ο»Ώ
Before : |
T. R. Mowschenson, Esq., Commissioner, and Jurats Opfermann and Berry |
Between |
Michael John Neville |
Plaintiff |
And |
Keith Bray |
First Defendant |
|
Jerry Bolton |
Second Defendant |
|
Andrew Scate |
Third Defendant |
|
Daniel Scaife |
Fourth Defendant |
|
Robin Morris |
Fifth Defendant |
|
Tracey Ingle |
Sixth Defendant |
|
Peter Le Gresley |
Seventh Defendant |
|
Marion Jones |
Eighth Defendant |
|
States Employment Board |
Ninth Defendant |
Advocate M. L. Preston for the Plaintiff.
Advocate S. A. Meiklejohn for the Defendants.
judgment
the COMMISSIONER:
1. This matter concerns a complaint by Michael John Neville (-the Plaintiff-) against the above-named defendants on the grounds that their actions in relation to various planning matters described below amount to misfeasance or malfeasance in public office and caused him loss and damages. The States Employment Board (-the Ninth Defendant-) is a party on the basis that it is vicariously liable for the acts and omissions of the First to Third and Fifth to Eighth Defendants as their employer at the material time. The particular roles of the First to Eighth Defendants are described below.
2. On 28 August 2024 Master Cadin ordered that there should be a split trial of liability and damages. This judgement deals with the issue of liability.
3. We heard evidence from the following persons:
For the Plaintiff:
(i) The Plaintiff: The Plaintiff is an experienced builder having carried out many building renovations since 1985. He specialised in buying older properties and refurbishing them, as well as purchasing sites and constructing new properties on them. The Plaintiff provided a 156-page comprehensive witness statement. His evidence was coloured by his sense that he had been unfairly treated, and he had a tendency on occasion to infer that certain of the Defendants who were making innocuous statements were making adverse or unhelpful comments directed at him. He was also in the course of 2008 to 2010 dealing with planning issues in relation to Nos. 17 and 19 Devonshire Place (respectively -No 17- and -No 19- and together described as -the Properties-). In addition, he suffered from stress because of the manner in which he perceived his applications were dealt with. He was capable of making remarks which could be perceived as threatening, such as that to Mr Bray outside the court on 1 September 2010, relating to a planning official shot by an unhappy applicant in England; the threat to Advocate Morris when he said to him in a supermarket some years after the prosecution that he would -get him-, and in early 2011 he behaved in such a volatile manner in the Planning Department's reception area when he was dealing with Ms Ingle, that a Potentially Violent Person Incident Form was completed and the Plaintiff written to by the Planning Department requesting him to temper his behaviour in the future. In addition, his belligerent approach to the Planning Department's decisions led him to refuse to appeal the refusal of a Retrospective Planning Application relating to windows in the Properties, or to appeal the Enforcement Notice, or take any other steps which might have led to the Enforcement Notice being withdrawn. As he himself said, in an interview under caution with Mr Bray on 1 June 2010 in the context of the possibility of changing the windows, he would prefer to go to court.
(ii) Mr Michael Waddington: He is a highly respected architect. He was retained by the Plaintiff from about February 2009 for part of the period we are concerned with, and he liaised with the Planning Department in an effort to get retrospective permission for the plastic windows inserted at the rear of the Properties and the separate unit at the rear of No 17. We are satisfied that his evidence was truthful and that he attempted to assist the Court to the best of his ability.
(iii) Mr Ben Shenton: Mr Shenton was a Senator of the States of Jersey between 2005 and 2011. He was interested in planning issues. He regarded the dispute over the plastic windows as a minor infraction of planning law in which the Planning Department was being heavy handed. However, he noted that the Plaintiff had become obsessed with the issue to the detriment of his health and financial wellbeing. He regarded the Plaintiff as a vulnerable person and on 26 September 2010 wrote to Mr Scate drawing his attention to provisions of UK planning law in respect to dealing with vulnerable people and the effect of delay. Mr Scate noted his comments and emailed Mr Bray and Mr Bolton to the effect that these considerations were worthy of consideration in the enforcement policy. Mr Bray responded to Messrs Scate and Bolton on 29 September 2010 to the effect that he could not see where Mr Shenton was coming from. He noted that the Plaintiff was served with the Enforcement Notice and inexplicably stated that he would not appeal and was looking forward to going to Court. -He got his wish-. Mr Shenton ceased his involvement after being informed that the Plaintiff had made a threat against members of the Planning Department on 1 September 2010 and being informed that the matter had been referred to the police.
The Defendants:
(iv) Mr Keith Bray: Mr Bray served as an RAF Police Officer between September 1975 and August 1982. He was a member of the Jersey Police between September 1982 and May 2008. In May 2008 he joined the Planning Department as one of two Enforcement Officers. He remained an Enforcement Officer until 2019 when he retired. Initially he worked with Mr Bisson and from September 2009 with Mr Bolton who were also enforcement or compliance officers. His first involvement with the Plaintiff related to the preparation and service of the Enforcement Notice. Until that time he had never met the Plaintiff. He attempted to assist the Court by providing truthful evidence and readily admitted in the course of his evidence that the plastic windows inserted by the Plaintiff replaced Crittall metal windows and not timber windows but gave evidence that he lost sight of that because he became confused with references to -original' windows which he understood to be the windows in the properties prior to 1972 and which were timber windows.
(v) Ms Marion Jones: Ms Jones is a Senior Chartered Town Planner working in the Planning Team within the Planning Department. She has worked in the Planning Department since 2004. In her current role she regularly attends Planning Committee meetings to present planning applications and reviews of decisions to the Planning Committee. She first became involved with the Plaintiff in 2005 in relation to a planning application submitted by the Plaintiff in relation to a property, Ainland, Georgetown Park Estate, St Clement and with the Plaintiff's application in relation to the Properties on 10 April 2008.
(vi) Mr Jeremy Bolton: Mr Bolton served as a police officer in the States of Jersey Police from 1993 to 2009 and from September 2009 to March 2017 as an enforcement, later known as compliance, officer with the Planning Department. Compliance matters were shared between Mr Bray and Mr Bolton who dealt with their respective matters separately, but they discussed matters between them when issues arose. He first met the Plaintiff when he visited a building he was renovating in Regent Road which Mr Bray was reviewing but had no recollection of what the planning issue was in relation to that property. In addition, he could recall meeting the Plaintiff on another occasion but could not recall the subject matter of the meeting. He attended the interview under caution with the Plaintiff carried out by Mr Bray on 1 June 2010. He was also asked by the Law Officers' Department to ensure that any evidence relating to the prosecution of the Plaintiff had been disclosed. Certain documents were not disclosed and that is referred to below. He had a limited involvement in the events described below.
(vii) Mr Peter Le Gresley: Mr Le Gresley worked in the Planning Department for over 30 years. Between 2001 to 2011 he was the Assistant Director of the Planning Department and in 2011 became, with two others, a Director of the Planning Department on the retirement of Mr Peter Thorne who was at all material times the Director of the Planning Department. Mr Le Gresley had been involved in a previous application submitted by the Plaintiff in relation to a house in Georgetown Park Estate which was originally refused on the recommendation of Ms Jones. He supported the refusal which was reversed by Mr Thorne. He also had some involvement in relation to an application relating to a property in. Aquila Road. Other than these matters, he had had no substantial involvement with the Plaintiff until his involvement with applications relating to the Properties described below.
(viii) Ms Tracey Ingle: Ms Ingle is a Chartered Town Planner (a member of the Royal Town Planning Institute) and heritage specialist and is a member of the Institute of Historic Building Conservation. Amongst other qualifications she has a Diploma in Town Planning and a Diploma in Urban Design and has worked as a town planner with heritage and design matters since 2008 with various local authorities. She was appointed to the post of Principal Historic Environment Officer of the States of Jersey (now Government of Jersey) in March 2009. Her appointment appears to have been as part of the Government's policy of increasing the protection afforded to historic buildings in Jersey arising from a perception that controls then in place were not being implemented with sufficient rigour. In her evidence she demonstrated a comprehensive understanding of planning issues, the rules and principles of which she applied vigorously.
(ix) Mr Andrew Scate: Mr Scate was the Chief Executive Officer of the Planning Department from August 2008 to July 2018. He is currently the Chief Officer of the Infrastructure and Environment Department. He had the role of managing the Planning Department including its finances, processes and organisation governance. He did not have regular involvement in day-to-day planning issues. Those were left to the responsible officers involved in making planning decisions or issuing advice in respect of matters affecting historic buildings. He would become involved if matters escalated to the extent that there was litigation, or a threat of litigation, if formal complaints were made. He had no involvement in making decisions affecting the Properties but was involved when he received information that the Plaintiff might have made a threat against the planning officers or behaved in an unacceptable manner in the offices of the Planning Department. He played no part in the criminal trial held on 25 and 26 November 2010.
(x) Mr Robin Morris: Advocate Morris was an advocate of the Royal Court having taken his oath as an advocate on 1 March 1990. At all material times he was employed as a legal adviser in the Law Officers' Department in Jersey and undertook prosecutions in the Magistrate's Court. He had also, at one time, conducted prosecutions in the Royal Court but had given up that role due to the stress involved in conducting prosecutions in both courts. He conducted the prosecution of the Plaintiff in the Magistrate's Court on 25 and 26 November 2010. He has retired due to ill health and due, in part, to the medication he had been taking at the material time, had no direct recollection of the events involving the prosecution of the Plaintiff. He did his best to assist the Court but was totally dependent on the written material put to him and he may well have been suffering from ill health at the time of the criminal trial.
(xi) Mr Daniel Scaife: Mr Scaife is a Centenier of the Parish of St Helier and has held that position for 25 years. His department was responsible for drawing up the charges to be presented in the Magistrate's Court. The procedure in 2010, in relation to a complaint emanating from the Planning Department, was that the Enforcement Officer (in this case Mr Bray) would compile a file of the relevant papers - including a draft of the potential charges for breaches of the planning law - to be considered by the Charges Office. The Charges Office would then draft the actual charges to be presented to the Magistrate's Court by the Centenier. In the normal course of events Mr Scaife would have gone through the file with Mr Bray to discuss the charges and the public interest in bringing the charges would have been considered at that stage. A copy of the charge would then have been sent to the Law Officers' Department to ensure that the particulars were correct in the charge sheet. Mr Scaife presented the charges to the Magistrate on 4 August 2010 when not guilty pleas were given by the Plaintiff. The matter was adjourned, and the case was passed to the Law Officers' Department to be managed by Advocate Morris. Thereafter Mr Scaife played no part in the matter and did not participate in the trial held in November 2010.
4. In reaching our determination we shall deal with the issues raised in the Order of Justice. In support of the Plaintiff's case, he submitted an affidavit running to 156 pages and some 585 paragraphs. We do not propose to deal with every factual matter described in it but will - broadly - confine ourselves to what might be, or is, relevant to the issues raised in the Order of Justice.
5. The standard of proof is the usual civil standard of proof - the balance of probabilities. There is no heightened standard of proof simply because the allegations which each party makes against the other are, as in the present case, of a serious nature - see the decision of the House of Lords in Re B [2008] UKHL 35 and of the Supreme Court in Re S-B [2009] UKSC 17. However, where an allegation of serious impropriety is made, the Court will require cogent evidence before it will be satisfied that the allegation is made out.
