Before : |
Advocate David Michael Cadin, Master of the Royal Court. |
|||
Between |
Heidi Jane Heath |
Appellant |
|
|
And |
The Minister for the Environment |
Respondent |
|
|
The Appellant in person.
Advocate J. P. Rondel for the Respondent.
judgment
the master:
1. This application concerns an appeal issued by Ms Heath (the "Appellant") under Article 116 of the Planning and Building (Jersey) Law 2002 (the "2002 Law"). It raises a narrow point of construction, namely when time starts to run for the purposes of an appeal. If the appeal is out of time, the Appellant seeks an extension of time in which to appeal.
2. Ms Heath's appeal is under Article 116 of the 2002 Law, which provides that:
(1) Having considered the inspector's report under Article 115, the Minister shall determine the appeal, and in so doing shall give effect to the inspector's recommendation unless the Minister is satisfied that there are reasons not to do so.
(2) For the purposes of paragraph (1) the Minister may -
(c) dismiss the appeal; and
(3) As soon as practicable after the Minister has determined the appeal, the Minister shall give notice in writing of the determination to -
(a) the appellant;
(b) the Greffier;
(c) the decision-maker; and
(d) any other interested party.
(4) The Minister shall make reasonable arrangements for access by the persons mentioned in paragraph (3) to the inspector's report under Article 115, and the notice given by the Minister under that paragraph shall include -
(a) details of how copies of the inspector's report may be obtained or where the report may be viewed, or both, as the case may be; and
(b) if and to the extent that the Minister does not give effect to the inspector's recommendation, the full reasons for the Minister's decision.
(5) No further appeal shall lie from the Minister's determination under this Article except to the Royal Court on a point of law.
(5A) An appeal under paragraph (5) must be made within the period of 28 days beginning with the date of the determination.
3. The relevant chronology is as follows:
12 January 2022 Planning Application P/2021/1886 was submitted on 12 January 2022 to apply for permission to construct, amongst other things, a two-bedroom dwelling within the residential curtilage of a property known as Pine Grove, Le Vieux Mont Cochon, St. Helier.
13 July 2022 Planning permission was granted.
9 August 2022 Ms Heath appealed against that decision under Article 108 of the 2002 Law.
11 October 2022 Ms Heath issued an application for leave to apply for judicial review of the Minister's decision not to refer Planning Application P/2021/1886 to the Planning Committee.
30 January 2023 The Minister decided to dismiss the appeal.
15 February 2023 The Minister signed the decision to dismiss the appeal. According to the affidavit filed on behalf of the Minister, the delay was down to "the paperwork in respect of the ministerial decision...being finalised, other appeal decisions being made and non-planning States Business that the Minister had to attend to during this time."
17 February 2023 The signed ministerial decision was emailed to the Judicial Greffe, published on the planning department website and sent to Ms Heath. It was apparently not sent for publication when signed through "administrative oversight."
16 March 2023 Ms Heath issued a Notice of Appeal which was served by the Viscount on both the Minister and Mr de Gruchy.
21 March 2023 Ms Heath sent the Judicial Greffier a copy of the Notice of Appeal and the Record of Service.
15 May 2023 The hearing listed for 16 May 2023 was vacated and the Court stayed the appeal pending determination of the Appellant's application for judicial review and further directed that "no later than 14 days before the said directions hearing...the appellant shall confirm whether she will seek an extension of time to appeal in the event that her appeal is out of time and in the event, she does so confirm, shall file all evidence upon which she wishes to rely in relation thereto."
29 June 2023 The Bailiff refused the Appellant's application for leave to apply for judicial review.
4. The Appellant was notified of the Minister's decision by email on 17 February 2023, timed at 15:44, informing her that "both the Inspector's report and the Minister's decision will be published shortly on the planning register".
