Jersey Unreported Judgments

Planning - application by the applicant to strike out appeal of the appellant.

[2015]JRC107

Royal Court

(Samedi)

15 May 2015

Before     :		Advocate Matthew John Thompson, Master of the Royal Court.
Between	Valerie Rose Whitworth		Appellant
And	The Minister for Planning and Environment		Respondent
And	David Ronald Manning		Applicant

Advocate A. J. Clarke for the Appellant.

Advocate D. J. Mills for the Respondent.

Mr P. W. Syvret for the Applicant.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1-3
2.	Chronology	4-11
3.	Ground One	12-13
4.	Ground Two	14-22
5.	Decision	23-36

judgment

the master:

Introduction

1.        This judgment arises out of an application by the applicant ("Mr Manning") to strike out the appeal of the appellant  ("Mrs Whitworth") on two grounds contained in the summons:-

(i)        that Mrs Whitworth failed to apply to the Bailiff's Judicial Secretary for a date to be fixed for the hearing of her planning appeal within 5 days after service of her Notice of Appeal as required by Rule 15/2(3)(b) of the Royal Court Rules 2004, as amended, ("the Rules"); and

(ii)       that Mrs Whitworth failed to cause a copy of the Notice of Appeal to be served upon Mr Manning when this appeal was served on the respondent as required by Rule 15/3D of the Rules. 

2.        In addition, in Mr Manning's outline submissions he referred to an additional ground namely that Mrs Whitworth had failed to file with the Judicial Greffe the record of service of the Notice of Appeal within 2 days as required by Rule 15/2(3) of the Rules. 

3.        The Minister although represented by Advocate Mills at the hearing took a neutral position.  Advocate Mills was therefore released shortly after the hearing commenced.  

Chronology

4.        Mrs Whitworth served her Notice of Appeal on the Minister on 13^th February, 2015.  A copy was produced to the Judicial Greffe on 12^th February, 2015. 

5.        The date fix appointment before the Bailiff's Judicial Secretary took place on 19^th February, 2015.  A date for the hearing of Mrs Whitworth's appeal was fixed for Monday 8^th June, 2015, at 10am.  Mr Manning was not aware of this date fix. 

6.        On 27^th March, 2015, Advocate Mills for the Minister served a copy of the Minister's affidavit required to be produced by Rule 15/3(1) of the Rules set out below.  I observe that this affidavit was filed outside the 28 day period referred to in Rule 15/3(1) of the Rules.  At the time Advocate Mills served his affidavit on Mrs Whitworth, he also served a copy of the affidavit on Mr Manning. 

7.        By an act of court dated 30^th March, 2015, issued by me, paragraph 4 provided:-

"The Applicant has not been joined to this appeal and has not therefore indicated whether he wishes to be heard on this appeal. The Appellant is therefore directed within 7 days to serve a copy of the Notice of Appeal and this Act on the Applicant to enable him to consider whether he wishes to be joined as a party to this appeal."

8.        In compliance with the act of 30^th March, 2015, Mr Manning was served with a copy of the Notice of Appeal and a copy of the said act. 

9.        On 31^st March, 2015, Mr Syvret wrote to the Court advising that Mr Manning wished to be heard on the appeal, without prejudice to argument in respect to the failure to serve the Notice of Appeal.  By reference to Rule 15/3D(5) & (6) (see below) any applicant served with a Notice of Appeal has a right to be heard and to inform the Greffier within 14 days that he wished to be heard, the applicant is then joined as a party to the appeal. 

10.      On 10^th April, 2015, Mr Manning served on Mrs Whitworth and the Minister an affidavit supporting the position of the respondent without prejudice to the present application.  Mr Manning's affidavit was filed pursuant to the permission to file an affidavit granted to an applicant by Rule 15/3D(5)(b). 

11.      The provisions of the Planning and Building (Jersey) Law 2002 ("the Law") and the Rules relevant to the arguments are as follows:-

"115    Appeal against condition subject to which planning permission, etc. granted

(1)       This Article applies to a person aggrieved by -

(a)       a condition subject to which planning permission was granted;

(b)       a condition subject to which building permission was granted;

(c)       a condition subject to which permission to undertake on a site of special interest an activity referred to in Article 55(1) was granted; or

(d)       a condition subject to which permission to import or use a caravan was granted.

