2001/161A
ROYAL COURT
(Samedi Division)
26th July 2001
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Before:
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Sir Philip Bailhache, Bailiff, and Jurats
Quérée and Georgelin.
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The Attorney
General
-v-
Janvrin Holdings, Ltd.
Sentencing by the
Inferior Number of the Royal Court, following conviction on 14th
June 2001 on a not guilty plea to:
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1 count of:
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developing property without Planning and
Environment Committee consent, contrary to Article 8 of the Island
Planning (Jersey) Law 1964.
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Details of
Offence:
The Defendant company owned a
property known as Janvrin’s Farm, Portelet. The company was purchased by one David
Sheppard on 1st March 2000.
He was aware at the time of purchase that the Planning and Environment
Committee were considering placing the property, or parts of it, on the
register of Buildings of Architectural and Historical importance. The company took legal advice, which was
to the effect that demolition was not “development” within the
meaning of the 1964 Law, thus not requiring the Committee’s consent, and
on 11th March 2000 the company demolished the property.
Details of
Mitigation:
At the time the property was
demolished, it was not actually listed.
Having taken legal advice, the company believed that it was entitled to
do what it did. As a result of the
demolition, any development of the property was likely to involve a significant
loss to the company, rather than achieve a profit.
Previous
Convictions:
None.
Conclusions:
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Count 1:
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£225,000 fine; £30,000
costs.
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Sentence
and Observations of Court:
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Count 1:
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£150,000 fine; to pay 50% of
prosecution costs up to a maximum of £15,000.
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This was a deliberate
and cynical act of destruction.
Court took pragmatic view as to likelihood of profit being made
A.R. Binnington,
Esq., Crown Advocate.
Advocate M.M.G. Voisin for the Defendant
Company.
JUDGMENT
THE BAILIFF:
1.
The
demolition of Janvrin’s Farm was a deliberate and cynical act of
destruction, calculated to avoid the proposed placing of the property on the
Register of Buildings of Local Interest.
Notwithstanding receipt of a letter from an official in the Planning
Department seeking to gain access to the property, for the purpose of further
inquiries, the Defendant company did not inform the department of its intention
to demolish and acted with great speed to thwart the process. Notwithstanding the explanation given in
evidence by Mr. Sheppard, the purpose, in our judgment, was to increase the
commercial value of the site for the benefit of the Defendant company’s principal,
i.e. Mr. Sheppard. The effect of
the Defendant company’s actions has been to deprive the community of a
building of some historic interest.
The actions of the Defendant company caused widespread public outrage,
but we put that entirely out of mind.
2.
The
Defendant company falls to be sentenced for an infraction of Article 8 of the
Island Planning Law by commencing a development of the property by causing or
permitting the demolition of the buildings on the site. The factors which we have just mentioned
are aggravating features of the offence.
3.
On the
other hand, this is not a case where the Defendant company acted without taking
legal advice. The defendant company
was advised that the proposed demolition did not require development
permission. We have found that that
advice was wrong but so far as the Defendant company is concerned it is a
mitigating factor.
4.
We think
that the Crown Advocate was right to conclude that account should be taken in
the penalty to be imposed of the profit likely to result from the commission of
the offence. It is axiomatic that
offenders should not be permitted to profit from their offending.
5.
Counsel
for the Defendant company argued that there will be no profit and submitted
that the property has, indeed diminished
in value as the result of the demolition. He initially submitted that no
development at all might be permitted by the Planning and Environment
Committee. In support of that
submission counsel referred to a valuation from Broadland Estates Ltd which
suggested that the property was blighted by the uncertainty of whether the
Committee would allow any development.
That uncertainty has been removed by an affidavit from a senior official
in the Planning Department which has been made available to us following the
adjournment. That affidavit makes it clear that the committee will allow
re-development and would be minded to approve such re-development within the
footprint of the demolished buildings.
The present indication is that the Committee would permit the construction
of two residential units, notwithstanding that the site is in the Green Zone.
6.
