Planning and
Building (Jersey) Law 2002[1]
A LAW to provide the means to
establish a plan for the sustainable development of land and to control
development in accordance with that plan, to prescribe the functional
requirements of buildings and to provide the means to enforce those
requirements, to provide the means to protect, enhance, conserve and to use
wisely the natural beauties, natural resources and biodiversity of Jersey and
to preserve and improve Jersey’s general amenities, to confer powers to
acquire land for the purposes of the Law, and to make other provisions in
similar respects.
Commencement
[see endnotes]
PART 1
PRELIMINARY
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“advertisement” has
the meaning given to that expression by Article 75(1);
“breach of development controls”
has the meaning given to that expression by Article 39;
“building”
includes –
(a) a
structure or erection of any material and constructed in any manner;
(b) a
part of a building; and
(c) the
inside of a building including its internal services;
“Building Bye-laws”
means Building Bye-laws made by the Minister in accordance with
Article 30;
“building operation”
includes –
(a) a
rebuilding operation;
(b) a
structural alteration of a building including its services;
(c) a
structural addition to a building including an addition to its services;
(d) an
operation similar to an operation referred to in sub-paragraph (a), (b) or
(c); and
(e) the
demolition or removal of the whole or any part of a building including its
services;
“building permission”
means permission to undertake prescribed building work;
“building work”
means work the carrying out of which amounts to development or a change of use
that amounts to development;
“caravan” has the
meaning given to that expression by Article 98;
“Chief Officer” –
(a) means
the person appointed from time to time as the chief executive officer (or
equivalent) of the administration of the States responsible for planning and
building; and
(b) when
referred to in relation to the exercise of any function under this Law,
includes any officer of that administration designated by the Chief Officer as
carrying out that function;
“completion notice”
means a notice served in accordance with Article 26(2);
“condition” includes
a limitation, restriction or requirement;
“condition notice”
means a notice served in accordance with Article 47;
“contravention”, in
relation to a condition, limitation, restriction or requirement,
includes –
(a) to
fail to comply with the condition, limitation, restriction or requirement; and
(b) to
cause or permit another person to contravene or to fail to comply with the
condition, limitation, restriction or requirement;
“dangerous building notice”
means a notice served in accordance with Article 66(2);
“develop” has the
meaning given to that expression by Article 5 and “development” shall be construed
accordingly;
“Development Order”
means an Order made by the Minister under Article 8(1);
“enforcement notice”
means a notice served in accordance with Article 40(2) and where the
notice has been amended in accordance with Article 42 means the notice as
so amended;
“highway authority”,
in relation to a road that is repairable at the expense of the States or a
Parish, means –
(a) the
Minister for Infrastructure in relation to a main road;
(b) the
Roads Committee of the Parish in which the road is situated in relation to a
by-road;
“Island Plan” means
the Island Plan approved for the time being by the States;
“land” means a
corporeal hereditament, and includes –
(a) a building;
(b) land
covered with water including sea water within the outermost limits of the
territorial sea of the Island; and
(c) in
relation to the acquisition of land by the States under Article 119, an
interest in land or water and a servitude or right in, on or over land or
water;
“land condition notice”
has the meaning given to that expression by Article 83(1);
“list”, in respect
of a list to be maintained by the Minister by virtue of this Law, means a list
kept in any form determined by the Minister so long as the contents of the list
may be easily retrieved in legible form;
“List of Sites of Special
Interest” has the meaning given to that expression by
Article 50;
“List of Protected Trees”
has the meaning given to that expression by Article 57;
“means of access”
includes any means of access, whether private or public, for vehicles or
animals, or for pedestrians;
“Minister” means the Minister for the Environment;
“notice” means
written notice;
“owner”
includes –
(a) a
usufructuary;
(b) the
husband of a feme covert;
(c) the
guardian of an infant;
(d) a
delegate appointed, under Part 4 of the Capacity and Self-Determination
(Jersey) Law 2016[2], in relation to a person;
and
(e) any
other legal personal representative of a person;
“Planning Committee” means the body exercising functions
conferred under Article 9A;
“planning obligation”
means an obligation entered into in accordance with Article 25;
“planning permission”
means permission to develop land granted –
(a) by
the Minister by a Development Order or on an application made in accordance
with Article 9;
(b) under
the Island Planning (Jersey) Law 1964[3]; or
(c) under
a Law repealed by that Law;
“prescribed building work”
means building work for which permission is required under the Building
Bye-laws;
“register”, in
respect of a register to be maintained by the Minister by virtue of this Law,
means a register kept in any form determined by the Minister so long as the
contents of the register may be easily retrieved in legible form;
“Register of Building Applications”
means the register maintained by the Minister in accordance with
Article 38(1);
“Register of Dangerous Building
Notices” means the register maintained by the Minister in
accordance with Article 74(1);
“Register of Development Notices”
means the register maintained by the Minister in accordance with
Article 49(1);
“Register of Land Condition
Notices” means the register maintained by the Minister in
accordance with Article 97(1);
“Register of Planning
Applications” means the register maintained by the Minister in
accordance with Article 29(1);
“Register of Planning Obligations”
means the register maintained by the Minister in accordance with
Article 25(13);
“road” means
a –
(a) road;
(b) bridge;
(c) viaduct;
or
(d) subway,
and includes its carriageway, footpath and any other part of it;
“site notice” means
a notice displayed in accordance with Article 45(9);
“stop notice” means
a notice served in accordance with Article 45(2);
“tree” has the
meaning given to that expression by Article 57.[4]
(2) A
reference in this Law to a person being guilty of an offence includes a person
who aids, abets, counsels or procures the commission of the offence and such a
person shall be liable to be dealt with, tried and punished as a principal
offender.
(3) A
reference in this Law to a Chapter of a Part by number only and without further
identification is a reference to the Chapter of that number in that Part.
2 Purposes
of Law
(1) The
purpose of this Law is to conserve, protect and improve Jersey’s natural
beauty, natural resources and general amenities, its character, and its
physical and natural environments.
(2) Accordingly
it is the intention of this Law –
(a) to
ensure that when land is developed the development is in accordance with a
development plan that provides for the orderly, comprehensive and sustainable
development of land in a manner that best serves the interests of the
community;
(b) to
protect sites, buildings, structures, trees and places that have a special
importance or value to Jersey;
(c) to
provide for the orderly management of transport and travel, both on, and from
and to Jersey;
(d) to
ensure that the coast of Jersey is kept in its natural state;
(e) to
control advertisements in Jersey; and
(f) to
impose other necessary controls on the development and use of land in Jersey.
(3) In
paragraph (1) the reference to –
(a) the
natural resources of Jersey includes its biodiversity; and
(b) the
natural environment of Jersey includes the natural environment around Jersey.
(4) It
is also the purpose of this Law to secure the health, safety and welfare of
people in or about buildings by establishing functional requirements in respect
of buildings and ensuring that buildings comply with those requirements.
PART 2
THE ISLAND PLAN
3 Minister
to prepare a draft Island Plan[5]
(1) The
Minister shall prepare and present to the States for approval a draft Island
Plan.[6]
(2) Thereafter
the Minister shall present a draft revision of the Island Plan to the States
for approval within 10 years of the approval of the Plan by the States or of
the previous approval by the States of a draft revision of the Island Plan.[7]
(3) In
preparing a draft Island Plan or a revision of the Island Plan the Minister
shall publicize the Minister’s proposals and seek representations from
the public.[8]
(4) The
Minister shall by Order prescribe the manner in which –
(a) the
Minister’s proposals in respect of a draft Island Plan or a draft
revision of the Island Plan shall be publicized; and
(b) representations
may be provided by members of the public.[9]
(5) The
Order must prescribe the manner in which representations may be heard in
public.
(6) The
Minister shall consider representation the Minister has received when preparing
a draft Island Plan or a draft revision of the Island Plan for approval by the
States.[10]
4 Form
of draft Island Plan[11]
(1) A
draft Island Plan shall be in 2 Parts.[12]
(2) Part
1 shall be a written statement of the Minister’s policies in respect of
the development and use of land together with a reasoned justification of each
of those policies.
(3) Those
policies must –
(a) further
the purpose referred to in Article 2(1) and the intention referred to in
Article 2(2); and
(b) in
so doing, designate land for particular development or use.
(4) That
designation may include designating land to be used to provide residential
accommodation, whether it be accommodation for renting or accommodation for
purchase, for persons who would otherwise have financial difficulties renting
or acquiring residential accommodation in the general market for residential
accommodation prevailing in Jersey.
(5) Part
2 of a draft Island Plan shall consist of –
(a) a
map or maps that illustrate the Minister’s proposals for the development
or use of land on a geographical basis; and
(b) such
additional diagrams, illustrations and other descriptive explanatory matter as
the Minister considers necessary to explain and illustrate the Minister’s
proposals.[13]
4A Procedure
for and following lodging of draft Island Plan[14]
(1) A
draft Island Plan cannot be debated by the States unless it has been lodged for
a minimum period of 12 weeks.
(2) An
amendment to a draft Island Plan cannot be debated by the States unless it has
been lodged for a minimum period of 8 weeks.
(3) An
amendment to an amendment to a draft Island Plan cannot be debated by the
States unless it has been lodged for a minimum period of 6 weeks.
(4) Paragraph (2)
or (3) does not apply to an amendment lodged by the Minister if the States
agree that the amendment may be debated forthwith or on a day or at a time approved
by the States.
(5) The
Minister may publicize a lodged amendment to a draft Island Plan and seek
representations from the public on it.
(6) This
Article applies to a draft revision of an Island Plan as it applies to a draft
Island Plan, and references in it to a draft Island Plan shall be construed
accordingly.
(7) In
this Article –
‘amendment’ includes (except in paragraphs (2) and (3))
an amendment to an amendment;
‘draft Island Plan’ means a Plan prepared by the
Minister in accordance with Article 3 and lodged by the Minister;
‘lodged’ means lodged au Greffe.
PART 3
PLANNING CONTROL
Chapter 1 - Develop defined
5 Meaning
of “develop”
(1) Except
as provided by paragraph (5), in this Law “develop”, in
respect of land, means –
(a) to
undertake a building, engineering, mining or other operation in, on, over or
under the land;
(b) to
make a material change in the use of the land or a building on the land.
(2) Without
prejudice to the generality of paragraph (1), “develop”, in
respect of land, includes –
(a) to
demolish or remove the whole or any part of a building on the land;
(b) to
create a new means of access to the land from a road;
(c) to
enlarge an existing means of access to the land from a road;
(d) to
remove a hedgerow or banque or other physical feature defining a boundary of
the land or of any part of it;
(e) to
use a building on the land previously used as a single dwelling-house as 2 or
more separate dwelling-houses;
(f) to
use 2 or more premises on the land (whether they are in separate buildings or
are parts of the same building) previously used as separate dwelling-houses as
a single dwelling-house;
(g) to
use a building or part of a building on the land previously used as a
dwelling-house for short term holiday lettings;
(h) to
create a time sharing scheme in respect of a building on the land, being a
scheme whereby a person is granted a right entitling the person to occupy the
building or a part of it for a specified period each year while the right
subsists;
(i) to
display an advertisement on a part of a building on the land not normally used
for that purpose;
(j) to
deposit refuse or waste material on the land except to the extent set out in
paragraph (3).
(3) Unless
paragraph (4) applies, the deposit of refuse or waste material on land
already lawfully used for that purpose is not development of that land unless
the deposit of that refuse or waste material means that –
(a) the
height of the refuse or waste material on the land exceeds the level of the
adjoining land; or
(b) the
superficial area of the land covered by the refuse or waste material deposited
on it is extended.
(4) The
deposit of refuse or waste material on land lawfully used for that purpose
becomes development of that land if the Chief Officer serves notice on the
owner of the land declaring that any further use of the land for the deposit of
refuse or waste material will constitute development of the land for the
purposes of this Law.[15]
(5) In
this Law “develop” does not include –
(a) an
operation carried out within the boundaries of a road by the highway authority
to maintain or improve the road; or
(b) an
operation carried out by a public or parochial authority to lay, place,
inspect, repair or renew a sewer, a main, an underground line or cable, or any
other underground apparatus.
Chapter 2 - Guidelines
6 Minister
may publish guidelines, etc.
(1) The
Minister may publish guidelines and policies in respect of –
(a) development
generally;
(b) any
class of development;
(c) the
development of any area of land; or
(d) the
development of a specified site.
(2) Before
doing so the Minister shall consult any Minister or statutory authority with an
interest in the development.
(3) The
Minister shall take into account when considering an application for permission
to develop land the extent to which the proposed development complies with any
relevant guidelines and other policies he or she has published.
(4) In
publishing guidelines and policies under paragraph (1)(c), the
Minister –
(a) may
designate a particular area or type of area as an area of archaeological
potential; and
(b) may
impose restrictions on development within such an area (whether by reference to
a particular area or to a type of development, or otherwise).[16]
Chapter 3 - Application of
planning controls
7 Land
not to be developed without permission
(1) A
person who develops land except with, and in accordance with, planning
permission shall be guilty of an offence and liable to a fine.[17]
(2) A
person shall be guilty of an offence under paragraph (1) if when
undertaking development the person contravenes any condition subject to which
planning permission for the development was granted.
(3) In
determining the amount of any fine to be imposed on a person convicted of an
offence under this Article, the court shall in particular have regard to any
financial benefit which has accrued or appears likely to accrue or could have
accrued to the person in consequence of the offence.
(4) A
person may be convicted of an offence under this Article despite the fact
that –
(a) an
enforcement notice or a condition notice has been served in respect of the
breach of development controls; and
(b) every
step required by the notice to be taken has been taken.
8 Development
Orders
(1) The
Minister may by Order (a “Development Order”) grant planning
permission in respect of a class or classes of development specified in the
Order.
(2) A
Development Order shall not be used to grant planning permission for
development that would be inconsistent with the Island Plan.
(3) A
Development Order may be made either –
(a) as
a General Development Order applicable to all land in Jersey, except so far as
the Order otherwise provides; or
(b) as
a Special Development Order applicable only to such land or description of land
as is specified in the Order.
(4) Planning
permission granted by a Development Order may be granted unconditionally or
subject to conditions specified in the Order.
(5) If
planning permission is granted by a Development Order to erect, extend or alter
a class of buildings specified in the Order the Order may require that the
approval of the Minister shall first be obtained with respect to the design or
external appearance of those buildings.
(6) A
Development Order may enable the Minister to direct that planning permission
for a class of development specified in the Order shall not apply –
(a) in
a particular area of Jersey;
(b) in
respect of a specified class of building or land; or
(c) to
a specified development site.
(7) A
Development Order may make different provisions with respect to different
descriptions of land or different areas of the Island (including different
areas, or parts of areas, of land of the same description).[18]
(8) If
part of the development of land is approved by a Development Order and part on
an application made to the Minister, the Minister may on granting the latter
consent cancel or modify the planning permission granted by the Development
Order.
9 Applications
for planning permission not granted by a Development Order[19]
(1) A
person who requires planning permission not granted by a Development Order must
apply to the Chief Officer for it.[20]
(2) The
application must –
(a) be
in the required form; and
(b) contain
or be accompanied by –
(i) such particulars
as may reasonably be required to determine the application, and
(ii) the matters
mentioned in paragraph (3).[21]
(3) The
application must be accompanied by –
(a) the prescribed fee; and
(b) if the applicant is not
the owner of the land to be developed, a certificate by the owner of the land
certifying that the owner approves the application being made.
