Jersey Unreported Judgments

Planning - judicial review.

[2022]JRC160

Royal Court

(Samedi)

8 August 2022

Before     :

J. A. Clyde-Smith OBE., Commissioner, sitting alone.

 

Advocate R. J. McNulty for the Applicant.

Advocate J. P. Rondel for the Respondent. 

judgment

the commissioner:

1.        This is an application by W.E. (Jersey) Limited ("WE") to judicially review the decision of the Minister for the Environment ("the Minister") of 1^st October 2021 ("the Decision") made under Article 12(1)(a) of the Planning and Building (Jersey) Law 2002 ("the Planning Law"), by which the Minister decided to call a public inquiry in relation to two connected planning applications submitted by WE for the development of the existing Water's Edge Hotel complex.  

2.        The first-tier decision making in relation to planning applications does not involve the Minister, save for any planning application where, under Article 12 of the Planning Law, the Minister directs that the planning application should be dealt with by way of a public inquiry.

3.        The relevant part of Article 12 of the Planning Law is in the following terms:

"12     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.

(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.

(3)       The Minister shall take into account in determining the application representations made at the public inquiry.

(4)       The Minister shall by Order prescribe the manner in which a public inquiry shall be held.

(5)       The Order shall, in particular, prescribe:-

(a)        the manner in which notice of the inquiry shall be given;

(b)        the procedure to be followed at an inquiry; and

(c)        the persons who may appear and be heard at an inquiry.

(6)       A person aggrieved by a determination of the Minister under this Article may appeal against the determination to the Royal Court only on a point of law (and for the avoidance of doubt, no appeal arises under Part 7).

4.        As can be seen, where the Minister directs that a public inquiry should be held under Article 12, it is the Minister who determines the planning application following that inquiry. If there is a person aggrieved by that determination, then an appeal lies to the Royal Court only on a point of law; there is no merits-based appeal from a determination by the Minister. 

5.        In this case, no public inquiry has yet taken place, so the Minister has made no determination in respect of the planning applications submitted by WE.  It is the decision of the Minister to call in these planning applications under Article 12 and to order a public inquiry that is challenged by WE by way of judicial review.

The planning applications

6.        The principal application is for the demolition of the existing Water's Edge Hotel and complex and associated buildings and firstly the construction of one dwelling with guest accommodation, pool, pool house, tennis court, associated car parking, landscaping and separate staff accommodation and secondly the construction of a dive centre and café/restaurant (to replace the Black Dog that closed in 2017) together with the modification of access.  The associated planning application is for the construction of a temporary dive centre whilst these works are carried out.  We will refer to this as "the Scheme". 

7.        There is an existing planning permission for the redevelopment of the redundant hotel complex into 25 self-catering units.  All pre-commencement conditions have been discharged in respect of this planning permission and part of the hotel demolished, so that this extant planning permission is still capable of full implementation.  It represents a "fall-back position" to be carried out in the event that the proposed development, which is the subject of the Scheme, is not granted permission. 

8.        The site is within the Coastal National Park and under Police NE6 of the Island Plan (as revised in 2014) it has the highest level of protection with the strongest presumption against all forms of development.  Under Policy NE6(7), the development of an employment building (which includes a hotel) involving demolition and replacement for another use (in this case a private residential use), is permissible where the redundancy of employment is proven, the proposal is no larger in terms of gross floor space than that which it replaces, and the new development gives rise to demonstrable environmental gains contributing to repair and restoration of landscaped character and appearance of land and buildings.

9.        This judgment is not concerned with the merits of the Scheme, but by way of background the affidavit of Mr Michael Stein, the Planning Consultant for WE, states that following extensive consultations:

(i)        The National Trust was on balance supportive of the Scheme subject to safeguarding the future of community facilities such as the dive centre, café and public footpaths.  The coastal footpaths and the future of the annual hill-climb events have been secured under Planning Obligation Agreements and the Jersey Motor Cycle & Light Car Club supports the Scheme.  The Scheme allows for the replacement dive centre and restaurant. 

(ii)       Of the 188 public letters received, only 48 objected to the Scheme, principally on the grounds that it is for a single-family dwelling. 

(iii)      There were sixteen letters in support including from all of the immediate neighbours.  The Scheme had the support of Mr Philip Le Sueur, the Constable of Trinity, who was also chair of the Planning Committee. 

(iv)      There were very few letters objecting to the merits of the Scheme and the Jersey Architecture Commission referred to it as an exemplary development.  

(v)       As to other public letters they mostly expressed concern over the possible loss of the dive centre and to a lesser extent, the impact on Mad Mary's Café, which is on tenanted land not covered by the Scheme.

The call-in

10.      It is now necessary to set out the history which led up to the Decision, which I take from the documentary evidence over which there is no dispute.  It starts with this email of the 2^nd August 2021 from the Minister, who was apparently on holiday, to Mr Peter Le Gresley, the Head of Development and Land Regulation at the Infrastructure, Housing and Environment Department for the Government of Jersey, and other members of the Department: 

"In view of the huge public response and importance of our CNP. [Coastal National Park] I hereby call this application into a planning inquiry.