6. Although the overall assessment of the evidence in connection with a claim is within the sole province of the Court, the presence of contemporaneous documents (and their contents) will be of substantial importance in that assessment, particularly in a case where the allegations go back many years. As Leggatt J observed in Gestmin SGPS SA v Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm), at [22] -
-...the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.-
7. On 30 November 2007 the Plaintiff and his wife purchased the Properties. In the back garden of No 17 there was a self-contained one bedroom unit (-the Garden Unit-). The Properties (including the Garden Unit) were in a very bad condition being infested with vermin and were dilapidated. The Properties were designated as Buildings of Local Interest (-BLIs-) which resulted in them attracting special protection under the Planning legislation to protect their status as historic buildings.
8. On 13 March 2008 the Plaintiff applied for building permission (-the Building Application-) with the assistance of Mr Le Brocq, a planning consultant, to carry out building works at No 17.
9. On 20 March 2008 the Plaintiff applied for planning permission to replace the Garden Unit (-the Garden Unit Application-).
10. On 2 April 2008 the Building Application was granted by the issue of the Building Permit (-the Building Permit-). It stated that -building permission- in respect of the Building Bye-laws (Jersey) 2007 was granted for works including to -replace door and window units-. It stated in bold font on its first page under the heading -IMPORTANT NOTICE- that -the works stated below may also require Planning consent under Article 9, for which a separate application will need to be made-. It went on to provide that if the applicant was in any doubt -as to the requirement as to whether planning permission is required please telephone the Planning Applications Team on . . . who will be happy to help.- The notice was highlighted by being placed in a box at the beginning of the Building Permit.
11. Within a few days of the Building Permit being granted the Plaintiff commenced work on renovating No 17 and No 19. That work involved replacing Crittall metal windows (possibly inserted in about 1972 when the Housing Department owned No 17) with plastic windows. The plastic windows appear to be an improvement on what was there before. He had building permission to install windows in No 17 but had never applied for building permission for No 19. He did not have planning permission to install plastic windows at either property. Building and planning permissions respectively fulfil different roles. He contended that there was a practice which applied in relation to BLIs which permitted modern windows to be inserted at the rear of the buildings in reliance upon building permission. No evidence was called of any such practice which appears to have been inconsistent with planning guidelines in force at the time.
12. On 14 April 2008 the Historic Buildings Environment Team (-HBET-) sent Ms Jones (addressed as -Trainee Planner-) a Historic Buildings Consultation Response in relation to the Garden Unit Application in response to a request from her. The HBET opposed the Garden Unit Application because of perceived harm to No 17, including that the change proposed was alien to this form of development and -removes the plot boundary which is also important to the understanding of these developments and is relevant to its BLI status-. It also referred to planning policy consideration G13 (set out below). The Plaintiff's planning agents wrote to Ms Jones on 22 May 2008 explaining the nature of the improvements to the Garden Unit emphasising that the proposed unit would replace the existing unit which had been approved in May 1972. The letter also dealt with objections from a neighbour relating to a right of way and access to the Garden Unit. No reply was received to the letter.
13. The Garden Unit Application was refused on 4 June 2008. The reasons given were:
(i) Due to its proximity it would be harmful to the Properties.
(ii) The proposed development of a separate unit of accommodation on the site would be an overdevelopment of the site.
(iii) The proposed unit failed to provide adequate standards of internal space and reduced the external amenity space to 17 and 19.
(iv) Due to its size and position on site and its relation to the Properties it resulted in an overbearing impact and poor design.
(v) Adverse impact on the amenities of surrounding residents with neighbouring residents by lack of bin store. Furthermore the loss of rear access would impact No 17.
(vi) The proposed development provided insufficient parking.
14. Ms Jones in drafting the refusal appears to have followed a template. Even to those uninitiated, the grounds appear rather inapposite. The proposed unit was intended to replace a unit which already existed and so it is difficult to see why the rebuilt Garden Unit would adversely impact neighbouring properties even if moved by a few feet. In addition, access to the Garden Unit was to be through a narrow walkway at the rear through which one could not drive let alone park a car. The existing unit (or No 17) had never had access to a parking area at the rear nor was that physically possible.
15. The refusal was questioned by Mr Grainger (a planning consultant retained by the Plaintiff) who wrote on 18 June 2008 to Mr Le Gresley to the effect that the reasons for the refusal appeared unreasonable. Further correspondence followed in which Mr Grainger emphasised the dilapidated nature of the Garden Unit and sent photographs. Mr Le Gresley wrote on 30 June 2008, after considering the matters raised by Mr Grainger, that he considered Ms Jones' decision reasonable and -it can be defended on appeal, should that prove necessary-. On 8 July 2008 Mr Le Gresley wrote that the Planning Department's position was clear on the Garden Unit application and that -some of the reasons may well be more pertinent than others.- In fact the most important reason was that that it was considered that the design of the replacement unit related poorly to a BLI.
16. The Plaintiff was very upset by the refusal of the Planning Application and considered that the Planning Department were being particularly difficult with him.
17. On 18 July 2008 Mr Le Brocq (a planning agent acting on behalf of the Plaintiff) wrote a letter to the Minister of Planning which set out the Plaintiff's position in detail. He also enclosed some photographs which showed the rear of No 17 with the Crittall metal windows and showed the dilapidated state of No 19. On 15 September 2008 the Planning Department's Report for Consideration by the Minister (Senator Freddie Cohen) was produced by Ms Jones and reiterated the reasons for refusal. On 26 September 2008 a public hearing was held by Senator Cohen and Mr Le Gresley to determine the Request for Reconsideration. At that hearing the Plaintiff questioned the BLI status of the Properties and it was decided to review the BLI status of the Properties and whilst that status was under consideration, reconsideration of the Building Unit Application was, in effect, stayed. The BLI status of the Properties was eventually confirmed on 11 March 2009.
18. On about 8 December 2008 Mr Bisson (an enforcement officer) visited No 19 because a member of the public interested in heritage matters had complained about a front door which had been replaced at No 19. The Plaintiff took Mr Bisson to the rear of No 17 to show him the door which had been removed from No 19. Mr Bisson noticed that new plastic windows had been installed and asked the Plaintiff if he had permission to install them. The Plaintiff responded that he did have permission as he alleged that he understood that the permission was conferred by the Building Permit.
19. On about 9 December 2008 Mr Bisson took photographs of the rear of the Properties. The photographs also showed the metal Crittall windows which had been removed and those which were going to be removed. Mr Bisson informed Mr Le Gresley who responded that the door would be approved but, according to Mr Bisson's enforcement note, the plastic windows would not be approved.
20. On 10 December 2008 Mr Bisson wrote to the Plaintiff advising him that he should submit a retrospective application for the front door. He wrote that the Plaintiff should cease all work on the doors and windows forthwith and warned that failure to comply could result in enforcement action. He also advised that the Plaintiff should contact a planner with a view to making an application for replacement doors and windows in order to resolve the matter and indicated that the -present doors and windows would not be approved-.
21. On 21 January 2009 Mr Le Brocq submitted a retrospective planning application (-the Retrospective Application-) for the plastic windows at the rear of the Properties. The application included drawings that showed that the windows removed were Crittall metal windows.
22. On about 11 February 2009 the Plaintiff mentioned the Garden Unit Application to Mr Waddington who he retained from to time as an architect. Mr Waddington had an appointment with Mr Thorne, the Director of Planning, the following day and he agreed to raise the issue with him. Mr Thorne indicated that he viewed the Garden Unit Application positively and it was agreed that the Plaintiff would submit a Request for Reconsideration. Ms Jones, in her note of the meeting, recorded that the -officer-, i.e., Ms Jones, remained of the view that the application should be refused.
23. On 22 February 2009 Ms Jones sent an email to the Historic Buildings Department complaining about the plastic windows at the rear of the Properties.
24. In March 2009 Ms Ingle joined the Planning Department.
25. By 19 March 2009 Mr Thorne was suggesting that he could deal with the Garden Unit Application as a -minor amendment under delegated powers-.
26. On 30 March 2009 Mr Waddington wrote to Ms Jones to inform her that he had been engaged by the Plaintiff to deal with the planning issues arising in relation to the Properties including the Garden Unit and -replacement windows as installed-. He emphasised that the plastic windows were an improvement on the previous windows which he described as -corroded Crittall steel windows-. He further mentioned that the delays in granting the applications were causing severe financial pressure to the Plaintiff.
27. On 22 May 2009 Ms Jones wrote to Mr Waddington in relation to the Retrospective Application stating that the -retrospective works- to the windows at the rear of the Properties were unacceptable and contrary to Policy G13 of the 2002 Island Plan. She added that the acceptable material for the windows in the Properties would be timber.
28. After further discussion, the Garden Unit Application, slightly amended, was approved on 27 May 2009. It is noteworthy that Mr Le Gresley and Mr Thorne worked together to approve the Garden Unit application.
29. In June 2009 the Plaintiff spoke to Mr Thorne to complain about the way the Planning Department had dealt with the planning applications relating to the Properties. In the course of the conversation the Plaintiff mentioned that the plastic windows he had installed replaced Crittall metal windows.
30. On 15 June 2009 Ms Jones contacted Mr Waddington to ascertain the state of the Retrospective Application for the windows. Mr Waddington responded on the same date emphasising that the plastic windows had replaced substandard metal windows and that the Plaintiff believed he had improved the Properties and had not required planning consent to insert the plastic windows. Mr Waddington stressed that the Plaintiff hoped that the plastic windows would be allowed to remain.
31. On 17 June 2009 Ms Jones recommended refusal of the Retrospective Application as the plastic windows were considered inappropriate and were contrary to Policy G13. On the same day she wrote to Mr Waddington that the proposed replacement door to No 19 and that the plastic windows in the dormer to No 17 could remain in situ. At about that time in the course of a conversation with Mr Waddington, she informed him that the Retrospective Application would be refused in relation to the windows.
32. On 25 June 2009 Mr Waddington submitted a formal complaint to Mr Scate, Mr Thorne and Ms Jones complaining of the delays in dealing with the Retrospective Application and repeated the Plaintiff's contentions in favour of approval. As a result of the complaint the formal issue of the decision relating to the windows was delayed. Mr Thorne replied rejecting the grounds of complaint on 13 July 2009.
33. On 24 July 2009 the Plaintiff's Retrospective Application for the plastic windows was formally rejected. The rejection was signed by Mr Le Gresley. Although, immediately following the rejection, the Plaintiff indicated he would appeal against the refusal of permission, in the event he did not do so. The Plaintiff could have (1) requested a reconsideration by the Planning Applications Panel, (2) appealed to the Royal Court and/or (3) written to the Greffier of the States to request a review of the decision by the States of Jersey Complaints Board. The Plaintiff did not avail himself of any of these options.
34. On 22 October 2009 Mr Waddington had a meeting with Ms Ingle in relation to planning issues affecting other properties. He took the opportunity to raise the issue of retrospective permission affecting the Properties. Ms Ingle had not seen any papers relating to the Properties. The same day Mr Waddington sent Ms Ingle an email summarising Ms Ingle's and his respective positions raised at the meeting in an effort to explore further whether there was scope for compromise. Ms Ingle explained that there was a presumption against the insertion of plastic windows in historic properties which should consist of timber. Albeit that Mr Waddington might have shown Ms Ingle some plans of the rear of the Properties, it is noteworthy that Mr Waddington's email to Ms Ingle summarising their respective views does not suggest that Ms Ingle was informed that the plastic windows replaced Crittall metal windows at the meeting. In her evidence before the Magistrate's Court she said that she was shown some photographs which showed the -changes that had occurred-, i.e., the plastic windows. It does not appear that she was shown drawings or photographs showing the Crittall metal windows.
