[2004]JRC061
royal court
(Samedi Division)
2nd April 2004
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Before:
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M C St J Birt, Esq., Deputy Bailiff and
Jurats Quérée and Le Breton
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Between
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Frederick Ronald
Craven and Elizabeth May Craven née Graham
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Appellants
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And
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Environment and Public Services Committee
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Respondent
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Between
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David William Arthur Elliott and Sylvia
Elliott
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Appellants
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And
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Environment and Public Services Committee
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Respondent
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Appeals by neighbouring property owners
against the refusal of the Environment and Public Services Committee
(“the Committee”) to allow them to carry out work which would
enable them to gain vehicular access to their respective properties.
Advocate A.D. Hoy for the Appellants
Advocate J. Hawgood for the Respondent
Committee.
judgment
the deputy bailiff:
1.
This case
concerns two appeals by neighbouring property owners against the refusal of the
Environment and Public Services Committee (“the Committee”) to
allow them to carry out work which would enable them to gain vehicular access
to their respective properties. The
appeals were heard together.
The background
2.
Mr and Mrs
Elliott are the owners of Tregoney, 2
Green Road, St Clement. The property forms part of a terrace of
eight two-storey dwellings situated on the northern side of the western end of Green Road. The property adjoins No.3 Green Road which is owned by the
other appellants Mr and Mrs Craven.
3.
The houses
are all set back approximately 3.2 metres from the highway. Each of the properties has a small front
garden with a low fairly uniform roadside wall to the front. Only one of the properties in the
terrace, namely the property at the eastern end, has an authorised front
vehicular access, which provides access to an integral garage to the side of
the property.
4.
Mr and Mrs
Elliott applied in 1999 for permission to demolish the front garden wall in
order to create a parking space for one car. Following consultation with the Public Services
Department as the highway authority, the application was refused in November
1999 on the grounds that the proposal would result in the loss of a roadside
wall which would be detrimental to the visual amenity of the area and the
proposal was likely to result in the creation of a traffic hazard caused by
vehicles manoeuvring into and away from the proposed parking area.
5.
Mr and Mrs
Craven are the owners of Rayeil, 3
Green Road which immediately adjoins No.2. In November 1997 they applied for
permission to demolish the front garden wall so as to create a parking
space. Following consultation with
the Public Services Department, the application was refused on 14th
January 1998 on the grounds that the proposal did not include adequate car
parking provision complying with the standards adopted by the Committee and was
likely to result in the creation of a traffic hazard caused by vehicles
manoeuvring onto and away from the proposed parking area.
6.
On 11th July 2000
the appellants submitted a joint application in respect of both properties to
provide joint vehicular access at the front of their two properties so as to
enable the provision of one parking space in front of each house. The Constable of St Clement had no
objection to the proposal. The
Public Services Department, as the highway authority, was again consulted and
recommended rejection. Permission was
refused on the grounds that:-
(i)
the
proposal did not include adequate facilities to enable a vehicle to turn on the
site and enter the highway in a forward direction, considered essential in the
interests of road safety;
(ii) the proposal was likely to result in the
creation of a traffic hazard caused by vehicles manoeuvring on to and away from
the proposed parking area;
(iii) the proposal would result in the loss of a
roadside wall, the impact of which would be detrimental to the visual amenity
of the area.
7.
In
November 2002 it was brought to the attention of officers of the Committee that
part of the wall and a gate post in respect of each property had been removed
in order to provide vehicular access/parking in front of both properties. The owners were warned as to possible
prosecution and they both made retrospective applications for approval. The application of Mr and Mrs Elliott in
respect of No.2 was submitted on 5th
February 2003 and that of Mr and Mrs Craven in respect of No.3 was
submitted on 14th
December 2002. Although
worded very slightly differently, the effect was identical and retrospective
consent was sought for the work which had been undertaken, namely the removal
of a gatepost and part of the front wall in order to create a parking
space. In each case, any parking
would be in a direction parallel with Green
Road.
The area in front of each house is not deep enough to allow parking at
right angles to the road.
8.
The
applications were advertised but no representations were received. Consultation with the Public Services
Department (now under the auspices of the Committee) was undertaken in
pursuance of the duty to consult with the highway authority. In response the following comment was
made by the Assistant Records Manager of the Public Services Department in
respect of each application:-
“No drawing received to
indicate visibility splays. There
is no room for a vehicle to turn on site and to be able to enter and exit in a
forward gear at right angles to the main road. We recommend that the application be
rejected.”
9.
The
Assistant Planner, Mr Farman prepared reports dated 7th March for
the Planning Sub-Committee in respect of the two applications. The reports referred to Planning
Policies G2(vii) and (viii) and BE13; to the fact that the Public Services
Department had recommended refusal; and to the provisions of Article 6(6) of
the 1964 Law in the context of the road safety factors and various other
matters. The reports recommended that the applications should be refused on the
basis that approval would result in a potential hazard to highway safety and
the degradation of the character and appearance of the streetscape.
