Jersey Unreported Judgments

2001/215

COURT OF APPEAL

 

26^th October 2001

 

 

Janvrin Holdings Limited

-v-

The Attorney General

 

Appeal by Janvrin Holdings Limited against conviction, by the Inferior Number of the Royal Court passed on 14^th June, 2001, on:

1 count of:

commencing development of a property without the consent of the Planning and Environment Committee, contrary to Article 8 of the Island Planning (Jersey) Law, 1964 (count 1).

[On 14^th June, 2001, the Defendant Company was acquitted by the Inferior Number on one count of contravening Article 21(1)(a) of the Health and Safety at Work (Jersey) Law, 1989: count 2 of the indictment].

Leave to appeal was granted by the Royal Court on 14^th June, 2001.

Appeal against a sentence of a fine of £150,000, with 50% of prosecution costs up to a maximum of £15,000, passed by the Inferior Number on 26^th July, 2001.

Leave to appeal was granted by the Deputy Bailiff on 10^th September, 2001.

 

Advocate M.M.G. Voisin for the Appellant;

A.R. Binnington, Esq., Crown Advocate.

 

 

JUDGMENT

 

smith ja:

The judgment I am about to deliver represents the views of a majority of this Court and the references in it to this Court and the use of the first person plural should be understood accordingly.  Having said this, the Court is unanimous in one respect.  In our opinion the question before this Court on this appeal is one of law on which it is convenient that a separate judgment should be pronounced by a member - that is to say the dissenting member, Mr. Southwell - and we therefore give the direction required by Article 27 of the Court of Appeal (Jersey) Law, 1961.

1.        In this case the appellant company, Janvrin Holdings Limited, was convicted by the Inferior Number of the Royal Court, the Bailiff presiding, on one count of commencing development of a property without the consent of the Planning and Environment Committee, contrary to Article 8(1) of the Island Planning (Jersey) Law, 1964 as amended and was fined £150,000 and ordered to pay 50% of the costs of the prosecution, the latter not to exceed £15,000.

2.        Janvrin has appealed to this Court against both conviction and sentence.  Leave to appeal against the conviction was granted by the Bailiff at the end of the trial and leave to appeal against the sentence was granted subsequently by the Deputy Bailiff.  Before us, Advocate M.M.G. Voisin appeared for Janvrin and A.R. Binnington, Esq., Crown Advocate, appeared for the Crown.  We are indebted to them both for their helpful submissions.

3.        The facts pertaining to Janvrin's conviction were not in dispute at the trial.  Janvrin owned premises called 'Janvrins Farm' at Portelet.  Early in the year 2000 the company was acquired by a Mr. David John Shepherd.   Until some months before this acquisition the premises on the site had been let and run as a restaurant which was declared en désastre.  The lease was cancelled and the owner of the property then sought a purchaser.

4.        According to Mr. Shepherd's evidence at the trial he knew at least shortly after completing the purchase that, although the premises were not listed, the Authorities were giving consideration to listing them.  At the trial a statement was read in evidence from Mrs. Rachel Lesley Godel née Pozzi, Historic Buildings Officer at the Island Planning and Building Services Department indicating that she had been instructed to assess Janvrins Farm in order to establish whether it should be included in the Planning and Environment Committee's register of buildings and sites of architectural, archaeological and historical importance in Jersey and in which grade.  This was conveyed to Janvrin's legal advisers by a letter from Mrs. Godel of 6^th March, 2000, together with a request for loan of the keys to the premises to enable the interiors of the buildings to be inspected.  On 11^th March, 2000, Janvrins Farm was demolished by a contractor engaged by Mr. Shepherd on Janvrin's behalf.

5.        Article 5 of the Planning Law provides that subject to the provisions of the Planning Law, the permission of the Planning and Environment Committee is required in respect of the development of any land.  The material portion of Article 8 of the Planning Law reads as follows:

"(1) If any person develops, or causes or permits to be developed, any land without the grant of permission required in that behalf under this Law ......  he shall...... be guilty of an offence."

Article 5(2) of the Planning Law states that:

"In this Law, unless the context otherwise requires, "development" means -

(a)       the carrying out of building, engineering, mining or other operations in, on, over or under land;

(b)       the creation of new means of access to land from a road and the enlargement of any existing means of access to land from a road, to a width exceeding three feet; or

(c)       the making of any material change in the use of any building or other land."

6.        Article 1 of the Planning Law is headed "Interpretation".  In it "building" is described as including "any structure or erection of whatsoever material or in whatsoever manner constructed, and any part of a building".  "Building operations" are said to include "rebuilding operations, structural alterations of or additions to buildings, and other operations normally undertaken by a person carrying on business as a builder."   Neither "engineering operations" nor "other operations" is referred to in Article 1.

7.        In relation to the demolition Janvrin had neither sought nor received permission to develop the land.  Janvrin's defence was that the demolition of the buildings was not development and that therefore no offence had been committed under Article 8 of the Planning Law.