(4) Where –
(a) paragraph (3)(b)
applies in respect of a proposed application; and
(b) the owner of the land
refuses or is unable, for any reason, to certify his or her approval of the
application being made,
the application may nevertheless be accepted for consideration if
the Minister is satisfied that to do so would be in the public interest.[22]
(5) Following
receipt of an application duly made under this Article, the Chief Officer may –
(a) determine
the application; or
(b) refer
the application to the Planning Committee for determination by that Committee.[23]
(6) The
Chief Officer or, as the case may be, the Committee may require the applicant
to provide such further particulars as may reasonably be required to determine
the application.[24]
(7) If
the applicant fails to provide those particulars within a reasonable time, the
application may be refused and upon such a refusal no obligation to refund the
prescribed fee shall arise.[25]
9A Role
of Planning Committee[26]
(1) Functions
under any of the provisions listed in paragraph (2) may be carried out
wholly or partly by a Planning Committee established in accordance with
standing orders under Article 48(1) of the States of Jersey
Law 2005[27].[28]
(1A) Functions shall
be allocated to the Planning Committee by agreement between the Chief Officer
and that Committee, and in default of such agreement, the Minister shall
determine which functions shall be so allocated.[29]
(2) The
provisions mentioned in paragraph (1) are –
(a) in
Part 3, Articles 19 to 23, 26 and 27;
(b) in
Part 5, Articles 40, 42 and 45; and
(c) Orders
made under Articles 76 and 81.
(3) A
Planning Committee holding a meeting for the purpose of carrying out any of its
functions under this Article shall –
(a) permit
members of the public to attend the meeting; and
(b) cause
to be published in the Jersey Gazette, at least 5 days prior to the date
of any such meeting, a notice inviting the public to attend and
specifying –
(i) the date of the
meeting and the time and place at which it is to be held, and
(ii) the applications
for planning permission or (as the case may be) decisions to be considered at
the meeting.[30]
(4) Subject
to paragraph (3), the Minister may by Order prescribe procedures to be
followed by the Planning Committee under this Law.[31]
(5) Except
as otherwise provided by or under this Article, the Planning Committee shall
determine its own procedure.[32]
(6) The
Planning Committee shall, within the period of 3 months following the end
of a year, report to the States –
(a) the
number of decisions made by the Committee under this Law during that year;
(b) the
number of appeals made during that year against decisions made by the Committee
under this Law;
(c) the
Committee’s assessment of planning policy and any recommendations it has
for its revision.[33]
(7) Where,
under paragraph (6)(c), the Planning Committee makes recommendations about
planning policy, the Minister shall present to the States his or her response
to the recommendations.[34]
10 False
information, etc. in application for planning permission
(1) If
when making an application for planning permission a person knowingly or
recklessly makes a false or misleading statement or representation or a
statement or representation with a material omission the person shall be guilty
of an offence and liable to imprisonment for a term of 2 years and a fine.[35]
(2) If
a person has made such a statement or representation and planning permission
has been granted (whether wholly or partly as a consequence of that statement
or representation), the Chief Officer may –
(a) revoke
or modify the permission; and
(b) if
the development has been started or undertaken, serve a notice in accordance
with paragraph (3) on the owner of the land to which the permission
relates,
and for these purposes it does not matter whether or not proceedings
have been taken in respect of an offence under paragraph (1).[36]
(3) The
notice may require the owner of the land, within a period specified in the
notice –
(a) to
undertake work specified in the notice to restore the land to its condition
before the development was undertaken; or
(b) to
modify the development to the extent specified in the notice.
(4) The
work to be undertaken may include –
(a) the
demolition or alteration of the whole or any part of a building; or
(b) the
discontinuance of a use of land.
(5) [37]
(6) A
person who –
(a) fails
to comply with a notice served on the person in accordance with
paragraph (2)(b); or
(b) uses
land in contravention of the notice,
shall be guilty of an offence and liable to a fine of level 3 on the
standard scale.
(7) If
at the end of the period for compliance specified in a notice under
paragraph (2)(b), work required by the notice to be undertaken has not
been undertaken, the Minister may enter the land and undertake the work.
(8) The
expenses reasonably incurred by the Minister in undertaking work in accordance
with paragraph (7) shall be recoverable as a debt due to the Minister from
the person in default.
(9) The
Minister may undertake work in accordance with paragraph (7) whether or
not proceedings have been taken under paragraph (6).
(10) Action
taken by the Minister or the Chief Officer under this Article does not give any
person the right to claim compensation in respect of any loss or damage the person
may suffer as a result of the action.[38]
11 Manner
in which application for planning permission is to be publicized[39]
(1) The
Minister shall by Order prescribe the manner in which –
(a) an
application for planning permission shall be publicized or otherwise notified;
and
(b) representations
may be provided by members of the public.
(2) For
the purpose of paragraph (1) an application for planning permission shall
be taken to include any environmental impact statement relating to the
application prepared and provided in accordance with Article 13.
(3) No
decision shall be taken on an application for planning permission unless the
application has been publicized or notified in the prescribed manner, and the
applicant may be required to provide evidence of such publication or
notification.[40]
(4) In
determining the application there shall be taken into account any
representations provided by members of the public in the prescribed manner.[41]
(5) [42]
(6) [43]
12 Public
inquiries
(1) This
Article applies in respect of an application for planning permission where the
Minister is satisfied that if the proposed development were to be carried
out –
(a) the
development would be likely to have a significant effect on the interests of
the whole or a substantial part of the population of Jersey; or
(b) the
development would be a departure (other than an insubstantial one) from the
Island Plan.
(2) Where
this Article applies –
(a) the
Minister, and only the Minister, shall determine the application; and
(b) the
Minister shall not do so unless and until a public inquiry has been held
concerning the application.[44]
(3) The
Minister shall take into account in determining the application representations
made at the public inquiry.
(4) The
Minister shall by Order prescribe the manner in which a public inquiry shall be
held.
(5) The
Order shall, in particular, prescribe –
(a) the
manner in which notice of the inquiry shall be given;
(b) the
procedure to be followed at an inquiry; and
(c) the
persons who may appear and be heard at an inquiry.
(6) A
person aggrieved by a determination by the Minister under this Article may
appeal against the determination to the Royal Court only on a point of law (and
for the avoidance of doubt, no appeal arises under Part 7).[45]
(7) An
appeal under paragraph (6) must be made within the period of 28 days
beginning with the date of the determination.[46]
(8) On
hearing the appeal the Royal Court may –
(a) confirm the
determination of the Minister wholly or in part;
(b) quash the determination
of the Minister wholly or in part;
(c) remit the
determination, wholly or in part, to the Minister to be retaken.[47]
(9) In
paragraph (6), a “person aggrieved” means –
(a) where the Minister
determines that planning permission should be granted, the applicant for
planning permission and any third party;
(b) where the Minister
determines –
(i) that conditions
should be attached to a grant of planning permission, or
(ii) that planning
permission should be refused,
the applicant for
planning permission,
and for the purposes of sub-paragraph (a), “third
party” has the same meaning as is given to that expression by
Article 108(4).[48]
(10) The
power to make rules of court under Article 13 of the Royal Court (Jersey)
Law 1948[49] shall include the power to
make rules regulating practice and procedure in relation to appeals under
paragraph (6).[50]
13 Environmental
impact of proposed development
(1) This
Article applies in respect of an application for planning
permission –
(a) to
carry out development that falls within a class of development prescribed for
the purpose of this sub-paragraph; or
(b) where
the Minister is satisfied that if the proposed development were to be carried
out it would be likely to have a significant effect on the environment of
Jersey or elsewhere.
(2) Where
this Article applies, the application shall not be determined until the
applicant has provided such an environmental impact statement as may be
prescribed, and the statement shall be taken into account in the determination
of the application.[51]
(3) [52]
(4) The
Minister shall by Order prescribe for the purpose of paragraph (1)(a)
classes of development in respect of which an environmental impact statement is
required.
(5) The
Order shall also prescribe –
(a) the
particulars an environmental impact statement must contain;
(b) the
qualifications of the people by whom those particulars are to be provided;
(c) the
form an environmental impact statement is to take; and
(d) such
other matters as the Minister considers relevant to the preparation and
provision of an environmental impact statement.
14 Development
of concern to highway authority
(1) This
Article applies in respect of an application for planning
permission –
(a) where
the proposed development involves the creation of a new means of access or the
enlargement of an existing means of access to a road; or
(b) where
it appears that if the development were to be undertaken it might create a
problem specified in paragraph (2).[53]
(2) Those
problems are that the development of the land might –
(a) be
a source or cause of danger to people using or entering a road bordering the
land;
(b) have
a significant effect on the volume or type of traffic using the roads leading
to and from or in the vicinity of the development;
(c) involve
an increase in the cost of undertaking any improvement of a road bordering the
land; or
(d) hinder
the improvement of a road bordering the land which the highway authority
intends to improve.[54]
(3) Where
this Article applies, the application shall not be determined until the highway
authority (if any) in respect of the road has been consulted, and any comment
by the authority shall be taken into account in the determination of the
application.[55]
(4) [56]
15 Development
of concern to the Minister for Economic Development, Tourism, Sport and Culture[57]
(1) This
Article applies in respect of an application for planning permission to develop
land within an area shown on a map provided by the Minister for Economic
Development, Tourism, Sport and Culture for the purpose of this Article.[58]
(2) Where
this Article applies, the application shall be referred to the Minister for
Economic Development, Tourism, Sport and Culture for comment, and any comment
made by that Minister in respect of the possible effect of the proposed
development on the operation of a harbour or of the airport shall be taken into
account in the determination of the application.[59]
(3) [60]
16 Development
of concern to the Minister for Infrastructure[61]
(1) This
Article applies in respect of an application for planning permission for
development that falls within an area of responsibility or concern of the
Minister for Infrastructure.[62]
(2) Where
this Article applies, the application shall be referred to the Minister for Infrastructure
for comment, and any comment made by that Minister in respect of any of the
matters specified in paragraph (4) shall be taken into account in the
determination of the application.[63]
(3) [64]
(4) Those
matters are –
(a) the
sufficiency of any sewerage or drainage system, flood defence work or water
course that may be affected by the development, the prevention of damage to it,
and any hindrance to its repair or maintenance;
(b) the
limitation of damage by surface water that could be caused by the development;
(c) the
effect of the development on water quality (including sea water quality).
17 Development
of concern to any Minister, etc.
(1) This
Article applies in respect of an application for planning permission for
development –
(a) that
falls within the area of responsibility or concern of any Minister (other than
a Minister referred to in Article 15(1) and 16(1)) or a body or person created
by statute; or
(b) that
is development of a type or class, or within an area of the Island, in respect
of which a body or person created by statute has informed the Minister that it
has an interest or concern.
(2) Where
this Article applies, the application shall be referred to the relevant
Minister, body or person and any comment made by the Minister, body or person
shall be taken into account in the determination of the application.[65]
(3) [66]
18 [67]
19 Grant
of planning permission
(1) All
material considerations shall be taken into account in the determination of an
application for planning permission.[68]
(2) In
general planning permission shall be granted if the development proposed in the
application is in accordance with the Island Plan.[69]
(3) Despite
paragraph (2), planning permission may be granted where the proposed
development is inconsistent with the Island Plan, if the Planning Committee is
satisfied that there is sufficient justification for doing so.[70]
(4) Planning
permission may be granted –
(a) in
detail or in outline only; and
(b) unconditionally
or subject to conditions which must be specified in the grant of permission.[71]
(5) Planning
permission may be refused.[72]
(6) In
the case of outline planning permission granted under paragraph (4)(a) –
(a) matters
may be reserved for further approval; and
(b) where
such matters are reserved, the permission shall specify a period of time within
which an application for approval in relation to such matters must be made (and
the provisions of this Part, except paragraph (4)(a) and this paragraph,
shall apply in relation to that application).[73]
(7) A
decision taken under this Article does not give any person the right to claim
compensation in respect of any loss or damage which the person may suffer as a
result of that decision.[74]
(8) Where
representations have been duly made by any person in relation to any
application for planning permission, a decision to grant such permission under
this Article shall not have effect during the period of 28 days immediately
after the decision is made.[75]
20 Application
for planning permission for development already undertaken
(1) This
Article applies where development has been undertaken –
(a) without
planning permission; or
(b) without
complying with a condition subject to which planning permission was granted.
(2) Where
this Article applies a person may apply to the Chief Officer, in the required
form and manner, for planning permission or for an amendment to the permission
already granted.[76]
(2A) Following
receipt of an application under paragraph (2), the Chief Officer may –
(a) determine
the application; or
(b) refer
the application to the Planning Committee for determination by that Committee.[77]
(3) Where
this Article applies by virtue of paragraph (1)(a), planning permission
may be granted in the terms sought by the application (and such grant shall
have effect from the date when the development was undertaken) or it may be
refused.[78]
(4) Where
this Article applies by virtue of paragraph (1)(b), a condition of
planning permission already granted may be amended in the terms sought by the
application or otherwise (and such amendment shall have effect from the date
when the development was undertaken) or the application may be refused.[79]
(5) A
decision taken under this Article does not give any person the right to claim
compensation in respect of any loss or damage which the person may suffer as a
result of that decision.[80]
21 Variation
etc. of conditions subject to which planning permission was granted[81]
(1) This
Article applies where a person would like a condition of planning permission
removed or varied.
(2) Where
this Article applies a person may apply to the Chief Officer, in the required
form and words together with such fee as may be prescribed, for the permission
to be amended accordingly.[82]
(3) Following
receipt of an application under paragraph (2), the Chief Officer
may –
(a) determine
the application; or
(b) refer
the application to the Planning Committee for determination by that Committee.[83]
(4) A
condition may be removed or varied in the manner sought by the application, or
the application may be refused.[84]
(5) A
decision taken under this Article does not give any person the right to claim
compensation in respect of any loss or damage the person may suffer as a result
of that decision.[85]
21A Time limits for
determinations[86]
(1) The
Minister may prescribe a time limit for the determination of –
(a) an
application for planning permission, under Article 19;
(b) an
application for planning permission for development already undertaken, under
Article 20; and
(c) an
application to remove or vary a condition of planning permission, under
Article 21.
(2) If
an application of a kind mentioned in paragraph (1) is not determined
within the limit prescribed under that paragraph, the applicant may make a
request to the Chief Officer that the application be determined no later than
the end of –
(a) the
period of 28 days; or
(b) such
other period as may be agreed
beginning with the date of the request (“the extension period”).[87]
(3) If,
following a request made in accordance with paragraph (2), there is a
failure to determine the application within the extension period, such failure
shall be deemed to be a refusal of the application in question for the purposes
of an appeal under Part 7 (but where no such appeal is lodged, nothing in
this Article prevents the determination of the application after the expiration
of the extension period).
