Planning – Third Party appeal against decision of Minister dated
4th November, 2011.
[2012]JRC106B
Royal Court
(Samedi)
24 May 2012
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Before :
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W. J. Bailhache, Q.C., Deputy Bailiff, and
Jurats Fisher and Marett-Crosby.
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Between
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Elias Marius John Wakeham & Others
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Appellants
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And
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Minister for Planning and Environment
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Respondent
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And
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Style Group Limited
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Applicant
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Advocate JH. J. Heath for the Appellants.
Mr D Mills on behalf of the Minister.
Advocate M. L. Preston for the Applicant.
judgment
the deputy bailiff:
1.
This is an
appeal by thirteen appellants against a decision of the Minister for Planning
and Environment on 4th
November, 2011, to grant planning permission for the construction
of a new office building with associated landscaping and parking on land at La
Rue des Sapins, St Peter. The
application site forms part of the Landes du Marche site. It has been vacant for some time, with
the most recent user as that of a vehicle compound. Access to and from the site is from the
adjacent Landes du Marche site onto La Grande Route de St Pierre.
2.
The site
is located within the built up area.
Under the 2011 Island Plan
Proposals map, the site was zoned as a protected industrial site. There is no dispute that although the applicant
submitted its application prior to the adoption of the 2011 Island Plan,
it is that Plan which is relevant for the purposes of the Ministerial decision,
and therefore for the purposes of the present proceedings.
3.
The
application was to construct a two storey rectangular building with a footprint
of around 30m by 15m parallel to the site’s north-west boundary with
field 555. The building would be
about 14m from the public road, La Rue des Sapins, at its nearest point. The overall height would be 8m.
4.
The
grounds for appeal are annexed to this judgment. In essence, they are that the decision
of the Minister was unreasonable in that he failed to take into proper account
the policies defined in the 2011 Island Plan, past case histories and
the impact that the construction would have on neighbouring properties and on
protected species. Within those
general grounds, the appellants assert a lack of procedural fairness.
5.
On 2nd February, 2012,
the Master made an order that the appeal should be heard under the modified
procedure, but that there should be oral hearing of the appeal, as the appellants
requested.
The Planning Application
6.
The
application received by the Minister was to “construct new office
building and form a new vehicular entrance from La Rue des Sapins”. The application was submitted by the applicant
and refers to land to the rear of Marks and Spencer, La Rue des Sapins, St
Peter. The site included a hard
surfaced car park, a grass bank that abutted La Rue des Sapins and field 555,
with vehicle access via the Landes du Marche site. The building was owned by Century
Holdings Limited. To the east and
south-east are a number of dwellings, to the north agricultural land and a
dwelling, and to the south car parking for the commercial site and beyond that
more dwellings. The remainder of
the Landes du Marche commercial site lies to the south-west. The site abutted the countryside and a
church to the north-west.
Planning History
7.
The
application site was previously used as a gas bottle storage compound and a two
to three metre high sloping embankment along the eastern and north-western
boundaries was constructed as a preventative measure to channel any potential
explosive blasts over the top of the adjacent houses. The existing car parking is enclosed by
a two metre chain link fencing at the base of the sloping embankments and
positioned to the south-west of the site is a warehouse shed, which is
currently being occupied by a number of commercial outlets.
8.
The
application site is currently protected as an industrial site under the Island
Plan.
9.
The
application was proposed upon the basis that the main function of the new building
would be to accommodate the administration branch of the applicant, which has
an agreement to purchase the land, subject to planning approval, so that the
manufacturing operation of the company could be relocated within the existing
adjacent warehouse building if the new office building were constructed.
10. The Landes du Marche site has incrementally
changed over a number of decades from agricultural use to a mixture of light
industrial, commercial and retail uses.
The site was designated as industrial land in the Island
Plan 2002, reflecting the use of the land at that time. Retail uses have been permitted since in
parts of the site used for car showroom and sales.