5. The planning register is contained within the planning section of the Government of Jersey's website and recorded in relation to the appeal that:
(i) the "decision date" was 15 February 2023;
(ii) the "Appeal decision date" was 30 January 2023; and
(iii) the document entitled "Appeal Minister's Decision" was dated 17 February 2023.
6. Notwithstanding three different dates being given on the website by the Minister for the decision, it is clear on the face of the signed Ministerial Decision summary (a copy of which was attached to the Appellant's Notice of Appeal) that the date of the decision to dismiss the appeal was 30 January 2023. This is consistent with both the contents of the affidavit filed on behalf of the Minister and the Bailiff's judgment in relation to the application for leave to apply for judicial review in which he recorded that the appellant's appeal "was dismissed on 30 January 2023".
7. Article 116(5A) of the 2002 Law provides that any appeal "must be made within the period of 28 days beginning with the date of the determination". On an ordinary reading of Article 116(5A), it might be thought that relevant date for the purposes of calculating the period for appeal would therefore be 30 January 2023 such that the "within 28 days" period expired on 26 February 2023 (i.e. within 28 days of 30 January 2023). However, neither party contends for such a date:
(i) Advocate Rondel for the Minister submits (as he did at the judicial review application) that the Minister's determination was not signed until 15 February 2023 and although the 2002 Law provides that time starts running with the date of determination, where the date of signature is later, the date of signature is to be preferred such that the "within 28 days" period expired on "close of business on 14 March 2023";
(ii) Ms Heath submits that as the Minister's decision was neither notified nor published until 17 February 2023, time did not start running until that date and the "within 28 days" period therefore expired on 16 March 2023.
8. The Minister's position is that it is in the interests of administrative certainty to adopt the date of signature as being the date of determination as it enables every party to know who made the decision, on what date and for what reason(s). However:
(i) There is no formal requirement under the 2002 Law for a decision or determination by the Minister to be in any particular form or to be signed by the Minister. To that extent, requiring the decision to be signed before time may start running for the purposes of an appeal is an arbitrary requirement and not one envisaged within the provisions of Article 116 of the 2002 Law.
(ii) Insofar as concerns the Appellant and/or any interested parties, the date of signature is no better a date to start time running than the date of the decision in that without notification of the decision, no one other than the Minister will be aware that time has started running for the purposes of an appeal.
(iii) If the Minister wanted to ensure that time only started to run on signature, a suitable internal procedure could have been implemented to ensure that the determination was only made when the decision was signed. No such procedure was adopted.
(iv) Advocate Rondel was unable to point to any statute or authority which might enable me to read Article 116(5A) as having the words "being signed by the Minister" added at the end.
9. Similarly, Ms Heath was unable to point to any authority which might enable me to read Article 116(5A) as having the words "being signed and published by the Minister" added at the end.
10. Ms Heath does, however, make the powerful point that an interested party cannot exercise any rights of appeal unless and until they know that a determination has been made and have been made aware of the nature of that determination. Accordingly, she submits that time can only start to run for the purposes of an appeal when the Minister's decision is notified to the appellant and the other interested parties, and on notification, the Minister's decision becomes a "determination" for the purposes of Article 116.
11. In my judgment, although there is much force in this submission, it does not reflect the wording of Article 116:
(i) that Article is entitled "Minister's decision on appeal etc" and sets out the process to be followed by the Minister;
(ii) under Articles 116(1) and 116(3) the Minister must consider the inspector's report, determine the appeal and "as soon as practicable" thereafter the Minister shall give notice in writing of the determination;
(iii) the word "determination" is not defined in the 2002 Law and giving it its ordinary meaning, simply refers to the Minister's final decision in relation to the appeal;
(iv) this interpretation accords with there being a single determination under Article 116(1) followed by a notification of that determination; nowhere does the Article envisage a "decision" under Article 116(1) being elevated into a "determination" on notification under Article 116(3);
(v) the use of "as soon as practicable" in Article 116(3) can be contrasted with the phrase "immediately on determination" and inevitably creates the possibility of a delay between the Minister's determination and his notification of that determination if, for whatever reason and whatever period, it is not practicable for the Minister to give notice;
(vi) notwithstanding the possibility of such a delay, the legislature linked the time period for appeal under Article 116(5A) to the date of the determination and not to the date(s) of individual notification (which could have led to a multiplicity of appeal periods) or wider publication (if different);
(vii) had the legislature wished to link the time for appeal to the date(s) of notification or publication on the planning register, it could have done so relatively simply; the fact that it chose not to is significant and, in my judgment, militates against Ms Heath's proposed interpretation.
