Jersey Unreported Judgments

Judicial Review - reasons.

[2021]JRC173

Royal Court

(Samedi)

15 June 2021

Before     :

Sir Michael Birt, Commissioner, sitting alone.

 

Advocate H. Sharp QC for the Applicant

Advocate C. B. Austin for the Respondent

Advocate P. G. Nicholls for the Intervenor.

judgment

the commissioner:

1.        The Applicant has been given leave to seek judicial review of certain decisions of the Connétable of St Brelade taken in respect of the car park near La Pulente slipway (the "the Car Park") and the Applicant's ability to carry on his business of providing food and drink from a kiosk situated either on the Car Park or on the adjoining parish road leading to the slipway which gives on to the beach ("the slip road"). 

2.        On 15^th April, I sat to hear an application by the Applicant for certain mandatory interim relief.  Following the hearing, I refused to grant the requested interim relief on 19^th April.  What follows constitutes my reasons for that decision.  The application raised issues as to the necessary connection between the interim relief sought and the substantive decision being challenged as well as the requirements for interim mandatory relief. 

General background

3.        I have been provided with affidavits from the Applicant and the Connétable and one affidavit from Stephanie Steedman of KE Planning Limited on behalf of the Intervenor.  I also heard oral evidence from Mr Frank Laine, the owner of the Intervenor.  The affidavits exhibited a large number of documents such as contemporary emails and I was referred to a number of them during the course of submissions.  I have considered each of the documents to which I was specifically referred, but what follows is a fairly high level summary of the background and refers only to those documents which I consider essential for the narrative. 

4.        The Intervenor is the owner of a site referred to as the Public Toilets, La Pulente ("the Site").  The Site consists of a fairly small area of land or dunes lying between the Car Park (to the east) and the beach (to the west) and includes a building consisting of public toilets ("the Building").  The Car Park in turn lies to the west of the slip road which leads from the main road, La Route de la Pulente to the slipway which in turn leads to the beach. 

5.        The Intervenor acquired the Site from the Public of the Island by contract passed before the Royal Court on 18^th July 2014.  It was anticipated at the time that the Intervenor would seek planning permission to extend and convert the Building into a café or restaurant as that is specifically referred to in the contract.  The States were clearly concerned to ensure that public toilets continued to be provided because Clause 1 of the contract states that if the Intervenor did not receive planning permission to convert the Building into a café or restaurant, the Building could only be used for the provision of public toilet facilities as at present.  Clause 2 provided that if the Intervenor did receive such planning permission, it would nevertheless be obliged to provide alternative public toilet facilities in the Building or within any extension to the Building. 

6.        Clause 3 of the contract provided that the Public could continue to make use of the pump room, which forms part of the Building, in order to house switch gear for the pumping station which is situated on land retained by the Public and lying immediately to the north-east of the Site.  That pumping station apparently pumps sewerage from adjoining properties back up the hill.  Clause 3 also provided that that right should continue until such time as an alternative pump room for the switch gear was provided by the Intervenor. 

7.        At that time, the Car Park was owned by the Public.  However, by contract passed before the Royal Court on 19^th February 2016, the Public transferred the Car Park to the Parish of St Brelade ("the Parish").

8.        On 28^th January 2016, the Intervenor was granted planning permission for the alteration and extension of the Building to create a new café.  The permission acknowledged that the Site was situated in the Coastal National Park, which required a high level of protection from development, but the relevant planning policy allows for new tourism development in the Coastal National Park as an exception to the presumption against development and the Planning Applications Committee considered that the application was justified on this ground.  The permission contained a condition that development should commence within five years, i.e. before 28^th January 2021.  It appears from the papers that permission had also been granted in 2007 for conversion of the Building into a café but this had lapsed in 2012 as the permission had not been implemented.  

9.        On 1^st October 2016, the then Connétable of the Parish granted a permit for one year to the Applicant under Article 2(3) of the Road Traffic (Public Parking Places) (Jersey) Order 2006 ("the 2006 Order").  This permit allowed the Applicant to park his mobile kiosk on an agreed part of the Car Park for the purposes of serving food and drink to customers.  The kiosk is known as 'The Hideout'. 

10.      A similar permit ("a Parking Place permit") was granted to the Applicant on 1^st October 2017, this time for three years expiring on 30^th September 2020.  Both permits were granted subject to a condition that the permit would be revoked once the development of the Building was complete.  Thus Clause 3 of the 2017 permit was in the following terms:

"It is understood that once the development of the La Pulente toilets is complete the mobile kiosk and other appurtenances will be required to vacate the car park within 28 days and the permit will be revoked."

11.      The evidence before the Court from the Applicant is that the Hideout is extremely popular and well supported. 

12.      It appears that the Intervenor did little to progress the permitted development of the Site until August 2020 at which point it was acquired by Mr Frank Laine, a person with considerable experience of development.  He has apparently agreed that, once developed, the café will be run by Nude Food, in which he also has an interest. 

13.      The Applicant had been in touch with the Connétable in June 2020 indicating that he would like to renew the permit for the Car Park and that the Connétable had said he was unable to give a response at that stage.  It appears that Mr Laine contacted the Connétable in late August 2020.  He told the Connétable that he had acquired the Intervenor and that he intended to proceed with the development of the Building.  As a result, the Connétable indicated by email of 24^th August to Mr Laine that he was proposing that the permit for the Applicant in respect of the Car Park would cease on its expiry.  Coincidentally, the Applicant had emailed the Connétable on 23^rd August asking for a meeting, as he had met Mr Laine who had asked the Applicant when he would be leaving.  On 28^th August, the Connétable wrote to the Applicant indicating that he was unable to renew the Parking Place permit for the Hideout.  He said that this was necessary in order to enable the development of the Building and that the Parish would be coming to an arrangement with the developer for temporary use of the Car Park whilst this took place and the necessary alterations to the pumping station were made. 