The Procedure Adopted
11. The application was received on 8th December, 2010. It was advertised for the usual
consultation process, and comments were received from the Environment
Department, the Parish of St Peter, the Transport and Technical Services
Department, the Environmental Health Officer at Health and Social Services and
in addition twenty two letters of representation were received from thirteen
separate sources with two petitions from local residents. Representations were also made on behalf
of the site owner.
12. As a result, amended landscape proposals were
submitted by the applicant on 1st
February, 2011.
13. On 4th February, 2011, there was a departmental
design review group meeting, attended by both the case officer and the
department architect. A public
meeting was held on 16th
March, 2011, chaired by the Connétable of St Peter. Members of the public were able to
discuss the plans directly with the applicant and its agent. The planning case officer attended only
for the purposes of observing the proceedings.
14. On 19th April, 2011, the case officer visited the
site for the purposes of assessing the scaffold profile which had been
constructed, and the submitted drawings.
The intention was to assess the impact of the proposal on the
neighbouring properties, on the character of La Rue des Sapins and the wider
area. Following that site visit,
the case officer wrote up a departmental report dated 1st June which
was reviewed by senior staff in the department. The Minister is understood to have
undertaken an unaccompanied site visit to observe the scaffold profile as well.
15. On 10th June, 2011, the Minister considered the
application at a public meeting. He
heard from the department architect, the agent and the architect for the applicants,
who explained the basis of the design of the building, the percentage for art
contribution and the intended use of the vehicular access. The Minister heard the representations
of a Mr Platt, who objected to the application on the grounds that the
application was contrary to Island Plan policies, would cause noise
disturbance, be overlooking, overbearing and intrusive and would cause
shadowing of neighbouring land. In
the event, the respondent deferred the application pending receipt of further
information. In so doing, the
Minister stated that the proposed entrance onto La Rue des Sapins would not be
permitted and that alterations would be required to the percentage for art
contribution and to an element of the design of the building.
16. Amendments to the proposal were received. Amended plans were submitted by letter
dated 17th October.
There was a routine Ministerial meeting between the Minister and the
case officer on 21st October when this application was raised,
although the Court has not been given any details of what was discussed. There were further amendments to the
proposals subsequently tendered by the applicant on 24th
October. The case officer and the
Minister attended on site on 2nd November. Note was taken of the agreement of the applicant
to make a planning obligation agreement.
On 4th November, 2011, having considered the departmental
report and the proposed planning obligation agreement, the Minister approved
the application subject to conditions, including a requirement that the applicant
enter into a planning obligation agreement.
Reasons for the Decision
17. On 7th November, 2011, a planning department
official sent a letter to the applicant’s architects enclosing a note of
the Minister’s decision. What
was apparently attached was a planning permit which is in these terms:-
“The Minister for Planning
and Environment, having considered your application hereby GRANTS PERMISSION TO
DEVELOP LAND under Article 19 of
the Planning and Building (Jersey) Law
2002.
Construct new office building
and new vehicular access from La Rue des Sapins. Model available. AMENDED plans: omit proposed vehicular
access, additional landscaping. To
be carried out at:-
Land to the rear of Marks and
Spencer, La Rue des Sapins, St Peter.”
18. It is not entirely clear why the planning
permit should both approve new vehicular access from La Rue des Sapins and at
the same time note amended plans which omit the proposed vehicular access. However when one looks at the reasons
for approval, it is clear that the creation of a new vehicle entrance to the
site from La Rue des Sapins is not approved.
19. The reasons for approval are set out over the
following five pages of the permit.
This is a discursive, perhaps rather ambulatory, recital of what has
been received, what has been discussed, what has been objected to and what the
objectors’ concerns were but it is certainly a very full statement. In summary, it appears to us that the reasons
for the decision were:-
(i)
Although
the application was inconsistent with the policies contained within the Island
Plan, the Minister was satisfied that there was sufficient justification to
grant a permit for the development having regard to all the circumstances of
the case.
