Jersey Unreported Judgments

Planning - third party appeal against decision of the Minister dated 28 January 2015.

[2015]JRC189

Royal Court

(Samedi)

15 September 2015

Before     :		J. A. Clyde-Smith, Esq., Commissioner, and Jurats Milner and Ramsden
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 Minister.

The Applicant appeared in person.

judgment

the commissioner:

1.        This is a third party appeal brought by Valerie Rose Whitworth ("the appellant") under Article 114 of the Planning and Building (Jersey) Law 2002 ("The Planning Law") against a decision of the Minister for Planning and Environment ("the respondent") on 28^th January, 2015, to grant planning permission to David Ronald Manning ("the applicant") for change of use of a certain area of land to domestic curtilage, the erection of two new sheds for agricultural and domestic equipment and the extension of a length of fence at Field 1007 in the Parish of St John immediately to the east of his property known as Mandoray Villa, La Grande Route de St Jean in the Parish of St John. 

2.        Bearing in mind the number of judgments of this Court in relation to this property, its layout will no doubt be familiar to students of law and practitioners alike, but it is helpful to be reminded of the history. 

3.        The applicant acquired Field 1007 in March 1973 which was prior to the coming into force of the Agricultural Land (Control of Sales and Leases)(Jersey) Law 1974 which means that there are no agricultural occupancy or use conditions pursuant to that legislation affecting it.  After many years of submitting unsuccessful applications and campaigning against decisions of successive planning committees, he obtained permission in April 1996 for the construction of a house and large steel framed storage building (30 metres long and 13.3 metres wide) on the western part of Field 1007 adjacent to the main road, La Grande Route de St Jean.  It was a condition of the permit that the remainder of Field 1007 to the east should be retained for agricultural use.  The storage shed was to be used for storage only and there was to be no sale of goods from the premises.  No storage of goods, materials or plant was to occur outside the storage building. 

4.        We have an aerial photograph taken before the works commenced showing Field 1007 as an agricultural field adjoining on its northern boundary the residential property of the appellant known as Les Ruelles.  Surrounding the appellant's property to the north and east and adjoining in part the rest of the northern boundary of Field 1007 is a large commercial site that used to house B & Q.  

5.        In April 2004, Jersey Telecoms were given informal approval to store telegraph poles on a temporary basis on land lying to the east of the storage shed and outside its curtilage and thus in part of the field that was subject to agricultural use.  At some point, the applicant became concerned about possible contamination by creosote leaking from the poles and he was given permission orally by the Planning Department to put down concrete hard standing on that part of the field used for the storage of poles.  It is not entirely clear when that hard standing was put down but we were shown an aerial photograph apparently taken in 2008 in which there is no hard standing (and a few poles on the ground) and it was clearly in place by December 2009. 

6.        On 12^th October, 2006, a further permit was issued allowing limited sale of goods from the storage sheds with conditions which were somewhat ambiguous in relation to storage, but the condition that the remainder of Field 1007 should be retained for agricultural use was maintained. 

7.        On 12^th December, 2006, the applicant applied for permission to erect a 111.5 square metre shed on this area of hard standing which was refused because there was no justification for a shed of that size on land outside the domestic curtilage and within the Countryside Zone.  Advocate Clarke pointed out that in that application the applicant confirmed that no previous use of the land concerned could have potentially contaminated the site. 

8.        On 2^nd November, 2007, the applicant applied for permission to change the use of the whole of the remainder of Field 1007 (measuring 1,995 square metres) to the domestic curtilage.  Again he confirmed no potential contamination.  That application was refused.  We have no copy of the refusal, but assume it was because it was in the Countryside Zone contrary to policies NE7 and ERE1 (which we set out below). 

9.        On 21^st November, 2008, the applicant applied for consent to erect a five bedroom dwelling and associated works on or around this area of temporary storage.  Again he confirmed there being no potential contamination.  This application was refused because it represented the erection of a new dwelling within the Countryside Zone in the absence of any demonstrable essential agricultural need.  The creation of a substantial domestic curtilage, it was said, would by virtue of its significant encroachment into an area of open undeveloped land be detrimental to the rural character and scenic quality of the area. 

10.      On 1^st December, 2009, the applicant submitted a further application to construct a storage building for agricultural/horticultural equipment and machinery of about the same dimensions as that which was the subject of the application on 12^th December, 2006, (111.5 square metres) on this area of hard standing now in concrete.  On this occasion it was sited closer to the existing storage building than in the 2006 application.  That application was refused on 15^th May, 2010, against which the appellant appealed to the Royal Court.  In its judgment of 11^th October, 2010, (Manning-v-Minister for Planning [2010] JRC 186) dismissing the appeal, the Court said this at paragraph 17:-

"17     Conclusion

The strongest point advanced by the appellant, in our judgement, was that the proposed building would not harm the character and scenic quality of the countryside.  It is true that the site of the proposed building is largely covered in concrete and the Planning Department appears to have taken no steps to procure that what was done in the context of a temporary permission is restored to its natural state.  Be that as it may, it is impossible to criticise the Panel for taking a decision in strict accordance with the provisions of the Island Plan. The proposed building is in the Countryside Zone and the Plan provides a high degree of protection for that zone.  As this Court has said on other occasions, even small incursions into the Countryside Zone can cumulatively have a very detrimental effect.  The justification for encroachment in this case could equally be advanced for a further encroachment if this appeal were to be allowed and the proposed storage building constructed.  There seems to us to be no good reason why the existing storage building should not be adapted to provide the appellant with the accommodation that he needs.  The decision of the Panel cannot be described as so mistaken as to be unreasonable, and the appeal is accordingly dismissed."

