Planning – appeal by the Minster against the decision of the Master
dated 29th October, 2013.
[2014]JRC020
Royal Court
(Samedi)
23 January 2014
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Before :
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Sir Michael Birt, Kt., Bailiff, sitting
alone.
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|
Between
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Minister for Planning and Environment
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Appellant
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And
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Mary de Faye Herold
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Respondent
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And
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Sea View Investments Limited
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Applicant
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Advocate D. J. Benest for the Appellant.
Advocate C. J. Scholefield for the
Respondent.
The Applicant did not appear and was not
represented.
judgment
bailiff:
1.
This is an
appeal by the Minister for Planning and Environment (“the
Minister”) against a decision of the Master given on 29th
October, 2013, ([2013] JRC 200A), whereby he dismissed the Minister’s
application to strike out the third party appeal of the respondent (“Mrs
Herold”) under Article 114 of the Planning and Building (Jersey) Law
2002 (“the Planning Law”) because it had been brought outside
the time limit fixed for third party appeals by the Planning Law.
2.
On 28th
November, I notified the parties that the appeal was dismissed. However, I made it clear that my reasons
for doing so were somewhat different from those of the Master, not least
because I was referred to a line of judicial authority which had not been
brought to his attention. This
judgment constitutes the reasons for my decision.
The relevant statutory provisions and Rules of Court
3.
Article
114 of the Planning Law confers a right of appeal by third parties against the
grant of planning permission to another person. The relevant provisions of Article 114
are as follows:-
“114 Persons who may appeal against grant planning permission
(1) This
Article applies to a decision by the Minister to grant planning permission on
an application made to the Minister in accordance with Article 9(1) if a submission
was made to the Minister in respect of the application prior to the
Minister’s making the decision by a person (other than the applicant) who
–
(a) has
an interest in land; or
(b) is
resident on land,
any part of which is within 50
metres of any part of the site to which the planning permission relates.
(2) …
(3) A
decision to which this Article applies shall not have effect during the period
of 28 days immediately after the decision is made.
(4) If
during that period a person appeals in accordance with this Article the period
shall be extended until either the appeal is withdrawn or is determined.
(5) When
the appeal is determined the decision shall have effect, if at all, in
accordance with the determination.
(6) The
Minister shall serve a copy of the notice informing the applicant of the
decision on each other person who made a submission to which paragraph (1)
refers.
(7) The
copy of the notice must –
(a) be
served within 7 days of the decision being made; and
(b) be
accompanied by a notice informing the person that the person may appeal against
the decision or any part of it (including any condition of the planning
permission) within 14 days of the service of the notice,
and that person, if aggrieved by
the decision, may appeal to the Royal Court accordingly.
(8) …
(9) …”
4.
Article
108 of the Planning Law provides as follows:-
“108 Rules of Court
The power to make rules of court
under Article 13 of the Royal Court (Jersey) Law 1948 shall include the power
to make rules regulating practice and procedure in applications and appeals
under this Part.”
5.
Part 15 of
the Royal Court Rules deals with appeals from administrative decisions and the
relevant provision for the purposes of this case is Rule 15/2 which provides as
follows:-
“15/2 Notice of appeal and fixing
day for trial
(1) An
appeal to the Court shall be brought by serving on the respondent a notice of
appeal:-
(a) in
the case of an appeal other than a planning appeal or a high Hedges Law appeal,
in the form set out in Schedule 4;
(b) in
the case of a planning appeal, in the form set out in Schedule 4A; or
(c) in
the case of a High Hedges Law appeal, in the form set out in Schedule 4B
and every such notice must specify
the grounds of the appeal with sufficient particularity to make clear the
nature of the appellant’s case.”
6.
The only
other relevant Rule of Court is Rule 1/5 which provides as follows:-
“1/5 Power to extend and
abridge time
(1) The
Court or the Viscount may, on such terms as either thinks just, by order extend
or abridge the period within which a person is required or authorised by rules
of court or by any judgment, order or direction to do any act in any
proceedings.
(2) The
Court or the Viscount may extend any period referred to in paragraph (1)
although the application for extension is not made until after the expiration
of that period.
(3) …”
Factual background
7.
The Master
described the factual background very clearly in his judgment and what follows
is based substantially on his summary.
8.
On 12th
October, 2012, Sea View Investments Limited (“the applicant”),
subject to completion of a Planning Obligation Agreement, was granted
permission to develop 17 residential units of accommodation at Keppel Tower,
Elizabeth Cottage and Maison du Roc, La Grande Route des Sablons, Grouville.
9.
It is not
in dispute that Mrs Herold’s property adjoins the property in respect of
which planning permission was given.
It is also agreed that she made representations against the
application. She therefore meets
the criteria set out in Article 114(1) of the Planning Law and has the right to
bring a third party appeal.
10. Following negotiation and completion of the
Planning Obligation Agreement, the applicant was granted unconditional planning
permission on 31st July, 2013.
That date is accepted by all parties as being the date of the
Minister’s decision for the purposes of Article 114.
11. Pursuant to Article 114(6) the Minister
notified Mrs Herold of his decision to grant the planning permission by letter
dated 2nd August, but it is accepted that the letter was not in fact
posted until 5th August.