22 Reasons
to be given for certain decisions[88]
(1) This
Article applies where a decision is taken –
(a) to
refuse to grant planning permission;
(b) to
grant planning permission whether in detail or in outline, and whether subject
to conditions or not; or
(c) to
grant planning permission for development that is inconsistent with the Island
Plan.[89]
(2) Where
this Article applies, full reasons for the decision shall be given to the
applicant in writing by the decision-maker.[90]
(3) In
this Article, “decision-maker” means the Minister, the Chief
Officer or, as the case may be, the Planning Committee.[91]
22A Review of certain
decisions[92]
(1) This
Article applies where a decision is taken by the Chief Officer–
(a) to
refuse to grant planning permission; or
(b) to
grant planning permission subject to conditions (other than by virtue of a
Development Order).[93]
(2) Where
this Article applies, the applicant may request a review of the decision in
question (the “initial decision”) by the Planning Committee.[94]
(3) A
request for review under paragraph (2) shall be submitted to the Planning
Committee no later than the end of the period of 28 days beginning with
the date of the decision and shall contain –
(a) the
applicant’s name and address for correspondence;
(b) the
reference number of the application in question; and
(c) the
grounds on which the request is made, including where relevant the reasons why
the applicant disagrees with the initial decision and with any reasons for the
initial decision.[95]
(4) The
Planning Committee shall determine the request as soon as reasonably
practicable and shall explain the reasons for its determination.[96]
(5) The
determination of the Planning Committee shall be substituted for the initial
decision and –
(a) Article 19(8)
shall apply to the determination as it applies to a decision made under that
Article; and
(b) an
appeal shall lie under Part 7 against the determination –
(i) in the case of a
refusal, or of a grant of planning permission subject to conditions, as though
it were a decision under Article 19, or
(ii) in a case
relating to a condition, as though the condition were attached or imposed under
Article 23.[97]
23 Conditions
attached to the grant of planning permission
(1) A
condition attached to the grant of planning permission (including permission
given by a Development Order) shall fairly and reasonably relate to the
proposed development.[98]
(2) In
respect of the land to be developed a condition may, in particular, relate
to –
(a) the
number or disposition of buildings on the land;
(b) the
manner in which the land shall be laid out for the purpose of the development;
(c) the
use of the land;
(d) the
occupation and use of any building on the land in so far as it serves a
planning purpose, including, in particular, the use of any building for a
purpose referred to in Article 4(4) (affordable residential
accommodation);
(e) the
undertaking, at the applicant’s cost, of archaeological or other
investigations on the land;
(f) the
preservation and planting of vegetation on the land;
(g) the
salvaging of materials from the land;
(h) the
removal from the land and disposal of spoils arising from the development;
(i) the restoration
of the land and of any vegetation on it after the development has been carried
out.
(3) A
condition may also relate to –
(a) the
dimensions, design, structure or external appearance of a building on the land,
or the materials to be used in its construction;
(b) the
period within which the development shall be begun;
(c) in
respect of the grant of planning permission in outline only, the period within
which an application must be made for approval in respect of any reserved
matter.[99]
(4) A
condition may be imposed on the grant of planning permission –
(a) to
regulate the development or use of land under the control of the developer
(whether or not it is land on which the development is to be undertaken); or
(b) to
require work to be undertaken on any such land,
in so far as it appears to be expedient for the purpose of or in
connection with the development authorized by the permission.[100]
(5) A decision
taken under this Article does not give any person the right to claim
compensation in respect of any loss or damage the person may suffer as a result
of that decision.[101]
(6) If
planning permission is granted for the erecting of a building, the permission
may specify the purpose for which the building may be used but if no purpose is
specified the permission shall be construed as including permission to use the
building for the purpose for which it is designed.[102]
24 Planning
permission attaches to land
(1) The
grant of planning permission enures (except insofar as the permission otherwise
provides) for the benefit of the land to which it relates and of each person
for the time being having an estate or interest in that land.
(2) A
condition attached to the grant of planning permission binds and is enforceable
against a person for the time being having an estate or interest in the land
subject to the condition.[103]
25 Planning
obligations
(1) The
owner of an interest in land may by agreement with the Minister, or (as the
case may be) the Chief Officer, enter into an obligation (“a planning
obligation”).[104]
(2) A
planning obligation may –
(a) restrict
the development or use of the land in a specified way;
(b) require
a specified operation or activity to be undertaken in, on, under or over the
land; or
(c) require
the land to be used in a specified way.
(3) The
agreement need not be limited to land on which development is to be undertaken
or to land in respect of which an application for planning permission has been
made.
(4) The
agreement may provide that a sum or sums of money be paid to the Treasurer of
the States on a specified date or dates or periodically.
(5) The
agreement shall –
(a) state
that the agreement is an agreement imposing a planning obligation in accordance
with this Article;
(b) identify
the person entering into the obligation;
(c) identify
the land that is the subject of the obligation; and
(d) state
the nature of the interest the person owns in that land.
(6) A
planning obligation may –
(a) be
unconditional or subject to conditions;
(b) impose
a restriction or requirement mentioned in paragraph (2) either
indefinitely or for a specified period or periods;
(c) if
it requires a sum or sums to be paid, require the payment of a specified amount
determined as specified in the agreement;
(d) if
it requires the payment of periodical sums, require them to be paid
indefinitely or for a specified period.
(7) Except
as provided by paragraph (8), a planning obligation in respect of land is
enforceable against the person who entered into the obligation and any person
who derives title to the land from that person.[105]
(8) The
agreement may provide that a person is not to be bound by the planning
obligation when the person no longer has an interest in the land that is the
subject of the obligation.[106]
(9) A
restriction or requirement under a planning obligation is enforceable by
injunction.
(10) Without
prejudice to paragraph (9), if there is a breach of a requirement in a
planning obligation to undertake an operation in, on, under or over the land to
which the obligation relates, the Minister may –
(a) enter
the land and undertake the operation; and
(b) recover
the expenses reasonably incurred by the Minister in so doing as a debt due to
the Minister from the person or persons against whom the obligation is
enforceable.
(11) The
Minister shall give not less than 28 days’ notice to the person against
whom the planning obligation is enforceable before exercising the powers under
paragraph (10)(a).
(12) A
planning obligation may be modified or discharged by agreement between the
Minister, or (as the case may be) the Chief Officer, and the person or persons
against whom the obligation is enforceable.[107]
(13) The
Minister shall maintain a register called the Register of Planning Obligations
containing details of each planning obligation.
(14) The
Minister shall make the register and any agreement imposing a planning
obligation (and any agreement modifying or discharging the obligation)
available for public inspection at all reasonable times.
(15) As soon
as practicable after a planning obligation has been entered into the Minister
shall apply to the Royal Court for an order that the obligation be registered
in the Public Registry of Contracts.
(16) As soon
as practicable after an agreement modifying or discharging a planning
obligation has been entered into the Minister shall apply to the Royal Court
for an order that the agreement be registered in the Public Registry of
Contracts.
26 Termination
of planning permission by reference to time limit[108]
(1) This
Article applies where –
(a) planning
permission has been granted subject to a condition that the development to
which the permission relates shall be begun before the expiration of a
specified period; and
(b) the
development was begun within that period but the period has elapsed without the
development having been completed.
(2) Where
this Article applies, the Chief Officer or (as the case may be) the Planning
Committee may serve a notice stating that the planning permission shall cease
to have effect upon the expiration of a further period specified in the notice.[109]
(3) The
period specified shall not be less than 12 months after the date when the
notice is served.
(4) The
notice shall be served on –
(a) the
owner of the land;
(b) the
occupier of the land (if different); and
(c) any
other person who appears likely to be affected by the notice.[110]
(5) The
notice may be withdrawn at any time before the end of the period specified in
it.[111]
(6) If
the notice is withdrawn, each person on whom it was served under
paragraph (4) shall immediately be notified of the withdrawal.[112]
(7) The
planning permission referred to in the notice shall become invalid at the
expiration of the period specified in the notice except to the extent that it relates
to development undertaken under the permission before the expiration of that
period.
(8) A
decision taken under this Article does not give any person the right to claim
compensation in respect of any loss or damage the person may suffer as a result
of that decision.[113]
27 Revocation
and modification of planning permission
(1) Planning
permission to undertake a building or other operation on land may be revoked or
modified at any time before the building or operation has been completed.[114]
(2) Planning
permission to change the use of land may be revoked or modified at any time
before the change of use has been completed.[115]
(3) The
Chief Officer or (as the case may be) the Planning Committee shall serve notice
of any revocation or modification of planning permission on the owner and (if
different) the occupier of the land.[116]
(4) The
revocation or modification of planning permission shall not affect that
permission insofar as it relates to development undertaken under it before the
revocation or modification.
(5) [117]
(6) Following
revocation or modification of planning permission under this Article, compensation
is payable to a person with an interest in the land who –
(a) has
incurred expenditure in undertaking work that is rendered abortive by the
revocation or modification; or
(b) has
otherwise sustained loss or damage that is directly attributable to the
revocation or modification.[118]
(6A) The loss or
damage mentioned in paragraph (6)(b) does not include the loss of any profit a
person might have made by virtue of the planning permission had it not been
revoked or modified.[119]
(7) The
amount of compensation shall be an agreed amount or, failing agreement, an
amount determined by arbitration.
(8) Except
as provided by paragraph (9), compensation is not payable in respect
of –
(a) work
undertaken before the grant of the planning permission; or
(b) loss
or damage arising out of anything done or omitted to be done before the grant
of that permission.
(9) Expenditure
incurred to prepare plans for the purposes of the work referred to in
paragraph (6) or on other similar work preparatory to the development
shall be taken to be included in the expenditure incurred in undertaking the
work referred to in that paragraph.
(10) Except
as provided by paragraph (5), a decision taken under this Article does not
give any other person the right to claim compensation in respect of any loss or
damage the person may suffer as a result of that decision.[120]
28 Certificate
of completion[121]
(1) The
Chief Officer may issue a certificate stating that a development of land
specified in the certificate has been undertaken with and in accordance with
planning permission duly granted.[122]
(2) The
certificate shall be conclusive evidence that the development of land specified
in it was undertaken with and in accordance with planning permission duly granted.[123]
(3) An
application for a certificate may be made by any person on payment of any
prescribed fee.
29 Minister
to keep register of applications for planning permission
(1) The
Minister shall maintain a register, called the Register of Planning
Applications, containing details of each application for planning permission
the Minister receives and the manner in which it was dealt with.
(2) The
Minister shall make the register available for public inspection at all
reasonable hours.
PART 4
BUILDING CONTROLS
Chapter 1 - Building Bye-laws
30 Minister
to make Building Bye-laws
(1) The
Minister shall make Building Bye-laws.
(2) In
preparing the Building Bye-laws or a revision of them the Minister shall
publicize the Minister’s proposals and seek comments and input from the
public.
(3) The
Minister shall by Order prescribe –
(a) the
manner in which the Minister’s proposals in respect of the Building
Bye-laws shall be publicized;
(b) the
manner in which the Minister shall seek representations in respect of those
proposals and the manner in which the Minister shall consider them; and
(c) the
manner in which representations may be made by members of the public in respect
of the Minister’s proposals.
(4) Building
Bye-laws may –
(a) provide
that functions that are required to be carried out by virtue of the Bye-laws
may be carried out by persons appointed by or in accordance with the Bye-laws;
(b) provide
for the qualification required by those persons and for the verification of
those qualifications.[124]
(5) Building
Bye-laws may create an offence punishable by a fine.[125]
31 Purposes
of Building Bye-laws
(1) Building
Bye-laws shall prescribe procedures and the functional requirements of buildings
necessary to achieve the results set out in paragraph (2).
(2) Those
results are –
(a) to
secure the health, safety and welfare of people in or about buildings;
(b) to
secure access to buildings and the convenient use of buildings by people with
disabilities;
(c) to
prevent the waste, undue consumption or misuse of fuel and energy in or about
buildings;
(d) to
prevent the waste, undue consumption, misuse and contamination of water in or
about buildings;
(e) to
secure the safe and efficient use of public services provided to buildings;
(f) to
promote sustainable development generally.
(3) The
Building Bye-laws shall prescribe procedures and requirements for the
construction, alteration, demolition or removal of buildings
necessary –
(a) to
secure the health, safety and welfare of people; and
(b) to
minimise the disturbance of and nuisance to people,
in or about buildings during their construction, alteration,
demolition or removal.
(4) The
Schedule shall apply in respect of Building Bye-laws.
32 Minister
may publish technical guidance documents in respect of Building Bye-laws
(1) The
Minister may publish a technical guidance document on any requirement of the
Building Bye-laws.
(2) The
document may be prepared by the Minister or may be a document prepared by
another person that has the approval of the Minister.
(3) If
it is a document prepared by another person it may be published with amendments
and additions made by the Minister.
(4) Before
publication the Minister may consult any person with an interest or concern in
respect of the relevant requirement of the Building Bye-laws.
(5) Proof
that a person has failed to comply with a technical guidance document published
in respect of a requirement of the Building Bye-laws is not proof that the
person has failed to comply with that requirement.
(6) However
in proceedings where it is alleged that a person has failed to comply with a
requirement of the Building Bye-laws –
(a) proof
of a failure to comply with a technical guidance document published by the
Minister in respect of the requirement may be relied upon as tending to
establish non-compliance with that requirement; and
(b) proof
of compliance with the document may be relied upon as tending to establish
compliance with the requirement.
Chapter 2 - Enforcement of
the Building Bye-laws
33 Prescribed
building work not to be undertaken without building permission
(1) A
person who undertakes prescribed building work except with, and in accordance
with, permission to do so granted in accordance with the Building Bye-laws
shall be guilty of an offence and liable to a fine.[126]
(2) A
person shall be guilty of an offence under paragraph (1) if when
undertaking prescribed building work the person contravenes –
(a) a
condition subject to which building permission to undertake that building work
was granted; or
(b) an
applicable provision of the Building Bye-laws.
(3) In
determining the amount of any fine to be imposed on a person convicted of an
offence under this Article, the court shall in particular have regard to any
financial benefit which has accrued or appears likely to accrue or could have
accrued to the person in consequence of the offence.
(4) A
person may be convicted of an offence under this Article despite the fact
that –
(a) an
enforcement notice or condition notice has been served in respect of the breach
of development controls; and
(b) every
step required by the notice to be taken has been taken.[127]
34 Applications
for building permission
(1) A
person who requires building permission must apply to the Chief Officer for it.[128]
(2) The
application shall –
(a) be
in the prescribed form;
(b) contain,
or be accompanied by, such particulars as may reasonably be required to
determine the application; and
(c) be
accompanied by the prescribed fee.[129]
(3) An
applicant for building permission under this Article may be required to provide
such further particulars as may reasonably be necessary to reach a decision in
respect of the application.[130]
(4) If
the applicant fails to provide within a reasonable time the particulars required
under paragraph (3), the application may be refused and upon such a
refusal no obligation to refund the prescribed fee shall arise.[131]
(5) [132]
35 Grant
of building permission[133]
(1) The
provisions of the Building Bye-laws must be taken into account in the
determination of an application for building permission.
(2) In
general building permission must be granted if the work proposed in the
application is in accordance with Building Bye-laws.
(3) Despite
paragraph (2), building permission may be granted where the proposed work
is inconsistent with Building Bye-laws, if the Chief Officer –
(a) is
satisfied that there is sufficient reason for doing so; and
(b) specifies,
in the grant of permission, which provisions of the Building Bye-laws are
disapplied.[134]
(4) Building
permission may be –
(a) granted
unconditionally, or subject to conditions which must be specified in the grant
of permission; or
(b) refused.
(5) A
decision taken under this Article does not give any person the right to claim
compensation in respect of any loss or damage the person may suffer as a result
of that decision.
36 Reasons
to be given for refusal to grant building permission[135]
Where a decision is taken to refuse building permission, full
reasons for the decision shall be given in writing.
37 Conditions
attached to the grant of building permission
(1) A
condition attached to the grant of building permission shall fairly and
reasonably relate to the proposed prescribed building work.[136]
(2) A
condition may, in particular, relate to –
(a) the
manner in which the building work is to be undertaken;
(b) the
material, equipment, fittings and accessories to be used in undertaking the
building work; and
(c) any
requirement of the Building Bye-laws applicable to the building work.
38 Minister
to keep register of applications for building permission
(1) The
Minister shall maintain a register, called the Register of Building
Applications, containing details of each application the Minister receives for
building permission and the decision made in respect of it.
(2) The
Minister shall make the register available for public inspection at all
reasonable hours.
38A Offence of
uttering false design certificate[137]
(1) A
person who is an approved Certifier of Design commits an offence if the person
knowingly or recklessly signs or issues a design certificate
containing –
(a) a
material omission; or
(b) a
statement or representation which is false in a material particular.