8.        In the course of the trial, at the end of the prosecution case, Mr. Voisin submitted that there was no case to answer in relation to the count under Article 8.  This submission was rejected.  Subsequently in the course of his directions to the Jurats the Bailiff informed them that the Crown had conceded that the demolition did not amount to engineering or mining operations, that he was directing them that the demolition did not amount to building operations within the meaning of that phrase as used in the Planning Law and that therefore the only question before the Jurats was whether, on the facts of the case, the demolition constituted other operations in, on, over or under the land in question.  The Bailiff specifically directed the Jurats that the demolition of Janvrins Farm was capable of falling within the scope of the phrase "other operations" in Article 5(2)(a) of the Planning Law leaving it to them to decide whether it did so or not.  In the event the Jurats decided that it did.

9.        Janvrin's notice of appeal comprised four grounds:

(i)        That the Bailiff erred in law in failing to accede to the submission that there was no case to answer.

(ii)       That the Bailiff had misdirected himself and the Jurats as to the meaning of other operations in, on, over or under land in Article 5(2)(a) of the Planning Law.

(iii)      That the Bailiff erred in law in failing to direct himself and the Jurats to the effect that other operations in, on, over or under land must at least be of a constructive character leading to an identifiable and positive result so as to constitute development.

(iv)      That the Bailiff erred in law in directing himself and the Jurats that the scale of the work undertaken is relevant to the issue of development "particularly as there was no evidence on scale and no guidance to the Jurats as to how they were to consider this issue other than a direction that "the essence of development is the bringing about of some substantial change or physical effect upon the land"."

10.      Although, in his oral submissions, Mr. Voisin took what might be called the 'double barrelled' approach of arguing on the one hand that the Bailiff ought to have directed the Jurats at the end of the prosecution case that there was no case for Janvrin to answer and on the other that having left the case to the Jurats the Bailiff misdirected them and himself, we consider that really only one question arises in relation to conviction: viz., whether as a matter of law the demolition of Janvrins Farm could fall within Article 5(2)(a) of the Planning Law.  If not, the case ought not to have been left to the Jurats.  If so, the Bailiff's directions were unexceptionable.

11.      Before this Court the debate focussed on two authorities in particular: the House of Lords decision in Coleshill and District Investment Co Ltd-v-Minister of Housing and Local Government [1969] 1 WLR 746 and the decision of the English Court of Appeal in Cambridge City Council-v-Secretary of State for the Environment & Anor (1992) 64 P&CR 257.  The Coleshill case involved consideration of a provision of the Town and Country Planning Act 1962 which included the material words in Article 5(2)(a) of the Planning Law and which had been enacted originally in the Town and Country Planning Act 1947.  The case concerned what had originally been ammunition depôts erected during the Second World War.  They were surrounded by blast walls against which substantial sloping embankments had been erected.  In 1966 the then owners decided to remove the embankments and the blast walls.  Upon the removal of the embankments the local planning authority served an enforcement notice alleging development without planning permission.  The owners appealed to the Minister of Housing and Local Government and also asked, pursuant to a provision in the 1962 Act, for determination of whether planning permission was required to remove the blast walls.

12.      An enquiry was held and on the basis of the Inspector's findings the Minister upheld the enforcement notice and determined that the removal of the blast walls would constitute development requiring planning permission.  The owners appealed on a point of law to the Divisional Court.  The Divisional Court allowed the appeal but the Minister's order was restored by the Court of Appeal.  The decision of the Court of Appeal was upheld by the House of Lords.

13.      The principal argument deployed on the owners' behalf was that demolition as such did not require planning permission.  The House of Lords rejected this argument as it applied to the facts of the particular case before it.  Thus the Minister was entitled to hold, as he did, that the removal of the embankments constituted engineering operations.  And he was entitled to conclude, as he did, that the removal of the blast walls would constitute building operations requiring planning permission, the removal involving structural alterations materially affecting the external appearance of the building.  (Building operations not affecting the external appearance of a building did not require planning permission under the 1962 Act and under proviso (i) to Article 5(2) of the Planning Law "works for the maintenance and repair of any building ... which affect only the interior of the building or which do not materially affect the external appearance of the building" are not deemed to involve development.)

14.      It will be noted that the circumstances of the Coleshill case did not involve complete demolition, nor did the Inspector characterise the demolition works that had taken place or were proposed as other operations on land.  There are, however, dicta in the Law Lords speeches relevant to the present case to which we shall return.

15.      In the Cambridge City Council case a developer engaged in the development of offices purchased two semi-detached houses with the intention of demolishing them in order to provide car parking, landscaping and highway improvements.  After using the houses as temporary site offices the developer gave notice to the local planning authority that it intended to demolish them.  Having been informed that it had failed to give six weeks notice required under the Building Act 1984 the developer carried out a limited amount of demolition to make the houses unattractive to squatters.  After various events which we need not recount, but before demolition could be completed, the local planning authority served enforcement notices alleging that the limited demolition amounted to breach of planning control and requiring that the breach cease and that the demolition be made good.