12. Attached to the letter was a document entitled “Development Control Practice Note No.
3A – Right of Appeal by a Third Party” which stated that the
procedure as to how to appeal was set out in Part 15 of the Royal Court
Rules 2004 and also stated “a
third party appeal must be served on the Minister and filed with the Judicial
Greffe in accordance with the Rules, within 14 days of the notice”. That note is not in fact wholly
accurate. The appeal must be served
on the Minister within 14 days but the time for filing the appeal with the
Judicial Greffe is two days later.
13. On 7th August Mrs Herold wrote to
the Planning Department seeking confirmation that, as the letter of 2nd
August was not posted until 5th August, it was deemed, by reference
to RCR 5/6(3) to be served on the second day after which it was posted i.e. 7th
August. She therefore sought
confirmation that the deadline for serving a notice of appeal was 14 days
later, i.e. 21st August.
The Department replied by email dated 8th August confirming
that she had until 21st August to “submit an appeal”.
14. By letter dated 21st August Mrs
Herold wrote to the Viscount’s Department with the following
instructions:-
“Please serve a copy of
the accompanying letter and notice of appeal on the Minister for Planning and
Environment at the following address no later than the close of business
today.”
The address given was that of Planning and
Building Services at South Hill.
15. Mr Paul Stephens, Acting Principal and
Enforcement Officer of the Viscount’s Department, described what happened
in an email dated 10th October, 2013, as follows:-
“As you are aware you
issued instructions on 21st August 2013, requesting that the
Viscount serve a notice of appeal on the Minister for Planning and
Environment. You asked for the
letter to be served on the Minister on that same day.
Unfortunately, the Minister for
Planning and Environment was out of the Island and was unavailable for
service. The Viscount’s
officer was advised by the Minister’s PA that the Minister would be at
home for the whole day on 22nd August 2013.
On 22nd August 2013
at 11.55 am the Minister for Planning and Environment was served with your
notice of appeal at the offices of Planning and Environment.”
16. At paragraph 30 of her written submissions to
the Master, Mrs Herold stated that her grandson, Mr Greg Herold-Howes had
received a telephone call from a Mr de Gruchy of the Viscount’s
Department during the afternoon of 21st August, confirming that the
Minister was not in fact in the Island that day and that service was therefore
impossible. Mr Herold-Howes had
questioned whether, despite the Minister’s absence, service could instead
be effected on another representative of the Planning Department. He said that Mr de Gruchy confirmed that
this was not possible and service of the notice of appeal could under the Law
only be effected on the Minister.
Mr Herold-Howes accompanied his grandmother to the hearing before the
Master and specifically confirmed the above matters. There does not appear to have been any
challenge to this evidence.
17. In summary therefore, the notice of appeal was
served on the morning of 22nd August, 2013, when it should have been
served before midnight on 21st August, 2013, i.e. one day after the
time limit in Article 114(7) but within 28 days of the Minister granting
planning permission.
18. The Minister subsequently issued a summons that
the appeal be dismissed for want of legal validity on the ground that it was
served one day out of time and accordingly there was no jurisdiction in the
Court to hear the appeal.
The Master’s judgment
19. Before the Master, the Minister submitted that
there was no jurisdiction in the Court to extend the period of 14 days referred
to in Article 114(7) whereas Mrs Herold contended that there was, either on the
basis that the time limit was directory rather than mandatory or, applying R
v Soneji [2006] 1 AC 340, because the States should be taken as not having
intended to completely exclude a right of appeal if there was non-compliance
with the 14 day time limit.
20. The Master was referred to three Jersey cases but
concluded that none of them appeared to have considered directly whether the
Court had power to extend the time limits in the Planning Law. I agree with him in relation to the
first two cases, but not in relation to the third.
21. The first case was Arbaugh v Island
Development Committee [1966] JJ 593.
Article 21 of the Island Planning Law 1964 provided that an
appeal against refusal of a planning permission must be brought within two
months of notification of the Committee’s decision. Although the appeal in that case was out
of time, the Court noted that the Committee had agreed not to raise any
objection and the Court therefore proceeded to hear the appeal as if it had
been made within the time limit prescribed by Article 21. There was no discussion as to whether
the Court could proceed on this basis.
I agree with the Master that, as the matter proceeded by consent, it
does not assist on whether there is in fact jurisdiction to extend the time
limit prescribed by the statute.
22. The second case was Burnett v the Minister for Planning and
Environment [2010] JRC 143B. In
that case, it was clear that there was an enormous procedural muddle which the
Court found had stemmed entirely from the actions of the Planning
Department. The consequence was
that the appellant was not notified of his right to appeal against the
decision, which was standard practice when a notice of rejection was
issued. The Court (Bailhache, Commissioner)
said at paragraph 13:-
“The result is an impossible
procedural tangle. We think that
the only fair approach for the Court to take is to cut the Gordian knot and to
treat this appeal de bene esse as an appeal out of time against the
Minister’s decision to refuse to consent to the retrospective application
to build the pool house and to change the use of part of Field 818. We take the grounds of appeal to be
essentially those set out in the appellant’s subsequent appeal against
the decision of the Panel of 15th December 2009. We accordingly give leave to the
appellant to appeal out of time against the decision of 5th February
2008 and will consider the appeal on its merits”.
It would seem that no argument was
addressed to the Court on whether there was jurisdiction to give leave to
appeal out of time and accordingly I agree with the Master that no weight can
be placed on the decision in that case.