Please acknowledge and confirm my instruction.  Not negotiable"

11.      WE places some reliance on this email as evidence of the Minister pre-determining the Decision that was ultimately made on 1^st October 2022.  It would seem that Constable Le Sueur went on to the radio on the morning of 3^rd August 2021 declaring his support for the Scheme which led to this email on the 3^rd August 2021 from the Minister to Mr Le Gresley and other members of the department and copied on this occasion to Constable Le Sueur: 

"Extra reason not that I needed it.  Phil going on radio and promoting the development this morning.  He declared an interest and indicated 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."

12.      Constable Le Sueur responded by email on the 3^rd August 2021 saying that it came as no surprise that he did not share the Minister's view, that it was correct that he along with the vast majority of parishioners who attended the open viewing at the Parish Hall preferred the Scheme over the existing consented scheme and confirming that as a member of the Planning Committee he would step aside from the determination in order to avoid being conflicted and enabling him to represent his parishioners on the matter who would otherwise be disenfranchised.  This led to a further email that day from the Minister, sent directly to Constable Le Sueur but copied to Mr Le Gresley and other members of the department:

"Hi Phil.  My apologies for such an abrupt message but I always like to be open and up front.  I am out of the island in Alderney and trying to divide my time with family hols and keeping my duties up.  The bigger reason is the loss of tourism on prime sites in the CNP [Coastal National Path] and emerging policy in the IPlan for policies to not stop but prevent an uncontrolled loss.  Residential is one thing but dedicating such to High net worth people has potential for major impact on the community.  Same as at Greve de Lecq and St Brelade.  Speak when I get back on the points you raise.  Thanks for your email accept your intentions entirely just the wider issues."

13.      This gave rise to a further email from Constable Le Sueur to the Minister copied to Mr Le Gresley and the other members of the Department in the early evening of 3^rd August 2021, part of which I set out below:

"Good afternoon John, Thanks for getting back to me in the middle of your holiday, whilst I look forward to having a conversation at some point in the future I remain concerned about the suggestion of calling this in for a public enquiry.

My (limited) understanding of the requirements to call a scheme in for 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 interests of the whole or a substantial part of the population of Jersey (which it won't).

Simply because there is significant public interest in an application does this warrant 'calling it in? There were a similar amount of written reps for the recent Portelet Bay Café but this wasn't called in". (his emphasis)

14.      On 4^th August 2021, Constable Le Sueur confirmed to Mr Stein that the Minister had agreed not to do anything until he had got back from his holiday and had a meeting.

15.      No meeting appears to have taken place on the Minister's return from holiday, other than with his private secretary, Mr Ben Markwell-Sales, who sent Mr Le Gresley this instruction on 6^th August 2021:

"After discussion with John [the Minister] this afternoon, he would like to proceed with his request for a planning inquiry into the Bouley Bay development.

Please could you prepare an MD/ToR [Ministerial Decision/Terms of Reference] to begin the above.  Can these include text along the lines of:

1)        Public interest and the use of POAs [Planning Obligation Agreements]

a.         Diving centre

b.         Event use of the hill

c.         Café

d.         Beach access

2)        Housing availability and the development of 1 build versus that of 24(?) flats on the same site.

He would like this request to remain confidential until such time he is in a position to sign the MD and consider who needs to be primed as a courtesy."

16.      This led to the following email that day from Mr Le Gresley to the Minister, which would appear to be the first occasion on which the Minister had received advice from the head of department on the use of Article 12 to bring about a public inquiry and call in the planning applications:

"Hi John

A couple of things on this if I may.  I've always thought it part of my role to protect the office of the Minister from decisions which may later to be questionable or subject to legal challenge.  Regrettably with us being in the holiday season, I have not had the opportunity to discuss this matter with you.  Nor has the chairman of the Planning Committee, who has asked for an opportunity to do so.

Of course, it is for you as Minister to exercise your own judgement as to whether a Public Inquiry should be triggered under Article 12 of the Planning and Building Law.  In doing so, the only criteria on which you may make a judgement are whether the proposed development should it be carried out:

(a)       is likely to have a significant effect on the interests of the whole or a substantial part of population of Jersey, or

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

In my view, neither of these thresholds are met.  The interests of a substantial part of the population are not affected - only a small portion - and the proposal is not a departure from the Plan at all let alone a substantial one. Whilst my view is not determinative (this is your territory alone) I do think that you should be aware of it before you make a decision.

In terms of confidence, I will of course keep this matter to myself.  However, you ought to be aware that the developer is already cognisant of your intention, as his agent telephoned me on Wednesday morning to discuss this issue - you may be assured that your intention was not leaked out of this office.

I will see that the papers are prepared but hope that the matter might be discussed before a final decision is made."

