Jersey Unreported Judgments

Judicial review - against a decision of the Minister for the Environment

[2022]JRC044

Royal Court

(Samedi)

18 February 2022

Before     :

T. J. Le Cocq, Esq., Bailiff, sitting alone.

 

IN THE MATTER OF AN APPLICATION FOR PERMISSION

TO BRING JUDICIAL REVIEW PROCEEDINGS

Advocate R. J. McNulty for the Applicant.

Advocate J. P. Rondel for the Respondent.

judgment

the bailiff:

1.        This is an application by WE (Jersey) Limited ("WE") for leave to bring an application for judicial review against a decision of the Minister for the Environment ("the Minister") dated 1^st October 2021, ("the Decision") made under Article 12 (1)(a) of the Planning and Building (Jersey) Law 2002 ("the Law")

2.        The final relief sought by WE is an order quashing the decision. 

3.        In addition, WE seeks and order under Rule 6/15 of the Royal Court Rules 2004 ("the Rules") that the Minister disclosed the content of an oral report or advice given to him by the Head of Development and Land on which the decision is apparently based. 

The Decision

4.        The Decision is reflected in a decision summary signed by the Minister.  It specifies that the type of report presented to the Minister was "oral" and under the heading "Decision", the summary states that the Minister decided:

·         "Against determining the following planning applications until a public inquiry into the application has been held; and

·         That the matters should be brought to the attention of the Public of Jersey in due course, by way of a formal announcement, that a Public inquiry is to be held."

5.        The Planning Applications to which the decision refers are applications P/2021/0795 relating to the Water's Edge Hotel & Complex, Les Charrieres de Boulay, Trinity and P/2021/1195 Le Havre du Boulay, Les Charrieres de Boulay, Trinity relating to the construction of a temporary dive centre.

6.        Under the heading "Reasons for Decision", the Minister says this:

"........ the proposed development would be likely to have a significant effect on the interests of the whole or a substantial part of the population of Jersey.

In particular, the Minister is cognisant of the primary purposes of the Island Plan (revised 2014) policy which covers the Coastal National Park and the need to:

Conserve and enhance its natural beauty, wildlife and cultural heritage.

Promote opportunities for understanding and enjoying its special qualities.

Bouley Bay is a special place for many islanders and is associated to historical cultural activities. 

The Minster wishes to examine the proposed development in terms of its delivery against the Park's stated purpose

Further, the Minister is mindful of the urgent and pressing housing need identified through the objective Assessment of Housing Need (2018) and wishes to examine whether it is appropriate, in that context, to develop such large site as a single residence relative to existing and emergent Island Plan policies.

The Minister considers that the associated application P/2021/1195 is closely related to the above-mentioned proposal and effectively forms part of the same overall development proposal.

It is the view of the Minister that both planning applications should be assessed together, so that a holistic decision may be taken."

7.        Article 12(1) of the Law is in the following terms:

"Public inquiries

(1)       This Article applies in respect of an application for planning permission where the Minister is satisfied that if the proposed development were to be carried out -

(a)       the development would be likely to have a significant effect on the interests of the whole or a substantial part of the population of Jersey; or

(b)       the development would be a departure (other than an insubstantial one) from the Island Plan.

(2)       Where this Article applies -

(a)       the Minister, and only the Minister, shall determine the application; and

(b)       the Minister shall not do so unless and until a public inquiry has been held concerning the application."

History of the Application

8.        It is not necessary for the purposes of determining whether leave should be granted to go into the history of the application at any length.  It is fair to say that there has been significant correspondence in connection with the application which is for, in effect, a substantial luxurious single private dwelling together with a dive centre and other facilities on the site previously occupied by the Water's Edge Hotel which has for a number of years not functioned as a hotel and has fallen into disuse. 

9.        Specifically drawn to my attention, however, are certain communications passing between the Minister and others which predate the date of the Decision and indicate, so it is argued by WE, that the Minister had not taken the decision on a proper basis but rather had predetermined it for reasons that are not provided for in Article 12(1)(a) of the Law. 

10.      I do not herein set out a complete review of those communications but simply make reference to those that seem to me to illustrate the point mentioned above.  They are:

(i)        On 2^nd August 2021, at 7:09 p.m. the Minister wrote to officers within his department in connection with the "Bouley Bay development" in the following terms:

"In view of the huge public response and importance of our CNP.  I hereby call this application into a planning inquiry.  Please acknowledge and confirm my instruction.  Not negotiable. Regards John."

(ii)       He then, followed this email by one of 3^rd August 2021, at 09:15 a.m. under the same heading in which he said

"Extra reason not that I needed it.  Phil going on radio and promoting the development this morning.  He declared an interest and indicated an intention to withdraw but as Chair of the Planning Committee the perception and probably the reality it was intended to influence decision and personally consider it unwise."

11.      The two emails taken together seem to indicate a decision on the part of the Minister to call the matter in for a planning inquiry for three apparent reasons:

(i)        "The huge public response;

(ii)       "The importance of our CNP";

(iii)      Phil going on radio and promoting the development."