23. The third case was Stuart-Smith v Minister
for Planning and Environment which was an unpublished judgment of the
Deputy Judicial Greffier dated 22nd September, 2008. It concerned a third party appeal under
Article 114 where the Minister sought the dismissal of the appeal on the basis
that it had not been brought within the 14 day period specified in Article
114(7). The point at issue in the
present case appears to have been the subject of adversarial argument and the
Deputy Judicial Greffier held that, as the time limit was fixed by statute,
there was no power under Rule 1/5 of the Royal Court Rules or otherwise to
extend that period.
24. The Master distinguished that decision on the
basis that the notice of appeal in that case was served two days outside the 28
day limit referred to in Article 114(3) and (4) whereas the notice of appeal in
the present case was served within the 28 day period. I have to respectfully disagree with the
Master that that is a valid reason for distinguishing the case. On reading the Deputy Judicial Greffier’s
judgment, it is clear that he did not consider this aspect; the judgment is
entirely devoted to whether there is any power to extend beyond the 14 day
period and he held that there was not. He had therefore ruled definitively on
the point which the Master was considering in the present case. Nevertheless, I accept of course that
the Master was free to depart from the decision in Stuart-Smith if he
was convinced that it was wrong.
25. Before the Master Mrs Herold relied
substantially on the important case of Soneji where the House of Lords
held that the distinction between mandatory and directory provisions of a
statute had outlived its usefulness and that the correct test was whether it
was the intention of Parliament that total invalidity should be the consequence
of non-compliance with a statutory provision. The Master helpfully set out a
substantial extract from the leading judgment of Lord Steyn but it is
sufficient for my purposes to quote only the following at paragraph 14:-
“VI The Core Problem
14. A recurrent theme in the
drafting of statues is that Parliament casts its commands in imperative form
without expressly spelling out the consequences of a failure to comply. It has
been the source of a great deal of litigation. In the course of the last 130
years a distinction evolved between mandatory and directory requirements. The
view was taken that where the requirement is mandatory, a failure to comply
with it invalidates the act in question. Where it is merely directory, a
failure to comply does not invalidate what follows. There were refinements. For
example, a distinction was made between two types of directory requirements,
namely (1) requirements of a purely regulatory character where a failure to
comply would never invalidate the act, and (2) requirements where a failure to
comply would not invalidate an act provided there was substantial compliance.
…”
26. Lord Steyn then went on to review a number of
authorities both in England and Wales and elsewhere in the Commonwealth before
concluding as follows at paragraph 23:-
“Having reviewed the issue in
some detail, I am in respectful agreement with the Australian High Court that
the rigid mandatory and directory distinction, and its many artificial
refinements, have outlived their usefulness. Instead, as held in Attorney
General’s Reference (No. 3 of 1999), the emphasis ought to be on the
consequences of non-compliance, and posing the question whether Parliament can
fairly be taken to have intended total invalidity. That is how I would approach what is
ultimately a question of statutory construction. In my view it follows that the
approach of the Court of Appeal was incorrect.”
27. The Master was also referred by Mrs Herold to Canivet
Webber Financial Services Limited v Guernsey Financial Services Commission [2007–08]
GLR 221 where the Royal Court of Guernsey had to consider whether it could hear
an appeal under the Planning legislation where the appeal had been lodged out
of time. Newman, Lieutenant Bailiff applied Soneji and her conclusion
was summarised in the head note as follows:-
“(1) The appeal would not be
struck out but the appellant would be instructed to prosecute it without
further delay. The legislation did not give the court power to extend the
time-limit, but nor did it set out the consequences of failing to comply with
the time-limit. The question became
one of whether in this particular context the States could be taken to have
intended that no step in the proceedings could validly be taken outside the
time limit, even with the permission of the court. The court was satisfied that
it was not the intention that the time-limit should be operated in such a way
as to cause injustice and it would therefore exercise its inherent jurisdiction
to extend the time for service to avoid injustice in this case. The
requirements of certainty should be tempered by a willingness to do justice,
especially in a case in which the appellant was not legally represented and in
which, though it had been dilatory, there were other factors beyond its control
which had delayed its pursing the appeal.”
28.
The
advocate appearing for the Minister referred the Master to Jones v AG
[2000] JLR 103 which concerned the issue of whether the Royal Court had
inherent jurisdiction to allow a criminal trial to continue where the number of
jurors fell below 12 during the course of the trial for a reason which was not
“une maladie” or “une indisposition” and was
therefore not covered by Article 56 of the Loi (1864) Réglant la Procédure
Criminelle. At page 109, the
Court of Appeal said this:-
“Plainly it is possible for
an inherent jurisdiction to exist in respect of matters about which a statute
is silent. Equally, an inherent jurisdiction may supplement a permissive
jurisdiction granted by statute. What it cannot do is to confer a power
inconsistent with a statutory provision which is itself mandatory.”
The Court went on to state that the
statutory provision in question concerning the constitution of the jury was
mandatory, although in doing so it did not specifically enter into any consideration
of whether it was directory or mandatory or indeed refer to that well-known
distinction.
29. The Master took Jones as being an
application of the traditional mandatory/directory distinction referred to by
Lord Steyn in Soneji and expressed uncertainty as to whether he should
therefore follow Jones and apply that distinction or whether he should
follow the new approach outlined in Soneji. In my judgment, Soneji should be
applied in place of the old mandatory/directory distinction. The Royal Court, endorsed by the Court of
Appeal, has already done so on a number of occasions (see for example AG v Da Silva [2008] JLR N 12; Re
Dégrèvement Burby [2008] JLR N 49) and this is not inconsistent with Jones because the
Court of Appeal in that case did not in fact consider the directory/mandatory
distinction other than simply by asserting that the relevant provision of the
1864 Law was mandatory. In any
event it preceded Soneji.