17.      On 20^th August 2021, Constable Le Sueur wrote formally to the planning officer, registering his support for the planning applications.  In line with the overwhelming majority of parishioners and tourists who visit Bouley Bay and those who attended the public exhibition regarding these applications at the Parish Hall, he wished to see the existing hotel redeveloped. 

18.      On 27^th August 2021, Mr Stein wrote to Mr Le Gresley indicating that he did not consider there existed a reasonable basis to conclude that the planning applications qualified for a public inquiry.

19.      On 31^st August 2021, Mr Markwell-Sales informed Mr Le Gresley that he had spoken to the Minister, who was minded to still proceed with a public inquiry and asking for him to prepare a ministerial decision. 

20.      The matter was discussed at a regular meeting between the Minister, the Deputy Minister, Mr Le Gresley and others on 1^st September 2021, the minutes of which provide as follows:

"The meeting then moved onto MENV's [the Minister's] request for a Public Inquiry into Bouley Bay.  Officers informed MENV that the applicant was aware of his intention and that it was the applicant's view that the move would be ultra vires to the powers afforded in the Planning and Building (Jersey) Law 2002.  Furthermore, that the applicant is minded requesting a judicial review if the direction of travel is maintained.  Having considered officer advice and the wider commentary surrounding the development, MENV instructed officers to continue with drafting the relevant Terms of Reference/Ministerial Decision and relayed the rationale underpinning his decision.  This included, but was not limited to, parking, culture, use of the area, wider concerns with regard to housing supply, best use of the site, proposed Planning Obligation Agreements reported to the media etcetera."

21.      In his affidavit, Mr Le Gresley sets out the advice given to the Minister during this meeting at paragraphs 16, 17 and 18 as follows:

"16      My advice to [the Minister] during this meeting was the same as I had given on 6 August 2021.  In summary, I advised [the Minister] that I did not consider that the details of the proposal met with the criteria for a Public Inquiry.  My view was that the public access and cultural matters raised by [the Minister] were all, so far as was possible, catered for within the terms of the planning application.  However, [the Minister] was, at the same time, engaged with other Government staff on the drafting of the emerging Bridging Island Plan.  [The Minister] was increasingly aware of the urgent need for housing in Jersey and, in turn, the requirement for land to meet this demand.  From this, I understood that [the Minister] remained concerned that such a large site (and development) could be developed and occupied by a single household.  I explained to [the Minister] that I did not consider that this was a relevant planning issue. The site which has been vacant for some years, did benefit from an extant planning permission for 25 apartments, but that this was only embedded within a planning permission, which any landowner could choose to implement or not.

17.      [The Minister] asked if any Island Plan policy touched on the issue of housing mix within a development.  I advised that only Policy H4 of the (then current) 2011 Island Plan addressed this matter.  However, in my view, Policy H4 was a general policy which sought to ensure that residential developments contribute towards the need for specific types and sizes of home, relative to the latest published evidence.  I further advised [the Minister] that the department routinely applied this policy to large developments of multiple units, to ensure a balanced mix of unit sizes and types. The department had not sought to apply the policy to large, single household developments, because the whole tenet of those schemes is for private residences. Unit size or type was not a relevant factor to such proposals. An applicant for such a development would have no interest or intention in engaging on that issue as their sole intention would be to develop a single home.

18.      Following this meeting and the Minister's decision that he wished to call the Application in for a Public Inquiry, I circulated a draft Ministerial Decision to the Minister's private secretary for the Minister's attention.  Whilst I did not personally draft the document, I did review it and send it to the Minister's private secretary, and this was prepared in accordance with the Minister's express instructions."

22.      A draft Ministerial Decision was circulated on the 7^th September 2021.  A further meeting with the Minister took place on 22^nd September 2021, the minutes of which read as follows:

"Next discussions focused on the ministerial decision to call a public inquiry into the planning applications at Bouley Bay.  MENV requested that the decision be updated to include reference to the housing mix (Policy H4) and emerging Island Plans.  Officers confirmed they would discuss this with policy colleagues and amend the draft decision as appropriate."

23.      Having consulted with Mr Kevin Pilley, the head of Place and Spatial Planning, Mr Le Gresley sent the Minister and his private secretary further advice on 22^nd September 2021:

"Hi Ben, John,

Following discussion with Kevin Pilley, we think that levering in Policy H4 is stretch for this scheme, but we recognise John's desire to do so.  Hence I have changed the third para in the MD, highlighted in green, so that there is a hook for the Inspector to examine Policy H4.

We will need an open discussion with the Minister, as it is likely that the department will recognise the benefits brought by the scheme to the National Park, and will struggle to object to it in housing terms.  So the scenario may be that the applicant will support the development and the department will not object.  Of course the Inspector will arrive at his/her own conclusion (as he did on Broadlands housing Phase 2) but I just wanted John to be aware that the department will put its own view (which is not necessarily the same as his).

