Jersey Unreported Judgments

Inferior Number Sentencing - reasons relating to sentencing.

[2016]JRC177

Royal Court

(Samedi)

3 October 2016

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Nicolle and Ronge

The Attorney General

-v-

Ivor Eldon Barette

M. R. Maletroit, Esq., Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE commissioner:

1.        On 23^rd September, 2016, the Court imposed a fine of £50,000 and costs of £2,000 upon the defendant for two offences under the Planning and Building (Jersey) Law 2002 ("the Planning Law").  We now set out our reasons. 

2.        The defendant, who is a retired farmer, owns a farmhouse known as "Broughton Lodge Farm" in the Parish of St Mary ("the Farm") which has been in his family for three generations.  It consists of an 18th century farmhouse and a courtyard of early 19th century outbuildings.  Jersey Heritage prepared a report in relation to the Farm in June 2009, which described the historical and architectural interest of the property and included photographs of the interior and exterior.  The special features listed included the architectural design, the craftsmanship and use of materials, the survival of historic features and the internal layout. 

3.        The Farm was listed as a site of special interest in December, 2009.  The defendant was notified of this by letter from the Planning and Environment Department dated 16^th December, 2009.  A further letter relating to the listing of the Farm was sent to the defendant on 25^th January, 2010.  It was explained in these letters that any operation or activity which would likely affect the special interest of the site would be unlawful without permission being granted. 

4.        Part 6 of the Planning Law makes provision for the additional planning controls that apply in the case of sites of special interest.  Article 54 of the Planning Law applies to any operation on a site of special interest which, while not amounting to development, adversely affects the special interest of the site.  A person who undertakes such an operation without permission is guilty of an offence and liable to a fine. 

5.        Part 5 of the Planning Law makes provision for the enforcement of development controls, including the service of an enforcement notice.  An enforcement notice may be served on the owner of the land, pursuant to Article 40, where there has been a breach of development controls.  Article 44 of the Planning Law provides that the owner shall be guilty of an offence and liable to a fine if he fails to take a step within the period specified in the enforcement notice. 

6.        Numerous planning and building applications have been submitted by the defendant in relation to the Farm since 2011:-

(i)        The defendant was granted planning permission in 2011 to demolish an extension to the rear (north elevation) of the Farm, to construct a new two storey extension, to remove the existing slates of the roof of the farmhouse and repair and re-slate the roof using existing materials.  Following the submission of revised plans, permission was subsequently granted to re-position and to clad the extension. 

(ii)       In 2012, the defendant applied for planning permission to replace the historic windows of the farmhouse and to undertake internal alterations.  Permission was refused.  Photographs of the historic windows were taken at the time this application was being considered.  The reasons for refusing permission were explained as follows:-

"1.       The proposed replacement windows would by virtue of their details detract from the intrinsic architectural quality and historic value of this building which is included on the Minister for Planning and Environment's 'Register of Buildings and Sites of Architectural and Historical Importance in Jersey' and a 'Listed Building', contrary to Policy HE2 of the 2011 Island Plan.

2.        Insufficient information has been submitted to demonstrate that the proposed internal works would not be harmful to the special interest of this building which is included on the Minister for Planning and Environment's 'Register of Buildings and Sites of Architectural and Historical Importance in Jersey' and a 'Listed Building', contrary to Policy HE2 of the 2011 Island Plan."

(iii)      The defendant applied for building permission in 2013 to construct a two storey extension and to refurbish the existing walls, roofs and floors of the Farm.  Building permission was granted, but the decision notice contained the following at the top of the Building Permit:-

"Important Notice

This is a Building Permit issued in respect of Article 35 of the Planning and Building (Jersey) Law 2002.  The works stated below may also require Planning consent under Article 9, for which a separate application will need to be made.  If you are in any doubt as to whether planning permission is required please telephone the Planning Applications Team on 448428 who will be happy to help."

7.        On 24^th July, 2013, the Building Control Department was notified that building work had commenced at the Farm, pursuant to this building permit.  No planning permission had been granted for works within the Farm and the Planning Department were unaware that any such works were taking place. 

8.        On 19^th October, 2015, a structural engineer's report was received relating to works undertaken at the Farm, pursuant to the building permit.  The report came to the attention of a senior planning officer who established that no planning permission had been granted for works undertaken within the Farm. 