16.      The developer appealed to the Secretary of State and the Inspector quashed the notices.  The local planning authority appealed to the High Court on a point of law; the appeal was allowed and the developer and the Secretary of State appealed to the Court of Appeal.  The appeal turned on the question of whether what was alleged against the developer did or did not constitute or involve development.  The local planning authority had sought to persuade the Inspector that the partial demolition of a permanent building was or could be development within the statutory meaning of that word.  The Inspector, however, regarded total demolition as implicit in the developer's proposals and expressed himself satisfied that this was the developer's intention.  The Inspector did not quash the enforcement notices on this finding alone, as according to the Court of Appeal he could have done, but went on to consider whether the total demolition of the two houses could or did constitute development.  He held that it did not.  The English Court of Appeal agreed with him.

17.      Both parties to the instant appeal drew on dicta in the Coleshill case to support their arguments.  Mr. Voisin directed our attention to the speech of Lord Morris who, while declining to decide hypothetical cases, remarked at page 756B that:

"It may well be that some operations which could conveniently be called demolition would not come within the definition."

He also relied on Lord Wilberforce's statement at page 764H in the following terms:

"Finally there is the appellants' suggestion that the relevant operations must at least be of a constructive character, leading to an identifiable and positive result. .......  I would accept, and think it important to emphasise, that the planning legislation should be approached with a disposition not to bring within its ambit, unless specific words so require, operations in relation to land which do not produce results of this kind, that is to say, results (I deal only with operations, not with use) of a positive, constructive, identifiable character.  In my opinion, the appellants succeed in showing that neither the development of the legislation, nor the successive descriptions of "development," nor the policy of control and, while it lasted, of charge on development, nor common sense or common expectation, require or suggest that the mere removal of a structure, or a building, or of a part of a building should be subject to the code."

Lord Wilberforce went on to endorse the substance, although not the actual wording, of a Government circular issued in 1949 which stated that the Minister was: "advised that the demolition of a building does not of itself involve development."

18.      Mr. Voisin's argument also found some support in the speech of Lord Pearson who said at page 770G:

"....an operation does not qualify as development by virtue of being a demolition or removal operation.  It is not right to say "This is a demolition or removal operation: therefore, it is development"."

19.      The dicta of the Law Lords in the Coleshill case formed the basis of the argument advanced on Janvrin's behalf that other operations must be of a constructive character similar to building or engineering operations.  However, Mr. Binnington disputed the validity of this interpretation of Coleshill.  He pointed out that Lord Morris at page 756A declined to accept the proposition that: "the conception is that of positive construction," and that Lord Guest was unable to detect a positive or constructional genus in the sub-section equivalent to Article 5(2)(a).

20.      Mr. Binnington relied on a passage in the speech of Lord Upjohn in which he said at page 761H:

"But there is nothing in section 12 or elsewhere which makes it plain that demolition per se or simpliciter is necessarily excluded from the very wide words of section 12(1) if otherwise the relevant operation fits within those words as a plain matter of the use of the English language.  In fact there is nothing to exclude demolition."

However we observe that these remarks were in relation to the question of whether demolition which could properly be described as engineering operations was taken out of the section because it was only demolition per se and his Lordship thought that it was not.  We remind ourselves that in the instant case we are considering whether demolition per se may fall within the scope of the other operations limb of Article 5(2)(a) and note that at page 762F Lord Upjohn said that: "it does not seem to me that the question whether demolition per se or simpliciter is a development within section 12(1) calls for determination by your Lordships."

21.      Mr. Binnington pointed out that only Lord Wilberforce adopted the "positive, constructive" approach to the interpretation of the English equivalent of Article 5(2)(a) and he drew our attention to what Lord Pearson said at page 770H:

"There are not in section 12 or in the relevant definitions in section 221 any words excluding operations from being development if they are demolition or removal operations.  An operation is not disqualified for being development because it is a demolition or removal operation.  It is not right to say "This is a demolition or removal operation: therefore, it cannot be development"."

And at page 771F:

"I think the sufficient answer in this case is that if there is a single genus it cannot be of the kind suggested, because it has to include mining operations, which so far as they affect the land are not positive and constructive but negative and destructive operations."

22.      On the basis of the dicta in Coleshill to which he referred us, Mr. Binnington sought to support the passage in the Bailiff's directions to the Jurats in which he said that "the essence of development is the bringing about of some substantial change or physical effect on the land."  He argued that the demolition of Janvrins Farm brought about a substantial change or physical effect on the land: therefore it was development.  He contended that the works in question could be spoken of in the context of, or in association with, or having some relation to, building operations and/or engineering operations and were therefore other operations within the meaning of Article 5(2)(a) of the Planning Law.