(2) In
paragraph (1) –
“approved Certifier of Design” means a person whose name
appears on a list published by the Minister of persons who are considered, in
accordance with a scheme approved by the Minister, to have the experience and
qualifications required to be competent to issue design certificates; and
“design certificate” means a certificate
which –
(a) certifies
that if the specified building work to which it relates is carried out in
accordance with the plans and certificates accompanying the certificate, that
work will comply with relevant requirements of Building Bye-Laws, and
(b) is
signed by an approved Certifier of Design.
(3) A
person who is guilty of an offence under this Article shall be liable to
imprisonment for 2 years and to a fine.
PART 5
ENFORCEMENT OF DEVELOPMENT CONTROLS
39 Interpretation
- breach of development controls
(1) For
the purposes of this Part there has been a breach of development controls if
there has been –
(a) a
breach of planning controls; or
(b) a
breach of building controls.
(2) There
has been a breach of planning controls if –
(a) land
has been developed without planning permission; or
(b) land
has been developed with planning permission but there has been a contravention
of a condition of that permission.
(3) Land
is to be taken to have been developed without planning permission if it is
developed otherwise than in accordance with plans of the development approved
for the purpose of granting planning permission for the development.
(4) There
has been a breach of building controls if –
(a) prescribed
building work has been undertaken without building permission; or
(b) prescribed
building work has been undertaken with building permission but there has been a
contravention of a condition of that permission or any applicable provision of
the Building Bye-laws.
(5) Prescribed
building work is to be taken to have been undertaken without building
permission if it is undertaken otherwise than in accordance with plans approved
for the purpose of granting the building permission.
40 Enforcement
notice in respect of breach of development controls[138]
(1) This
Article applies where it appears to the Chief Officer or to the Planning
Committee –
(a) that
there has been a breach of development controls during the previous 8 years;
and
(b) that
it is expedient that action should be taken to remedy the breach.[139]
(2) Where
this Article applies the Chief Officer or, as the case may be, the Planning
Committee may serve an enforcement notice on –
(a) the
owner of the land;
(b) the
occupier of the land (if different); and
(c) any
other person who appears to be causing or responsible for the breach.[140]
(3) The
notice shall specify –
(a) the
matter that appears to constitute the breach of development control;
(b) the
steps required to be taken or the activity required to cease to remedy the
breach or to make good any injury to amenity caused by the breach; and
(c) the
period within which those steps are required to have been taken or that
activity is required to have ceased.[141]
(4) Where
there has been a breach of development controls, an action or a decision taken
under this Article in respect of that breach does not give any person the right
to claim compensation in respect of any loss or damage the person may suffer as
a result of that action or decision.[142]
41 Enforcement
notice may require replacement building
(1) This
Article applies to an enforcement notice served in respect of a breach of
development control consisting of the demolition or removal of the whole or any
part of a building.
(2) Where
this Article applies the notice may require the construction of a building or
part of a building that is as similar as possible to the demolished building or
that part of the building.
(3) A
building or part of a building built in compliance with the notice –
(a) shall
be built in compliance with any requirement imposed by or under this or any
other enactment applicable to the construction and functional requirements of
buildings; and
(b) may
differ from the demolished building or the part of the building demolished in
any respect which, if the demolished building or that part of the building had
been altered in that respect, would not have required permission on an
application made in accordance with Article 9.[143]
(4) Any
necessary planning or building permission shall be taken to have been granted
to undertake work in compliance with the notice.
42 Variation
or withdrawal of enforcement notice[144]
(1) An
enforcement notice may be withdrawn.
(2) A
requirement in an enforcement notice may be relaxed or waived, and in
particular a period specified in an enforcement notice may be extended.
(3) Where
any power is exercised under paragraph (2), notice of the relaxation or
waiver shall immediately be served on each person who was served with the
enforcement notice.
(4) The
withdrawal of an enforcement notice shall not prejudice a further exercise of
the power under Article 40 to serve another such notice.
43 Minister
may execute work required by an enforcement notice
(1) If
a step required by an enforcement notice to be taken has not been taken by the
end of the period for compliance specified in the notice the Minister may enter
the land and take that step.
(2) The
Minister may recover the expenses reasonably incurred by the Minister in doing
so as a debt due to the Minister from the person who is then the owner of the
land.
44 Offence
when enforcement notice is not complied with
(1) The
owner of land to which an enforcement notice relates who –
(a) fails
to take a step within the period specified in the notice to take that step; or
(b) carries
on an activity after the period specified in the notice to cease the activity,
shall be guilty of an offence and liable to a fine.
(2) It
shall be a defence to show that all reasonable measures were taken to secure
compliance with the notice.
(3) A
person –
(a) who
has control of or an interest in the land to which an enforcement notice
relates (being a person other than the owner of the land); and
(b) who
carries on on that land an activity that is required by the notice to cease at
any time after the period specified in the notice for compliance with the
notice,
shall be guilty of an offence and liable to a fine.
(4) A
person upon whom an enforcement notice has been served as a person appearing to
be the person causing or having responsibility for the breach of development
controls who, at any time after the period specified in the notice for
compliance with the notice, carries on an activity that is required by the
notice to cease shall be guilty of an offence and liable to a fine.[145]
(5) An
offence under paragraph (1), (3) or (4) may be charged by reference to a
day or any longer period of time and a person may be convicted of a second
offence or subsequent offences under paragraph (1), (3) or (4) by
reference to any period of time following the preceding conviction for such an
offence.
(6) If –
(a) a
person charged with an offence under this Article has not been served with a
copy of the enforcement notice; and
(b) the
notice is not contained in the Register of Development Notices,
it shall be a defence to show that the person was unaware of the
existence of the notice.
(7) In
determining the amount of any fine to be imposed on a person convicted of an
offence under this Article, the court shall in particular have regard to any
financial benefit that has accrued or appears likely to accrue or could have
accrued to the person in consequence of the offence.
45 Stop
notices
(1) This
Article applies where it appears to the Chief Officer or to the Planning
Committee that there has been a breach of development controls and that it is
expedient that an activity constituting or forming part of that breach should
cease –
(a) before
an enforcement notice can be prepared and served; or
(b) before
the expiry of the period for compliance with an enforcement notice already
served in respect of the breach of development controls.[146]
(2) Where
this Article applies the Chief Officer or, as the case may be, the Planning
Committee may serve a notice requiring the activity specified in the notice to
cease immediately.[147]
(3) A
stop notice may be served on any person who appears–
(a) to
be the owner or occupier of the land on which the activity is being carried on;
or
(b) to
be engaged in the activity.[148]
(4) A
stop notice may at any time be withdrawn by a further notice served on each
person who was served with the stop notice.[149]
(5) The
withdrawal of a stop notice shall not prejudice a further exercise of the power
under paragraph (2) to serve another such notice.[150]
(6) If
a stop notice is not sooner withdrawn it ceases to have effect 7 days after its
service if –
(a) at
the time of its service an enforcement notice had not been served in respect of
the breach of development controls; and
(b) an
enforcement notice is not served within those 7 days.
(7) A
stop notice also ceases to have effect if at the time that it was served an
enforcement notice had already been served in respect of the breach of
development controls and it is withdrawn or the period for compliance specified
in it expires.
(8) A
stop notice also ceases to have effect if within 7 days after its service an
enforcement notice is served in respect of the breach of development controls
and it is withdrawn or the period for compliance specified in it expires.
(9) There
shall be displayed on land affected by a stop notice a notice stating that a
stop notice has been served in respect of the land and that a person
contravening it may be prosecuted.[151]
(10) The
notice shall specify the date when the stop notice took effect and indicate its
requirements.
(11) A person
who removes or defaces a site notice without lawful authority shall be guilty
of an offence and liable to a fine of level 2 on the standard scale.
(12) Where
there has been a breach of development controls an action or a decision taken
under this Article in respect of that breach does not give any person the right
to claim compensation in respect of any loss or damage the person may suffer as
a result of that action or decision.[152]
46 Penalty
for contravention of stop notice
(1) A
person who fails to comply with a stop notice after –
(a) the
notice has been served on the person; or
(b) a
site notice has been displayed,
shall be guilty of an offence and liable to a fine.[153]
(2) An
offence under paragraph (1) may be charged by reference to a day or any
longer period of time and a person may be convicted of a second offence or
subsequent offences under paragraph (1) by reference to any period of time
following the preceding conviction for such an offence.
(3) In
determining the amount of any fine to be imposed on a person convicted of an
offence under paragraph (1), the court shall in particular have regard to
any financial benefit which has accrued or appears likely to accrue or could
have accrued to the person in consequence of the offence.
(4) It
shall be a defence for a person accused of an offence under this Article to
prove –
(a) that
the stop notice was not served on the person; and
(b) that
the person did not know and could not reasonably have been expected to know of
its existence.
47 Enforcement
of development conditions
(1) This
Article applies where it appears to the Chief Officer that there has been a
failure to comply with a condition subject to which planning or building
permission was granted.[154]
(2) Where
this Article applies a notice may be served on –
(a) a
person who is undertaking or who undertook the development; or
(b) a
person having control of the land to which the permission relates,
requiring the person to secure compliance with the condition.[155]
(3) The
notice shall specify –
(a) the
condition to be complied with; and
(b) the
steps required to be taken, or the activities required to cease, to secure
compliance with the condition.[156]
(4) The
notice shall also specify the period allowed for compliance with the notice.
(5) A
condition notice may at any time be withdrawn by a further notice served on
each person who was served with the condition notice.[157]
(6) The
withdrawal of a condition notice shall not prejudice a further exercise of the
power under paragraph (2) to serve another such notice.[158]
(7) A
person who fails to comply with the requirements of a condition notice served
on the person shall be guilty of an offence and liable to a fine of level 3 on
the standard scale.
(8) An
offence under paragraph (7) may be charged by reference to a day or any
longer period of time and a person may be convicted of a second offence or
subsequent offences under paragraph (7) by reference to any period of time
following the preceding conviction for such an offence.
(9) It
shall be a defence for a person charged with an offence under
paragraph (7) to prove –
(a) that
the person took all reasonable measures to secure compliance with the
requirements of the condition notice; or
(b) if
the notice was served on the person by virtue of paragraph (2)(b), that
the person no longer has control of the land.
48 Injunctions
restraining breaches of development controls
(1) A
person mentioned in paragraph (1A) may apply to the Royal Court for an
injunction if it appears necessary or expedient to that person for an
injunction to be granted to prevent or restrain an actual or apprehended breach
of development controls.[159]
(1A) The persons
who may apply for an injunction under paragraph (1) are –
(a) the
Chief Officer; or
(b) in
a case where –
(i) the time limit
for any appeal has expired, or
(ii) proceedings on an
appeal in that case have been concluded,
the Minister.[160]
(2) Paragraph (1)
has effect whether or not the Chief Officer or, as the case may be, the
Minister has exercised or is proposing to exercise any other power under this
Part.[161]
(3) The
Royal Court may grant any injunction it considers appropriate to restrain the
breach.
49 Minister
to maintain Register of Development Notices
(1) The
Minister shall maintain a register, called the Register of Development Notices,
containing details of each –
(a) enforcement
notice;
(b) stop
notice; and
(c) condition
notice,
the Minister serves.
(2) The
Minister shall make the register available for inspection by the public at all
reasonable hours.
PART 6
ADDITIONAL CONTROLS
Chapter 1 - Sites of special interest
50 Interpretation
- sites of special interest
In this Chapter –
“List of Sites of Special Interest” or
“List” means the List maintained in accordance with
Article 51(1);
“site of special interest” means a building or place
included in the List of Sites of Special Interest;
“special interest”, in respect of a site of special
interest, means the special characteristics of the site that justified its
inclusion on the List of Sites of Special Interest.[162]
51 List
of Sites of Special Interest[163]
(1) The
Chief Officer shall maintain a list, called the List of Sites of Special
Interest.[164]
(2) The
List shall include each building or place that the Chief Officer is satisfied
has public importance by reason of –
(a) its
special botanical, ecological, geological, scientific or zoological interest;
or
(b) the
special archaeological, architectural, artistic, cultural or historical
interest that attaches to the building or place.[165]
(3) The
List shall, in respect of each site of special interest –
(a) specify
the site’s special interest;
(b) describe
the site either in words or by reference to a plan, or both, with sufficient
particularity to enable it to be easily identified;
(c) if
the site relates to the habitat of a wild creature or a plant, specify the type
of habitat; and
(d) specify
any activity referred to in Article 55(1) which may be undertaken on the
site without the Chief Officer’s permission.[166]
(4) The
Chief Officer shall make the List available for inspection by the public at all
reasonable hours.[167]
(5) [168]
(6) [169]
(7) [170]
52 Notice
and procedure for inclusion on, or removal from, the List of Sites of Special
Interest[171]
(1) Except
as provided by Article 53, a building or place shall not be included on or
removed from the List of Sites of Special Interest unless notice of the
inclusion or removal has been duly served in accordance with this Article.
(2) Notice
of proposed inclusion on the List –
(a) shall
be served –
(i) on the owner of
the building or place, or
(ii) (where such
service cannot be effected) by being displayed in a conspicuous position on or
near the building or place; and
(b) shall
contain a statement to the effect that a person with an interest in the
building or place to which the notice relates may, no later than 28 days
after the date of the notice, make written representations to the Chief Officer
in respect of the proposed inclusion of the building or place on the List.
(3) A
person who without lawful authority removes or defaces a notice displayed under
paragraph (2) shall be guilty of an offence and liable to a fine of
level 2 on the standard scale.
(4) In
determining whether or not to include a building or place on the
List –
(a) any
representations made in response to the notice under paragraph (2) shall
be taken into account to the extent that such representations relate to the
special interest of the building or place;
(b) where
the building or place falls within the area of responsibility or concern of any
Minister or body or person created by statute, that Minister, body or person
shall be consulted and any representations made in response to the consultation
shall be taken into account; and
(c) any
person considered to have a particular knowledge of or interest in the building
or place may be consulted and the views of that person may be taken into
account.
(5) A
further notice of the decision as to whether or not to include a building or
place on the List shall be served on the owner and (if different) the occupier
of the building or place as soon as practicable after the decision has been
made.
(6) Where
the Chief Officer is satisfied that the special interest of a building or place
has ceased to exist, the building or place may be removed from the List, no
sooner than 28 days after service of notice of the intention to do so.
(7) Such
notice as mentioned in paragraph (6) shall be served –
(a) on
the owner of the building or place; or
(b) (where
such service cannot be effected) by being displayed in a conspicuous position
on or near the building or place.
53 Provisional
listing[172]
(1) This
Article applies where the Chief Officer considers it necessary or expedient to
restrain –
(a) an
actual or apprehended operation in, on, over or under a building or place
suitable for inclusion on the List; or
(b) an
actual or apprehended change (either permanent or temporary) in the use of such
a building or place,
which, whether or not the operation or change amounts to
development, would adversely affect the special interest of the building or
place if it were included on the List.
(2) Where
this Article applies a notice may be served declaring the building or place to
have been provisionally included on the List, and such notice shall be
served –
(a) on
the owner of the building or place; or
(b) (where
such service cannot be effected) by being displayed in a conspicuous position
on or near the building or place.
(3) A
person who without lawful authority removes or defaces a notice displayed under
paragraph (2) shall be guilty of an offence and liable to a fine of
level 2 on the standard scale.
(4) On
service of a notice under paragraph (2), details of the building or place
shall be entered provisionally on the List, and shall remain on the List
until –
(a) a
determination has been made under Article 52 that the building or place
should or should not be included on the List; or
(b) the
expiration of a period of 3 months beginning with the date of service of
the notice under paragraph (2),
whichever is the sooner.
