Planning - application to appeal out of time
[2020]JRC232
Royal Court
(Samedi)
4 November 2020
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Before :
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Advocate Matthew John Thompson, Master of
the Royal Court
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Between
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Simon John Richardson
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Appellant
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And
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The Minister for the Environment
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Respondent
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And
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Michael James
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Applicant
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The Appellant appeared in person
Advocate G. G. P. White for Respondent.
The Applicant appeared in person.
CONTENTS
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Paras
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1.
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Introduction
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1
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2.
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Background
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2-22
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3.
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Submissions
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23-43
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4.
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Decision
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44-60
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5.
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The exercise of discretion
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61-71
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judgment
the MASTER:
Introduction
1.
This
judgment contains my decision in respect of an application by Simon John
Richardson (“Mr Richardson”) who wishes to appeal a grant of
planning permission made to Mr Michael James (“Mr James”) by the
Minister for the Environment (“The Minister”).
Background
2.
The
planning permission relates to a property known as La Plata, 24 Midvale Road,
St Helier (“La Plata”).
La Plata is owned by Mr James.
Mr Richardson is the owner of the adjourning property at 22 Midvale
Road, St Helier (“No.22”).
3.
On 23rd
January, 2020, through his architects, Mr James applied to develop La Plata to
create three flats. Previously La
Plata was a lodging house. Part of
the application involved demolishing two single story flat roof structures at
the back of the property, and replacing them with a single story extension,
with a reduced footprint. Part of
the extension contained a first floor balcony. A smaller second balcony was also
proposed for the second floor again at the rear of the property. The railings at the front of La Plata
had listed status.
4.
On 9th
March, 2020, Mr Richardson filed a letter of objection to the application to
develop La Plata.
5.
His letter
stated:-
“I believe that
realization of the plans published online would negatively impact my property
in the following way:-
·
Significant
loss of light and overbearing impact to the rear of my property;
·
The
extensions, elevated terrace, external stairs and balcony would result in a
substantial loss of privacy; and
·
Would
significantly increase potential for noise nuisance.
It is also my view that any
further expansion of the neighbouring property would constitute overdevelopment
of an already densely populated plot.”
6.
The letter
also asked that Mr Richardson be kept informed of any progression of or
amendments to this application.
7.
I observe
that Mr Richardson appeared to have received assurances from planning officials
that he would be kept informed because, in his written submissions in support
of his application, he stated:-
“That he had been assured
that he would be kept informed of any decisions or developments with respect to
the planning application.”
8.
On 22nd
June, 2020, an assessment by an officer for the Minister was published online. The recommendation contained the
following:-
“The proposal is
considered to be a high quality of design and uses the existing building to
form the majority of the three units.
The application seeks to remove the unsympathetic extensions to the
rear, replaces them with one single storey extension, which is more in keeping
and proportionate to the existing building, whilst reducing the overall mass.
The additions and details seek
to convert a dated property into 3 contemporary units, whilst restoring the
garden to create a pleasant amenity space for all occupants.
The proposed development is not
considered to cause unreasonable harm to the amenities of neighbouring
users. Whilst one objection has
been received with concerns relating to neighbour impact, a privacy screen and
opaque balustrading will be conditioned for the second floor balcony to limit
the view of nay occupier. On
balance given the town location and existing context, the impact is considered
acceptable.
The proposed extension is
single storey, so does not constitute overbearing of loss of light. The balconies however will have more of
an impact, but given they are set back behind the full height of the north-west
section of neighbouring building, the impact is considered acceptable.
The surrounding urban context
does facilitate existing mutual overlooking and La Plata has first and second
floor windows of neighbouring properties overlooking the existing rear outdoor
space. On balance, the proposed
balconies in their recessed position do not cause any further harm to what
already exists.”
9.
On 24th
June, 2020, planning permission was granted to Mr James to develop La Plata. It is not clear who made the decision
from the papers provided to me.
10. However, the decision was not published on the
Planning Register. Nor, contrary to
the assurances given to Mr Richardson, was he notified of the outcome.
11. According to Mr James, development started at
La Plata on Monday, 27th July, 2020. including works to the rear of
La Plata which were overlooked by No.22.
This was after expiry of the 28 day period contained in Article 19(8) of
the Planning and Building (Jersey) Law 2002 (“the Planning
Law”) which prohibits development from starting in the case of third
party appeals until 28 days after planning permission is granted.