We have
considered, very carefully, the submissions made to us by defence counsel in
relation to the evidence of the estate agents, architect and accountant on the
costs of re-development of the site and possible financial returns. These calculations are all based upon
the premise that the development which is ultimately permitted will be on the
lines of the indication from Mr. Webster of the Planning Department in his
letter of the 19th July, 2001.
7.
We take a
pragmatic approach. The fact of the
matter is that the Defendant company through its principal, Mr. Sheppard,
purchased Janvrin’s Farm for £500,000 in the knowledge that it was
in the Green Zone and that re-development would involve intensive discussions
with the Planning authority.
Notwithstanding that background, the Defendant company, the principal of
which is an experienced property
developer, took the decision to demolish the property. We do not believe that this would have
happened if the Defendant company had not anticipated an ability to make a
reasonable profit.
8.
Our
conclusion is, that at the end of the day, there is likely to be available to
the Defendant company an illicit profit which would not have been available if
it had not engaged in the unlawful act of demolishing the buildings without the
permission of the Planning and Environment Committee. We do not attempt to
quantify that likely profit, although we think on the evidence now available to
us that it is likely to be less substantial than that clearly assumed by the
Crown Advocate in his conclusions.
We adopt the approach recommended by this Court in AG-v-Muren &
Peters (16th August 2000) Jersey Unreported and we have taken
into account, as an aggravating feature of the offence, the likely illicit
profit in determining the sentence to be imposed.
9.
Counsel
for the Defendant company made some play of the fact that it did not demolish a
listed building. That is quite true
but as we have said the defendant company did demolish an historic building,
which it knew was being considered for inclusion in the non-statutory register
of buildings of local interest.
Inclusion in such a register would, at the very least, have prevented
demolition and hindered development.
10. Defence counsel also submitted that the
Defendant company was not in a position to pay a large fine and produced
accounts for the company in support of that submission. Those accounts indicated, so far as the
first set of accounts was concerned, that there was a substantial creditor to
whom the company owed over £350,000.
We were told that when the Defendant company was acquired by Mr.
Sheppard, he also acquired the benefit of the loan account. We were not impressed by that
argument. The Defendant company is
the alter ego of its beneficial owner, Mr. Sheppard. The Defendant company owns a site of
considerable value and is well able to pay the fine which we are about to
impose.
11. We take account of all the matters ably put
before us by counsel for the Defendant company. We think that, nevertheless, a
substantial fine must be imposed, both to punish the Defendant company for its
offence and to deter others, who might be tempted by the prospect of commercial
gain, unlawfully to demolish historic buildings. We accordingly order the Defendant
company to pay a fine in respect of the offence of which it has been convicted
of £150,000. We will, as
requested by counsel, allow the Defendant company four months to pay the fine,
so that the appeal to the Court of Appeal against conviction and, if necessary,
sentence can be heard and determined.
We order, however, that the obligation to pay £150,000 to the
Crown, arising from this judgment, be registered in the Public Registry as an
hypothèque upon the immovable property of the Defendant company.
12. I turn to the question of costs. The Defendant company was discharged
from the prosecution on Charge 2 on the billet. I make no order in favour of the
Defendant company in that respect, but I take account of its acquittal on that
second charge, in ordering the Defendant company to pay 50% of the costs of the
prosecution, not exceeding the sum of £15,000.
Authorities
AG-v-Muren
& Peters (16th August 2000) Jersey Unreported [2000/166]
M & G Contractors, Ltd (1986) 8
Cr.App.R (s) 474.
R-v-McCarthy & Stone
(Developments) Ltd (12th March 1998) Current Law Year Book: p.1479.
R-v-Browning (1995) 1 PLR 61.
R-v-Seymour (1987) 9 Cr.App.R. (s)
395.
R-v-Simpson (1992)
14 Cr.App. R (s) 602.
R-v-J.O.Sims,
Ltd (1992) 14 Cr.App.R. (s) 213.
R-v-Duckworth
(1994) 16 Cr.App.R (s) 529.