14.      On 9^th September, a number of parishioners led by Senator Pallett issued a requette calling for a Parish Assembly to be held.  The requette proposed that the Connétable be instructed to renew the permit to the Applicant for the Car Park and that if for any reason the Applicant had subsequently to move so as to enable works connected with the development of the Building to take place, a nearby alternative site on parish land be provided for the Applicant.  It was further proposed that the Connétable be instructed not to enter into any lease with a third party for the Car Park or the slipway without prior approval of a Parish Assembly.  The Parish Assembly was fixed for 23^rd September.  A few days earlier, on 20^th September, the Connétable had asked Mr Laine for a timeline of the development.  He also indicated that he proposed to offer the Applicant a place on the slip road but did not intend to grant it for twelve months. 

15.      At the Parish Assembly on 23^rd September, Miss Steedman of KE Planning, the planning consultant to the Intervenor, informed the Assembly that advice had been received that it would not be safe for the Hideout to operate in the Car Park during the development.  There was a discussion about relocating the Hideout from the Car Park to the slip road.  Eventually a vote was taken to the effect that the Hideout be permitted to remain in the Car Park until such time as permission came through for it to move to the proposed position on the slip road. 

16.      The Connétable explains in his affidavit that after the meeting, it came to his attention that the contract whereby the Parish had acquired the Car Park contained a clause that the Car Park should be maintained as an area for the parking of vehicles and that accordingly the previously issued Parking Place permits for the Hideout had been issued in breach of that contract.  On becoming aware of this, he felt that the matter should be put again to a Parish Assembly and this meeting was held on 27^th October 2020.  The motion put to the Assembly was in the following terms:

"To consider, and if thought appropriate, to issue a temporary permit to Mr Karl Sutton to operate a kiosk on an agreed position on the La Pulente slipway approach road under the Customary Law (Choses Publiques) (Jersey) Law 1993 and to agree to a lease to Shell House Limited for the temporary use of the car parking area at the top of La Pulente slip approach road for a compound to enable the development of the toilet block site under the Road Traffic (Public Parking Places) (Jersey) Order 2006."

17.      There was a discussion at the Parish Assembly and Miss Steedman, on behalf of the Applicant, repeated that use of the Car Park was needed by the builders in order to carry out the development.  It would accordingly be closed to the public during the construction period and this was expected to last approximately six months until the end of April 2021.  It was explained that during this time the Hideout kiosk would be relocated to the road leading to the slipway, i.e. the slip road.  The matter was put to the vote and passed by 14 votes in favour with no votes against. 

18.      Prior to the Parish Assembly, the Connétable had written to the Applicant on 6^th October 2020 indicating that he had been informed that the development of the toilet block structure was about to proceed and that the developers planned to erect hoarding on the Car Park, which meant that the location of the Hideout would be compromised.  He therefore wrote to say that the kiosk should be moved to the agreed slip road position.  He said that the Parish would consider issuing a permit (a "Choses Publiques permit") under the Customary Law (Choses Publiques) (Jersey) Law 1993 ("the Choses Publiques Law") until 31^st December 2020.  A new application would be required under the Law for the Applicant to trade there in 2021 and this would expire on 31^st December 2021, or such earlier time as the development of the Building was signed off by the Planning Department and trading began, whichever was the sooner.  It would appear that the Applicant moved his business to the slip road in the course of November 2020 but there does not appear to have been a formal permit under the the Choses Publiques Law.  Permits under the Choses Publiques Law only last from year to year, ending on 31^st December, and accordingly it was necessary for the Connétable to consider a Choses Publiques permit for 2021 in respect of the slip road.  There were various exchanges between the Connétable and the Applicant as to the amount to be charged for such permit but on 23^rd December 2020, the Connétable emailed the Applicant indicating that the permit would only last until 1^st June 2021.  The Applicant immediately responded asking why there should be an end date of 1^st June 2021 when the development had not even started and the understanding had always been that he could trade until the new restaurant was finished.  He saw no prospect of the development being completed in less than a year. 

19.      The Connétable subsequently issued a Choses Publiques permit in respect of the slip road to the Applicant on 30^th December 2020.  The permit was expressed to expire on 1^st June 2021 and was subject to the equivalent condition as in the Parking Place permits namely:

"4(a)  Once the development of the La Pulente toilets is complete and the new café is open for trading or the 1 June 2021 whichever is the sooner then the mobile kiosk and other appurtenances will be required to vacate the slipway / approach road with immediate effect and this permit will be revoked."

20.      On 6^th January 2021, the Connétable emailed Mr Laine to say that Senator Pallett had contacted him regarding inactivity on the Site and asking Mr Laine for a timeline on when the development would progress.  He wrote again on 16^th February 2021 to Mr Laine asking what the timescale was for the completion of the development works.  He does not appear to have had a reply to either inquiry. 

21.      On 11^th January 2021, Advocate Sharp wrote to the Connétable on behalf of the Applicant reciting some of the history and contending that there had been unfairness in the process.  He raised two matters in connection with the Choses Publiques permit issued on 30^th December, namely its fixed termination date of 1^st June and the fee which had been charged.  In relation to the former, he requested that the permit continue until 31^st December 2021 but subject to the condition that the Applicant vacate earlier if the development of the Site was finished and the café opened. 

22.      Advocate Austin replied on behalf of the Connétable on 29^th January.  A reduction in the fee was agreed with the consequence that that matter is no longer in issue.  However, he said that the Parish maintained the reasonableness of inserting the termination date of 1^st June 2021 as that was the completion date for the development which had been notified to the Parish by the Intervenor. 

23.      Following further exchanges, Advocate Sharp wrote to Advocate Austin on 17^th February attaching photographs taken the day before which, he said, indicated that work on the development of the Site had not started.  He pointed out that, given the six months estimate given to the Parish Assembly, this meant that work could not possibly be completed by 1^st June.  He therefore asked for confirmation by return that the Connétable would vary the length of the Choses Publiques permit in respect of the slip road so that it would continue until the development was completed.  No such confirmation having been received, the Applicant issued his application for leave to apply for judicial review and leave was granted by the Bailiff on 25^th February.

