Jersey Unreported Judgments

Planning - appeal against decision of the Minister dated 13 October 2014.

[2015]JRC122

Royal Court

(Samedi)

3 June 2015

Before     :		W. J. Bailhache, Esq., Bailiff, and Jurats Fisher and Grime
Between	John Henry Marshman		Appellant
And	Minister for Planning and Environment		Respondent

Advocate N. S. Benest for the Appellant.

Advocate D. J. Mills for the Respondent.

judgment

the bailiff:

Introduction

1.        The appellant is the owner of Field 873, La Rue de Haut, St Lawrence ("the site"), having inherited that field as sole heir of his late father who died on 27^th September, 2008.  The site lies to the south of La Rue de Haut.  Historically it was an agricultural field but it has lain fallow for many years.  It is one of the sites designated as an H2 site in the Island Plan of 2002, and thus was identified as a site for development of category A housing.  In the 2002 Jersey Island Plan, the policy statement was as follows:-

"Developers of sites designated in the plan for the construction of category A housing in Policy H2 will be required by the Planning and Environment Committee to provide first time buyer homes and social rental homes in the respective proportions of 55% and 45% of a total number of dwellings provided on each site, in order to ensure that identified needs for housing are met."

2.        In July 2008, this section of the 2002 Island Plan was amended by the States of Jersey so that Policy H1 read as follows:-

"Developers of sites designated in the plan specifically for the construction of category A housing in policy H2 will be required by the Minister for Planning and Environment to provide first-time buyer homes or life-long homes (for people over 55) to buy, and social rental homes and/or Jersey homebuyer housing in such proportions as the Minister shall determine having regard to the most recent available evidence on housing need in the respective proportions of 55% and 45% of the total number of dwellings provided on each site, or where the social rental proportion is greater than 45% in order to ensure that the identified needs for housing are met."

3.        Within the preamble to policy H2 in the 2002 Island Plan, Field 873 was described at paragraph 8.85 as follows:-

"Field 873 is a 0.9 acre (2 vergees) overgrown field of poor agriculture value.  It could provide approximately 14 homes.  It is bounded by housing development on two sides and an estate access road to the west.  There are a number of community facilities within walking distance of the site, including Bel Royal School.  Access to the site could be achieved from La Rue de Haut on the northern side of the site.  The road is narrow and partly one way, but this is not expected to cause problems given the low number of dwellings that the site would yield and that this is the only site proposed for development within the vicinity."

4.        Field 873 was zoned within policy H2 in the 2002 Island Plan.  In accordance with that policy, a draft development brief was issued for the site in March 2003.  However, negotiations with a potential purchaser and developer were not concluded during the lifetime of the 2002 Island Plan and thus a final version of the draft development brief was not advanced between any prospective developer and the Minister. 

5.        When the 2011 Island Plan was adopted, the site was maintained as one zoned for the purposes of category A housing. 

6.        The appellant submitted a development application in December 2012 but subsequently withdrew it following discussions with the Planning Department.  A further application was submitted on 12^th July, 2013, but was refused by the Planning Applications Panel in September 2013 notwithstanding an officer recommendation that approval be given.  The reason given was that the design, format and layout proposed resulted in a cramped, over-development of the site. 

7.        On 1^st May, 2014, following further discussions with the officers in the Planning and Environment Department, a further application was submitted.  This was for a development of five first-time buyer homes and five homes for social rental tenants.  The application was accompanied by a three dimensional computer model of the proposed scheme.  The application took account of the Panel conclusion that the development of 12 units on the site (refused in September 2013) was an over development, and the number of units proposed was therefore reduced to 10. 

8.        The application was considered by the Planning Applications Panel on 24^th July, 2014, and the Panel was evenly split, three members in favour of approval and three against.  It was referred to the Minister, who refused the application on 13^th October, 2014.  The appellant appeals against that decision, pursuant to the right of appeal conferred by Article 113 of the Planning and Building (Jersey) Law 2002 as amended (the "Law").  We have applied the established case law in this Court and in the Court of Appeal to our assessment of the appeal. 

9.        The appeal is heard under the legislation in force at the time it was entered by virtue of the transitional provisions contained in Article 9 of the Planning and Building (Amendment no 6) (Jersey) Law 2014. 

