Planning – third party appeal against the decision of the Minister to grant planning permission.

[2013]JRC022

Royal Court

(Samedi)

28 January 2013

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Marett-Crosby and Crill.

 

The Appellant appeared in person.

Mr D. Mills for the Respondent.

Advocate M. T. Jowitt for the Applicant.

judgment

the commissioner:

1.        This is a third party appeal under the modified procedure brought by the appellant under Article 114 of the Planning and Building (Jersey) Law 2002 (“the Planning Law”) against the decision of the respondent (“the Minister”) to grant planning permission in respect of land at Zanzibar, Le Mont Sohier, in the parish of St Brelade (“the site”). 

2.        The site is located to the south of Mont Sohier in the parish St Brelade adjacent to St Brelade’s Bay.  The site is surrounded on three sides by residential properties with views to the south over to the beach and sea.  The existing building on the site is unoccupied and was previously used as a restaurant.  To the north of the site is a building fronting Mont Sohier known as Mimosa Cottage which is a Potential Listed Building.  The appellant’s property, known as Soleil D’Hiver is to the north-east of the site.  The site slopes from north to south and tapers in width from north to south measuring approximately 25 metres at its northern part and approximately 12 metres at its southern part.  The site area is approximately 0.48 acres. 

3.        This is, in effect, the third application submitted by the applicant for the development of the site.  The first application, submitted on 14^th September, 2010, was for the demolition of the existing restaurant building, the construction of a new dwelling and the refurbishment of Mimosa Cottage.  No issues arise over the refurbishment of Mimosa Cottage and we are therefore concerned in this judgment with the remainder of the site.  The proposed new building at 22,000 square feet occupied the majority of the site and was, in the words of the department’s architect, designed “as an uncompromising, iconic contemporary house” set over three floors with sequentially arranged internal spaces from the entrance to the north to the beach front to the south.  In the view of the Planning Department in its report of 12^th November, 2010, the size and siting of the proposed dwelling and restricted plot width gave the impression that the development was shoehorned into a site that is too small to comfortably accommodate it.  Whilst acknowledging that the architecture of the proposed dwelling was innovative and competent, maximising potential for views out to sea from almost every element of the new building, the report stated that:-

“The grain and general style of development along this part of St Brelade’s Bay is of a more intimate form, with relatively modest units set within reasonable curtilages with no single property standing out from its neighbours.”

4.        The report concluded that the proposed dwelling would present a strong dominant image, particularly when viewed from the seaward side and also in more distant views from the western and eastern arms of the Bay and the Planning Department did not consider the size and form of the development to be appropriate in this particular site within the sensitive St Brelade’s Bay area.  Furthermore, there were issues relating to the diminution of amenity and impact upon the character and setting of Mimosa Cottage. 

5.        On 26^th November, 2010, the application was refused for the following reasons:-

“1.       The proposal represents an over-development of the site with the size, bulk and layout within a restricted plot width being likely to unreasonably affect the character and amenity of the area contrary to the provisions of Policies G2, G3, G15 and H8 of the Jersey Island Plan, 2002. 

2.        The proposed development is likely to have an unreasonable impact on the amenities of nearby residents by virtue of overlooking and potential disturbance from the elevated roof terraces and by presenting an overbearing appearance.  The proposal is, therefore, considered to be contrary to the provisions of Policies G2 and H8 of the Jersey Island Plan, 2002. 

3.        The proposed development is likely to result in the consolidation of built development over natural vegetation and prevention of substantial planting within the site.  Accordingly, the proposal fails to comply with the provisions of Policy BE10 of the Jersey Island Plan, 2002. 

4.        The proposal does not contain sufficient information against which the impact on the fabric and appearance of the Registered structure, Mimosa, can be assessed and the proposal, therefore, fails to comply with the provisions of Policy G14 of the Jersey Island Plan, 2002.”

6.        The second application was submitted on 15th March, 2011, accompanied by a design statement and model.  The proposed new building was of similar modern design but had been scaled down by inter alia the omission of the third storey, the lowering of the site by some 3.2 metres, setting the building back from the promenade aligning it with the buildings on either side and the removal of the outside terraces that overlooked the neighbours.  It would now comprise approximately 18,500 square feet, just under 50% of which would be underground. 

7.        According to the Planning Department’s report of 24^th May, 2011, the Architecture Commission, sitting on 4^th April, 2011, considered this revised scheme a good response to the refusal of the earlier scheme.  The Commission commended the design and the Planning Department’s architect was satisfied that the design reached the high standard required by Policy G3 of the 2002 Island Plan.  The Planning Department recommended approval concluding as follows:-

“Summary/Conclusion

The architecture of the proposed dwelling is innovative and competent, maximising the potential for views out to sea while minimising the building’s impact when viewed from the road or promenade/beach.  The bespoke nature of the proposal pays due regard to the amenities of neighbouring residents and should not result in an unreasonable degree of overlooking or general loss of privacy.

Although the overall structure remains relatively large, the majority of the building’s bulk is along its side flanks and not on the more visible northern and southern elevations.

The series of bold, rectangular volumes, set in a staggered pattern along the site axis, presents a strong, dominant form which was commended by the Architecture Commission.”

8.        The processing of the second application is described in detail in Ruette Pinel Farm Limited-v-Minister for Planning and Environment [2012] JRC 008 which we will refer to as “the Ruette Judgment”.  In short, although the Minister (at the time) regarded the scheme as “a fabulous piece of architecture” for a site on which inevitably a significant house would ultimately be constructed, he refused the application at the public meeting because of what he described as the level of political opposition expressed by a number of politicians, although different reasons were given in the formal notice that was subsequently issued.  The Court found that there had been serious procedural irregularities such that the decision could not stand, which can be summarised as follows:-

(i)        It was wrong in principle for the Minister to have had private meetings with the developer, as occurred in this case, prior to the application being submitted and to give advice and having done so and by sitting at the public hearing there was a real risk that he had taken into account non-planning considerations.  

(ii)       It was not a material consideration for the purposes of Article 19 of the Planning Law that representations had been made by politicians as opposed to other members of the public. 

(iii)      The statement contained in the Planning Department’s report for the first application that “the grain and general style of development along this part of St Brelade’s Bay is of a more intimate form, with relatively modest units set within reasonable curtilages with no single property standing out from its neighbours.” – which appeared to the Court to be significant – had been omitted from the Planning Department’s report for the second application but included in the formal reasons given for the refusal.  Quoting from the judgment of Bailhache, Deputy Bailiff, at paragraph 39:-

“If it were the case here – and we make no finding because we have not heard all the evidence directly – that a planning recommendation to the Minister was tailored in advance to what the Minister wanted to decide or that reasons for the ministerial decision were dressed up after the event to give an appearance of legitimacy, that would be wholly unacceptable conduct by officials.”

9.        The formal notice dated 10^th June, 2011, is in the following terms:-

“1.       The proposal represents an unacceptable scale and mass of development within a restricted plot width being likely to unreasonably affect the character and amenity of the area.  The proposed dwelling would fill a significant proportion of the site, leaving very little space between the dwelling and the site boundaries, thereby substantially altering the form and urban grain of this part of St Brelade’s Bay which retains a loose and relatively intimate scale and grain of development.  The Department considers that the proposal is, therefore, contrary to the provisions of Policies G2, G3, G15 and H8 of the Jersey Island Plan, 2002. 

2.        The proposed development is likely to have an unreasonable impact on the amenities of nearby residents by virtue of overlooking and by presenting an overbearing appearance.  The proposal is, therefore, considered to be contrary to the provisions of policies G2 and H8 of the Jersey Island Plan, 2002. 

3.        On the Jersey Island Plan, 2002, the site lies within the Green Backdrop Zone and it is considered that the scale and mass of the proposed building development relative to open space and natural vegetation on this prominent site in the Bay would unreasonably harm the character and amenity of the area and would be contrary to the provisions of Policy BE10 of the Island Plan.”

10.      The Court went on to consider the merits of the application on the basis that the reasons were those set out in the formal notice.  This exercise by the Court is of importance to the decision we have to make because the views expressed by the Court have guided the process subsequently.  We therefore set out the relevant section of the judgment in full: -

“48.    If this particular refusal of permission had been firmly grounded in the reasons which are set out in the notice of refusal, we would not have allowed the appeal on the ground that the Minister’s decision was unreasonable.  In our judgment, a decision to refuse this particular application – and we emphasise we are not saying that the Minister ought to refuse it, because that is entirely a matter for him – can be justified by the reasons which are contained in the formal notice of refusal dated 10th June, 2011.  We have reached that conclusion because we have had regard to all the papers put before us including the artist’s impression of what the proposed building would look like, and the model which has been prepared.  In our view, a conclusion by the Minister – if he were to make it and that is entirely a matter for him – that the proposed development is of a size and mass which is out of proportion to the size of the site and the area, and in effect amounts to an over-development of the site, would fall within the parameters of reasonable decision taken by a Minister charged under the Law with a function of taking a decision.  We do not say that the proposed building is too big or that the mass is too great or that this is an over-development of the site but we do say that it is not unreasonable to reach that view, were the Minister to reach it.  