24.      Advocate Sharp wrote to Advocate Austin on 26^th February informing him of this fact and that the papers were about to be served.  He repeated the assertion that the Hideout had been removed from the Car Park for no good reason as no building work had been undertaken over the winter months and the promised completion date of the end of April 2021 could not possibly be met.  He therefore formally asked the Connétable to take a decision urgently to rectify the position by (a) opening the Car Park back up to the public forthwith and (b) granting the Applicant a new permit for the Hideout to occupy the Car Park as before with suitable conditions in the event that any development in fact took place. 

25.      When the Applicant received the Connétable's affidavit in these proceedings of 24^th March 2021, he discovered that there was still no written lease of the Car Park to the Intervenor.  In his third affidavit, the Connétable explained that, although a draft lease had been provided to him by the Parish's lawyers on 23^rd October 2020, it was intended that the lease have a report on the condition of the Car Park annexed to it.  This report was commissioned on 30^th November 2020 but was not received until 6^th January 2021.  The draft lease was forwarded to the Intervenor's lawyers on 17^th February and they responded with comments on 9^th March.  By then, the Applicant had obtained leave to bring his judicial review proceedings and accordingly the Connétable took the view that it would not be appropriate to proceed with the lease pending the judicial review hearing.  However, the Intervenor has in practice been in exclusive possession of the Car Park since the hoarding was erected, which I understand to have been in about November 2020. 

The course of these proceedings

26.      The course of the proceedings has been somewhat irregular and I therefore need to summarise what has occurred.

27.      Under the heading of the 'Decision... in respect of which relief is sought', the application for leave to seek judicial review, which was granted by the Bailiff, listed only the decision of the Connétable to issue the Choses Publiques permit in respect of the slip road on 30^th December 2020.  The challenge was to the 'conditions attached to the permit' and analysis of the accompanying 'grounds of the judicial review' showed that the complaint was in relation to the termination of the permit on 1^st June 2021.  This was of course consistent with the various exchanges of correspondence shortly before the issue of the application, which I have referred to above. 

28.      The relief sought in the application was essentially that the Court should grant an order of mandamus directing the Connétable to issue a new Choses Publiques permit in respect of the slip road to end on 31^st December 2021 subject to earlier termination 28 days after the completion of the development of the Site or the opening of the café; alternatively that the decision of the Connétable to issue the Choses Publiques permit be quashed and he be required to take the decision afresh.  

29.      In terms of interim relief, the application requested that a stay be granted at the first directions hearing so as to prevent the Choses Publiques permit from expiring on 1^st June 2021 until the judicial review proceedings were concluded. 

30.      I should add that paragraph 4 of the relief sought included a request that, as part of the relief following the final hearing, the Connétable be ordered to consider cancelling the lease of the Car Park to the Intervenor and relocating the Hideout back to the Car Park on the basis that no building work had taken place over the winter months.  For the reasons mentioned below, I do not consider that this prayer for relief was properly included in the application, which related only to the Choses Publiques permit in respect of the slip road.

31.      When granting leave to the Applicant to seek judicial review of the Connétable's decision of 30^th December 2020, the Bailiff specifically ordered that, within seven days of service on the Connétable, the parties should fix a date for a directions hearing to take place within 28 days of service and at that directions hearing the Court would consider the Applicant's interim request that the current expiry date of the permit of 1^st June 2021 should be stayed pending the outcome of the judicial review proceedings.  That directions hearing was fixed for 1^st April. 

32.      On 29^th March 2021, Advocate Sharp purported to issue a summons - which was not signed by the Judicial Secretary nor was it issued 4 clear days before the hearing - which sought three orders in addition to the interim relief staying the termination date of 1^st June 2021.  They were:

(i)        that the Applicant should have permission to cross-examine the Connétable at the final hearing on the contents of his affidavit, which had been sworn on 24^th March; 

(ii)       that the Applicant be granted leave to amend the notice of application for leave to apply for judicial review and leave to advance the additional grounds for judicial review in the addendum in accordance with the drafts attached to the summons; and 

(iii)      that the Court should grant interim relief by:

(a)       ordering the Connétable to return the Car Park to its normal use and requiring the Intervenor to vacate the Car Park until the final hearing of the application for judicial review; and 

(b)       ordering the Connétable to grant the Applicant a permit to operate the Hideout from the Car Park until the final hearing of the case or until further order. 

The amended notice of application for leave to apply for judicial review simply moved paragraph 4 of the original application to paragraph 1A so as to become a request for interim relief rather than, as previously, an application for an order at the final hearing of the proceedings.

33.      At the hearing on 1^st April, I dealt with various matters of a procedural nature.  Thus the final hearing date was fixed for 22^nd July 2021 and directions were given for preparation in relation to that hearing.  Furthermore, I granted the Applicant permission to cross-examine the Connétable at the final hearing.  It also emerged that the Connétable had agreed to extend the Choses Publiques permit until 31^st August 2021 on the basis that this was the revised anticipated completion date which the Intervenor had advised to him.  As this was after the final hearing date of 22^nd July, the Applicant agreed that he did not need to proceed with the interim relief seeking to extend the expiry date to 31^st December 2021 and this could be dealt with at the final hearing. 

34.      However, I raised with Advocate Sharp an issue which caused me some difficulty in relation to the interim relief which he was now seeking.  The only decision which he was challenging in the judicial review proceedings was the decision of the Connétable to limit the Choses Publiques permit to 1^stJune 2021.  There was no challenge to any other decision of the Connétable.  Yet, as interim relief in relation to that application, the Applicant was now seeking a mandatory order that the Connétable take two completely different decisions, namely:

(i)        that he should cancel any lease of the Car Park to the Intervenor and

(ii)       that he should grant a permit under the 2006 Order to the Applicant in respect of the Car Park.