9.        Planning officers attended at the Farm on 21^st October, 2015, for the purposes of an inspection.  During the inspection, it was established that the entire innards of the Farm had been removed, including floorboards, wall plaster, architraves, skirtings, covings, ceilings, fireplaces, doors and all internal walls.  The historic staircase had been retained.  A new floor had been installed on the first floor.  New stud-frames had been erected within the Farm and frames added to the gables. 

10.      All of the historic sliding sash windows had been removed from the farmhouse and were stacked in the front garden, unprotected from the elements.  Render had been removed from the window surrounds and the openings were covered with blue plastic sheets.  Historic floorboards had been removed from the farmhouse and stacked in the front garden, unprotected from the elements. 

11.      An enforcement notice was served on the defendant on 29^th October, 2015, effectively requiring the defendant to reinstate the Farm.  The defendant did not comply with the steps required by the enforcement notice. 

12.      On 13^th November, 2015, planning officers attended at the Farm following a report that the historic windows of the farmhouse were being burnt on a large bonfire.  The windows could not be located.  However, there was a large pile of ash in the garden, which appeared to contain a sash window pulley of the type that was formerly in place within the property.  It was suspected that the historic windows were destroyed in a bonfire. 

13.      In December 2015, the defendant submitted an application for retrospective planning permission for the works undertaken on the Farm which was refused.  On 2^nd August, 2016, the defendant submitted a further application for retrospective planning permission for the works undertaken on the Farm, which application has yet to be determined. 

14.      It was noted during inspection on 20^th April, 2016, that the historic staircase had been removed. 

15.      The Planning Department wrote to the defendant on 6^th November, 2015, and on 14^th April, 2016, inviting him to attend an interview.  No response was received. 

16.      There are no sentencing guidelines as to the appropriate level of fine for cases of this nature. 

17.      In AG v Gindill and Gindill [2003] JRC 056, the defendants owned a property and an adjoining field.  They applied unsuccessfully to construct an alternative driveway over the field.  Their applications came to nothing.  They then constructed an alternative driveway without planning permission.  The Court considered this to be a 'blatant breach' of the Planning Law and commented:-

"It is difficult for us to accept that the Defendants were unaware that planning permission was required having regard to the history of a failed application not many years before.  Our judgment is that the Defendants became frustrated with the positions in which they found themselves, and decided that they would have their own way".

18.      The Crown moved for a £3,000 fine.  The Court considered that the conclusions were too low and imposed a £5,000 fine, with prosecution costs up to £1,000. 

19.      In AG v Monamy [2013] JRC 253, the defendant purchased a property and submitted a planning application to construct a two-storey extension.  Before having been granted planning or building permission, the defendant carried out unauthorised work including demolition of an external gable wall, stripping out, construction of new timber partitions and the replacement of the ground floor.  Planning permission was initially refused and the defendant was required to stop work.  Retrospective consent was later granted subject to certain modifications.  The Court fined the defendant £2,500 for the offence of development without planning permission and £2,500 for the offence of building works without planning permission.  The Court also ordered the defendant to pay £1,500 towards the prosecution's costs.  The Court commented:-

"This is important legislation and at the end of the day there is no excuse for the defendant not having complied with it by either taking advice or indeed making direct enquiries of the Planning Department."

20.      The most relevant local case is AG v Janvrin Holdings Ltd [2001] 161A in which the defendant company demolished a property that the Planning and Environment Committee were considering placing on the register of buildings of architectural and historical importance.  The demolition was calculated to avoid the property being listed and the result was to deprive the community of a building of some historical interest; the gravamen of the offences with which we are concerned.  The Court described this as a deliberate and cynical act of destruction.  The Crown sought a fine of £225,000 which was approximately one half of the sum paid for the property by the defendant company.  The Court imposed a fine of £150,000, together with 50% of the prosecution costs up to a maximum of £15,000.  The Court took a pragmatic approach to the likelihood of a profit being made by the defendant company in that case.  Quoting from paragraph 7 of the judgment:-

"We take a pragmatic approach.  The fact of the matter is that the defendant company through its principal, Mr Sheppard, purchased Janvrin's Farm for £500,000 in the knowledge that it was in the Green Zone and that re-development would involve intensive discussions with the Planning authority.  Notwithstanding that background, the defendant company, the principal of which is an experienced property developer, took the decision to demolish the property.  We do not believe that this would have happened if the defendant company had not anticipated an ability to make a reasonable profit."