11.      On 2^nd February, 2011, the Royal Court dismissed an appeal by the applicant against an enforcement notice issued by the Minister requiring the applicant to cease using this area of hard standing for the unauthorised storage of goods, materials, equipment and plant, including vehicles, boats, pallets and oil tanks, (the telegraph poles having long since been removed).  In its judgement (Manning-v-Minister for Planning and Environment [2011] JRC 029) the Royal Court, in finding that there had been no authorised storage use on a field whose agricultural use was clearly established, expressed the view that it would be unreasonable to to require the removal of the hard standing (paragraph 30):-

"It is clear to us that the representations of the Director of Planning are capable of being relevant to any application to the Minister for change of use.  When the most senior planning official makes representations to a member of the public, that member of the public ought to feel able to rely upon them.  Of course the planning authority which considers an application for a change of use must have regard to all material planning considerations, of which the Director's representations would be just one.  In this case, the fact that the area of hard standing lies in the countryside zone is an important consideration as is made plain by Island Plan Policy C6.  There may well be other material planning considerations, however, which would support an application for a change of use in relation to this area.  The aerial photograph appears to show as much commercial use as domestic use in the immediate environs of the hard standing in question.  There appears to be good screening of the area from neighbouring properties.  It does not seem to us that it would be at all reasonable to require the removal of the hard standing itself given the confirmation provided by the director of Planning that it was in order to lay that hard standing, and although it is true that hard standing does not prevent the land being used for other agricultural purposes such as the parking of tractors or other agricultural machinery, ancillary to another agricultural use, it does not seem very likely that such would be an appropriate way forward.  For these and no doubt other reasons, it may well be that application for a change of use of the hard standing area to storage, and the removal of some of the existing conditions which would prohibit such a user might well be reasonable, but, of course, we have only seen part of the picture and the appropriate authority would have to consider carefully all the factual circumstances and all relevant planning considerations before reaching its conclusion."

And at paragraph 33 it went on to say this about a possible change of use:-

"33. ...the Court has some real reservations about the maintenance of the conditions preventing a change of use of the area of hard standing lying to the east of the storage shed.  What the approved use should be is clearly a different matter, for all the reasons we have stated, but the issue merits some attempts at discussion and agreement between the Appellant and the Respondent, and, of course, a formal application by the Appellant for any change of use would have to be made and handled by the Respondent in the appropriate way.  This would give the opportunity for public consultation and, if the application were to be granted, for the imposition of appropriate conditions."

12.      Following on from these observations, the appellant applied for permission for a change of use of this hard standing area from agricultural to domestic/horticultural.  That application was rejected by the Panel on 6^th October, 2011, on the grounds that the proposed change of use would by virtue of its encroachment into an area of open, undeveloped land, be detrimental to the landscape, character and scenic quality of this area of Green Zone, contrary to the provisions of Policies NE7 and GD1 of the Jersey Island Plan 2011.  That decision was upheld by the Royal Court on appeal on 26^th April 2012 (Manning-v-Minister for Planning [2012] JRC 86A).  The Court found forming its own view of the merits an extremely difficult exercise, succinctly summarising the opposing arguments in this way at paragraph 16:-

"16     We mention that quotation from the judgment of the Court of Appeal in Fairview Farm because the Court considered on retirement what it would have done had it been the Minister - in other words it wanted to form its own view about the application of the Appellant.  It is right to record that the Court found this to be an extremely difficult exercise.  On the one hand, the arguments of the Minister and the third party interested in the appeal that it was necessary to avoid creeping development in the green zone, that the screening between the land of the third party and that of the appeal site was only partially useful in attenuating noise nor indeed did it provide cover against all things stored there, if they were particularly tall pieces of equipment, were powerful arguments.  The point that there had been a gradual reduction in the amenities of the area since 1996 seemed to be a fair one, and we particularly noted that some of the reduction in amenity had taken place without proper process being followed, thereby preventing the third party from having her voice heard.  On the other hand, the Appellant has, as we have indicated, done nothing wrong in seeking a development permission for his land in the past, nor in temporarily storing the telegraph poles between 2004 and 2006, nor in laying the hard standing on the appeal site.  It is not the Appellant's fault that he obtained a variation in the planning conditions affecting the area to the north of the storage shed, which now result in mutually inconsistent conditions being applied to an existing permit, a matter which, we are told, lies outside the powers of the Minister to correct.  In other words, there was much to be said on both sides of the argument."