54 Control
of certain operations, etc. not amounting to development
(1) This
Article applies to –
(a) an
operation in, on, over or under a site of special interest; or
(b) a
change (either permanent or temporary) in the use of a site of special
interest,
which, while not amounting to development, adversely affects the
special interest of the site.
(2) A
person who –
(a) undertakes
an operation or makes a change of use to which this Article applies without the
Chief Officer’s permission; or
(b) when
undertaking the operation or making the change contravenes any condition
subject to which permission to do so was granted,
shall be guilty of an offence and liable to a fine.[173]
(3) In
determining the amount of any fine to be imposed on a person convicted of an
offence under paragraph (2), the court shall in particular have regard to
any financial benefit which has accrued or appears likely to accrue or could
have accrued to the person in consequence of the offence.
(4) The
provisions of Part 5 (development controls) and of Part 7 (appeals)
apply in respect of an operation or change of use to which this Article applies
as if –
(a) that
operation or change of use amounted to development; and
(b) the
undertaking of the operation or the change of use except with and in accordance
with planning permission were a breach of development controls.
(5) A
person may be convicted of an offence under paragraph (2) despite the fact
that –
(a) by
virtue of paragraph (4), an enforcement notice or condition notice has
been issued in respect of the undertaking of the operation or change of use;
and
(b) every
step required by the notice to be taken has been taken.[174]
(6) A
condition attached to the grant of permission to undertake an operation or make
a change of use to which this Article applies shall fairly and reasonably
relate to the protection of the special interest of the site.[175]
(7) If
the person convicted of an offence under paragraph (2) is the owner of the
site of special interest a notice may be served on that person requiring the
person to make good, within the period for compliance specified in the notice,
any injury caused to the site as a result of the action taken that constituted
the offence.[176]
(8) A
person who fails to comply with the notice shall be guilty of an offence and
liable to a fine of level 3 on the standard scale.
(9) If –
(a) the
person convicted of the offence under paragraph (2) is not the owner of
the site of special interest; or
(b) the
owner of the site fails to comply with a notice served in accordance with
paragraph (7),
the Minister may enter on the site and undertake the work necessary
to make good the injury caused to the site as a result of the action taken that
constituted the offence.
(10) The
Minister may recover from the person convicted of the offence under
paragraph (2) or the owner, as the case may be, the expenses reasonably
incurred in undertaking the work referred in paragraph (9).
(11) Despite
the fact that –
(a) the
Minister has made good injury to a site of special interest in accordance with
paragraph (9); and
(b) the
cost of undertaking that work has been recovered by the Minister,
the owner of the site may still be convicted of an offence under
paragraph (8).
55 Certain
activities restricted on sites of special interest
(1) This
Article applies to the carrying on, at or on a site of special interest, of any
of the following –
(a) the
use or operation of a device designed or adapted to detect or locate metal or
minerals in the ground;
(b) an
activity which might injure or deface the site or a part of the site;
(c) where
the special interest of the site is an archaeological interest, an activity
specified in sub-paragraph (c), (d), (e) or (f) of
paragraph (2);
(d) where
the special interest of the site is a botanical, ecological, geological,
scientific or zoological interest, any activity specified in
paragraph (2).[177]
(2) Those
activities are –
(a) to
disturb, ill-treat or injure, or kill or attempt to kill, or take a wild
creature;
(b) to
pick, uproot, damage or destroy a plant;
(c) to
insert a probe into the surface of the site;
(d) to
dig a hole or make an excavation;
(e) to
remove sand, stone, gravel, earth or rock; or
(f) to
tip earth, rock or waste material.
(3) A
person may undertake an activity to which this Article applies –
(a) with
the Chief Officer’s permission; or
(b) if
the activity is specified as a permitted activity in the entry on the List of
Sites of Special Interests relating to the site.[178]
(4) A
person who –
(a) carries
on an activity to which this Article applies without the permission referred to
in paragraph (3); or
(b) when
carrying on the activity with that permission contravenes any condition subject
to which the permission was granted,
shall be guilty of an offence and liable to a fine.[179]
(5) An
application to carry on an activity to which this Article applies
shall –
(a) be
in the required form;
(b) contain
or be accompanied by particulars reasonably required to determine the
application; and
(c) be
accompanied by any prescribed fee.[180]
(6) The
conditions which may be attached to the grant of permission shall fairly and
reasonably relate to the protection of the special interest of the site.[181]
(7) Permission
may be given for the purpose of paragraph (3)(a) by means of a notice
displayed on or near to the site of special interest.[182]
(8) A
person who removes or defaces a notice displayed in accordance with
paragraph (7) without lawful authority shall be guilty of an offence and
liable to a fine of level 2 on the standard scale.
(9) If
the person convicted of an offence under paragraph (4) is the owner of the
site of special interest the Minister may serve on that person a notice requiring
the person to make good, within the period for compliance specified in the
notice, any injury caused to the site as a result of the action taken that
constituted the offence.
(10) A person
who fails to comply with the notice shall be guilty of an offence and liable to
a fine of level 3 on the standard scale.[183]
(11) If –
(a) the
person convicted of the offence under paragraph (4) is not the owner of
the site of special interest; or
(b) the
owner of the site fails to comply with a notice served in accordance with
paragraph (9),
the Minister may enter on the site and undertake the work necessary
to make good the injury caused to the site as a result of the action taken that
constituted the offence.
(12) The
Minister may recover from the person convicted of the offence under
paragraph (4) or the owner, as the case may be, the expenses reasonably
incurred in undertaking the work referred in paragraph (11).
(13) Despite
the fact that –
(a) the
Minister has made good injury to a site of special interest in accordance with
paragraph (11); and
(b) the
cost of undertaking that work has been recovered by the Minister,
the owner of the site may still be convicted of an offence under
paragraph (10).
56 Minister
may make funds available in respect of sites of special interest, etc.
(1) The
Minister may by way of grant or loan make funds available to the owner or
occupier of a site of special interest or any other site or building the
Minister is satisfied it is in the public interest to preserve towards any cost
necessary to protect, repair or restore the site or building.
(2) The
Minister may make funds available on such terms as the Minister determines.
Chapter 2 - Protection of
trees
57 Interpretation
- protected trees
In this Chapter and in Part 7 –
“List of Protected Trees” or “List” means
the List maintained in accordance with Article 58(1);
“protected tree” means a tree included on the List of
Protected Trees;
“tree” includes –
(a) a
single tree of whatever age, genus, species, cultivar or variety;
(b) a
group of trees;
(c) a
shrub;
(d) a
bush;
(e) a
hedge.[184]
58 Minister
to protect trees by maintaining a List of Protected Trees
(1) The
Chief Officer shall maintain a list, called the List of Protected Trees.[185]
(2) The
List shall include trees which the Chief Officer is satisfied should not, in
the interests of the amenity of Jersey, be cut down, lopped, or otherwise
altered or harmed without the Chief Officer’s permission.[186]
(3) The
List shall, in relation to each tree (or group of trees or hedge)
contain –
(a) details
of the tree; and
(b) a
description, either in words or by reference to a plan, or both, of its
position sufficient to identify it.
(4) The
Chief Officer shall make the List available for inspection by the public at all
reasonable hours.[187]
(5) [188]
(6) [189]
(7) [190]
59 Notice
and procedure for inclusion on, or removal from, the List of Protected Trees[191]
(1) Except
as provided by Article 60, a tree shall not be included on or removed from
the List of Protected Trees unless notice of the inclusion or removal has been
duly served in accordance with this Article.
(2) Notice
of proposed inclusion on the List –
(a) shall
be served –
(i) on the owner of
the land on which the tree is growing, or
(ii) (where such
service cannot be effected) by being displayed in a conspicuous position on or
near the tree; and
(b) shall
contain a statement to the effect that any person may make written
representations to the Chief Officer in respect of the proposed inclusion of
the tree on the List.
(3) A
person who without lawful authority removes or defaces a notice displayed under
paragraph (2) shall be guilty of an offence and liable to a fine of
level 2 on the standard scale.
(4) In
determining whether or not to include a tree on the List –
(a) any
representations made in response to the notice under paragraph (2) shall
be taken into account to the extent that such representations relate
specifically to the proposed inclusion of the tree on the List;
(b) any
person considered to have relevant expert knowledge may be consulted and the
views of that person may be taken into account.
(5) A
further notice of the decision as to whether or not to include the tree on the
List shall be served on the owner and (if different) any occupier of the land
on which the tree is growing as soon as practicable after the decision has been
made.
(6) Where –
(a) the
tree ceases to exist; or
(b) the
Chief Officer is satisfied that it is no longer in the interests of the amenity
of Jersey that the tree should be protected,
the tree may be removed from the List, no sooner than 28 days
after service of notice of the intention to do so.
(7) Such
notice as mentioned in paragraph (6) shall be served –
(a) on
the owner of the land on which the tree is or was growing; or
(b) (where
such service cannot be effected) by being displayed in a conspicuous position
on or near the tree or place where the tree is or was growing.
60 Provisional
listing of trees[192]
(1) This
Article applies where the Chief Officer considers it necessary or expedient to
restrain the actual or apprehended removal of, or damage to, a tree suitable
for inclusion on the List of Protected Trees.
(2) Where
this Article applies a notice may be served declaring the tree to have been
provisionally included on the List, and such notice shall be
served –
(a) on
the owner of the land where the tree is growing; or
(b) (where
such service cannot be effected) by being displayed in a conspicuous position
on or near the land where the tree is growing.
(3) A
person who without lawful authority removes or defaces a notice displayed under
paragraph (2) shall be guilty of an offence and liable to a fine of
level 2 on the standard scale.
(4) On
service of a notice under paragraph (2), details of the tree shall be
entered provisionally on the List, and shall remain on the List
until –
(a) a
determination has been made under Article 59 that the tree should or
should not be included on the List; or
(b) the
expiration of a period of 3 months beginning with the date of service of
the notice under paragraph (2),
whichever is the sooner.
61 Protected
tree not to be felled, etc. without permission
(1) A
person who –
(a) cuts
down, tops, lops, uproots, wilfully damages or wilfully destroys or otherwise
alters, harms or interferes with a protected tree without permission; or
(b) when
undertaking any of those activities with permission contravenes any condition
subject to which that permission was granted,
shall be guilty of an offence and liable to a fine.[193]
(2) If
a person convicted of an offence under paragraph (1) is the owner of the
land on which the tree is or was growing the court that convicts the person
may, in addition to any other penalty it imposes, order the person to plant a
suitable tree in a specified place on that land.
(3) A
condition attached to the grant of permission for the purpose of
paragraph (1)(b) shall fairly and reasonably relate to the protection of
the tree and to the safety of the public.[194]
(4) However
it may be made a condition of the permission that a tree or replacement tree of
a specified species shall be planted in a specified place during a specified
period.[195]
(5) In
determining the amount of any fine to be imposed on a person convicted of an
offence under paragraph (1), the court shall in particular have regard to
any financial benefit which has accrued or appears likely to accrue or could
have accrued to the person in consequence of the offence.
(6) An
offence under paragraph (1) may be charged by reference to a day or any
longer period of time and a person may be convicted of a second offence or subsequent
offences under paragraph (1) by reference to any period of time following
the preceding conviction for such an offence.
(7) It
shall be a defence for a person charged with an offence under
paragraph (1) to prove –
(a) that
the tree was dead or dying; or
(b) that
the tree had become dangerous.
62 Preservation
and planting of trees in connection with planning permission[196]
(1) A
decision-maker granting planning permission to develop land shall ensure,
whenever appropriate, that adequate provision is made for the preservation and
planting of trees by the imposition of a condition.[197]
(2) A
decision-maker granting such permission shall also provide for the listing in
accordance with Article 59 of any tree as appears to the Minister to be
necessary in connection with the grant of the permission, whether to give
effect to the condition referred to in paragraph (1) or otherwise.[198]
(3) In this
Article, “decision-maker” has the meaning given by Article 22(3).[199]
63 Minister
may plant trees, etc.
(1) The
Minister may plant trees and undertake work or do other things the Minister
considers necessary to preserve or enhance the amenity of land or to restore or
improve the appearance of land the Minister considers to be unsightly.
(2) The
Minister shall not do so without the consent of the owner and (if different)
the occupier of the land.
(3) The
Minister may enter into an agreement for the work to be undertaken by a person
other than the Minister.
64 Minister
may make funds available for the planting and protection of trees, etc.
(1) The
Minister may by way of grant or loan make funds available to the owner or
occupier of land towards the cost of planting or managing trees on that land or
for otherwise preserving or improving the appearance of the land.
(2) The
Minister may make funds available on such terms as the Minister determines.
Chapter 3 - Dangerous
buildings
65 Interpretation
- dangerous buildings
In this Chapter “work to be undertaken” includes steps
to be taken.
66 Dangerous
building notice in respect of building in a dangerous condition[200]
(1) This
Article applies where it appears to the Chief Officer that a building is in a
dangerous condition, or is being used to carry a load or in a manner that makes
it dangerous.[201]
(2) Where
this Article applies a notice may be served requiring work to be undertaken to
render the building safe.[202]
(3) The
notice shall be served on the owner of the building and (if different) its
occupier.
(4) The
notice shall specify –
(a) the
matter which appears to make the building dangerous;
(b) the
work to be undertaken; and
(c) the
period within which that work must be undertaken.[203]
67 Dangerous
building notice - restoration work
(1) This
Article applies in respect of a dangerous building notice that requires
restoration work to be undertaken on a part of a building.
(2) Unless
the notice specifies otherwise it shall be taken to contain a requirement that
the work to be undertaken shall be as similar as possible to the original work
on that part of the building.
68 Variation
or withdrawal of dangerous building notice[204]
(1) A
dangerous building notice may be withdrawn.
(2) A
requirement (including in particular any period specified for the undertaking
of work) in a dangerous building notice may be relaxed or waived.
(3) Where
any power is exercised under paragraph (2), notice of the relaxation or
waiver shall immediately be served on each person who was served with the
dangerous building notice.
(4) The
withdrawal of an dangerous building notice shall not prejudice a further
exercise of the power under Article 66 to serve another such notice.
69 Minister
may execute work required by dangerous building notice
(1) The
Minister may enter land and undertake work required to be undertaken by a
dangerous building notice if the work has not been undertaken by the end of the
period for compliance specified in the notice.
(2) The
Minister may recover the expenses reasonably incurred by the Minister in doing
so as a debt due to the Minister from the person who is then the owner of the
building.
70 Offence
when dangerous building notice is not complied with
(1) The
owner of a building to which a dangerous building notice relates who during the
period specified in the notice fails to undertake any specified work shall be
guilty of an offence and liable to a fine.[205]
(2) In
proceedings against a person for the offence it shall be a defence to show that
the person took all reasonable measures to secure compliance with the notice.
(3) An
offence under paragraph (1) may be charged by reference to a day or any
longer period of time and a person may be convicted of a second offence or
subsequent offences under paragraph (1) by reference to any period of time
following the preceding conviction for such an offence.
(4) If –
(a) a
person charged with an offence under paragraph (1) has not been served
with a copy of the dangerous building notice; and
(b) the
notice is not contained in the Register of Dangerous Building Notices,
it shall be a defence to show that the person was not aware of the
existence of the notice.
(5) In
determining the amount of any fine to be imposed on a person convicted of an
offence under this Article, the court shall in particular have regard to any
financial benefit which has accrued or appears likely to accrue or could have
accrued to the person in consequence of the offence.
71 Minister
may take immediate action to ensure safety
(1) This
Article applies where it appears to the Minister –
(a) that
a building is in a dangerous condition or is being used to carry such a load or
in a manner so as to be dangerous; and
(b) that
immediate action is necessary to remove or reduce the danger.