49.      We think it would be helpful also to put the matter the other way round.  If the Minister had granted the application and we were dealing with an appeal by third parties, the question would be whether the Minister’s decision to grant the application would be unreasonable in all the circumstances of the case having regard to the legal tests which we have mentioned.  In our judgment this is a closer call, and we prefer not to express any firm conclusion on it.  But there is no doubt that the proposed building is very dominating of the area.  There is in our view no doubt that the parking provision which has been made is surprisingly little, particularly if that is to be shared with Mimosa Cottage.  We note that an 18,000 square foot house taking up the entirety of this site, or very nearly, would make a huge impact on the area. 

50.      The vibrancy of the objections in this case which we are told included one or more of the neighbours taking advice as to whether or not to join in the appeal leads us to think that if we were to express no view on the merits, further costly and potentially wasteful appeals might be made.  Nonetheless, at the end of the day, it is for the applicant to determine whether the existing application is the application it wishes to have considered by the Minister or whether it wishes to make further revisions to accommodate any of the comments which are made in this judgment. 

51.      In the light of the fact that the Minister is a corporation sole and in the light of the former Senator Cohen’s approval of the modernity and style of the design, supported as it was by the Jersey Architecture Commission and the States architect, we would be surprised if design and modernity were to be a feature in any objections which are made in the future, and we think it might be difficult to justify as reasonable any refusal of permission based on these grounds particularly because we do not understand the notice of refusal of 10th June to set out these grounds as relevant to the refusal at that time. 

52.      Of course, any fresh consideration of an application is going to take place having regard to the Island Plan approved in 2011 rather than the Island Plan of 2002 and we cannot be sure what differences, if any, between the two plans might be significant as we have not been addressed on it, although we are told by the appellant that there are no changes of significance to this application.  However, we would be surprised if objections relevant to the policies underlining the Green Backdrop Zone in the 2002 Plan would lead to any refusal of permission, and it might well be that it would be unreasonable to view the application which was refused in June 2010 as being contrary to the provisions of policy BE10 of that plan.  It does not appear to us that the scale and mass of the proposed development really has an impact on the undeveloped part of the Bay which lies within the Green Backdrop Zone.  It is the scale and mass vis-à-vis the neighbours which appears to us to be more significant.”

11.      In summary, the Court was indicating that:-

(i)        It would have been a “close call” whether a decision by the Minister to grant the second application was unreasonable in all the circumstances.  The Court noted that it would make “a huge impact on the area” and although it preferred not to express a firm conclusion, it made it clear (as subsequently acknowledged in paragraph 73 of the judgment) that it would not itself have granted the application on grounds of size and mass; in doing so, it emphasised that the test on appeal is not to assess what the Court would have done had it been the Minister, but whether the Minister’s decision was unreasonable.  

(ii)       It would be surprising if modernity and style of design would be a feature in any objections in the future. 

(iii)      It would be surprising if objections in the future relevant to the Green Backdrop Zone in the 2002 Island Plan would lead to any refusal of permission. 

(iv)      It was the scale and mass vis-à-vis the neighbours which was the significant factor. 

12.      The Court, having quashed the refusal, referred the matter back to the former Minister.  Rather than take the existing application back to the former Minister, the applicant elected to modify the application to take into account the views of the Court.  A revised scheme, which is the subject of this appeal, was submitted on 26^th March, 2012, which the applicant believes incorporates those views.  We will refer to it for convenience as “the third application”.  Under this scheme, the proposed new building has been pulled back from the boundary and promenade and divided into three linked blocks with green roofs (referred to as “volumes”) with the links incorporating green walls.  The changes are summarised in the affidavit of Adrian Huckson, an Associate Director of the agent for the applicant, dated 7^th August, 2012, as follows:-

“(1)      The overall mass of the proposed new building has been divided into three discrete volumes which have been pulled back from the boundaries by an average of 1.5 metres. 

(2)       Vertical gardens have been incorporated as part of the links between the three volumes so that the volumes will be viewed as separate units.  The average set back of the linkage between the volumes is 7 metres from the site boundaries, creating significant further amenity space within the site. 

(3)       The northern volume (the part of the proposed building which is closest to the appellant’s property) has been rotated so that it is aligned away from the appellant’s property in order to avoid any direct overlooking between the two properties. 

(4)       The south east corner of the proposed building has been set back a further 4.3 metres from the southern boundary which serves to preserve and indeed enhance the views enjoyed by Guyscliffe, the property to the south east of the site. 

(5)       The southern volume of the proposed building has also been rotated away from Guyscliffe which serves to provide up to an additional 2 metre distance between the properties allowing greater privacy for both properties.

(5)       The maximum roof height of the proposed building has been lowered to 20.75 metres above datum so that the proposed new building is actually lower than the single storey Villa Mimosa which fronts on to Mont Sohier at the northern end of the site. 

(6)       The existing Zanzibar structure sits only 3.5 metres back from the promenade wall at the southern end of the site.  The ground level of the proposed new building has, however, been pulled back so that it sits 17.7 metres from the promenade wall and the first floor level has been pulled back a total of 20.4 metres from the promenade wall.  The effect of this is to bring the building fully into line with the building line of adjacent properties on the seafront.  It also improves significantly the views of the adjacent properties by removing the existing Zanzibar structure which breaches that notional building line. 

(7)       The overall size of the building has been considerably reduced.  The total area of the building, including basement areas, is now 14,014 square foot.  This is a reduction of some 33% from the scheme proposed in the second application which was considered by the Royal Court.  The design of the property sinks a considerable amount of the floor area below grade.  The effect of the modifications to the scheme is to reduce the above grade floor area of the property by over 1,000 square foot to a total of 7,588 square feet. 

(8)       The effect of the reductions in size is that the footprint of the proposed building is now some 5,037 square feet on a site area (excluding the Mimosa Cottage site) of some 17,423 square feet.  This means that the house footprint equates to only 28% of the site area, with the remaining 72% consisting of external amenity space and parking.  As I explain in more detail below, this is a significantly better ratio than that of the appellant’s own property and of the adjoining properties. 

(9)       The reduction in the floor area of the proposed building allows for a significant increase in the permeable and landscape areas of the site to cover 83% of the site.  [This includes the green roofs to the proposed building].  The site currently consists of 80% impermeable surfaces which includes a large area of tarmac for parking with no landscaped areas.  The proposed changes substantially increase the amount of greenery within and around the site as well as increasing the opportunity for rainwater harvesting. 

(10)     The reduction in the size of the building has been matched by a reduction in the number of bedrooms within the proposed building from 7 to 6.  Parking provision has also been increased to provide for a total of 8 parking spaces for the site (4 of which are garaged) with the potential for 3 more spaces should this be necessary.”

13.      Mr Huckson goes on in his affidavit to state that the footprint of the proposed new building as a percentage of the total site (excluding Villa Mimosa) is significantly less than that of a number of neighbouring properties which he specifies.  He appended a plan showing that the proposed new building is some 22.5 metres away from the appellant’s nearest window and because it had been aligned to face away from the appellant’s property so that it faces on to the existing cottage on the site, there was, he said, no direct overlooking whatsoever. 

14.      The application was advertised in the usual way and seven objections were received, similar to the objections received for the first and second applications, the common theme remaining the scale and mass of the development, what was alleged to be an over-development of the site and a design that was too modern for the context in which it would be sited.  The appellant requested a scaffolding profile in order to assess the effect on her property.  

15.      The Planning Department’s report noted that the application in its original form had been refused by the former Minister in June 2011 against the Planning Department’s advice.  Noting that the Royal Court had not remitted the matter back to the Planning Department for a reassessment of the merits of the originally refused scheme or any amendment thereto, the remittal was for the Minister’s attention.  Accordingly, the report was limited to the changes to the scheme following the Royal Court’s decision to quash the refusal which were recited in detail and which addressed the significant issue identified by the Court namely the scale and mass of the proposed new building.  The report recommended approval and concluded as follows:-

“However, given the reductions in scale and mass of the proposed dwelling and the additional area now available for planting, the Department’s view is that the applicant has gone some way in addressing the Reasons for Refusal on the original decision notice, dated June 2011.  Moreover the dwelling as now proposed would not fill the site envelope as it was originally intended to do and the urban grain of this part of St Brelade’s Bay would not be subjected to such compromise as before.”