12.      The "CNP" refers to the Coastal National Park and the reference to "Phil" is a reference to the Connétable of Trinity, Mr Philip Le Sueur.  The Connétable was copied into the email of 3^rd August 2021. 

13.      The Connétable responded in an email of 3^rd August 2021, at 12:42 p.m. indicating that he did not agree with the Minister and said that the "vast majority of parishioners who attended the open viewing here at the Parish Hall and with whom I have spoken prefer this latest proposal."  He confirmed that he would be stepping out of any decision making process so that his parishioners would not be disenfranchised. 

14.      The Minister responded to the Connétable on the same day at 13:01 p.m. in, amongst other things, the following terms:

"The bigger reason is the loss of tourism on prime sites in the CNP and emerging policy in the I Plan for policies to not stop but prevent an uncontrolled loss.  Residential is one thing but dedicating such to high net worth people[sic] has potential for major impact on the community."

15.      The Applicant points to the reference to the "emerging policy" in the "I Plan" being a reference to the interim Island Plan which is scheduled for debate by the States Assembly shortly.  It does not refer, as indeed it could not, as it describes emerging policies, to the then current Island Plan.

16.      This point was picked up by the Connétable of Trinity who responded again on 3^rd August 17:46 p.m. hours in the following terms amongst other things:

"My (limited) understanding of the requirements to call a scheme in for a Public Inquiry, is that the proposal represents a departure from the current Island Plan (which I don't believe this is) and if the development would be likely to have a significant effect on the interest of the whole or a substantial part of the population of Jersey (which it won't)."

17.      He then goes on to say:

"I spent last Friday afternoon wading through an excess of 140 public comments on the website, and less than 1/5 are objections (not about the scheme itself, but mostly because it would be for the benefit of only a single family which is a political rather than planning) and with some 70% only concerned about the long-term survival of the Dive Centre."

18.      On 27^th August 2021, Mr Michael Stein of MS Planning, WE's Planning Consultant for the application subject to the decision, wrote at length to the Head of Development and Land explaining, in the light of his understanding that the Minister intended to call the matter in why this was not a matter which should give rise to a public inquiry.  It is not necessary to set out all of the reasons but suffice to say that that letter did not meet with any response prior to the making of the Decision. 

The legal test for leave for judicial review

19.      Both WE and the Minister referred to different cases when illustrating the test but in effect there is agreement as to the way that the Court should approach this matter.  In X v Minister for Home Affairs [2018] JRC 222 the Royal Court set out the test approved by Commissioner Beloff and Warren v Lieutenant Governor [2017] (1) JLR 291 in the following terms:

"3       The test for such leave in this jurisdiction, as applied in Welsh v. Deputy Judicial Greffier (7), is that set out by the Privy Council in Sharma v. Browne-Antoine (6) ([2007] 1 WLR 780, at para. 14(4)):

    "The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628 and Fordham, Judicial Review Handbook 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application."

4         For an application for judicial review to succeed, the Royal Court would have to be satisfied that His Excellency's decision was unlawful, irrational or flawed by procedural impropriety (Planning & Environment Cttee. v. Lesquende Ltd. (4)) and for present purposes I must be satisfied that one or more of those grounds is arguably established on the material before me."

20.      In Sharma v Brown-Antoine referred to in the citation above, the Judicial Committee of the Privy Council said:

"It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to "justify the grant of leave to issue proceedings upon a speculative basis which is hoped the interlocutory processes of the Court may strengthen .............."

21.      In Holmes v Law Society [2018] JRC 010 the Court said that the test for granting leave to proceed with a claim for judicial review is focussed on arguability and it has been described as:

"A threshold stage designed to eliminate claims that are hopeless, frivolous or trivial and to ensure that the claims only proceed if there is arguable case that merits a full hearing with all parties and all relevant evidence."

22.      The question for me at this stage, therefore, is whether or not WE has an arguable case that the decision of the Minister to call in the planning applications pursuant to Article 12 (1)(a) of the Law was either unlawful, irrational or flawed by procedural impropriety. 

23.      It is perhaps worthy of note at this stage that there are certain procedural consequences that flow from this application.  Were it not to be granted, then, subject to any rights of appeal to a higher court, the Public Inquiry procedure would take place and the Minister would then take a decision about the two applications.  That decision, would on a point of Law, be appealable to this Court.

24.      Were the application to be granted then the matter would proceed to a full hearing of a judicial review with evidence filed.  If the judicial review were granted and the decision were quashed then the Minister, as the individual charged with making the decision, may have to decide the question of a Public Inquiry again subject to whatever guidance this Court might give when dealing with a judicial review.  If a judicial review is turned down and the decision is not quashed then the matter will proceed to a Public Inquiry as indicated above. 

25.      There will in any eventuality be some delay and the Court is mindful of the fact that a general election is in the offing and that there will, the current Minister having indicated that he will not be standing again, be a new Minister in place from July onward. 