12. In my judgment, the wording used in Article 116(5A) is clear and unambiguous. It refers to the "date of the determination" which is when time starts running for the purposes of an appeal. Accordingly, I find that Ms Heath's appeal should have been served within 28 days of 30 January 2023, namely by 26 February 2023. It was not served until 16 March 2023 and is therefore out of time.
13. Having found that the appeal is out of time, the Appellant seeks an extension of time.
14. When adjourning the matter on 15 May 2023, the Court directed the appellant to "file all evidence upon which she wishes to rely" no later than 14 days before the hearing. Ms Heath chose not to file any evidence at all. Further, during the hearing, and in response to a specific question from the Court, Ms Heath indicated that she was not seeking to rely on any evidence relating to her property. She confirmed that the sole basis of her application for an extension of time is the allegedly exceptional circumstances concerning:
(i) the date of notification of the decision;
(ii) the dating of the "Appeal Minister's Decision,"
(iii) the fact that the Minister brought this on himself by failing to comply with the provisions of the 2002 Law; and
(iv) that it would be unfair to apply the time limit.
15. However, the test to be applied is not simply whether exceptional circumstances exist. In Minister for Planning and Environment v Herold [2014] JRC 020 (which was subsequently applied in Guest v Planning and Environment Minister [2017] JRC 069 and Richardson v Minister for the Environment [2020] JRC 232), the Royal Court held that:
"Subject to (ii), where a statute provides a fixed time limit for an appeal, the Court has no discretion under RCR 1/5 or under its inherent jurisdiction to extend that period. It has no jurisdiction to hear an appeal brought out of time. If the States wishes to confer a discretion on the Court to extend the time limit, it may of course do so by specifically conferring such a power in the relevant statute; but if it does not do so, that is the end of the matter.
However, where an appeal involves the determination of a 'civil right' for the purposes of Article 6 ECHR (but not otherwise) the Court may read down the provisions of the statute in accordance with Article 4(1) of the Human Rights (Jersey) Law 2000 so as to give effect to the statute in a way which is compatible with Convention rights. This involves asserting a discretion to extend the time limit in the case before it if it concludes that application of the time limit to the particular facts would 'impair the very essence' of the right of access to the Court for the appeal.
Such a discretion can only arise in exceptional circumstances and where the appellant personally has done all he can to bring the appeal timeously (i.e. within the prescribed time limit). Adesina indicates how difficult it may be for an appellant to convince the court that his circumstances are exceptional and emphasises that the scope for departure from the time limit is extremely narrow.
Application to the facts
52. It follows that I must first consider whether this appeal involves the determination of a civil right for the purposes of Article 6 ECHR, that being the only Convention right which it is argued may be applicable. If it does not, that is the end of the matter, and the time limit cannot be extended. If it does, I must then go on to decide whether there are exceptional circumstances which require an extension to be granted so as not to impair the very essence of the right of access to the Court..."
16. The first issue to be considered is whether the appeal involves the determination of a civil right for the purposes of Article 6 ECHR. As Counsel for the Minister noted in Minister for Planning and Environment v Herold:
"...on the particular facts of this case, Article 6 was engaged because the appeal will involve the determination of Mrs Herold's civil right by reference to the fact that, if the development were to proceed, it would be likely to affect the market value of her property. However, he emphasised that this would not necessarily be the case with every third party objection to a planning application and every case would have to be considered on its individual facts".