(2) Where
this Article applies the Minister may, as soon as practicable and whether or
not the Minister serves a dangerous building notice, enter the building and
undertake work necessary to reduce or remove the danger.
(3) If
the Minister decides to act in accordance with paragraph (2) the Minister
shall serve notice of his or her decision on the owner of the building and (if
different) its occupier but it is not a requirement that the notice be served
before the building is entered and the work undertaken.
(4) The
Minister may recover the costs reasonably incurred in taking action under
paragraph (2) from the owner of the building as a debt due to the
Minister.
72 No
compensation payable
Action taken by the Minister or Chief Officer under this Chapter
does not give any person the right to claim compensation in respect of any loss
or damage the person may suffer as a result of that action.[206]
73 Planning
permission and building permission
(1) Work
undertaken in compliance with a dangerous building notice shall be undertaken
in compliance with any requirement imposed by or under this or any other
enactment applicable to the construction and functional requirements of
buildings.
(2) In
so far as it is required, planning and building permission shall be taken to
have been granted to undertake work in compliance with a dangerous building
notice.
74 Minister
to maintain Register of Dangerous Building Notices
(1) The
Minister shall maintain a register, called the Register of Dangerous Building
Notices, containing details of each dangerous building notice it serves.
(2) The
Minister shall make the register available for inspection by the public at all
reasonable hours.
Chapter 4 - Control of
advertisements
75 Interpretation
- advertisements
(1) In
this Chapter “advertisement” means a word, letter, model, sign,
placard, board, notice, awning, blind, device or representation, whether
illuminated or not, in the nature of and employed wholly or partly for the
purpose of –
(a) advertisement;
(b) announcement;
or
(c) direction.
(2) In
this Chapter “Order” means an Order made in accordance with this
Chapter.
76 Minister
may make Orders to control advertisements
(1) The
Minister may by Order restrict or regulate the display of advertisements to
ensure that Jersey’s amenities are not spoilt.
(2) In
particular an Order may –
(a) regulate
the dimensions, appearance and position of advertisements, the sites on which
they may be displayed, and the manner in which they may be affixed to land;
(b) require
permission to be obtained for the display of advertisements, or of
advertisements of a specified class, or of advertisements in a particular area
or in a specified type of area;
(c) make
different provision with respect to different areas of the Island;
(d) make
special provision with respect to advertisements or prohibit their display in
areas of the Island that appear to the Minister to require special protection
on grounds of amenity.[207]
77 Order
may apply to existing advertisements
(1) An
Order may be made to apply –
(a) to
advertisements that are being displayed on the date on which the Order comes
into force; and
(b) to
the use for the display of an advertisement of a site that was being used for
that purpose on that date.
(2) An
Order to which paragraph (1) applies shall allow sufficient time for
compliance with the Order and shall provide for the payment by the Minister of
compensation in appropriate cases.
78 Penalty
for contravention of Order
(1) A
person who displays an advisement contrary to the provisions of an Order shall
be guilty of an offence and liable to a fine of level 2 on the standard scale.
(2) A
person who fails to comply with a notice served by the Chief Officer requiring
the person –
(a) to
remove an advertisement displayed by the person in contravention of an Order;
or
(b) to
discontinue the use by the person of a site to display an advertisement in
contravention of an Order,
before the date specified in the notice for compliance, shall be
guilty of an offence and liable to a fine of level 2 on the standard scale.[208]
(3) An
offence under paragraph (1) or (2) may be charged by reference to a day or
any longer period of time and a person may be convicted of a second offence or
subsequent offences under paragraph (1) or (2) by reference to any period
of time following the preceding conviction for such an offence.
(4) Without
prejudice to the generality of paragraph (1), a person shall be taken to
display an advertisement if the advertisement –
(a) is
displayed on land the person owns or occupies;
(b) gives
publicity to the person’s goods, trade, business or other concerns; or
(c) gives
publicity to the person’s candidature for election to a public or
parochial office.
(5) It
shall be a defence for a person charged with an offence under
paragraph (1) to prove that the advertisement was displayed without the
person’s knowledge or consent.
79 Minister
may remove or obliterate advertisement
(1) The
Minister may remove or obliterate an advertisement that in the Minister’s
opinion is displayed in contravention of an Order and recover, as a debt due to
the Minister, the cost of doing so from the person displaying the
advertisement.
(2) Action
taken by the Minister under paragraph (1) does not give any person the
right to claim compensation in respect of any loss or damage the person may
suffer as a result of that action.
Chapter 5 - Control of
moveable structures
80 Moveable
structures defined
(1) In
this Chapter the term “moveable structure” means a structure the
placing of which in, on, over or under land does not constitute development of
the land.
(2) It
includes, for example, a marquee, tent, caravan or other conveyance, with or
without wheels, a flagpole, or radio or television mast temporarily placed upon
land.
(3) In
this Chapter “Order” means an Order made in accordance with this
Chapter.
81 Minister
may make Orders in respect of moveable structures
(1) The
Minister may by Order regulate or restrict the erection, stationing and use of
moveable structures –
(a) to
ensure that Jersey’s amenities are not spoilt; and
(b) to
secure the health, safety and welfare of people in or about moveable
structures.
(2) The
Order may, in particular –
(a) require
permission to be obtained for the erection, stationing and use of moveable
structures; and
(b) include
provisions to prevent nuisances that may arise from moveable structures.[209]
(3) The
Order may be made to apply to all moveable structures or to moveable structures
specified in the Order.
82 Penalty
for contravening an Order
(1) A
person who contravenes an Order shall be guilty of an offence and liable to a
fine of level 2 on the standard scale.
(2) A
person who fails to comply with a notice served by the Chief Officer requiring
the person –
(a) to
remove a mobile structure placed on land in contravention of an Order; or
(b) to
discontinue the use by the person of land for the placement of a mobile
structure in contravention of an Order,
before the date specified in the notice for compliance, shall be
guilty of an offence and liable to a fine of level 2 on the standard scale.[210]
(3) An
offence under paragraph (1) or (2) may be charged by reference to a day or
any longer period of time and a person may be convicted of a second offence or
subsequent offences under paragraph (1) or (2) by reference to any period
of time following the preceding conviction for such an offence.
Chapter 6 - Control of land
condition
83 Interpretation
- land condition
(1) In
this Chapter –
“land condition notice” means a notice served in
accordance with an Article of this Chapter;
“work to be undertaken” includes steps to be taken.[211]
(2) Where
in accordance with this Chapter a notice is not served on a person but is
instead displayed it shall be taken to have been served on –
(a) the
owner of the land on which it is displayed and (if different) the occupier of
the land; and
(b) any
owner, as the case may be, of the building, caravan, vegetation or disused
vehicle on or in respect of which the notice is displayed.
84 Notice
requiring repair or removal of ruinous or dilapidated buildings[212]
(1) If
it appears to the Chief Officer that a building is in a ruinous or dilapidated
condition the Chief Officer may serve a notice requiring that the building or a
specified part of it be demolished, repaired, decorated or otherwise improved
and that any resulting rubbish be removed.[213]
(2) The
notice shall be served –
(a) on
the owner of the land on which the building is situated; or
(b) by
displaying it in a conspicuous place on or near the building.
85 Notice
requiring action to be taken in respect of drainage nuisance[214]
(1) If
it appears to the Chief Officer that the drainage or lack of drainage of a
building is a danger to health or a nuisance the Chief Officer may serve a
notice requiring that measures specified in the notice be taken to eliminate
the danger or nuisance.[215]
(2) The
notice shall be served –
(a) on
the owner of the land on which the building is situated and (if different) its
occupier; or
(b) by
displaying it in a conspicuous place on or near the building.
(3) In
this Article “drainage”, in respect of a building, includes a
cesspool, private sewer, septic tank, drain, soil pipe, rainwater pipe and
other necessary drainage facilities in respect of the building.
86 Notice
requiring proper maintenance of land, etc.[216]
(1) If
it appears to the Chief Officer that the amenities of a part of Jersey are
being adversely affected by the condition or use of any land, the Chief Officer
may serve a notice requiring work specified in the notice be undertaken to
abate the injury.[217]
(2) The
notice shall be served –
(a) on
the owner of the land and (if different) its occupier; or
(b) by
displaying it in a conspicuous place on the land.
87 Notice
requiring removal of caravans[218]
(1) If
it appears to the Chief Officer that for amenity reasons a caravan should not
be on a particular area of land the Chief Officer may serve a notice requiring
the removal of the caravan to outside the area specified in the notice.[219]
(2) The
notice shall be served –
(a) on
the owner or other person for the time being in control of the caravan, or the
owner and (if different) the occupier of the land on which the caravan is
situated; or
(b) by
displaying it in a conspicuous place on or near the caravan.
88 Notice
requiring action to be taken in respect of dumps[220]
(1) If
it appears to the Chief Officer that for amenity reasons action should be taken
in respect of a dump the Chief Officer may serve a notice requiring the dump to
be dealt with in the manner specified in the notice.[221]
(2) The
notice shall be served –
(a) on
the owner of the land on which the dump is situated and (if different) the
occupier of the land; or
(b) by
displaying it in a conspicuous place on or near the dump.
89 Notice
requiring action in respect of disused vehicles[222]
(1) If
it appears to the Chief Officer that for amenity reasons a disused vehicle
should be moved or otherwise disposed of the Chief Officer may serve a notice
requiring the vehicle to be dealt with in the manner specified in the notice.[223]
(2) The
notice shall be served –
(a) on
the owner of the land on which the vehicle is situated or (if different) the
occupier;
(b) the
owner of the vehicle; or
(c) by
displaying it in a conspicuous place on or near the vehicle.
(3) In
this Article “disused vehicle” means anything constructed for use
as a vehicle or as part of a vehicle (including wheeled or tracked equipment)
which is not normally being so used and whether or not it is capable of being
so used.
90 Notice
requiring vegetation to be replaced or removed[224]
(1) If
it appears to the Chief Officer that the amenities of a part of Jersey are
being adversely affected by the removal or destruction of vegetation the Chief
Officer may serve a notice requiring –
(a) the
removal or destruction to stop; and
(b) that
other vegetation of a type and species be planted in a place on that land as
specified in the notice.[225]
(2) If
it appears to the Chief Officer that the amenities of an area of land in Jersey
are being or are likely to be adversely affected by the presence of vegetation
on adjoining land owned by some other person the Chief Officer may serve a
notice requiring –
(a) the
removal of the vegetation or any part of it; or
(b) that
other action specified in the notice be taken in respect of the vegetation.[226]
(3) The
notice shall be served –
(a) on
the owner of the land on which the vegetation is growing or (if different) the
occupier of the land; or
(b) by
displaying it in a conspicuous place on or near the vegetation.
91 Contents
of land condition notice
(1) A
land condition notice shall specify in sufficient detail the work to be
undertaken and the period within which that work is to be undertaken.
(2) The
period shall be a period that is reasonable having regard to what is required.
(3) A
person who removes or defaces a land condition notice displayed in accordance
with this Chapter without lawful authority shall be guilty of an offence and
liable to a fine of level 2 on the standard scale.
92 Variation
or withdrawal of land condition notice[227]
(1) A
land condition notice may be withdrawn.
(2) A
requirement (including in particular any period specified for the undertaking
of work) in a land condition notice may be relaxed or waived.
(3) Notice
of the relaxation or waiver shall immediately be served –
(a) in
a case where the land condition notice was served on a person, on each person
who was served with the land condition notice; or
(b) in
a case where the land condition notice was served by being conspicuously
displayed at a place, by displaying an amended notice at the same place.
(4) The
withdrawal of a land condition notice shall not prejudice a further exercise of
the power to serve another such notice.
93 Penalty
for failure to comply with land condition notice
(1) A
person who fails to undertake the work specified in a land condition notice
served on the person in accordance with this Chapter before the end of the
period for compliance specified in the notice shall be guilty of an offence and
liable to a fine.
(2) In
proceedings against a person for an offence under paragraph (1) it shall
be a defence for the person to show that all reasonable measures to secure
compliance with the notice were taken.
(3) An
offence under paragraph (1) may be charged by reference to a day or any
longer period of time and a person may be convicted of a second offence or
subsequent offences under paragraph (1) by reference to any period of time
following the preceding conviction for such an offence.
(4) If –
(a) a
person charged with an offence under paragraph (1) has not been served with
a copy of the land condition notice; and
(b) the
notice is not contained in the Register of Land Condition Notices,
it shall be a defence to show that the person was not aware of the
existence of the notice.
(5) In
determining the amount of any fine to be imposed on a person convicted of an
offence under this Article, the court shall in particular have regard to any
financial benefit which has accrued or appears likely to accrue or could have
accrued to the person in consequence of the offence.
94 Minister
may undertake work, etc.
If a person fails to undertake the work specified in a land
condition notice before the end of the period of compliance specified in the
notice then, whether or not the person is convicted of an offence under
Article 93, the Minister may –
(a) undertake
the work; and
(b) recover
from that person, as a debt due to the Minister, the expenses reasonably
incurred by the Minister in doing so.
95 No
compensation payable
Action taken by the Minister or Chief Officer under this Chapter does
not give any person the right to claim compensation in respect of any loss or
damage the person may suffer as a result of that action.[228]
96 Planning
permission and building permission
(1) Work
undertaken in compliance with a land condition notice shall be undertaken in
compliance with any requirement imposed by or under this or any other enactment
applicable to the construction and functional requirements of buildings.
(2) In
so far as it is required, planning and building permission shall be taken to have
been granted to undertake work in compliance with a land condition notice.
97 Minister
to maintain Register of Land Condition Notices
(1) The
Minister shall maintain a register, called the Register of Land Condition
Notices, containing details of each land condition notice the Minister serves.
(2) The
Minister shall make the register available for inspection by the public at all
reasonable hours.
Chapter 7 - Controls on
caravans
98 Definitions
in respect of caravans
In this Chapter “caravan” means –
(a) a
structure designed or adapted for human habitation which is capable of being
moved from place to place (whether by being towed, or by being transported on a
motor vehicle or trailer); and
(b) a
motor vehicle designed or adapted for human habitation,
but does not include a tent.
99 Control
of importation and use of caravans[229]
(1) A
person shall not –
(a) import
a caravan into the Island; or
(b) use
a caravan on the Island,
except with and in accordance with permission to do so granted by
the Chief Officer.[230]
(2) The
application shall –
(a) be
in the form required by the Chief Officer;
(b) contain,
or be accompanied by, such particulars as may reasonably be required to
determine the application; and
(c) be
accompanied by the prescribed fee.[231]
100 Offence
of importing, etc. caravan without permission[232]
(1) A
person who contravenes Article 99 shall be guilty of an offence and liable
to a fine of level 2 on the standard scale.
(2) A
person shall be guilty of an offence under paragraph (1) if, when
importing a caravan or using a caravan in Jersey, the person contravenes any
condition subject to which the permission to do so was granted.
(3) An
offence under paragraph (1) may be charged by reference to a day or any
longer period of time and a person may be convicted of a second offence or
subsequent offences under paragraph (1) by reference to any period of time
following the preceding conviction for such an offence.
101 Conditions
on importation and use of caravan
(1) Conditions
may be attached to the grant of permission to import a caravan or to use a
caravan on the Island.[233]
(2) Conditions
attached under paragraph (1) shall fairly and reasonably relate to the
importation of the caravan or the use of the caravan in Jersey.[234]
(3) A
condition attached to the grant of permission under this Article to import a
caravan or to use one in Jersey binds any person for the time being having the
control of or an interest in the caravan and is enforceable against such a
person.[235]
102 Minister
may require caravan to be exported
If a person is convicted of an offence under Article 100 in
respect of a caravan the Minister may, by notice served on its owner or the
person for the time being having charge of it, require the caravan to be
exported from Jersey within the period for compliance specified in the notice.