35. On 28 October 2009 Ms Ingle replied to Mr Waddington and stated that she had researched the current planning position of the Properties and discovered that Retrospective Application had been refused and that she -hoped you would have been able to mention that to me when we spoke-. As the Retrospective Application had been refused further negotiation was inappropriate. She added that the Planning Department would now consider taking the option of enforcement action.
36. On 2 November 2009 Mr Bray indicated that he would look into the matter of the plastic windows. Mr Bray visited the Properties on the same day and took photographs of the rear of the Properties. Originally, he indicated in an internal email that he wished to require the replacement of the windows within three months. He then emailed Ms Ingle stating that he was going to serve an enforcement notice on the Plaintiff and seeking her assistance on the wording. His draft read in part that the -UPVC windows recently installed to the rear of [the Properties] should be removed and replaced with original painted timber in the appropriate configuration-. Ms Ingle replied that she did not have the details to hand so the details would need to be checked and asked whether there were any photographs to hand showing what had been removed. The draft wording she suggested was to the effect that:
(i) The dormer windows will be painted timber casements, single glazed;
(ii) The first floor windows to -17/19?- will be painted timber, box sash with vertical sliding one over one casements in single glazing;
(iii) The windows on the ground floor will be replaced with replicas of the timber casement removed, all single glazed;
(iv) The upvc door on the ground floor will be replaced with a painted timber door to replicate that removed.
37. On 3 or 4 November 2009 an Enforcement Notice (-the Enforcement Notice-) was served on the Plaintiff by Mr Bray requiring him to remove the plastic windows that he had installed (as well as the doors) and replace with windows which matched the -original timber windows-). The Enforcement Notice recorded that the Minister considered that the plastic windows and doors had an -adverse effect and damaging impact to the historical character and integrity- of the Properties which were BLIs. The Enforcement Notice went on to state in paragraph 3 that the Minister gave notice to undertake the following works at the land affected:
(i) The 7 recently installed upvc windows and 2 doors will be removed from the faΓ§ade of 17 and 19 Devonshire Place. They will be replaced with windows and doors that match the original timber windows and doors removed.
(ii) The dormer windows shall be painted timber casements, single glazed.
(iii) The first-floor windows to No 17 will be painted timber, box sash with vertical sliding one over one casement in single glazing.
(iv) The windows on the ground floor will be replaced with replicas of the painted timber casement windows removed, all single glazed.
(v) The upvc doors on the ground floor will be replaced with a painted timber door to replicate that removed.
38. Paragraph 5 of the Enforcement Notice provided that the work had to be carried out by Thursday 6 May 2010 (6 months from the date of the Enforcement Notice). Paragraph 6 of the Enforcement Notice warned that a failure to comply with the Enforcement Notice rendered the recipient guilty of an offence and liable to prosecution under the appropriate Article of the -Panning [sic] and Building (Jersey) Law 2002-. Paragraph 7 of the Enforcement Notice advised the Plaintiff that he could appeal the notice to the Royal Court within 28 days of service of the Enforcement Notice.
39. The Enforcement Notice contained a number of errors some of which were obvious on the face of Enforcement Notice and others which should have been obvious to anyone familiar with the Planning Department's file relating to the Properties:
(i) The Enforcement Notice was not addressed to the Plaintiff but merely to 17 and 19 Devonshire Place.
(ii) The Enforcement Notice required the Plaintiff to replace the windows and doors with timber replicas of the "original windows". However, the replaced windows were not original timber but old, rusted Crittall metal windows. This may have contravened the ruling in Bath City Council v Secretary of State for the Environment (1983 JPL 350), which establishes that an Enforcement Notice cannot mandate improvements beyond the state of a building prior to unauthorized works.
(iii) Paragraph 3(b) of the Enforcement Notice required dormer windows to be "painted timber casement single glazed". However, the Plaintiff had received written permission (on 17 June 2009) from Ms Jones allowing plastic windows in the rear box dormer to remain unaltered, as it was a modern addition.
(iv) Paragraph 6 of the Enforcement Notice stated that if a person failed to comply with the Enforcement Notice they will be liable to prosecution under the "appropriate article of the Panning [sic] and Building (Jersey) Law 2002". It did not identify under which Article the person was liable to prosecution.
(v) The signature on the Enforcement Notice was indecipherable, with no printed name for identification.
40. The Enforcement Notice was signed by Mr Thorne who was reluctant to sign it as he had some sympathy for the position in which the Plaintiff was in. Mr Le Gresley did not sign it as the Plaintiff had made a complaint against him.
41. On the 5 November 2009 the Plaintiff had a conversation on the telephone with Mr Bray. The Plaintiff recorded the call without informing Mr Bray that the call was being recorded. In the course of that conversation, Mr Bray suggested that the Enforcement Notice had been instigated by Ms Ingle which appears to be something he inferred from Ms Ingle's reply to Mr Waddington on 28 October 2009 which had been copied to him. The Plaintiff pointed out that he had relied on the Building Permission as permitting the changes to the windows. Mr Bray pointed out that building and planning permission were separate matters. The Plaintiff indicated that in a conversation with Mr Bisson he had told him that he was prepared to go to Court rather than remove the plastic windows and replace them with timber windows and that -I'm gonna stick you know on principle-. The Plaintiff referred to another building which had had plastic windows inserted. He also stated that he had felt -conned- by being asked to put in the Retrospective Application which had been turned down and that Mr Le Gresley was the person causing him problems and considered Ms Jones might have put Ms Ingle up to insisting that the plastic windows should be replaced. In the course of the conversation the Plaintiff indicated that he wanted a meeting with Mr Le Gresley, Ms Ingle and Ms Jones to discuss other buildings. Mr Bray pointed out that the planning rules had tightened up and the planning restrictions which applied to BLI's were now being applied to the whole of a building and not just the frontage. The Plaintiff was clearly under the impression that he was singled out by the Planning Department and said -you can tell Tracey Ingles and the rest of them in there that I want the other people getting the same as what [sic] I get. I don't want to be bubbling people up...- and agreed with Mr Bray that those buildings into which plastic windows had been inserted should have had timber windows inserted.
42. The Plaintiff also reiterated his irritation at being kept waiting five months for retrospective permission for the Garden Unit and his irritation with Ms Jones and Mr Le Gresley arising out of the manner in which they had dealt with the application to rebuild the Garden Unit and reasons originally given for refusing the permission. He indicated that he wanted to take the manner as to how the Garden Unit application had been dealt with to Court and -you can tell them up there, mention it I've contacted you and tell them that's exactly where I'm heading-. He added he had no -beef- with Mr Thorne but that he would bring down the person in charge of the management of the Planning Department and -...if I can I'll bring that little bastard down....-. Throughout the conversation the Plaintiff came over as being angry and irritated with the Planning Department and Mr Bray comes over as being friendly and sympathetic but firm.
43. He considered that he was being targeted unfairly by the Planning Department. As he said in his affidavit, he had become a -window policeman- pointing out to members of the Planning Department, including Mr Bray, other properties in which plastic windows had been inserted.
44. In the course of the conversation on 5 November 2009 Mr Bray suggested that the Plaintiff appeal the Enforcement Notice which would put it into abeyance. However, on reflection the Plaintiff decided not to appeal it despite the fact he appreciated that the Enforcement Notice dealt with the dormer windows for which he had permission and was aware that he had replaced Crittall metal windows and not timber windows. His feeling of umbrage was such that he was irritated that Mr Bray had advised him that -what you should do is you should appeal the notice". He was irritated that that advice came from Mr Bray who had been involved in the preparation of the Enforcement Notice. There were other courses open to him. He could have simply written a letter to the Planning Department pointing out the obvious errors which would have alerted the Planning Department that something had, on the face of it, gone seriously wrong in their consideration of the matter. One of the purposes of an appeals procedure is to enable a person who disagrees with a decision affecting him to have the decision altered even if he considers the erroneous decision should not have taken place in the first place. Not to appeal involves taking the risk that the decision maker will take steps based on his erroneous decision.
45. On 11 December 2009 the Plaintiff sold No 19 to a Mr Audrain and on 26 March 2010 sold No 17 to a Mr Bethell. He arranged for the sum of Β£17,000 to be placed in escrow in case the purchasers were required to replace the plastic windows.
46. On 17 May 2010 Mr Bray visited the Properties and ascertained that the Plaintiff was in breach of the Enforcement Notice as he had not complied with it. On 20 May 2010 he emailed Ms Ingle and Ms Jones to the effect that he thought that the Plaintiff thought that the Planning Department did not have the -grits- to prosecute him for the breach of the Enforcement Notice. He would interview him under caution and would send him to Court for failing to comply with the Enforcement Notice.
47. On 1 June 2010 the Plaintiff was interviewed under caution by Mr Bray and Mr Bolton. Mr Bray started the interview in a very confusing manner as he assumed the Planning Permission for the Garden Unit and its conditions applied to the windows at the rear the Properties. He then apologised and referred to the correct Retrospective Application which related to the plastic windows at the rear of the Properties and which had been refused. Mr Bray then reverted to reading out the terms of the Planning Permission which did not apply to the windows. The Plaintiff insisted that he had relied on the Building Permit relating to Nos 17 and 19 as permitting him to install the plastic windows. The Plaintiff did say in the interview that he had not changed the windows because -I said to you Keith I would like to go to Court-. There was a dispute as to whether on 3 November 2009 the Plaintiff had also said to Mr Bray he knew he should have installed timber windows. He did however confirm that he had ignored the Enforcement Notice. At the end of the interview Mr Bray said he would speak to -his bosses- to establish whether the Plaintiff was going to be charged.
48. Enforcement Notes against the date of 1 June 2010 prepared by Mr Bray, after referring to the interview, added -Next step consider charging- the Plaintiff.
49. On the 22 June 2010 Mr Bray sent an email to Ms Ingle stating that the Plaintiff would be going to Court and asking for the dates when the Properties had been registered as BLIs.
50. On 28 June 2010 Mr Bray added a note to his Enforcement Notes to the effect that Mr Bray wanted a statement from Ms Jones and Mr Le Gresley.
51. On 12 July 2010 Mr Bray informed Advocate Morris that he was sending a report (-the Report-) to the charges office regarding the Plaintiff. In describing the Plaintiff's breach of the Enforcement Notice he continued to describe part of the Plaintiff's conduct as failing to replace plastic windows with timber windows -as like the original windows-. He said he proposed to ask the Centenier to charge him with a breach of Article 7 Planning and Building (Jersey) Law 2002 (-the 2002 Law-) and Article 44 for failing to comply with an Enforcement Notice (any references in this judgment to the provisions of the 2002 Law are to the version of the 2002 Law in force at the material time of the underlying events of this case). Paragraph 12 of the Report wrongly referred to the Garden Unit Permit as mandating what windows or material should be used at the rear of the properties. The report attached the photographs taken by Mr Bisson on 9 December 2008 which showed the Crittall metal windows.