16.      A ministerial meeting was held on 18^th May, 2012.  At this stage, the application fell to be considered in the context of the 2011 Island Plan.  The Minister heard representations from the architects, from the appellant representing herself as a neighbouring owner but also representing a number of constituents and Deputy John Young, the Deputy for the district, on his own behalf and also representing constituents.  Deputy Young tabled a letter from the Connétable of St Brelade in which amongst other things he requested consideration of the application be deferred pending the publication of a development plan for St Brelade’s Bay.  

17.      It transpired that the Planning Department’s report had not addressed two new policies contained in the 2011 Island Plan, namely Policy E1 (Protection of Employment Land) and Policy GD2 (Demolition and Replacement of Buildings).  The Minister therefore deferred consideration of the application pending the receipt of a further report by the Planning Department on these two policies.  The minutes record the Minister’s also acceding to a request from Mr P Edwards, a neighbour, for the erection of a scaffold profile, although the appellant appears from paragraph 23 of her affidavit to have been unaware of this. 

18.      In the event, a scaffold profile was erected for the Minister alone to view on 23^rd May, 2012; it would appear that no facility was granted to the appellant or the other neighbours who had attended the ministerial hearing to view the same.  The explanation given for this by Alastair Coates, senior planner at the Planning Department, was that the scaffold profile had been erected to show the Minister key points and heights of the proposed new dwelling as part of his decision making process and not to court further representations from neighbours or the wider public.  

19.      A supplementary report on policies E1 and GD2 dated 30^th May, 2012, was prepared by the Planning Department for the Minister, but it would appear it was not made available to the appellant or to the other neighbours who had attended the ministerial meeting. 

20.      The Minister granted the planning application on conditions on 13^th June, 2012.  The reasons given were as follows:-

“The Minister considered that the proposal complied with the Policies of the 2002 Island Plan, under which the planning application was originally submitted.  During the course of the appeal to the Royal Court, the 2002 Island Plan was superseded in whole by the 2011 Island Plan.  The principal difference in the terms of relevance to this planning application was the introduction of Policies E1 (Protection of Employment Land) and GD2 (Demolition and replacement of buildings). 

In respect of Policy E1, the Minister accepts that the site is not currently operating as an employment generator and is not likely to do so without a substantial re-development of the site, given the evident poor state of the existing Zanzibar buildings. 

The loss of the site for employment use is not considered to be of significant concern as the relatively small scale restaurant facility would not have been a major employer of local staff.  Moreover, a viable restaurant concern is likely to result in increased disturbance to nearby residents by virtue of noise and general disturbance, often at unsocial hours, and the Minister considers that the replacement of the Zanzibar with a residential use is likely to have far less impact on residential amenity.  Moreover, the Minister is cognisant of the fact that St Brelade’s Bay is amply catered for in respect of restaurants, cafés, hotels and leisure facilities and that the loss of the Zanzibar site as a facility for visitors and residents will not have a significant impact on the amenities of the area.  

The loss of employment land is, therefore, not considered to be the determinative factor in this case. 

In respect of Policy GD2, the policy requires that the proposed new buildings serve to enhance the appearance of the site and surroundings and should be seen to replace a building that is not appropriate to repair or refurbish.  The existing Zanzibar structures on site are of a relatively poor quality construction with little or no intrinsic merit and the Minister considers that the proposed replacement is of a higher quality, in terms of design, sustainability and method of construction. 

The proposal is not considered to be in unreasonable conflict with Policy GD2.  

It is also of relevance that the site is within the Built-up Area wherein there is a presumption in favour of allowing new dwellings, subject to compliance with other Plan policies.  Policy H6 applies in this instance.”

21.      Thus having stated that the proposal complied with the 2002 Island Plan, the Minister addressed himself to what he regarded as the principal differences between the 2002 and 2011 Plans namely Policies E1 and GD2. 

Legal test on planning appeals

22.      The legal test on planning appeals can be found in Token Limited-v-Planning and Environment Committee [2001] JLR 698 at paragraph 9:-

“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.”

Limitation on appellant’s right of appeal

23.      In a late written submission, Mr Mills argued that the appellant’s rights under Article 114 of the Planning Law were limited to the effect of the proposed development on the amenity of her property Soleil D’Hiver and that she had no right to address the Court on matters concerning the public interest.  Quoting from his skeleton argument:-

“It is the function of the respondent to balance the different elements of the planning equation and to reach a decision that is correct and just and one of the elements of that equation is the interests, in planning terms, of neighbours.  It is for the respondent as to whether planning permission should be granted who has got to look at the public interest.  It would therefore be wrong to rely upon the private landowner, whose personal interests may be affected, to advance views about the public interest.”

24.      He went on to submit that the rationale for the “50 metre rule” is based on the impact of a development on a near neighbour thereby ensuring that only those who are likely to be directly affected by development were to benefit from a statutory right of appeal.  In support of this, he cited the amendment to proposition P.47/2005 brought by Deputy Scott Warren. 

25.      There was no time at the hearing to hear oral argument on this submission but on the basis of the written submissions we do not accept it.  The report to the amendment brought by Deputy Scott Warren makes it clear that the concern was that third party appeals might increase to an unacceptable level the cost to the Environment and Public Services Committee of implementing the Planning Law.  Limiting the right of appeal to those living within 50 metres was aimed at reducing the number of appeals, not the grounds on which those appeals might be brought. 

26.      In any event Article 109 of the Planning Law provides that an appeal to which Article 114 applies may only be made “on the ground that the action taken by or on behalf of the Minister was unreasonable having regard to all the circumstances of the case.”  The appellant is therefore entitled to have regard in her appeal to all the circumstances of the case, not just those which relate to her property. 

Appellant’s submissions

27.      The appellant’s very detailed submissions can be summarised as follows:-

(i)        The application stood to be considered in the light of the 2011 Island Plan, not the 2002 Island Plan, although she accepted that apart from Policies E1 and GD2, the relevant policies were broadly similar. 

(ii)       The statement of the appellant summarised in the Planning Department’s report that the southern end of the new building would be no higher than the existing Zanzibar restaurant in order to maintain the existing relationship with the adjoining properties was incorrect.  The existing Zanzibar restaurant is the same height as the property to the west (Longbeach House) and considerably lower than the property to the east (Guyscliffe). 

(iii)      The minutes of the meeting of the Jersey Architecture Commission on 4^th April, 2011, at which the second application was considered were in her view perfunctory in the extreme, referring only to the design and making no reference to the effect on the neighbourhood.  Additionally there is no mention of the manner in which the building fits in to the context of the neighbourhood.  

(iv)      Although the northern volume had been rotated, the wide expanse of windows would still look down on her property. 

(v)       Whilst the southern elevation is equal in height to the property to the east (Guyscliffe) it is significantly higher than the properties to the west (Longbeach House).  No account had been taken of the view of the flanks of the proposed building from the west and the east.  She referred to paragraph 86 of Mr Webster’s affidavit sworn in connection with the second application where he said this:-

“86.     This scale and mass of development also needs to be seen in the context of the site’s prominent location in the Bay.  The most visible elevation when viewed from the entire length of promenade and beach to the west of the site would be the large western flank elevation which, because of its height, length and unrelieved flat roof will, from the medium and distant views, provide a large building mass and slab-like appearance which would be incongruous in its surrounding context.”

(vi)      With reference to Policy SP7 “Better by design” which provides that all development must be of a very high design quality that maintains and enhances the character and appearance of the area of Jersey in which it is located, the appellant referred the Court to the original assessment of the area surrounding the site in the first application and omitted in the second application, namely “the grain and general style of development along this part of St Brelade’s Bay is of a more intimate form, with relatively modest units within reasonable curtilages with no single property standing out from its neighbours”. This she said remains apposite and, as appeared to the Court (paragraph 39 of the Ruette Judgment), is significant.  This design in combination with its scale is not appropriate to the grain and character of the area, but in her view is grossly obtrusive in the area.  The majority of the building’s bulk is along is side flanks, which is where the neighbours are located.  It is close to the boundaries along the east and west, in particular next to Guyscliffe and Longbeach House.  No photomontages were supplied by the applicant showing the effect of the building on the western and eastern sides.  The appellant had herself taken photographs on the western and eastern sides attempting to show the effect of the building.  The scale and mass being imposed is so far removed from the scale and mass of the neighbourhood that any further “divorce” from the existing scale and feel to St Brelade’s Bay built environment can only be detrimental. 