24.      On 28^th September 2021, Mr Le Gresley was informed that the Minister had asked that the ministerial decision should include reference to the housing policies in the emerging Island Plan that were due to go out to public inquiry.  Additional wording was provided to that effect.

25.      The Ministerial Decision is headed "Decision Summary" and the Minister signed it on 1^st October, 2021 which is the date of the Decision.  The section headed "Reason(s) for Decision" provides as follows:

"Reason(s) for Decision:

In accordance with Article 12(1)(a) of the Planning and Building Law 2002, as amended, the Minister is satisfied that in the case of application P/202/0795, 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 historic activities.  The Minister wishes to examine the proposed development in terms of its delivery against the Park's stated purposes.  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 a large site as a single residence relative to existing and emergent Island Plan policies."

Grounds for Judicial Review

26.      It is well established that there are three grounds upon which an application for Judicial Review can succeed, namely that the decision was unlawful, irrational or flawed by procedural impropriety - Planning and Environment Committee v Lesquende Limited [1998] JLR (1). WE relies on the first only of those three grounds, namely that the decision was unlawful. 

27.      Advocate McNulty submitted that it was unequivocally clear that:

(i)        The Minister has misinterpreted and/or misapplied, the criteria within Article 12/(1)(a) to call in a planning application and his reasons for calling in the Planning Application do not provide a lawful basis for intervention consistent with those criteria which he was advised of and warned about by his most senior officer, Mr Le Gresley and chose to ignore. 

(ii)       If the Minister's reasons set out in his Ministerial Decision, signed on 1^st October 2021, are taken at face value, these do not disclose a correct understanding or application of Article 12(1)(a) and in particular a conclusion that the proposed development of a new home at Bouley Bay would "be likely to have a significant effect on the interests of the whole or a substantial part of the population of Jersey".  The Minister's stated reason, which seems to be concerned about housing need and supply, demonstrate that he did not understand or grapple with the essential legal components for the exercise of the power of intervention under Article 12(1)(a).  The stated reasons given in the Ministerial Decision do not provide a lawful basis for the exercise of that power, as indeed the Minister's most senior advisor warned him consistently; and/or

(iii)      The Minister purported to exercise his power under Article 12(1)(a) by reference to irrelevant considerations.  The Minister's apparent reasons for intervention under Article 12(1)(a) have been inconsistent as between 2^nd August 2021, 1st September 2021, 7^th September 2021, 22^nd September 2021 and 1^st October 2021.  However, none provide a lawful basis, consistent with Article 12(1)(a) for intervention, again as Mr Le Gresley consistently advised the Minister.  The emphatic and "Not negotiable" reasons given by the Minister himself for his intervention in the August 2021 emails do not provide a lawful basis for intervention under Article 12(1)(a). The "rationale underpinning his decision" given on 1^st September 2021 do not do so either.  The Minister's introduction, latterly, on 22^nd September 2021, of compatibility with policies on housing mix (Policy H4 of the Island Plan) and the emerging Island Plan do not fall within the scope of Article 12(1)(a).  Whichever of the range of different reasons given by the Minister over time for his intervention, none provide a lawful basis based on lawful considerations for intervention, as the Minister purports to do, under Article 12(1)(a) or indeed Article 12(a)|(b): and/or

(iv)      The true position is that the Minister had predetermined (as early as 2^nd August 2021) his decision to call-in the decision, which was purported to have been taken, following advice, on 1^st October 2021 and that predetermination was for reasons which fell outside the scope of Article 12(1)(a), as supported and reinforced by the evidence of Mr Le Gresley.  The Minister's emails of August 2021, and in particular his email of 2^nd August 2021, to Mr Le Gresley reveal that the Minister had firmly and definitively at that point decided to 'call in' the planning applications.  Indeed, the Minister could barely have expressed his instruction more emphatically: "I hereby call this application into a public inquiry.  Please acknowledge and confirm my instruction.  Not negotiable".  His further email of 3^rd August 09:15 hours giving his extra reason ("not that I need it") reinforces that he had reached a decision by that stage to intervene.  It follows that he had pre-determined the decision to call in the application well before his purported decision of 1^st October 2021 or even his meetings with advisors in September 2021.  Moreover, the reasons given by the Minister on 2^nd and 3^rd August 2021 do not provide any lawful basis for intervention whether under Article 12(1)(a) or (b) and are not based on the terms of Article 12 at all.  

28.      Advocate Rondel responded as follows:

(i)        The Minister did not misinterpret and/or misapply the criteria in Article 12(1)(a) to call in the planning applications.  The decision to call in the planning applications was a procedural decision in the sense that it is a decision as to how the planning applications are to be determined and is not a decision in respect of the planning applications themselves.  It is not determinative therefore of a civil right.  As such, it was not incumbent on the Minister to provide reasons for such a decision.  Article 22 of the Planning Law provides that reasons for decisions should be given on the refusal or granting of planning permissions.