103 Caravan
may be forfeited to Minister
(1) If
a caravan is not exported from Jersey within the period for compliance
specified in a notice under Article 102 the caravan is forfeited to the
Minister on the termination of that period and becomes the property of the
Minister which may retain it or dispose of it as the Minister thinks fit.
(2) A
notice served in accordance with Article 102 shall draw the attention of
the person upon whom it is served to the provisions of paragraph (1).
(3) If
a caravan that has been forfeited to the Minister in accordance with
paragraph (1) is seized by the Minister otherwise than from or in the
presence of its owner or the owner’s agent, the Minister shall serve on
the owner or the owner’s agent notice of the seizure specifying the
grounds for the seizure.
104 Minister
may seize and retain caravan
(1) This
Article applies where the Minister is satisfied that –
(a) a
caravan has been imported into Jersey without the Minister’s permission;
or
(b) a
caravan has been imported or is being used in Jersey without compliance with a
condition subject to which the Minister’s permission to import or use the
caravan was granted.
(2) Where
this Article applies the Minister may seize and retain possession of the caravan.
(3) The
Minister may retain possession of the caravan for 2 months unless during
that period –
(a) the
owner or person having possession of the caravan at the time of the seizure
exports the caravan from Jersey; or
(b) if
the owner or person having possession of the caravan at the time of the seizure
is charged with an offence under Article 100, that charge is determined.
(4) If
in respect of the charge referred to in paragraph (3)(b) a person is found
guilty of an offence under Article 100, the Minister may retain possession
of the caravan until it is exported from Jersey in accordance with a notice
served in accordance with Article 102.
Chapter 8 - Control of
rubbish
105 Person
shall not deposit rubbish
(1) A
person shall not without lawful authority place rubbish on land - whether
private land, land used by the public or land covered by water.
(2) A
person who contravenes paragraph (1) shall be guilty of an offence and
liable to a fine.
(3) In
determining the amount of any fine the court shall, in particular, have regard
to –
(a) any
financial benefit which has accrued or appears likely to accrue or could have
accrued to the person in consequence of the offence;
(b) the
type of rubbish placed on the land;
(c) the
amount of the rubbish placed on the land;
(d) any
damage the rubbish caused or was capable of causing to the environment; and
(e) the
cost of clearing the rubbish and making good any damage caused by it.
(4) In
this Article rubbish includes refuse and waste material, and whether in solid
or liquid form.
PART 7[236]
APPEALS
106 Interpretation
and application of Part 7[237]
(1) In
this Part –
“appellant” means a person aggrieved who brings an
appeal under any of Articles 108 to 111;
“document”, unless otherwise indicated, includes a map
or plan, and a copy of a document in paper or electronic form;
“Greffier” means the Judicial Greffier;
“inspector” means an inspector appointed for the
purposes of this Part under Article 107;
“interested party” means, according to the context, all
or any of the following –
(a) the
appellant;
(b) a
third party;
(c) a
person who, in respect of the same or a related matter as that which is the
subject of the appeal in question, has made a representation in writing prior
to the decision against which that appeal is brought;
(d) the
occupier of any property which is the subject of the appeal in question, where
such person is not the appellant;
(e) the
decision-maker;
“Jersey Appointments Commission” means the body of that
name established under Article 17 of the Employment of States of Jersey
Employees (Jersey) Law 2005[238];
“third party” has the meaning given by
Article 108(4).
(2) Reference
in this Part to the “decision-maker” is to the person who is
entitled under this Law to –
(a) make
a decision against which a right of appeal lies under Article 108;
(b) serve
a notice in respect of which a right of appeal lies under Article 109;
(c) impose
a condition against which a right of appeal lies under Article 110; or
(d) exercise
the right to enter a dangerous building and undertake work, against which a
right of appeal lies under Article 111;
and who, in any particular case, has made the decision, served the
notice or imposed the condition duly appealed against under this Part.
(3) For
the purposes of this Part and unless otherwise appearing, a reference to a “decision”
includes reference to a refusal, and reference to a “refusal”
includes a failure deemed by Article 21A(3) to be a refusal.
(4) This
Part shall apply without prejudice to the right of any applicant to
request a review by the Planning Committee under Article 22A.[239]
107 Appointment
of inspectors[240]
(1) There
shall be appointed as States employees such number of persons as the States may
direct being persons who are, to the satisfaction of the Jersey Appointments
Commission, capable of acting and willing to act as inspectors for the purposes
of this Part.
(2) Appointments
under paragraph (1) shall be made by the Minister following
recommendations made for the purpose by the Jersey Appointments Commission.
(3) The
list of persons so appointed shall be made available for public inspection at
all reasonable hours.
108 Right to
appeal against certain decisions, and persons who may appeal[241]
(1) A
person aggrieved by a decision of a kind listed in paragraph (2) may
appeal against that decision.
(2) The
following decisions are those against which an appeal lies under
paragraph (1) –
(a) a
decision to grant planning permission under Article 19(3) or (4);
(b) a
refusal under Article 19(5) to grant planning permission;
(c) a
refusal under Article 20(3) –
(i) to grant planning
permission for development already undertaken, or
(ii) to amend planning
permission already granted;
(d) a
refusal under Article 21(4) to amend planning permission already granted
so as to remove or vary a condition of that permission;
(e) a
decision under Article 10(2)(a) or Article 27 to revoke or modify
planning permission already granted;
(f) a
refusal to issue a certificate of completion under Article 28(1);
(g) a
refusal under Article 35(4) to grant building permission;
(h) a
decision under Article 51(2) to include a building or place on the List of
Sites of Special Interest;
(i) a
refusal to remove a building or place from the List in accordance with
Article 52(6);
(j) a
refusal to grant permission to undertake an operation or make a change of use
to which Article 54 applies;
(k) a
refusal to grant permission under Article 55(3)(a) to undertake an
activity to which Article 55 applies;
(l) a
decision under Article 58(2) to include a tree on the List of Protected
Trees or under Article 59(6)(b) to remove a tree from that List;
(m) a refusal
to grant permission to undertake, in relation to a protected tree, an activity
specified in Article 61(1)(a);
(n) a
refusal under Article 99(1) to grant permission to import or use a
caravan.[242]
(3) In
paragraph (1) of this Article, “person aggrieved”
means –
(a) for
the purposes of an appeal against a decision mentioned in
paragraph (2)(a), the applicant for planning permission and any third
party;
(b) for
the purposes of an appeal against a decision mentioned in
paragraph (2)(e), the applicant, the owner and (where different) the
occupier of the land to which the planning permission relates;
(c) for
the purposes of an appeal against a decision mentioned in paragraph (2)(h)
to (m), the owner and (where different) the occupier of the land on which the
building or, as the case may be, the tree in question is situated;
(d) for
the purposes of an appeal against a decision mentioned in
paragraph (2)(n), the owner of the caravan in question;
(e) for
the purposes of all other appeals to which this Article applies, the applicant.
(4) For
the purposes of paragraph (3)(a), “third party” means a
person, other than an applicant, who –
(a) has
an interest in, or is resident on, land any part of which lies within
50 metres of any part of the site to which an application for planning
permission relates; and
(b) prior
to the determination of that application, made a representation in writing in
respect of it.
109 Right to
appeal against certain notices, and grounds of appeal[243]
(1) This
Article applies in respect of the following types of notice under this
Law –
(a) a
notice served under Article 5(4) declaring that the deposit of refuse or
waste material will constitute development;
(b) a
notice served under Article 10(2)(b) requiring work to be undertaken or a
development to be modified;
(c) a
notice served under Article 26(2) terminating planning permission by
reference to a time limit;
(d) an
enforcement notice served under Article 40(2);
(e) a
stop notice served under Article 45(2);
(f) a
notice served under Article 47(2) to enforce a condition of planning or
building permission;
(g) a
notice served under Article 54(7) requiring an injury to a site of special
interest to be made good;
(h) a dangerous
building notice served under Article 66(2);
(i) a
land condition notice served under an Article of Chapter 6 of Part 6.
(2) A
person aggrieved by a notice in respect of which this Article applies may
appeal against the notice on all or any of the following grounds,
namely –
(a) that
the matters alleged in the notice are not subject to control by this Law;
(b) that
permission has already been granted under this Law in respect of the matters
alleged in the notice;
(c) that
at the date of service of the notice no or no expedient action could be taken
to remedy the alleged breach;
(d) that
the person was not the proper person to be served with such a notice;
(e) that
the matters alleged in the notice have not in fact occurred;
(f) that
the requirements of or conditions in the notice exceed what is reasonably
necessary to remedy any alleged breach of control or make good any injury to
amenity;
(g) without
prejudice to the generality of sub-paragraph (f), that any time period
imposed by the notice for compliance with its requirements falls short of the
time which should reasonably be allowed for such compliance;
(h) subject
to paragraph (4), where the notice is an enforcement notice served under
Article 40(2), that in all the circumstances planning or (as the case may
be) building permission should be granted in respect of the development in
question;
(i) where
the notice is a notice served under Article 47(2), that the condition with
which compliance is required by the notice should be discharged.
(3) Where
an appeal is brought on any ground stated in paragraph (2), the appellant
shall not be entitled to allege, in any further or other proceedings instituted
after the appeal, that the notice which is the subject of the appeal was not
duly served.
(4) An
appeal may not be brought on the ground stated in paragraph (2)(h) unless
the notice of appeal is accompanied –
(a) in
addition to any fee prescribed under Article 112(2)(b), by the fee
prescribed under Article 9(3)(a) in relation to an application for planning
permission;
(b) where
the appellant is not the owner of the land in question, by a certificate as
required by Article 9(3)(b).
(5) In
this Article, a “person aggrieved” is the person on whom the notice
in question is served.
110 Right to
appeal against certain conditions[244]
(1) This
Article applies in respect of conditions attached to a grant of permission
under any of the following provisions of this Law –
(a) a
condition attached under Article 23 to a grant of planning permission (a “planning
condition”);
(b) a
condition attached under Article 37 to a grant of building permission (a “building
condition”);
(c) a
condition attached under Article 55(6) to a grant of permission to
undertake a restricted activity on a site of special interest (a “restricted
activity condition”);
(d) a
condition attached under Article 101(1) on the importation or use of a
caravan.
(2) A
person aggrieved by a condition in respect of which this Article applies may
appeal against the condition on such of the following grounds as apply in
respect of the particular condition in question, namely –
(a) in
respect of a planning condition, that the condition does not fairly and
reasonably relate to the proposed development;
(b) in
respect of a building condition, that the condition does not fairly and
reasonably relate to the proposed prescribed building work;
(c) in
respect of a restricted activity condition, that the condition does not fairly
and reasonably relate to the protection of the special interest of the site;
(d) in
respect of a condition attached under Article 101(1), that the condition
does not fairly and reasonably relate to the importation of the caravan or (as
the case may be) the use of the caravan in Jersey.
(3) In
this Article, a “person aggrieved” is the person to whom the
permission in question is granted.
111 Right to
appeal against entry into building[245]
(1) This
Article applies in respect of an entry under Article 71 to a building
appearing to the Minister to be dangerous and in respect of the undertaking of
work under that Article.
(2) A
person aggrieved by a matter in respect of which this Article applies may
appeal against it on all or any of the following grounds, namely –
(a) that
the building in question is not immediately dangerous as alleged;
(b) that
the entry was unjustified, for the reason given in sub-paragraph (a) or
any other reason; or
(c) that
the extent or nature of the work undertaken was unreasonable.
(3) In
this Article, a “person aggrieved” is a person on whom a notice may
be served under Article 71(3).
112 Notice of
appeal: proper form, time limits and fee[246]
(1) An
appeal under this Part must be made by notice of appeal duly given in
accordance with this Article.
(2) A
notice of appeal must –
(a) be
in such form as shall be prescribed for that purpose;
(b) be
accompanied by the prescribed fee; and
(c) contain
or be accompanied by such further particulars as may be prescribed or as may
reasonably be required by the Greffier.
(3) The
notice of appeal must be received by the Greffier no later than the end of the
period of 28 days beginning –
(a) in
the case of an appeal under Article 108, with the date of the decision
against which the appeal is made;
(b) in
the case of an appeal under Article 109, with the date of issue of the
notice containing the requirement or condition against which the appeal is
made; or
(c) in
the case of an appeal under Article 110, with the date of grant of the
permission containing the condition against which the appeal is made;
(d) in
the case of an appeal under Article 111, with the date of the entry in
respect of which the appeal is made.
(4) Where
the Greffier receives a notice of appeal which fails to comply with any of the
requirements imposed by paragraph (2), the Greffier may –
(a) reject
the notice, and in such a case no appeal shall lie under this Part or
otherwise against that rejection; or
(b) may
invite the appellant to remedy any defect in the notice by submitting, within
the period of 14 days beginning with the date of the invitation, such
further material (including any fee or additional fee) as the Greffier may
request.
113 Registration
of appeal, nomination of inspector etc. by the Greffier[247]
(1) Upon
receipt of a notice of appeal in accordance with Article 112, the Greffier
shall –
(a) notify
the decision-maker that an appeal has been registered;
(b) invite
each interested party to submit all documents relevant to the decision appealed
against, and any supplementary statement, by no later than the end of the
period of 28 days beginning with the date of the invitation; and
(c) ensure
that the appeal is publicised, and provision is made for representations to be
provided by members of the public, in the same manner as prescribed under
Article 11 in relation to an application for planning permission in the
first instance.
(2) As
soon as practicable after the end of the period mentioned in
paragraph (1)(b), the Greffier shall –
(a) nominate
an inspector to conduct the appeal, from the list of persons appointed for that
purpose under Article 107;
(b) in
the case of an appeal proceeding by way of written representations, take all
necessary steps for the due administration of any prescribed procedure,
including notifying all interested parties of the identity of the nominated
inspector;
(c) in
the case of an appeal proceeding by way of a hearing, take all necessary steps
for conducting the hearing and for notifying all interested parties of the
date, time and place of the hearing;
(d) obtain,
and send to the inspector, all documents necessary for the proper determination
of the appeal.
(3) A
supplementary statement under paragraph (1)(b) and any response to such a
statement shall be in writing and in the form (if any) which may be prescribed
for the purpose.
(4) Any
document received from one interested party shall be circulated by the Greffier
to all other interested parties without undue delay, and in any case no later
than the time when such a document is sent by the Greffier to the inspector.
(5) The
appellant may withdraw the appeal by notice in writing given to the Greffier at
any time.
114 Appeal
procedures[248]
(1) Subject
to paragraphs (2), (3) and (6), the following kinds of appeal shall be
determined by way of consideration of written representations –
(a) an
appeal under Article 108(2)(b) against a refusal to grant planning
permission;
(b) an
appeal under Article 110(1)(a) against a condition attached to a grant of
planning permission;
(c) an
appeal under Article 108(2)(f) against a refusal to grant a certificate of
completion;
(d) an
appeal under Article 108(2)(g) against a refusal to grant building
permission;
(e) an
appeal under Article 110(1)(b) against a condition attached to a grant of
building permission;
(f) an
appeal under Article 108(2)(h) against a decision to include a building or
place on the List of Sites of Special Interest;
(g) an
appeal under Article 108(2)(k) against a refusal to grant permission in
relation to an activity on a Site of Special Interest;
(h) an
appeal under Article 108(2)(l) against a decision to include a tree on the
List of Protected Trees;
(i) an
appeal under Article 108(2)(n) against a refusal to grant permission to
import or use a caravan; and
(j) an
appeal under Article 110(1)(d) against a condition attached on the
importation or use of a caravan.