(vii)     The proposals seek to instate a very radical and iconic style of architecture more akin to an urban site and certainly not the quality of this coastal location with its generally traditional style of architecture.  It is entirely out of context with its surrounds to the serious detriment of the character and appearance of St Brelade’s Bay and to the amenities of the neighbours.  It is inappropriate to insert a large (14,014 square feet) building in the middle of an area of modest existing properties of floor spaces in the region of 2,500 square feet.  Whilst the difference seems relatively minor in terms of footprint, it becomes significant when considered in terms of volume and mass.  

(viii)    Policy GD1 provides inter alia that proposals will not be permitted which seriously harm the amenities of neighbouring uses and should, in particular:-

“(a)     Not unreasonably affect the level of privacy to buildings and land that owners and occupiers might expect to enjoy;

(b)       Not unreasonably affect the level of light to buildings and land that owners and occupiers might expect to enjoy.”

(ix)      It was highly questionable as to whether the development has any genuine value to the area since it will immediately be used as a precedent for other buildings along the seafront and will have an unreasonable impact on the character of the seafront.  The radical and divorced nature of this size and design from its surroundings confirms that it is essential to carry out an Environmental Impact Assessment which should also take into account the light pollution levels expected from the extent of planar glass to the beach side elevation.  Despite the fact that the northerly volume had been rotated to the east, the location, size and angle of the planned large bedroom windows are such that there will be an unreasonable effect on the privacy of the appellant’s garden and to her windows to the south and the west.  The proposed building will be severely prejudicial to her property and insufficient account has been taken of this. 

(x)       Furthermore there has been no sunlight study undertaken to assess the effect on both the appellant’s property and neighbouring properties.  The appellant had commissioned her own report dated September 2012 from Jane Faulkner, Architect purporting to show the effect of sunlight on neighbouring properties. 

(xi)      The appellant questioned whether there was sufficient constructional depth for a green roof for the proposed building which would in any event be too high for her to see from her property and she was concerned that the proposals for solar heating tubes and photo-voltaic cells which would need to be angled in order to gain the most benefit from the sun would further increase the height of the building. 

(xii)     The proposed building will be intrusive in the view from the sea and beach and Policy GD5 seeks to protect or enhance the skyline, strategic views, important vistas and the setting of landmark and listed buildings and places. 

(xiii)    Policy GD7 “Design Quality” provides that development will not be permitted which does not adequately address and appropriately respond to inter alia-

“(i)      The scale, form, massing, orientation, siting and density of the development and inward and outward views;

(ii)       the relationship to existing buildings, settlement form and character, topography, landscape features and the wider landscape setting.”

(xiv)    The proposed development pays no respect whatsoever to its setting.  Good planning requires that a building is designed to fit the site, not the site engineered to fit the building and in this case a site, with proposed substantial amount of excavation, is being engineered to fit the building.  Whilst the second proposal may have been reduced by some 30% this does not significantly reduce the impact on the neighbourhood of modest dwellings.  The scale and mass of the previous rejected application proposals given the site location and context can best be described as preposterous.  This latest proposal, despite further floor reduction, is still for a huge house which is inappropriate and unacceptable in the context of this site and its surrounds. 

(xv)     The site was within the Green Backdrop Zone and had been since 1987.  Policy BE3 provides that development will only be permitted where:-

“(i)      The landscape remains the dominant element in the scene and where the proposed development is not visually prominent or obtrusive in the landscape setting;

(ii)       It retains existing trees and landscape features;

(iii)      It presents satisfactory proposals for new planting which serve to maintain and strengthen the landscape setting and character of the area.”

(xvi)    The appellant drew our attention to paragraph 4.95 of the Island Plan which provides:-

“4.95   The Green Backdrop Zone policy is still considered to be a useful and legitimate tool in achieving an appropriate lower intensity of building and a higher degree of open space and planting.  It is, however, acknowledged that greater resolve on its application is needed than has been applied in the past and that greater attention to the requirements for new and enhanced landscaping in this zone, as an integral element of new development proposals, in accord with Policy NE 4 ‘Trees, woodland and boundary features’, is required.  New development in the Green Backdrop Zone will also likely need to be considered within the context of its potential impact upon views, in accord with Policy GD 5 ‘Skyline, views and vistas.’”

(xvii)   By recommending approval, the Minister was imposing an unnecessary compromise on the neighbourhood and was certainly not applying greater resolve in the application of the policy.  Whilst the design statement describes the site coverage as being 83% landscaped, it should be noted that 23% of the site is actually the green roof of the proposed building and 23% permeable paving.  It was not clear to the appellant what the Court meant in paragraph 52 of the Ruette Judgment where it said that “It does not appear to us that the scale and mass of the proposed development really had an impact on the undeveloped part of the Bay which lies within the Green Backdrop Zone”.

(xviii)  Proposal 14 in the chapter headed “Built Environment” in the 2011 Plan states that the Minister will develop a planning framework for inter alia “St Brelade’s Bay, to ensure that development is sympathetic to its context and does not detract from the visual amenity of the Bay and the public enjoyment of it.”  That is yet to be developed but the appellant submitted that Proposal 14 incorporates the proposition adopted by the States in 1968 (P15/1968) which provided that apart from eight sites where quality buildings could be built, no other residential development would be permitted in the area of the Bay except for limited extensions.  P15/1968 should therefore have been considered by the Minister.  Alternatively, the Minister should have delayed consideration of the application pending development of the planning framework for St Brelade’s Bay. 

(xix)   Both the Planning Department and the Minister had failed satisfactorily to address Policy E1 and GD2.  Policy E1 provides that there will be a presumption against development which results in the loss of land for employment use unless:-

“1.      it is demonstrated that the site is inappropriate for any employment use to continue, having regard to market demand.  Applications will need to be accompanied by documentary evidence that the size, configuration, access arrangements or other characteristics of the site make it unsuitable and financially unviable for any employment use and confirmation by full and proper marketing of the site on terms that reflect the lawful use and conditions of the premises, or;

2…….

3.        the overall benefit to the community of the proposal outweighs any adverse effect on employment opportunities and the range of available employment land and premises;”

(xx)    The Minister was dismissive, she said, of the concept of the property continuing to be a restaurant (which it had been since the 1930s with no problems for the neighbours) and considered that St Brelade’s Bay was amply catered for in terms of restaurants.  He provided no evidence justifying the demolition of the existing buildings.  It was quite feasible, the appellant said, for it to re-open and equally feasible for it to operate as a neighbourhood bistro without disturbing the surrounding houses.  The report on the viability of the restaurant was prepared by a senior planner and was extremely superficial with no numerical analysis of the claims in respect of the employment of construction staff for maintenance, gardening and household.  

(xxi)   Policy GD2 provides inter alia that demolition of an existing building will not be permitted unless the proposed development involves the demolition of a building that is not appropriate “in sustainability terms to repair or refurbish”.  The Minister had provided no evidence to support his contention that it is not appropriate to repair or refurbish the existing building.  There is no condition survey and no viability statement.  The core of the building has been standing since the 1950’s and probably the 1930’s.  As it is still standing it raises doubts, she said, about whether the building is impossible to renovate. 

Respondent’s submissions

28.      Mr Mills pointed out that this site lies within the Built up Area where pursuant to Policy H6 proposals for new dwellings will be permitted.  Such proposals had to be considered in the context of general development indicators and other relevant policies but this is not a development which in policy terms starts with a presumption against development. 

29.      The third application had seen the bulk and mass of the building reduced considerably from the previous schemes with the building being broken down into three volumes with linked corridors.  It did not now form one continuous mass and was therefore less overbearing to neighbouring properties as previously proposed.  All the measures summarised at paragraph 12 above and the proposed landscaping would limit any adverse impact on neighbouring properties to an acceptable degree.  The impact on the character of the area had been addressed.  Principal views of the site from the widest surrounding area would be from the bay to the south from which the proposed building would be no higher than the neighbouring properties and would now be set back some 17.7 metres from the promenade at ground level and 20.4 metres back at upper floor level.  The Minister considered that the impact of the proposed development on the character of the area was acceptable. 

30.      In relation to the Green Backdrop Zone Mr Mills referred to the view of the Court in the Ruette Judgement that the development would not have an unacceptable impact on this Zone.  The application had in any event been further amended to improve the landscaping. 

31.      He reminded the Court that the reasonableness of the decision to grant planning permission should be judged according to the material that was before the Minister at the time the decision was made (13^th June, 2012,) as made clear by the Court of Appeal in Trump Holdings Limited-v-Planning and Environment Committee [2004] JLR 232 at paragraph 20.  The appellant’s report from Jane Faulkner, Architect, commissioned after the decision, had not been before the Minister.  We would interpose to say that whilst we accept that is the case, it leaves open the issue of whether the Minister should himself have commissioned such a report. 