12. In his written submissions Mr Richardson set
out that he had made contact with the planning department on 6th
August, 2020, by phone and by email.
He further explained that his call was returned on Monday the following
week (10th August 2020) leading to a meeting with Mr Le Gresley the
director of the Development Control at No.22 on 12th August,
2020. Mr Le Gresley then emailed Mr
Richardson on 13th August 2020 setting out the following:-
“As previously stated,
the department failed to notify you of the outcome of the above planning
application and also failed to publish the decision on the Planning Register in
good time. We accept that this was
a serious omission which has had the result of leaving you unaware of the decision
and unable to appeal the department’s approval of the application, which
must be made within 28 days of the decision.
I have now visited both your
property and the development site.
My conclusion on the planning issues is that the matter can be resolved
with a modification to the planning approval, to require a privacy screen to be
erected at a height of 1.7 metres at first floor level, to block any direct
view into your property and rear garden.
I acknowledge that you do not agree that this is sufficient.
As discussed, I have asked my
staff to prepare the papers for this modification, but not to serve them on the
developer until I return from holiday on 25th August, 2020.
In the case of an appeal
against the department’s approval, you may wish to explore with the
Judicial Greffier whether it is still possible to appeal at this late stage,
given that it was the department’s omission which led to you missing the
deadline. I cannot say what the
Greffier’s response will be, other than it will be completely independent
from the department. If the
Greffier considers that it is appropriate to hear the appeal ‘out of
time’, the department would not oppose the point. This is slightly unchartered territory
for us, because other previous requests to appeal ‘out of time’
have been when the appellant was at fault, not the department.”
13. Mr Le Gresley therefore modified the planning
decision by issue of a modified decision on 25th August 2020. The reasons for his decision contained
the following:-
“The Department’s
failure to notify the objector (Mr S. Richardson) of the decision to approve
planning application P/2020/0083 resulting in the objector missing the appeal
deadline, along with the failure to publish the decision on the Planning
Register in good time, has been recognised by the Director of Planning as a
significant omission within the planning process.
However, it has been concluded
that the planning issues raised can be resolved with a modification to the
planning approval, to require a privacy screen to be erected to a height of
1.7m to the south-east end of the first floor balcony and part of the access
stair, to block any direct view into the adjoining property to the south-east.
The applicant has agreed to the
additional privacy screens and the applicant’s architect has amended the
drawings to reflect the changes required.
An anomaly in Condition 5 will also be corrected within this
modification process.
Under Article 27 of the
Planning and Building (Jersey) Law 2002, the applicant will be compensated for
the cost of the additional privacy screen required. However, the agent has agreed to charge
no fee for the amended drawings.”
14. Condition 5 of the modified decision notice
therefore stated as follows:-
“No part of the
development hereby approved shall be occupied until the balcony and part of the
access stair on the North East elevation at the first floor level, is fitted
with an obscured privacy screen along the South-East side, to a height of
1700mm above finished floor level.
Once constructed, the screen shall be maintained as such
thereafter.”
15. The original decision did not contain any
conditions in respect of the balcony at the first floor level. It did require a privacy screen at the
second floor. The modified decision
also contained certain minor modifications in respect of the second floor
privacy screen. The modified
decision notice is dated 1st September 2020 which is when it was
published on the Planning Register. The original planning decision was
published on the Planning Register on 11th August 2020.
16. On 21st August 2020, Mr Richardson
filed a notice of appeal seeking to appeal the grant of planning permission on
24th June 2020 out of time.
This notice of appeal was passed to me to deal with because I had dealt
with a similar application in Guest v Minister for Planning &
Environment [2017] JRC 069.
However, I was not working until 1st September 2020 due to
being on leave.
17. On 2nd September 2020, I emailed the
Law Officers’ Department asking for confirmation of the Minister’s
position in relation to Mr Richardson’s appeal. This was because Mr Richardson had
indicated that the Minister did not intend to oppose his application to appeal
out of time. I also asked for
contact details of Mr James so I could inform him of Mr Richardson’s
application and allow him the opportunity to indicate whether or not he objected
to Mr Richardson appealing out of time.
18. On 9th September 2020 I was provided
with Mr James’ details. I
therefore emailed Mr James on 10th September 2020. He replied on 16th September
2020 objecting to Mr Richardson being allowed to appeal out of time.