35.      I did not see how interim relief of this nature could be granted in judicial review proceedings which were challenging only the decision of the Connétable in relation to the Choses Publiques permit concerning the slip road.  There was at this stage no application to judicially review the Connétable's decision to grant a lease of the Car Park to the Intervenor or his decision not to renew the Parking Place permit for the Applicant in relation to the Car Park.  So how could I make an order directing the Connétable to grant a Parking Place permit in relation to the Car Park when there was no challenge to the decision of the Connétable not to renew the Parking Place permit but instead to grant a Choses Publiques permit for the slip road?  It is of course the case that two completely different pieces of legislation are involved.  The 2006 Order governs the use of car parks whereas it is the Choses Publiques Law which governs the use of parish roads. 

36.      I therefore adjourned the application for interim relief to 15th April and directed that the Applicant should file proposed amended grounds for his application for judicial review and that supplemental skeletons and affidavit evidence also be filed. I said that I would consider his application to amend on 15^th April. 

37.      Pursuant to that order, the Applicant filed an amended notice for application for leave to apply for judicial review.  This now sought to challenge six decisions of the Connétable (rather than just one), including the decision of 30^th December 2020 which had originally been challenged.  The six decisions were:

Decision 1:

The decision of the Connétable taken on receipt of the Applicant's letter of 26^th February 2021 whereby the Connétable refused to re-open the Car Park to the public and to grant the Applicant a new permit under the 2006 Order so that the Hideout could operate from the Car Park.  Although that refusal had not been directly communicated to the Applicant, it was self-evident, it was submitted, from the Connétable's conduct in the legal proceedings since then that he had refused the request made in the letter of 26^th February. 

Decision 2:

Further and alternatively the decision of the Connétable on receipt of the Applicant's letter of 26^th February whereby he failed/refused to reconsider (a) his previous decision of 28^th August 2020 when he first refused to grant the Applicant a new permit under the 2006 Order in respect of the Car Park and/or (b) the Parish Assembly decision of 27^th October (together "the previous decisions").  It was said that a fresh decision ought to have been taken on receipt of the 26^th February 2021 letter given the material change of circumstances.

Decision 3

The decision of the Connétable on or around 30^th December 2020 when he failed/refused to reconsider the previous decisions.  A fresh decision ought to have been taken at this time given the material change of circumstances. 

Decision 4

The decision of the Connétable to proceed with the 27^th October 2020 Parish Assembly and to seek decisions from the Parish Assembly that the Intervenor be permitted to occupy the Car Park by lease and that the Hideout be moved to the slip road. 

Decision 5

The 28^th August 2020 decision not to grant the Applicant a new Parking Place permit for the Car Park. 

Decision 6

The decision originally challenged, namely the decision of the Connétable in respect of the conditions attached to the Choses Publiques permit in respect of the slip road issued on 30^th December 2020. 

38.      The amended notice of application also varied the interim relief sought by including at paragraph 1A interim relief which had been foreshadowed as final relief at paragraph 4 of the original application for leave and as interim relief in the summons referred to at para 32 above, namely that:

(a)       the Connétable shall return the Car Park to its normal use forthwith;

(b)       the Intervenor be required to vacate the Car Park forthwith; and

(c)       the Hideout be permitted to operate from the Car Park with an appropriate permit under the 2006 Order until the final hearing of the case or until further order. 

39.      At the resumed hearing on 15^th April, as well as the Applicant applying for leave to seek judicial review of the additional five decisions, the Intervenor also applied to intervene in the proceedings. 

40.      At the hearing, I granted leave to the Applicant to seek judicial review of Decisions 1, 2 and 3 (in addition to Decision 6 for which leave had been granted by the Bailiff), but refused leave in respect of Decisions 4 and 5 on the grounds that (i) the application was out of time as being more than three months after the relevant decision and (ii) the matters relevant to those decisions would also be relevant to the challenge to Decisions 2 and 3 and could therefore be addressed in relation to the challenge to those Decisions.  I granted leave to the Intervenor to intervene on the basis that its economic interests were clearly liable to be affected by any decision which I might make in relation to the interim relief sought by the Applicant. 

41.      That left for decision the application for interim relief which I have summarised at paragraph 38 above.  Now that, following the grant of leave to amend referred to above, the Applicant was seeking to judicially review Decisions 1 - 3, the Court had jurisdiction (unlike on 1^st April) to consider the interim relief applied for in relation to the Car Park and the Applicant's ability to trade from the Car Park. 

Principles for interim relief in judicial review proceedings

42.      There is no dispute between the parties as to the principles governing the grant of interim relief in public law cases.  These were considered in some depth in the judgment of Lord Walker in the Privy Council in the case of BACONGO v Department of the Environment of Belize [2003] 1 WLR 2839 at paragraphs 35 - 47. 

43.      At the risk of over-simplification, I would summarise the position as follows:

(i)        Because the range of public law cases is so wide, the Court has a wide discretion to take the course which seems most likely to produce a just result (or to put the matter less ambitiously, to minimise the risk of an unjust result) (para 39 of BACONGO).

(ii)       An application for an interim injunction is to be assessed on the basis of the well-known principles laid down in American Cyanamid Co v Ethicon Limited [1975] AC 396, but with modifications appropriate for public law cases (para 35 of BACONGO).  Given the public law element (where an award of damages is often not available), this is likely to mean particular concentration on two aspects of the American Cyanamid test, namely whether there is a serious issue to be tried and the balance of convenience. 

(iii)      An undertaking in damages is not invariably required in public law cases (para 39 of BACONGO), but should normally be required in such cases if the commercial interests of a third party are engaged (para 38 of BACONGO).

(iv)      The strength of the case is an important factor when the grant of an interim injunction would cause significant financial loss and no undertaking in damages has been offered (para 40 of BACONGO).

