in a modified procedure appeal. 

8.        The respondent's answer to these submissions amounted to this: although the site is located in the green zone, it is authorised for commercial use as a storage site.  The Minister went on site himself to assess the application, which is not for the storing of skips, nor for vehicle movements involved in taking empty skips to and from the site but solely for the sorting of waste.  In so far as the process was concerned, there was nothing wrong with it and no reason why the Minister should not have determined the application the day before the election.  On the application of the usual principles in dealing with appeals under the Planning Law, the Minister's decision should be upheld. 

9.        Those principles have been discussed in many cases before this Court and in the Court of Appeal; in the latter Court, the most recent summary is to be found in Minister for Planning and Environment and Fairman v Hobson [2014] JCA 148.  At the end of the day, the Royal Court on an appeal under the provisions which apply in this case is required to determine whether the decision is unreasonable in the sense of being beyond the bounds of reasonable justification in the mind of the Royal Court.  This "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" [paragraph 78 in Minister for Planning v Hobson, supra]. 

10.      In our view, the Minister acted unreasonably in granting a permission in this case on the evidence he had before him.  The first reason for that conclusion is that he made the decision without the benefit of an environmental impact assessment, properly so called.  He did have an environmental impact assessment which was not an independent assessment but simply a document supporting the applicant's own case, drawn up by the applicant itself.  The purpose of an environmental impact assessment is to provide an independent view, from an environmental perspective, of the implications of the application.  That was particularly important in a case such as the present one, where the advice of the environmental health authorities was that the proposals ought not to be acceptable. 

11.      The relevant correspondence as to the need for an Environmental Impact Assessment is this:-

(i)        On 17^th January, 2011, the Principal Planner of Planning and Building Services wrote to the applicant in this way:-

"Uses such as yours will often require the submission of a document called an environmental impact assessment (or EIA). The purpose of an EIA is to highlight possible environmental issues before an application is submitted, so that these can be addressed in the application. You have not submitted an EIA and sadly the application does not address the issues raised by consultees and neighbours, nor the policies of the Island Plan.  As it stands therefore we cannot recommend it for approval.

...

I hope you will take the opportunity to respond to these points and the concerns that have been raised. Formal EIAs are normally produced by expert consultants working on your behalf, and you may wish to take further professional advice in responding to the points that have been raised. I must stress however that allowing you the opportunity to submit additional information does not imply that the use will be considered acceptable nor therefore that planning permission will be granted."

(ii)       On 24^th May, 2011, the Principal Planner wrote again to the applicant to say this:-

"I write further to my letter of 17th January and our subsequent meeting where, amongst other things, we discussed the need for an environmental impact assessment for your current application at McQuaig's Quarry.

I do not believe that a statement has been submitted and I am afraid that we do need to make a decision on the application. I would be grateful therefore if you could let me know whether you are still in the process of preparing an environmental impact assessment and if so, when it will be submitted.

...

As suggested in my previous letter, in the absence of the information that would be included in an environmental impact assessment, we do not feel that there is an adequate basis on which to grant planning permission and therefore the Department's recommendation would have to be for a refusal.

I do hope therefore that you will take the opportunity to submit the environmental impact assessment within the next two months."

(iii)      On 3^rd July, 2012, the Chief Executive Officer of the Department of the Environment wrote to the applicant to say this:-

"In late 2010, the Department forwarded you a letter in response to your application for retrospective planning permission. The letter requested that you submit an environmental impact assessment (EIA) in order to provide the information that was lacking in your application.  Such a document is a necessary part of a planning application for a use such as yours. To assist you, the letter included the required information and I enclose a copy ... a six week period was given for you to submit the EIA.

It is now over one and a half years since we first asked you for an EIA. Without this information, we cannot determine the planning application. You therefore continue to operate without planning permission.

...

I am sure that you are as keen as us to bring these matters to a conclusion and I therefore request that you submit the EIA and the waste management licence application.

If this information is not received by 3 August 2012, then I will consider further more formal enforcement action being taken."

12.      There is no doubt therefore that the Minister, through his officers, required the submission of an environmental impact assessment.  We note that in the Planning and Building (Environmental Impact) (Jersey) Order 2006, the interpretation provisions provide as follows:-

"(1) In this Order, unless the context otherwise requires -

"environmental impact statement", in respect of any proposed development, means a statement compiled by a person with the relevant qualifications and experience -

(a) that includes such of the information mentioned in Part 1 of Schedule 2 as is reasonably required to assess the environmental affects of the proposed development that the person compiling the assessment can reasonably be required to provide having regard to current knowledge and methods of assessment; but

(b) that includes at least the information mentioned in Part 2 of Schedule 2;"

13.      It was submitted by Advocate Staal that Schedule 2 Part 1, which sets out what an environmental impact statement must contain, requires that the person preparing the statement has some technical expertise.  We agree with that submission.  By way of example, clause 4 of Part 1 provides that the statement must contain:-

"a description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long term, permanent and temporary, positive and negative effects of the development, resulting from:-

"(a) the existence of the development;

(b) the use of natural resources;

(c) the emission of pollutants, the creation of nuisances and the elimination of waste,

and the description by the applicant of the forecasting methods used to assess the effects on the environment."