52. The Report was dated 6 July 2010. In paragraph 3 of the Report Mr Bray repeated his error of describing the plastic windows as replacing timber windows, now described as 12 pane timber windows. It did correctly describe that the Retrospective Application in relation to the plastic windows had been refused. It then set out the terms of the Enforcement Notice. At paragraph 34 it stated that the decision not to allow plastic windows in listed buildings was based on Policy G13 and related policies which allowed little discretion in relation to such matters. At paragraph 35 it stated that the Plaintiff asserted that he had relied on the Building Permit as permitting the installation of plastic windows.
53. On 4 August 2010 the Plaintiff appeared in the Magistrate's Court where the charges were confirmed by the Centenier, Mr Scaife. There were two charges to the effect that in breach of Article 7 (1) of the 2002 Law, the Plaintiff engaged in the development of land as defined in Article 5 (1) (b) of the 2002 Law at Nos 17 and 19 respectively. Further there were two charges to the effect that the Plaintiff acted in contravention of Article 44 (1) (a) of the 2002 Law in that the Plaintiff failed to comply with the Enforcement Notice instructing him to remove the recently installed plastic windows at No 17 and No 19 respectively and -replace with timber framed windows, replicating what was originally removed...-
54. The Charges were defective. The reference to Article 5 (1) (b) of the 2002 Law should have been to Article 5 (2) (a) of the 2002 Law. The reference to the failure to replace windows included windows in the dormer for which permission had been given and the windows removed by the Plaintiff were metal Crittall windows and not timber framed windows.
55. The Plaintiff pleaded not guilty at the 4 August 2010 hearing. The prosecution was conducted by Advocate Morris and the matter was adjourned for four weeks to allow full disclosure. At the hearing Advocate Morris urged the Plaintiff to seek legal advice.
56. On 5 or 6 August Mr Bray delivered a disclosure bundle to the Plaintiff at his home. That bundle did not include the Charging Report prepared by Mr Bray and some of the unused material.
57. On 1 September 2010 and 15 September 2010 there were pre-trial hearings before the then Assistant Magistrate Mrs Shaw. At the latter hearing there was mention of an amendment to the charges to deal with the incorrect reference to Article 5 (1) (b). After the hearing on 1 September 2010 the Plaintiff apparently said to Mr Bray -Do you remember that case in Yorkshire where the developer shot the planner dead? Well I can understand that bloke. Peter Le Gresley has ruined my life". He also said he blamed Mr Le Gresley and Ms Jones for personalising their relationship with him so as to refuse planning permissions. Mr Bray filled in a Dangerous Occurrence Reporting form on 3 September 2010. He reported the matter to Mr Scate who understood that the matter had been reported to the police. In fact, Mr Thorne drafted a letter to the Plaintiff to deal with the matter but did not send the latter as wished to speak to the Plaintiff himself and deal with the matter informally.
58. A further pre-trial hearing took place on 13 October 2010 before the then Relief Magistrate Advocate Harris at which the Plaintiff appeared as a litigant in person. At that hearing the distinction between the Planning Permission and the insertion of windows at the rear of the Properties was understood by Advocate Morris and the Court. The Plaintiff maintained his defence that the Building Permission permitted the insertion of plastic windows. He also asked Advocate Morris to call Mr Thorne and Ms Ingle as witnesses at the trial.
59. On 21 October 2010 Advocate Morris sent the Plaintiff a draft document consisting of matters which could be agreed prior to trial. The Plaintiff declined to agree two of the matters which referred to the replacement of existing wooden windows by plastic windows.
60. A further and final pre-trial hearing was held on 10 November 2010 before Mrs Shaw.
61. On 11 November 2010 Mr Bolton emailed Mr Thorne, Mr Le Gresley, Ms Ingle and Ms Jones to the effect that Advocate Morris had asked for disclosure of emails between -yourselves and Mick Neville or Mike Waddington on the Devonshire Lane BLI/PVCU [sic] matter-. He asked them to check their email and send them to him. The email was not altogether clear, as Advocate Morris' request to him was not clear, that they should also check for emails amongst themselves as well as to the Plaintiff and Mr Waddington. Mr Le Gresley responded that he had no emails to the Plaintiff or Mr Waddington and Ms Ingle replied that she could not recall exchanging emails with the Plaintiff and attached a single interdepartmental email. Ms Jones responded with an attachment containing her correspondence with Mr Waddington.
62. Mr Bolton sent these emails on to Advocate Morris on 15 November 2010. The same day Advocate Morris indicated that the emails were highly relevant and should have been disclosed to him as it appeared that someone in the Planning Department might have given the impression to the Plaintiff that the plastic windows might remain in the properties. On the same date Mr Bray responded to Advocate Morris to the effect that they should have been supplied earlier but there was nothing in the emails which supported any suggestion of an implied permission to retain the plastic windows. The only reference was in an email from Mr Waddington of 25 June 2009 that someone (which was probably Mr Thorne) had suggested that there might be some flexibility in relation to the windows.
63. On 17 November 2011 there was a discussion about showing Ms Ingle and Ms Jones the Magistrate's Court and providing an explanation of the procedure to be expected at the trial. They were shown around the court by Mr Bray who explained the procedure to them. There was nothing untoward about the explanation of the Court. The Plaintiff raises the visit as some sort of rehearsal of the evidence which Ms Ingle or Ms Jones might give. Not only was there no discussion of the evidence but Mr Bray omitted to advise Ms Ingle, who was being brought to Court at the request of the Plaintiff, to read the file relating to the Properties so as to refresh her memory.
64. On 19 November 2010 the email correspondence between Ms Jones and Mr Waddington was produced to the Plaintiff by the Law Officers Department.
65. The trial took place on 25 and 26 November 2010. The Plaintiff represented himself. He was convicted on all four charges brought against him. The trial was difficult as the Plaintiff represented himself and wished to raise his complaints about his treatment by the Planning Department. The Relief Magistrate Mr Harris had difficulty in controlling the Plaintiff as can be seen from the transcript which is incoherent in parts. On 10 December 2010 the Plaintiff was fined Β£1,000.
66. On 5 November 2012 the Plaintiff filed a notice of appeal against his conviction together with an application to appeal out of time.
67. On 29 May 2013 the Royal Court ordered further disclosure from the Planning Department. Further disclosure was eventually served by the Planning Department. On the same date Mr Bray delivered an enforcement notice to No 19 (now of course under new ownership).
68. On 27 June 2013 a retrospective application was made for planning permission by the owners of No 19.
69. On 29 October 2013 the appeal against conviction was confirmed and the conviction quashed. Originally the appeal was opposed but shortly before the appeal the Attorney General withdrew his opposition.
70. On 20 December 2013 retrospective applications for the plastic windows and doors were approved by the Planning Applications Panel. The Decision Notice stated that -the Minister considers that the windows removed by a previous owner (i.e., the Plaintiff) of the property, prior to the insertion of the uPVC units, were not of any historic interest. The Minister accepts that the Department cannot seek -betterment- by requiring the installation of timber framed sash windows in their lieu-. The planning meeting at which the application was considered also noted that it was not in the public interest to pursue the matter further.
71. In considering the allegations against the Defendants they must be considered against the legal background affecting building and planning law under which they operated.
72. The purpose of the 2002 Law is (as provided in Article 2)
(i) to ensure that when land is developed the development is in accordance with a development plan that provides for the orderly, comprehensive and sustainable development of land in a manner that best serves the interests of the community;
(ii) to protect sites, buildings, structures, trees and places that have a special importance or value to Jersey;
(iii) to impose other necessary controls on the development and use of land in Jersey.
73. Article 5 of the 2002 Law defines the term -develop" (Article 1 clarifying that -development- should be interpreted in accordance with the meaning ascribed to -develop- in Article 5). According to Article 5(1)(a) -develop- in respect of land means to undertake a building, engineering, mining or other operation in, on, over or under the land. Article 5(2) provides that without prejudice to the generality of para (1) -develop- in respect of land includes (a), to demolish or remove -any part- of a building on the land. On a correct interpretation, the Plaintiff's removal of the windows and doors of the Properties qualified as development.
74. Article 7 of the 2002 Law stipulates that land cannot be developed without permission, specifically planning permission, as set out in Article 7(1). This provision makes it an offence for individuals to develop land without the necessary planning permission, rendering them liable to a fine. In the context of this case, the removal and replacement of the windows and doors of the Properties constituted development that could not be undertaken without planning permission.
75. Article 19 of the 2002 Law governs the grant of planning permission. Articles 19(5) and (6) grant discretionary powers to the Minister to either grant planning permission unconditionally, grant it subject to conditions, or refuse it altogether. Article 19(7) stipulates that any action taken by the Minister under Article 19 does not entitle any person to claim compensation for any loss or damage he may suffer as a result of that action. This provision, among others, clarifies that a person cannot claim compensation solely because the Minister has exercised a discretion to refuse an application for planning permission.
76. Article 23 of the 2002 Law vests a power in the Minister to attach conditions to the grant of planning permission.
77. Part 4 of the 2002 Law addresses building controls. Article 33 prohibits prescribed building work from being carried out without building permission. Anyone who undertakes such work without the required permission commits an offence and may be liable to a fine. Article 34 provides for applications to be made for building permission, while Article 35 governs the grant of building permission, either unconditionally or subject to conditions, and also grants the Minister the authority to refuse building permission.
78. It is important to note that the statutory framework distinguishes between building permission and planning permission. Obtaining building permission does not eliminate the need for planning permission in order to develop land in compliance with Article 7 as the Building Permit emphasised.
79. Part 5 of the 2002 Law is concerned with the enforcement of development controls.
80. Articles 40(1)(a) and (b) provide that the Minister may serve an enforcement notice for a breach of development controls.
81. Article 39(1) of the 2002 Law provides that there has been a breach of development controls if there has been a breach of planning controls and 39(2) provides that there has been a breach of planning controls if land has been developed without planning permission. As such, planning permission was required for the insertion of windows in the Properties.
82. An enforcement notice may be served under Article 40 of the 2002 Law if it appears to the Minister that a breach has occurred within the previous eight years and that it is expedient to take action to remedy the breach. The threshold for invoking this provision is a low one. It is sufficient for it to merely appear to the Minister that a breach has occurred; the statute does not require a greater degree of knowledge.
83. Article 40(2)(a) (b) and (c) provide that where Article 40 applies, the Minister may serve an enforcement notice on the owner, occupier (if different) or any other person who appears to the Minister -to be causing or responsible for the breach-. The Defendants referred to Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196 at 225 per Upjohn LJ in an analogous context:
-the verb is that it appears to them, not that the planning authority must be satisfied as to a certain state of affairs. Prima facie, therefore, one approaches this section with the idea in mind that a prima facie case only need be shown to satisfy the prerequisites of a valid notice.-
84. The mandatory contents of the notice are set out in Article 40(3). The notice is required to specify:
(i) the matter that appears to the Minister to constitute the breach of development control;
(ii) the steps the Minister requires to be taken or the activity the Minister requires to cease to remedy the breach or to make good any injury to amenity caused by the breach; and
(iii) the period within which those steps are required to have been taken or that activity is required to have ceased.
85. The Law only specifies that a notice must include the information outlined above. It does not mandate that the notice be in any particular prescribed form, nor does it require anything beyond the information specified in the statute. However, in order to constitute a notice, it must be addressed to someone, even if that person is not named but described as the -owner- provided he is identifiable.
86. Article 40(4) of the 2002 Law bars the right to claim compensation where the Minister, acting pursuant to Article 40, acts inconsistently with that Article:
"Where there has been a breach of development controls action taken by the Minister under this Article in respect of that breach does not give any person the right to claim compensation in respect of any loss or damage the person may suffer as a result of that action."