(v)       It is well-established in private law cases that, where an interim mandatory injunction (as opposed to a prohibitory injunction) is applied for, the Court will need to have a high degree of assurance before granting such an injunction that the trial court will in due course affirm that the order was rightly made.  There is therefore a high burden on persons seeking an interim mandatory injunction (see Publicis Graphics Group Holdings SA v Assad [2011] JRC 089 at paras 12 - 14 and the cases cited there).  In my judgment, this requirement is equally applicable in public law cases.

44.      In the present case, no undertaking in damages has been offered by the Applicant and what is sought at this stage is a mandatory order; in other words an order that the Connétable do certain things such as requiring the Intervenor to vacate the Car Park and granting a Parking Place permit under the 2006 Order to the Applicant to trade from the Car Park.  It follows that, in order to succeed, the Applicant will need to show a strong prima facie case.

The present position re the development

45.      The papers before the Court for the hearing on 1st April did not contain much information about the present state of the development, which was and remains a significant factor to be considered when deciding whether to grant the interim relief sought.  The Connétable's affidavit merely exhibited a letter dated 19^th March 2021 from Ms Steedman of KE Planning to the Connétable's advocates.  It stated that the suggestion that the Intervenor was not actively progressing the development or had no real intention of developing the Site was false; the relevant pre-conditions (mostly environmental) of the planning permission had been discharged (i.e. fulfilled) and work had already started.  She said that the Intervenor had already invested significant sums in the development and was about to spend considerably more in connection with piling required on Site.  A number of piles had already been driven, contractors had been engaged, orders placed and off site fabrication of specialist fixtures was underway in respect of the development works generally.

46.      When adjourning the hearing on 1^st April, I indicated that I would be assisted by more detailed information about the present state of the development.  This was provided in the form of an affidavit from Ms Steedman on behalf of the Intervenor.  She asserted that the Intervenor had been actively engaged in progressing the development since Mr Laine had acquired the Intervenor in August 2020 and it was hoped to complete the work by the end of September with a view to the café opening on 1^st October 2021.  The Intervenor had originally wanted to have the café operational by the early summer but this had had to be moved back due to engineering difficulties. 

47.      She explained that the Intervenor had engaged a number of professionals to carry out the development, including the main contractor, architects, engineering contractors, piling and groundwork contractors, health and safety advisers, asbestos consultant and ecological consultant, as well as KE Planning itself.  She said that there had been real progress since August 2020 although much of it might not seem obvious in terms of physical development of the Site as much preparatory work had to be done.  However, piling had begun.  58 piles were required.  The original probe had suggested that 10 metre piles would be sufficient, but it was discovered that these were not deep enough and the piles had to be 27 metres in order to hit the bedrock of granite.  As a result, the piling had taken longer than expected.  Before the piles could be completed in terms of the concrete foundation, they had to be tested.  This required a special piece of equipment which was only in Jersey for a short time. The test was scheduled for 22^nd April.

48.      Two other significant matters had arisen.  The first related to the switch gear and pumping station located in the middle of the Building.  The Health and Safety Inspectorate and States' insurers had recently advised that this could not be in a privately owned development.  As a result, it had become necessary to move the switch gear on to adjoining land.  This had caused delay requiring the involvement of the Planning Department. 

49.      The second issue related to a change in the bye-law which means that the Site drainage is not permitted to flow into the drainage tank belonging to the Parish.  As a result, the Intervenor is having to build its own drainage tank at its own cost on site. 

50.      She explained that significant financial commitments had been made by the Intervenor.  All of the glazing units for the café had been ordered.  Hundreds of thousands of pounds had been spent on the Site in terms of purchasing the Intervenor, and she estimated that at least a further £600,000 was earmarked for the development, with up to about a third of that having already been spent.  She emphasised that the use of the Car Park was absolutely essential to the carrying out of the development in terms of health and safety and also as somewhere for the plant and machinery to be stored and to gain access. 

51.      At my request, Mr Laine attended at short notice to give evidence on 15^th April.  He was fairly vague in relation to a number of matters, although it is fair to note that he had no warning that he would be asked to give evidence or to attend the hearing.  He confirmed that it was necessary to test two of the piles and this was to take place shortly.  However, he had taken a commercial view and said that piling was continuing as he spoke.  He was taking the view that the testing of the two test piles would be satisfactory.  He hoped that the piling would be complete by the end of April or early May.  He confirmed that delay had been caused by the switch gear issue and that was out of the Intervenor's hands to a certain extent.  The new housing for the switch gear had been ordered and had to be specifically made.  It was due to arrive in the island the week after the hearing.  Work by the JEC had then to be undertaken.  The problem with the switch gear was restricting the work that could be done in that area of the Building but there was other work that could be done.  Thus, once the piles were completed, the reinforcement for the floors, the materials for which were coming from the UK in the next two to three weeks, could be undertaken.  The work of creating suspended concrete floors out over the dunes could be carried out.  Thus, anything which was an extension of rather than works to the Building itself could be progressed pending resolution of the switch gear issue. He was of the view that, provided everything went to plan, the development should be finished in September 2021. 

52.      Mr Laine was closely questioned by Advocate Sharp about the information which had been given to the Parish Assembly in October 2020 and it is fair to say that Mr Laine's responses were singularly unconvincing.  He was unable to give a satisfactory explanation as to how it was that the Assembly had been told that the work should be completed within six months by the end of April 2021 when the bye-law application had not even been submitted at that stage.  He accepted that he was present when Ms Steedman gave this information to the Assembly and did not correct it. 

The Applicant's submissions

53.      Advocate Sharp made detailed and forceful submissions on behalf of the Applicant.  I do not propose to repeat them all but I would summarise those submissions which I consider most relevant to the present application as follows: 

(i)        The Connétable took the decision not to renew the Parking Place permit following its expiry on 1^st October 2020 without giving the Applicant any opportunity to make submissions prior to his decision.  On the contrary, the Connétable had informed Mr Laine in an email of 24^th August that he would not be renewing the permit before he informed the Applicant of that fact.  There was therefore a strong prima facie case that the decision not to renew the permit was taken in a procedurally unfair manner. 

