Jersey Unreported Judgments

Planning - third party appeal against decision of the Minister.

[2015]JRC176

Royal Court

(Samedi)

26 August 2015

Before     :		T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Fisher and Marett-Crosby
Between	Roger Bougeard		Appellant
And	The Minister for Planning and Environment		Respondent
And	Dr C Taylor and Mrs A Taylor		Applicant

Advocate D. S. Steenson for the Appellant.

Advocate D. J. Mills for the Respondent.

Advocate N. M. C. Santos-Costa for the Applicants.

judgment

the deputy bailiff:

1.        This is a third party appeal under the modified procedure brought by the Appellant under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") against the decision of the respondent ("the Minister") to grant planning permission to the applicants in respect of the property Maraisia, La Route de Cotils, Grouville ("Maraisia"). 

2.        The application was to "remodel and refurbish property to include removal of extension to south elevation and construct new first floor extensions to south and west elevations, new balcony to east elevation and new second floor extension.  Convert ground floor store to utility and insert window.  Various external alterations to include replacement windows and doors and enlarge window openings.  Various landscaping works to include alteration to garden levels with new and removed retaining walls.  Replacement of suspended timber garden deck with concrete base and slab finish."

3.        Maraisia is situated off a private roadway and is next door to and to the south of the property La Cachette which is owned by the appellant.  Both properties are in the Green Zone and both are on a cotil and enjoy very fine and extensive views over the Royal Bay of Grouville. 

4.        The grounds of appeal are that:-

(i)        The development proposed is out of character with the surrounding landscape, and/or

(ii)       It will infringe upon the privacy of the appellant;

(iii)      It will affect the view of the appellant; and/or

(iv)      It appears from the documentation that the Minister had sought out justifications for not adhering to the Island Plan and has subverted the presumption against non-development in the Green Zone; and/or

(v)       The planning permission sought was not in accordance with the Island Plan and there is insufficient justification for granting permission in contravention of the Island Plan;

(vi)      Specifically, the Minister's decision contravenes policies GD1 and NE7 of the Island Plan; and

(vii)     In the premises the Minister has failed to take into account adequately or at all the human rights of the appellant. 

5.        For the purposes of the hearing we have before us the affidavit of Jonathan Gladwin, a senior planner with Planning and Building Services Department, the appellant Mr Bougeard, Mr Andrew Harvey, a chartered architect whose affidavit is tendered on behalf of the appellant, that of Dr Taylor, one of the applicants, and of Mr Waddington, an architect acting for the applicants.  The Court has also had the benefit of a site visit which has assisted us greatly in understanding the layout of the property, the potential effect of the development and indeed the arguments and evidence put before us.  Although this appeal is brought under the modified procedure, because the Court acceded to the request for a site visit, which as we have said we have found to be a helpful exercise in this case, the matter had nonetheless been listed for a full day.  We accordingly, taking the site visit into account, allowed each of the parties approximately an hour and 15 minutes to make submissions to us with the applicant a maximum of 30 minutes by way of reply. 

The legal test

6.        The test applied by this Court in considering appeals under Article 114 of the Law has been set out in numerous cases and we do not need to examine the subject at length. 

7.        In Dixon and Another v Minister for Planning and Environment [2012] JRC 237A, in considering the test that we should apply, the Court said this:-

"It was noted in the Fairview Farm case, the Royal Court cannot escape the responsibility of forming its own view.  This is because the Court is reviewing whether the decision of the Minister was unreasonable and in order to conduct that review, it must naturally look at what the Minister should and should not have taken into account in terms of relevant policies and objections.  When conducting that exercise, the Court is likely to form a view in any event on the merits of the application, but it needs to do that so as to be able to weigh up the relative significance of the various factors and thus form a view as to whether the decision of the Minister was or was not reasonable.  The appeal is not a full merits appeal because the Court was to allow, as Bailhache, Bailiff, put it in Token a margin of appreciation to the Committee now the Minister.  Nonetheless given the absence of any other form of appeal against the Minister's decision, the Court should not be too unwilling to intervene where that is appropriate.  This is not an appeal based on Wednesbury unreasonable, where the applicant has to show the administrative decision was so unreasonable, no reasonable person could have taken it, such as where the stairs constructed by the decision-take do not reach the attic bedrooms. 