(2)       In paragraph (1) a reference to a person aggrieved by a condition subject to which any permission was granted includes a person being aggrieved by a requirement or term of any such condition.

(3)       A person to whom this Article applies may within 28 days of being notified of the imposition of the condition appeal to the Royal Court.

(4)       On the appeal the Royal Court may -

(a)       confirm the imposition of the condition; or

(b)       order the Minister to remove the condition from the Minister's permission or to vary the requirement or term of the condition in such manner as the Royal Court considers appropriate.]

(5)       The Minister shall comply with an order made under paragraph (4)(b)."

"Rule 1/3 Reckoning periods of time

(5)       If, apart from this paragraph, the period in question, being a period of 7 days or less includes a Saturday, Sunday, public holiday or bank holiday, Christmas Day or Good Friday, that day is excluded.

(6)       In paragraph (5) "public holiday" and "bank holiday" mean, respectively, a day appointed to be observed as a public holiday or as a bank holiday under the Public Holidays and Bank Holidays (Jersey) Law 1951."

"1/5    Power to extend and abridge time

(1)       The Court or the Viscount may, on such terms as either thinks just, by order extend or abridge the period within which a person is required or authorized by rules of court or by any judgment, order or direction to do any act in any proceedings."

(2)       The Court or the Viscount may extend any period referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

(3)       The period within which a person is required by rules of court or by any order or direction to serve, file or amend any pleading or other document may be extended by consent in writing without an order being made for that purpose.

 "10/6  Non-compliance with Rules of Court or rule of practice

Subject to Rule 10/7, non-compliance with Rules of Court, or with any rule of practice for the time being in force, shall not render any proceeding void unless the Court so directs, but the proceeding may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and on such terms as the Court thinks fit."

The definition of the Minister in Rule 15/1 is as follows:-

"the respondent" means the person, or body, whose decision is appealed from."

 "15/2  Notice of Appeal and fixing day for trial

(1)       An appeal to the Court shall be brought by serving, through the intermediary of the Viscount, on the respondent a notice of appeal -

(b)       in the case of a planning appeal, in the form set out in Schedule 4A; or

and every such notice must specify the grounds of the appeal with sufficient particularity to make clear the nature of the appellant's case."

 "15/3D Planning appeals by third parties

(1)       This Rule applies to an appeal under Article 114 of the Planning and Building (Jersey) Law 2002.

(2)       In this Rule "respondent's affidavit" means the affidavit filed by the respondent in accordance with Rule 15/3(1).

(3)       The appellant shall, when the notice of appeal is served on the respondent in accordance with Rule 15/2(1), cause a copy of it to be served, through the intermediary of the Viscount, on the person to whom planning permission was granted (hereinafter referred to as "the applicant").

(4)       The respondent shall, when the respondent's affidavit is served on the appellant, cause a copy of it to be served on the applicant.

(5)       Within 14 days of receiving the copy of the respondent's affidavit, the applicant -

(a)       must inform the Greffier in writing whether or not the applicant wishes to be heard at the appeal; and

(b)       may lodge with the Greffier and cause to be served on the appellant and on the respondent an affidavit setting out anything relevant to the determination of the appeal not contained in the respondent's affidavit.

(6)       An applicant who informs the Greffier that he or she wishes to be heard at the appeal shall thereupon be joined as a party to the appeal and the Greffier shall inform the appellant and the respondent that the applicant has been so joined."

 "15/5  Dismissal of appeal for non-prosecution

(1)       Without prejudice to Rule 15/2(4), if the appellant or the respondent fails to comply with any requirement of this Part or with an order of the Court made in connexion with the appeal, the Court may, on the application of either party to the appeal, make such order as it thinks fit, including an order as to costs and, in the case of an application by the respondent, an order that the appeal be dismissed.

(2)       If, after 6 months have elapsed from the day the appeal was brought, the appeal has not been heard, the Court may, of its own motion, after giving not less than 28 days' notice in writing to the appellant and to the respondent, order that the appeal be dismissed, and the Court may make such consequential order as to costs or otherwise as it thinks fit."

Ground One

12.      In relation to dealing with the first ground advanced by Mr Manning this can be dealt with shortly.  While it is correct that a date should be fixed for the hearing of any administrative appeal within 5 days of service of the Notice of Appeal, the 5 day period does not include weekends or Bank Holidays, by reference to Rule 1/3(5).  As the Notice of Appeal was served on the Minister on Friday 13^th February, 2015, the date fix appointment before the Bailiff's Judicial Secretary, which took place on Thursday 19^th February, 2015, therefore took place within 5 days, discounting Saturday and Sunday.  When Rule 1/3(5) was drawn to Mr Syvret's attention, he immediately withdrew this ground and did not advance any argument in relation to it. 