32.      It was clear from the Ruette Judgment and indeed from Article 19(2) of the Planning Law that the application fell to be determined under the 2011 Island Plan.  The terminology used in the Minister’s decision is a matter of form, not substance and the language is reflective of how the application came before him.  There is no doubt said Mr Mills that the decision was made with respect to the 2011 Island Plan.  The decision conveys firstly that all other things being equal in the Minister’s opinion the application was consistent with the thrust of the policies that were broadly the same as between the 2002 and 2011 Plans and secondly that there were two policies in the 2011 Plan, namely Policies E1 and GD2 which were new.  These two policies had been addressed by the Minister and specifically dealt with in the reasons given for the approval.  The Minister acted in a reasonable and proportionate manner in addressing these two policies to the extent that they presented hurdles which did not exist under the 2002 Island Plan, bearing in mind that the delay in dealing with the application and for the application now having to be considered under the 2011 Island Plan was attributable to serious procedural irregularities on the part of the former Minister.  

33.      In terms of Policy GD2, the test Mr Mills submitted was not whether it is economically viable to repair or refurbish a building but whether it is appropriate in sustainability terms to repair or refurbish it.  In this regard there was plenty of evidence for the Minister to rely on, for example his own observations on the site visit, the advice of his case officer, the submissions made to him at the ministerial meeting and indeed from an analysis of some of the objection letters which acknowledged the development of the site would be appropriate. 

34.      Policies, Mr Mills said, often pull in different directions and their application will require an exercise of judgment.  Where policies pull in different directions, it may be necessary to decide which the dominant policy is: where the one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given.  The main policy in respect of this application was, in his view, without doubt Policy H6 of the Island Plan. 

35.      The scale and mass of the proposed development was the real issue in this case, as identified by the Ruette appeal judgment and as was clear from the appellant’s submissions.  Very careful thought and consideration had been given to the massing of the proposed building.  The easternmost faces are primarily solid which assists in enabling privacy.  However, the linear massing is broken up by the use of vertical gardens so that when viewed in context the proposed buildings convey the impression of an apparent mass of three separate buildings, instead of one.  The effect in visual terms is three buildings with a lesser footprint than its neighbours.  The apparent scale and mass is therefore consistent with the surrounding area. 

36.      The style of the design has not changed since the Ruette appeal and in this respect it was worth repeating what the Court in the Ruette judgment said at paragraph 51:-

“In the light of the fact that the Minister is a corporation sole and in the light of the former Senator Cohen’s approval of the modernity and style of the design, supported as it was by the Jersey Architecture Commission and the States architect, we would be surprised if design and modernity were to be a feature in any objections which are made in the future, and we think it might be difficult to justify as reasonable any refusal of permission based on these grounds particularly because we do not understand the notice of refusal of 10th June to set out these grounds as relevant to the refusal at that time.”

37.      The proposal does not affect or obscure any skyline or any strategic view or important vista and Policy GD5 – “Skyline – Views and Vistas” – did not therefore apply.  It was of note that the site is not part of the Shoreline Zone as applied by Policy BE4.  That policy deals specifically with the protection, enhancement and creation of “visual access” to the shoreline involving views to the foreshore and sea, often through the maintenance of open space and gaps between buildings along the coastline of the Built up Area. 

38.      In terms of the design quality and Policy GD7 the modernity and style of the design was supported by the Jersey Architecture Commission and by the States architect.  The surrounding area has an eclectic character with a variety of uses, building masses and architectural styles.  The area has an array of building types: bungalows, large villas, houses, apartments and hotels, each of which have their own architectural styles. 

39.      In terms of footprint, the proposed building is bigger than its immediate neighbours but the site itself is capable of bearing a footprint of 5,037 square feet, which will be about 28% of the site. 

40.      Policy GD1 refers to “seriously” harming the amenities of neighbours, which is a tacit recognition that even where there may be harm, development may nevertheless be acceptable because the harm is not serious.  Loss of a view may be an element of the loss of amenity to be taken into account but is not per se a material planning factor (see Dunn-v-Minister for Planning and Environment [2009] JRC 237 at paragraph 10).  Due to the fact that the site is within the Built up Area any harm to the amenities of neighbours could not be described as serious. 

41.      Proposal 14 is precisely that – a proposal amongst a number of proposals put forward in the 2011 Island Plan which has yet to be put into effect.  It is difficult to see, said Mr Mills, how the Minister could be in breach of something that does not yet exist.   When a local development plan for St Brelade’s Bay is formulated it will be adopted as supplementary planning guidance to be approved by the Minister.  Until then it is manifestly unfair to expect any applicant to deal with something that is very much in the abstract.  In any event the position of the Minister is that the development is consistent with the Island Plan policies that deal with or touch upon visual amenity, scale and massing (for example GD1, GD2, GD5 and GD7).  

42.      Finally, Mr Mills submitted that the public nature and requirement for consultation of the planning applications process will undoubtedly mean that the Minister will be confronted by different views and opinions when it comes to making a decision.  That a decision is made with which a person disagrees does not mean that the decision is an unreasonable one, nor does it mean that a person’s views and observations have not been taken into account. 

Applicant’s submissions

43.      Mr Jowitt, for the applicant, aligned the applicant with the submissions of the Minister, referring in particular to what he described as the very considerable changes to the plans made in order to address the concerns of both the Minister and the Court. 

44.      In addition, Mr Jowitt pointed to planning gains for the neighbours as a consequence of the southern end of the proposed building being pulled back, enhancing the views from Guyscliffe to the south west and Longbeach House to the south east (neither of which they currently enjoy) – the current Zanzibar building being some 3 metres from the promenade. 

45.      No guidance notes existed to inform the process by which the Minister ought to consider applications under Policies E1 and GD2.  Guidance note entitled “Protection of Employment Land” were adopted on 23^rd June, 2012, ten days after the Minister’s decision and 36 days after the ministerial meeting, and they do not therefore apply to the decision which is being appealed against.  

46.      The only question is whether the conclusion reached by the Minister in respect of these two policies was one which he was entitled to reach and it was reasonable.  In Mr Jowitt’s submission the decisions reached in respect of both policies were manifestly reasonable.  Furthermore, he went on to reiterate the point in relation to procedural fairness should it be considered that there had been a departure from these two policies.  The matter fell to be considered afresh under the 2011 Island Plan because of the procedural irregularities on the part of the Minister and even if it could be said that consideration of these policies did require the professional reports contended for by the appellant, it would be procedurally unfair to require the applicant to surmount such hurdles now when they did not exist under the 2002 Island Plan. 

47.      Additionally, Mr Jowitt submitted that the Minister’s public position throughout the history of this application communicated unequivocally to the applicant was that residential development of the land was inevitable.  On that basis too it would be procedurally unfair now to require the applicant to overcome new hurdles created by the 2011 Island Plan or by guidance notes adopted pursuant to it. 

48.      In relation to Proposal 15 the 2011 Island Plan says this at paragraph 4.86:-

“4.86   St Brelade’s Bay is generally regarded as one of the most beautiful natural bays in the Island.  Successive development plans have sought to retain and protect its natural beauty and character whilst recognising its role as an attractive place for tourists and islanders to visit and as a place to stay and live.  However, it is important that the spirit of the 1968 proposition ‘Development in St Brelade’s Bay area (P.15/1968’ and the 1989 St Brelade’s Bay Environmental Improvement Plan, continue to be addressed in this and subsequent Island Plans where they remain relevant today.”

49.      In so far as the spirit of the 1968 proposition might be described as fiercely restrictive it is difficult, Mr Jowitt said, to see its relevance today.  In so far as it might be described as concerned to ensure appropriate development within the Bay, it complements, he said, the existing policies of the 2011 Island Plan which were relevant to this application, and which the Minister considered carefully.  

50.      The 1989 Environmental Improvement Plan was, he submitted, primarily a response to problems caused by tourism in the St Brelade’s Bay.  It offers no additional planning insight which is not already covered by the substantive policies of the 2011 Island Plan.  It does, however, he observed in respect of the Zanzibar restaurant state that “This building has deteriorated and its external appearance is poor.  Total remodelling or reconstruction with a high standard of design is required.  Tree planting would also improve the appearance of the car park.”  (Paragraph 7.16)

51.      Some overlooking was inevitable in the Built up Area but the proposed building had been pulled back from the boundaries and separated into three volumes, the northern and southern volumes being re-orientated for the benefit of Guyscliffe and of the appellant’s property.  The western and eastern flanks had now been broken up, but it was difficult to see them because of the amount of foliage in neighbouring properties; hence a photomontage of the views from the west and east would have been of little assistance.  