87. Where the accused person is the owner of the land an offence is committed under article 44 (1). Article 44 provides:
"(1) The owner of land to which an enforcement notice relates who -
(a) fails to take a step within the period specified in the notice to take that step; or
(b) carries on an activity after the period specified in the notice to cease the activity
shall be guilty of an offence and liable to a fine."
88. Article 44(4) provides:
"A person upon whom an enforcement notice has been served as a person appearing to the Minister to be the person causing or having responsibility for the breach of development controls who, at any time after the period specified in the notice for compliance with the notice, carries on an activity that is required by the notice to cease shall be guilty of an offence and liable to a fine."
89. The Jersey Island Plan 2002 (-the Island Plan-) provides (in part as follows). First, para 4.24:
-Control of Unauthorised Development
Unauthorised development is any form of development that requires planning permission but which has taken place without the approval of the Planning and Environment Committee. Under the Planning and Building (Jersey) Law, such development is illegal. Similarly, any development not undertaken fully in accordance with approved drawings may also constitute unauthorised development. Unauthorised development can lead to a range of unfortunate outcomes such as the loss of buildings and features of architectural or historic importance, development in inappropriate locations or development out of character with the site and its context or adverse impacts on adjacent land uses.' (emphasis added)
Second, paras 4.40 and 4.41 , which speak to the registration of buildings as -Places of Architectural and Historic Interest-:
-[4.40] A register of buildings and features of architectural and historic importance was first compiled in Jersey in 1989, published in 1992 and was subsequently revised and published in 1999 as the Register of Buildings and Sites of Architectural, Archaeological and Historic Importance in Jersey. The Register includes sites, buildings and other structures, which, because of their interest in archaeological, architectural, historical and other terms are felt to be worthy of protection.'
[4.41] The most significant buildings will be designated as Sites of Special Interest and the remaining buildings are identified as Buildings of Local Interest. Collectively, these are referred to as -Registered Buildings-.'
Third, para 4.42 explains that applications for permission to develop affecting Registered Buildings are dealt with in accordance with Policy G13:
-The Register contains criteria upon which the decision to include a building in the Register is made. In addition, the Register contains a set of Interim Historic Buildings Polices, which have been reviewed as part of the new Island Plan. These will be published separately as Supplementary Planning Guidance, simultaneous with the Island Plan. Applications affecting Registered Buildings and issues of registration will be dealt with in accordance with Policy G13 and the related Supplementary Planning Guidance (SPG).' [emphasis added]
90. Policy G13 provides for a presumption in favour of the preservation of the architectural and historic character of registered buildings:
"POLICY G13 - BUILDINGS AND PLACES OF ARCHITECTURAL AND HISTORIC INTEREST
There will be a presumption in favour of the preservation of the architectural and historic character and integrity of registered buildings and places. Applications for the alteration or changes of use of a registered building must contain sufficient information against which the impact on the fabric and appearance of the building can be assessed."
91. As noted in Therin v Minister for Planning and Warwick [2018] JRC 098, para 15, if a proposed development is inconsistent with the Island Plan, planning permission may be granted but the Planning Committee/Minister must be satisfied that there is sufficient justification for doing so.
92. The Department adopted further -Supplementary Planning Guidance-, in the form of -Planning Policy Note 2', on 30 June 2008. The note is concerned with the repair and replacement of windows and doors in historic buildings. Such features are said to be important because they -form an integral part of the fabric of old buildings and add to their spatial character-. The note continues:
"In recognition of the importance of windows and doors in historic buildings, there is a requirement for planning permission to be sought for their replacement in all buildings which date before 1920; and for all Buildings of Local Interest, proposed Sites of Special Interest and Sites of Special Interest."
93. The note also emphasised that the need for preservation extended to the whole building:
"It is important that the historic character and integrity of historic buildings is maintained throughout, and the approach to the repair and replacement of windows and external doors should extend to the whole of the property and not just the main or public faΓ§ade. The protection of historic buildings extends at the very least to the whole of the building's exterior and not, as has been suggested in the past, only to those parts visible from public vantage points or to the front elevation as some people suggest."
94. When the Plaintiff acquired the Properties in 2007, they were in a bad state of repair. A new Planning Minister, the late Senator Freddie Cohen, had recently been appointed. He had a background in heritage buildings and was very keen on design quality. The planning regime became somewhat stricter than it had been in the past and the then Director of Planning, Mr Thorne, who could, on occasion be more flexible than other planning officials, was having to rethink his approach. In March 2009 Ms Ingle was appointed Principal Historic Buildings Officer in place of another officer who, the Plaintiff so alleged, might have been considered not to apply some of the then planning requirements rigidly enough. Accordingly in the period 2008 to 2010 a more rigorous approach to planning applications appears to have been adopted. That can also be seen from the fact that Planning Policy Note 2 was introduced on 30 June 2008.
95. In summary the BLI status applied to the whole of a BLI building and not merely to the frontage. The fact that building works carried out at the rear of a property might not have been visible to members of the public if they had no or little access to the rear was not decisive. Furthermore, the fact that building permission was granted would not obviate the requirement to obtain planning permission if planning permission was required in relation to the subject matter of the building works. The building permit would carry that warning if it was granted. In the case of buildings characterised as BLIs any insertion of a window required permission whether it was an improvement or not. Thus, the Plaintiff required planning permission for the installation of new windows in place of Crittall metal windows whatever the nature of the windows to be installed and there would be a presumption in favour of the preservation of the architectural and historic character and integrity of registered buildings in accordance with G13.
96. Consideration of planning applications by a planning department may not always result in a consistent result. Albeit the consideration of the application should be objective, planning officers acting properly might apply their judgment to reach different conclusions on similar applications and might appear to apply planning principles more or less rigidly from time to time. In addition, there may be differences in the properties which are the subject of the applications. The increased rigour which has applied to registered properties in 2008 onwards is another factor which makes it difficult to compare the Planning Department's approach to planning applications generally or the Retrospective Application to insert the windows at the rear of Nos 17 and 19 to similar applications concerning other properties. Similarly, the requirement that there be a public interest in enforcing an apparent infringement will differ over time and officials may differ in their implementation of the public interest requirement.
97. As an example, the Plaintiff referred to the different approach adopted by the Planning Department in relation to 21 Devonshire Place which he alleged had timber windows replaced by plastic windows without planning permission. Initially the Planning Department took no action in relation to the property, the decision having been made to wait until the issues raised in relation to Nos 17 and 19 had been resolved. In July 2012 an enforcement notice was issued but revoked four months later. It was revoked because the Planning Department understood that the windows removed were in fact plastic - not timber - windows and did not consider that it had the power to require the replacement of the timber windows by plastic windows as described by Mr Alastair Coates in an email to Ms Ingle who had questioned why enforcement action was not being taken. As described below, Mr Le Gresley stated in his affidavit that the outcome to the planning application relating to Nos 17 and 19 might well have been different had he appreciated that the windows removed were Crittall metal windows and not timber windows.
98. One further matter should be noted. The Plaintiff removed Crittall metal windows from the Properties. However, under the 2002 Law he needed permission to reinstall windows in the Properties as they were BLIs. The fact that metal Crittall windows had been removed did not, the planning officers understood in 2009 and 2010, prevent them insisting that timber windows should be inserted, whether or not the windows were visible to the public. By 2013 a slightly more flexible approach appears to have been adopted.
99. In the Order of Justice the Plaintiff pleads that the decisions and actions described in the Order of Justice were those of public officers exercising -their powers maliciously, with bad faith and/or improper purpose, or reckless as to the limits or restraints upon their public power or authority, thereby intending to injure the Plaintiff and/or in the knowledge that the Plaintiff would be injured and/or with the reckless indifference to the likelihood of injury-. The Defendants' actions amounted, the Plaintiff averred, to malfeasance and/or misfeasance in public office. Paragraph 62 of the Order of Justice sets out the particulars of malice.
100. The fact that administrative or executive action is invalid according to public law principles is an insufficient basis for claiming common law damages. The remedies in public law for invalid government action are orders that quash the underlying decision, or prohibit its further enforcement, or declare it to be null and void. Unlawful failure or refusal to perform a public duty is addressed by a mandatory order to perform the duty according to law. In other words, harm caused by invalid government action or inaction is not compensable at common law just because it was invalid. The tort of misfeasance in public office represents a -safety net- adjustment to that position, by allowing damages where the public defendant's unlawfulness is grossly culpable at a moral level.
101. There are two different forms of liability for misfeasance in public office. There is one tort which can manifest itself in different ways, but the constant is the requirement of bad faith. The two forms are first, targeted malice, and secondly untargeted malice.
102. There are four elements of the tort of misfeasance in public office, per Huda [2020] (1) JLR Note 6 and Three Rivers DC v Bank of England No 3 [2003] 2 AC 1:
(a) The defendant must be a public officer;
(b) The defendant must have been acting in the exercise of powers of a public officer; and
(c) The state of mind of the officer must be such that he
(i) Acted with targeted malice in order to injure a person; or
(ii) Acted knowing that he has no power to do the act complained of and that the act would probably injure the plaintiff (untargeted malice). The act involves bad faith in so much as the officer does not have an honest belief that his act is lawful - Lord Steyn in Three Rivers at page 119 B-H;
(d) The complainant must suffer damage.
103. Targeted malice requires conduct specifically intended to injure a person and an exercise of a public power for an improper or ulterior motive. This requires something more than the matters relied upon to plead misfeasance in public office based on reckless indifference. Targeted malice involves exercising a public power for reasons wholly separate and distinct from why the power existed. It requires a public official to act intentionally with the purpose of causing loss, out of spite or malice, or for an improper or ulterior motive (Para (4) of Huda).
104. So far as the state of mind of the officer in untargeted malice is concerned the basis of the tort lies in the officer taking a decision that is in excess of the powers granted to him and that it is likely to cause damage to the object of the power. It is not every act beyond the powers vested in the public officer which will ground the tort. The alternative form of liability requires an element of bad faith inasmuch as the public officer does not have an honest belief that his act is lawful. That is present where it can be shown that the officer acted with a state of mind of reckless indifference to the illegality of his act. However, the recklessness must be as to the illegality of his act as that recklessness amounts to bad faith - See Three Rivers per Lord Steyn at [2003] 2 AC 191 E- F 193 B-D. Lord Millett also said in Three Rivers that -the tort cannot be committed negligently or inadvertently" [p 235B]. Lord Millett said in relation to untargeted malice -The element of knowledge which it involves is . . . a means of establishing the necessary intention, not a substitute for it. It can be inferred. Proof that the official concerned knew that he had no power to act as he did and that his conduct would injure the plaintiff is only the first step in establishing the tort. But it will usually be enough for the necessary intention, and therefore of the requisite state of mind to be inferred. The question is - Why did the official act as he did if he knew or suspected that he had no power to do so and that his act would injure the plaintiff?" [p 235 H- 236 S] and -If...the plaintiff can establish that the official appreciated that he was acting in excess of the powers conferred upon him and that his conduct caused injury to the plaintiff, the inference that he acted dishonestly or for an improper purpose will be exceedingly difficult and usually impossible to rebut- [p 236D].