The Ministerial Decision

10.      The refusal notice is dated 13^th October, 2014.  The reasons given for the refusal are as follows:-

"1.      It is acknowledged that the site is located within the built up area wherein the development of new houses will normally be permitted.  It is further acknowledged that the site is zoned as a category A housing site, within the 2011 Island Plan.  However, in this instance, by virtue of its overall design, format and lay-out (including the provision for access), the application would result in a development which makes inefficient use of the site, and which fails to ensure that the site is developed to its highest reasonable density, as required under the Island Plan.  Moreover it is considered that the proposed development does not respond well to the typography and context of the site, and that it would have a negative impact upon the built and natural character of the surrounding area.  For these reasons, the application fails to satisfy the requirements of policies GD1, GD3, GD7, SV7 and H6 of the 2011 Jersey Island Plan."

The Appellant's Case

11.      The appellant contends that the decision of the Minister was unreasonable on broadly six different grounds:-

(i)        Insufficient weight was given to the fact that the site lies in the built-up area. 

(ii)       A decision that a development of 10 housing units was an underdevelopment was inconsistent with the earlier decision that a development of 12 units would be an overdevelopment. 

(iii)      Policy GD3 in relation to site density was not appropriately applied. 

(iv)      The respondent failed to give sufficient weight to the specific zoning of the site for category A housing. 

(v)       The respondent failed to take into account the guidance in respect of yield of units to be achieved on site from the draft development brief which the Planning Department had issued in 2003. 

(vi)      The respondent failed to take into account guidance in respect of the yield of units to be achieved for the site in the residential land availability report. 

The Minister's Case

12.      In essence the Minister's case was this:-

(i)        Although the development did meet policy H6 to the extent that the appeal site is within the built-up area, it nonetheless failed to satisfy the requirements of that policy concerning form and layout.  That was a matter for judgment on the part of the Minister who visited the site twice and had the benefit of the scheme drawings and the scaffold profile to assist him. 

(ii)       As to inconsistency, the Minister was not bound by a previous decision in relation to the same property, but in any event the decision was not inconsistent.  On the merits of the 2013 proposal, the decision was taken that it was an overdevelopment.  On the merits of the 2014 application, the decision was taken that it made an inefficient use of the site and would have a negative impact on the built and natural character of the surrounding area. 

(iii)      Where a decision is finally balanced, the ultimate decision of the Minister is unlikely to be unreasonable unless it was illegal or improper - and as the Planning Applications Panel was split 3-3, it is clear that this particular application was finely balanced. 

(iv)      The Minister was not obliged to take the development brief as binding upon him because it had only reached the draft stage in 2003 and had never been adopted, and because it had not been through the process envisaged by Article 6 of the Planning and Building (Jersey) Law 2002 ("the 2002 Law") which contains a power for the respondent to publish guidelines and policies in respect of development generally, any class of development, the development of any area of land or the development of a specified site.  In any event, it is said to be clear that the Minister did take appropriate account of the development brief. 

(v)       The Minister did have regard to the residential land availability reports, although these are not documents which fall to be treated as guidance or planning policy.  In any event, the Minister was entitled to seek the optimum number of category A units for the site.  The design led approach for the decision under appeal had lead the Minister to conclude that the optimum number of category A units had not been achieved and in the circumstances it was not unreasonable to refuse permission. 

13.      In his oral submissions Advocate Mills contended that density was not a matter of number crunching; and it was not inconsistent to say that 12 was unacceptable as an overdevelopment and 10 was insufficient as an inefficient development of the site. 

14.      Advocate Mills also submitted that if the Court were minded to set aside the Minister's decision, it would not be appropriate to remit the matter to the Minister for further consideration.  All the necessary conditions which might be applied to a permission are set out in the report of the officers, and, if the Court were so minded, it could direct the Minister to grant a permission on that basis, subject to the completion of a planning obligation agreement. 

Discussion

15.      The first thing to note is that the decision of the Minister on 13^th October, 2014, contained an obvious mistake on the face of the record.  It concluded with the statement that the application failed to satisfy the requirements of policy H6 of the 2011 Jersey Island Plan.  This was a reference to the wrong policy.  Policy H6 is in these terms:-

"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. 

Such guidance is applicable to all dwellings, extensions or alterations to existing dwellings or changes of use to residential. 

Such supplementary planning guidance will also include consideration as to whether there should be any further increase in internal space standards and any further improvements and standards for internal noise and sound insulation of and between units of accommodation."

16.      The site is in the built-up area, but it is clear that policy H2 is the lead policy.  Policy H2 is in these terms:-

"Other category A affordable housing sites

The following previously rezoned site, listed below and shown on the Island Proposals Map, is zoned for the purpose of delivering 80% category A social rent affordable housing and 20% category A affordable housing for purchase.  Planning permission for other forms of development will not be approved. 