(ii)       In any event, the Minister did provide reasons for the Decision.  It is clear from those reasons that the Minister had not misinterpreted or misapplied the criteria to call in a planning application for a public inquiry, as the Decision states on its face that the Minister was satisfied that 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.  Whilst Advocate McNulty placed great weight on the advice given by Mr Le Gresley, he had made it clear that the only opinion which matters for this purpose is the opinion of the Minister. 

(iii)      The Minister's reasons for calling in the planning applications did provide a lawful basis for intervention.  The Minister has political responsibility for how the planning system functions and it was entirely appropriate and lawful for the Minister to have regard to the Island Plan when making the Decision.  The Bailiff said at paragraph 29 of his judgment granting leave for Judicial Review (WE (Jersey) Limited v Minister for Environment [2022] JRC 044):

"...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." 

(iv)      Despite the submission that it was unequivocally clear that the Decision does not provide a lawful basis for intervention, the inverse was true.  In addition to the Island Plan, the Decision makes refence to the pressing housing need identified through the Objective Assessment of Housing Need (2018). Irrespective of whether or not Mr Le Gresley considered it to be a stretch, reference to this was clearly a reference to Policy H4.  This much can be inferred from the final draft version of the Decision which included reference to the "existing and emergent Island Plan policies". 

(v)       The Minister did not have regard to irrelevant considerations when deciding to call in the planning applications.  Advocate Rondel accepted that the two reasons put forward by the Minister in his email of 3^rd August 2021 (before he had received advice from Mr Le Gresley) namely, the loss of tourism on prime sites and land within the Coastal National Park being used for the benefit of high-net-worth individuals were arguably irrelevant considerations.  He submitted that when viewing the evidence as a whole, it was plain that these reasons were not taken into consideration by the Minister when he made the Decision.  The list of reasons set out in the minute of the meeting of 1^st September 2021 was expressed as being non-exhaustive, but there is no reference either to the loss of tourism on prime sites or land within the Coastal National Park being used for the benefit of high net worth individuals.  There was also clear reference to the Minister having considered officer advice on the wider commentary surrounding the development.  He was also increasingly aware of the urgent need for housing in Jersey.  At no stage during the process of formulating the ministerial decision is there any reference to the irrelevant considerations identified by Advocate McNulty.

(vi)      Whilst the Minister did not agree with the advice of Mr Le Gresley as to the threshold for Article 12(1)(a) of the Law, it is clear that the Minister did have regard to the advice of his officers, which can be seen from the Decision itself which the Minister signed personally, and which sets out his reasons.  It is wrong, therefore, to place any weight on the email sent out in early August, which did not form part of the reasons in support of the Decision. 

(vii)     The Minister did not pre-determine the Decision to call in the planning applications.  At best, it could be argued that the August emails demonstrate a pre-disposition on the part of the Minister, which is consistent with his preparedness to consider and weigh relevant factors when reaching a final decision, as opposed to a mind which is closed to the consideration and weighing of relevant factors.  It is clear from the evidence filed that the Minister did not have a closed mind in making the Decision.  Whilst the email of 2^nd August 2021 stated that his Decision was "Not negotiable", this was demonstrably untrue, when considered against the later actions of the Minister, made before the Decision.  Patently, the original position was negotiable, and the Minister had changed his position significantly since sending the August emails and having received advice from officers as it was appropriate in the circumstances.  Thus, the wording of the August email might be said to be unfortunate but could also be said to reflect the personality of the Minister and the fact that the emails were exchanged privately within the department.  The test for pre-determination is such that attention should not be focused on the wording of a particular email but rather on the conduct of the Minister in the round. 

(viii)    In order for WE to succeed on the ground of predetermination, it would need to demonstrate that: "In all the circumstances, a fair-minded and informed observer, having regard to the identified facts, would conclude that there was a risk or possibility of bias or pre-determination on the part of the Minister." (Kerley v Minister for Planning and Environment [2008] JRC 199 at paragraph 64.  A fair-minded and informed observer would consider the context of the matter and presume that the Minister would act in accordance with his oath of office and the conduct and practice of Ministers and Assistant Ministers.  At the very least, the Minister gave consideration to the email from Mr Le Gresley on 6^th August 2021 before the Minister's private secretary confirmed to Mr Le Gresley on 31^st August 2021 that he was "still minded to call the Application in for a public inquiry."  To make the Decision, the Minister simply had to be satisfied that 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.  This is a subjective, procedural, decision for the Minister.  He was advised that this was the test to apply and he confirmed that he was "still minded to call the Application in".  There is no evidence to suggest that the correct est was not applied at this point.

(ix)      A fair-minded and informed observer would conclude from the evidence that the Minister did not have a closed mind when making the Decision.  Whilst he expressed a pre-disposition for calling in the planning applications, he did not pre-determine the matter. 