30. The Master went on to consider the position
under both tests. He concluded that the language of Article 114(7) was not
mandatory and (applying Soneji) that the States did not intend to
exclude totally a right of appeal if there was non-compliance with the 14 day
time limit. He did however hold
that any extension could not exceed the 28 day period referred to in Article
114(3) and (4) because after that period the planning permission would come
into effect and the applicant would be free to proceed with the relevant
building work. The States could not
have envisaged extending the limit for a third party appeal beyond the time
when the applicant might well have incurred expenditure in reliance on the
planning permission. He then went
on to consider his discretion as to whether to grant an extension and, on the
facts, decided to do so.
31. It is against that decision that the Minister
appeals, as he submits that an important point of principle is involved.
Is there power to extend the statutory time limit of 14
days?
32. Advocate Benest did not represent the Minister
before the Master but has been instructed on this appeal. He submits that Soneji is not
applicable to the present case and has referred me to a different line of
authority. He accepts however that,
on the particular facts of this case, the Court still has a discretion as to whether
to extend the time limit. Advocate
Scholefield reiterates the arguments made before the Master and contends that Soneji
is the correct approach. As an
alternative, he contends that, even if I find the law to be as submitted by
Advocate Benest, there is still a discretion in the Court and I should exercise
it in Mrs Herold’s favour on the facts of this case.
33. In essence, I accept that the law is as
submitted by Advocate Benest but, as will be seen, I agree with Advocate
Scholefield that I should exercise my discretion in Mrs Herold’s favour
on the special facts of this case.
34. Advocate Benest referred me to Mucelli v
Government of Albania [2009] 1 WLR 276. This concerned two extradition cases. In such cases the time limit for
appealing is very short, namely seven days for appeals under Part 1 of the Extradition
Act 2003 and fourteen days for appeals under Part 2. However, the relevant provision in
respect of both reads:-
“Notice of an appeal under
this section must be given in accordance with rules of court before the end of
the permitted period, which is [7] [14] days starting with the day on which the
order is made.”
What had happened in Mucelli was
that his solicitors had filed the notice of appeal within the requisite period
but had failed to serve it on the Crown Prosecution Service (CPS) as the
proposed respondent until the next day. Two points arose in the appeal. The first was whether the requirement
that a notice of appeal must be ‘given’ within the specified period
meant that the notice of appeal had to be both filed in the High Court and
served on all respondents to the appeal within the period. The House of Lords held that it had to be
so served but that is not relevant for the purposes of this case.
35. The second point was whether the court had
power to extend the time limit set out in the Act for the filing and/or service
of the notice of appeal. On this
aspect, the House held that there was no jurisdiction to extend a statutory
time limit for appeal. Thus Lord
Brown of Eaton-Under-Heywood said at para 38:-
“Against this background, it
seems to me to tolerably plain both that section 26(4) is requiring the notice
of any appeal to be both filed and served within the stipulated 7-day period
and that this, being a statutory time limit, is unextendable. The rules of
court are to dictate everything about the filing and serving of the notice save
only the period within which this must be done; this is expressly dictated by
the section itself. Whatever discretions arise under the rules are exercisable
only in so far as consistent with the filing and serving of the notice before
the statutory time limit expires.”
36. The leading judgment was given by Lord
Neuberger of Abbotsbury who dealt with this issue as follows:-
“74. On the face of it, at
any rate, there is a clear and unqualified statutory time limit, namely 7 days,
and there would therefore seem to be no basis upon which it could be extended.
In that connection, viewed from the English and Welsh perspective, I would
refer to the Civil Procedure Rules, which contain provisions whereby the court
can extend time for the taking of any step, and the CPR r 3.1(2)(a) can make an
order remedying any error of procedure, under CPR r 3.10, or can make an order
dispensing with service of documents, under CPR r 6.9. However, these powers cannot be
invoked to extend a statutory time limit or to avoid service required by
statute, unless of course the statute so provides. Apart from being correct as a matter of
principle, this conclusion follows from CPR r 3.2(a) which refers to time
limits in “any rule, practice direction or court order” and from
CPR r 6.1(a) which states that the rules in CPR Pt 6 apply “except where
… any other enactment … makes a different provision.”
75. Accordingly, it would be
necessary to find some statutory basis for the Court having power to extend
time, or indeed to dispense with the service which Section 26(4) requires. The
only arguable such basis is to be found in the words “in accordance with
rules of court”, which , it is contended, incorporate the various
provisions of the CPR to which I have just referred. I cannot accept that
argument. First, the way in which the sub-section is linguistically structured
appears to me to mean that those words govern the way in which “notice of
an appeal” is to be “given”, not the time within the such
notice is to be given, which is dictated by the closing part of the subsection.”
[Emphasis added]
It is of note that this decision was
reached even though the statutory time limit was extremely short and related to
extradition, which can have such a significant effect on a person’s
liberty.