17. Civil rights are not simply limited to matters which affect the market value of property but rather extend to the rights that a person has in that property. In Guest v Planning and Environment Minister (which he followed in Richardson v Minister for Environment), Master Thompson found that Article 6 is engaged where a party's right to "use, enjoy and own" the immoveable property is impacted. In so finding, Master Thompson followed (and quoted from) the English decision of in R (Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions and Others [2002] 1 WLR 1450 (the "Friends Provident decision"). Paragraphs 62 and 63 of the Friends Provident decision are particularly relevant to the issues in this application:
"62. Mr Katkowski submitted that the civil right with which this case is concerned is Friends Provident's right of property in Castle Mall, namely its right to own, use and enjoy Castle Mall, i.e. its "rights to the ownership, use (and) enjoyment of land" a right which is expressly recognised by Lord Hoffman in Alconbury at paragraph 65. Mr Katkowski also made the necessary but uncontroversial point that the right of property is a civil right within the meaning of Article 6 of the Convention: see Zander at paragraph 27, page 185. As Mr Katkowski pointed out, the right of "property" is expressly protected by Article 1 of the First Protocol to the Convention, where it is described as "the peaceful enjoyment of ... possessions": see paragraph 3 above. Mr Katkowski also submitted that the European Court of Human Rights ("the ECHR") has expressly held that the economic interests connected with "running" a business, including its "goodwill and value" are "possessions" for the purposes of Article 6: see Tre Traktorer Aktiebolag -v- Sweden 13 EHRR 309, paragraphs 39 to 43.
63. In my opinion, Mr Katkowski is correct in his submission that this case is concerned with Friends Provident's civil right of property in Castle Mall, that is to say Friends Provident's right to use, enjoy and own Castle Mall."
18. Ms Heath's notice of appeal records that:
"4. The Planning Application is to construct a new two-bedroom house in the garden of Pine Grove and to extend the roof of the current building at Pine Grove. The Planning Application is a "major" application.
5. Pine Grove is adjacent to, and South of, Les Champs House, where the Applicant lives. Pine Grove and Les Champs sit in the sensitive coastal zone of St Aubin's Bay, in the Green Backdrop Zone surrounded to the West, North and East by Green Zone.
6. Les Champs is one of a number of listed buildings in the area, including eleven on Mont Cochon/Le Vieux Mont Cochon and four on La Rue de Trachy. Pine Grove is one of the more prominent buildings in the area enjoying an elevated position within St Aubin's Bay. It is visible from Noirmont to Elizabeth Castle...
41. The new two-bedroom property provided for under this application with its terraces and balcony would dominate the area. It would be a visually prominent, obtrusive and oppressive mass causing a significant reduction in the Green Backdrop Zone with greater south facing bulk, discernible even from a distance. Seen by the public in its entirety, the scale of the proposed development would be a major and incongruous component in the landscape. This, in addition to the increase in size and scale of the existing building which is also proposed would wholly undermine the setting: it would be a significant and undeniable land - take within the Green Backdrop Zone.
42. This application would involve the loss of a previously undeveloped site; unacceptable increases the visual prominence of the development and is on a steep slope, where extensive earthworks may be required. It is not appropriate in scale or design...
45. This proposed development does not enhance or protect the strategic views, important vistas, and the setting of the listed building next door. Increasing the scale and height of the existing building and building an entirely new dwelling would have the opposite effect...
47. This application...affects a listed building and rather than improving the significance of that listed buildings, detracts from it...
49. This application...affects the setting of a listed building; fails to respect the landscape and makes a negative (instead of a positive) contribution to the local character of the place...