Decision

No lawful basis for exercise of the power

29.      Advocate McNulty describes the powers given to the Minister under Article 12(1) as exceptional.  Mr Stein had prepared an overview of the ten previous decisions made under Article 12 of the Law, of which seven were made under Article 12(1)(b) involving substantial departures from the Island Plan and three under Article 12(1)(a).  Of those three, two related to the new General Hospital and one to the new secondary school at Les Quennevais. 

30.      It is the case that the Planning Law envisages that planning permissions will be determined either by the Chief Officer or the Planning Committee (Article 9) and it is fair to say that the requirement for a public inquiry, with the cost and delay that entails, means that in practice it will be exercised on the largest and most controversial developments effecting the interests of at least a substantial proportion of the population.  Whilst I accept that this power, bringing with it a public inquiry, will be exercised infrequently, that is not the same as saying that the existence of exceptional circumstances is part of the threshold for the exercise of the power.  The grounds upon which it can be exercised are those set out in Article 12(1).

31.      Whether or not the Minister was required under Article 12(1)(a) to give reasons for his decision, he has done so with those reasons being set out in the Decision Summary.  Those reasons, therefore, are open to judicial scrutiny. 

32.      It is axiomatic that in calling in the planning applications and ordering a public inquiry the Minister must act within the powers granted to him under Article 12(1)(a), the power upon which he relies.  As Lord Diplock said in the well-known case of Council of Civil Service Unions v Minister for Civil Service (3) ([1985] A.C. at 410-411):

"By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.  Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, or judges, by whom the judicial power of the state is exercisable."

33.      At first blush the suggestion that the Minister did not understand Article 12(1)(a) seems difficult to sustain.  Whatever his understanding may have been when he sent the email of the 2^nd August 2021, he was given clear advice by Mr Le Gresley by email on the 6^th August 2021 and verbally on the 1^st September 2021, with the minutes recording that he considered that advice.  That advice explained the threshold under Article 12(1) and, importantly, stressed that this was a decision for the Minister alone exercising his own judgment, notwithstanding the views of Mr Le Gresley.  As he was advised, it was entirely a matter for the Minister whether he was satisfied that the threshold was met.

34.      Advocate McNulty conducted a forensic analysis of the reasons given by the Minister.  Apart from repeating the wording of Article 12(1)(a), the Minister refers to a wish to examine the proposed development in terms of its delivery against the Coastal National Park's purposes.  Such a wish, she says, does not amount to a lawful or proper basis for calling in the planning applications under Article 12(1)(a) in that: 

(i)        It does not amount, as is required by Article 12(1)(a), to a "likelihood" or an "effect".  A desire to examine a proposal in terms of its delivery against the purposes of the Coastal National Park policy does not amount to a "likelihood" of the proposals having an "effect".

(ii)       The Minister's stated reason does not identify what the "effect" of the proposal is, such as to trigger intervention under Article 12(1)(a) or that any "effect" is "significant", and why.  An "effect" which is not "significant" would not trigger intervention. 

(iii)      Any "likely effect" is required to be an effect on the "interests of the whole or a substantial part of the population of Jersey" and nowhere in his stated reasons does the Minister state what "interests" are affected. 

35.      The second element of the Minister's stated reasoning is that the Minister is mindful of the urgent and pressing housing needs identified through the Objective Assessment of Housing Need which is to examine whether it is appropriate, in that context, to develop such a large site as a single residence relative to existing and emergent Island Plan Policies.  Advocate McNulty's submits that in this element of the stated reasons the Minister fails properly to understand and apply lawfully Article 12(1)(a).

36.      The Minister did not rely on Article 12(1)(b) and I accept that it would be contrary to the statutory context and objective for the Minister to use Article 12(1)(a) to justify intervention by reference to the Island Plan on a basis which would not trigger intervention under Article 12(1)(b).  To do so would, in effect, be to undermine and render otiose the limitations provided for by Article 12(1)(b) but I agree with Advocate Rondel's submission that the Minister was not misusing Article 12(1)(a) for this purpose and that it is not unlawful for the Minister to exercise his powers under Article 12(1)(a) by reference to the Island Plan and associated policies. 

37.      Advocate Rondel was concerned that for the Minister to articulate the threshold under Article 12(1)(a) any further than he has might be to pre-judge his final determination of the planning applications following a public inquiry.  As it transpires the Minister has not articulated any further than the reasons contained in the Decision Summary, but in my view the mere recognition of the public having an interest which a development is likely to effect significantly is not to pre-judge the outcome of the planning applications.  It is for the Minister to set the terms of reference for the Inspector, pursuant to the Planning and Building (Public Inquiries) (Jersey) Order, 2008, and his final determination would be informed by the outcome of that public inquiry.

38.      I bear in mind Advocate Rondel's point that this is a procedural decision as to how the planning applications are to be determined; it is not a decision on the merits of the Scheme.  Whilst it is correct that the Minister repeats the wording of Article 12(1)(a), his statement that he is satisfied that the threshold is met should, says Advocate Rondel, be taken at face value; there is no suggestion of bad faith.  