(ii)       Despite pressing the Intervenor on a number of occasions (including very shortly before the Parish Assembly on 27^th October) for a timeline for the development, the Intervenor had never given the Connétable satisfactory information other than a passing reference on 24^th August from Mr Laine that the middle of October would be critical for the works with trial holes for the engineers in preparation for the contractors being on site in early November. 

(iii)      On 9^th September, the Connétable was sent a chain of emails which showed that the Planning Department had confirmed to the Intervenor that if certain railings and a concrete path were removed prior to 28^th January 2021, and certain other pre-conditions of the planning permission were discharged (i.e. fulfilled), then this would be regarded as the commencement of the development, with the consequence that the planning permission would not lapse because of the condition on the permission that development must start by 28^th January 2021.  Advocate Sharp submitted that this meant that the Connétable knew, or at the least should have realised, that there was no intention on the part of the Intervenor to start building work before 28^th January 2021; otherwise why would it be necessary to obtain this confirmation from the Planning Department? 

(iv)      At the Parish Assembly on 27^th October, Ms Steedman, on behalf of the Intervenor, said that the Car Park was necessary in order to carry out the development so that it would be closed during the construction period.  She went on to say that the construction period was expected to last approximately six months until the end of April 2021.  The clear implication from this therefore was that the building works were about to begin in order that the development could be completed by the end of April.  Mr Laine was present at the Assembly and did nothing to contradict this statement by Ms Steedman.  Advocate Sharp submitted that the statement was wholly inaccurate and this must have been known to Ms Steedman and Mr Laine at the time.  They knew that the application for building bye-law permission had not even been submitted at that point; it was not in fact submitted until 25^th November and bye-law permission was only granted on 26^th February 2021.  Building works could not therefore have realistically been expected to commence in November and the Parish Assembly had been seriously misled.  He submitted that, if they had known the true position, then given the sentiments expressed at the first Parish Assembly, the Assembly would almost certainly have passed a resolution requiring that the Applicant be permitted to remain trading from the Car Park, certainly until building work actually commenced and possibly until the following winter season so as to avoid the Car Park being out of action during the summer season.  Advocate Sharp submitted that the natural meaning of the minute was that the Connétable also confirmed the timescale indicated by the Intervenor even though he had received no corroborating evidence from the Intervenor and had seen the chain of emails referred to at (iii) above.

(v)       In relation to the Choses Publiques permit issued on 30^th  December, the Connétable had behaved in a procedurally unfair manner.  He had refused to meet with the Applicant to discuss the proposed fee level in an email dated 22^nd December and had then the following day sent an email which, for the first time, indicated that the proposed permit in relation to the slip road would terminate on 1^st June 2021.  The Applicant protested by return email the same day but no meeting or further submissions occurred before the Connétable issued the permit on 30^th December with an expiry date of 1^st June 2021.  

(vi)      Furthermore, given that the Applicant had said in his email of 23^rd December that work on the development had not begun and the Connétable knew that no lease was yet in place with the Intervenor, there had been a material change of circumstances which, submitted Advocate Sharp, required the Connétable to revisit the decision of 28^th August 2020 not to grant a permit under the 2006 Order to allow the Applicant to continue trading from the Car Park. 

(vii)     Following the letter from Advocate Sharp dated 26^th February 2021, with its attached photographs showing that no work had been undertaken, the Connétable was aware, if he had not been aware earlier, that the Intervenor had not commenced building work on the development as had been asserted to the Parish Assembly on 27^th October.  The Connétable should therefore, as requested in the letter, have revisited his previous decisions and should have reopened the Car Park and granted the Applicant a new Parking Place permit to allow him to trade from the Car Park.  The Connétable's failure to do so was irrational. 

(viii)    In essence, the Intervenor had misled the Parish Assembly in October and in reality there had been no good reason for the Applicant to have been moved from the Car Park to the slip road.  Given the false information provided by the Intervenor, the Applicant had a very strong prima facie case for arguing that any one or more of Decisions 1, 2 or 3 (as well as Decision 6) would be quashed at the forthcoming judicial review hearing in July.  In those circumstances, the threshold for granting interim mandatory relief, even in the absence of an undertaking in damages, was met and the question was then as to the balance of convenience. 

(ix)      Turning to the balance of convenience, Advocate Sharp submitted that the Applicant has suffered a grave injustice as a result of the Parish Assembly being misled by the Intervenor and that granting of the interim relief sought was necessary to help remedy that injustice.  The Applicant was having to trade from the slip road which was not nearly as satisfactory as the Car Park, both in terms of location (it is further from the main road) and in terms of the ability to place tables and chairs.  Furthermore, the blocking off of the Car Park meant there was very little parking for customers.  The Applicant would therefore suffer a loss over the summer season albeit that, because of the effect the pandemic had had previously, it was difficult to produce figures.  The closing of the Car Park during the summer season would also cause inconvenience to the public who wished to visit the beach or the Hideout.

(x)       Conversely, any damage suffered by the Intervenor would be its own fault for having misled the Parish Assembly.  The clear intention at the time was that all the development work should be undertaken over the winter.  However, because of the delays on the part of the Intervenor, the work was now to be carried out over the summer, thereby prejudicing the public as well as customers of the Hideout because of the closure of the Car Park.  Furthermore, no weight should be placed on the Intervenor's assertions that the work would be completed by September/October 2021.  It had not been truthful at the Parish Assembly and had given various projections (e.g. end of April, 1 June, 31 August) all of which had proved to be wrong and had had to be amended.  It would cause no injustice to the Intervenor to force it to cease work at present and to recommence the work in October 2021 with a view to completing the development during the winter season as originally envisaged.  Ultimately, the balance of convenience pointed in favour of remedying the injustice which had been done to the Applicant. 

54.      I have carefully considered Advocate Sharp's submissions which were put most persuasively.  However, for the reasons which follow, I do not consider it would be right to grant the interim relief sought.  I propose to consider the matter under the two headings of the strength of the substantive case and the balance of convenience. 