10. On 24th March 2003 the Planning Sub-Committee
considered the applications and rejected them. The Notice of Refusal dated 27th
March gave the reasons for refusal as follows:-
“1. The proposed development
does not provide adequate visibility splays and would therefore result in
prejudice to highway safety.
2.
the
proposed development does not provide enough space to enable a vehicle to turn
on the site and the highway in a forward direction and would therefore be
prejudicial to highway safety.
3.
the
proposal would result in the permanent loss of a roadside wall and which would
be detrimental to the character and appearance of the street scene contrary to
Policy BE13 of the Jersey
Island Plan 2002.”
11. Subsequently, by identical letters dated 23rd April 2003
from Messrs Michael Voisin & Co, the appellants requested re-consideration
of the applications. The letters
emphasised the terms of the proviso to Article 6(6) and referred to the fact
that the visibility splays for the two properties were at least as good as most
other accesses in Green Road,
very few of which had enough space for vehicles to turn round. This went before the Committee on 17th
July accompanied by a further report from a planning officer. The Committee resolved to uphold its
decision and accordingly the appellants have now both launched appeals to this
Court.
12. It was agreed that there is no vehicular access
to the rear of any of the properties in the terrace and that there is no
on-street parking allowed in Green
Road.
The evidence from the appellants, which was not challenged by the Committee,
suggested that, as compared with when they first moved in, there had been a
substantial reduction in on-street parking, particularly in the nearby coast
road. There was now very little
on-street parking in the immediate neighbourhood and that was confirmed by our
site visit. In the absence of
parking on their properties, the appellants would normally have to park a
considerable distance away even if carrying groceries etc.
The appellants’ submissions
13. The case for the appellants is to be found in
the affidavits filed on their behalf, their written skeletons and the oral
submissions. We have carefully considered
all the points made but propose to give only a brief outline of some of the
arguments.
14. Mr Hoy referred to the relevant provisions of
the Island Planning (Jersey) Law, 1964. Article 5(2) defines
‘development’ (for which permission is required) as including:-
“(a)………
(b) the creation of a new means of access to
land from a road and the enlargement of any existing means of access to land
from a road, to a width exceeding three feet;”
15. Article 6(6) provides as follows:-
“Where application is made to
do any such work as is referred to in sub-paragraph (b) of paragraph (2) of
Article 5 of this Law, or where in respect of any application for permission to
develop land it appears to the Committee that the work, or any part thereof,
would be a source of danger to persons using any road bordering the land or
would involve an increase in public expenditure in the event of the improvement
of any such road at any future time, or would hinder any proposals for the
improvement of any such road previously notified to the Committee by the
highway authority, then in the consideration of such application, the Committee
shall consult with the highway authority and take into account any
representations made by the highway authority in the matter:
Provided that the Committee shall
not exercise its powers under this Article in such a manner as to deny
reasonable access to land either to persons or to vehicles.”
The ‘powers under this Article’
referred to are of course the powers to grant development permission
conditionally or unconditionally or refuse permission.
16. The appellants’ written submissions
contended that the proviso to Article 6(6) was mandatory in its terms. Any property owner was entitled to
reasonable access, vehicular and pedestrian to his home. The only duty imposed by the main
part of Article 6(6) was to consult with the highway authority. The Committee was not bound to agree
with any views which the highway authority might express. It was entirely reasonable for a party
whose property had no other means of vehicular access and who also had no
reasonable access to on-street parking, to wish to use available space in front
of his house for the purpose of vehicular access. By definition such access would be
reasonable because it could be done and there was no other means of
access. Alternatively, they
submitted that the proviso created a strong presumption in favour of granting
vehicular access to a property owner where there was no other means of such
access and there was a heavy onus on the Committee to rebut that
presumption.
17. The Committee had considered Policy G2(vii) and
(viii) of the Island Plan 2002 which stated:-
“Applicants need to
demonstrate that the proposed development ……… (vii) provides
a satisfactory means of access, manoeuvring space within the site and adequate
space for parking; (viii) will not lead to unacceptable problems of traffic
generation, safety or parking.”
However, submitted Mr Hoy, these could not
override the express terms of the proviso to Article 6(6).
18. During his oral submissions Mr Hoy did not
press his first interpretation of the proviso and was inclined to accept that
his alternative formulation was correct i.e. there was a presumption in favour
of a sole means of vehicular access.
The matter ultimately turned, he said, on the degree of danger which
would be caused to the public if vehicular access in this case were to be
allowed. The Committee had not
rebutted the presumption in this case.
It had failed to consider the specific circumstances of the case. It had not visited the site nor had it
received any evidence concerning the level of traffic on the road, the number
and nature of other exits of a similar nature in the vicinity and whether there
had been a record of accidents in that particular road. Indeed there was no evidence before the
Committee to justify the first reason which it gave in its Notice of Refusal,
namely that the visibility splays were not adequate. On the contrary, the comment from the
highway authority had said simply that no drawings had been received to
indicate the visibility splays. In
this connection, he submitted that it had been unreasonable for the Public
Services Department to criticise the appellants for failing to produce any such
drawings without their being alerted to the need to produce drawings. These were applicants in person. There was no published document
indicating that such drawings were necessary and no one had seen fit to
communicate the concern of the Public Services Department to the
appellants. We would add that, in
our judgment, Mr Hoy’s criticisms in this respect were fully
justified.