19. By an Act of Court dated 28th
September 2020, I therefore issued directions for the filing of submissions by
Mr Richardson and Mr James for which I am grateful.
20. In doing so I drew the attention of Mr
Richardson and Mr James to my decision in Guest. In Guest I firstly ruled that the
Judicial Greffier had power to extend time notwithstanding the express time for
third party appeals contained in Article 112(3) of the Planning Law.
21. In Guest I also set out two further
questions on the assumption that I did possess power on behalf of the Judicial
Greffier to extend time. Those
questions were as follows:-
(i)
Whether the
appeal involved determination of a civil right for the purposes of Article 6 of
the European Convention on Human Rights; and
(ii) If the appeal did involve determination of a
civil right, how the power should be exercised.
22. Finally, I should add that it was common ground
that Mr Richardson was a third party appellant as defined in Article 108(4) of
the Planning Law because he had made a written representation as referred to
above and because his property was within 50 metres of La Plata because it was
the adjoining property.
Submissions
23. Mr Richardson made the following submissions. The sole reason for the application being
made out of time was the fault of the planning department which was admitted. Exceptional circumstances therefore
clearly existed because Mr Richardson was blameless for being unaware that time
was running.
24. In his written submissions Mr Richardson
summarised his objections to the property as follows:-
“• the
first floor balcony extends 3.4 metres beyond the existing east facing wall
adjoining my property;
• the proposed
first floor balcony would sit at a height of c.10-12 ft. above our garden and
be an unreasonable invasion of privacy;
• the proposed
first floor balcony would provide a direct view into my daughter’s
bedroom (screening would not entirely prevent individuals from looking into the
room, and, whilst I understand that complete privacy cannot be achieved in all
areas of my property, I believe that the particular opportunity this element of
the plan provides does constitute a serious violation of intimate privacy; in
any case, a screen would have an impact on our existing, non-intrusive view of
the surrounding area) – 2020-10-02 Approved Plans [TAB4/16] (numbered on
page as 15);
• the balconies
significantly increase potential for noise nuisance (as a small party could be
easily held on 19.2m2 balcony);
• a 19.2m2
balcony on the first floor is not in keeping with a Victorian terrace house and
is, in fact, larger than any existing or proposed room within the property (to
my knowledge, it is considerably larger than any balcony in the area);
• the balcony on
the second floor would be a further invasion of my family’s privacy and
have a negative impact what little sunlight we currently have in our small
garden.”
25. He emphasised in particular that the first-floor
balcony extended far beyond his building.
26. He also contended that all the occupiers of
numbers 20 to 26 had enjoyed privacy in their gardens prior to the grant of
planning permission for La Plata.
27. He emphasised that La Plata was a listed
building. He therefore argued that
the assessment by the Historical Environment Team did not consider the rear of
the property.
28. Finally, he argued that the strength of his
case was irrelevant to the question of whether or not he should be permitted to
appeal out of time.
29. Mr James in response made the following
observations.
30. He put Mr Richardson to proof as to whether or
not Mr Richardson had acted timeously in bringing his application out of
time. This was because Mr James was
not aware of when Mr Richardson had first approached the Judicial Greffier and
the chronology referred to above, leading to my communication to him of 10th
September 2020.
31. In relation to Mr Richardson’s objection
filed on 9th March 2020, his response was that given the proximity and
the nature of the surrounding buildings, all properties in the area suffer a
degree of being overlooked in a densely populated area.
32. He also emphasised that Mr Richardson’s
objections had been dealt with by the planning officer and in the planning
permission.
33. He contended that the work started at the
property on Monday, 27th July 2020 and therefore queried why Mr
Richardson did not contact the planning department until the following week.
34. He also emphasised paragraph 51 of the decision
in Herold v Minister for Planning and Environment [2014] JRC 020 which I
had applied in Guest.
35. In this case he argued there was no economic
loss suffered by Mr Richardson attributable to the grant of planning
permission. He emphasised that Mr
Richardson did not live in the Green Zone and was not losing any view leading
to any loss in value to No.22.
36. He also contended that the key question I had
to consider was the one I formulated in Guest, namely whether Mr
Richardson’s right to enjoy No.22 had been affected by the grant of
planning permission.
37. Mr James emphasised that there was no evidence
before me to show that the grant of permission would affect Mr
Richardson’s property rights to an unreasonable level which was the
threshold set out in Policy GD1 of the revised Island Plan 2011.