39.      Whilst the Minister does not then set out his reasons in legalistic form addressing each element of the threshold, he does refer to Bouley Bay being a special place for many islanders and associated to historic cultural activities, and could that be said to address that part of the threshold concerned with the interests of a substantial part of the population of Jersey?  Might it also be regarded as implicit that in the Minister's view the Scheme is likely to have a significant effect on those interests?

40.      The position I arrive at is as follows:

(i)        The Minister has given reasons for the exercise of this power and those reasons are subject to judicial scrutiny.

(ii)       Simply repeating the threshold as set out in Article 12(1)(a) is not enough to give reasons.  To give reasons is to explain why in this case he was satisfied the threshold was met.

(iii)      The reasons are therefore contained in that part of the "Reasons(s) for Decision" which starts "In Particular...".

(iv)      In giving reasons the Minister should be able, and should, articulate what they are.  He needs to explain why the Scheme is likely to have a significant effect on the interests of the whole or a substantial part of the population of Jersey.  This entails identifying what the interests of at least a substantial part of the population are and explaining why the Scheme is likely to have a significant effect on those interests. 

41.      If one accepts that in making the very broad assertion that Bouley Bay is a special place for many islanders and is associated with historic cultural activities, the Minister has identified the interests of a substantial part of the population, the Minister does not explain why the Scheme is likely to have a significant effect on those interests, and it is not enough to say that it is implied.  The word "likely" means probable or to be expected and the word "significant" means sufficiently great or important to be noteworthy.  The Minister merely says in his reasons that he "wishes" to examine the Scheme against the policies for the Coastal National Park and whether it is appropriate to develop such a large site as a single residence, but the Minister's wish to examine these matters does not meet the threshold for calling in the planning applications and justify the holding of a public inquiry. 

42.      I conclude that Advocate McNulty is right in her analysis that the reasons put forward by the Minister do not meet the threshold under Article 12(1)(a).  They do not explain why he is satisfied that the Scheme is likely to have a significant effect on the interests of the whole or a substantial part of the population of Jersey.  Whilst he may have identified what the interests of at least a substantial part of the population are, he has not explained why the Scheme is likely to have a significant effect on those interests.  That failure is fatal to the legality of the Decision in that it shows either that the Minister did not understand the threshold or that he was unable to explain why the threshold was met.  Either way the Decision must be set aside as unlawful.

43.      That being the case, it is not necessary for me to consider the other two grounds upon which Advocate McNulty seeks to impugn the Decision, but having heard submissions on them, I set out my conclusions that taken alone they would not have justified setting aside the Decision. 

Irrelevant considerations

44.      It is well established that if the Minister takes into account irrelevant considerations when coming to a decision, the Court may set his decision aside (see Re (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions and other cases [2001] UKHL 23 at paragraph 50).

45.      Advocate McNulty says that the Minister has given a range of different reasons for his decision over time, namely:

(i)        By his email of 2^nd August 2021, the huge public response and the importance of the Coastal National Park. 

(ii)       By his first email of 3^rd August 2021, that Constable Le Sueur has gone on to the radio that morning indicating his support for the development. 

(iii)      By his second email on 3^rd August 2021, the loss of tourism on prime sites in the Coastal National Park and land within the Coastal National Park being used for the benefit of high-net-worth individuals. 

(iv)      The rationale underpinning his decision as described in the minute of 1^st September 2021 including but not limited to what constitutes a list of headings. 

None of these reasons were expressed in the Decision Summary but it is plain, she said, that they are irrelevant matters to which the Minister had regard.

46.      Advocate Rondel responded that the reasons set out in the August emails, which he accepts were arguably irrelevant, were not referred to in either the minutes of 1^st September 2021 or the Decision Summary and that one should have regard only to the reasons set out in the Decision Summary following consultations by the Minister on receipt of advice from Mr Le Gresley. 

47.      I agree that one should have regard only to the reasons set out in the Decision Summary. As Lord Diplock said in Bushell and another-v-Secretary of State for the Environment [1980] 2 All ER 608 at page 613:

"To treat the minister in his decision-making capacity as someone separate and distinct for the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments though their names may change from time to time, remain. Discretion in making administrative decisions is conferred on a minster not as an individual but as the holder of an office in which he will have available to him arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the pollical head."

48.      The Minister has though his department given his reasons for the Decision and in principle that should not be undermined by a trawl though previous (mainly) internal communications in an effort to show that at an earlier stage the Minister may have held a different view or may have had in mind matters which are arguably irrelevant.  The Minister must be free to debate issues internally and for his thinking to evolve and change.  The Decision stands to be judged, not on the past history, but upon the reasons ultimately put forward in the Decision Summary.  