16.      In the second stage of the appeal, considering the decision of the Minister, the Court has regard to whether the process was lawful and fair (see for example Caesar Investments Limited v Planning and Environment Committee [2003] JLR 566 and Ruette Pinel Farm Limited v Minister for Planning and Environment [2012] JRC 008) and then the reasonableness of the Minister's decision.  Comparing that decision with the Court's evaluation will:-

(a)       sometimes lead to a conclusion that the Minister has acted unreasonably;

(b)       sometimes show that the Minister has reached a different view from the Court but a view which is nonetheless reasonable;

(c)       sometimes show that the Court's view and the Minister's view are the same."

8.        It is for this Court to determine whether or not the decision of the Minister was unreasonable and we take our approach from the dicta of the Court of Appeal in the Minister for Planning and Environment v Hobson [2014] JCA 148 in which the Court said at paragraphs 78 and 79:-

"78.    Although we do not support the Deputy Bailiff's reference to "degrees of wrongness" that view accords with our own.  It seems to us helpful not to speak in terms of mistakenness, wrongfulness, or, separately, of margins of discretion.  In our view the Royal Court would be able to interfere (a) manifestly if a Wednesbury ground is identified but also (b) where the decision is unreasonable, not in the sense of being incapable of reasoned justification, not in the sense of being beyond the range of decisions that a reasonable decision-maker could reach, but in the sense of being beyond the bounds of reasonable justification in the mind of the Royal Court.  An evaluation in the latter manner strikes the balance between respecting the experience of the Minister as planning authority and allowing an aggrieved participant a proper appeal to another respected Island authority, the Jurats, whether alone or with the guidance of the Bailiff. 

79.      As part of the evaluation, the Royal Court will have looked at matters at a similar level of thoroughness to that carried out by the Planning Committee, doubtless with the much more focussed approach which comes with appellate submissions.  But it is not sufficient for the Royal Court to reach a different view from that of the Minister.  It must also have found the decision to be beyond the bounds of reasonable justification, perhaps because, in the mind of the Royal Court, the decision is the result of flawed logic or is supported only by somewhat threadbare reasoning."

9.        Part of the appellant's submissions suggest a procedural irregularity on the part of the Minister.  We, therefore, bear in mind the decision of the Royal Court as set out in Ferguson v Minister for Planning and Environment [2013] JRC 022 where the Court said:-

"The Court will not quash the decision in every case where there has been some procedural irregularity.  The Court is concerned in an administrative appeal with considering whether the proceedings which were followed were, in all the circumstances, in general sufficient and satisfactory.  Put another way it is only when any procedural errors or unfairness are sufficiently serious to render the decision itself unreasonable that the Court will intervene."

The applicable planning policies

10.      To understand the nature of this appeal it is necessary to consider the planning policies that apply to this site. 

11.      The appellant's first contention is based upon the Island Plan Policy GD1, general development considerations.  Policy GD1 so far as relied on by the appellant, is in the following terms:-

"Policy GD 1

General development considerations

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

1.        Contributes towards a more sustainable form and pattern of development in the Island in accord with the Island Plan strategic Policy SP 1 'Spatial strategy'; Policy SP 2 'Efficient use of resources'; and Policy SP 3 'Sequential approach to development';

[...]