13.      The Court made short shrift of the argument that the Minister had paid insufficient attention to the observations of the Court in its judgment of 26^th April, 2012, (paragraph 25):-

"There was criticism that the Panel had not taken sufficiently into account the Court's findings in the judgment of 2^nd February 2011.  We think there is no merit in that submission.  The Court was at pains to emphasise in that judgment that it had not received all the relevant material and accordingly any views which the Court ten had could be no more than provisional."

The application site

14.      The rectangular area of land that is the subject of the application for change of us is shown cross hatched in the plan attached to this judgment.  The large storage shed is situated to the north of the applicant's property adjacent to that of the appellant.  His house is situated to the south of the shed.  So far, we have been describing the area of hard standing which is to the east of the large storage shed outside its curtilage and within the agricultural field 1007.  There is a further smaller area to the east of this hard standing which appears to be used by the applicant as a vegetable patch and which is divided off from the field by a hedge that extends southwards towards the southern boundary of the applicant's property.  We have not yet referred to the area of the field to the south of the hard standing and vegetable patch.  It is not in dispute that there has been an unauthorised extension of the applicant's garden over nearly one half of this area of the field, which has been there for more than eight years.  That is significant, because under Article 40(1) of the Planning Law the Minister can only take action to remedy breaches of development controls that have taken place during the previous eight years.  As a consequence, no enforcement action can now be taken by the Minister in relation to the unauthorised extension of the garden nor in relation to the area of hard standing, which even if it has not been there for more than eight years, the Court has found it would not be reasonable to require its removal.  Thus, no action can now be taken by the Minister to restore the whole of the application site to that of a field, though it retains its agricultural use. 

Complaints Board

15.      Advocate Clarke pointed out that there has been no change in the circumstances from the decision of the Royal Court on 26^th April, 2012, to uphold a refusal to the change of use of the area of hard standing to the decision of the Minister on 28^th January, 2015, to grant permission for the change of use of this much larger area, save for the publication of the findings of the Complaints Board in October 2013. 

16.      The applicant had complained that the enforcement notice against which he had unsuccessfully appealed had been issued unlawfully as the storage which was the subject of the enforcement notice had been undertaken for a period in excess of eight years, rendering him immune from enforcement.  He had not been notified by the Planning Department of this eight year rule and consequently had not been able to take that aspect into account in his appeal against the enforcement notice.  He only became aware of the eight year rule when he visited the Department in September 2012 to review his case file and when he saw a letter written on 17^th June, 2010, to the appellant's representative which had not been copied to him nor disclosed during the Royal Court appeal.  The Planning Department contended that in order to be immune from enforcement any unauthorised change of use had to be "material" and "continuous" for a period of more than eight years.  This has not been the case in relation to the area of hard standing, the use of which had reduced significantly to the point that in 2008, it was de minimis or non-material.  In subsequent years, the extent of storage then increased again.  The applicant maintained that the area where the hard standing is now located had been used for storage from at least 2001 continuously to the date when the enforcement notice was issued. 

17.      The Board found procedural and administrative defects in the Planning Department's handling of the enforcement notice and in very critical report concluded that the issuing of the enforcement notice, which it had sought after the event to justify by constructing an argument based on spurious evidence, was ultra vires.  It had done so under pressure from the appellant and her representative, Mr Stein saying this at paragraph 6.12:-

"6.12   A feature of this case that has caused a degree of dismay on the part of the Board was the evident closeness to the department of the adviser to Mr Manning's "third party" adversary - his neighbour.  (The adviser formerly worked in the department before leaving to found his own planning consultancy and obviously knew well, and was known by, his former colleagues.)  The department was far too assiduous in responding to his many enquiries about Mr Manning's case and, in the Board's considered view, can be seen to have put aside its neutrality in what was, in considerable part, a dispute between neighbours. In so doing, it adversely affected Mr Manning's interests in a manner that demands the most forthright apology to him by the Minister.  Not only did the department confide its unsureness about the "8-year rule" to this adviser but not to Mr Manning but also informed him, the adviser, of crucial development in Mr Manning's case before he, the latter, was able to.  From this lack of even-handedness in behaving, and being seen to behave, neutrally it was not a large step for the officials concerned to be seen as showing a measure of favouritism to the neighbour's cause and dismissiveness towards Mr Manning's.  These were, we believe, sins of omission not commission but they nevertheless had, or had the potential to have, a marked impact upon the fairness with which Mr Manning's case was treated."

18.      The Royal Court, having quoted the above passage in its judgment of 19^th January 2015, (Manning-v-Minister for Planning and Environment [2015] JRC 013) agreed with these sentiments saying this at paragraphs 29 and 30:-

"29.    We agree with those sentiments in this case too.  The file which we have been shown on this occasion is littered with examples justifying the earlier expressions of dismay by the Complaints Board.  They include:-

(i)        The notion that the application for a change of condition should be converted into a full change of use application was that of Mr Stein, enabling the department to alter the conditions for Mr Stein's client's benefit.