38. This led Mr James to contend that whatever
prejudice Mr Richardson was claiming to suffer was either already present, did
not exist, or, if it did exist, was not unreasonable in a planning context.
39. To the extent it was necessary for a discretion
to be exercised, Mr James emphasised the strictness of the approach of the
English Courts where the courts had rejected applications for an extension of
time on the basis that the circumstances were not exceptional (summarised in Gupta v General Medical Council [2020] EWHC 38
(admin) at paragraphs 46 and 47).
40. Finally, he emphasised that the fact that Mr
Richardson was a litigant in person did not assist him citing Barton v
Wright Hassell IIP [2018] WLR 2043 (applied in Powell v Chambers
[2018] JRC 169 at paragraphs 85 and 86).
41. He also contended that if the extension of time
was granted, this would cause significant prejudice to Mr James because the
economic loss of any grant of permission outweighed any prejudice which might
be caused to the appellant.
42. In respect of specific issues of prejudice Mr
James observed as follows:-
(i)
There was
no evidence that the balconies had any overbearing impact on the property. It was pertinent that no other
neighbours had objected to these balconies.
(ii) The balcony only extended 90 centimetres past
the end of the existing rear wall of No.22.
(iii) At the time the application there were first
floor windows at the rear of La Plata overlooking the rear of No.22. There were also windows in other
properties that looked directly into Mr Richardson’s garden. There was therefore no material impact
on the level of privacy experienced by Mr Richardson.
(iv) The modification requiring obscured glass
privacy shielded the bedroom on the first floor to the rear of No.22.
(v) He disputed that the balconies significantly
increased the potential for noise nuisance in a built up area.
(vi) The Historical Environment Team did not have
any objection to the balconies.
(vii) The smaller balcony on the second floor was set
back and would have very little detrimental effect on the privacy of No.22.
(viii) The fact that No.22 was a listed building was
irrelevant.
43. Finally, both parties provided me with various
photographs which I have considered in reaching my decision.
Decision
44. The starting point for my decision is Herold
and the second and third questions formulated by Sir Michael Birt at paragraph
51 which I applied in Guest as follows:-
“…(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.”
45. In Guest at paragraph 46 in deciding whether
a planning application affects a civil right to use property I stated as
follows:-
“46. The question of whether a planning application
affects a civil right to use property was considered in R (Friends Provident
Life Office) v Secretary of State for the Environment, Transport and the
Regions and Others [2002] 1 W.L.R. 1450 (the “Friends Provident”)
decision. The Friends Provident
decision was cited in part in Herold where paragraph 68 setting out
counsel’s submissions in the Friends Provident case was recorded. I regard it as helpful to also set out
paragraph 69 of the Friends Provident decision which states as follows:-
“69 I accept that these
submissions by Mr Katkowski are correct. In my view, the link between Friends
Provident's objections to the planning application and the consequences of the
outcome of those objections for Friends Provident's right of property in Castle
Mall (see above) is as close as that in Mrs Ortenberg's case, if not closer.
Furthermore, in my opinion, the council's decision-making in relation to
Friends Provident's objection will, for the reasons given, directly affect
Friends Provident's right to use, enjoy and own Castle Mall. Furthermore, as I
have already indicated, in the light of the decision of the House of Lords in R
(Alconbury Developments Ltd) v Secretary of State for the Environment,
Transport and the Regions [2001] 2 WLR 1389, I am of the view that there is no
reason in principle, in an appropriate case, why the scope of article 6 should
not extend to the administrative decision-making process relating to a third
party's objection to the grant of planning permission, provided it directly
affects that third party's civil rights. I am satisfied that this is such an
appropriate case. As previously stated, the relevant “civil” right
is Friends Provident's right of property in Castle Mall, i e its right to use,
enjoy and own Castle Mall. For the reasons already given, it is clear that
Friends Provident's right of property in Castle Mall will be directly affected
by the decision-making process relating to Friends Provident's objections to
Lend Lease's planning application. Accordingly, I am satisfied that, in the
circumstances of this case (and I stress that I am concerned only with the
facts and circumstances of this particular case), article 6 is engaged and I
reject the submissions of Mr Straker and Mr Pugh-Smith to the
contrary.””