19. The appellants submitted that the danger which
would be caused by allowing the access to be created would be minimal. There were many existing vehicular exits
from a number of properties in the neighbourhood and, in many of them, the
visibility was rather worse than it would be in the two properties in question;
yet there was no evidence of accidents having been caused as a result. Whilst the road was reasonably busy, it
was certainly not one of the busiest roads in the island. There was a 30 m.p.h. limit. The appellants had not experienced any
difficulty in exiting safely from their properties during the time they had
been parking on them since the spring/summer of 2002 when they had undertaken
the unauthorised works.
20. The second reason given by the Committee in its
Notice of Refusal was that there was not enough space for vehicles to turn
round and exit in a forward direction.
It was clear from the comments of the highway authority that it wished
access to be gained at a right angle to the road. The appellants submitted that there were
hundreds, if not thousands, of similar access points throughout the island
where there was insufficient space to turn round with the result that a car had
either to stop and reverse off the road (the preferred method) or reverse on to
the road from the property.
Furthermore the preference for perpendicular parking as opposed to
parallel parking was not justified.
All on-street parking was parallel to the direction of traffic and there
was no real difficulty in drivers exiting in such circumstances. It made no difference that the parallel
parking in this case would be just off the road rather than on the road. Furthermore the Committee had never published
any guidance to make clear that this was its policy.
21. In short the Committee had failed to give
sufficient weight to the proviso to Article 6(6). It had simply adopted the advice of the
highway authority without further thought and without giving consideration to
the specific facts of this case, in particular the level of danger which would
be caused by allowing the creation of this particular access.
22. Additionally the appellants submitted that the
Committee had been inconsistent in its decisions. There were innumerable examples of
properties having access on to main roads where there was no room to turn on
the property (so that reversing on to or off the property was required). There were also many cases of parallel
parking having been permitted. Some
of these decisions were comparatively recent. A number of examples were given in
evidence. Mr Hoy submitted that it
was unreasonable therefore to refuse these particular applications for parallel
parking when others, which would have caused no less and possibly greater
danger to road safety, had been allowed through.
23. In its third reason the Committee had relied
upon Policy BE13 of the Island Plan which provides:-
“There will be a
presumption against the loss of front gardens and their boundary features to
provide for frontage parking with direct access off the highway where this
would have a detrimental impact on the character and appearance of the street
scene or highway safety.”
My Hoy repeated his argument that any such
policy could not override the express terms of the proviso to Article 6(6).
24. Finally, in his written submissions, Mr Hoy
took a technical point in connection with the expression of the views of the
highway authority. In the case of a
main road such as Green Road,
the highway authority has until recently been the Public Services
Committee. At the end of 2002
the Public Services Committee was merged with the Environment and Planning
Committee to make the Environment and Public Services Committee. The Committee itself is therefore the
highway authority in respect of a main road such as Green Road. However it fulfils that function through
officers in the Public Services Department. Initially, in his written submissions,
Mr Hoy took a technical point concerning whether the Committee had properly
delegated its functions as a highway authority to these officers but, following
production of an Act of delegation by the Committee (which showed a due
delegation albeit misdescribing the title of the Assistant Records Manager), he
has not pressed that point and he was clearly right not to do so. We will not consider it further.
The Committee’s submissions
25. The Committee’s position was set out in
the ‘statement and material facts of the Committee’s decision’
(“the Committee statement”) as supplemented by affidavits from Mr
Webster, Principal Planner and Mr St George, Senior Traffic Engineer of the
Public Services Department and the skeleton arguments submitted by Mr
Hawgood. We have carefully
considered all the matters set out in those various papers but propose to
summarise only certain points in this judgment.
26. Essentially the Committee stood by its decision
for the reasons given at the time.
First, because of concerns about road safety, it did not consider that
the proposed access amounted to ‘reasonable access’ to the
properties as envisaged in the proviso to Article 6(6). Secondly, it considered that the removal
of part of the wall at each property would be detrimental to the character of
the street scene and contrary to Policy BE13 of the Island Plan.
27. We refer only briefly to the second
reason. The Committee’s
position is that, if there were no reasonable grounds for refusing permission
on highway safety grounds, then, having regard to the issue of reasonable
access referred to in the proviso to Article6(6), it would not have refused
permission solely on visual amenity grounds notwithstanding its concern about
the adverse visual impact of the proposal.
However, given its decision on the road safety issue, the visual amenity
ground was also taken into account and relied upon by the Committee. In the light of this assertion it seems
sensible to concentrate on the road safety issue.