(ii)       The decision to follow this course of action, and the effect of it, was notified to Mrs Whitworth but not to the appellant.

(iii)      It was Mr Stein's suggestion, subsequently endorsed by the planning officials in their report to the Minister/the Panel that the opportunity for a new permit should be taken to impose hours of trading conditions on the land.

30.      Mr Mills submitted in his address that the Law was penal in nature, and we think this is indeed a fair assessment.  An owner of land no longer can do what he wants with it.  The Minister is provided a power to impose all sorts of conditions whenever an application for development is granted, and these enure to the benefit or the burden of the land in the future.  Any breach of condition can lead to an enforcement notice and to quasi criminal penalties.  In these circumstances, it is absolutely critical that those charged with the administration of this legislation act in a transparently fair and even handed way.  Very regrettably this has not been the case here."

19.      The Board issued this invitation at paragraph 6.9 of its report:-

"The Board considers that the Planning and Environment Department should invite Mr Manning to re-submit an application (on a 'fees waived' basis) for the change of use of Area 'B', thereby providing an opportunity for neighbours to make such representations as they consider to be appropriate, and giving the Minister or the Planning Applications Panel the opportunity to grant consent and thus regularise the kind of storage permissible on the land and address the question of agricultural use, subject to such conditions as may reasonably be appropriate, whilst ensuring that both Mr Manning and any other entitled parties retain their rights of appeal in accordance with the law."

20.      In his response, the Minister accepted some of the findings but did not agree that the serving of the notice was ultra vires or that the issues raised regarding the eight year rule were invalid.  Having taken legal advice, the enforcement notice was therefore still active.  Furthermore, he did not think it appropriate to invite an application in the way suggested by the Board saying this in his letter of 11^th December, 2013:-

"The Board has suggested that I invite Mr Manning to submit an application to give me the opportunity to grant consent for a non-agricultural storage use on the site.  It is not clear whether this suggestion applies to the whole of the site discussing at the hearing or just that small part of it which is currently being actively used.  I am very concerned however that this suggestion implies that such an application will undoubtedly be approved.  It is certainly not for me to invite an application on that basis, or for me or the Board to pre-determine such an application.  As you know an application for the whole of the area has been made previously.  It was refused and importantly the Royal Court found that decision to be reasonable.  Mr Manning is entitled to submit such an application, but it would be fundamentally wrong for me to actively invite such an application with the impression that permission would be undoubtedly forthcoming."

The Panel's Decision

21.      In its report, the Planning Department justified approval on the basis that this was a "unique case" where the particular circumstances were most unlikely to re-occur and where the proposals would not have any significant harmful impact.  It had received a short memorandum from the Land Controls and Planning Officer to the effect that where the land had no agricultural conditions imposed upon it, it could be used for agricultural purpose and the Land Controls and Agricultural Developments section would not support its domestication due to the apparent loss of agricultural land. 

22.      When the matter came before the Panel, it had a further memorandum from the Land Controls and Planning Officer which expanded upon the issue in this way:-

"Although field 1007 is not necessarily a commercially viable agricultural field it is still an important asset to the agricultural land bank.  Areas of land such as these can be used for private equine grazing, allotments or orchards for example.  These areas are highly sought after particularly for private equine use.  Generally these areas are of small size and odd shape making them awkward for commercial machinery but ideal for these alternate usages.

In the last 2 to 3 years the Land Controls section policy on loss of agricultural land has tightened.  This is due to the ever decreasing land bank caused by major developments such as Trinity village and other community projects and similar smaller developments, and an increase of usage of land particularly with regard to the dairy industry.

The section looks at any loss of land on a case by case basis and in this case the loss of approximately 900 square metres of land is quite considerable on this area (leaving approximately 2400 square metres,"

23.      The minutes of the Panel meeting make no reference to the Panel having considered this further memorandum.  The minutes show the Panel having regard to all material considerations detailed within the Planning Department's report, which was unanimously endorsed.  The decision that was issued on 28^th January, 2015, sets out the reasons for giving permission in this way:-

"Island Plan policy NE7 does however set the strongest presumption against the change of use of land to extend a domestic curtilage which can result in incremental loss and erosion of landscape character to domestication in the countryside.  Island Plan paragraph 2.121 states however that policy NE7 sets a presumption but not an absolute moratorium against development - the key test is the capacity of the site and its context to accommodate development without serious harm to the landscape character.  In this case and taking into account the unique circumstances and context, it is considered that the use of the existing hard surfaced area and the extension of the existing garden area to the south, and the construction of a related storage shed, will not result in serious or material harm to the landscape, the character of the area or the amenities of adjacent properties.