13.      Mr Syvret also withdraw his objection to the Notice of Appeal not having been filed with the Judicial Greffier within 2 days, found at paragraph 7 of Mr Manning's outline submissions, because the basis of this objection also failed to take into account the effect of Rule 1/3(5) of the Rules. 

Ground Two

14.      Mr Manning's main application through Mr Syvret was in respect of the fact that Mr Manning had not been served at the same time as the Minister was served with the Notice of Appeal and indeed he did not become aware of the appeal until he was provided with a copy of the Minister's affidavit by Advocate Mills on 27^th March, 2015, some six weeks after the Notice of Appeal had been served on the Minister.  Mr Syvret's contention was that, as Mr Manning had not been served when the Minister was served, no appeal had been instituted because an integral part of the appeal, namely service on the applicant had not taken place.  It was therefore contended that the appeal was automatically withdrawn without further action of the Court being required.  In support of this argument, he relied on Croxford v Le Claire [1994] JLR 304.  Croxford considered the effect of Rule 6/25(1) which provides that "when proceedings have been adjourned sine die, if at the expiration of 5 years from the date on which it was first so adjourned no further steps have been taken, the proceedings shall be deemed to have been withdrawn."  It was therefore contended that a failure to serve Mr Manning meant that no proceedings had been instituted and effectively a deemed withdrawal had taken place. 

15.      Alternatively, it was contended that, if the proceedings were not automatically struck out, then it was accepted that the court had a discretion but that discretion should not be exercised to allow the proceedings to continue.  This was for the following reasons:-

(i)        Time periods are necessary and are made for commercial reasons and for reasons of fairness between the parties. 

(ii)       A party should be able to rely on time limits so he/she knows where he/she stands in relation to the validity of a planning permit given to him/her so he/she can act with certainty after the appeal. 

(iii)      If there was uncertainty in respect of time limits for planning appeals, this could result in economic commitments by applicants being incurred and an appeal then being notified.  An applicant should be able to rely on the applicable time limits for appealing and in the absence of most compelling reasons; those time limits should not be set aside. 

(iv)      The 28 day period during which the applicant was notice the planning permit had not been deemed to be valid had expired. 

(v)       The appellant is an experienced litigant; the appellant had professional advice and must have known about the Rules. 

(vi)      The lateness has caused the applicant to catch up quickly with the proceedings and there might be a need for an adjournment. 

(vii)     The appeal was not strong. 

(viii)    There was also a history of disputes between Mrs Whitworth and Mr Manning and the Court should be careful not to ensure that previous procedures will not being used as a tool in a private dispute. 

16.      Mrs Whitworth through Advocate Clarke argued that the appeal was served within time by service on the Minister, and it was not necessary for a valid appeal to take place for the applicant to be served.  Rule 15/2(1) as a matter of construction did not require service on an applicant for a valid appeal to have been instituted.  Rather service on an applicant was a notification requirement to enable an applicant to decide whether or not it wished to take part in an appeal. 

17.      He further contended it was implicit in the Royal Court's decision of Minister for Planning and Environment v Herold [2014] JRC 020 at paragraph 43, that it was service on the Minister that was required to institute an appeal.  

18.      While Advocate Clarke accepted the Rules of Court should ordinarily be adhered to, he contended the issue was one of discretion.  In this case there was no actual prejudice that could be established by Mr Manning who had managed to file an affidavit in response.  There was also no economic loss Mr Manning had suffered.  The appeal should therefore be allowed to proceed.  Any difficulties with the final date for the hearing could be dealt with by way of adjournment. 

19.      During the submission he explained, as an Officer of the Court, that the error was not that of Mrs Whitworth but of his office for which he apologised to the Court. 

20.      He also relied on my decision in the Parish of St Ouen v Minister for Planning and Environment [2014] JRC 043 at paragraphs 87 to 91 where I dealt with the effect of a failure to serve an applicant.  At paragraph 90 I held that I had discretion to extend time by virtue of Rule 1/5 if service was not effected in accordance with Rule 15/3D(3).  He further contended that Mr Manning had now been served by virtue of the act of court of 30^th March, 2015.  He did not therefore need to serve Mr Manning again because he had now been validly served.  Rather the issue was whether the Court should set aside the order of 30^th March, 2015, now that it was being challenged after full argument. 