46. I then continued at paragraphs 47 and 48 as
follows:-
“47. The question that I consider arises is whether the
grant of planning permission in favour of Mr and Mrs Philip directly effects Mr
Guest’s “right to use, enjoy and own” Le Bourg Farm.
48. It
is clear from Herold that not every third party planning appeal will mean that
the civic right of the appellant is engaged. In Herold itself it was conceded that
Mrs Herold’s civic rights were engaged. A case clearly on the other side of the
line is St Ouen v The Minister for Planning and Environment [2014] JRC 043 at
paragraphs 79 to 81.”
47. The question in the present case is therefore
whether the granting of planning permission in favour of Mr James directly affects
Mr Richardson’s right to use, enjoy and own No.22.
48. Insofar as Mr Richardson complains about loss
of privacy this was considered in Winchester v
Minister for Planning and Environment [2014] JRC 118 where at paragraph
29 Commissioner Clyde-Smith stated as follows:-
“29. As to the loss of light and privacy, it is clear that
the new building will harm the amenities of No 9 but the issue is whether, in
the context of the Built-up Area, that harm is “serious”. We have considerable sympathy for Mr
Winchester and his family in that being on the very western end of the close,
they have enjoyed almost complete privacy and uninterrupted light. The problem is that their property is in
the Built-up Area and they have to accept the potential loss of light and
privacy that goes with any property in the Built-up Area. Whether or not the harm here is serious
is finely balanced – hence the split decision of the Panel, but in the
end, the majority concluded that it was not serious and in our view, that
decision was neither mistaken nor unreasonable.”
49. La Plata is right in the heart of St
Helier. It is therefore very much
subject to paragraph 3 of Policy GD1 of the Island Plan 2011 as revised which
sets out relevant general development considerations. Paragraph 3 states:-
“That any development
proposals be permitted unless the proposed development “does not
reasonably harm the amenities and neighbouring views including the living
conditions for nearby residents in particular
a) not unreasonably affect the
level of privacy to buildings and land that owners and occupiers might expect
to enjoy.””
50. It is not therefore every interference with privacy
in a built-up area that will lead to loss of a civil right because the Island
Plan itself contemplates that there will be a degree of interference with
privacy in respect of adjourning properties. Rather what is required is a level of
unreasonableness before a modification to privacy enjoyed by owners of property
will lead to planning permission being refused for an adjourning property.
51. In the present case, prior to the development,
the windows on the first floor to the rear of the Property did overlook No.22. However, they were much smaller in scale
than a 19 square metre balcony and were 2.4 metres further back than the
balustrade of the proposed first floor balcony. While I cannot determine whether No.22
was already overlooked through these windows, any invasion of privacy of Mr.
Richardson was much more limited in scope. The same applies to any view of the rear
courtyard of No.22 from windows in the properties across the road (if one
exists at all) which are much further away than a view from the proposed
balcony.
52. The original planning permission did not
provide for any privacy screens in respect of the balcony to the rear of La
Plata. This balcony is the closest
to No.22. This is because the only
modification was in respect of the second-floor balcony and did not consider
the impact of the first floor balcony, which is much larger in scale and closer
to the garden of No.22. The
original decision had not therefore considered the question of privacy being
disturbed from the first-floor balcony.
53. However, the original decision was modified by
the modification to the planning permission dated 1st September,
2020, requiring a privacy screen to a height of 1.7 metres between La Plata and
No. 2. Although the privacy screen
does not prevent anyone standing at the end of the balcony looking into the
rear of No.22, such a screen does restrict any view from rooms inside La Plata
with windows looking onto the balcony.
54. As I noted in Guest at paragraph 15,
there appears from the Island Plan to be a distinction between owners and
occupiers of properties in a built-up area and owners and occupiers of property
in the Green Zone. It is not
therefore every modification of privacy by the grant of planning permission in a
built-up area that will lead to a civic right being infringed. It all depends on the degree to which a
neighbour’s privacy may have been affected. In that regard it should be remembered
that anyone with property within 50 metres of the land where planning
permission is sought has a right to appeal if they make representation. If an owner of a property at the limit
of that distance, say 49 metres, felt that their privacy had been infringed,
there would have to be a substantial infringement for their enjoyment of the
property to be affected and therefore a civic right engaged. A minor modification to privacy rights
would not affect that enjoyment.