26.      Against that background and legal principles, the arguments appear to be as follows:

WE's case

27.      WE advances three grounds of challenge:

(a)       that the Minister had misinterpreted and/or mis-applied the criteria within Article 12(1)(a) to call in a planning application and his reasons for calling in the planning applications do not provide a lawful basis for intervention consistent with those criteria; and/or

(b)       the Minister purported to exercise his powers under Article 12(1)(a) by reference to irrelevant considerations; and/or

(c)       The Minister had predetermined (as early as 2^nd August 2021) his decision to call in the applications which was purported to have been taken following oral advice on 1^st October 2021, and that the pre-determination was for reasons that fell outside the scope of Article 12(1).

28.      On the issue of pre-determination, it is clearly the case that a decision may be impugned on the grounds of an appearance of pre-determination if the Court considers:

"A fair minded and informed observer would think that the evidence would give rise to a real possibility or risk that the decision maker had pre-determined the matter, in the sense of closing his mind to the merits of the issues to be decided (see R (Electronic Collar Manufacturers Association) v Secretary of State for Environment, Food and Rural Affairs (2019) EWHC 2013 and Kerley v Minister for Planning and Environment [2008] JRC 199."

29.      WE argues that it is only the most significant of planning applications which have a clear impact on the public interest that should be called in under Article 12(1)(a).  They point out that the Minister did not purport to call in the matter under Article 12(1)(b) which specifically refers to a departure from the Island Plan although nonetheless mentioned the Island Plan in the Decision.  I pause to say that I do not necessarily agree that, this indicates an improper basis for the Decision.  Whilst a "departure from the Island Plan" is a reason alone that can cause the Minister to exercise his powers under Article 12 of the Law, that is not to say he cannot or should not be cognisant of the Island Plan generally when considering his powers under Article 12(1)(a).  As the Minister submits, the Island Plan permeates all planning decisions and it would be a matter to be considered even if the Minister did not determine that any one application marked a significant departure from the Island Plan. 

30.      WE points out that the Minister does not in the reasons for his Decision identify the "significant effect on the interests" of the population and he must satisfy himself that there is such an effect before he can properly exercise his powers under Article 12(1)(a).  The Coastal National Park existence was irrelevant as this was an application which dealt with an area that was already heavily built upon and if anything it can only be said to improve the general area.

31.      With regard to the question of an irrelevant consideration being taken to account, WE points to the email exchanges referred to above in which he had also made reference to a loss of tourism and to land going to the benefit of high net worth individuals.  Clearly the second point, so it is argued, cannot be a planning issue and even if the loss of tourism were to be such an issue, the site had not functioned as a hotel for many years.  None of these factors are mentioned in the Decision Summary but appear to have been taken into account when one views the earlier emails referred to above. 

The Minister's case

32.      The Minister disputes each of the grounds and, in particular, in connection with the email exchange set out above, argues that he must be allowed a "safe space" to explore various ideas without them necessarily being taken as the reasons for a decision.  The Minister argues that the views expressed in the emails were simply a step in a series of thought processes and was sufficiently separate in time from the time that the Decision was taken that they should not have any bearing on the view taken of the reasons under pinning the Decision.

33.      He goes on to argue that there is a difference between predisposition, which is consistent with the preparedness to consider and weigh relevant factors in reaching a final decision and pre-determination, which involved a mind which is closed to the consideration of weighing relevant factors.  I agree with this statement.

Conclusion

34.      Had the Decision stood alone and been supported by a written report or at least a full note of an oral report, then I may have taken the view that it would not have been appropriate to grant leave to appeal a decision taken under Article 12(1)(a). 

35.      However, that is not the case.  Not only is there no indication of the contents of the oral report (and notwithstanding requests no note of the report, affidavit, or any documentation in support of a report has been forthcoming from the Minister to WE) but there is a clear expression of reasons in the August exchange of emails which do not appear to me obviously to fit within Article 12(1)(a) and to suggest at least that there is an argument that the Minister had in fact pre-determined his decision on whether to exercise his powers under Article 12.  At the very least it does seem that the expression "not negotiable" requires in the context of this matter some explanation. 

36.      However, be that as it may, in my judgment the matter has crossed the threshold for an application for judicial review and I grant leave to WE to bring an application seeking to quash the Decision.  When evidence is filed the contents of the oral report will presumably be clear. 

37.      As this is, I believe, the first time that Article 12 has been considered and indeed there may be an argument as to whether or not it should be amenable as such to judicial review, I do not restrict the grounds on which the application for judicial review might be brought and I grant leave under all of the headings sought by the Applicant. 

Authorities

Planning and Building (Jersey) Law 2002. 

Royal Court Rules 2004. 

X v Minister for Home Affairs [2018] JRC 222.  

Beloff and Warren v Lieutenant Governor [2017] (1) JLR 291.  

Sharma v. Browne-Antoine (6) ([2007] 1 WLR 780. 

Holmes v Law Society [2018] JRC 010.