Therefore, in these unique circumstances it is considered that the proposals may be approved as a departure from policy and the normal presumption against development."

24.      At the suggestion it would seem of the applicant in his letter accompanying his application dated 27^th August, 2014, the following condition, inter alia, was imposed:-

"1        The area of domestic curtilage hereby approved, and the buildings hereby approved thereupon, shall only be used as part of the domestic curtilage of, and for purposes ancillary to the occupation of, the existing adjacent residential property, Mandorey Villa.  In accordance with the details submitted, the maximum height above ground level of any storage shall not exceed 4 metres."

Storage in this context means storage outside the two new sheds for which approval was given which measured 10 ft x 8 ft x 7 ft high and 20 ft x 12 ft and 8 ft 6 ins high.  

The relevant policies

25.      The relevant policies are NE7, GD1 and ERE1 and for the purpose of this appeal, it is helpful to refer to NE7 (the Green Zone) and ERE1 (safeguarding agricultural land) in detail. 

26.      Field 1007 and the application site is within the Green Zone.  The preamble to Policy NE7 provides at 2.118:-

"2.118             Whilst not as remote and wild in character as the Coastal National Park there will still be a general presumption against any development in the Green Zone in order to retain the quality and distinctiveness of the Island's countryside here and to ensure that the distinct character of the zone remains intact.  The quality and distinctiveness of the landscape character areas of the Green Zone still makes them sensitive to the effects of intrusive development whilst having a greater capacity to accept some change."

And at 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."

27.      Significantly it says this at 2.133:-

"Extension of domestic curtilage

2.133               There is the strongest presumption against extensions of domestic curtilages, which can result in incremental loss and erosion of landscape character to domestication in the countryside."

28.      As Advocate Clarke said this would appear to give the same high level of protection against domestication of the countryside as is given against development in the Coastal National Park under Policy NE6. 

29.      Policy NE7 itself provides as follows:-

"Policy NE7

Green Zone

The Green Zone as designation on the Proposals Map will be given a high level of protection from development and there will be a general presumption against all forms of development, including but not limited to:

·         the development of a new dwelling (other than as a replacement under 3 and 10; the provision of new, under 4, or conversion under 9, below).

·         the change of use of land to extend a domestic curtilage;

·         redevelopment of modern agricultural building(s) involving demolition and replacement with a building(s) for another use, or their conversion to a non-employment use;

·         redevelopment of glasshouse(s) involving demolition and replacement with a building(s) or conversion for another use, or their conversion to a non-employment use.

Only the following exceptions may be permissible and only where they do not cause serious harm to landscape character; ..."

Change of use to extend the domestic curtilage does not come within any of the exceptions listed.

30.      The preamble to Policy ERE1 provides as follows:-

"Safeguarding farmland

5.142   It is important to Island life that agriculture is supported and remains viable to sustain the livelihoods of those engaged in farming and in other sectors that contribute to the improved management of Jersey's natural environment.  It is also important to protect the meadows and côtils from domestication and an important aspect of this policy is to ensure that land that is of value to agriculture is safeguarded against inappropriate changes in use.

5.143   There are constant demands on agricultural land both from within and outside the industry, particularly as farmers look to diversify.  However, it is wise to employ the 'precautionary principle' and continue to safeguard agricultural land."

31.      Policy ERE1 is itself is in the following terms:-

"Policy ERE 1

Safeguarding agricultural land

There is a presumption against the permanent loss of good agricultural land and for development or other purposes.  Where exceptions are proposed, the Minister for Planning and Environment will take into account:

·         the impact on the viability of an agricultural holding;

·         the nature of the proposed use;

·         in the case of a dwelling, the requirement for reasonable private amenity space;

·         the visual impact; and

·         the recommendations contained in the Countryside Character Appraisal."

32.      Policy GD1(2)(c) provides that development proposals will not be permitted unless the proposed development does not seriously harm the Island's natural and historic environment and in particular, would not unreasonably affect the character and amenity of the area, having specifically regard to the character of the countryside. 

33.      It was accepted by Advocate Mills that this application is inconsistent with the Island Plan, but the Minister is still entitled to grant permission pursuant to the provisions of Article 19.3 of the Planning Law which provides:-

"(3)     The Minister may grant planning permission that is inconsistent with the Island Plan but shall not do so unless the Minister is satisfied that there is sufficient justification for doing so."

Sufficient justification

34.      Helpfully, the Court of Appeal has considered what is meant by "sufficient justification" in Minister for Planning and Environment v Hobson [2014] JCA 148, in which the appeal had proceeded on the basis that the proposed development in that case breached Policy NE6 (Coastline National Park) requiring the Minister to justify his decision under Article 19(3) of the Planning Law "quite readily" permits a decision that is inconsistent with the Island Plan taken as a whole, or any particular Policy.  That formulation it held diluted the requirement of "sufficient justification" and the need to consider the precise requirements of the Island Plan.  It was also argued that "absence of harm" was a sufficient justification to depart from the Policy.  Quoting from paragraph 60:-

".....we do not accept that in Jersey, whatever the position in England, the mere absence of harm to the underlying objectives of a policy can, without more, justify departure - or satisfy the requirements of Article 19(3) of the Planning Law."