28. As to this, the reasons given by the Committee
were essentially two-fold. First
the proposed development did not provide adequate visibility splays and would
therefore result in prejudice to highway safety. Secondly the proposal did not provide
enough space to enable a vehicle to turn on the site and emerge on to the highway
in a forward direction at right angles to the main road. Mr Hawgood conceded that there was in
fact no evidence before the Committee that the visibility splays were
inadequate because there was no evidence as to what they were. This reason was therefore
erroneous. However, he submitted,
the Committee was still entitled to take account of the concerns of the highway
authority and apply the policy that access should not be allowed unless it
could be achieved in a forward direction (by provision of turning room on site)
and at right angles to the road.
Furthermore, although there may have been no figures before the
Committee, it was obvious that the visibility splays were inadequate because of
the existence of a hedge on the property lying to the west of No.2 Green Road.
29. In response to the issue of whether the policy
of the highway authority of requiring turning space and being against parallel
parking, as acceded to by the Committee, was a published policy, the Committee
could only point to a document entitled ‘Technical Guide No.1, Roads
Serving Small Housing Developments’ (“Technical Guide No.1”)
which had been publicly available for many years. Mr Hawgood agreed that most of that
document was not relevant to an application such as this, which related to the
creation of a means of access to an existing individual property, but he
referred the Court to the plan at the top right hand corner of the second page
(which shows a car in a junction where the minor road approaches the main road
at right angles) and suggested that this made it clear that vehicles must
emerge from parking places on private property at right angles to the
road. There is however no reference
in the text to an appropriate angle of approach to the main road and we are
quite unable to draw, simply from the existence of the sketch plan, a published
policy that means of vehicular
access from private property must be at right angles to the road. We have not therefore been referred to
any published policy whereby applicants such as these appellants might have
been expected to have been aware that access must be by a vehicle travelling
forward at right angles to the road.
30. Mr Hawgood also referred us to a document
entitled ‘Public Services Department.Technical Guide:Roads Serving Small
Housing Developments’ (“the New Guide”). This was apparently published on 16th July 2003,
coincidentally, one day before reconsideration by the Committee of the
applications in this case. It
replaces Technical Guide No.1. There
is however no suggestion that this document was referred to or relied upon
either by the planning officer when preparing his report for the
reconsideration hearing or by the Committee when reconsidering the matter. Nevertheless the Committee argues that
the New Guide merely reflects previous practice. Again the document is mainly concerned
with small housing developments and the standard for roads in those
developments. However the
introductory sentence to the New Guide says:-
“This guide superceeds (sic) ‘Technical Guide’ [and] is only applicable to the access arrangements for residential
developments of up to 25 dwellings and for new or altered private dwelling
accesses onto public main roads.”
The only passage in the New Guide which is
relevant to these applications is the following at page 5:-
“Developments shall have
sufficient turning area on site to allow vehicles to enter and exit the site in
forward gear and perpendicular to the highway. ………..
Single dwelling developments without
adequate turning area on site will only be permitted subject to all the
following criteria:
·
there is
sufficient visibility to traffic on the main road and
·
the 85th
percentile speed on the main road is less than 35 m.p.h. and
·
the
two-way traffic flow on the main road is less than 400 vehicles in the busiest
hour in a 24-hour period
·
the
proposed vehicular access is at right angles to the public highway.”
31. In preparation for this appeal, Mr St George of
the Public Services Department arranged for a traffic survey in Green Road to be
undertaken. The Court has been
shown an affidavit exhibiting the results.
These show that the maximum average two-way traffic flow in Green Road during
the busiest hour (8-9 a.m.)
was 539. It therefore exceeded the
figure of 400 given in the New Guide.
Although such a figure was apparently well below the level to be found
in the busiest roads in the island, both parties accepted that Green Road could
properly be described as a reasonably busy road. Mr Hawgood therefore argued that,
although these particular matters had not been before or considered by the
Committee, nevertheless, of the four criteria for making an exception to the
rule that access would be refused where there is no turning room on site, only
one was met in this case, namely that there is a 30 m.p.h. speed limit in Green
Road. This therefore confirmed, he
said, that the Committee had acted reasonably in accepting the advice of the
highway authority in this case and adhering to the general policy requiring turning
space on site and a right angled approach to the road.
32. As to the effect of Article 6(6), the
Committee, both in its Committee statement and in its skeleton argument, argued
that, for the purposes of the proviso, access was unreasonable (and therefore
not reasonable) if it presented any of the problems expressly listed in the
body of Article 6(6) Thus, if it appeared to the Committee that the proposed
works would be a source of danger to persons using the bordering road, the
proposed access would not be reasonable and should therefore be refused. The Committee had consulted the highway
authority as required by Article 6(6) and had accepted its advice that there
would be a source of danger to persons using the bordering road.
33. The Committee accepted that there were
innumerable examples of parking spaces throughout the island which did not
comply with the guidelines which were being insisted upon in the present
case. However it denied any
allegation of inconsistency. The
vast majority of such spaces fell into one of three categories:-
(i)
They were
created before the 1964 Law came into force.
(ii) They were created after 1964 but many, many
years ago when traffic conditions were much lighter and the predecessors of the
Committee adopted very different standards towards road safety.