2.        does not seriously harm the Island's natural and historic environment, in accord with Policy SP 4 'Protecting the natural and historic environment', and in particular;

a.        will not have an unreasonable impact on the character of the coast and countryside (Policy NE 6 'Coastal National Park'; Policy NE 7 'Green Zone' and Policy NE 5 'Marine Zone'), biodiversity (Policy NE 1 'Conservation and enhancement of biological diversity'), archaeological remains (Policy HE 5 'Preservation of archaeological resources') or heritage assets (Policy HE 1 'Protecting Listed buildings and places') and includes where appropriate measures for the enhancement of such features and the landscaping of the site;

b.        will not have an unreasonable impact on important open space; natural or built features, including Policy NE 4 'Trees, woodland and boundary features'; and Proposal 3 'Wildlife corridor designation';

c.        will not unreasonably affect the character and amenity of the area, having specific regard to the character of the coast and countryside (Coastal National Park and Green Zone) and the built environment. 

3.        does not seriously harm the amenities of neighbouring uses and should, in particular;

a.        not unreasonably affect the level of privacy to buildings and land that 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;

[...]

5.        Contributes, where appropriate, to reducing dependence on the car, in accord with Policy SP 6 'Reducing dependence on the car', and in particular;

a.        is accessible by pedestrians, cyclists and public transport users, including those with mobility impairments;

b.        will not lead to unacceptable problems of traffic generation, safety or parking;

c.        provides a satisfactory means of access, manoeuvring space within the site and adequate space for parking."

12.      The next policy is that of Policy NE 7 which is that applicable to the Green Zone.  Insofar as relied on by the appellant, the policy states:-

"Policy NE 7

Green Zone

The areas designated as Green Zone on the Proposals Map will be given a high level of protection and there will be a general presumption against all forms of new development for whatever purpose. 

The Minister for Planning and Environment recognises, however, that within this zone there are many buildings and established uses and that to preclude all forms of development would be unreasonable.  Thus, the following types of development will be permitted only where the scale, location and design would not detract from, or unreasonably harm, the character of the area: 

1.        domestic extensions and alterations of an existing dwelling;

[...]

For the avoidance of doubt:

d.        There will be a presumption against the extension of domestic curtilages;

[...]

Development proposals that are potentially permissible exceptions to the presumption against new development in the Green Zone will only be permitted where they do not seriously harm the character of the area."

The Appellant's arguments on appeal

13.      The appellant submitted that, the Court having had the benefit of a site visit, it was clear that the proposed development must clearly breach the relevant policies and was both substantial and would result in a much larger property.  In addition, the appellant in his written contentions submits that the decision of the Minister demonstrates an unreasonable departure from the relevant Island Plan policies and in particular points to the following issues and policies:-

(i)        That the decision amounted to an inversion of the presumption against development in the Green Zone;

(ii)       The scale and mass of the proposed development;

(iii)      The unreasonable loss of amenity to the appellant;

(iv)      The unreasonable loss of the appellant's privacy;

(v)       The provision for parking;

(vi)      Harm to the landscape character of the Green Zone. 

14.      The appellant's first argument, however, was not based upon the Green Zone Policy but rather on Policy GD1.  The appellant argued that the development did not even fit within that criteria let alone the more stringent requirements of the Green Zone Policy.  The appellant argues that the development should have failed because it did not accord with paragraphs 2, 3a and b, 5b and c of Policy GD1. 

15.      Policy GD1 sets out the general considerations relating to all applications for development and the general criteria against which any application is considered.  There are references in the body of that policy to other policies applying to specific areas and circumstances and it seems to us, where other policies are referenced within GD1, it is to those policies that the Planning Minister has principal regard in considering whether or not the more general criteria in Policy GD1 have been met.  For example paragraph 2 of GD1 refers to Policy NE7 and it seems to us that in considering whether paragraph 2 of GD1 contains any barrier to the proposed development it is appropriate for the Minister to have regard to Policy NE7 which is specifically concerned with determining what may be an "unreasonable impact on the character of the ... countryside" or might "unreasonably affect the character and amenity of the area".  Some parts of GD1 do not contain references to other policies.  Paragraph 3 of GD1 , for example, relates to "serious harm" to the amenities of neighbouring uses and in particular the level of privacy and the level of light that owners and occupiers might expect to enjoy.  In our view Policy GD1 paragraphs 3 and 5 fall to be considered in connection with this application and we will come on to make observations in connection with those paragraphs in due course. 