37. Soneji was cited
to the House of Lords in Mucelli but is not referred to in the speeches
of any of their Lordships. One
might ask why not? That is of
course not stated by the judges but clearly they did not consider the case to
be relevant. In my respectful
judgment, that is not surprising. Soneji is concerned with the situation
where a decision maker does not take his decision in accordance with time
limits specified in a statute. This
is clear not only from Soneji itself (which concerned the making of a
confiscation order by the Crown Court) but a number of the cases cited by Lord
Steyn in reaching his conclusion. Thus
in the passage cited from the judgment of Lord Hailsham of St Marylebone LC in London
and Clydeside Estates Limited v Aberdeen District Council [1980] 1 WLR 182
at 189 – 190, it is clear that Lord Hailsham is referring to a statutory
requirement for the ‘exercise of legal authority’ imposed upon a public
authority exercising power.
38. The same appears from the judgment of Lord
Slynn of Hadley in Wang v Commissioner of Inland Revenues [1994] 1 WLR
1286, an appeal from Hong Kong which applied the dictum of Lord Hailsham in the
context of a decision made by the deputy commissioner where he had not complied
with the timetable imposed by the statute. Lord Slynn said this at 1296:-
“Their Lordships consider
that when a question like the present one arises – an alleged failure to
comply with a time provision – it is simpler and better to avoid these
two words ‘mandatory’ and ‘directory’ and to ask two
questions. The first is whether the
legislature intended the person making the determination to comply with
the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend
that a failure to comply with such a time provision would deprive the decision-maker
of jurisdiction and render any decision which he purported to make null and
void?” [Emphasis added]
39. In the Canadian case of Society Promoting
Environmental Conservation v Canada (Attorney General) (2003) 228 DLR (4th)
693, again relying on Lord Hailsham’s dictum, Evans JA said this at para
35:-
“(iv) … the more
serious the public inconvenience and injustice likely to be caused by
invalidating the resulting administrative action, including the
frustration of the purposes of the legislation, public expense and hardship to
third parties, the less likely it is that a court will conclude that
legislative intent is best implemented by a declaration of invalidity.” [Emphasis added]
40. It follows, in my judgment, that the Master and
the Royal Court of Guernsey in Canivet Webber erred in considering that
the principles of Soneji - and the pre-existing principles of the
mandatory/directory distinction – were applicable to the time limit for a
proposed appellant in an appeal. Soneji
is concerned with the sort of provision which says “the Minister shall
reach a decision upon the application within 28 days of receipt”. The question as to the validity of a
decision by the Minister reached outside that period is clearly important and
the principles in Soneji are applicable to that question. That is something very different from a
time limit for a private party to set in motion an appeal process. I respectfully agree with Mucelli
that there is no inherent jurisdiction in the court to extend a time limit for
appeal fixed by statute unless the statute itself allows for this. The provision is of course different
where the time limit is fixed by rules of court because, under RCR 1/5, the Court
has power to extend any period within which a person is required to do
something by ‘rules of court’ or by any ‘judgment, order or
direction.’ That rule
does not however give power to extend a statutory time limit.
41. A similar conclusion was reached in the
Guernsey case of Carr v States of Guernsey Housing Authority (15th
August 2012) where McMahon DB construed the appeal provisions of the Housing
(Control of Occupation) (Guernsey) Law 1994 which provided that an appeal “
… shall be served upon the President of the Authority within a period of
2 months immediately following the date of the notice giving the decision of
the Authority”. He
had regard to the decision in Mucelli and held that he had no
jurisdiction to extend the time period in the statute.
42. In my judgment, the time limit in Article
114(7) – although somewhat unusually expressed by reference to what is to
be contained in a notice from the Minister – is clear and unambiguous. A third party may appeal but only within
14 days. The Master considered the
use of the word ‘may’ was significant. I must respectfully disagree. The only right of appeal conferred on a
third party is the statutory right contained in Article 114. The only reference to that is in Article
114(7)(b) which states that the notice from the Minister to the third party
must inform him that he may appeal within 14 days of service of the notice and
then goes on to provide that such a person ‘may appeal to the Royal Court accordingly’
[emphasis added]. That can only
be a reference back to the immediately preceding passage and incorporates the
14 day period. Thus a person may
appeal, but only within 14 days. No
other right of appeal exists.
43. Advocate Scholefield pointed out that Article
114(7) provides that a person ‘may appeal’ within 14
days but says nothing about when an appeal is deemed to have begun. He rightly points out that this is dealt
with by Rule 15/2(1) which states that an appeal against an administrative
decision is brought by serving a notice of appeal on the respondent. He submits that, as it is a rule of court
which determines what constitutes the bringing of an appeal, the court can
under Rule 1/5 extend the time for bringing the appeal.
44. A similar argument was made in Mucelli
but was rejected by the House of Lords. I reject Advocate Scholefield’s
argument for similar reasons. Rule
15/2(1) specifies how a proposed appellant exercises a right of appeal
but says nothing about when he can bring it. That is dealt with solely in Article
114(7) and therefore, for the reasons given in Mucelli, cannot be
extended either under Rule 1/5 or under the Court’s inherent
jurisdiction.
45. In reaching these conclusions, I would echo
some remarks of McMahon DB at pages 7-8 of his judgment in Carr. It is very important for the rule of law
that courts should not exceed their proper role which, in this context, is to
interpret statutes passed by the legislature. As the late Lord Bingham said in his
book, The Rule of Law at 168:-
“We live in a society
dedicated to the rule of law; in which Parliament has power, subject to
limited, self-imposed restraints, to legislate as it wishes; in which
Parliament may therefore legislate in a way which infringes the rule of law;
and in which the judges, consistently with their constitutional duty to
administer justice according to the laws and usages of the realm, cannot fail
to give effect to such legislation if it is clearly and unambiguously
expressed.”