21.      We have taken the Historical UK Inflation Calculator to give us some indication of the approximate present day equivalent of that fine, which is £228,000.  The conviction was subsequently overturned on appeal.  

22.      Advocate Gollop, for the defendant, drew our attention to the recent case of AG v Bedding [2015] JRC 220 where the Court imposed a fine of £4,000 (reduced from the £7,000 sought by the Crown) and costs of £1,500 for the carrying out of quite extensive works without building permission.  The work was properly carried out and retrospective consent given.  The Court said this at paragraph 4:-

"The gravamen of the offence of doing building work without obtaining Bye-Law approval is that the law is there to protect people; it is there for their safety and it is therefore an important piece of legislation and people who break the Law by carrying out that work without getting the appropriate Bye-Law permissions can expect to be fined a substantial amount of money, even if they do the work properly and even if they have in fact put in the building application albeit it is late.  Of course the fines will go up considerably if the work is not done properly or if there is some other feature which makes their culpability more serious or more intense."

23.      Useful guidance on the approach that the Court should take in considering cases involving alterations to listed buildings can be found in the English Court of Appeal decision of R v Duckworth [1995] 16 Cr. App. R .(S.) 529.  In that case, the defendant had been found guilty of the demolition of the ground floor walls of an Elizabethan listed building which had already been badly damaged by fire.  Hobhouse LJ, giving the judgment of the Court, said the relevant factors to the sentence must include the following:-

"First, the degree of damage that has been done to the historic structure.  The purpose of this legislation is the preservation of the historic monuments and other similar structures that are protected by the legislation.  The offence is an offence of damaging or altering those structures without the appropriate consent or permission.  Therefore, the first factor in considering the seriousness of the offence is to consider the degree of damage that has been done.

A second factor is the degree of financial gain that the defendant has attempted to achieve.  In nearly all cases financial gain will have been the motive of the defendant.  If he disregards the provisions of the Act, it will almost certainly have been with a view to saving himself money or to the gaining of profit for himself.  Where a financial penalty is being imposed on the defendant, it must take into account the financial advantage which the defendant was attempting to achieve, otherwise the deterrent and punitive effect of the sentence may be lost.

Thirdly, and in many respects most importantly, is the degree of culpability of the defendant.  These offences can be committed in a number of circumstances.  They were sometimes described as offences of strict liability whether or not that term is wholly accurate.  But the offence may be committed through a lack of care on the part of the defendant or indeed through ignorance of his proper responsibilities in the relevant matter.  On the other hand, it may be a case where the defendant has acted wilfully, in disregard of the need to obtain consent, or he has even acted wilfully, with an intent to damage or destroy an historic structure."

24.      The English Court of Appeal found a fine of £15,000 and costs of £10,000 imposed by the sentencing court appropriate, although the fine was reduced because of the financial difficulties of the defendant.  Again using the Historical UK Inflation Calculator, that total penalty of £25,000 would roughly equate today to £45,000.   

25.      We take each of those factors in turn:-

Degree of damage

26.      The historic environment of the Island is a finite resource and an irreplaceable asset.  The works carried out in this case represent a grave breach of planning controls and have resulted in the loss of a significant amount of historic fabric and diminished the special interest of the Farm.  Most of the special features of the Farm mentioned in the 2009 Jersey Heritage report have been removed and destroyed. 

27.      Conducting such works without planning permission has denied the Planning Department from making a full and considered assessment of the proposals.  It has also denied members of the public and interest groups being engaged in the planning process.  In addition to the physical harm, the manner in which these works were undertaken has also denied any official study or recording of the features lost. 

28.      We considered that the works carried out have resulted in a high degree of irreversible harm. 

Financial benefit

29.      The second factor in Duckworth is consistent with Article 54(3) of the Planning Law and provides that the Court, in considering the amount of any fine to be imposed on a person convicted of an offence under that article, shall have regard to any financial benefit which has accrued or appears likely to accrue in consequence of that offence. 

30.      As it currently stands, all works inside the farmhouse have ceased and the project has been left unfinished.  It is not thought that the defendant has accrued any financial benefit from the works undertaken thus far.  However, if and when the refurbishment works are completed (subject to relevant permissions), we think it likely that the property will increase in value.  We regard it as self-evident that carrying out refurbishment works to a listed building will be costlier than would otherwise be the case. 