59. My interest in the subject matter of this appeal is that I live in the neighbouring property Les Champs..."
19. That Notice of Appeal has, as yet not been determined and no findings have been made as to whether all or any of these assertions of fact are correct. Moreover, the Notice of Appeal is not supported by any affidavits, reports, plans, drawings or conveyances, and Ms Heath has declined on two occasions to adduce such evidence notwithstanding that the Minister submitted in a skeleton argument filed in May 2023 that there was no evidence that Article 6 was engaged.
20. In my judgment:
(i) the basis of Ms Heath's occupation of Les Champs is wholly unclear (she could be a guest, tenant or owner) and the Court cannot make any determination as to the extent of Ms Heath's "right of property" in Les Champs without evidence as to the basis of her occupation;
(ii) nor in the absence of any evidence can it assess whether that right of property is or might be impacted by the proposed development, or what the extent and nature of any possible impact might be;
(iii) there is no evidence before me upon which I can find that Article 6 ECHR is engaged.
21. Such a finding is determinative of the application for an extension of time. However, even were I to have been satisfied that Article 6 ECHR was engaged, given the absence of any evidence I would not have been satisfied that exceptional circumstances existed, nor would I have been able to find that the Appellant acted timeously.
22. As to exceptional circumstances:
(i) Whilst a delay in notifying a decision (or not notifying at all as in Richardson) could, in my judgment, amount to exceptional circumstances, there is no evidence in this case that the Appellant was prevented from, or otherwise hindered in, filing any appeal by dint of the Minister's delay (such as might occur were the Minister to have delayed for 29 days after his decision before notifying any interested party).
(ii) Similarly, in my judgment, misdating the record of the Minister's decision could amount to exceptional circumstances. However, the "Appeal Minister's Decision" dated 17 February 2023 on the planning register also recorded the date the Minister actually made his decision and the date on which he signed it. There is no evidence in this case that the Appellant was prevented from, or otherwise hindered in, filing any appeal as a result of that document being dated on the planning register 17 February 2023.
(iii) The Master noted in Guest at paragraph 70 that "It may be that Mr Guest was lulled into a false sense of security because of the advice received from Collas Crill. However, I am not persuaded this amount to exceptional circumstances." In my view, any misreading of the "Appeal Minister's Decision" by the Appellant such that she failed to appreciate that it evidenced a decision taken on 30 January 2023 and/or any miscalculation by her of the deadline for an appeal are insufficient of themselves, to amount to exceptional circumstances.
(iv) In my judgment, the Minister's delay in notifying the Appellant of his decision and/or the dating of the "Appeal Minister's Decision" are insufficient to amount to exceptional circumstances which impair the very essence of the right of access to the Court:
23. Further, in the absence of any evidence as to what the Appellant did after notification on 17 February 2023, I cannot be satisfied that the Appellant did all she could to bring the appeal on timeously. In particular, there is no evidence to indicate that the Appellant took any steps after publication of the "Appeal Minister's Decision" or receipt of the underlying document to clarify or to confirm, with the Minister or otherwise, the timescale for an appeal. Nor is there any evidence to show why the Appellant could not have filed a notice of appeal (whether as currently drafted or otherwise) in the time available.
24. Insofar as the Appellant submits that to apply the time limit would be "unfair," unfairness is not the test; there must be exceptional circumstances which require the extension to be granted so as not to impair the very essence of the right of access to the Court. I also note the comments of the Court in Barker v Hambleton District Council [2012] EWCA Civ 610, quoted by the Master in Guest, which I repeat here:
"29 There is another aspect of the case which seems to me to be significant. Important planning decisions are not simply of bilateral significance. They affect many interests. In a case such as the present other interested parties were entitled to assume, without the need to engage in litigation, that if no valid application was made within the statutory time limit, the ADPD would be beyond challenge."
Authorities
Planning and Building (Jersey) Law 2002.
Minister for Planning and Environment v Herold [2014] JRC 020.
Guest v Planning and Environment Minister [2017] JRC 069.
Richardson v Minister for the Environment [2020] JRC 232.
R (Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions and Others [2002] 1 WLR 1450.