If the States wish to give the courts a
discretion to extend a time limit, it is of course easily done by inserting a
specific provision to that effect in the legislation. If the legislature has chosen not to and
if it has inserted a clear and unambiguous time limit, it is not permissible
for the courts to invent a power of extension merely because they consider that
the absence of such a power has led in a particular case to a result which is
unjust or unfair. To do so would be
to exceed the role which our constitutional model gives to the courts.
46. It follows that, had the matter rested there, I
would have allowed this appeal.
47. However, Mucelli has since been the
subject of further consideration by the Supreme Court in a case where the
rights of a person under the ECHR were in play. In Pomiechowski v District Court of
Legnica, Poland [2012] 1 WLR 1604, there were four appeals in connection
with extradition heard together. The
first three appellants were Polish but the fourth, a Mr Halligen, was a British
national. In his case, although, as
in Mucelli, an appeal had been filed within the requisite period, the
appellant’s solicitors were one day late in serving the CPS. The Supreme Court refused the invitation
to depart from Mucelli but held that, in the case of Mr Halligen, the
extradition proceedings would determine his common law right as a British
national to enter and remain in the United Kingdom, which was a ‘civil
right’ so that Article 6 ECHR was engaged. The Supreme Court accepted that the
statutory provisions regarding the permitted periods for appeals must not
impair “the very essence of the right” of appeal if they were not
to be contrary to Article 6. It
went on to hold that the shortness of the time limits in extradition cases
could in certain circumstances “impair the very essence” of the
right of access to the courts and that in such cases, there would not be “a
reasonable relationship of proportionality between the means employed and the
aims sought to be achieved”. The Supreme Court held that, in order to
ensure consistency with the Convention rights, the Court should, under Section
3 of the Human Rights Act 1998, read down the relevant provisions of the
Extradition Act so as to be consistent with the Convention rights. This involved exercising a discretion to
extend the time limit in exceptional cases if necessary to prevent a breach of
the right of proper access under Article 6.
48. The position was summarised in the speech of
Lord Mance at para 39:-
“39. In the present case,
there is no reason to believe that Parliament either foresaw or intended the
potential injustice which can result from absolute and inflexible time limits
for appeals. It intended short and firm time limits, but can only have done so
on the basis that this would in practice suffice to enable anyone wishing to
appeal to do so without difficulty in time. In these circumstances, I consider
that, in the case of a citizen of the United Kingdom like Mr Halligen, the
statutory provisions concerning appeals can and should all be read subject to
the qualification that the court must have a discretion in exceptional
circumstances to extend time for both filing and service, where such statutory
provisions would otherwise operate to prevent an appeal in a manner conflicting
with the right of access to an appeal process held to exist under Article 6.1
in Tolstoy Miloslavsky. The High Court must have power in any individual
case to determine whether the operation of time limits would have this
effect. If and to the extent that
it would do so, it must have power to permit and hear an out of time appeal
which a litigant personally has done all he can to bring and notify
timeously.”
49. The observation of the European Court of Human
Rights in Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442
referred to by Lord Mance was (in the context of a different Article of the ECHR)
that rights of appeal cannot be made the subject of limitations which “restrict
or reduce the access left to the individual in such a way or to such an extent
that the very essence of the right is impaired” and that any such
“restriction must pursue a
legitimate aim and there must be a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved.”
50. An example of the application of Pomiechowski
is to be found in Adesina v Nursing and Midwifery Council [2013] 1 WLR
3156. In that case two nurses
appealed from different decisions of the Nursing and Midwifery Council to
remove them from the register of nurses. The statutory period of appeal was 28
days. One nurse lodged her appeal
nine days late and the other two days late. The judge ruled that both appeals had
been lodged out of time and should be struck out. Both nurses appealed on the ground that
their Convention rights were engaged and therefore, in order to ensure
compatibility with Article 6 ECHR, the 28 day time limit was not to be
construed as absolute and the court had a discretion to permit an extension. The decision is conveniently summarised
in the head-note which reads:-
“Held, dismissing the
appeals, that the time limit of 28 days in Article 29(10) of the Nursing and
Midwifery Order 2001 by which to lodge an appeal to the High Court from a
decision of the Nursing and Midwifery Council excluding someone from the
profession was not absolute. But, in the light of Article 6 of the Convention
for the Protection of Human Rights and Fundamental Freedoms, were subject to
the court’s discretion; that
the discretion would only arise in exceptional circumstances and where the
appellant personally had done all she could to bring the appeal within the
prescribed time limit; that, accordingly, the absolute approach was no longer
invariable but the scope for departure from the time limit was extremely
narrow; and that, since both nurses had had immediate knowledge of the
Council’s adverse decisions against them and since, in all the
circumstances, there was nothing exceptional in either case, there was no basis
for departing from the 28 day limit and the appeals had rightly been struck
out.”
51. In my judgment, this Court should adopt the
principles established in Mucelli and Pomiechowski. I would summarise the position as
follows:-
(i)
Subject to
(ii), where a statute provides a fixed time limit for an appeal, the Court has
no discretion under RCR 1/5 or under its inherent jurisdiction to extend that
period. It has no jurisdiction to
hear an appeal brought out of time. If the States wishes to confer a discretion
on the Court to extend the time limit, it may of course do so by specifically
conferring such a power in the relevant statute; but if it does not do so, that
is the end of the matter.