31.      Although it is not possible to quantify the likely financial benefit at this time, we took into account, as an aggravating feature of the offence, the likely future financial benefit in determining the appropriate sentence. 

Culpability of the defendant

32.      The defendant knew that planning permission was required for the stripping out works and the removal of windows from the Farm.  The defendant had been informed by letter that the property had been listed, and it was explained in those letters that any operation or activity which would likely affect the special interest of the site would be unlawful without permission.  Moreover, in 2012 the defendant applied for planning permission for the removal of the windows and for internal alterations to the farmhouse, and permission was refused.  

33.      Although the defendant obtained building permission for some of the works carried out in the Farm, the building permit contained an express warning that planning permission may also be required. 

34.      The defendant's conduct is further aggravated by the apparent destruction of historic features following the first inspection on 21^st October, 2015, and while the investigation into the planning offences was ongoing.  The historic staircase was removed from the Farm during this period, although Advocate Gollop informed us that it had been stored and would be re-instated.  It also appears that the historic farmhouse windows were destroyed in a bonfire following service of the enforcement notice which required the reinstatement of those windows. 

35.      We consider that the defendant's conduct was deliberate and demonstrates wilful disregard to the advice and warnings issued by the Planning Department. 

36.      The defendant has a previous conviction in 2006 for failing to comply with an enforcement notice served under the Planning Law.  That case concerned unauthorised storage and the general condition of land adjoining the Farm.  The defendant was bound over for 12 months and ordered to comply with an agreement made with the Planning Department within two months. 

37.      Allowing credit for a plea of guilty, the Crown sought a fine of £25,000 for the offence under Article 54 of the Planning Law and no separate penalty for the offence under Article 44 of the Planning Law, namely the failure to comply with the enforcement notice.  No penalty was sought in respect of the enforcement notice, because it was accepted by the Crown that in practice it was too late for the defendant to comply with it.  The Crown also sought costs in the sum of £2,000. 

38.      In terms of mitigation, whilst not cooperating with the Planning Department, the defendant had pleaded guilty, although in the view of the Court, he had no alternative in the light of the evidence on the ground.  Advocate Gollop explained that the relationship between the defendant and the Planning Department had been difficult over some years, to the point that the defendant felt victimised by the officers of the Planning Department.  In particular, he was aggrieved at the refusal to allow double glazing in the windows of the Farm, when there was evidence of the Planning Department allowing double glazing in similar properties. 

39.      This was the defendant's home and he had no intention to sell it.  He was not, therefore, a developer out for financial gain.  He simply wanted to modernise the Farm.  The windows, he said, were not original and were largely rotten in any event.  We considered that any deterioration in the windows would have been as a result of a failure on the part of the defendant to maintain the same over the period of his ownership.  

40.      The defendant filed two affidavits in respect of his means.  That showed that he owned four properties from which he derived a rental income of some £44,000 per annum in addition to his pension; one of those properties was currently occupied by him (the farm being unoccupied).  Advocate Gollop informed us that the defendant, who is not a valuer, estimated his properties were worth some £2M.  He had recently taken out a loan and had cash reserves of some £93,000.  Advocate Gollop submitted, therefore, that he could meet any fine imposed by the Court, although he submitted that the fine sought by the Crown was excessive. 

41.      Advocate Gollop informed the Court that the defendant accepted his culpability and he offered the Court the defendant's sincere apology. 

42.      We took into account all of the mitigation put forward by Advocate Gollop, but in the view of the Court, there was no area where the defendant could be given much credit, apart from the guilty plea, which as we have said was inevitable. 

43.      The gravamen of this offence (unlike that in AG v Bedding) is the permanent loss of part of the historic environment of the Island.  This was done wilfully, so that the degree of culpability is necessarily high.  The fine sought by the Crown was not based upon any guideline authority and did not, in our view, adequately reflect the seriousness of the case. The defendant's conduct warranted the imposition of a more substantial fine, namely £50,000, to mark the gravity of the offence and deter others from wilfully destroying the Island's finite historic assets. 

Authorities

Planning and Building (Jersey) Law 2002.

AG v Gindill and Gindill [2003] JRC 056.

AG v Monamy [2013] JRC 253.

AG v Janvrin Holdings Ltd 2001/161A.

AG v Bedding [2015] JRC 220.

R v Duckworth [1995] 16 Cr. App. R .(S.) 529.