16.      The appellant also argues that the Minister has failed to understand Policy NE7.  The Minister should, so the appellant contends, have started with the presumption against any development of the Green Zone.  Instead, he appeared simply to look for reasons to permit development. 

17.      We do not agree that this appears to have been the Minister's approach or indeed that the Minister's approach should have been that argued for by the appellant.  Policy NE7 does not, self-evidently, create an absolute block on any form of development within the Green Zone.  What it does is reflect the fact that the Green Zone "will be given a high level of protection and there will be a general presumption against all forms of new development for whatever purpose".  However, within that general presumption, the Minister recognises that there must be exceptions.  One of the exceptions expressly within Policy NE7 is that which relates to "domestic extensions and alterations of an existing dwelling".

18.      The following excerpts from the Island Plan assist our consideration as to the ambit of Policy NE7.  They are as follows:-

"2.120 There is also a need to provide for the reasonable expectation of residents to improve their homes and businesses to undertake economic activity and provide employment, having regard to the capacity of the landscape to accommodate development without serious harm.

2.121 Accordingly, Policy NE7 sets a presumption but not an absolute moratorium against development within the Green Zone: the key test is the capacity of the site and its context to accommodate development without serious harm to landscape character. This is the starting point for the consideration of development proposals. The following categories may, exceptionally, be considered though not all cases will be acceptable.

2.122 It will be unreasonable to resist all forms of development to improve people's homes. The following forms of development related to residential land use and buildings may be permitted as exceptions to the presumption against development here, but only where it does not cause serious harm to landscape character:

2.123 The acceptability of an extension to a dwelling will be determined by its scale, design and impact on the landscape character.

2.124 Each case should be assessed on its merits and, in particular, regard had to the sensitivity of the site, relative to the capacity of the landscape character area to accept change.

2.125 The purpose will be a material consideration and should not facilitate a significant increase in occupancy. Intensification of domestic use will place more pressure upon a fragile environment, limited infrastructure and services and be likely to increase trip generation. The cumulative enlargement of existing dwellings, and the associated increase in resident population activity, can undermine an area's character as much as new homes: a site's planning history will, therefore, be a material consideration."

19.      We are of course dealing in this case with an extension to an existing dwelling.  Accordingly, as such it is a permitted exception within Policy NE7 and the Minister is allowed not to apply the presumption against any new form of development.  What the Minister, through his officers, considers is whether or not the development by reason of its scale, location and design would detract from or unreasonably harm the character of the area.  The measure of harm is also expressed by the phrase "seriously harm the landscape character of the area" at the end of Policy NE7.  The question for the Minister is whether the development seriously harms or unreasonably harms or detracts from the character of the area by reason of its scale, location and design. 

20.      We have considered this appeal, accordingly, in general under the headings of location and design; privacy; light and view; occupancy and parking; and scale and mass.  Those matters will of course need to be considered against whether or not what is proposed detracts from or unreasonably or seriously harms the landscape and character of the area and against the more general provisions set out in GD1.  We are doing this to assess whether, in our view, the Minister's decision was a reasonable one.  We also consider whether there was anything deficient in the Minister's process such that would make the decision itself unreasonable. 

Location and Design

21.      As to the location of the development if is, of course, already an existing dwelling and is positioned next door to the appellant's property.  There does not seem to be, in our view, any principled objection to a development at the location in question. 

22.      The design of the building is modern.  It is not out of keeping with the design of the neighbouring property belonging to the appellants nor generally with the character of the other buildings in the area.  In our view the decision by the Minister to approve a building of this design could not be considered unreasonable. 