Procedural irregularity

52.      Following the hearing, the Court received further detailed written submissions on a point which it raised relating to that part of the procedural history described in paragraphs 18 and 19 above; namely the Minister, following the ministerial meeting of 18^th May, 2012, not giving the appellant the facility to view the scaffold profile and not making available to her the supplementary reports of Policies E1 and GD2.  The Court was concerned to consider whether this may have been procedurally unfair, depriving the appellant of the ability to make adequately informed submissions to the Minister. 

53.      We will not set out those submissions but we have drawn from them for the purposes of this part of the judgement.  It is necessary first to describe briefly the evidence in relation to the scaffold profile, which we have taken from the second affidavit of Adrian Huckson on 22^nd October, 2012.  He said he learnt from comments made in the press by the Minister after the ministerial meeting that he intended to request that a scaffold profile be erected on the site.  He liaised with Mr Alistair Coates of the Planning and Environment Department and arranged for the Minister to attend on site on 23^rd May, 2012.  On 22^nd May, 2012, he arranged for an engineer and land surveyor to survey the site, mark out the footprint of the proposed new building and establish the positioning and heights of the scaffold profiles. 

54.      The Minister attended the site on 23^rd May, 2012, accompanied by Mr Coates.  Mr Huckson summarised the work which had been undertaken in order to produce the outline on the site of the proposed new building and in order to establish the heights of the scaffold profiles.  The Minister and Mr Coates walked through the site and reviewed the physical outline which had been prepared.  Mr Huckson explained to the Minister and Mr Coates the orientation of the individual volumes and their relationship with the site boundaries and walked them through the site.  The Minister inspected the existing buildings from both inside and outside.  Mr Huckson recalled the Minister viewing the north-east scaffold profile (the corner of the proposed building which is closest to the appellant’s property) both from within the site and from outside the site on Mont Sohier.  At the southern end of the site the Minister viewed the proposed setting back of the new building from the southern boundary and asked to view the scaffold profile at the south-east corner of the proposed new building which is the corner adjacent to Guyscliffe.  Mr Huckson remembers the Minister viewing this profile from a number of positions, including from the beach itself. 

55.      In his affidavit he says that the Minister therefore saw profiles demonstrating the height of the building at both the most southerly and northerly points and saw the proposed new building physically marked out on the site, which showed the relationship of the proposed new building to the neighbouring properties and the height of the building running from north to south.   

56.      The starting point in relation to the consultation process is the statutory framework.  The responsibility for making a decision in relation to the grant of planning permission rests with the Minister (Article 19 of the Planning Law).  Article 11(1) of the Planning Law requires the Minister by Order to prescribe the manner in which representations may be provided by members of the public on applications for planning permission.  This was done by the Planning and Building (Application Publication)(Jersey) Order 2006 (“the Order”). 

57.      Article 4(1) of the Order requires any representation in respect of a planning application to be provided to the Minister in writing within 21 days of the application being published.  The Minister is obliged, in accordance with Article 11(4) of the Planning Law to take into account in determining the application any such representations made. 

58.      There is no obligation under the Planning Law for the Minister to provide those who have made representations in relation to a planning application with an opportunity to make further representations prior to any decision being made.  Indeed, Supplementary Planning Guidance Practice Note 16, (which sets out a step by step guide to the planning applications process) states:-

“You must comment in writing (letter or email) or via our website.  You can object to the application, support it, or simply draw things to the attention of the planning officers.  We will acknowledge receipt of your comments within 5 working days.  We will take them into account when assessing the application but we do not have the resources to respond in writing to individual queries or meet you in person.”

59.      Practice Note 16 also provides that where it is decided that a planning application will be determined by the Minister himself (as opposed to being determined under delegated authority by planning officers or the Planning Applications Panel):-

“The Minister may determine planning applications at public meetings or in consultation with planning officers.  The Minister can defer an application from a public meeting and determine it later after further consideration”.

60.      There is accordingly no statutory obligation on the Minister to afford either those objecting to an application or indeed the applicant for planning permission with an opportunity to make further representations following a public meeting. 

61.      Practice Note 7 (which sets out protocols for public meetings of the Minister) expressly provides (at paragraph 7) that:-

“if the Minister wishes to visit a site, he may defer an application to do so. An unaccompanied visit will take place and the decision issued after that date”. (our emphasis)

62.      The appellant has exercised her right of appeal under Article 114 of the Planning Law and is now a litigant, but it is important to remember that we are concerned here with the earlier stage of the process in which the Minister is consulting with those members of the public who are interested in the application.  As Lord Wolfe MR said in R-v-North and East Devon Health Authority Ex P. Coughlan [2001] QB 213, a case which concerned a public body exercising a statutory function, at paragraph 112:-

“It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice.  Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response.  The obligation, although it may be quite onerous, goes no further than this.”

63.      A similar warning against applying to procedures involved in the making of administrative decisions concepts that are appropriate to the conduct of ordinary civil litigation between private parties was made by Lord Green MR in B. Johnston & Co (Builders) Limited-v-Minister of Health [1947] 2 All E.R. 395 at 399 to 400. 

64.      In Interface Management limited and others-v-Jersey Financial Services Commission [2003] JLR 524, the Court considered the legal test applied by the Court in administrative appeals in the light of Token-v-Planning and Environment Committee [2001] JLR 698 and in particular, considered the approach to be taken by the Court to considering issues of procedural fairness on appeal.  The Court stated at paragraph 35:-

“It follows that …. The court will look at three aspects on an appeal.  First, it will consider whether the decision was one which the decision-maker was empowered to make i.e. was the decision ultra vires?  Secondly, it will look at the correctness and fairness of the procedure in order to decide whether the proceedings of the decision-maker were in general sufficient and satisfactory.  Thirdly, it will look at the merits of the decision and decide whether it considers that the decision was unreasonable.  Where an appeal is allowed because of procedural errors or unfairness of sufficient gravity, the likely remedy will be that the decision is quashed and the matter remitted to the decision-maker for reconsideration”.  [Our emphasis]

65.      It is clear from this that in an administrative appeal, the Court will not quash a decision in every case where there has been some procedural irregularity.  The Court is concerned in an administrative appeal with considering whether the proceedings which were followed were, in all the circumstances, in general sufficient and satisfactory.  Put another way it is only where any procedural errors or unfairness are sufficiently serious to render the decision itself unreasonable that the Court will intervene. 

66.      This is consistent with the approach taken by the Court in Blackall and Danby Ltd-v-Island Development Committee [1963] JJ 273 where, in the context of an appeal against a decision not to renew a planning permit, the Court said at page 280:-

“…the Court would not consider it right to allow an appeal merely because of some defect in the proceedings leading to the Committee’s decision if, notwithstanding that defect, the decision was reasonable, that is to say, the Court must be concerned with the unreasonableness of the decision itself rather than with the unreasonableness of the surrounding circumstances.”

67.      The approach adopted by the English courts to questions of procedural fairness in relation to appeals in England against decisions of a Secretary of State Inspector in planning matters is to ask itself whether the claimant had a “fair crack of the whip”.  In Castleford homes Ltd-v-Secretary of State for the Environment, Transport and the Regions and another [2001] All ER (D) 31, Ouseley J stated at paragraph 52:-

“The relevant law, though not cited to me, is to be found in cases such as Fairmont Investment Ltd. v the Secretary of State for the Environment 1976] 1 WLR 1255 at p. 1255; and H. Sabey & Co. Ltd. v The Secretary of State for the Environment [1978] 1 All ER 586.  Did the Claimant have a “fair crack of the whip?”  Was the Claimant deprived of an opportunity to present material by an approach on the part of the inspector which he did not and could not reasonably have anticipated?  Or is he trying to improve his case subsequently, having been substantially aware of, or alerted to, the key issues at the Inquiry?  Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence fail to put forward his fall-back case?  Those are the sort of questions which can be used to guide a conclusion as to whether the manner in which a particular issue was dealt with at an Inquiry involved a breach of natural justice and was unfair”.

68.      It is important to recognise, of course, that the role carried out by a Secretary of State Inspector in England is an appellate role under which an inquiry is conducted by the Inspector and in relation to which there is no third party appeal on the merits.  Conversely, the Minister in Jersey is charged with making an administrative decision under the Planning Law in relation to which third parties have a right of appeal to the Court on the merits.  