(ii) On the 2011 Island Plan Proposals map, the site
was zoned as a protected industrial site, but the broad thrust of the relevant
policies of the new plan, insofar as they related to this development, remained
largely unchanged. The application
therefore continued to represent an exception to policy but the Minister was
entitled to grant consent should he consider there were sufficient grounds to
do so.
(iii) The applicant has confirmed, since June 2011,
that it was prepared to enter into a binding legal agreement to occupy floor
space within the adjacent industrial shed in the event that permission was
granted for the new office development, thereby tying the new development to
the existing industrial shed. This
was considered sufficient justification to grant permission in this case.
(iv) Although objection had been taken by adjoining
residents that the building would be overly large, visually intrusive and
therefore inappropriate to the surrounding context, the Minister did not
believe that the impact would be unreasonable.
(v) To cope with the objections from neighbours as
to overlooking from the first floor, the approved plans would require that
windows facing neighbouring properties to the east were obscurely glazed.
(vi) The reduction in the height and width of the
existing roadside bank would not be a significant problem, notwithstanding the
objections of neighbours, because the new use of the site would be that of an
office building, which is not an inherently noisy use, and the lower bank would
be densely planted as part of the redevelopment of the site. Reducing the bank in its height and
width would increase the useful site area which the Minister accepted made good
sense from an operational perspective.
(vii) Overall there would be an attractive finish for
the project because there would be a significant amount of landscaping and
greenery reintroduced across the site as a whole.
(viii) A prominent percentage for art contribution was
integral to the design and the scheme, which achieved a building research
establishments environmental assessment method rating of “very
good”, meaning that it had been designed in such a way as to increase
sustainability and minimise environmental impact.
20. The planning permit then sets out eight
conditions which were applied, and the reasons for those conditions. Those reasons noted that the planning
obligation agreement was required to ensure that the new office building would
be related to the industrial operations within the wider industrial site, with
other reasons which go to particular conditions imposed.
Grounds of Appeal
21. In her submissions before us, Advocate Heath
really concentrated on the following points. She alleged that material policies were
not taken into account by the Minister, and in particular she pointed to the
fact that the planning official’s report made no reference to Policy NE1
in the 2011 plan. She noted that
the proposed development would infringe the Code of 1771, and she asserted that
the Minister ought to have taken that into account. As importantly, the Minister failed to
take into account Policies C10 (of the 2002 Island
Plan), NE2 and NE4. In relation
to Policy NE2, the Minister had not paid any or any adequate attention to the
impact, from the reduction in the height and width of the bank, on the common
toad. In relation to Policy NE4, it
was said that the banks were of biodiversity importance and there was a breach
of that policy in giving approval, which meant that a material consideration
had not been taken into account. It
was further asserted that there was no sufficient justification under any of
the Island Plan policies to depart from the terms of Article 19 of the
Law. She pointed out that
notwithstanding the comments of the Environmental Health Officer, mentioned
above, the matter was never remitted back to him.
22. As to the question as whether a planning gain
was in principle a legitimate planning factor to take into account, she agreed
that in principle it was but she asserted that it was unreasonable to have
regard to any planning gains in this case.
She pointed out that if the planning obligation agreement fell short in
any respect, her clients as third parties had no recourse, and she asserted
that there should as a result have been a tighter condition attached to the
terms of the consent. Finally, she
asserted that the model which was produced was an inaccurate model, and that
there was no proper consultation.
As a result, the process adopted by the Minister had not been
procedurally fair, and that the result was that the Minister’s decision was
unreasonable in all the circumstances of the case.
Discussion
23. Advocate Heath contended for the Aappellants
that a number of material policies in the Island
Plan 2011 were not taken into account.
The first policy to which she referred was Policy NE1 which is in these
terms:-
“Conservation and enhancement
of biological diversity.
There will be a presumption in
favour of the conservation and enhancement of biological diversity in
accordance with Policy SP4 “Protecting the natural and historic environment”.
Permission will not be granted for;
The total or partial loss of a
protected site;
Development which would seriously
adversely affect biological diversity.