Privacy

23.      On the matter of the effect of the development on the appellant's privacy, we were referred to the case of Cox and Eynon v The Minister for Planning and Environment [2013] JRC 141 in which the Court said, at paragraph 23:-

"... Nonetheless, it is clear that privacy is not an absolute right. We do not think that the Minister can be criticised for concluding that there would not be such material overlooking and loss of privacy such as to justify a refusal of the application. ..."

24.      It is clear that the development as proposed would have no openings in the part of it facing towards the appellant's property nor would it be possible, with the permanent establishment of a Juliet balcony as required in the permission, for access to be had by the applicants to the roof space outside of the bedroom which could if it had been allowed, to some extent cause a loss of privacy to the appellant.  In our view the appellant's privacy has been adequately protected by the condition relating to the Juliet balcony placed on the permission, and by the design of the development and indeed in his submissions before us, Advocate Steenson accepted that there was no material loss of privacy. 

Light and View

25.      The appellant's property enjoys fine and extensive views of the Royal Bay of Grouville and the proposed development will not in our view impact upon those views to any significant extent.  The proposed development has no affect at all upon the north and west of the appellant's property and it is only to the south that there is any potential effect.  We accept that the increased height of the development will have some effect on the light falling on the appellant's property.  However in our view that was taken into consideration by the Minister and the development will not unreasonably reduce the light for the appellant.  Any development, whether in the built-up area or in the Green Zone, may have some effect on neighbouring properties.  Different considerations may well, as Advocate Steenson urged upon us, apply to loss of amenity in the built-up area as opposed to in the Green Zone.  Nonetheless an extension to a dwelling inevitably comes with the risk of some loss of light to neighbouring properties and we do not consider that the loss of light to the appellant will be material and would not in our view render the decision of the Minister unreasonable. 

26.      It is perhaps well understood that there is no right to a view in Jersey law and we have been referred to the case of Dunn v Minister for Planning and Environment [2009] JRC 237 where Sir Philip Bailhache, Commissioner, stated:-

"The Law, however, confers no legal right in the absence of a servitude to a view."

And the Commissioner went on to state:-

"The loss of a view may be an element of the loss of amenity to be taken into account in that sense, but it is not per say a material planning factor.  Put simply, you can buy a room with a view, but you cannot buy a view."

27.      As we have said the appellant's property currently enjoys and will continue notwithstanding any development, wide-ranging views over the Royal Bay of Grouville.  This will in our view be minimally affected by the development.  In terms of the view to the south, over what is currently the roof of Maraisia, this is a view of trees and is visible from the southern edge of the first floor balcony of the appellant's property.  As far as we could tell from our site visit, there appeared to be no opening window at first floor level that would afford a view from the southern side of the appellant's property generally and the view appeared to be limited to that from the southern part of the balcony. 

28.      The view will therefore be affected to some extent by the development but the loss of view would be limited.  It does not in our judgment cause serious harm to the amenities of neighbouring uses. 

Occupancy and Parking

29.      There was considerable comment addressed to us on the matter of occupancy and parking, Maraisia currently has three rooms that could be used as bedrooms.  In fact the smallest of these rooms is used as a study. 

30.      The application was considered on the basis that the existing property had only two bedrooms.  If the development goes ahead it will have four bedrooms.  There will be some increase in occupancy; indeed that is the purpose of the proposed extension.  The question is whether a move from two or three bedrooms to four bedrooms would represent a significant increase in occupancy for the purpose of Policy NE7. 

31.      In our view it would not.  In the context of this particular dwelling a move from two bedrooms to four bedrooms would not in our view represent a significant increase in occupancy.  It is not simply a matter of percentages as these can be misleading.  For example, a movement from one bedroom to two would represent a 100% increase.  The Court must, instead, take a realistic approach in the light of the nature of the property and character of the area and, in our view, the increase proposed is not significant. 