69.      In this case, we are dealing with the process of consultation with the public undertaken by the Minister who has the responsibility for making the decision, having taken into account the representations made.  There is no criticism of the process of consultation conducted by the Minister up to the ministerial meeting.  The revised application was duly publicised and together with the relevant plans was available for inspection.  The appellant and others were able to make detailed written submissions and subsequently oral submissions to the Minister at the public hearing.  As made clear in Practice Note 16, the Minister then deferred the application for further consideration by him.  The appellant had complained of the scale and mass of the proposed new building and its proximity to her home and we accept the submissions of the respondent and the applicant that the Minister requested the scaffold profiles to be erected to assist him to make his decision as to whether those objections were borne out. 

70.      There was nothing clandestine in the arrangements.  The decision to erect the scaffold profile was noted in the minutes and announced in the media.  The Minister attended the site with a planning officer.  It was inevitable that in order to have access to the site and to be satisfied with the preparations undertaken by the applicant’s engineer that the Minister would have contact with the applicant’s agent for the purpose of that exercise.  There was no evidence that the communications went anything beyond what was necessary to enable the Minister to carry out this exercise properly.  The site visit was not an opportunity for further representations to be made to the Minister by any of the interested parties and there was no legitimate expectation that such further opportunities would be given to the interested parties.  

71.      In our view, the appellant has had “a fair crack of the whip” in that she has been consulted over the application and has been able, as with all other members of the public who were interested in the application, to make informed written and oral representations to the Minister.  To suggest that the Minister is under an obligation, having received those representations, to involve the appellant and presumably all those other persons who have an interest in the application with every step that he subsequently takes in reaching the decision for which he alone is responsible, is to fall into the trap of equating this process to litigation, but as Lord Wolfe said, it is consultation not litigation.  The appellant has been consulted and her representations have been taken into account.  We do not regard the Minister asking for scaffold profiles to be erected to enable him in his decision-making process after receiving the appellant’s representations at a public hearing and in a manner which is consistent with the Practice Notes as in any way procedurally unfair or irregular. 

72.      Turning to the supplementary report by the Planning Department on Policies E1 and GD2, it is difficult to see how it can be said that there can be any procedural unfairness to the appellant (and accordingly any prejudice to the appellant) in not being given the opportunity to consider and respond to this internal report commissioned to advise the Minister on two policies which formed no part of the objections raised by the appellant in either her written or oral representations. 

73.      The appellant is, of course, able to raise arguments in relation to Policies E1 and GD2 as part of her appeal as she has done, which the Court will take into account in determining whether the decision of the Minister was reasonable or not, but it would be unfair on the applicant for the Court to quash the decision because of an alleged failure by the Minister to provide the appellant with copies of advice he had received from his own department on issues which were never addressed by the appellant and which formed no part of her objections to the proposed scheme.  

74.      In any event it is clear to us that there is no obligation upon the Minister to disclose such a report as part of the consultation process to parties who are interested in the application, as made clear in that part of the judgement of Lord Wolfe in North and East Devon Authority cited above.  In Bushell and another-v-Secretary of State for the Environment [1980] 2 All ER 608, Lord Diplock stated (at pages 613 and 618) in the context of a decision made by the Secretary of State following a public inquiry in relation to the proposed construction of two motorways:-

“To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament’s intention.  Ministers come and go; departments, though their names may change from time to time, remain.  Discretion in making administrative decisions is conferred on a minister not as an individual but as the holder of an office in which he will have available to him arriving at this decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head.  The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise are to be treated as the minister’s own knowledge, his own experience. 

……

“Once he has reached his decision he must be prepared to disclose his reasons for it, because the Tribunals and Inquiries Act 1971 so requires; but he is, in my view, under no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives, from his department in the course of making up his mind.  If he thinks that to do so will be helpful to him in reaching the right decision in the public interest he may, of course, do so; but if he does not think it will be helpful and this for him to decide, failure to do so cannot in my view be treated as a denial of natural justice to the objectors.”

75.      The House of Lords approved and applied those observations in the context of a ministerial decision involving considerations of policy as well as judgment in a planning matter in R (Alconbury Developments Ltd)-v-Secretary of State for the Environment, Transport and Regions [2003] 2 AC 295.  In that case Lord Clyde stated (at paragraph 141) that:-

“Within his department a minister may well take advice on law and policy (Bushell v Secretary of State for the Environment [1981] AC 75) and the Secretary of State is entitled to seek elucidation on matters raised by the case which he has to decide, provided always that he observes the basic rules of fairness.  In particular he should in fairness give the parties an opportunity to comment if after a public inquiry some significant factual material of which the parties might not be aware comes to his notice through departmental inquiry.”

76.      The comments in Bushell and Alconbury Developments were made in the context of decisions taken by the Secretary of State following a public inquiry where it is submitted there will be an enhanced expectation on the part of objectors to be consulted than in the case of an administrative decision by the Minister on a standard planning application.  In Re the matter of the X Children [2009] JCA 083, the Jersey Court of Appeal echoed those comments in the context of a decision by the Minister for Health and Social Services in a child protection matter where it stated: -

“For avoidance of doubt we observe that we see nothing objectionable in either the Placement Panel, or the Minister, after any dialogue or colloquy with the guardian and other involved parties, reaching a decision in private or in the Minister making use of the expertise of his own department in reaching his decision; see Bushell v Environment Secretary [1981] AC 75 per Lord Diplock at p. 95-96.”

77.      In this case no significant new factual material is contained in the supplementary report produced by the Planning Department.  The report simply sets out the views of an officer of the Planning Department on the issues raised by Policies E1 and GD2.  The report was prepared by a member of the Planning Department to assist the Minister in making his decision in light of representations which had been raised on those policies.  Obtaining written advice of this sort is in practical terms no different to the Minister sitting down with members of the Planning Department to obtain their views on a proposed application or to discuss policy considerations prior to making a decision.  It would be nonsensical for the Minister to have to disclose the content of those discussions to objectors or to applicants to enable them to make comment prior to the Minister making a decision.  There is no procedural unfairness in objectors and applicants not being privy to those internal discussions.  The position of objectors and applicants is adequately protected by their right of appeal on the merits to the Court if they consider that the Minister’s decision is unreasonable.  

Decision

78.      What is unusual in this case is that, although the decision to approve the third application has been made by the Minister and it is that decision that this Court is reviewing, guidance has been given on the merits by the Court in the Ruette appeal as summarised in paragraph 11 above.  Effectively that Court has narrowed down the issues to that of the scale and mass of the proposed new building vis-à-vis the neighbours.  The applicant has understandably taken that guidance into account as the changes to the scheme (as summarised in paragraph 12 above) all address that issue.  The Planning Department in its report and the Minister have also taken that guidance into account.  It is for that reason, in our view, that the Minister has addressed himself in his reasons principally towards the differences between the 2002 Plan and the 2011 Plan (identified as being policies E1 and GD2), the Court having noted that the application it was referring back to him would now have to be considered under the 2011 Plan.  

79.      Whilst guidance of this kind may not be strictly binding on this Court, it has understandably been relied upon by the applicant, the Planning Department and the Minister and in our view it would be unfair for this Court to now depart from it, if it was minded to do so.  The Court is not so minded and a consequence of this is that we find that the Minister was reasonable in approving the modernity and style of the proposed new building (a key complaint of the appellant) and finding that the scheme was consistent with Policy BE3 (Green Backdrop Zone). 

80.      There is no question that the third application is an improvement in terms of scale and mass over the second application, which the Planning Department recommended should be approved and which it would seem the former Minister would have approved, but for what he perceived as political interference, subject perhaps to “breaking the roof of the main building a little” (see paragraph 26 of the Ruette judgment).  Just because the third application is an improvement does not of course justify its approval.  The test is not a comparison with what has gone before, but rather as the Court made clear in Hobson-v-The Minister of Planning and Environment [2012] JRC 200 at paragraph 56:-

“The test on each application is not comparison with what has gone before on the basis that any improvements suggest a consent, but rather, in accordance with Article 19 of the Planning Law, whether the proposal is consistent with the Island Plan and is appropriate given all material planning considerations, or whether permission can be justified despite the inconsistency with the Island Plan.”

81.      Taking into account the guidance given by the Court in the Ruette judgement, the key issue on this appeal is whether the scale and mass of the proposed new building vis-à-vis its neighbours is consistent with the relevant policies of the 2011 Plan, which it is accepted are not in this respect materially different from the 2002 Plan, the relevant policies being H6, GD1 and GD7. 