55. In the case of Mr Richardson, the position is
different. His property is
immediately alongside and adjourns La Plata. At present the only view from La Plata
into the rear of Mr Richardson’s property is from two single windows, one
of which is on the far side of La Plata and the other which is set back. By contrast, the prposed
first-floor balcony extends out 90 centimetres beyond the rear wall of Mr Richardson’s
property and 2.4 metres from the closest original windows. The permission granted for the front of
the balcony is also for plain glass only rather than any form of privacy glass
and the front is only 110 centimetres in height.
56. Although Mr James was of the view that the
privacy glass required by the modified planning permission would restrict any
view at all into the rear of No.22, I am not able to reach a conclusion whether
that submission is correct and it is not appropriate for me to do so. Partly, I do not have the evidence to do
so; partly I would be usurping the functions of the inspector and the Minister
were I to reach such a conclusion.
Such a conclusion might require a site visit as well as detailed
drawings showing lines of sight from the proposed balcony to the rear of Mr
Richardson’s property as well as an analysis of views into No.22 from
other neighbouring properties. It
is at least arguable that the privacy glass does not address Mr
Richardson’s concerns. It is
also arguable that his enjoyment of part of his property has been affected
because the courtyard to the rear of No.22 is overlooked in a material way by a
balcony when there was previously no such balcony and otherwise the rear
courtyard was a private area. I
therefore consider that Mr Richardson’s civic right is engaged.
57. In respect of his other concerns, namely the
fact that persons on the balcony can look into the bedroom window on the first
floor to the rear of Mr Richardson’s property, this is less of an issue
of concern. This is because of the
modified decision which requires frosted glass and a privacy screen. It would only be by standing next to the
frosted glass to look over it deliberately could an individual partially see
through the window. Anyone inside
La Plata or on the balcony, because of the privacy screen or where they were
standing could not otherwise see through the window. The window is also visible from other
houses albeit they are further away.
I do not therefore consider that the creation of the balcony with
privacy glass amounts to an unreasonable invasion of privacy in respect of the
first-floor bedroom window given the very limited way in which someone could
gain partial site through the first-floor window. Had this been the only complaint, I would
have concluded that a civic right was not engaged.
58. It
is also right to record that Mr James had no difficulty with the privacy glass
being higher, say 1.9 metres which would address the very limited concern about
the bedroom window. Obviously, such
an increase in height would require the approval of the Minister but I record
this offer because it was made expressly by Mr James during the hearing.
59. In respect of the balcony on the second floor,
this is a finely balanced issue.
This balcony is much smaller in scale and contains obscure glass on the
front and the sides. However,
individuals standing on the balcony may also be able to look into the rear of
No.22 and so it is at least arguable that Mr. Richardson’s privacy has
been infringed to an unreasonable degree from that enjoyed at present. As with the first-floor balcony, more
analysis is required.
60. I have referred to the balconies because Mr
Richardson in argument confirmed that his main concern was the view from the
balconies. He was not otherwise
opposed to the principle of the development of La Plata. In light of this confirmation, his other
grounds of concern fall away. The
listed status of the railings of the front of La Plata is also not relevant to
Mr Richardson’s concerns about the balconies, because they are to the
rear of La Plata.
The exercise of discretion
61. Having determined that Mr Richardson’s
civic rights have been affected by the grant of planning permission in respect
of his enjoyment of No.22, I now have to consider whether there are exceptional
circumstances that exist to justify time being extended.
62. In this case, Mr Richardson was blameless
because he had received assurance from the planning department on behalf of the
Minister that they would let Mr Richardson know when the decision was made and
they did not do so. They also did
not publish the decision. The
question for me to evaluate is whether Mr Richardson acted timeously once he
became aware that planning permission had been granted. In Herold, Sir Michael Birt at
paragraph 60(i) in respect of what is meant by timeously stated:-
“In context, this word in my
judgment means that [a person] has done all [they] can to bring the appeal
within the prescribed time limit.”
63. Mr James explained that the development works
started on 27th July 2020.
Mr Richardson said he did not appreciate until 5th August
2020, when diggers attended to carry out excavation works on site, that what
was occurring was development works and therefore that planning permission must
have been granted. He then
immediately contacted the planning department the next day. Initially he was told by a planning
officer that nothing could be done.