(ii) However, where an appeal involves the
determination of a ‘civil right’ for the purposes of Article 6 ECHR
(but not otherwise) the Court may read down the provisions of the statute in
accordance with Article 4(1) of the Human Rights (Jersey) Law 2000 so as
to give effect to the statute in a way which is compatible with Convention
rights. This involves asserting a
discretion to extend the time limit in the case before it if it concludes that
application of the time limit to the particular facts would ‘impair
the very essence’ of the right of access to the Court for the
appeal.
(iii) Such a discretion can only arise in exceptional
circumstances and where the appellant personally has done all he can to bring
the appeal timeously (i.e. within the prescribed time limit). Adesina indicates how difficult it
may be for an appellant to convince the court that his circumstances are
exceptional and emphasises that the scope for departure from the time limit is
extremely narrow.
Application to the facts
52. It follows that I must first consider whether
this appeal involves the determination of a civil right for the purposes of
Article 6 ECHR, that being the only Convention right which it is argued may be
applicable. If it does not, that is
the end of the matter and the time limit cannot be extended. If it does, I must then go on to decide
whether there are exceptional circumstances which require an extension to be
granted so as not to impair the very essence of the right of access to the
Court. I shall take each of these
in turn.
(i) Is
Article 6 ECHR applicable?
53. In his written submission, Advocate Benest
contended that this case did not involve the determination of a civil right. However, shortly before the hearing his
researches disclosed the case of Ortenberg v Austria (1994) 19 EHRR
524. That case involved a third
party appeal against the issue of planning permission in Austria. Before the European Court of Human Rights
the appellant argued that the procedures before the Austrian courts on her
appeal against the grant of planning permission had not complied with Article
6.
54. She brought her appeal under both ‘public
law’ grounds (such as environmental concerns etc) and ‘private
law’ grounds (in order to prevent any infringement of her pecuniary
rights). The Austrian government
contended that Article 6 was not applicable on the basis that a right of
objection to the grant of planning permission to a neighbour was essentially a
public law right. It was designed
to ensure compliance with legal provisions, in particular those for the
protection of the environment and it concerned the relationship between a
public authority and an individual; it did not directly affect the owner of the
adjacent land and thus did not involve determination of a ‘civil
right’.
55. The Court rejected this submission and held
that determination of a ‘civil right’ was involved so that Article
6(1) was engaged. It expressed its
conclusions as follows:-
“28. The Court points out
that Article 6(1) applies where the subject-matter of an action is
‘pecuniary’ in nature and is founded on an alleged infringement of
rights which are likewise pecuniary or where its outcome is ‘decisive for
private rights and obligations’. It notes that Section 46(2) of the
Building Regulations Act of the ‘Land’ of Upper Austria expressly
provides that neighbours may object to the granting of planning permission by
complaining that their personal rights will be infringed, which may ‘be
derived from either private law (private law objections) or public law (public
law objections)’. In this instance the applicant relied on public law and
alleged that the provisions of Section 23(2) of the aforementioned Act had not
been complied with. In so doing, she nonetheless wished to avoid any
infringement of her pecuniary rights, because she considered that the works on
the land adjoining her property would jeopardise her enjoyment of it and would
reduce its market value. Having regard to the close link between the
proceedings brought by Mrs Ortenberg and the consequences of their outcome for
her property, the right in question was a ‘civil’ one. Accordingly,
Article 6(1) applies.”
56. That decision was followed in an English case
to which Advocate Benest has also referred us, namely R (Friends Provident
Life Office) v Secretary of State for the Environment, Transport and the
Regions [2002] 1 WLR 1450. In
that case the third party objector (Friends Provident) to the grant of a
planning permission sought judicial review of the refusal of the Secretary of
State to call in the determination so that it could be considered by an
independent inspector at a public enquiry. The question arose as to whether Article
6 ECHR applied to the matter. Having considered the decision in Ortenberg
Forbes J, at paragraph 69 of his judgment, accepted as correct the submission
of counsel for Friends Provident which he described in the following terms:-
“68. It was Mr
Katkowski’s contention that there was no difference in principle between
Friends Provident’s position and that of Mrs Ortenberg. He submitted that Friends Provident
‘civil right’ was its right of property in Castle Mall and, in
making its objection to Lend Lease’s planning application, Friends
Provident was seeking to protect its enjoyment of that property and its market
value – not from the effects of noise or other physical nuisance, but
from the effect of competition. Mr Katkowski submitted that it is clear that
the right in question is a ‘civil right’ within Article 6 and that,
just as there was in Ortenberg’s case, there is a ‘close
link’ between the outcome of Friends Provident’s objections to Lend
Lease’s planning application and the impact such an outcome will have on
Friends Provident’s right of property in Castle Mall (i.e. its value will
be protected if planning permission is refused and it will be diminished if
permission is granted), which also shows that Friends Provident’s civil
rights will be directly affected by the determination of Lend Lease’s
planning application.”
57. In the light of these two authorities, Advocate
Benest conceded that, on the particular facts of this case, Article 6 was
engaged because the appeal will involve the determination of Mrs Herold’s
civil right by reference to the fact that, if the development were to proceed,
it would be likely to affect the market value of her property. However, he emphasised that this would
not necessarily be the case with every third party objection to a planning
application and every case would have to be considered on its individual facts.
58. It follows that I must turn to the second
question posed above.
(ii) Are
there exceptional circumstances to justify an extension of time?