In exceptional circumstances, where
the need for a proposed development clearly outweighs the biodiversity value of
the site and development which would have an adverse effect on biodiversity is
allowed, the Minister for Planning and Environment will use planning conditions
and planning obligations to provide appropriate mitigation and compensatory
measures to secure a demonstrable net gain in biodiversity.
The Minister for Planning and
Environment will encourage and promote opportunities to conserve wildlife and
to create and manage new natural or semi natural habitats in the context of
development schemes through appropriate building design and site layouts,
landscaping and choice of plant species.
Applications for proposals
affecting protected sites which do not provide sufficient information to enable
the likely impact of proposals to be considered understood and evaluated will
be refused.”
24. This is a new policy which does not appear in
the Island Plan 2002 in the same
terms. There is therefore no
legitimate criticism to be made of the planning officials who prepared the
report for the Minister in November 2010, which naturally was prepared on the
basis of the Island Plan 2002. Nonetheless, this policy was the
effective policy at the time the decision under appeal was made.
25. Clearly insofar as this policy is concerned, we
are not considering the total or partial loss of a protected site. However, there is a judgment call to be
made as to whether the proposed development would seriously adversely affect
biological diversity. We do not
consider that it would be unreasonable to conclude that the development would
not seriously adversely affect biological diversity, but we think that the
policy as a general statement of the need for conservation and enhancement of
biological diversity is one which needs to be borne in mind when we look at the
other policies which are to be considered.
26. It was submitted for the appellants that the
Minister had failed to take into account sufficiently the material policies set
out in Policies NE2 and NE4 of the Island
Plan 2011. Policy NE2 is in
these terms:-
“Species Protection.
Planning permission will only be
granted for development that would not cause significant harm to animal or
plant species protected by law, or their habitats. Where a proposal may have an adverse
effect on protected species or habitats, applicants will be expected to
undertake and appropriate assessment demonstrating proposed mitigation
measures.”
27. Policy NE4 is in these terms:-
“Trees, Woodland and Boundary Features.
Trees, woodlands and boundary
features – walls, fosses, banques and hedgerows - which are of landscape, townscape,
amenity, biodiversity or historical value, will be protected by:
1. Refusing development proposals
which will result in their loss or damage; and
2. Requiring trees or hedgerows
which are being retained on development sites to be adequately protected during
any site works; and
3. Adding individual trees and
groups of trees which make an important contribution to the landscape,
townscape or local amenity value of a site or area to the list of protected trees.
Development proposals which do not
adequately make provision for the appropriate landscaping site –
including the retention of existing trees and hedgerows, as appropriate, and
the provision of new planting with species which will be of benefit to the
Island’s biodiversity – will not be approved.
Where new landscaping is not or
cannot be provided as an integral element of a development scheme, or where
existing trees or hedgerows are to be lost as a result of development and not
adequately replaced, the Minister may require landscaping schemes to be carried
out in connection with unrelated land or will require financial contributions
to the ecology trust fund or countryside renewal scheme, through the use of
planning obligations.
Applications for proposals
affecting trees, hedgerows and woodlands which do not provide sufficient
information to enable the likely impact of proposals to be considered,
understood and evaluated will not be permitted.”
28. Policy NE4 expands what was Policy C10 of the Island Plan 2002. It is clear that significant importance
is attached to the protection of banks and hedgerows.
29. Advocate Heath made the point that the
consultation which was carried out by the Minister on the original application
occurred during the first six months of 2011, prior to the adoption of the new
Island Plan. Accordingly, there was
no consultation in terms on the effect of Policies NE1, NE2 and NE4 with the
relevant Highway Authority, the St Peter’s Roads Committee, with the
Environment Division and with the Environmental Health Officer. That was important for the following
reasons:-
(i)
Pursuant
to Article 2 and Schedule 1 Part 1 of the Conservation of Wildlife (Jersey) Law 2000, the common toad is a protected wild
animal.