Where necessary the site will be acquired by the States on behalf of the public, if needs be by compulsory purchase, in order to ensure that it is brought forward for the development of affordable homes. 

Paragraph 1 Field 873, Bel Royal St Lawrence (0.9 acres/2.0 vergees);

The development of category A social rent affordable housing and category A affordable housing for purchase on this site will be regulated through the award of planning permission and planning obligation agreements. 

The potential number and type of homes that could be provided on this site will be considered in a development brief to be issued, as supplementary planning guidance, by the Minister for Planning and Environment.

Access to all category A affordable homes shall be controlled and managed through the States of Jersey affordable housing gateway and all social rent affordable houses are to be managed by a States of Jersey approved affordable housing provider."

17.      Advocate Mills accepted that policy H2 was the lead policy, and in his submission policy H6 was concerned with category B housing because policies H2 to H5 deal with need housing.  Because policy H6 can be seen as demand housing, it is clear that it was not related to category A housing. 

18.      We accept this submission.  It appears therefore that, on the face of the record, the Minister took the wrong housing policy into account. 

19.      It does not follow automatically that because the published reasons for the decision are based on a wrong premise that the decision must be struck down - but it does follow, where the error is so fundamental, that the decision is unreasonable for the purposes of the Law.  The Court is afforded a discretion under Article 113(3) of the Law to strike down a decision where it is found to be unreasonable and the focus thus turns to whether, exercising that discretion, the Court considers the decision should stand, or that a different decision should be made, or that the matter should be remitted to the Minister for reconsideration. 

20.      Before we come to exercise that discretion, we note that there are however other reasons why in our view the decision of the Minister now appealed was unreasonable.  As has been indicated, the site has been designated for development under Policy H2.  This is a policy that deals with need housing.  In our judgment, it is unreasonable to withhold permission for developments of both ten and twelve houses.  The Minister is not the owner of the site.  An owner is entitled to some latitude as to how he develops his land, to maximise his profits if he so chooses, or to maximise the enjoyment of the development by those buying from him, if he so chooses, in each case subject always to the overall policy laid down in the Island Plan.  If the Minister wanted to be so prescriptive as to indicate that only eleven houses was acceptable, it seems to us that he would be assuming all the rights of the owner to determine the development of land without having the risk which an owner or developer assumes when embarking on any particular development.  Of course there will be circumstances where the Minister is entitled, applying the policies set out in the Island Plan, to lay down fairly strict conditions as to what developments will or will not be allowed; and of course the Minister is entitled, again within the same parameters, to require particular prescriptive obligations to be met in a Planning obligation agreement.  Nonetheless, in the context of a site which has been designated by the States for development for housing which is needed, a refusal to allow twelve houses on the grounds that this is too many and ten on the grounds that this is not enough is in our judgment plainly unreasonable.  It allows insufficient recognition to the interests of developers who, faced with an Island Plan designating this particular site for need housing, find over a long period of time that it is apparently impossible to come up with a proposal which the Minister finds satisfactory.  The fact that the Planning Officers advising the Minister consider that both the applications for a twelve house and a ten house development were acceptable emphasises this point. 

21.      The conclusion just reached is given additional support by the draft development brief which the Planning Department had issued as long ago as 2003, which gave guidance in respect of the yield of units to be achieved on this particular site.  It is true that it was only a draft, and it does not specifically come up with a number of units which would be approved for the development of the site.  Nonetheless, there is an indication that:-

(i)        The space provision for each dwelling must comply with minimum space standards;

(ii)       The height of the dwelling should not exceed two storeys;

(iii)      The design of the development should seek to engender a sense of place and visual cohesion and the use of materials should reflect the position of the development on the edge of the urban area and in close proximity to the countryside; and

(iv)      Residents and visitor car parking to be provided in accordance with the minimum space standards. 

22.      The development brief did not provide for any specific yield in relation to density of development.  The guidance given was that one started from a common average density of 70 habitable rooms per acre, but the Environment and Public Services Committee of the day believed that an appropriate density should properly emerge from a design led process that satisfactorily addressed the issues set out in the development briefs. 

23.      No one contended before us that the development proposed in this case was inconsistent with the draft development brief.  All that was said by the Minister was that the draft was never adopted and that he did take appropriate account of it. 