32.      We were addressed at some length on the question of parking and it is a matter that has caused us some anxious consideration. 

33.      It seems to us that under the new design there is space for at least three parking spaces.  Two are in the garage and one, rather smaller, in what is currently referred to as the turning space.  Access and egress from these three parking spaces could, it seems to us, be quite naturally facilitated by reversing into them from the private roadway outside or reversing from them into the roadway in order to drive down that roadway to the public highway. 

34.      We are not, however, so sanguine as to the availability of a fourth parking space.  We were shown where it was anticipated that this parking space would be but it appears to us to be very small and, on the assumption that the other parking spaces are occupied, the fourth space does not appear to admit of easy access or egress.  It would require an ability to turn within the confines of the width of the private road.  This does not appear to us to be satisfactory. 

What then is the effect of this concern on the application?

35.      During the course of submissions we were referred in some detail to the parking guidelines contained in Supplementary Planning Guidance Policy Note 3 dated September 1988.  The purpose of the guidelines are, amongst other things:-

"To ensure, in appropriate circumstances, that sufficient parking and manoeuvring space for private cars and service vehicles are provided to serve a particular form of development and the traffic which it is likely to generate."

36.      The guidelines themselves indicate their non-mandatory nature in that in paragraph 1, 5th bullet point, it is explained:-

"The standards are set down for guidance only and it is not in the intention to produce a set of inflexible rules, which are necessarily restrictive.  Although it is expected that the standards will normally be met, there may be circumstances where they should not or cannot be rigidly followed.  There will be occasions where it will be necessary to balance normal parking requirements for proposed development against the need to meet other planning polices with regard to building density, design space of outbuildings and landscaping etc.  In such cases, the applicant will be advised by the planning officer on variations to the specified standards which may either increase or decrease the level of provision."

It is clear that the guidelines are intended to apply not only to new developments but also "where practicable to redevelopment, extensions and/or conversions" [our emphasis].

37.      The development was considered by the case officer on the basis of an increase in occupancy to a total of 5/6 persons.  This would, in accordance with the tables set out as part of the guidelines have required for residents three or four parking spaces. 

38.      The guidelines are not binding on the Minister and they expressly apply to extensions only "where practicable".  The question for us, therefore, is whether the decision of the Minister to permit this development where there are three parking spaces which are adequate and a fourth which is somewhat inadequate would be unreasonable. 

39.      In our view, as it would not have been unreasonable for the Minister to approve this development on the basis of three parking spaces, it was not therefore unreasonable for him to have approved it on the basis of four spaces albeit that one of them is inadequate in some respects. 

40.      Mention was made to us during the course of oral submissions on the possibility of access by emergency services or indeed guests of the applicants.  This, it seems to us, is a problem inherent in the property at present and is not made worse or affected in any way by the development. 

Scale and Mass

41.      The appellant put before us the case of Steenson v The Minister for Planning and Environment [2009] JLR 427 and urged that we should consider this case with a great deal of care. 

42.      In that case the appellant appealed against the decision of the Minister to grant planning permission to his neighbours.  The neighbours have been given permission to build a substantial extension to their property which was in the Green Zone on the basis, so the Minister communicated with the appellants, that "permission had been granted having taken into account the relevant policies of the approved Island Plan, together with other relevant policies and all other material considerations, including the consultations and representations received".  The appellant had appealed, amongst other things, on the basis that the Minister had not given sufficient weight to the Island Plan and the presumption against development in the Green Zone.  The Court allowed the appeal and found that the Minster's decision to grant the applicants planning permission had been so mistaken as to be unreasonable.  In its judgment, the Court said this:-

"50. The Court was also of the view that there was no doubt at all that there would be a very substantial impact on the Appellant were this development to go forward. As it presently noted in the case officer's notes, the appellant's property currently overlooks the applicant's property to the greater extent, by nature of the appellant's property being built further up the escarpment. The Appellant currently has a private back garden and perhaps to a lesser extent, some privacy from his front balcony. The effect of the proposed development would be to remove any privacy from the back garden and also to affect adversely the privacy on the front balcony. Finally, the site visit confirmed that the effect on the views which the appellant enjoyed not only from his front balcony but also from his back garden would be very significant. Indeed the view to the north would be very restricted indeed. He appellant produced photographs to the Court which confirmed its potential impact on the development.