(ii) There was evidence before the Planning and
Environment Department in the form of a letter from Mr Malcolm Macready who
lives nearby that any reduction in the bank or hedgerow along the north eastern
boundary bordering on La Rue des Sapins might have an effect upon the wildlife
which fed and lived on that bank, putting their habitat at risk. His letter of 4th January, 2011, makes that
point, and it is reaffirmed in his letter of 18th February where he
said that “the bank is not stark
and harsh; it supports a variety of flora and fauna”.
(iii) Reliance was also placed on an affidavit sworn
by Mr Macready, although not until March 2012, when he said that he had a
successful toad breeding pond in his garden, as another neighbour Mrs Scally
also had, and at least seven toads were killed crossing the road from the
bank. It was said that that shows
that the bank was of importance to the common toad as a protected species.
30. It seems to us to be clear from the evidence
put before us that the Minister did not consider Policy NE2. On behalf of the Minister, Mr Mills
merely submitted that it would be unreasonable to expect the Minister to make
further enquiries about the common toad, the first mention of this arising as
it did in the affidavit of Mr Macready, sworn after the decision now appealed was
taken. He submitted that the
Minister did not have to seek out all information in relation to the natural
environment, but only had to make reasonable enquiry. He relied on the decision of this Court
in Farina-v-Minister for Planning and Environment and Another [2010] JRC 103.
In that case, Commissioner Clyde-Smith said at paragraph 26:-
“We accept the proposition
following Taylor and as applied in Dunn and Others-v-Minister for Planning
and Dandara [2009] JRC 237
that when considering any application it is the duty of the Minister or those
acting on his behalf to make proper enquiry into all matters relating thereto
which are, or which may become relevant and of which he or they have knowledge,
whether those relevant matters are submitted on behalf of the applicant or a
third party, the purpose being to ensure that he or they have sufficient
information to make the decision.
His or their duty is not to make all possible enquiries into a relevant
matter but “proper” enquiries, i.e. enquiries that are appropriate
and proportionate to the circumstances…”
31. When considering an application for planning
permission, the Minister is charged under Article 19 of the Law to take into
account all material considerations.
In particular, he is charged to grant planning permission if the
proposed development is in accordance with the Island Plan. By paragraph (3) of the same Article, he
is entitled to grant a planning permission that is inconsistent with the Island
Plan but he shall not do so unless satisfied there is a sufficient
justification for doing so. It
follows from these provisions that the Minister is required to have regard to
the policies which are contained within the Island Plan.
32. Policy NE2 is worded in very specific
terms. Planning permission will
only be granted for development that would not cause significant harm to animal
species protected by law or their habitats. Where a proposal may have an adverse
effect on protected species or habitats, an applicant is expected to undertake
an appropriate assessment demonstrating proposed mitigation measures.
33. It appears on the evidence that the Court has
that there is a protected species living in the bank to the north-east of the
application site. It is clear that
the Minister did not consider Policy NE2 because he was not aware of the
protected species living there. It
does not appear as if he has made any enquiry as to whether there was a
protected species living there. Had
he made enquiry, then in accordance with the authorities mentioned, the Court
might have to consider whether the extent of the enquiries made was proper and
reasonable. The effect of Mr Mills’
submission is that Policy NE2 would not have to be considered by the Minister
unless someone told him that there is a protected species living in or about
the development site. If that were
right, there would be no obligation on the Minister to make any enquiry at all
and he could make his determination of a planning application without an
assessment of Policy NE2 even if perhaps he deliberately chooses not to make
enquiry as to whether there might be a protected species in the area. The Policy has presumably been inserted
into the Island Plan and approved by the States because it is intended, at
least as a starting point, that the Minister should make preliminary enquiry as
to whether there are protected species in the development site. In this case, no such enquiry appears to
have been made, and as it is a countryside site, that appears to us to be unreasonable. Furthermore, the Minister was put on
notice that there were fauna on the bank.
Given the terms of Policy NE2, that required the Minister to make some
enquiry as to what those fauna were.