(iii) The Committee had granted consents more
recently which did not comply with the turning on site/right angled approach
guideline but these were in cases where there had been a pre-existing access
and the proposal put to the Committee was an improvement on the existing
situation. Thus the effect of
refusing an application in those circumstances would be to leave the existing
situation in place. The Committee
regarded it as preferable to allow an improvement in the safety of a particular
access even if it did not comply fully with present day standards.
Mr Hawgood submitted that most of the
examples given by the appellants in evidence fell within one of these
categories. Alternatively the
circumstances were very different.
So, for example, Pomona
Road, one of the streets referred to by the
appellants, was a relatively quiet back road and another, Langley Avenue had a 20 m.p.h. speed
limit so that traffic was travelling much more slowly than in Green Road.
34. Mr Hawgood appeared to accept that there were
three instances where the Committee (through its predecessor) had granted
permission for parallel parking in circumstances which were not dissimilar to
the present applications. The first
related to 28 Green Road
where such a permission had been granted in 1991. However, the report of the planning
officer prepared for the reconsideration by the Committee in this case had made
it clear that that decision had been recognised as not in the best interests of
highway safety and it should not be repeated elsewhere. The second instance related to certain
properties in Bel Royal Terrace, La
Route de St Aubin. It was accepted that that was a far
busier road than Green Road but the Committee of the day had been persuaded in
1998, after an initial refusal, to allow parallel parking in respect of 6 Bel
Royal Terrace following representations by the Connétable of St
Lawrence, consideration of the fact that the parking space was large and
therefore allowed more reasonable visibility and the fact that, at the time,
vehicles were parking on the road immediately outside the property but that
this was about to be terminated by the introduction of yellow lines. Having granted permission for No.6, the
Committee later found itself unable to refuse similar applications in respect
of 4 and 5 Bel Royal Terrace. It
had come to regret its initial decision.
The third instance related to a property in Green Street, St
Helier known as Yacht Villa, where permission for a parallel
parking space in front of the house had been granted in 1993. However, that was the only property in Green Street where
such consent had been granted since 1980.
In the 23 years since then the Committee had refused applications (often
repeated) in respect of five other properties in that street.
35. In relation to these decisions, the Committee
relied upon the dicta of the Royal Court in Caesar Investments Limited –v- Planning and
Environment Committee (2003)JRC180 at para 74:-
“As to the argument on
inconsistency, we agree that consistency is an important factor as described by
Lord Widgery in Collas Radio and Rokison JA in Le Maistre. But the need for consistency cannot
elevate an earlier decision into a binding precedent as Mr Voisin seemed to consider. If, for example, the Committee were to
conclude that it had a made an error in relaxing the standards to the extent
which it had at the [nearby] development, we think that it would be open to the
Committee, in the case of an identical site, to admit its error and decide not
to relax the standards to such an extent in future. No doubt such a decision could be said
to be inconsistent with the first decision but, assuming the Committee could
satisfy the Court that it was acting reasonably in revising its reviews, we
think that any such decision would survive an appeal.”
The Committee submitted that this was the
situation here. It had concluded
that its predecessors had erred in granting the permissions at 28 Green Road, Bel
Royal Terrace and Green Street
and it did not wish to perpetuate those errors.
36. Finally the Committee emphasised its concern
that, if the present applications were to be successful, it would make it much
more difficult for the Committee to resist other similar proposals in the vicinity
or elsewhere. This would in turn
further exacerbate the potential for highway safety problems and would serve to
detract further from the visual amenities of the area.
Test on appeal
37. We remind ourselves of the test to be applied
by this Court on an appeal as authoritatively stated in Token Limited-v-Planning and
Environment Committee (2001) JLR 698 at 703 per Bailhache, Bailiff:-
“The Solicitor General
submitted that the decision in Fairview Farm did not entitle the court
to find that the Committee’s decision was reasonable but quash it because
the court had reached an equally reasonable but different decision. We agree. The court might think that a committee’s
decision is mistaken, but that does not of itself entitle the court to
substitute its own decision. The
court must form its own view of the merits, but it must reach the conclusion
that the Committee’s decision is not only mistaken but also unreasonable
before it can intervene. There is
an element of semantics here but there is, nonetheless, a qualitative
difference between finding that a decision is unreasonable, rather than simply
mistaken. To put it another way,
there is a margin of appreciation before a decision which the court thinks to be
mistaken becomes so wrong that it is, in the view of the court,
unreasonable.”
Decision
38. We must first consider the correct
interpretation of the proviso to Article 6(6). We are quite satisfied that Mr
Hoy’s primary submission (as summarised in the first part of para 16) is
incorrect. It would make it
impossible for a new means of access to be refused if it was the sole means of
access to the property, no matter how dangerous. However, neither do we think that the
Committee has correctly interpreted the proviso. The main part of Article 6(6) provides
only that, on the occurrence of any one of the four situations there described,
the Committee is under a duty to consult with the highway authority and take
account of any representations from the highway authority. That is all; the Committee is clearly
not bound by any such representations.