14.      The fact that clauses 1 to 5 of Schedule 2 contain requirements for technical information is emphasised by clause 6 which provides that the environmental impact statement much contain a non-technical summary of the information provided under paragraphs 1 to 5 of that part of the Schedule. 

15.      The Minister published supplementary planning guidance, practice note 18, in July 2011 on environmental impact assessments.  At paragraph A1 of that document, which provides a general introduction to environmental impact assessments, there is contained in bold font the following language:-

"By the very nature of the schemes that require an EIA the process can be complex and technical and as such it must be carried out by a person with relevant qualifications and experience and this is a statutory requirement."

16.      At paragraph A5 of the same planning guidance is found the following language:-

"Article 1(1) of the EI order requires that it is prepared by a person with relevant qualifications and experience and should be presented in an understandable format for public scrutiny.  The EIS must include a separate non-technical summary (NTS). Since the EIS should be impartial, it is best  for it to be carried out by an appropriate independent body."

17.      Against that background what document did the Minister in fact have to hand when he made his decision now appealed?  The answer is that on 7^th April, 2014, the applicant provided a document which was described as an environmental impact assessment.  A study of that document shows plainly that it contains little by way of technical information.  It does contain a number of references to political statements made by Ministers or Scrutiny Panel States members, and it does contain an amount of argumentative material.  It also sets out the operational methods of the applicant in relation to the sorting of rubble.  It is not a technical document.  It is interesting therefore to look at the terms of condition 1 attached to the permission referred to at paragraph 3 above, because it would not be easy to identify with any clarity what part of the environmental impact assessment had been breached at a future date, and the condition seems to us to be not easily enforceable.  There is certainly no data identified by which one can assess the main effects which the development is likely to have upon the environment, nor the effectiveness of the measures which are being proposed to deal with such an impact.  Advocate Staal emphasises furthermore that there is no detail provided, and certainly no independent verification, of the number of mixed load skips currently taken into the site for sorting each week. 

18.      It is relevant to note that the Transport and Technical Services Department commented on the initial application on 8^th July, 2010, to say:-

"It is not clear what the current level and nature of use is.  The road widths and junctions in the area are not suitable for skip lorries or large commercial vehicles.  The Department objects to this application."

19.      On 2^nd June, 2014, following the receipt of the purported environmental impact assessment, the Transport and Technical Services Department submitted the following response to the Planning and Building Services Department:-

"The Department previously objected to this application in 2010, on the basis that the road infrastructure surrounding the property is not suitable for use by commercial vehicles.

The Department maintains its objection."

20.      The Environmental Protection Department were consulted about the application in 2010, and objected on the grounds that there was no information about the infrastructure on site to mitigate the risk of pollution from the waste storage and treatment activities or about the scale of the development. 

21.      The redactions on the document provided to us make the dating unclear but Environmental Protection made a further submission to the Minister in 2014 as follows:-

"Having viewed the EIA dated 7/04/2014 and associated plans EP's stance is that it cannot support the proposal and objects to the development.  We have serious concerns about the ability of either the Planning or Waste Management Licensing Regime to be able to control the development and provide confidence on mitigating against the potential adverse current and future impacts on neighbouring residential properties. 

...

The EIA does not provide a sufficient level of detail to enable a satisfactory assessment of the proposal given for example, the other business uses of the site which have their own vehicle movements."

22.      We described at paragraph 4 above the third condition on the permit which was to require, within three months of the permission, the levels of potential contaminants in the yard to be investigated, and any risks to human health or the wider environment to be assessed.  It is clear that the Minister did not have the information which he needed in that respect at the time of making the decision to consider potential sources of contamination, or this condition would not have been necessary. 

23.      In summary therefore we have a position where on three occasions an Environmental Impact Assessment was required by officers of the Planning and Building Services Department.  The requirements of an environmental impact assessment are at least in part highly technical.  The applicant submitted what purported to be an environmental impact assessment which did not in fact contain technical information and was regarded, by Environmental Protection at least, as inadequate for the purpose.  Objections to the application were received from two statutory consultees.  The Minister himself recognised that he did not have the information upon which to give a permission.  Yet nonetheless, in spite of all these factors, a permission was given.  On these grounds alone, we think that the permission was given unreasonably. 

24.      Secondly, it is clear that some reliance was placed by the Minister on the fact that an existing use was permitted at the application site for storage, which can involve the movement of vehicles into and out of the site.  The Minister apparently considered that 20 mixed loads a week was a modest scale of development.  However, it seems to us that such a change emphasises how much an independent assessment was needed.  