(1)        Strength of the substantive case

55.      Advocate Sharp submits that the Applicant has a strong case for judicial review and is likely to succeed on the principal basis that the decision of the Parish Assembly on 27^th October 2020 - and accordingly the Connétable's decision - was heavily influenced by the misleading information given to the Assembly by the Intervenor concerning the anticipated date of completion in April 2021.  However, in my judgment, a rather closer analysis of the different decisions is required. 

56.      The original application for judicial review related only to the Connétable's decision to limit the length of the Choses Publiques permit issued on 30^th December 2020 to 1^st June 2021.  This decision is now referred to as Decision 6.  Similarly, the original application for interim relief was only for a stay on the expiry date of that permit until the judicial review hearing. 

57.      I agree that the Applicant has strong grounds for challenging the imposition of the 1^st June 2021 limitation on the Choses Publiques permit.  The Connétable asserts that it was reasonable to insert the anticipated completion date for the development as the termination date for the permit.  However, I cannot see that that was reasonable or necessary.  All the Parking Place permits had contained a condition which made it clear that the permit would come to an end when the development was complete.  I see no reason why the position of the public and the Intervenor could not be similarly protected by the same condition as had been in those permits and as was inserted in the Choses Publiques permit.  Thus, even if the Choses Publiques permit issued on 30^th December 2020 were expressed to to take effect until 31^st December 2021 (being the expiry date for all Choses Publiques permits), the insertion of the relevant condition would ensure that, when the development was complete, the permit would come to an end.  Conversely, the insertion of a fixed completion date ran the risk that the Applicant would have to vacate the slip road for no good reason prior to development of the Site being completed. 

58.      It follows that, if it had still been a live issue, I would have granted the interim relief originally sought, i.e. a stay on the expiry date of the Choses Publiques permit relating to the slip road until the hearing of the judicial review application itself.  However, that is no longer an issue as the Connétable has extended the Choses Publiques permit for the slip road until 31^st August, which is after the hearing of the judicial review application in July.  Accordingly, I need say no more about this aspect. 

59.      In relation to Decisions 1 and 2 (they can be considered together), Advocate Sharp submits that, in view of the information provided by the Applicant to the Connétable in the letter of 26^th February 2021 to the effect that no development work had been undertaken, and knowing as he did that no written lease had yet been entered into with the Intervenor for the Car Park, the Connétable should have revisited the matter at that point and should have issued a Parking Place permit to the Applicant to allow him to operate from the Car Park (rather than the slip road) and should have opened up the Car Park to the public. He submits that there is a strong prima facie case in this respect. 

60.      I accept that the Applicant has an arguable case.  However, the Connétable had to consider the position as it was at that time (i.e. end of February 2021) rather than as it would have been in October 2020 if the Parish Assembly had not been misled.  It is not clear to me at this stage what his state of knowledge was or what the situation in fact was on the ground (other than the evidence of the photographs taken by the Applicant).  This is likely to be clarified following cross-examination of the Connetable at the final hearing in July.  Accordingly, I find myself unable to assess the strength of the Applicant's case for judicial review in relation to Decisions 1 and 2. Similarly, in relation to Decision 3, whilst the Applicant has an arguable case, I am unable to assess its strength for similar reasons, ie as at 30^th December 2020, what was the position in relation to progressing the development and what was the Connetable's state of knowledge.  In the circumstances, I am not able to find that there is a strong prima facie case sufficient for mandatory interim relief.  However, on the assumption that there is, I now turn to consider the balance of convenience. 

(ii)        Balance of convenience

61.      Advocate Sharp submits that the balance of convenience comes down in favour of the Applicant for the reasons which I have attempted to summarise above.  The position seems to me to be as follows.

62.      If the interim relief is not granted, the following consequences are likely to arise:

(i)        The Applicant will have to continue trading from the slip road rather than return to trade from the Car Park.  There is no evidence before me as to the financial loss which this would cause him, but I accept that there is likely to be some loss, in that he does not have room for seating and tables which he previously had for those customers who wished to use them, the position on the slip road is further from the main road and not so obvious for any passing trade, and there is limited parking adjacent to the Hideout in its new position.

(ii)       The Car Park will remain unavailable for members of the public until the development is complete.  It will therefore not be available for the forthcoming summer season. 

(iii)      The injustice done to the Applicant as a result of the misleading information given to the Parish Assembly will remain unremedied in that the Applicant will continue to have to trade from the slip road rather than from the Car Park. 

63.      Conversely, if the interim relief as sought is granted, the following consequences are likely to arise:

(i)        Progress on the development will stop as it cannot continue without use of the Car Park. 

(ii)       There will therefore be a considerable delay in completion of the development, something which has been considered to be in the public interest both by the Planning Department and by the States in deciding to sell the Site for development in the first place.

(iii)      Stopping a development which is in the course of progress will undoubtedly cause financial loss to the Intervenor, as will the delayed opening of the café in order to produce an income stream.  However, as with the Applicant, I have no evidence of the extent of that loss.

(iv)      The public will continue to be unable to use the public toilet for a prolonged period, namely until completion of the (delayed) development.

64.      In my judgment, the balance of convenience comes down firmly on the side of not granting the interim relief sought.  I would summarise my reasons as follows:

(i)        Rule 16/3 of the Royal Court Rules provides that, when considering whether to grant leave to apply for judicial review where there has been delay in applying (even if within the three month period), the Bailiff should refuse leave if he considers that the grant of relief following a judicial review would be likely to cause substantial hardship to or substantially prejudice the rights of, any person or be detrimental to good administration.  Whilst that Rule applies only to questions of whether to grant leave, it seems to me that the factors mentioned there are also likely to be relevant when a Court decides whether to grant interim relief.  Thus, if the grant of interim relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration, that is a factor for the Court to consider when deciding whether to grant interim relief. 