Decision

51. The Court's view is that the description of the proposed works as advertised were some way away from the reality of what the application entailed. If the development proceeds, the applicant's property, we are told would have a built area of approximately 560 square metres, a substantial increase on what is currently there and a building of a mass which, in the Court's judgment, would be out of proportion to the neighbouring area both in size and character. It is true that the ridgeline of the property would probably be no higher than the ridgelines of the properties of the appellant and also of the neighbours to the east, but the applicant's property is lower down the hill which emphasises the difference in mass.

52. As far as building character is concerned, there is nothing in the Petit Port area which is very similar.  The Court notes the observation of the planning officer that there is no defining property type in this area, and accepts that in the sense of building style - but not in the sense of building size and mass. 

53. The Court also accepts that the impact on the Appellant's privacy, particularly in his garden behind the house where his swimming pool and sitting out area are to be found, would be very significant.  That privacy would be lost to a great degree. 

54. While the Appellant has no right to a view, he does have a right to expect planning policies in the Green Zone to be applied, sensibly and sensitively.  In this case the applicant's property is in the sensitive area of St Ouen's Bay, albeit at its southerly extremity, and on a reading of the Island Plan and policies contained in it, the Appellant would be entitled to think that significant development of an adjoining property was unlikely. 

55. Policy C5 essentially amounts to a presumption against development in the Green Zone.  That does not mean there will never be development in that Zone; as is said in the Plan, that would be unreasonable.  Each site, each proposal, must be viewed on its merits.  But the starting point is the presumption which Policy C5 sets out and an assessment against that presumption of the proposal's "impact on the visually sensitive character of this Zone and whether it accords with the principles of sustainability which underwrite the plan".

56. The Court had absolutely no difficulty in reaching the view from its site visit that it would not have granted the applicants this permission on the grounds that the mass and scale of the proposed development was out of all proportion to the existing building and to the character of the area.  The new building, if approved, would dominate the area in an overbearing way, as well as impact very significantly on the privacy enjoyed by the Appellant.  But that is not the test.  The question is whether the grant of the permission is unreasonable in all the circumstances."

43.      Policy C5 referred to in the extract set out above is the pre-cursor policy to NE7.  The area that was being considered in that case now has a much higher level of protection in that it is now part of the coastal national park.  However the approach of the Royal Court in that case is instructive in the present circumstances.  It is quite clear that to a large extent the Court was concerned with the apparent mass of the building should the development take place and whether it would be out of proportion to the neighbouring area both in size and character.  The Court was concerned that the new building would "dominate the area in an overbearing way".

44.      We also note the case of Webb and others v The Minister of Planning and Environment [2012] JRC 107 in which the Court was addressed about an increase in proposed size in connection with properties by reference to percentage and square metreage.  The Court, at paragraph 28 said this:-

"We will return to the issue of there being no reduction in the visual impact of Greenhaze in a moment, but we are in the realms here of Planning judgment. We agree with Mr Gladwin when he says that the fundamental issue in assessing the visual impact of a development in the landscape does not concern floor space "figures" and "percentages" per se, but rather the issue of apparent scale and mass."

45.      We respectfully agree.  Argument advanced to us in terms of percentage increase in floor area does not of itself assist us in forming our own view.  What is important from our perspective, is what the apparent scale and mass of the property will be should the development proceed.  It is in part for that reason that the site visit was particularly helpful in this case. 