105. The requirement of bad faith serves to reduce the ambit of the tort which tends to apply where the public servant owed no other duty of care. As Winfield and Jolowicz on Tort 2nd Ed at para 8-025:
"The essence of the cause of action is therefore a deliberate and dishonest wrongful abuse of the powers given to a public officer. Lesser instances of maladministration, such as mere delay, the making of good faith mistakes, or the taking of good faith decisions on an erroneous or incomplete factual basis, do not constitute misfeasance."
In the same paragraph, the authors comment on when an omission will amount to misfeasance:
"An omission can amount to misfeasance in circumstances where there is a legal duty to act, though it follows from the character of the tort that the failure to act must be the product of a deliberate decision, as opposed to mere inadvertence or oversight."
106. The additional requirement is that the public servant knew or was reckless as to the possibility that his action would probably harm the plaintiff.
107. It is clear from Three Rivers, that there is a distinction between targeted malice and untargeted malice (see also Para 77 of the full unreported judgment of Master Thompson in Huda [2020] JRC 029). For the latter, Lord Steyn confirmed that an act performed in reckless indifference to the outcome is sufficient to ground the tort ([2003] 2 AC 1,192 line G ) and therefore the plaintiff must prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act and the probability of causing injury ([2003] 2 AC 1, 193, line C], and 196, line C ) . This has to be a finding of subjective, not objective, indifference - see Society of Lloyd's v Henderson [2007] EWCA Civ 930, [2008] 1 WLR 2255 at paras 46-49 and London Borough of Southwark v Dennett [2007] EWCA Civ 1091 at paras 21-22.
108. In the Huda authorities cited above (see Paras 75-79 of the unreported judgment and Paras (2) and (4) of the JLR Note) (decisions of Master Thompson as he then was) the Court held that Three Rivers applied in Jersey. Paragraph (2) of the Held Note of the JLR Note provides:
-The tort of misfeasance in public office was part of Jersey law (Syvret v. Chief Min., 2011 JLR 343, referred to; Three Rivers D.C. v. Bank of England (No. 3), [2003] 2 AC 1, considered). There were two different forms of liability for misfeasance in public office: first, targeted malice by a public officer, which required conduct specifically intended to injure a person and involved exercising a public power for an improper or ulterior purpose, and secondly, untargeted malice which arose where a public officer acted -knowing- there was no power to carry out the act complained of and that the act would probably injure the plaintiff. The second form of misfeasance was said to involve bad faith because the public officer did not have an honest belief that his act was lawful. To establish the tort in its second form the plaintiff must prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act (Three Rivers D.C. v. Bank of England (No. 3)).-
109. Master Thompson, went on to say, in the context of the strike out application in Huda, that -
-The plaintiff in the present case therefore did not need to prove or plead that the relevant individuals acting for the defendant knew they had no power to carry out the act complained of or that they knew that the act would probably injure the plaintiff. All that the plaintiff had to plead were sufficient material facts which were capable of amounting to reckless indifference. It was open to the plaintiff to plead actual knowledge but if the requisite material facts could not be pleaded to assert actual knowledge that would not prevent a plea of reckless indifference [to which one would add, as to the illegality of his actions].-
110. The first two elements of the tort of misfeasance are therefore firstly that the defendant(s) must be a public officer, and secondly that there must be an exercise of power as a public officer. Neither of these elements are in issue. The dispute is as to the third element, which is the state of mind of the Defendants.
111. The Plaintiff set out the history of the manner in which planning applications submitted by him going back to 31 August 2008 in relation to a house in the Georgetown Estate had been dealt with by the Planning Department. Eventually permission was given after a review by Mr Thorne (originally a defendant in the current proceedings but in respect of whom the proceedings the Court ordered be struck out against after his death). The Plaintiff suggested that Ms Jones and Mr Le Gresley were responsible for his perceived difficulties with obtaining planning permission in relation to the Georgetown Estate. Some applications were initially refused and then subsequently permitted or partially permitted. Other complaints were raised by him related to properties at 5 Conway Street and 33 Aquila Road. The complaints relating to these properties related to the manner in which the Plaintiff considered he was being treated in relation, for example, by the Planning Department failing to agree to hold meetings with his agents or giving positive indications in relation to a planning application and then, on detailed or further consideration, refusing the application. The description of the manner in which the Planning Department dealt with these applications did not provide the foundation or support for a claim of misfeasance against the Defendants. Rather the descriptions illustrated the uncertainties attaching to planning applications and their treatment by the Planning Department.
112. The thrust of the Plaintiff's claim against the Defendants arises out of the manner in which he perceived that the Defendants had dealt with him in relation to the Properties.
113. So far as targeted malice is concerned, we heard evidence from each of the Defendants. Each denied harbouring any malicious intention to harm the Plaintiff. We heard no evidence which supported any claim of targeted malice and saw none in the voluminous documentation presented to us. The Plaintiff's propensity to infer - wrongly - malice from innocuous comments by certain of the Defendants did not assist his case. For example, on 29 November 2010 Mr Bray emailed Mr Le Gresley, Mr Thorne, Ms Jones and Ms Ingle to the effect that the Plaintiff had been convicted and Mr Le Gresley responded with the expression -good work". The Plaintiff drew an adverse inference from the exchange and contended it supported an allegation of malice. It was Mr Bray's duty to inform the Planning Department of the result of the prosecution and Mr Le Gresley was acting perfectly properly by complimenting him on, what appeared at the time to him, a successful result. Similarly an allegation of malice was made arising out of the fact that Mr Scate, when informed by Mr Bray on about 1 September 2010, that the Plaintiff might have made a threat against members of the Planning Department and under the impression that the matter was under investigation by the police, informed Senator Shenton of that fact; that warning was not to prevent him assisting the Plaintiff but to warn him that the Plaintiff might be in an emotional state of mind. Senator Shenton and Senator Cohen then decided on their own volition not to involve themselves in planning issues relating to the Properties as it might give rise to the wrong perception if the action was abandoned in the light of the apparent threat. Mr Scate's action in mentioning the incident to Senator Shenton was perfectly proper as he was responsible as Chief Executive Office for matters involving safety of the Planning Department's officials and those who dealt with the Planning Department.
114. We deal with the case against each of the Defendants below.
115. Mr Bray joined the Planning Department as an Enforcement Officer in May 2008. He did not make decisions in relation to planning applications. His first involvement with the Properties was in October or November 2009 when Ms Jones asked him to serve the Enforcement Notice. He sent some draft wording to Ms Ingle which stated that the plastic windows should be removed from the Properties and replaced with -original painted timber in the appropriate configuration eg sash etc.". He asked for her suggestions. She replied stating the notice needed to be more specific. She made suggestions for the notice but added the caveat that she did not have the details relating to the Properties which needed to be checked and asking whether the Planning Department had any photographs which would show what was removed. Her suggestions subject to the caveat that they should be checked are set above at paragraph 36. Mr Bray then drafted the Enforcement Notice. Ms Jones told him that the windows were not what they should be. He had read Mr Bisson's file and understood that the plastic windows replaced Crittall metal windows as he had seen the photographs and the Plaintiff had also told him that on his visit to the Properties on 2 November 2009. He did not look at the planning file relating to the Properties whilst drafting the Enforcement Notice. So far as he was concerned, he had been told that windows had been installed without permission and he read the computer listing but not the file. He was also inexperienced in planning matters and under time pressure. He explained the reference in the Enforcement Notice to the -original timber windows- being removed as arising from his understanding that the windows prior to 1972 had been timber, hence the reference in the Enforcement Notice to -original-. The draft notice was then sent to Mr Thorne to sign. Mr Thorne was well disposed to the Plaintiff and reluctant to sign it but did so. It is apparent that he must have signed the Enforcement Notice without looking at the file or looking at it carefully. Had he done so he would have noted that permission had been granted in relation to the dormer windows and that the Enforcement Notice erroneously referred to the original timber windows as having been removed and that there was a drawing illustrating the Crittall metal windows.
116. In drafting the Enforcement Notice Mr Bray was trying to draft an effective and valid notice but he was careless in doing so as he did not carry out the checks suggested by Ms Ingle. Furthermore, Mr Thorne, who was originally a defendant in this action, but has died, is open to criticism as he did not check the file before signing the Enforcement Notice but presumably relied on Mr Bray to draft the Enforcement Notice properly. Once Mr Thorne signed the Enforcement Notice Mr Bray's duty was to serve the Enforcement Notice which he did.
117. After ascertaining on 12 and 20 May 2010 that the Plaintiff had not complied with the Enforcement Notice Mr Bray interviewed the Plaintiff under caution on 1 June 2010. Albeit Mr Bray had indicated prior to the interview in an email sent on 20 May 2010 to Ms Ingle and Jones that he would send him to Court, in fact as he said at the interview under caution, the decision was that of his -bosses- to take in the light of the interview. On his Enforcement Notes against 1 June 2010 Mr Bray noted that the next steps were to consider charging the Plaintiff.
118. Mr Bray sent a report (-the Report-) to Mr Scaife in his capacity as Centenier and the charges were considered by personnel in the Charges Office who would have drawn up the charges after discussing the potential charges with personnel in the Planning Department, not just Mr Bray, and considering the public interest in a prosecution. He relied on the Report which reflected the same errors as the Enforcement Notice in referring to the replacing original timber windows and to the windows in the dormer. The Report attached Mr Bisson's photographs which showed the Crittall metal windows.
119. The Charges drawn up by the Charges Office were defective as described above. They continued to refer to windows in the dormer and the windows which were replaced as being timber windows. In addition, the Crittall metal windows were shown in the photographs taken by Mr Bisson. The errors should have been noticed in the Charges Office in the course of discussions with the Planning Department. The charges were framed in the way they were due to carelessness in the Charges Office and the Planning Department.
120. The Charges were confirmed when the Plaintiff appeared before the Relief Magistrate Mr Mourant on 4 August 2010 when Advocate Morris acted for the prosecution. Neither Mr Scaife nor Advocate Morris noticed any of the errors in the Charges at that hearing. Even if the reference to the wrong section of the 2002 Law was not immediately spotted, a perusal of the supporting documents should have revealed that the replaced windows were Crittall metal windows. The failure was due to carelessness on the part of the Charges Office. Advocate Morris should have noticed the error either at the first hearing or the subsequent pre-trial hearings prior to the trial held on 25 and 26 November 2010 or at the trial.
121. Mr Bray's error in referring to timber windows being replaced by plastic windows in the Enforcement Notice and the dormer windows, and in writing up his Report, was a careless error. Mr Bray believed that the Enforcement Notice he served was correct. He was not acting in bad faith and if he saw the Charges he did not appreciate that the reference to the original timber windows being replaced by plastic windows was an error. The substance of the Enforcement Notice and the Charge should have been that windows were replaced with plastic windows without planning permission. The nature and state of the windows replaced went to the merits of the Retrospective Planning Application and whether a discretion should be exercised to allow them to remain in a BLI.
122. As the error in the Enforcement Notice and the Report compiled by Mr Bray (and not Mr Bolton) was a careless error made in good faith, Mr Bray did not commit any criminal offence as suggested in paragraph 37(a) of the Order of Justice. Previous investigations by both the States of Jersey Police itself and by Norfolk Police (on behalf of the former) had not resulted in any charges being brought against Mr Bray or indeed any of the Defendants. The error in the Enforcement Notice and the Report could not in any event amount to perjury not being a false statement made on oath knowingly and nor was it an attempt to pervert the course of justice. Further Mr Bray could not have committed perjury by failing to admit that the Enforcement Notice was invalid. He did not understand it was invalid and a failure to speak up cannot amount to perjury. Mr Bray's failure to identify that the windows removed from No 17 and 19 were not timber windows did not amount to perjury. He did not give evidence to the effect that timber windows had been removed by the Plaintiff knowing that that was the case. He also did not say in his evidence that the Plaintiff failed to provide addresses of other buildings with plastic windows. Paragraph 37 (d) of the Order of Justice is not a proper allegation of perjury against Messrs Bray (or for that matter Messrs Scaife or Morris).