49.      The Decision Summary does refer to existing and emerging Island Plan policies.  There had been a discussion on the 1^st September 2021 about policies which touched on the issue of housing mix and Policy H4, which Mr Le Gresley said was a general policy which the department had not applied to single household developments (see above), but after consultation the department agreed that it could be levered into the decision at a stretch. It was included, following departmental advice, and I do not accept, therefore, that this can be characterised as an irrelevant consideration. 

Predetermination

50.      The issue of pre-determination was considered in the case of Kerley v the Minister for Planning and Environment and Another [2008] JRC 199 where the Court said this at paragraph 64:

"64.    As submitted by the Solicitor General, there is a difference between predisposition, which is consistent with a preparedness to consider and weigh relevant factors in reaching a final decision and predetermination, which involves a mind which is closed to the consideration and weighing of relevant factors.  It is for the appellant to demonstrate that, in all the circumstances, a fair-minded and informed observer, having regard to the identified facts, would conclude that there was a real possibility of bias or predetermination on the part of the Minister (see Porter v Magill [2002] 2 AC 367.  In Condron v National Assembly for Wales 92006) EWCA Civ. 1573, the English Court of Appeal made reference Paragraph 43) to a number of English cases drawing the distinction between the legitimate predisposition towards a particular outcome and an illegitimate predetermination of the outcome."

51.      The English Court of Appeal decision in Condron was concerned with a remark made by the Chairman of the Planning Decision Committee in a chance meeting with a member of the public before the hearing that he was "going to go with the Inspector's report".  Reference was made at paragraph 38 of the judgment of Richards LJ to the judgment of Scott-Baker LJ in Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 at paragraph 27:

"The test for apparent bias involves a two stage process.  First the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased.  Secondly, it must ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased ... An allegation of apparent bias must be decided on the facts and circumstances of the individual case.... The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing ..."

52.      Richards LJ explained at paragraph 45 that it was necessary to bear in mind the context in which words were spoken, in that case in a short and rather tense conversation following a chance encounter without preparation or warning.  Remarks made in circumstances such as this need, he said, to be treated with a considerable degree of caution.  The Court concluded that in these circumstances, there was no real possibility that the Chairman was biased.  In the wider context, this brief remark by the Chairman provided an insufficient basis for the suggestion that the decision was approached with a closed mind and without impartial consideration of all the relevant planning issues (paragraph 57).

53.      We are concerned here with the Minister's first email of 2^nd August 2021 to Mr Le Gresley, which I repeat:

"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."

54.      Advocate McNulty argued that the Minister had expressed himself in language that was determinative.  Reference to it being "not negotiable" can only have been directed at his own head of department and gives the clearest indication, she said, that his mind was closed on the issue.  As the Bailiff said at paragraph 35 of his judgment giving leave for Judicial Review:

"At the very least it does seem that the expression "negotiable" requires in the context of this matter some explanation."

No explanation has been forthcoming from the Minister, who has not provided any evidence.

55.      As Advocate Rondel points out, this email was sent by the Minister when he was apparently on holiday and it is an internal email to his head of department.  I accept that the language is unfortunate and that there is no explanation forthcoming from the Minister as to what he meant, but I presume he meant that his instruction to call in the planning applications was not negotiable within the department. 

56.      However, it is necessary to look at the Minister's conduct thereafter in that he did agree to take no action until he returned from holiday and had a meeting.  He later referred to it as a request rather than an instruction.  He then attended meetings on the 6^th August and 1^st September 2021 where it is recorded that he did consider the advice given by the department and did consider and weigh up a number of factors.  The Decision was not issued until the 1^st October 2021. 

57.      It is not contended that this decision was one which gave rise to a duty of consultation as part of the Minister's duty of procedural fairness (see Electronic Collar Manufacturers Association and another v The Secretary of State [2019] EWHC 2813 (Admin) at paragraph 27). It was a procedural decision for him alone to make, but taking into account all of the circumstances, and in particular the subsequent conduct of the Minister, I conclude on balance that this falls on the right side of demonstrating a predisposition on the part of the Minister to call in the planning applications as opposed to a predetermination to do so.  He had not closed his mind to the consideration and weighing up of relevant factors in the period leading up to the Decision. 

Conclusion

58.      For the reasons set out above, I set aside the Decision as being unlawful. 

Authorities

Planning and Building (Jersey) Law 2002. 

Planning and Environment Committee v Lesquende Limited [1998] JLR (1).

WE (Jersey) Limited v Minister for Environment [2022] JRC 044.

Kerley v Minister for Planning and Environment [2008] JRC 199. 

Council of Civil Service Unions v Minister for Civil Service (3) [1985] A.C. at 410-411.

Planning and Building (Public Inquiries) (Jersey) Order, 2008. 

Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions and other cases [2001] UKHL 23.

Bushell and another-v-Secretary of State for the Environment [1980] 2 All ER 608. 

Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117.

Electronic Collar Manufacturers Association and another v The Secretary of State [2019] EWHC 2813 (Admin).