82.      Was the Minister’s decision on this key issue mistaken and if so was it unreasonable?

83.      Despite being situated on the coast of one of the Island’s most beautiful bays, it is important to appreciate that the site is in the built up area, where pursuant to Policy SP1, development will be concentrated and pursuant to Policy H6, proposals for new dwellings will be permitted subject, of course to consideration of the general development policies in this case specifically GD1 and GD7.  The site is not in the Coastal National Park (where there is the strongest presumption against any form of new development) or the Shoreline Zone (which protects visual access to the shoreline, involving views to the foreshore and sea often through the maintenance of open space and gaps between buildings along the coastline).  

84.      The changes to the scheme are significant.  It can no longer be described as being “shoehorned” into the site.  The east and west faces of the building are primarily solid, which assists in enabling privacy.  The linear mass is broken up into three volumes, which with the use of vertical gardens will convey the impression, we were told, of three separate buildings instead of one.  The building will be sunk into the slope so that its apparent mass from Le Mont Sohier will be that it appears to be one storey, being similar in level to Mimosa Cottage.  At the southern end of the site, whilst higher than Longbeach House, the plans show that the southern elevation is equal to or lower than other properties along the front.  It remains a large property, now broken up into three volumes, but it is set in a large site. 

85.      We found the key issue very difficult but after anxious discussion we concluded that in the context of a site in the Built-up Zone and in the light of the guidance given by the Court in the Ruette appeal and of the relevant policies, it was not unreasonable for the Minister to have approved the proposed new building on the grounds of its scale and mass and that it would not “seriously” harm the amenities of the neighbouring uses. 

86.      There are a number of other issues outwith the guidance of the Court in the Ruette judgement raised by the appellant which we need to address:-

(i)        Should the Minister have commissioned his own sunlight study (Paragraph 27(x) above)?  In Farina-v-Minister for Planning [2010] JLR Note 30, it was held that the Minister’s duty is not to make all possible inquiries into relevant matters but inquiries that are appropriate and proportionate to the circumstances.  Apart from contending that the Minister should have commissioned his own sunlight study, the appellant did not seek to draw any specific conclusions from the sunlight study that she had commissioned.  We found it difficult to draw any conclusions from it ourselves.  It was not unreasonable for the Minister, in our view, to proceed to make a decision without commissioning such a study.  

(ii)       The appellant also complained about the failure of the Minister to require photo montages showing the proposed building from the east and west sides.  Those could have been commissioned, but there again, the Minister had photo montages from Le Mont Sohier and from the beach, together with the plans, and we do not think it was unreasonable for the Minister to proceed without commissioning further photo montages, bearing in mind that he also personally visited the site and had the benefit of scaffold profiles as part of his decision making process.  

(iii)      Should the Minister have considered the proposition adopted by the States in 1968 (P15/ 1968) (see Paragraph 27(xviii) above)?  The 2011 Plan at paragraph 4.86 refers to it being important that the spirit of this 1968 proposition and the 1989 St Brelade’s Bay Environmental Improvement Plan continue to be addressed in this and subsequent Island Plans, where it remains relevant today.  Under proposal 14 of the 2011 Plan, it is proposed that the Minister will develop a planning framework for St Brelade’s Bay, which has yet to be undertaken.  The spirit of the 1968 proposal has presumably been addressed in the actual policies set out in the 2011 Plan and will continue to be addressed in proposal 14, whenever that is formulated.  The Minister can hardly be criticized for failing to take into account a framework that is not in existence and in so far as it is currently addressed within the 2011 Plan the Minister has, in our view, considered the relevant policies carefully.  There is no substance therefore in this submission.  

(iv)      Did the Minister fail satisfactorily to address Policy E1 and GD2, which are effectively the new policies brought in by the 2011 Plan (see paragraph 27(xix) above)?  There can be no doubt that the Minister considered these policies carefully as he deferred his decision at the ministerial meeting so that, in addition to requesting a scaffold profile, he could obtain further advice from his Planning Department.  He then addressed both policies at length in his reasons for the decision.   He had been advised that the restaurant on the site had closed for lack of business in November 2009, which would seem to us a clear indication of lack of market demand but the issue is whether it was reasonable for the Minister to have acted on the advice of the Planning Department, or whether he should have further deferred the application in order for more in depth research to be commissioned.  We can see nothing on the face of the advice to suggest that he should have done this. 

(v)       The appellant submitted that the Minister provided no evidence to support his contention that it was not appropriate “in sustainability terms to repair or refurbish” the existing building.  There may be circumstances in which a survey should be required but it is not in our view necessary in every case.  It may be a matter of common sense, which the Minister is able to decide himself bearing in mind he personally inspected the interior and exterior of the existing building.  In Winchester City Council-v-Secretary of State for the Environment [1980] 39 P. and C.R. 1, Lord Denning said this at page 4:-

“I am afraid that I cannot agree with this contention.  This was not a scientific or technical point on which evidence from both sides was necessary or even desirable.  It was a matter of aesthetic taste – or common sense, if you like.  Anyone with reasonable intelligence going to see this house could tell for himself whether it was suitable to be extended and made into a bigger house, or not, or whether it would spoil it to try to add to it.  It did not need skilled architects to give evidence about it.  It was a matter that the inspector could judge perfectly well for himself.  That is what he meant when he said that it was “not necessary” to call evidence on it.  I may add that neither side had gone to the hearing with any architects. If an architect had been called for the city council, Mr Eccles would have wanted to call an architect on his side.  The inquiry would have been lengthened and made more expensive.  In the inspector’s view – also in the view of Forbes J – this was a matter of ordinary common sense or aesthetic taste that the inspector could perfectly well handle himself without the need for any expert evidence.  There was no want of natural justice at all.”

As long ago as 1989 the Environmental Improvement Plan noted the deterioration in the existing building and its poor external appearance.  It suggested total remodelling or reconstruction with a high standard of design required.  (See paragraph 50 above).  We conclude that the Minister did satisfactorily address these policies. 

87.      An issue of procedural fairness arises here in that the application was originally made under the 2002 Plan, which did not include policies equivalent to E1 and GD2, but as a result of the delays caused by the procedural irregularities on the part of the former Minister and through no fault on the part of the applicant, when the application was remitted back to the Minister, it fell to be dealt with under the 2011 Plan.  Even if it could be said that consideration of Policies E1 and GD2 did require the professional reports contended for by the appellant, it would be procedurally unfair to require the applicant to surmount such hurdles now, when they did not exist under the 2002 Plan (see Webb-v-Minister of Planning [2012] JRC 107 at paragraph 10). 

88.      There were a number of further ancillary points made by the appellant, such as the alleged need for an Environmental Impact Assessment and concerns over the constructional depth of the green roof, which we have considered but in our view none of them render the decision of the Minister unreasonable.  We agree with Mr Mills that Policy GD5 has no application; that policy is concerned with protecting the skyline, strategic views, important vistas and the setting of landmark and listed buildings.  The proposal does not affect or obscure the skyline and the fact that the site is not in the Shoreline Zone is determinative of the fact that it does not obscure strategic views or important vistas. 

89.      Having taken into account all the submissions made by the appellant, we conclude, applying the Token test, that the Minister’s decision was reasonable and accordingly this Court has no grounds to intervene. 

90.      The appeal is therefore dismissed.  

Authorities

Planning and Building (Jersey) Law 2002.

Ruette Pinel Farm Limited-v-Minister for Planning and Environment [2012] JRC 008.

2002 Island Plan.

2011 Island Plan.

Token Limited-v-Planning and Environment Committee [2001] JLR 698.

Trump Holdings Limited-v-Planning and Environment Committee [2004] JLR 232.

Dunn-v-Minister for Planning and Environment [2009] JRC 237.

1989 Environmental Improvement Plan.

Planning and Building (Application Publication)(Jersey) Order 2006.

Supplementary Planning Guidance Practice Note 16.

R-v-North and East Devon Health Authority Ex P. Coughlan [2001] QB 213.

B. Johnston & Co (Builders) Limited-v-Minister of Health [1947] 2 All E.R. 395.

Interface Management limited and others-v-Jersey Financial Services Commission [2003] JLR 524.

Blackall and Danby Ltd-v-Island Development Committee [1963] JJ 273.

Castleford homes Ltd-v-Secretary of State for the Environment, Transport and the Regions and another [2001] All ER (D) 31.

Bushell and another-v-Secretary of State for the Environment [1980] 2 All ER 608.

R (Alconbury Developments Ltd)-v-Secretary of State for the Environment, Transport and Regions [2003] 2 AC 295.

Re the matter of the X Children [2009] JCA 083.

Hobson-v-The Minister of Planning and Environment [2012] JRC 200.

Farina-v-Minister for Planning [2010] JLR Note 30.

Winchester City Council-v-Secretary of State for the Environment [1980] 39 P. and C.R. 1.

Webb-v-Minister of Planning [2012] JRC 107.