59. Advocate Benest argues that I should not in my
discretion grant an extension of time.
He submits that this case is not exceptional. Mrs Herold was fully aware of the date on
which the 14 days would expire and the importance of keeping to it. She had ascertained the date in advance
and duly instructed the Viscount’s office to serve the Notice of Appeal. The difficulty was that she had left it
to the last day. That was the
operative cause of the failure to serve within the time limit because it
transpired that the Minister was out of the Island. There was no reason why she could not
have instructed the Viscount’s office a day earlier in which event there
would have been no problem. She had
not acted ‘timeously’ as required by Pomiechowski.
60. I have carefully considered Advocate
Benest’s submissions but have come to the clear conclusion that I should
grant the extension. I would
summarise my reasons as follows:-
(i)
14 days is
not a long time to consider the reasons for the grant of a planning permission
and to formulate any grounds of appeal. As Lord Neuberger states at paragraph 81
in Mucelli, the shortness of a time limit makes it particularly likely
that formalities of instituting the appeal will occur towards the last minute. I do not consider that this means that
the proposed appellant has not acted ‘timeously’. In context, this word in my judgment
means that she has done all she can to bring the appeal within the prescribed
time limit. That she did by
instructing the Viscount’s office in sufficient time to allow service on
the last day of the period. Clearly
the longer the time limit, the more difficult it will be for an appellant to
persuade a court that he has acted timeously.
(ii) The difficulty was that the Minister was not in
the Island and the Viscount’s Department informed Mrs Herold’s
grandson, in response to his question, that service of the notice of appeal
could only be effected on the Minister.
(iii) That is in fact incorrect. RCR 5/9 provides as follows:-
“5/9 Personal Service on the
States, a Minister or an administration of the States
Personal service of a document on
the States, a Minister or an administration of the States may, in cases where
provision is not otherwise made by any enactment, be effected by serving it in
accordance with Rule 5/7 on the Greffier of the States.”
There was no reason why the Viscount could
not have served the notice of appeal that day on the Greffier of the States.
(iv) It would seem that there was a second
alternative in that, under Article 27(2) of the States of Jersey Law 2005,
the Chief Minister may ‘personally discharge the functions of that
Minister’ where a Minister is temporarily absent. It would seem therefore that service
could also have been effected on the Chief Minister. Unfortunately the Viscount’s
Department did not suggest either of these alternatives to Mrs Herold and, not
surprisingly, she herself was not aware of them.
(v) In all the circumstances, given that she did
all that she reasonably could to ensure service of the notice of appeal within
the time period by giving instructions to the Viscount’s office in good
time on the last day, that the failure to do so arose out of the absence of the
Minister from the Island, that the Viscount’s Department could in fact
have validly served the notice of appeal that day on the Greffier or the Chief
Minister, that the period for appeal was only 14 days and that the service was
effected only one day late, I consider that this is an exceptional case, that
Mrs Herold acted timeously and that to refuse her an extension would impair the
very essence of her right of access for an appeal to this Court so as to breach
her Article 6 rights.
61. I therefore dismiss this appeal. The effect is that the extension of time
granted by the Master remains and the appeal may proceed. It will however be clear that the law and
the nature of the discretion which I have found to exist are very different
from that described by the Master. I
should emphasise however that none of the cases which I have relied upon were
cited to the Master. Before him,
all parties conceded that the applicable principles were either the
mandatory/directory distinction or the principle in Soneji. It is therefore not surprising that he
proceeded on the erroneous basis that that was the correct position.
Authorities
Herold-v-Planning
and Environment [2013] JRC 200A.
Planning and Building (Jersey) Law
2002.
Royal Court Rules 2004.
R v Soneji [2006] 1
AC 340.
Arbaugh v Island Development
Committee [1966] JJ 593.
Island Planning Law 1964.
Burnett
v the Minister for Planning and Environment [2010] JRC 143B.
Stuart-Smith v Minister for Planning
and Environment. Unpublished 22 Sept 2008.
Canivet Webber Financial Services
Limited v Guernsey Financial Services Commission [2007–08] GLR 221.
Jones
v AG [2000] JLR 103.
Loi (1864) Réglant la
Procédure Criminelle.
AG
v Da Silva [2008] JLR N 12.
Re
Dégrèvement Burby [2008] JLR N 49.
Mucelli v Government of
Albania [2009] 1 WLR 276.
Extradition Act 2003.
London and Clydeside
Estates Limited v Aberdeen District Council [1980] 1 WLR 182.
Wang v Commissioner of Inland
Revenues [1994] 1 WLR 1286.
Society Promoting Environmental
Conservation v Canada (Attorney General) (2003) 228 DLR (4th) 693.
Carr v States of Guernsey Housing
Authority (15th August 2012).
Housing (Control of Occupation)
(Guernsey) Law 1994.
Pomiechowski v District
Court of Legnica, Poland [2012] 1 WLR 1604.
Human Rights Act 1998.
Tolstoy Miloslavsky v
United Kingdom (1995) 20 EHRR 442.
Adesina v Nursing
and Midwifery Council [2013] 1 WLR 3156.
Human Rights (Jersey) Law 2000.
Ortenberg v Austria (1994) 19 EHRR
524.
R (Friends
Provident Life Office) v Secretary of State for the Environment, Transport and
the Regions [2002] 1 WLR 1450.
States of Jersey Law 2005.
The Rule of Law, Lord Bingham.