123. It is also claimed that Mr Bray acted with malice towards the Plaintiff. He had no conceivable motive for doing so not having met the Plaintiff until about November 2009 when he met Mr Neville to look at some windows at Regency House. They had discussed the Enforcement Notice on the telephone on 5 November 2009 when Mr Bray emphasised that the Plaintiff should appeal the Enforcement Notice which would put the Enforcement Notice into abeyance. Nothing in the interview under caution shows Mr Bray acting maliciously and there is no indication of any malice towards the Plaintiff during the course of his evidence in the Magistrate's Court on 25 November 2010. Furthermore, any suggestion that Mr Bray knowingly caused a mistaken reference to timber windows being replaced by the plastic windows in the Enforcement Notice requires him to have done so despite the expectation that he should reasonably have held that the draft Enforcement Notice would be examined against the file of the Properties by a senior planning officer such as Mr Thorne before issuing it and the mistaken reference identified. Further he would reasonably have expected the Centenier, the Charges Office or someone in the Law Officers' Department such as Advocate Morris to identify the erroneous reference.
124. Mr Bray vehemently denied acting with any malice towards the Plaintiff and we hold that he did not do so. We could not find any reason why he might have acted with malice. We also conclude that at all times he acted bona fide and accordingly find that he did not act with untargeted malice.
125. Mr Bolton played a small role in the events described above. He first met the Plaintiff in about 2009 when he visited a building which the Plaintiff was renovating in Regent Road and may have met the Plaintiff in relation to another building at about the same time.
126. He attended the interview under caution with the Plaintiff held on 1 June 2010 convened by Mr Bray, as an observer. All he said at the interview was that he thought that the questions at the interview had been open and fair and that would be reflected in the transcript of the meeting. On 11 November 2010 at the request of Advocate Morris he asked Mr Thorne, Mr Le Gresley, Ms Jones and Ms Ingle to disclose any emails -between yourselves and the Plaintiff or Mr Waddington relating to the properties referred to in the email as -the Devonshire Lane matter"-. He told them that the Plaintiff had alluded to the emails but that they might not be available if they did not exist or had been erased. There was nothing untoward about the email. It was not suggesting that emails should not be produced. Some emails were not produced by the recipients of Mr Bolton's email, but that failure cannot be attributed to him.
127. A further complaint made by the Plaintiff is that Mr Bolton smiled at him during the course of the Magistrate's Court hearing. Mr Bolton could not recall doing so but whether he did or not in the context of Mr Bolton's limited interaction with the Plaintiff it is not possible to infer that Mr Bolton was motivated by any malice to the Plaintiff.
128. Mr Bolton denied acting with any malice towards the Plaintiff and we hold that he did not do so. We could not find any reason why he might have acted with malice. We also conclude that at all times he acted bona fide and accordingly find that he did not act with untargeted malice.
129. Mr Scate had no day-to-day involvement with the decision to refuse the Retrospective Application, to issue the Enforcement Notice or to prosecute the Plaintiff. He was contacted by Senator Shenton on 14 September 2010 as he was concerned in relation to the Plaintiff's mental health. Mr Scate informed Senator Shenton and Senator Cohen of the incident outside Court on 1 September 2010 and the precautions put in place as a result of the incident and suggested the matter be left in the hands of Mr Bray as the lead Enforcement Officer who was dealing with the Plaintiff.
130. On 24 September 2010 Senator Shenton drew Mr Scate's attention to a publication (published in England) which was entitled -Best Practice Guidance on Listed Building Prosecutions-. In Appendix 3 to that publication, it listed a number of factors which could be taken into account, including the public interest in the prosecution, possible detrimental effect on the defendant's mental health and delay. Senator Shenton sent it because he was concerned as to the Plaintiff's mental health. Mr Scate sent the publication to Mr Bray and Mr Bolton on 27 September 2010. It was perfectly proper to leave the matter to the Enforcement Officer to consider and it was perfectly possible to come to different views on the public interest in the prosecution. None of these matters ground an allegation of targeted or untargeted malice against Mr Scate.
131. Mr Scate denied acting with any malice towards the Plaintiff and we hold that he did not do so. We could not find any reason why he might have acted with malice. We also conclude that at all times he acted bona fide and accordingly find that he did not act with untargeted malice.
132. Centenier Scaife's involvement in this matter was very limited. The charges were drawn up by staff in the Charges Office and discussed with members of the Planning Department. He gave evidence to the effect he went through the -evidence package- and he and Mr Bray would have gone through the evidence package. He could not recall seeing the photographs of the Crittall metal windows and said he only became aware that the plastic windows replaced Crittall metal windows after the trial.
133. The means to discover the nature of the windows replaced by the plastic windows were available to him or staff in the Charges Office. However, whatever the degree of carelessness in not spotting that timber windows had not been in place immediately before the plastic windows were inserted, there was no evidence that he acted with targeted or untargeted malice. He acted honestly even though he might have missed the nature of the windows replaced by the plastic windows.
134. Mr Scaife denied acting with any malice towards the Plaintiff and we hold that he did not do so. We could not find any reason why he might have acted with malice. We also conclude that at all times he acted bona fide and accordingly find that he did not act with untargeted malice.
135. Advocate Morris had not met the Plaintiff until he took over the role of prosecuting advocate after the initial hearing on 4 August 2010. As noted above he had little, if any, direct memory of matters.
136. On about 31 August 2010 in the course of a telephone conversation with the Plaintiff he urged the Plaintiff to seek legal representation.
137. Advocate Morris opened the prosecution case on 25 November 2010 in a confusing way as he referred to the Planning Permission as applying to the windows at the rear of No 17 and 19 but that was corrected in the course of Mr Bray's evidence and the Relief Magistrate understood the difference between the Planning Permission and the Building Permit. Advocate Morris had informed the Assistant Magistrate at a pre-trial hearing that the Charge referred to the wrong section of the 2002 Law but failed to formally amend the Charge to refer to Article 5(1)(a) instead of Article 5(1) (b). He did not, as alleged in paragraph 35 of the Order of Justice, knowingly mislead the Magistrate in relation to the Article. He also opened the prosecution case on the basis that the Plaintiff had removed timber windows. He had not picked up from the prosecution file that Crittall metal windows had been removed and not timber windows, and he was not curious as to the reasons why the Plaintiff would not agree to admissions 2 and 3 of the draft admissions sent to him on 21 October 2010 - admissions which referred to timber windows being removed. He should have noticed the error if he had read the file or asked the Plaintiff why he would not admit draft admissions 2 and 3. Instead he appears to have relied on the Enforcement Notice and the Charges without checking that they were correct.
138. He did not react when Mr Thorne was cross examined by the Plaintiff to the effect that the windows which had been removed were Crittall metal windows. As the Plaintiff was acting for himself the hearing was rather disorganised and even the Relief Magistrate did not appreciate the significance of the error in the Enforcement Notice or the Charges of the erroneous reference to the removal of timber windows. Mr Thorne's evidence was that it did not matter what was removed; planning permission was required for any replacement windows. The significance of the error was not noticed by Advocate Morris who if he had appreciated its significance would have been expected to raise it with the Relief Magistrate. His failure was careless.
139. He also was wrong when he told the Relief Magistrate that the dormer windows did not form part of the Charges. They were erroneously referred to in the Enforcement Notice and two of the Charges related to the failure to comply with that notice. That was an error, on the face of the Charges, in the Plaintiff's favour in that the Relief Magistrate would have understood that he was not concerned with the dormer windows. Once again Advocate Morris was careless. He did not knowingly mislead the Relief Magistrate.
140. The failure to disclose documents was not due to a failure by Advocate Morris. On or about 11 November 2010 he asked Mr Bolton to ensure that all the relevant documentation was obtained. There was no evidence (as the Order of Justice pleads), that Advocate Morris was aware that documents which should have been disclosed had not been.
141. Advocate Morris denied acting with any malice towards the Plaintiff and we hold that he did not do so. We could not find any reason why he might have acted with malice. We also conclude that at all times he acted bona fide and accordingly find that he did not act with untargeted malice. His mistakes arose from an unfamiliarity with the papers or a lack of appreciation of the significance of the fact that permission had been given for the dormer windows and the windows which had been removed were not timber windows.
142. Ms Ingle had had no personal dealings with the Plaintiff and first had any direct involvement with him in the course of the trial on 25 November 2010.
143. As noted above, Ms Ingle joined the Planning Department in March 2009.
144. Mr Thorne had not made any decision in relation to the windows at the rear of Nos 17 and 19 to the effect that plastic windows could remain in the rear of the Properties as alleged in paragraph 17 of the Order of Justice. He had indicated that there might be some flexibility in relation to the windows but had reached no decision in relation to allowing the windows to remain in situ. Accordingly, the allegation in paragraph 17 of the Order of Justice that Ms Ingle, Mr Le Gresley and Ms Jones joined forces to overturn Mr Thorne's decision is rejected.
145. Furthermore, Ms Ingle was not involved in consideration of the merits of the Retrospective Application which was formally rejected on 27 July 2009. Her answer at the trial before the Magistrate that she was not involved was truthful and the allegation in paragraph 37(g) of the Order of Justice is rejected.
146. A further allegation is made at paragraph 37(h) of the Order of Justice to the effect that she committed perjury when she denied having any role in regard to the Enforcement Notice. Mr Bray emailed Ms Ingle on 2 November 2009 to the effect that he was going to serve an enforcement notice on the Plaintiff and to check the wording and setting out wording he thought would be appropriate. Ms Ingle replied with suggested wording but made it plain that she had not seen the file and suggested some wording which referred to the dormer windows and reflected the reference to the timber windows being removed referred to in the draft sent to her. As noted above she said the file needed to be checked.
147. At the trial, for which she was unprepared not having been shown the planning file and her email with suggested wording, she was asked if he had any involvement in the -issuing or processing- of the Enforcement Notice. She replied that she had had none. In her evidence to this Court, she said that she had completely forgotten that she had supplied some suggested wording for the notice albeit caveated by advising that her wording should be checked against the file which might contain photographs. We accept that she had forgotten supplying some wording. Her email of 2 November 2009 to Mr Bray was not produced for the trial and is not referred to in Mr Bray's Enforcement Notes. She had not been told to or how to prepare for the trial and everyone involved was uncertain as to the reason the Plaintiff wished for her to be called as a witness. She had no involvement in the decision to issue of the Enforcement Notice. The decision to issue it was not hers but for those in the Planning Department; her role was to advise on historic building issues, and she did not decide whether the notice should be issued. She only discovered that retrospective planning permission had been refused after the meeting with Mr Waddington as recorded in her email to Mr Waddington sent on 28 October 2009 in which she noted -the Department will of course now consider the option of taking Enforcement action-. The identity of the draftsman of the Enforcement Notice was irrelevant to the issues before the Relief Magistrate.