46.      We have considered carefully the scale and mass of the property.  We have noted the height of the proposed development in connection with the appellant's property and the general scale.  In our view the proposed development will be neither overbearing nor will it unreasonably impact on or harm the landscape character and amenity of the area.  In any event this seems to us to fall within the area of planning judgment and we do not think that the Minister would have been acting unreasonably in permitting a development of the scale and mass proposed. 

The Procedure

47.      A number of other concerns were raised by the appellant.  These to a significant extent related to the form of the plans submitted and whether they gave an accurate picture of the development.  These concerns were primarily referred to in the affidavit of Mr Andrew Harvey of 13^th March, 2015. 

48.      We do not need to address these individual concerns.  It may be that in some respects the plans submitted were inadequate or not fully in accordance with the appropriate directions.  In our view, however, the plans were not materially inaccurate and were not misleading.  They clearly were not thought to be misleading by the case officer. 

49.      It is clear that when the application to develop was made it attracted concern from the appellant.  Those were expressed in letters written by the appellant.  On two occasions the case officer attended on site.  The appellant was given the opportunity to explain his concerns in connection with development and those concerns were noted by the case officer. 

50.      We have had the benefit of reading the affidavit of Mr Jonathan Gladwin of 3^rd February, 2015.  This sets out at some length the process that the case officer and other officers within the planning department went through in connection with this application, the concerns of the appellant and the way that those concerns were considered and addressed.  We do not need to go through Mr Gladwin's affidavit in detail.  It appears to us that there was nothing inadequate or unsatisfactory about the application or the way it was dealt with by the Minister such as would render the permission susceptible to challenge on the grounds of procedural irregularity or that rendered the decision itself unreasonable. 

Human Rights

51.      The grounds of appeal contained reference to the appellant's human rights.  In submissions before us no separate argument was put forward in connection with human rights but in our view the appropriate and careful application of the relevant planning polices together with an appreciation and consideration of the concerns of the appellant, in particular in connection with privacy, address human rights concerns.  In this case the principal concern arose under Article 8 of the European Convention on Human Rights 2000 which is the right to respect for family life.  This of course has a direct bearing on the concerns raised by the appellant in connection with the potential loss of privacy but for the reasons which we have set out above we do not think that the loss of privacy is in this case significant. 

52.      It does not appear to us that human rights considerations that are outside any balancing exercise contained in the decision process arise in this matter and take the argument before us any further. 

Conclusion

53.      We remind ourselves that it is not for us to consider whether, had we been the original planning authority, we would have allowed the development in this form.  Neither is it for us to consider whether a different or, in our view, better development could have been applied for or permitted.  It is for us to determine whether or not the Minister's decision was unreasonable. 

54.      There will be some loss of light to the appellant occasioned by this development.  There will be some restriction in his view directly to the south.  In our view, whereas understandably undesirable from the appellant's perspective, neither of those amenities are unreasonably affected.  Furthermore we do not consider that the scale and mass of the proposed development will amount to an unreasonable impact on the landscape character of the area.  We have concerns about the adequacy of the parking in as much as it does not appear to us that the proposed development will necessarily have the four parking spaces that are anticipated.  However, whilst of concern for the reasons set out above, we do not consider that this issue renders unreasonable the decision of the Minister to permit the development. 

55.      In summary in our view the decision of the Minister could not be characterised as unreasonable and accordingly we reject the appeal. 

Authorities

Planning and Building (Jersey) Law 2002.

Dixon and Another v Minister for Planning and Environment [2012] JRC 237A.

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

Ferguson v Minister for Planning and Environment [2013] JRC 022.

Cox and Eynon v The Minister for Planning and Environment [2013] JRC 141.

Dunn v Minister for Planning and Environment [2009] JRC 237.

Steenson v The Minister for Planning and Environment [2009] JLR 427.

Webb and others v The Minister of Planning and Environment [2012] JRC 107.

European Convention on Human Rights 2000.