(2) An
appeal of a kind mentioned in sub-paragraph (a) or (b) of
paragraph (1) shall be determined by way of written representations only
in a case where no representations (except representations by statutory bodies)
were made in relation to the application which gave rise to the appeal.
(3) An
inspector nominated to hear a particular appeal of a kind listed in
paragraph (1) may, notwithstanding that paragraph, deal with the appeal by
way of a hearing –
(a) on
the application of any party; or
(b) on
his or her own motion,
but in either case following consultation with all the parties.
(4) Subject
to paragraphs (5) and (6), appeals of all kinds other than those listed in
paragraph (1) shall be determined by way of an appeal hearing.
(5) An
inspector nominated to hear a particular appeal of a kind not listed in
paragraph (1) may, notwithstanding that paragraph, deal with the appeal by
way of written representations –
(a) on
the application of any party; or
(b) on
his or her own motion,
but in either case following consultation with all the parties.
(6) An
inspector nominated to hear a particular appeal of any kind may, if the
inspector considers that any of the issues in that appeal should be more
properly addressed by way of a public inquiry, make a recommendation to such
effect to the Minister.
(7) If
the Minister declines to accept a recommendation by an inspector under
paragraph (6), the appeal shall be determined under paragraph (1) or
paragraph (4) (as the case may be) as though paragraph (6) were of no
effect.
115 Conduct of
appeal by inspector[249]
(1) The
inspector shall, without undue delay, consider the appeal and all supplementary
statements and other documents provided under Article 113 in relation to
the appeal.
(2) In
considering an appeal by way of written representations the inspector shall
take into account all representations duly received from the appellant, the
decision-maker, and any other interested parties.
(3) In
relation to the conduct of an appeal hearing the inspector may determine all
matters of procedure, including but not limited to –
(a) the
use of cross-examination;
(b) the
use and admissibility of expert evidence; and
(c) the
exclusion of any person from the hearing in the interests of good order.
(4) For
the purposes of this Article the inspector may –
(a) impose
any reasonable conditions (including, but not limited to, conditions as to the
contents of any evidence, number of witnesses, duration of a hearing, or number
and length of supplementary statements);
(b) invite
any Minister or other body or person to provide expert advice or opinion
(whether or not that Minister, body or person has previously given evidence, or
been acknowledged as a party interested, in the appeal in question);
(c) hold
a meeting of such parties and for the purpose of investigating such issues as
the inspector may determine;
(d) request
from any interested party such further and better particulars (whether in
writing or by way of oral evidence at a hearing) as the inspector may
reasonably require to reach a decision;
(e) carry
out an inspection of the site to which the appeal relates.
(5) Following
the consideration of written representations or (as the case may be) the appeal
hearing, the inspector shall make a report in writing to the Minister and the
report shall include –
(a) the
inspector’s recommendation as to the determination of the appeal; and
(b) the
reasons for such recommendation.
116 Minister’s
decision on appeal, etc[250]
(1) Having
considered the inspector’s report under Article 115, the Minister
shall determine the appeal, and in so doing shall give effect to the
inspector’s recommendation unless the Minister is satisfied that there
are reasons not to do so.
(2) For
the purposes of paragraph (1) the Minister may –
(a) allow
the appeal in full or in part;
(b) refer
the appeal back to the inspector for further consideration of such issues as
the Minister shall specify;
(c) dismiss
the appeal; and
(d) reverse
or vary any part of the decision-maker’s decision.
(3) As
soon as practicable after the Minister has determined the appeal, the Minister
shall give notice in writing of the determination to –
(a) the
appellant;
(b) the
Greffier;
(c) the
decision-maker; and
(d) any
other interested party.
(4) The
Minister shall make reasonable arrangements for access by the persons mentioned
in paragraph (3) to the inspector’s report under Article 115,
and the notice given by the Minister under that paragraph shall
include –
(a) details
of how copies of the inspector’s report may be obtained or where the
report may be viewed, or both, as the case may be; and
(b) if
and to the extent that the Minister does not give effect to the
inspector’s recommendation, the full reasons for the Minister’s
decision.
(5) No
further appeal shall lie from the Minister’s determination under this
Article except to the Royal Court on a point of law.[251]
(5A) An appeal
under paragraph (5) must be made within the period of 28 days
beginning with the date of the determination.[252]
(5B) On hearing the
appeal the Royal Court may –
(a) confirm
the determination of the Minister wholly or in part;
(b) quash
the determination of the Minister wholly or in part;
(c) remit
the determination, wholly or in part, to the Minister to be retaken.[253]
(6) The
power to make rules of court under Article 13 of the Royal Court (Jersey)
Law 1948[254] shall include the power to
make rules regulating practice and procedure in relation to appeals under
paragraph (5) of this Article.[255]
(7) Where
the Minister refers an appeal back to the inspector under
paragraph (2)(b), the inspector shall as soon as practicable produce a
supplementary report and recommendation to the Minister, and –
(a) the
Minister shall thereupon determine the appeal; and
(b) this
Article, except for paragraph (2)(b), shall apply to that further
determination.
117 Effect of
certain appeals pending determination[256]
(1) Subject
to paragraph (2), in the case of any appeal under Article 108 the
decision against which the appeal is brought shall remain in effect until
determination.
(2) In
the case of an appeal under Article 108(2)(a), the development permitted
by the grant in question shall not take place until determination.
(3) In
the case of any appeal under Article 109 except an appeal against a stop
notice as mentioned in Article 109(1)(e), the notice in respect of which
that Article applies shall cease to have effect until determination.
(4) In
the case of an appeal against a stop notice as mentioned in
Article 109(1)(e), the stop notice shall remain in effect until
determination.
(5) In
the case of an appeal under Article 110, the condition in relation to
which the appeal is brought shall remain in effect until determination.
(6) In
the case of an appeal under Article 111 –
(a) the
Minister may direct that any work being undertaken shall cease; but
(b) if
no such direction is given and an appeal in respect of the work succeeds in
whole or in part, Article 72 shall not apply.
(7) In
this Article, “determination” means –
(a) determination
by the Minister in accordance with Article 116; or
(b) the
withdrawal of the appeal.
118 [257]
PART 8
POWER OF STATES TO ACQUIRE LAND BY
COMPULSORY PURCHASE
119 Power
of States to acquire land
(1) The
States may acquire land by compulsory purchase in accordance with the
Compulsory Purchase of Land (Procedure) (Jersey) Law 1961[258] if the States are satisfied
that the land should be acquired for a purpose of this Law specified in
Article 2.
(2) The
Minister shall be the acquiring authority within the meaning of the Compulsory
Purchase of Land (Procedure) (Jersey) Law 1961 in respect of land
purchased in accordance with paragraph (1).
(3) The
power to acquire land conferred by paragraph (1) includes the
power –
(a) to
acquire a servitude or other right over land by the creation of a new servitude
or right; and
(b) to
extinguish or modify a servitude or other right over land.
(4) The
Board of Arbitrators in assessing the amount of compensation to be paid to a
person in respect of land compulsorily purchased under this Article shall set
off against the value of that land –
(a) any
increase in its value which the Board is satisfied is attributable to the
expenditure or proposed expenditure of public money; and
(b) any
increase in the value of other land owned by that person which the Board is
satisfied is attributable to the use to which the land compulsorily acquired is
to be put.
(5) The
Board of Arbitrators shall otherwise act in accordance with the rules laid down
in Article 10 of the Compulsory Purchase of Land (Procedure) (Jersey)
Law 1961.
PART 9
ADMINISTRATIVE PROVISIONS
120 Minister
may prescribe fees
(1) The
Minister may by Order prescribe fees payable under this Law.
(2) An
Order under this Article may provide for –
(a) specific
fees;
(b) maximum
fees, minimum fees or both;
(c) the
payment of fees generally, under specified conditions or in specified
circumstances;
(d) the
reduction, waiver or refund of fees, in whole or in part.
121 Service
of notices
(1) A
notice to be served under this Law on a body corporate may be served on the
secretary or clerk of the body corporate.
(2) Unless
otherwise specifically provided by this Law, a notice to be served under this
Law on a person may be served on that person –
(a) by
delivering it to the person;
(b) by
leaving it at the person’s proper address;
(c) by
registered post; or
(d) by
the recorded delivery service.
(3) For
the purposes of this Article, and of Article 7 of the Interpretation
(Jersey) Law 1954[259], in its application to this
Article, the proper address of a person is –
(a) in
the case of the secretary or clerk of a body corporate, the registered or
principal office of the body corporate; and
(b) in
any other case –
(i) the usual or
last-known place of abode of the person, or
(ii) if the person has
given an address for service, that address.[260]
(4) If it
is not possible to ascertain after reasonable enquiry the name or address of
the owner, lessee or occupier of land upon whom a notice under this Law is to
be served, the notice may be served –
(a) by
addressing it to the person upon whom it is to be served by the description of
“owner”, “lessee” or “occupier” of the land
(describing it) to which the notice relates; and
(b) by
delivering it to some responsible person resident or appearing to be resident
on the land, or, if there is no such person, by affixing it, or a copy of it,
to a conspicuous part of the land.[261]
122 Power
of entry
(1) A
person authorized to do so by the Minister may for a purpose of this Law enter
land or a building to inspect it, to survey it or to record information in
respect of it.
(2) A
person authorized to do so by the Minister may enter land or a building to
undertake on behalf of the Minister any work the Minister is authorized to
undertake under this Law.
(3) A
person referred to in paragraph (1) or (2) shall not enter land unless, if
requested by a person apparently in control of the land or building, the person
produces authorization from the Minister to do so.
(4) A
person referred to in paragraph (1) or (2) shall not enter land except at
a reasonable time.
(5) A
person who obstructs or impedes a person referred to in paragraph (1) or
(2) in the execution of the person’s duties shall be guilty of an offence
and liable to a fine of level 3 on the standard scale.[262]
123 Offences
by bodies corporate
(1) If
an offence under this Law committed by a limited liability partnership or body
corporate is proved to have been committed with the consent or connivance of,
or to be attributable to neglect on the part of –
(a) a
person who is a partner of the partnership, or director, manager, secretary or
other similar officer of the body corporate; or
(b) a
person purporting to act in any such capacity,
the person shall also be guilty of the offence and liable in the
same manner as the partnership or body corporate to the penalty provided for
that offence.
(2) If the
affairs of a body corporate are managed by its members, paragraph (1)
shall apply in relation to acts and defaults of a member in connection with the
member’s functions of management as if the member were a director of the
body corporate.
124 Orders
and Building Bye-laws
(1) The
Minister may by Order or, as the case may be, Building Bye-laws prescribe
anything which may be prescribed under this Law.
(2) The
Subordinate Legislation (Jersey) Law 1960 applies to Orders (including
Development Orders) and Building Bye-laws made under this Law.
PART 10
APPLICATION OF THE LAW TO THE CROWN AND TO
CROWN LAND
125 Interpretation
- the Crown and Crown land
In this Part –
“Crown land” means land in which there is a Crown
interest;
“Crown interest” means an interest belonging to Her
Majesty in right of the Crown, or belonging to a department of the government
of the United Kingdom or held in trust for Her Majesty for the purpose of a
department of the government of the United Kingdom;
“department of the government of the United Kingdom”
includes any Minister of the Crown.
126 Application
of Law to the Crown and to Crown land
(1) Except
as otherwise provided by this Article, this Law applies to the Crown and to
Crown land.
(2) The
Island Plan may include proposals relating to the use of Crown land.
(3) Nothing
in this Law renders the Crown liable to prosecution for an offence under this
Law.
(4) Planning
permission and any required building permission shall be taken to have been
granted to the Crown in respect of development carried out by or on behalf of
the Crown on Crown land.
(5) Nothing
in paragraph (4) shall be taken as prohibiting the Crown from applying for
planning permission or building permission.
(6) The
Minister shall not have power under Article 119 to acquire by compulsory
purchase a Crown interest in land.
(7) A
restriction or requirement under a planning obligation shall not be enforceable
in respect of the Crown by injunction.
PART 11
REPEAL, SAVINGS AND TRANSITIONAL PROVISIONS
127 Interpretation
- Repeals, etc.
In this Part –
“1956 Law” means the Public Health (Control of
Buildings) (Jersey) Law 1956[263];
“1964 Law” means the Island Planning (Jersey)
Law 1964[264].
128 Repeals
(1) The 1956
Law and the 1964 Law are repealed.
(2) The
following Laws are also repealed –
(a) the
Public Health (Control of Building) (Amendment) (Jersey) Law 1980;
(b) the
Public Health (Control of Building) (Amendment No. 2) (Jersey)
Law 1994;
(c) the
Public Health (Control of Building) (Amendment No. 3) (Jersey)
Law 1996;
(d) the
Island Planning (Amendment) (Jersey) Law 1979;
(e) the
Island Planning (Amendment No. 2) (Jersey) Law 1980;
(f) the
Island Planning (Amendment No. 3) (Jersey) Law 1983;
(g) the
Island Planning (Amendment No. 4) (Jersey) Law 1991;
(h) the
Island Planning (Amendment No. 5) (Jersey) Law 1993;
(i) the
Island Planning (Amendment No. 6) (Jersey) Law 1996;
(j) the
Building Bye-laws (Validation) (Jersey) Law 1997;
(k) the
Island Planning (Fees) (Validation) Law 1997.
129 Savings
(1) Anything
done under the 1956 Law or the 1964 Law that could have been done
under this Law, was not invalidated on the repeal of the 1956 Law and
the 1964 Law but continues to have effect as if done under this Law.
(2) Proceedings
in respect of anything done under the 1956 Law or the 1964 Law which
could have been taken under that Law if it had not been repealed by this Law
may be taken under this Law.
(3) Proceedings
pending under the 1956 Law or the 1964 Law immediately before the
commencement of this Law may be continued under this Law.
(4) An
application made under the 1956 Law or the 1964 Law before the repeal
of that Law and outstanding on that repeal shall have effect as if it were an
application made under this law and shall be dealt with accordingly.
(5) Nothing
in this Article prejudices the general application of Article 17 of the
Interpretation (Jersey) Law 1954[265].
130 Transitional
provisions
(1) An
Order made under Article 9(1) of the 1964 Law (preservation of site
of special interest) and in force immediately before the commencement of
Chapter 1 of Part 6 of this Law shall be taken to have had effect on that
commencement as if the site of special interest to which the Order related were
listed, as from the date the Order was made, on the List of Sites of Special
Interest, and the Minister shall add it to that list accordingly.
(2) An
Order made under Article 16(1) of the 1964 Law (preservation of tree)
and in force immediately before the commencement of Chapter 2 of Part 6 of this
Law shall be taken to have had effect on that commencement as if the tree to
which the Order related were listed, as from the date the Order was made, on
the List of Protected Trees, and the Minister shall add it to that list
accordingly.
(3) Until
an Island Plan for the Island has been approved by the States in accordance
with this Law any development plan (as that term was defined by Article 3
of the 1964 Law) in respect of a part of the Island, which had been
approved by the States under the 1964 Law and was in force immediately
before the commencement of Part 2 of this Law shall be taken as the Island Plan
for that part of Jersey.
(4) Until
Building Bye-laws have been approved by the States in accordance with this Law
Building Bye-laws made under the 1956 Law[266] and in force immediately
before the commencement of Part 4 of this Law shall be taken as Building
Bye-laws made under this Law (except to any extent to which they may be
inconsistent with this Law).
131 Short
title and commencement
(1) This
Law may be cited as the Planning and Building (Jersey) Law 2002.
(2) This
Law shall come into force on such day or days as the States may by Act appoint
and different days may be appointed for different purposes or different
provisions of this Law.