It was therefore only on 13th August 2020, that he was made
aware that it was possible to appeal out of time by Mr Le Gresley. The notice of appeal as set out above
was then filed on 21st August 2020. The notice of appeal was therefore filed
within 25 days of works commencing at La Plata (the position most favourable to
Mr. James) and within 8 days of Mr Richardson becoming aware that he had a
right of appeal. For the sake of
completeness, I should add that the notice of appeal was filed within 10 days
of the original planning decision being published.
64. I do not therefore consider this is a case of
Mr Richardson leaving matters to the last minute. The fact that the recommendation of the
planning officer was published is not relevant to the exercise of discretion. A recommendation is just that; it does
not mean that planning permission will be granted. The 28-day time limit only starts to run
from the grant of planning permission not from any recommendation. Nor does a recommendation give any
indication as to when a decision might be made and published.
65. Mr James emphasised the prejudice that would be
caused to him by allowing an appeal out of time because he had waited for the 28-day
requirement and had then committed to the cost of borrowing in order to fund
the development. He candidly
explained that the borrowing he incurred to both acquire the property and the
development costs had to be repaid by July 2021. An appeal would therefore cause him
significant pressure for what was already a tight timetable. This is because the effect of any appeal
would mean he would have to stop development pursuant to Article 117(2) of the
Planning Law. As against these
concerns, some of the financial difficulties Mr James faces are due to the
length of time it took to obtain planning permission following his acquisition
of La Plata. Any appeal would add
to those difficulties rather than being the sole cause of them.
66. In Mr James case, the application of Article
117(2) is particularly harsh when Mr Richardson’s objections are in
substance to the permission granted in respect of the balconies rather than the
development as a whole. However,
Article 117(2) applies to all third party appeals even if the focus is on a
particular aspect of a planning decision.
67. This case is further complicated because both
Mr Richardson and Mr James are in the present situation through no fault of
their own. Mr Richardson was
awaiting the notification from the planning department not knowing that
permission had been granted. Mr
James awaited 28 days before committing to the development because the planning
law required him to do so. He was
also not aware that Mr Richardson had not been notified or that an assurance
had been given that Mr Richardson would be notified.
68. In relation to the discretion I have to
exercise, the focus of that discretion by reference to Herold and the
English authorities referred to in that case and in Gupta at paragraphs
46 and 47 appears to be the reasons why the appeal was not brought in
time. That is the primary focus of
the exercise of discretion rather than weighing in the balance the competing
prejudices Mr Richardson and Mr James would suffer depending on my decision.
69. The conclusion I have reached therefore is that
Mr Richardson has made an appeal out of time due to exceptional circumstances
because he is not to blame for the planning department’s failure to
publish its original planning decision and to notify him of the same as the
planning department had stated it would.
70. It has not been easy to reach this decision and
I have every sympathy for Mr James.
I therefore hope that the Minister and if necessary with input from the
Attorney General to whom I am sending a copy of this judgment can find a way to
allow Mr James to continue with any part of his development unaffected by Mr
Richardson’s appeal, if Mr James elects to do so. Whether this is by grant of a further
planning permission or by some form of waiver of the requirement contained in
Article 117(2) based on the facts of this case is a matter for the Minister and
the Attorney General but I hope the position can be looked at sympathetically.
71. Finally, I cannot leave this case without
observing that the problem the parties have faced has arisen due to the time
limit being within 28 days of the date of the decision without any express
requirement to notify anyone (even an applicant) that a decision has been
made. If the practice of the
planning department for the Minister is to provide notification to anyone who
files objections to the grant of planning permission so that rights of appeal
can be exercised, then perhaps consideration should be given to amending the
time limits contained in Article 112 of the Planning Law to reflect the
practice of the Minister. I observe
that for appeals to the Royal Court on points of law, Article 116(3) contains
an obligation on the Minister to give notice in writing of the determination “as
soon as practicable” after it is made. Yet there is no equivalent provision for
the grant of planning permission. In making these observations, I accept that
decisions are for the most part published online but that still leaves it to an
interested party to find out what has happened rather than the decision maker
being required to inform affected parties of a decision.
Authorities
Planning and Building (Jersey) Law
2002.
Guest
v Minister for Planning & Environment
[2017] JRC 069.
Herold
v Minister for Planning and Environment
[2014] JRC 020.
Gupta v General Medical Council
[2020] EWHC 38 (admin).
Barton v Wright Hassell IIP [2018]
WLR 2043.
Winchester v Minister for Planning
and Environment [2014] JRC 118