35.      The Court of Appeal went on to say at paragraph 61:-

"It follows, in our view, that Article 19(3), when applied to the terms of Policy NE6, means that there can only lawfully be "sufficient justification" where there are other material considerations such as to outweigh the strong presumption identified in the policy.  When "sufficient justification" exists will be a question of fact and degree.  Advocate Santos-Costa referred the Court to examples from cases of procedural unfairness (such as departmental delay during which policies changed to the disadvantage of the applicant) considered to be capable of falling within "sufficient justification" - see JK Limited v Minister for Planning and Environment [2002] JRC 090, Alpine Contractors Limited v Minister for Planning and Environment [2010] JRC 105A, Webb & others v Minister for Planning and Environment [2002] JRC 107, and Dixon v Minister for Planning and Environment [2002] JRC 237A.  In Wakeham v Minister for Planning and Environment [2012] JRC 106B, at paras 40-43, the Royal Court held that a planning gain could, and in that case did, provide not only a legitimate and material consideration but also a sufficient justification for departing from plan policies.  These are merely examples from decided cases, and do not, indeed cannot, lay down the only circumstances, or a definitive test, for when the Minister could reasonably conclude that there is sufficient justification for a departure from Policy NE6.  Personal circumstances, fairness or unfairness, cannot be the only circumstances, and in any event personal circumstances may be overridden by the wider public interest in the policy being maintained.  However, as Advocate Santos Costa contends, we acknowledge that these examples are all based on circumstances where there was some positive, and substantive reason - outside the terms of the policy - for departing from it."

36.      In summary, and in the context of the case before us, Article 19(3) of the Planning Law when applied to the terms of Policy NE7, means that there can only lawfully be "sufficient justification" where there are other positive and substantive reasons outside the terms of the policy, such as to outweigh the high level of protection against extensions of a domestic curtilage into the countryside identified in the policy.  Whether "sufficient justification" exists will be a question of fact and degree. 

Test on appeal

37.      Article 109 of the Planning Law provides that an appeal may only be made in the Royal Court "on the grounds that the action taken by or on behalf of the Minister was unreasonable having regard to all the circumstances of the case."

38.      The Court must reach its own decision as to whether it considers that the decision was reasonable.  Bailhache, Bailiff, in Token Limited v Planning and Environment Committee [2001] JLR 698 at page 702/3 said this:-

"The Solicitor General submitted that the decision in Fairview Farm did not entitle the court to find that the Committee's decision was reasonable but quash it because the court had reached an equally reasonable but different decision.  We agree.  The court might think that a Committee's decision is mistaken, but that does not of itself entitle the court to substitute its own decision.  The court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene.  There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken.  To put it another way, there is a margin of appreciation before a decision which the court thinks to be mistaken becomes so wrong that it is, in the view of the court, unreasonable."

39.      The test is "unreasonableness" but not "whether any reasonable body could have reached the decision."  The Court of Appeal in Hobson elaborated on the application of reasonableness in this way 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 will 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 bonds 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 fucused 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."

40.      Of particular relevance to this appeal the Court of Appeal went on to say this at paragraph 80:-

"80     The application of the "reasonableness" test is perhaps slightly more straightforward here where the terms of the policy are so clear, and the Law sets the standard for granting planning permission that is inconsistent with the requirements of the policy - "the Minister is satisfied that there is sufficient justification".  Article 109 does not focus on the reasonableness of the Minister's satisfaction, but on the reasonableness of "the action taken by or on behalf of the Minister".  It follows that if the Royal Court, forming its own view of the merits, concludes that there is no "sufficient justification" for departing from the requirements of the policy, it would be difficult for the court to conclude that the Minister's contrary view was reasonable."

Submissions

41.      The grounds of appeal were as follows:-

(i)       The decision to approve the change of use is contrary to the clear presumption against approval for extensions to domestic curtilage within Policy NE7, the loss of agricultural land within Policy ERE1 and the terms of Policy GD1)(2)(c) and the respondent has failed to demonstrate the "sufficient justification" required by Article 19(3) of the Planning Law to depart from these policies. 

(ii)      The decision of the Minister follows a series of failings by the Planning Department in terms of proper regulatory procedures and outcomes and is unreasonable in that it effectively rewards persons for breaching planning controls, therefore contrary to public interest and good governance. 

(iii)     The condition on the permit which allows storage up to 4 metres in height would unreasonably impact the amenity of the appellant's property contrary to Policy GD1(3). 

(iv)     The applicant already has adequate domestic curtilage for Mandorey House to store goods and equipment, including having the benefit of an existing storage shed to store goods and equipment. 