The four situations, any one of which leads to the duty to consult,
are:-
(i)
an
application to do work referred to in Article 5(2)(b) i.e. to create a new
means of access to land from a road;
(ii) where in respect of any application for
permission to develop land, it appears to the Committee that the work would be
a source of danger to persons using any adjoining road;
(iii) where it appears to the Committee that the work
would involve an increase in public expenditure in the event of the improvement
of any adjoining road at any future time;
(iv) where it appears to the Committee that such
work would hinder any proposals for the improvement of any such road previously
notified to the Committee by the highway authority.
39. The Committee said in its written reasons and
submissions that access becomes unreasonable for the purposes of the proviso if
it presents any of the problems expressly listed in the body of Article
6(6). That clearly cannot apply to
the first of the four situations which we have listed above as that would mean
that every new means of access would be unreasonable. The Committee is therefore arguing that
for some reason the three following situations must be treated
differently. Can that be so? Let us take (iii) above, namely where
the work of development (let us assume that it is a creation of a new means of
access) would involve an increase in public expenditure in the event of the
improvement of the adjoining road at any future time. This does not require there to be a
particular road improvement in mind either immediately or in the future. On the Committee’s argument, if
the new access would involve an increase in public expenditure if there were
ever to be a road improvement in the future, that alone makes the proposed
access unreasonable. That cannot
possibly be right. It would be
thoroughly unreasonable to refuse a person permission to create the sole means
of vehicular access to his property simply because, one day, there might just
conceivably be a road improvement scheme which would cost more as a result of
the creation of the access. We are
quite satisfied that it cannot be the case, as argued by the Committee, that
access becomes unreasonable for the purposes of the proviso if it presents any
of the problems listed in the body of Article 6(6). We acknowledge that in paragraph 38 of the
Committee statement, the Committee states that the issue has to be one of
degree and proportionality relative to the public interest; but in our judgment
this cannot undo the effect of the misinterpretation of the statute articulated
earlier in paragraph 38 and repeated in the skeleton argument on behalf of the
Committee.
40. One of the four situations referred to in the
main body of Article 6(6) is where there appears to be a source of danger to
persons using the adjoining road.
The Committee argues, therefore, that if it concludes that there is such
a danger, any access resulting from the work would not be reasonable
access. In our judgment that does
not follow. If the Committee is
entitled to refuse access simply because such access would be a source of
danger, there would be no need for the proviso. It would have been very simple to so
provide. But that is not what the
statute says. It merely states
that, if the Committee thinks there is such a danger, it should consult. In our judgment the proviso makes it
clear that, even where one of the four circumstances is present (so that the
duty to consult arises) the Committee must still not refuse permission if the
effect would be to deny reasonable vehicular access to the land. We note in passing that Mr Hawgood
sought at one stage in his oral submissions to suggest that the proviso was
satisfied if there was either reasonable pedestrian access or
reasonable vehicular access. In
other words the proviso would only apply to ensure that no property was ever
‘enclavé’ in the sense that it could not be accessed
reasonably either by vehicles or by pedestrians. In our judgment the proviso is clearly
not so limited. If that was its
meaning there would have been no need to mention vehicular access at all. In our judgment the proviso is clearly
stating that, prima facie a property
is entitled to reasonable access for persons and vehicles.
41. The proviso in our judgment makes it clear
that, no matter what the circumstances, the Committee must not refuse
permission so as to refuse reasonable access to vehicles. It is unambiguous and mandatory in its
terms. However the key question is
what is meant by ‘reasonable’.
Here the level of danger to the public is relevant. To take an extreme example, if the only
vehicular access would be on to a completely blind corner on an extremely busy
road with a 40 m.p.h. speed limit, the scale and level of the danger would
clearly suggest that any such access would not be reasonable. However, as with all cases of
reasonableness, the Committee must decide whether, having regard to all the
particular circumstances of the case, a refusal of permission would have the
effect of denying reasonable access.
That involves consideration of all the relevant factors of the
particular case including the nature of the request for access and the level of
danger to road users which would thereby be caused. It is not consistent with the proviso
for the Committee rigidly to apply a general policy on exits on to roads. It is of course perfectly proper for the
Committee to have a general policy as to the standards which it would like to
apply. But it has to consider that policy
against the particular facts of each case in order to decide whether, in the
particular case, the effect of applying the policy would be to deny reasonable
access to the land; because it is prohibited by statute from refusing
permission if that were to be the effect.
The terms of the statute are mandatory and the existence of a general
policy cannot override the clear words of the statute. Thus Policies G2(vii) and (viii) and BE13,
together with the general policy on parking spaces as advised by the Public
Services Department are subject to the express terms of the proviso.
42. We hold therefore that the Committee misapplied
the proviso to Article 6(6) by taking the view that, if any of the problems
listed in the main part of Article 6(6) were present, that of itself meant that
any access would be unreasonable and therefore would not fall within the
proviso. The duty of the Committee
was to have regard to the nature and level of the danger in the particular case
and balance this against the other relevant factors in order to decide whether
the effect of refusing to allow the creation of the access in question would be
to deny reasonable vehicular access to the land. The Committee failed to do this. It appears not to have considered
whether the facts of this particular case required a departure from the
preferred general policy in order to comply with the proviso.