23.      Moving on to the Cambridge City Council case, Mr. Voisin argued that it lent powerful support to Janvrin's case.  There was no essential difference in the factual circumstances contemplated in that case than those in the instant case.  So far as is material, the statutory provision was identical to Article 5(2)(a).  Glidewell LJ held, at page 271 that: "demolition of itself is not an "other operation" within the meaning of section 55(1)."

24.      Beldam LJ agreed with the judgment of Glidewell LJ, as did Nolan LJ, who added the following at page 273:

"It is....surprising to my mind that this appears to be the first case in which the courts have had to decide whether the statutory definition of "development" includes purely destructive works, such as those in the present case, which neither involve nor form part of building, engineering or mining operations.  In the absence of authority, I would construe the definition as not including them, for the simple reason that demolition must be a very common form of operation on land, and if Parliament had intended to make it subject to planning control as a general rule I would have expected the Act to refer to it expressly, as it did in the case of works of demolition on listed buildings."

He went on to say at page 274:

"Since the works of demolition in the present case have no constructive element, and would not fall within any of the specific types of operations described in the definition, they cannot in my judgment constitute development."

25.      Mr. Binnington, on the other hand, challenged the validity of the reasoning of Glidewell LJ and by implication that of Nolan LJ, and therefore the relevant conclusion of the English Court of Appeal.  He pointed out that the remarks of Glidewell LJ which we have quoted were expressly predicated on "the principles I have sought to set out at (g), (h) and (i) above."

26.      At page 269 the  learned Lord Justice described principle (h) in the following terms:

" "Other operations" in that definition are operations which, while not of one genus comprising also building and engineering operations, nevertheless "must at least be of a constructive character, leading to an identifiable and positive result," or be "similar to building operations or to engineering operations".   (per Lord Wilberforce and Lord Pearson in Coleshill)."

27.      Mr. Binnington contended that in the way it is put principle (h) overstated the position of Lord Wilberforce by quoting his description of the submission made rather than his Lordship's response to it and failed to make clear that the constructive character approach found no support among the other Law Lords in the Coleshill case.  Furthermore in reaching his conclusion Nolan LJ appears to have been heavily influenced by the speech of Lord Wilberforce in Coleshill but in his judgment does not acknowledge that Lord Wilberforce does not appear to have persuaded his fellow judges that his approach was the correct one.

28.      In our judgment there is force in Mr. Binnington's criticisms of the reasoning of the English Court of Appeal in the Cambridge City Council case and therefore an authority that would otherwise have been highly persuasive loses at least some of its force.  Of course, it does not follow that because the process of reasoning is open to criticism that the relevant conclusion is necessarily wrong.  However, it does mean that we cannot simply adopt the reasoning of the English Court of Appeal on the question before us but must conduct our own separate analysis.

29.      In our judgment the flaw in Mr. Binnington's contentions on behalf of the Crown is that as put they lack any discernible limit.  In particular he conceded that the criteria of some substantial change or physical effect on the land would extend to all works of demolition including those outside the scope of building or engineering operations save those that could be described as de minimis.  Apart from the fact, as pointed out by Mr. Voisin, that this seems to introduce the concept of scale for which there is no authority and to which there is no reference in the relevant portion of the legislation, this approach finds no support in Coleshill.  In other words had the House of Lords considered that all works of substantial demolition came within the scope of the equivalent English provision with which it was concerned one would have expected the Law Lords or one or some of them to have said so.

30.      Furthermore, we cannot accept that it can be left to a tribunal of fact, whether Jurats or Jury, to decide on a case by case basis whether demolition simpliciter not caught by the other relevant limbs of Article 5(2)(a) is or is not to be made the subject of criminal sanction.  This would deprive the statutory provision of legal certainty.

31.      Irrespective of the criticism levelled at the Cambridge City Council case to which we have referred, in our opinion it was clearly correctly decided insofar as it treated the question of whether what was envisaged in that case, and which did not differ materially from what was done in the instant case, fell within the ambit of development as a question of law.

32.      Looking at the legislation itself it is observed that had the States intended that all demolition should constitute development they could quite easily have said so in clear terms.  Article 5(2) may be contrasted with the since substituted Article 9 which by paragraph (4) expressly prohibited the demolition of a building, the subject matter of an order under that Article.  In our judgment this points against all demolition save de minimis demolition or all demolition bringing about some substantial change or physical effect on land or demolition per se or simpliciter, however one puts it, not amounting to building operations or engineering operations, nevertheless constituting other operations within the meaning of that phrase as used in Article 5(2)(a) of the Planning Law. 