148. We also have reservations whether Ms Ingle could fairly be said to have had an involvement in the processing of the Enforcement Notice in circumstances where at an early stage Mr Bray, who was preparing the Enforcement Notice asked for some assistance with the wording and she provided some wording with a warning that checks needed to be made. When asked by the Relief Magistrate whether she had been -involved- in the drafting of the Enforcement Notice she replied that she did not recall being involved in the drafting. That is not surprising. Her involvement in the draft was on 2 November 2009 and she was being asked about it on 25 November 2010 i.e., more than a year later. The issue of the Enforcement Notice was a matter for Mr Thorne who reluctantly signed it, apparently without reading the file.
149. We have no hesitation in rejecting the claim that Ms Ingle committed perjury in her evidence relating to the Enforcement Notice as alleged in the Order of Justice.
150. We also reject the suggestion that she deliberately withheld the email exchange of 2 November 2009 when asked to produce the emails on about 11 November 2010. She may have misunderstood the request or the email exchange between her and Mr Bray might have been deleted. We cannot conceive of any reason why she should have deliberately sought to conceal these emails.
151. Ms Ingle denied acting with any malice towards the Plaintiff and we hold that she did not do so. We could not find any reason why she might have acted with malice. We also conclude that at all times she acted bona fide and accordingly find that she did not act with untargeted malice.
152. The Order of Justice describes in paragraphs 12 and 13 the Plaintiff's alleged difficulties with obtaining planning permissions in relation to a number of properties including, 5 Conway Street, 33 Aquila Road and Nos 17 and 19 which involved Ms Jones or Mr Le Gresley. However, it also alleges that the Plaintiff suffered similar difficulties with his planning applications in relation to other properties which were not matters dealt with by Mr Le Gresley or Ms Jones. The fact that the Plaintiff was dissatisfied with the manner in which his planning permissions were dealt with in general may be due to a number of causes not all attributable to failure in the Planning Department or any action by Mr Le Gresley which can give any ground of complaint by the Plaintiff against Mr Le Gresley. This case is not about the general performance of the Planning Department or Mr Le Gresley, and one cannot infer any lapse of duty from a general statement that the Plaintiff was dissatisfied with the outcome of his applications in general, let alone misfeasance. If the Planning Department's decisions appeared to be unreasonable, then the appropriate course was, at the material time within the time limits afforded, to take advantage of the various routes by which planning decisions can be appealed.
153. However, the core of the Plaintiff's case involves the manner in which Defendants dealt with Nos 17 and 19. The Garden Unit Application was initially refused by Ms Jones on 4 June 2008 on the grounds described above. Mr Le Gresley became involved when Mr Grainger wrote to Mr Le Gresley complaining that the refusal appeared unreasonable. Mr Le Gresley replied on 30 June 2008 to the effect that Ms Jones' decisions appeared reasonable and could be defended on appeal should that prove necessary. He wrote further on 8 July 2008, somewhat elliptically, that some of the reasons might be more pertinent than others. When the matter was raised with Mr Thorne by Mr Waddington on 13 February 2009, he indicated that he saw the Garden Unit Application in a more positive light and, after some slight amendment to the plans, it was approved on 27 May 2009 (despite opposition from Ms Jones the case officer). Mr Le Gresley and Mr Thorne worked together to secure the approval as can been seen from the manuscript note on 13 May 2009. There is no suggestion that Mr Le Gresley opposed the grant of the revised application.
154. On 21 January 2009 the Plaintiff submitted the Retrospective application for the windows. It is clear that whatever the nature of the windows removed by the Plaintiff from the rear of Nos 17 and 19, he required planning permission to insert new windows. That planning permission was refused by Mr Le Gresley on 24 July 2009.
155. Mr Thorne had not made any decision in relation to the windows at the rear of Nos 17 and 19 as alleged in paragraph 17 of the Order of Justice. He had indicated that there might be some potential for the plastic windows to remain in situ in the course of a discussion with Mr Waddington and no inference that the plastic windows could remain could be taken from discussion concerning the Garden Unit. Accordingly, the allegation in paragraph 17 of the Order of Justice that Ms Ingle, Mr Le Gresley and Ms Jones joined forces to overturn Mr Thorne's decision is rejected. Indeed, we note that Mr Thorne's recollection set out in his email of 13 July 2009 to Mr Waddington (albeit challenged by Mr Waddington in his response sent on 17 July 2009) was that if planning permission was given for the Garden Unit then the plastic windows would be removed.
156. We have also had the advantage of reading a transcript of a recording made by the Plaintiff of a conversation he had with Mr Le Gresley on 29 June 2009 about various planning applications including those relating to the Garden Unit and the windows at the rear of Nos 17 and 19. The conversation went on for over half an hour and both the Plaintiff and Mr Le Gresley were courteous to each other. Mr Le Gresley explained that the Plaintiff often picked up difficult sites and then tried to -squeeze an extra bit out of it- to which the Plaintiff agreed. Mr Le Gresley explained that as the Plaintiff was -pushing against the envelope" he was sometimes going to be refused planning permission. He pointed out that when he was refused he took it personally and thought there was a conspiracy against him - but there was not. Albeit there was a discussion about the windows and the approach of Ms Jones, the Plaintiff did not inform Mr Le Gresley, in the course of the conversation, that the windows he had removed were Crittall metal windows. Mr Le Gresley explained why the Plaintiff might have been invited to put in the Retrospective Application which was to give him the opportunity to make his case. He also stated that the Planning Department was looking into whether the plastic windows could remain in a BLI.
157. When the refusal of the Retrospective Application (relating to the plastic windows) was submitted to him to sign, the file contained a diagram of the rear faΓ§ade, illustrating the windows which were in situ (described on the diagram as Crittall metal windows) before the Plaintiff replaced them with plastic windows. Mr Le Gresley admitted in evidence that he had not seen the plan when he signed the refusal but accepted that it was probably in the file. As Mr Le Gresley candidly admitted in his affidavit, having stated that at the time he considered the Retrospective Application he was not aware that the removed windows were Crittall metal windows, had he been aware the -information would have been relevant to the original planning application and may well have led to a different outcome".
158. Mr Le Gresley was careless as he did not look through the file to ascertain the nature of the windows removed and whether their nature might have been relevant to consideration of the Retrospective Application.
159. Mr Le Gresley denied acting with any malice towards the Plaintiff and we hold that he did not do so. We could not find any reasons why he might have acted with malice. We also conclude that at all times he acted bona fide and accordingly find that he did not act with untargeted malice.
160. The same matters are described in paragraphs 12 and 13 of the Order of Justice with reference to Ms Jones as are made against Mr Le Gresley and the Court's decision in relation to those matters is the same as it is for Mr Le Gresley.
161. The allegation in paragraph 17 of the Order of Justice is rejected for the same reason as it is against Mr Le Gresley.
162. Ms Jones was the case officer in relation to the Garden Unit Application. She recommended its rejection on the six grounds described above. The main ground was that the design of the replacement unit related poorly to a BLI. Her decision was upheld by Mr Le Gresley. It is noteworthy that poor design of the proposed unit was the ground recorded in her file note dated 13 February 2009 and prepared after a meeting between Mr Waddington and Mr Thorne to discuss the Garden Unit Application. In drafting the reasons for the refusal Ms Jones used a template for the reasons and some of the reasons, for example a lack of parking, might appear to someone without a great experience of planning as being inapposite. The Plaintiff was upset at the rejection and the terms of the rejection appear to have exacerbated his feelings leading him to believe that Ms Jones was deliberately trying to obstruct his applications as he described in his telephone call with Mr Le Gresley on 29 June 2009.
163. In fact, when planning permission was given for the Garden Unit on 27 May 2009 (under the auspices of Messrs Thorne and Le Gresley) it was given on the basis of a revised plan submitted by Mr Waddington, who described it as redesigned and repositioned and -it is now a crisply detailed and simple, modern detached unit-. Accordingly, no inference can be drawn that the decision to refuse the original application was wrong. The permission did not refer to the plastic windows.
164. Ms Jones was also the case officer in relation to the Retrospective Application. She was aware that the windows removed by the Plaintiff had been Crittall metal windows. She refused the application on the grounds that plastic windows were not appropriate for a BLI. Her evidence was that she was following Planning Policy G13, at the time. She was not involved in the enforcement action and her next involvement was to attend the Magistrate's Court to give evidence.
165. The Order of Justice pleads at paragraph 37(J) that Ms Jones committed perjury at the trial before the Magistrate's Court. No particulars are given of what the Plaintiff relies on. We reject the allegation that Ms Jones committed perjury. No allegation should have been made in such an unparticularised manner.
166. Ms Jones denied acting with any malice towards the Plaintiff and we hold that she did not do so. We could not find any reason why she might have acted with malice. We also conclude that at all times she acted bona fide and accordingly find that she did not act with untargeted malice.
167. Accordingly, we dismiss the action against the First to Eighth Defendants. We also accordingly dismiss the action against the Ninth Defendant, the States Employment Board.
168. This matter was commenced by the Plaintiff when he acted for himself. It is regrettable that he sought to bring very serious allegations against eight professionals (originally nine, including Mr Thorne) who had an involvement in relation to planning issues involving the Properties without any consideration as to their respective roles in the matters described above which leads to the inference that the action was not brought bona fide but in the hope that the Plaintiff could vent his dissatisfaction with the manner in which the Planning Department had dealt with a number of his applications. The Plaintiff had a number of routes available to him to challenge the Planning Department's refusal of the Retrospective Application and the Enforcement Notice, and had he even sent a letter emphasising that Crittall metal windows had been replaced by the plastic windows, the matter would probably have been resolved. As Mr Le Gresley indicated in his evidence, had he been aware of the true state of affairs, it was likely that permission would have been granted for the plastic windows as they were a substantial improvement to the Properties.
169. It also has to be said that the Planning Department's handling of the Plaintiff's Retrospective Application was less than competent. Mr Bisson, Mr Bray, and Ms Jones knew that Crittall metal windows had been removed and yet that factor was not prominently recorded in the file relating to the Retrospective Application and there appears to have been little communication amongst personnel even when it became apparent that the Plaintiff was suffering a great deal of stress over the matter. Mr Le Gresley who signed the refusal had the means to ascertain the nature of the windows which were removed by the Plaintiff but failed to consider the matter properly since he cannot have read the file carefully. Mr Thorne who regrettably signed the Enforcement Notice also appears not to have appreciated the nature and state of the windows removed and cannot have read the file properly since he was sympathetic to the Plaintiff and took a more liberal view of the guidance applying to BLIs. The Centenier and the Charges Office also failed to consider the matter properly and the Planning Department also appears to have failed to ensure that Advocate Morris was fully instructed.
170. We note that the Reg's Skips Limited Report was presented to the States on 16 September 2010. That report found that the Planning Department had almost no procedures in place in relation to the manner in which the enforcement officers should discharge their functions or how their work should relate to the main operation of the Planning Department. We assume that those matters have now been remedied and that there are better procedures in place to ensure that communication between staff in the Planning Department is more effective than described above.
171. We record our gratitude to counsel who did a great deal to assist the Court. We would also note that counsel for the Plaintiff came into the matter very late and bore no responsibility for the drafting of the Order of Justice.
172. We reserve the issue of costs and will issue directions for the manner in which the costs should be dealt with, either on the papers or with a hearing, after counsel have had an opportunity to consider the matter and communicated their submissions as to the procedure to be adopted to the Court.
173. This is the unanimous decision of the Jurats
Authorities
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