We recognise that part of the problem in this case may have arisen
because the application was first submitted and consulted upon under the Island Plan 2002, whereas at the time the
decision was taken, the relevant Plan was the Island
Plan 2011. It may seem
cumbersome that a fresh set of consultations should have taken place, but the
Law does require the Minister to take his decision in accordance with the
Island Plan policies and if the material policies changed, as they did, then it
was necessary for the Minister to make enquiry in relation to the new policies.
34. We recognise that the Law cannot be construed
so as to impose on the Minister an unduly cumbersome and expensive
process. He does need to make only
reasonable enquiry of the material planning considerations when considering a
planning application. Nonetheless,
he is required to consider the Island Plan Policies and where there is a
policy, framed as Policy NE2 is framed, he is required to make sufficient
enquiry so as to satisfy himself that granting permission would not cause
significant harm to protected animal or plant species or their habitats. In practice no doubt the Environment
Department will give such advice when consulted on particular application.
35. Accordingly, we find that the Minister acted
unreasonably by failing to consider Policy NE2.
36. The next objection raised by the appellants was
that the Minister had not properly considered Policy NE4. It was said that the bank was of
biodiversity importance and the breach of Policy NE4 was a material
consideration not taken into account.
Reliance was placed in particular on the fact that the consultation
response from the Environment Department, dated 29th December, 2010, referred to the
St Ouen’s Bay planning framework and in particular to Policy SO5 dealing
with trees, hedgerows, earth banks and so on, and Policies SO6 to 9 dealing
with nature conservation. No
policies other than the St Ouen’s Bay planning framework policies were
referred to. In particular Policy
NE4 was not referred to. That is
unsurprising because the consultation took place at a time when the 2002 Island Plan was the operative Plan. To that, Advocate Heath submitted that
there should have been a fresh consultation when dealing with a new
Policy.
37. The Court has noted that the response of the
Environmental Health Officer was dated 7th June, 2011. The officer visited the site and
concluded as follows:-
“I do not envisage any
noise issues from the air handling plant as it will be housed in a plantary, is
a significant distance from the nearest house and there is a 4-5m bank in
between which should assist in reducing the noise.
The only recommendation is the
height of the bank remains to assist in reducing any general noise from the
development. I believe this will
happen, however I recommend it is conditioned to ensure that it actually does
occur.”
38. As we have indicated, revised plans were
submitted over the period between June 2011 and the time the decision was taken
in November 2011. The reduction in
the size of the bank does breach Island Plan Policy NE4, in our view, and there
is nothing that we have seen in the context of the planning permit or its conditions
which indicates that this was taken into consideration. Accordingly, in our view the Minister
acted unreasonably by failing to take into account a material planning
consideration. There is no
information before us as to how the Minister have might have balanced this
planning policy against other planning policies, because there is no indication
the policy was taken into account at all.
39. Insofar as the reduction of the bank is
concerned, and following the obligation which the Court has to form its own
view on the merits, the Court considers that any reduction in the height and
size of the bank would be unfortunate.
We cannot make an assessment as to whether it would be unreasonable to
approve a plan which included such a reduction, because we have not seen any
balancing of the different considerations which would give us the opportunity
of considering argument on that point.
40. The next point made by the appellants was that
there was no sufficient justification for the purposes of Article 19(3) of the
Law in departing from Plan Policies NE1, NE2 and NE4, or Polices EO1 and
EIW1.
41. The essence of the complaint in relation to
Policy EO1 was that it contains this paragraph:-
“Outside St Helier town
centre, the Waterfront and the defined St Helier regeneration zones, new office
developments will not be permitted except where they accord with Policy EO2
“conversion of upper floors of existing commercial buildings for office
accommodation” and Policy EO3 “other small scale office development”.
Policy EO2 is of no
application. Policy EO3 requires
that outside the town of St Helier
and the urban and key rural settlements, office use will normally only be
allowed where it would be a conversion of an existing non residential
building.
As far as Policy EIW1 is concerned,
the complaint was that this Policy protected existing industrial sites,
including this one, and there was no sufficient justification for departing
from it.