43. This misunderstanding alone, coupled with the
fact that the first ground referred to in the Notice of Refusal was clearly
wrong in that the Committee had no evidence before it that the proposal did not
provide adequate visibility splays because, as the note from the highway
authority had stated, no visibility splays were shown in the papers before the
Committee (and the Committee had not compensated for this by attending on site
in order to form its own opinion of the degree of visibility), means that the
decision of the Committee must be quashed.
The question then arises as to whether we should remit the matter to the
Committee for it to reconsider.
This would seem inherently undesirable. It would create added expense to the
parties and, furthermore, we have concluded that, applying what we have held to
be the correct interpretation of Article 6(6), on the specific facts of this
case, a decision to refuse consent was and would be unreasonable. We understand fully the
Committee’s concerns that, to allow these applications might set some
form of precedent which would make it difficult to resist other applications in
the vicinity or, indeed, elsewhere.
However, in our judgment the combination of factors which leads us to
conclude that it would be unreasonable to refuse consent in these cases is
fairly exceptional and should not be capable of use as a precedent in different
circumstances.
44. The factors which have led us to conclude that
a refusal of consent was unreasonable are as follows:-
(i)
There is
no prospect of any other means of vehicular access to these properties.
(ii) The actions of government have made the
appellants’ position worse because on-street parking in the vicinity has
been reduced. The problems of
parking have therefore become worse.
(iii) The problems of parking near the properties are
particularly bad. Not only is there
is no on-street parking in the whole of Green Road but there is no on-street
parking in most of the roads nearby.
There is very limited on-street parking in the near-by coast road but
this is usually full. The
consequence therefore of not having vehicular access to the properties is that
the appellants’ cars have to be parked a very considerable distance away
even if they are carrying substantial items. It is not a case where there is parking
further up the road or in an adjacent street. We doubt that there will be many cases
where the consequences of refusing a parking space would be so severe in this
respect.
(iv) At the time of the application, the Committee
had no published policy to the effect that parking must be perpendicular to the
road so as to allow exit at a right angle.
As we have said previously, Technical Guide No.1 did not articulate such
a policy. Since then the New Guide
has been published and, subject to what we say below, the Committee may of
course consider future applications against the policy set out in that
guide. Although we note the
assertion that it merely reflected pre-existing practice, the fact remains that
it had not previously been published and was not in force at the time of the
application.
(v) This is in effect a joint application. It was made clear to the Court during
the course of the hearing that the intention was to knock down the remaining
gate pillar and wall which divides the properties. There will therefore be a moderately
large area and the cars of each appellant will be able to pass over the
property of the other for the purposes of access to and egress from their
respective parking spaces. As was
said by the Committee’s predecessor in relation to the decision at 6 Bel
Royal Terrace, this assists road safety.
It does so in two respects.
First it assists in achieving better visibility because the driver has
more room for manoeuvre in a large parking space in order to put himself into
the best position for visibility when emerging from the space. Secondly, if the parking space is less
restricted, the driver does not have to concentrate so hard on avoiding contact
with any of the immediate surroundings of the parking space thereby enabling
him to concentrate on checking for on-coming traffic. Emerging from a very constricted site
means that the driver’s concentration is split between checking for
on-coming traffic and ensuring that he does not come into contact with any part
of the site as he emerges from it.
The appellants both made it clear that they were willing to agree
conditions to ensure maximum road safety.
We think it would be perfectly reasonable to insert a condition on any
permission that the parties should amend the title to their respective
properties by creating reciprocal rights to pass over their respective parking
spaces (subject of course to the right of a car to park in that space) for the
purpose of access to and egress from the site. This would ensure that the position
would not change should the properties change hands in future and the new
neighbours not get on so well.
(vi) We accept that Green Road is a road in which the maximum
two-way traffic exceeds the figure of 400 which is set out in the New Guide. However this only applies for some three
hours a day. At all remaining times
the volume of traffic is below this level.
It is a reasonably busy road but it is not nearly as busy as many other
roads in the island where there is existing parallel parking of the nature
sought in this case.
(vii) There are a large number of existing parking
spaces in Green Road
where the means of access do not comply with the conditions which the Committee
seeks to impose in this case. We
appreciate that, save for No.28 they are historical or were granted because
they were an improvement on the previous position and that distinguishes them
from the present case. But the fact
remains that they exist apparently without causing any particular difficulty or
danger. The Court has not been
informed of any record of accidents or concern on the part of the authorities
that Green Road
is at particular risk of accidents because of all these exits. It is noteworthy that the
Connétable of the parish did not object to the application. We would have expected him to have done
so if his honorary police were of the opinion that there was a difficulty. Indeed, as the Court saw during its site
visit, just to the west of the properties in question, there are accesses where
cars have to reverse on to the road at a location which is closer to the
junction with the coast road and where cars therefore come round a bend into Green Road. In addition the evidence from the
appellants is that they have not experienced any difficulty in emerging safely
from their parking spaces during the 18 months or so that they have been doing
so following the unauthorised works.