33.      Although we have come to the conclusion that the demolition works carried out on Janvrin's behalf do not fall within the scope of Article 5(2)(a) of the Planning Law and therefore do not constitute development we consider that there is an additional reason for quashing the conviction.  The wording of Article 5(2)(a) as applied to the facts of this appeal is, on any view, opaque and remains nonetheless so even after careful and detailed examination of the speeches in the Coleshill case.  By virtue of Article 8(1) of the Planning Law the wording in question is penal in nature and therefore falls to be construed strictly: that is to say as having no wider compass than the wording unquestionably bears (see  AG-v-Ferey (1968) JJ 975 at page 980).  The same approach is dictated by the principle that an owner's right to the full enjoyment of property may be cut down only be clear words.

34.      In our judgment the application of this rule of strict construction in the instant case would also have resulted in Janvrin's conviction being overturned.  We allow this appeal and quash the conviction.  In the circumstances it is not necessary for us to deal with Janvrin's appeal against sentence.

 Southwell JA

35.      The Court has decided pursuant to Article 27 of the Court of Appeal (Jersey) Law 1961 that it is appropriate for a separate judgment to be delivered by me on the question of law in this case.  I do so because I do not agree with Smith and Tugendhat JJA on the answer to the question of law, and therefore as to the disposition of this appeal.

36.      I will first summarise my view of the law, and then go on to consider the underlying reasoning at greater length.  In summary my view is as follows:

(i)        Demolition or destruction of a building or other structure on land can (and I emphasise the word "can") fall within the definition of "development" in the Island Planning (Jersey) Law 1964 as amended ("the 1964 Law").

(ii)       The Bailiff correctly directed the Jurats on the law that destruction can be "development".  As I will indicate later, I consider that the Bailiff incorrectly directed the Jurats that the destruction of the Janvrin Farm buildings could not be "building operations".  He correctly directed them that the operations at Janvrin's Farm could be "other operations", though in my judgment it would have been convenient to have given the Jurats appropriate questions to answer for the purposes of arriving at their verdict.

(iii)      Once the Jurats had been correctly directed as to the law, it was for the Jurats to decide as a matter of fact, having regard to all the evidence before them, whether the particular "operations" at Janvrin's Farm did constitute "development".

(iv)      The Jurats decided by their verdict that these were "other operations".  This was a decision to which a reasonable body of Jurats could come on the evidence before them.

37.      In the light of this summary I turn to a more detailed review of the law, with this preliminary.  The question is one of statutory interpretation of provisions of the 1964 Law, a Jersey statute having effect in Jersey under Jersey law.  In relevant respects the 1964 Law is in the same or similar terms to English statutes.  However, it is not necessarily the case that this Jersey statute is to be interpreted in precisely the same way as the equivalent English statutes, in the different circumstances of the small Island of Jersey and its small community.  "Development" which would be of no real significance in the United Kingdom may be significant in the smaller confines of Jersey.  Much of the argument, both written and oral, before this court involved a minute examination of English case law, often not directly in point, and certainly not directed to the circumstances or the law of Jersey.  Too much of the argument was not directed to the words used in the statute, but to observations of judges in England and Wales which were not always necessary for the decision they had to reach.

38.      Article 8(1) of the 1964 Law provides (inter alia) that

"If any person develops, or causes or permits to be developed, any land without the grant of permission required in that behalf under this Law, ......, he shall, ......, be guilty of an offence and shall be liable to a fine ......."

39.      Apart from Article 8(1) other relevant provisions of the 1964 Law are the following:

Article 1(1) contains these relevant definitions

""Building" includes any structure or erection of whatsoever material or in whatsoever manner constructed, and any part of a building;

"Building operations" includes rebuilding operations, structural alterations of or additions to buildings, and other operations normally undertaken by a person carrying on business as a builder;

"Development" has the meaning assigned thereto by Article 5."

Article 5 provides:

"(1)  Subject to the provisions of this Law, the permission of the Committee shall be required in respect of the development of any land.

  (2)     In this Law, unless the context otherwise requires, "development" means -

(a)        the carrying out of building, engineering, mining or other operations in, on, over or under land;                 

(b)        the creation of new means of access to land from a road and the enlargement of any existing means of access to land from a road, to a width exceeding three feet; or

(c)        the making of any material change in the use of any building or other land:

Provided that the following operations or uses of land shall not be deemed for the purposes of this Law to involve development of the land, that is to say-

(i)         the carrying out of works for the maintenance and repair of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building;

(ii)        the carrying out by a highway authority of any works required for the maintenance of improvement of a road, being works carried out on land within the boundaries of the road;

(iii)       the carrying out by any public or parochial authority or any statutory undertakers of any works for the purpose of laying, placing, inspecting, repairing or renewing any sewers, mains, pipes, lines, cables or other apparatus, including the breaking open of any road or other land for that purpose;

(iv)       the carrying out of works of a description specified in regulations made by the States under this Law;

(v)        the use of any land for any purpose incidental to the enjoyment of a dwelling-house within the same corpus-fundi;

(vi)       the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with the land so used;

(vii)      in the case of land which is used for a purpose of any class specified in regulations made by the States under this Law, the use thereof for any other purpose of the same class.

(3) ..............................................