24.      Furthermore when challenged with the residential land availability reports and the yield of units to be achieved for this particular site, the Minister contended that he did have regard to those reports although they were not officially to be treated as guidance or planning policy.  It has to be said that these reports gave different indicative yields at different times.  The report at 27^th July, 2012, reached the conclusion that the 2010 advice that a scheme of twelve dwellings should be revised down to ten dwellings; but by 9^th September, 2013, it was noted that there was an indicative yield on the site of 14 homes, notwithstanding that an application for twelve homes had been submitted and was at that time pending.  When one considers the Housing objectives set out in Policy H1, the first of which is to ensure the provision of land and development opportunities to meet the Island's housing needs over the Plan period, the failure to get to a point where a planning permission might be granted in respect of the site over a three year period is to be regretted, noting that in the case of both the rejection in October 2013 and that in October 2014, there had been extensive pre-application discussions between the developer and officers in the Planning Department. 

25.      Finally, we have noted that the report of officers to the Minister for his consideration in connection with this application contained the following summary:-

"Field 873 is an agricultural field, located on La Rue de Haut in St Lawrence, which has been re-zoned for Category A housing. It is bounded by housing development on two sides and a private estate access road to the west.  There are agricultural fields to the east and west.

The proposal is for the development of 5 no. first time buyer homes and 5 no. homes for social-rented tenants, as well as a new vehicular access onto La Rue de Haut. There is a high demand for these properties.

The application follows the rejection of an earlier application (P/2013/0973) for twelve new dwellings in October 2013, and before that, extensive pre-application discussions. The Panel will note that a number of objections have been raised by nearby residents, including the submission of a petition against the development.

However, having regard to all relevant planning issues, the Department believes that the level of development proposed is not unreasonable in view of the zoning of the site and the need to ensure that the Built Up Area (and especially Category A sites) is developed efficiently and to its "highest reasonable density".

The level of parking provided now meets, and even exceeds, the Minister's adopted parking guidance. Also, there is no objection from the highway authority, TTS Highways, to the new access ramp into the site; there is no practicable alternative to this approach.

In the Department's view, the architectural design and urban form of the scheme is acceptable and it will sit comfortably within this context.

Overall the Department is satisfied that the application complies with all relevant Island Plan policies.

Department recommendation                 APPROVE, subject to condition and successful completion of a Planning obligation agreement."

26.      Against that summary of officer advice, the Minister's reasons for refusal of permission as set out at paragraph 9 above, are inadequate.  It is not enough, as was contended by Advocate Mills, to submit that the Minister went on site and had the benefit of the scheme drawings and a scaffold profile to assist him.  That factually may be correct, but it does not explain why he formed the view which he did.  We have noted that the Planning Applications Panel were split equally on whether the application should or should not be permitted.  We do not find that helpful because we do not understand the Panel's reasoning in this respect.  Having looked at the officer recommendations, the zoning and the relevant Plan policies, it seems to us that the application ought clearly to have been approved. 

27.      Given that the Minister's position was that it would not be appropriate for the application to be remitted to him for further consideration, the Court has resolved to exercise its power under Article 113(3)(b) to order the Minister to grant permission to the application submitted on 1^st May, 2014, subject to the applicant entering into a suitable planning obligation agreement pursuant to Article 25 of the Law subject to these conditions:-

(i)        Prior to the issue of the Planning permit, the applicant should enter a formal planning obligation agreement with the Minister which, unless otherwise agreed by the Minister should guarantee the provision of the following:-

(a)       Of the ten new dwelling units permitted as part of the development of Field 873, 50% shall be sold to first time buyers and 50% shall be sold or transferred to a social housing landlord approved for that purpose by the Minister for Housing for rental to persons meeting the required qualifications. 

(b)       The Minister for Planning and Environment will expect the social rental accommodation to be used only for that purpose and rented by a social rental landlord, approved as such by the Minister for Housing, to a person or persons who have been assessed by the Minister as satisfying his allocation criteria. 

(ii)       The Minister shall be entitled to add conditions to the grant of planning permission  as set out in paragraph 16 of the Officer Report in relation to this application P/2014/0672 provided to us as part of the court papers and validated on 1^st May, 2014. 

28.      We therefore allow the appeal and direct the Minister accordingly.  There is liberty to apply in connection with any difficulties arising out of the condition requiring the Minister and the applicant to enter a planning obligation agreement. 

Authorities

2002 Jersey Island Plan.

Planning and Building (Jersey) Law 2002 as amended.

Planning and Building (Amendment no 6) (Jersey) Law 2014.