21.      He further argued by reference to UCC v Bender [2006] JLR 1 that if the Court could find a discretion to address non-compliance with the Rules in relation to service on a defendant, the Court must have a discretion for failing to serve an applicant. 

22.      In relation to the merits of the appeal, the appeal was arguable and it would be inappropriate on an exercise of discretion to take into account the merits of an appeal, unless it was clear that an appeal, or a position to it was hopeless, which was not the case. 

Decision

23.      The first part of Mr Syvret's submissions requires me to construe Rule 15/2(1) and 15/3D. 

24.      Rule 15/2(1) provides that an appeal is brought by service on the respondent which is defined in Rule 15/1 as the party or person whose decision is appealed from i.e. the Minister for Planning and Environment for planning appeals.  Rule 15/3D(3) requires a copy of the Notice of Appeal to be served on the applicant through the Viscount when the Notice of Appeal is served on the respondent in accordance with Rule 15/2(1). 

25.      I do not consider as a matter of construction that Rule 15/2(1) can be read to include the requirement to serve a copy of a Notice of Appeal on the applicant as well as on the Minister for an appeal to be validly constituted.  The wording of Rule 15/2(1) is clear in that the appeal is brought by service on the respondent i.e. the Minister.  That is not surprising because it is the Minister's decision that is being challenged. 

26.      The requirement in Rule 15/3D(3) is to serve the applicant with a copy of the Notice of Appeal not the Notice of Appeal itself.  Rule 15/3D(3) does not say that an appeal is only constituted when a copy is served on the applicant. 

27.      In my judgment it is therefore implicit in Rule 15/3D that the appeal is constituted by service on the respondent not by service on the respondent and the applicant. 

28.      This is also consistent with the provisions found Rules 15/3D (4) to (6).  These provisions are to enable an applicant to decide whether or not to take part in an appeal.  An applicant does not have to elect to do so until receipt of the respondent's affidavit (which should normally occur within 28 days).  Even then the applicant does not have to take part in the appeal, but must elect to do so.  Only at that stage does the applicant become a party to the appeal, if such an election is made.  If an applicant only becomes a party to the appeal by making an election, it would be inconsistent to construe Rule 15/2(1) as requiring service on the applicant at the time the Notice of Appeal is served on the respondent.  There would be no need to make the applicant a party to the appeal if an appeal could only be brought by service on the applicant. 

29.      The view I have reached is also consistent with the view that was implicit in my decision in the Parish of St Ouen the Minister for planning albeit I was not addressed in that case to the same level of detail as I have been addressed in relation to the present application.  This decision might also be said to be different because on its facts the applicant's representative in Parish of St. Ouen was sent a copy of the Notice of Appeal at the time it was filed, even though the applicant was not served through the Viscount's Department.  Nevertheless, I am not persuaded that I reached an incorrect view in the Parish of St Ouen decision or that I should reach a different conclusion now having had the benefit of full argument.  Likewise it appears that Birt, Bailiff in Minister for Planning and Environment v Herold was also of the view that service of the Notice of Appeal was constituted by service on the Minister albeit again the point was not argued before him.  

30.      The purpose of Rule 15/3D(3) therefore is to allow an applicant such as Mr Manning to decide whether not the applicant should take part in the appeal or not.  Some applicants do but many do not and simply rely on the contentions put forward by the Minister. 

31.      In this case, I also I accept that an order requiring service has now been made which has been complied with.  While that order can be revisited, the making of it does not mean that a valid appeal has not been filed.  Rather the real issue before me is that the order requiring service on the applicant, made on 30^th March, 2015, was an exercise of discretion which is now challenged.  Given that the order of 30^th March, 2015, was made without reference to submissions from either party, I accept that Mr Manning is entitled to ask the court to revisit that decision at a fully argued hearing and to consider the exercise of discretion afresh.  However, it is an exercise of discretion.  In relation to the exercise of that discretion, I consider I possess such a discretion both by reference to Rule 1/5 which allows me to extend time limits for breaches of the Rules, Rule10/6 and Rule 15/5 which allows me to dismiss appeals for any failure to comply with any requirement of Part 15 of the Rules.  This includes a failure to serve an applicant. 