(4)       For the purposes of this Article, the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated as a material change in the use of that part of the building."

40.      The Bailiff directed the Jurats that for the purposes of the 1964 Law

(i)        the Crown had conceded that the demolition did not amount to "engineering" or "mining" "operations";

(ii)       the demolition did not amount to "building" "operations";

(iii)      demolition could in law amount to "other operations";

(iv)      therefore the only issue for the Jurats was whether on the facts the actual demolition constituted "other operations in, on, over or under land".

41.      The Jurats decided that on the facts the actual demolition works did constitute "other operations" and accordingly convicted JHL.  The Bailiff had at the close of the Crown's case rejected a submission that there was no case to answer, based on the contention that in law the demolition could not constitute "development" for the purposes of Article 8.

42.      The starting point is naturally with the wording of the 1964 Law, and with the meaning of "development" as defined in Article 5.  Points arising on the wording of Article 5 include the following:

(i)        The definition of "development" begins in Article 5(2) with the statement of three categories of operations which are development, unless the context otherwise requires.  The first of these categories is

"(a)     the carrying out of building, engineering, mining or other operations in, on, over or under land".

Mr Voisin submitted that Article 5(2)(a) makes it clear that what is comprised in "development" is work of a constructive nature, and that work of a purely destructive nature, i.e. mere demolition, is not included.  In my judgment this submission is misconceived.  "Mining" operations are clearly destructive, whether opencast or underground.  There is no basis, in Article 5(2)(a), for interpreting "building", "engineering" or "other" "operations" as necessarily excluding destructive operations on land or buildings.  If a house is pulled down so that another can be built in its place, the whole of this process can amount to "operations" within Article 5(2)(a) even though a substantial part of the work is destructive.

(ii)       "Building operations" are defined in Article 1(1) merely as "including" the operations there set out, but are not limited to those operations.  "Rebuilding operations" would often include partial or complete demolition of the building being rebuilt, even if the building was to be rebuilt exactly as it had been before.  It could not be contended with any force that "rebuilding operations" could not include any element of destruction or demolition.  The same points apply to "structural alterations of ....... buildings".  "Additions to buildings" would usually not include demolition, but they might.  "Other operations normally undertaken by a person carrying on business as a builder" is an omnibus phrase which, if relied on by the prosecution, might in a particular case require expert evidence as to whether the operations complained about were operations "normally undertaken by ...... a builder", though in some cases the answer might be so obvious as not to require any such evidence.   Some demolition would be such an operation, for example, demolition of part of a house whether for the purpose of rebuilding or alteration.  Demolition of a mansion house or office block might or might not be such an operation, and evidence might be necessary.  Demolition of a skyscraper would clearly not be such an operation, but might be an "engineering" operation.

As already indicated, the definition of "building operations" is only by reference to the inclusion of some specified operations.  Other operations not so specified would fall within this phrase, for example, the ordinary construction of a house, an office or a factory.  Such construction might involve demolition of a building or structure so as to enable the construction then to take place.  The "inclusive" definition of building operations would not exclude such demolition from being part of the totality of the "building operations" involved in the construction of the house, office or factory.

(iii)      It follows from (2) above that it would not be possible to conclude that demolition cannot amount to "building operations".  It has been argued for JHL that, whatever may be the position as regards demolition as part of a total process involving rebuilding, structural alteration or building, demolition entirely by itself cannot be a "building operation".  But, as already indicated, some demolition may be an operation "normally undertaken by ....... a builder", and therefore within the definition of "building operation", even where what occurs is demolition and nothing else.  This can be tested by considering the owner of land who wishes to pull down a small house and rebuild a large house.  The owner is offered different contract packages: (a) a package consisting of demolition and rebuilding together offered by builder A, and (b) separate packages, one for demolition by builder B and another for building by builder C.  In the case of (a), it is plain that the work involved in the package offered by builder A could amount to "building operations" within the 1964 Law, and there is no reason why in the case of (b) the division of the work into separate contracts should make any difference.

(iv)      The extent of the words "engineering operations" is similar to that of "building operations, and can include both destructive and constructive works.

(v)       "Mining operations" are inherently destructive, and may involve demolition or destruction of land or structures on land, whether by opencast mining or by withdrawal of support through underground operations.

(vi)      The scope of "other operations" is not easy to define.  It is difficult to derive a genus from the preceding words in Article 5(2)(a).  What are included here are operations analogous to building, engineering or mining operations.  In my judgment "other operations" could not be limited to activities of a constructive nature, since, as already indicated, destructive activities are potentially within building, engineering and mining operations.

(vii)     The wording of Article 5(2)(b), which concerns the creation or enlargement of means of access to land from a road, encompasses activities both constructive and destructive.

(viii)    The wording of Article 5(2)(c) read with Article 5(4) does not assist on the question whether demolition can be development.