42. The Minister’s reasoning in relation to
this part of the decision was that although new large scale office development
would not normally be permitted outside the St Helier town centre, and this was
not a small scale office development (because it was around 703 square metres),
the intention of the applicants was that they should move from their present
out of town office to relocate from their existing base, thus releasing that
site for development. The
application site was being used as a vehicle compound, and therefore there
would not be any loss of existing industrial land in the sense that an existing
industrial use or user would be displaced by the proposed scheme. Given the proximity of neighbouring
residences, the Minister considered that the proposed office development was
potentially a far more benign and neighbourly use than would be the case for a
genuine industrial use.
43. Advocate Heath agreed that a planning gain was
in principle a legitimate and material consideration for the Minister to take
into account, although she submitted that it was unreasonable in this
case. In our view the Minister
acted entirely reasonably in considering that the planning gain from granting
this permission would outweigh the effect of Policies EIW1 and E01 and E03 and
we do not find the Minister acted unreasonably in that respect.
44. The final point raised by the appellants was
that there had been procedural unfairness.
This was based on the submission that the physical model which the
Minister took into account in considering his decision showed the neighbouring
property Le Petit Clos at road level, whereas in fact it is a metre above road
level, and therefore would be more affected by the visual intrusion of the
proposed new office. The second
procedural unfairness was suggested to be a failure to consult properly. The third objection was that there had
been pre-application discussions between the previous Minister, the case
officer and the department architect which made the applicant confident that
permission would be granted, and local residents were not invited to comment at
that stage. This submission was
made on the basis of the affidavit of Mr Gladwin, the senior planning officer
who said that:-
“The case officer and the
Department architect were aware of the site and the nature of the scheme having
been involved in pre-applications with the applicant and agent, and these
discussions had involved the Minister.”
45. The letter from the architects for the applicants,
sent on 6th
December, 2010, to the Planning and Building Services Department,
also said this:-
“The site is classified
as an industrial zone under the Island Plan
and we have therefore had numerous discussions with the Planning Minister,
Department architect and planning officers. Feedback received suggested that the
proposals were against the Island Plan Policy
however the project would be deemed acceptable if the building provided a good
quality of design rather than industrial appearance and achieved a
“good” BREEAM office rating.”
46. In fact, the application of the applicants was
deferred by the previous Minister when it came up for consideration by him in
June 2011. There is no suggestion
that the present Minister, who took the decision now appealed against, has had
any direct conversation with any of the objectors or with the applicants. There is, in our judgment, no procedural
unfairness in an applicant seeking a view from a planning official. The obligation for procedural fairness
in this respect is that where the Minister is taking the decision on an
application personally, he should not personally be involved in any
pre-application discussions, whether with the applicants or with the persons
who might object.
47. We have already indicated our views as to the
extent to which further consultation was necessary, having regard to the policy
changes between the 2002 and 2011 Island Plans, and we do not need to add to
those comments.
48. We do not consider the fact that the model was
slightly inaccurate to be conclusive, and in any event, if the bank is to
retain its present height and size, that would obviate any need for a further
model to be prepared. Although we
were not addressed on the matter in any great detail, we felt constrained to
look at the size and mass of the proposed development having regard to the
grounds of appeal, and we consider that the granting of permission to a
building of that size and mass would not of itself be classed as
unreasonable.
Decision
49. For all these reasons, the appeals succeed, but
on narrow grounds only. The grounds
on which the appeals succeed are these:-
(i)
The
Minister acted unreasonably in not taking into account the requirements of
Policy NE2 in relation to the common toad; and
(ii) The Minister acted unreasonably in not taking
into account the requirements of Policy NE4 in connection with the proposed
reduction of the bank.
50. In all other respects, the decision of the
Minister was reasonable.
51. We will invite submissions from the parties as
to the consequential orders that should flow from these conclusions.
Authorities
2011 Island
Plan.
Island Plan 2002.
Conservation of Wildlife (Jersey) Law 2000.
Farina-v-Minister
for Planning and Environment and Another [2010] JRC
103.