(ii)       It is the view of those who have responsibility for such matters that it is in the public interest for there to be development of the Site so as to provide a beach café and refurbished public toilets.  Thus, the contract of sale of the Site envisages such a development and planning permission was granted even though the Site is in the Coastal National Park on the basis of the improved tourism/recreational facilities that a new beach café would provide.  Both the contract and the planning permission provide that the refurbished toilets following the development must be available to the public.  It follows, in my view, that there is a perceived benefit to the public in the development taking place and being completed as soon as reasonably practicable. 

(iii)      Granting the interim relief sought would undoubtedly cause significant delay to the completion of the development as work cannot continue in the absence of the use of the Car Park by the Intervenor.  In terms of public benefit, this would therefore delay the provision of the new café and the refurbished toilet facilities.  It would also mean that the public toilets would continue to be unavailable for a further period.  The provision of public toilets in the area is a matter of some concern to the Connétable (see paragraph 12 of his first affidavit) and I consider that to be an entirely reasonable concern.  The nearest available public toilet is apparently at Le Braye and I accept that delay in the availability of public toilets at La Pulente for the benefit of the public is a relevant matter. 

(iv)      I accept that the Intervenor gave misleading information to the Parish Assembly in October about its ability to complete the development by the end of April.  I further accept that this has probably led to the Applicant having to move from the Car Park to the slip road earlier than would have been the case if a more accurate forecast of when the work would be undertaken and completed had been given.  However, I have to consider the position as it is at present, i.e. at 15^th April.  Whilst the evidence of Miss Steedman and Mr Laine was not as precise or detailed as I would have wished and whilst I take note, as Advocate Sharp urges, of the fact that inaccurate information was given to the Parish Assembly in October, I am nevertheless satisfied from the evidence before me that the development is now proceeding as fast as possible and is being carried out.  Thus, piling is taking place, the test piles are to be tested shortly, orders for windows and materials have been placed and the Intervenor has entered into contracts with a substantial number of firms who are all working to complete the development as soon as possible.  The estimate now given is that the development should be complete by the end of September 2021 although there is a question mark over whether the issue over the switch gear will cause further delay.  Nevertheless, on the basis of the information currently before me, I am satisfied that this is not an unreasonable estimate.  I am satisfied that the Intervenor wishes to complete the development as soon as possible so that it can open the new café and start earning a return on its investment.  Whilst the photographs taken by the Applicant and attached to the letter of 26^th February 2021 appeared to show little apparent progress, I accept that much preparatory work has to be done before the actual building work begins.  The photographs sent to the Connétable by a parishioner on 7^th April 2021 show a rather different picture and demonstrate that work has been undertaken and that plant and machinery are present on the Site.  Ultimately, despite any reservations caused by the events at the Parish Assembly, I accept the evidence of Miss Steedman and Mr Laine as to the current state of the development. 

(v)       Whilst I do not have information about the cost to the Intervenor of stopping the work on the development at this stage, it is in my judgment obvious that it is likely to be substantial.  In my view, a Court can infer that to stop any significant development midstream is likely to have material adverse financial consequences both in terms of interruption of contracts which have been entered into and delay in deriving any benefit from the development, in this case the opening of the café.  In my judgment, it is a fairly strong thing to halt a development mid-stream and a court needs to consider carefully whether the balance of justice points to such an order before doing so. 

(vi)      No undertaking in damages has been offered by the Applicant.  As discussed earlier, this is a relevant factor to weigh in the balance, as it means that any loss suffered by the Intervenor as a consequence of the interim relief being granted would not be compensated. 

(vii)     Turning to the position of the Applicant, it has always been understood that, once the development is complete and the new café is open, the permit for the Applicant to operate the Hideout will terminate.  This was so in relation to the permits to operate from the Car Park and is equally so in relation to the Choses Publiques permit relating to the slip road.  Thus, the issue before the Court in July will be whether the decision to move the location of the Hideout from the Car Park to the slip road for the remaining period until the new café is opened is liable to be judicially reviewed. 

(viii)    If the interim relief sought is not granted, there is no question of the Hideout not being able to trade at all.  The Applicant will be able to continue to operate the Hideout from the slip road which is only a short distance from the previous location in the Car Park.  As I have already indicated, I consider that there are strong prospects of the Court in July making an order which permits the Applicant to continue operating the Hideout on the slip road pursuant to the Choses Publiques permit until completion of the development without being subject to the risk of any earlier termination date. 

(ix)      I accept that the location on the slip road is not quite as good as the Car Park because of the lack of ability to have some tables and seating and the fact that it is slightly further from the main road.  However, as the Applicant says in evidence, the Hideout is extremely popular and well supported and I am not persuaded on the evidence before me that the loss of custom caused by the move in location is likely to be substantial.  There is ample car parking at La Pulente car park which is only a short distance away and it is not clear to me that loyal customers will be put off by the fact that the Hideout is now on the slip road rather than in the Car Park.  In short, whilst I accept that there may well be some financial loss, I am unable on the evidence before me to find that it is likely to be substantial.

(x)       Similarly, because of the availability of the La Pulents car park in close proximity, I do not consider that there is a significant impact on the public as a result of the temporary loss of the Car Park during the 2021 summer season.

65.      In summary, on the one hand, if I grant the interim relief, there is likely to be substantial loss to the Intervenor and prejudice to the public as a result of a material delay in the provision of public toilet facilities and the new café.  Conversely, if I do not grant the interim relief, the Applicant will be able to continue to operate the Hideout from the slip road until the new café is open.  In the circumstances, I consider that the balance of convenience comes down firmly in favour of not interrupting the development which is underway and therefore not granting the interim relief sought.

66.      I therefore dismiss the application for the interim relief specified in paragraph 38 above.

Authorities

Road Traffic (Public Parking Places) (Jersey) Order 2006.

Customary Law (Choses Publiques) (Jersey) Law 1993

BACONGO v Department of the Environment of Belize [2003] 1 WLR 2839

American Cyanamid Co v Ethicon Limited [1975] AC 396

Publicis Graphics Group Holdings SA v Assad [2011] JRC 089