25.      Advocate White submitted that the applicant had permission in effect to store skips on the site.  As skips and building materials could be stored, there was no difficultly in the sorting of mixed loads to the limited extent proposed. 

26.      We do not think that this is comparing like with like.  The delivery of mixed loads for sorting would involve an amount of noise which would not be matched by the use of the site merely for storage.  Furthermore we understand that in practice the sorting of the mixed loads cannot be achieved without having the doors to the premises open, which of course increases the risk of noise and dust pollution from the sorting exercise.  The building has not been purpose built or modified for the purposes of sorting waste.  In our view this emphasises the need for an independent environmental impact assessment but it also demonstrates that the Minister had insufficient information reasonably to reach the conclusion he did. 

27.      For these reasons, we have allowed the appeal on the basis that the Minister's decision was unreasonable and we direct that the Minister should re-consider the application.  If no environmental impact assessment, properly so called, is received by the Minister within a period of three months, we think that the enforcement proceedings should be resurrected. 

28.      There is one further matter which we raise because it formed part of the arguments Advocate Staal put before us.  The submission was that against the context of a long delay in dealing with what was itself a retrospective application made in 2010, the handling of the application between September and October 2014 was improper.  The Minister held a public meeting on 25^th September, 2014, at which he deferred his decision in order to obtain advice on the issuing of a time limited permit, and/or making the permit personal to the applicant, and to consider further the application with the Parish authorities.  In fact no further consultation with the Parish authorities took place, and it is not clear whether any other advice on a time limited permit, or a permit personal to the applicant was obtained, although it is clear that the permit itself contains no time limitation and is not personal to the applicant.  Nonetheless, the application was determined on 14^th October, 2014, the day before the election.  The fact that the Minister failed to secure re-election to the States of Jersey as one of two deputies in his constituency is mentioned by the appellant in argument, but it seems to us that that is of no consequence.  What was submitted by Advocate Staal was that it was neither understandable nor reasonable for the Minister to take the decision himself when he was inadequately informed to do it properly, and that he was wrong to do so immediately before the elections. 

29.      This raises the issue as to whether the taking of a Ministerial decision of this kind immediately prior to the elections is a matter upon which a legitimate objection can be taken.  

30.      In our judgment the fact that a ministerial decision has been taken immediately prior to the elections is not a matter which of itself gives rise to a ground of criticism of the decision in law.  The Minister was properly elected as a member of the States, and the States had properly appointed him as Minister, entrusting him to take decisions under the Planning and Building (Jersey) Law 2002.  As a matter of law, that remained the position until his term of office came to an end.  It is impossible to say that merely because the decision was taken the day before the elections, it was taken in a way which was procedurally out of order. 

31.      Of course this is not to say that occasionally it might be the case that one could point to the fact that the decision was taken in a hurry, or the day before the election, as the explanation for a bad decision.  The important point here however is that the decision would be impugned on the grounds which properly give rise to it being set aside in any event, and the fact that it was taken the day before the election would be an explanation for a bad decision rather than the cause of the decision being set aside. 

32.      We note that in R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, the English Court of Appeal reached a similar conclusion in relation to the determination by councillor of a local authority where that decision had been taken shortly before the election.  The application for judicial review on the grounds that there had been an appearance of bias or predetermination on the part of the members of the committee who belonged to the majority group of counsellors succeeded at first instance but on appeal was quashed.  The Court of Appeal noted that the councillors were democratically accountable decision takers who had been elected to provide and pursue policies and were entitled to be predisposed to determine the application in accordance with their political views and policies provided that they had regard to all material considerations and gave fair consideration to all relevant points raised with them. 

33.      For these reasons we do not think there is anything in the objection that the decision was taken on the day before the election. 

34.      Nonetheless we can see that there may be good political grounds for a policy whereby Ministers do not take action in the purdah period.  The argument in favour of taking such a stance would be predominately that a Minister might put himself in a particularly favourable position in relation to the forthcoming election if he decided an application one way or another - and therefore that it might appear, rightly or wrongly, as though the exercise of power legitimated a vote in his favour at the ballot box.  The other side of that argument is that all the Minister's decisions in the period of administration up to the beginning of the purdah period could equally stand for or against him when it came to the election.  Those in favour of the purdah period would no doubt respond that it was the immediacy of the decision taking prior to the election which was the vice. 

35.      At all events, these are not matters for us but it may be that Ministers and/or the Privileges and Procedures Committee may want to consider developing their own rules on the basis that the decisions taken might be perfectly good but might be perceived to be taken for electoral and not genuine administrative reasons.  We mention it merely because it was argued before us. 

Authorities

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

Planning and Building (Environmental Impact) (Jersey) Order 2006.

Planning and Building (Jersey) Law 2002.

R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746.