(ix)      Article 5(2) then contains a long proviso excluding seven categories of operation or uses of land from being "deemed ....... to involve development of the land".  Category (i), internal maintenance and repair, could include internal demolition carried out for this purpose: it follows that the draftsman must have contemplated that some forms of internal demolition would otherwise have been development within Article 5.  The same point applies to category (ii).  Category (iii) expressly includes destructive work of "the breaking open of any road or other land".  It appears (since the Court has not been referred to any regulations) that no regulations have been made by the States for the purposes of (iv) or (vii).  Categories (v) and (vi) do not assist.

43.      In my judgment it is plain from this analysis of Article 5 that destructive operations including demolition of a building can be "development" for the purposes of Article 5.

44.      "Demolition" is not specifically mentioned in Article 5.  It is mentioned in Article 8(1) of the 1964 Law in relation to the enforcement of planning control.  If a building or structure is erected without the grant of permission, an enforcement notice may be issued requiring "the demolition" of the building or structure.

45.      Further, in Article 9, which concerns the preservation of buildings of special architectural or historic interest, provision is made for orders prescribing a list of such buildings.  If a building is on such list, no one may execute "any works for the demolition of the building" unless the requisite six months notice has been given.

46.      Thus in these two contexts in the 1964 Law specific provision is made in respect of "demolition".  Because the States has made this specific provision, it was argued by Mr Voisin that, in the absence of specific mention of "demolition" in the context of "development" in Article 5, Article 5 is not to be interpreted as including demolition or destruction as well as construction.  In my judgment, though there is force in this argument, it cannot override what is clear from the wording of Article 5 that destruction or demolition operations can be "development" within Article 5.

47.      Because so much attention has been given to previous cases (in my judgment, with the effect of largely ignoring the plain words of the 1964 Law), I now turn to some of those cases.

48.      Only one previous Jersey case has been cited.  This is Att Gen v Ferey (1968) JJ 975, a decision of the Royal Court (Inferior Number), Mr F de L Bois OBE Deputy Bailiff presiding.  The facts were that a proposal by Mr Ferey for development of a site, involving the construction of three houses, was approved by the relevant Committee under the 1964 Law, subject to certain conditions which did not relate to demolition.  There were in fact some existing buildings on the site which Mr Ferey proposed to demolish, and on one plan submitted with his application it had been indicated that all these buildings would be demolished.  In the event one of the buildings had not been demolished.  The questions raised were (1) whether the demolition of this building had been an essential part of the development for which planning consent had been given, and if so (2) whether Mr Ferey had committed an offence within Article 8 by failing to demolish the building.  The Royal Court answered question (1) in the following passage at page 979:

"The first question which arises is whether the demolition of a building comes within the definition, a question which, in our opinion, can be answered only in the light of the circumstances of the particular case.  The extreme example is work consisting exclusively of the total demolition of a building.  Is this a building or other operation?  To interpret "other operations" the eiusdem generis rule must be applied, but, in relation to building operations, one cannot justifiably extend the meaning of the expression beyond that attributed to it in the definition of "building operations", that is to say "other operations normally undertaken by a person carrying on business as a builder".  We conceive that a builder is a man who undertakes works of construction and would not normally undertake work consisting of demolition only.  Thus, demolition, not accompanied by work of any other kind, would not in our opinion amount to development.  On the other hand, works carried out by a builder may well necessitate the demolition of an existing or part of an existing building.  If so, the demolition is an operation normally undertaken by a person carrying on the business of a builder and is therefore "development" within the meaning of the Planning Law.  We therefore conclude that the development proposed to be carried out by the defendant in this case included the demolition of the existing buildings."

The Royal Court went on, nevertheless, in answering question (2) to conclude that there had been no offence under Article 8.  It is not necessary in this case to decide whether that conclusion was a correct one in law.

49.      In relation to the passage quoted from Ferey

(i)        it is clear that there is no single genus for the purposes of interpretation, and that the eiusdem generis principle cannot be applied.

(ii)       the definition of "building operations" only refers to certain matters as being "included": it is not an omnibus definition, and in so far as in Ferey the Royal Court relied on it as a complete definition, that was in error;

(iii)      In Ferey it was plain that demolition of the existing buildings was an inherent part of the scheme which was the subject of the application for planning consent, and it was not necessary for the Royal Court to decide whether "demolition, not accompanied by work of any other kind" could amount to "development" within Article 5.

50.      In reaching its conclusions on whether demolition could be "development", the Royal Court in Ferey relied on two of the English cases to which I now turn.  The first is London County Council v Marks & Spencer Ltd [1953] AC 535 HL(E) and reported in the Court of Appeal at [1952] Ch 549.  In that case the question was whether demolition of buildings on a site in 1939 amounted to "works for the erection ...... of a building" within section 78(1) of the Town and Country Planning Act 1947.  Lord Normand in his speech (concurred in by the other four Law Lords) held that demolition of the existing buildings did amount to works for the erection of a building.  In this connection he, together with the majority in the Court of Appeal, assumed (without finally deciding the point) that "demolition works did not require a planning permission" (at pages 541-542).  Because the wording in the relevant English statute was different, and because the judges simply assumed that demolition by itself did not require planning consent, Marks & Spencer is of little assistance in the present case.