42.      Advocate Clarke submitted that this decision was a "whitewash" which enabled the Panel to close up all the anomalies of the past and the mistakes that had been made by the Planning Department in one fell swoop.  The ambiguous storage conditions became otiose and the area of hard standing and the extended garden validated.  The Court, in its judgment of 26^th April, 2012, had upheld the decision to refuse change of use for the area of hard standing.  Nothing had changed since and yet the Panel was now granting consent to a change of use of a much larger area - how could that be reasonable?  The only thing that had happened in the meantime was the publication of the very critical findings of the Complaints Board in relation to the issuing of the enforcement notice on 3^rd June, 2010, findings upon which the respondent had been given no opportunity to comment. 

43.      The application was "unique" because of the failings of the Planning Department but clearing up past mistakes was no justification in planning terms for the decision. 

44.      The Panel had endorsed the Planning Department's report but made no apparent reference to the more detailed memorandum from the Land Controls and Planning Officer.  The Planning Department's report had made reference to the area of hard standing not being widely open to public view but Advocate Clarke submitted that visibility by the public cannot be a valid consideration as it would constitute a charter for any kind of development into the countryside which was away from the public eye, driving a coach and horses through the policy.  In any event there was now a public pathway between the properties of the applicant and the appellant so the area would be very much in the public eye. 

45.      The appellant accepts that nothing can now be done to restore these areas but she is concerned about the "chipping away" of this agricultural land that has taken place and may in the future take place from what will now be consolidated as being part of the domestic curtilage of the applicant's property.  

46.      Advocate Mills, for the Minister, referred to paragraph 2.121 of the preamble to Policy NE7 and the key test which is "the capacity of the site and its context to accommodate development without serious harm to landscape character."  That is the starting point for the consideration of development proposals.  As per preamble 2.133, the reason for the strongest presumption against extension of domestic curtilage is that such extension can result in incremental loss and erosion of the landscape character to domestication in the countryside. 

47.      The planning history is a significant material consideration in this case.  The Royal Court, in its judgment of 2^nd February, 2011, stated that it would be unreasonable to require the removal of the area of hard standing and that whilst the area could still be used for agricultural purposes, such as the parking of tractors or machinery, it did not seem very likely that such would be an appropriate way forward.  The Court concluded that whilst all relevant planning considerations have to be carefully considered, for these and no doubt other reasons it may well be that an application for a change of use of this area of hard standing might well be reasonable.  An application would give the opportunity for public consultation and if the application were approved, the imposition of appropriate conditions.  The Complaints Board had similarly suggested the submission of an application for the change of use of this area. 

48.      To the south of the area of hard standing was an area of garden already in domestic use which was not within the authorised curtilage.  It had, however, been there for over eight years and was immune from enforcement action. 

49.      Advocate Mills submitted that the planning history, including the appellate history for the appeal site and the findings of the Complaints Board, is a very significant material consideration.  That is why the case is described as "unique" in the Planning Department's report, because the planning and appeal history is unique.  As a result of the history of the site, the hard surfaced area exists which can be used for agricultural purposes.  It is immediately adjacent to an existing authorised hard standing and a large commercial shed.  To the north and south are residential properties and to the north-east is a commercial site.  It is not widely visible.  The change of use of the area of hard standing, the unauthorised garden and the area between the two would not result in serious or material harm to the landscape, the character of the area or the amenities of adjacent properties. 

50.      In respect of Policy ERE1, this provided for exemption against the permanent loss of "good agricultural land".  This area of hard standing and the unauthorised garden had not been farmed for over forty years.  Notwithstanding the objections of Land Control, the land was not part of a viable holding and its agricultural potential was minimal. 

51.      In terms of the condition restricting the height of storage, the Panel had considered the applicant's argument that an agricultural use of the hard standing would have no limit on heights, the nature of the storage or the use thereof.  The Panel have therefore taken the opportunity to restrict the height suggested by the applicant and considered a maximum height of 4 metres to be reasonable.  That is an exercise in planning judgement as the Panel would have been uncomfortable with a condition that allowed a greater or indeed no maximum height.  It should also be noted that the appeal site sits at a slightly lower level than the appellant's property and is separated by a substantial fence. 

52.      As to the two small buildings for which approval was given, these were modest outbuildings which were proportionate to other buildings on the site, well sited and appropriately designed and which do not seriously harm the landscape character.  There was no requirement for an applicant to justify a need for such buildings or to demonstrate a lack of other storage opportunities.  One replaces an existing small domestic shed and the other enables equipment presently stored outside to be kept outside. 

53.      In summary, Advocate Mills said this was a unique case.  The decision to authorise the existing unauthorised uses and to allow the construction of one small replacement shed and another in part to accommodate existing equipment which was currently stored outside and equipment to maintain the applicant's adjacent fields was carefully considered and reasonable.  The Minister (and by delegation the Panel) is the person charged by the States with the responsibility of administration of the Planning Law.  The underlying principle is that the Planning Law exists to constrain the activities of property owners where they are not in the best interests of the community.  A careful balance therefore had to be struck between the private interest and the public interest.  The Panel had made and carried out that careful balancing exercise.  