Having visited the site the Court is of the opinion that the visibility,
even if it does not comply to the letter with the current required standards,
is reasonable and certainly no worse – and in many cases rather better
– than the other exits on to Green Road.
(viii) For all these reasons we conclude that the
additional risk to road safety on Green
Road would be minimal. Taking account of all the various
factors which we have described, a decision to refuse permission in this case
had for its effect to deny reasonable vehicular access to the appellants’
properties and was therefore contrary to the proviso. We have reminded ourselves, per Token,
that we must not allow an appeal simply because, if we had been the Committee,
we might have reached a different decision. However we are satisfied, for the
reasons for which we have given, that a decision to refuse access in this case
on the grounds that to do so would not amount to the denial of reasonable
access as required by the proviso, was itself an unreasonable decision.
45. We have reached our conclusion for the reasons
set out above but there is an additional matter which has caused us some
concern. We have some difficulty in
accepting the validity of the objection of the Committee, on the advice of the
Public Services Department, to parallel parking in all circumstances. We make no concluded finding because we
did not hear oral evidence from the Public Service Department officials but Mr
Hawgood was unable to answer our queries to our satisfaction. The policy is stated in the New Guide. It states that even where there is no
room to turn, the Committee will still require perpendicular parking rather
than parallel parking so that the exit is at right angles to the road. We have some difficulty with this view
for two reasons. First, human
nature being what it is, any car with a perpendicular parking space will often
drive forward off the road into the parking space rather than stop on the road
and reverse into the parking space so that it may emerge in a forward
direction. Indeed, in the course of
our site visit, it was clear that this had occurred in a number of cases in
Green Road itself and in similar parking spaces off, for example, Route du
Fort. It seems to us that, in most
cases, reversing back on to the road at right angles is a much more hazardous
operation than emerging from parallel parking. The driver is likely to be further off
the road and will have more limited visibility than if he were parked parallel
to and next to the road.
Furthermore he has to look over his shoulder in both directions in order
to look along the road whereas, in the case of parallel parking, he is looking
forward in one direction albeit over his shoulder in the other direction. Secondly, it seems to us that, although
parallel parking off-road is not exactly the same as on-street parallel
parking, there is considerable similarity.
Almost all on-street parking is parallel parking and this involves the
driver looking forward in one direction and over his shoulder in the other
direction when seeking to leave the parking space. We accept that the best way of emerging
from any parking space is in a forward direction at right angles. However the policy in the New Guide is
to deal with situations where there is no room to turn. For the reasons which we have given we
remain very uncertain that it is right to insist, in circumstances where there
is no turning room, on the parking being perpendicular (so that the approach is
at right angles) rather than parallel because it seems to us that it is more
dangerous to reverse on to a road in such a situation than to emerge from a
parallel parking position. We
invite the Committee to revisit this whole subject and consider whether the
fourth bullet point on page 5 of the New Guide (which requires perpendicular
parking so as to allow access at right angles) is indeed the best course from a
road safety point of view where there is no room to turn.
46. Finally we would wish to say something about
visual amenity. In this case the
Committee accepted that the level of visual amenity meant that, if the road
safety reason were not upheld, there were no grounds for refusing access on the
grounds of visual amenity and that to do so would be a breach of the
proviso. However we would not wish to
be taken as accepting that this would be the case no matter what the level of
visual amenity. The proviso simply
refers to reasonable access. In our
judgment, if one had a street scene of a particularly high quality which
contributed very greatly to the visual amenity of the street, it might well be
the case that to allow the demolition of part of the scene to allow a car to be
parked would be so detrimental to the high quality of the street scene that
such access should be refused on the grounds that it would not be reasonable
access. In other words we do not
think that the Committee should shy away from such a finding in the right
case. However we emphasise that it
would require a high level of visual amenity and certainly the visual amenity
on Green Road
does not reach the necessary level.
47. It follows that we have concluded that the
decision of the Committee to refuse these applications was unreasonable. We therefore allow the appeals, quash
the refusals and direct that consent to the applications should be granted
subject to such conditions as the Committee may think fit in order to maximise
road safety and minimise any adverse effect on the visual amenity of the area. Thus, as we have indicated, the
Committee may well seek to impose conditions in order to ensure that the
maximum amount of space is available to both properties in order to gain access
to and egress from the site with the minimum distraction. Further we see no reason why the
Committee should not impose conditions in relation to the surface of the
parking space or other aspects in order to make the resulting work as
attractive as possible.
Authorities.
Island Planning (Jersey)
Law, 1964.
Public Services Department Technical
Guide: Roads serving small housing developments (16th July, 2003).
Caesar
Investments Limited –v- Planning and Environment Committee
(2003)JRC180.
Token Limited-v-Planning and Environment Committee
(2001) JLR 698.