32.      As a starting point for the exercise of my discretion, it is clear that rules of court, as Mr Syvret contends, are there for a purpose and should ordinarily be adhered to.  If a rule of court is deliberately ignored then a case may be struck out.  Certainly if steps were taken deliberately to prevent a party from taking part in a Court process that might be a basis to strike out an appeal, under Rule 15/5 to refuse to exercise a discretion in a defaulting party's favour. 

33.      However, that is very far from the position here.  Advocate Clarke candidly accepted that the mistake was not that of Mrs Whitworth but that of his office.  It was an accident and an oversight.  Furthermore, no prejudice can be shown by Mr Manning because he has not taken any steps in respect of his property in reliance on the permit and in ignorance of the Notice of Appeal.  He has also been able to file an affidavit supporting the Minister's position.  Although Mr Syvret indicated that this was somewhat rushed, Mr Manning still has sufficient time to prepare for the appeal and any submissions he wishes to make in respect of the Minister's affidavit, any affidavit of the Mr Manning in reply or in respect of any skeleton arguments filed by any other party.  In that regard I have taken into account the fact that Mr Manning is not entirely an innocent abroad in respect of planning appeals given other reported decisions where he has been a party. 

34.      To the extent that the precise timing of the planning appeal causes difficulty because appropriate representation cannot be found, then it is open to Mr Manning to apply for an adjournment and to ask for the appeal to be determined outside the four month period within which planning appeals should be determined.  While such an application is a matter is for the Bailiff, if difficulties of representation can be established and if no material prejudice is suffered by a short delay, this is the sort of application where an adjournment may be granted. 

35.      In relation to the merits of the appeal, I agree with Advocate Clarke it is not appropriate for me to take the merits in to account in relation to the exercise of my discretion unless I am satisfied that an appeal was hopeless or bound to fail.  Although Mr Syvret referred me to criticisms of the planning process based on submissions made on Mrs Whitworth's behalf in the decision reported at Manning v Minister for the Planning and Environment [2015] JRC 013, I do not consider it appropriate to exercise a discretion based on the merits where I have not seen Mrs Whitworth's affidavit in reply and have not had the benefit of skeleton arguments. 

36.      In conclusion therefore, I am satisfied that a valid Notice of Appeal was served, that the failure to serve Mr Manning has now been corrected by the act of court of 30^th March, 2015, and for the reasons set out in this judgment I am not prepared as an exercise of discretion to set aside that order or to dismiss the appeal.  The appeal will therefore proceed on 8^th June, 2015, absent any application for an adjournment to the Bailiff.  

Costs

37.      In relation to costs, it was contended that Mrs Whitworth should recover her costs on the standard basis because she had been successful in resisting Mr Manning's application.  Mr Manning contended that I either I should make no orders to costs, or I should order costs in the cause thus leaving the matter for the trial judge to determine.  Both parties accepted ultimately that costs were a matter of discretion.  Given that I had heard detailed submissions, I did not feel it appropriate to leave costs to the trial judge to determine.  I also did not consider it appropriate to make an order of costs in the cause because generally in cases where the modified procedure applies, as in this case, it is unlikely that there will be a costs order.  A costs order is only made if extraordinary circumstances can be shown and is a matter for the trial judge.  However, such costs orders are rare which means that I have reached the view that an order of costs in the cause is not appropriate because there may never be a final costs order in one party's favour. 

38.      I have also taken into account the fact that Mrs Whitworth, through no fault of her own failed to comply with the procedure for service of the copy of notices of appeal.  Against that two grounds advanced by Mr Manning both were bound to fail because they did not have regard to Rule 1/3 of the Rules for the reasons I have given. 

39.      In my judgment and in exercising the discretion vested in me, I think the fair order is for Mrs Whitworth to recover fifty per cent of her costs on the standard basis, to take into account the fact that part of the arguments against her were bound to fail, but also to take into account the fact that she did not abide by the rules for service on Mr Manning. 

Authorities

Royal Court Rules 2004.

Planning and Building (Jersey) Law 2002.

Croxford v Le Claire [1994] JLR 304.

Minister for Planning and Environment v Herold [2014] JRC 020.

Parish of St Ouen v Minister for Planning and Environment [2014] JRC 043.

UCC v Bender [2006] JLR 1

Manning v Minister for the Planning and Environment [2015] JRC 013.