Our decision

54.      Guided by the decision of the Court of Appeal in Hobson, we have to form our own view as to the merits and to decide whether there is sufficient justification for the Panel departing from the requirements and essence of Policy NE7, which is the key policy here, and which creates the "strongest presumption against extensions of domestic curtilages" because it "can result in incremental loss and erosion of landscape character to domestication in the countryside."  Were there "positive and substantive reasons outside the terms of the policy" such as to outweigh the high level of protection against such protections?

55.      In our view, there were no such reasons.  There have already been two incremental extensions into this agricultural field.  The first is by the creation of this area of hard standing and the second is by the applicant's unauthorised extension of his garden.  It is true that in so far as the hard standing is concerned, the applicant has done nothing wrong in that he was given informal/oral permission to create it.  However, the appellant, as a stakeholder in the planning process, was consulted in respect of neither.  The importance of involving stakeholders in the planning process was emphasised in the case of McCarthy v Planning and Environment Minister [2007] JLR 167, where Bailhache, Bailiff said this at paragraph 41-

"41     The 2002 Law also imposes upon the Minister a wide duty of consultation with interested bodies and persons.  An amendment to the 2002 Law recently adopted by the States will provide for appeals against the Minister's decision by third parties in certain circumstances.   All this serves to emphasize that, in a crowded Island, it is now recognized that there are a number of stakeholders in the planning process.  Unless there had been due process and the Minister has reached a considered decision, he should not be held to indications by officials or other informal promises or hints that planning permission will be granted.  Once land has been developed, its natural state has almost invariably been lost to the community for ever.  None of this means that the Minister and his Department can conduct themselves carelessly with impunity.  If even an outline planning permission is revoked or modified, the Minister will be liable to pay compensation."

56.      We recognised that the Minister is now unable to have these informally authorised and unauthorised extensions into the field removed, but they at least remain subject to agricultural use with the protection that goes with that.  To admit a change of use would be to reward the unauthorised extension but more importantly, it will consolidate and legitimatise the domestication of this area of land.  

57.      There are two failures on the part of the Planning Department which we would highlight, namely permitting the creation of this area of hard standing without due process thus depriving the appellant, as a stakeholder in the planning process, of any input and secondly, not taking any steps to require the applicant to restore the garden extension for over eight years and this in respect of a site which has been the subject of numerous applications and no doubt visits by officers of the Planning Department. 

58.      We think there is much in Advocate Clarke's description of the decision as a "whitewash" enabling the Panel to close up the mistakes and anomalies of the past and perhaps to meet the criticisms of the complaints board, criticisms made again without any input from the appellant, who was denied an audience. 

59.      Whether or not such a description is fair we see nothing positive in the decision taken by the Panel.  The domestication of an agricultural field becomes permanent which is surely precisely the form of incremental erosion of agricultural land that the policy is designed to prevent. 

60.      By squaring off the application site, the applicant will also have succeeded in bringing into his domestic curtilage an area of land over which there has been no encroachment at all.  There could be no justification at all for the loss of this area. 

61.      Whilst the planning history of the property may be unique in the sense of the mistakes that have been made by the Planning Department, we fail to see how consolidating the gains made by the applicant in the teeth of this very clear policy can be described as a positive and substantive reason for departing from that policy. 

62.      The Court of Appeal in Hobson made reference to fairness or the lack of it being a circumstance which might justify departure from the Island Plan.  Clearly the complaints board felt strongly that the applicant had been treated unfairly, but that was is in relation to the way the Planning Department had handled the enforcement notice.  As we have said, those criticisms were made without the benefit of any input from the appellant.  But if the applicant has been treated unfairly in that respect, then the appellant has also been treated unfairly in our view, in being deprived as a stakeholder in the planning process of any input into these extensions. 

63.      As the Court of Appeal in Hobson said at paragraph 80:-

"If forming our own judgment we conclude that there is no sufficient justification for departing from the requirements of this policy, it would be difficult for us to conclude that the Panel's contrary view was reasonable and that is our position."

64.      There was no sufficient justification for departing from the requirements of the policy and the decision of the Panel to do so was unreasonable.  Accordingly, pursuant to Article 114(8) of the Planning Law, we order the Minister to cancel this decision, save to the extent that it relates to the extension of a length of fence at Field 1007 to which no objection has been taken. 

 

Authorities

Planning and Building (Jersey) Law 2002.

Agricultural Land (Control of Sales and Leases)(Jersey) Law 1974.

Manning-v-Minister for Planning [2010] JRC 186.

Manning-v-Minister for Planning and Environment [2011] JRC 029.

Jersey Island Plan 2011.

Manning-v-Minister for Planning [2012] JRC 86A.

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

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

Token Limited v Planning and Environment Committee [2001] JLR 698.

McCarthy v Planning and Environment Minister [2007] JLR 167.