51.      In the English statute of 1947 wording similar to Article 5(2)(a), to the proviso to Article 5(2) and to the "inclusive" definition of "building operations" in Article 1(1) was used.  This was repeated in sections 12 and 221(1) of the Town and Country Planning Act 1962.  Wording equivalent to Article 5(2)(b) and (c) appears not to have been included in the 1962 Act.  The wording in the 1962 Act was considered by the House of Lords in Coleshill and District Investment Co Ltd v Minister of Housing and Local Government [1969] 1 WLR 746 HL(E).  The facts in Coleshill were that ammunition depots had been erected during the 1930-45 war, surrounded by blast walls against which sloping embankments had been placed. The blast walls and embankments (which became grass covered) served during the war to protect against blast from an explosion, and after the war to screen the depot buildings from sight.  The post-war owners removed the embankments and intended to remove the blast walls.  The local authority served an enforcement notice alleging development without planning permission and requiring restoration to the previous condition.  The House of Lords unanimously held that (1) the blast walls and embankments were an integral part of the depot buildings within them; (2) the removal of the embankments was an "engineering operation" within the equivalent of Article 5(2)(a);  (3) pulling down the blast walls would involve structural alterations to the depot buildings affecting their external appearance; (4) accordingly the Minister had decided correctly that these two operations constituted "development" and required planning permission.

52.      The reasoning of the five Law Lords differed in several respects, and I refer to each of the speeches in turn to see how the interpretation of the statutory provisions was approached and what conclusion was drawn in relation to works of demolition.  The appellants had argued that all demolition whether of the whole or any part of a building did not amount to "development" within these statutory provisions.

53.      Lord Morris said this about the interpretation of the 1962 Act provisions (at pages 755-756):

"The definition of "development" is set out in section 12(1) and section 221 of the Act.  Subject to certain exceptions, and leaving aside the making of any material change in the use of any buildings or other land, "development" means the carrying out of building operations (which includes rebuilding operations, structural alterations of or additions to buildings, and other operations normally undertaken by a person carrying on business as a builder) or of engineering operations (which include the formation or laying out of means of access to highways) or of mining operations or of other operations, in, on, over or under land.  "Land" means any corporeal hereditament, including a building (which includes any structure or erection, and any part of a building so defined but not including plant or machinery comprised in a building).  "Erection" in relation to buildings includes extension, alteration and re-erection.  Wide though the definition is, it does not include any and every operation on land.  In section 43 is set out the procedure to be followed when it is desired to have a determination whether planning permission is required.  Any person who proposes to carry out "any operations" on land may apply for a ruling.  Had development meant "any" operations in, on over or under land there would not have been included in section 12(1) the words "building, engineering, mining or other."  I think that the word "other" must denote operations which could be spoken of in the context of or in association with or as being in the nature of or as having relation to building operations or engineering operations or mining operations."

Lord Morris went on to confirm the Minister's conclusion, which he described as primarily a conclusion of fact, that removal of the embankment was an "engineering operation".  This by implication (though not expressly stated by him) involved an interpretation of the statute as including destructive activities such as the embankment removal, and he stated (page 756)

"It may well be that some operations which could conveniently be called demolition would not come within the definition [of development]."

So Lord Morris recognised that operations involving destruction or demolition could be development, but particular operations might or might not be.

54.      Lord Guest began by referring to the observations in the Court of Appeal, by Lord Denning MR and Diplock LJ, that if a whole building was demolished this might not be "development", and by Salmon LJ that such demolition might be "development" (page 758).  In interpreting the statute Lord Guest said at page 758 (inter alia):

"I find it difficult to discover any common genus to building, engineering or mining operations. I am certainly unable to detect a positive or constructional genus in section 12(1); "mining operations" are not constructive because the surface of the land is destroyed in the course of the operations."

He also said at page 759:

"I am not, therefore, able to accept the appellants' argument that demolition can never be development."

Lord Guest emphasised that the Minister had correctly concluded in law that destruction could be development, and had gone on to reach a conclusion on the facts, that removal of the embankments did amount to development, which he was entitled on the evidence before him to reach.

55.      Lord Upjohn dealt with the statutory interpretation at pages 761-762 as follows:

"The main submission of the appellants pushed to its ultimate length was that no act of demolition"per se" or "simpliciter" (whatever those qualifications mean - I think they were intended to mean without a view to redevelopment), whether of a complete building or of a part of a building, could in law constitute development for the purposes of section 12.  I cannot understand this argument pushed so far.  Counsel for the appellants rightly pressed your Lordships with the view that in the Act the word "demolition" was only used in relation to cases where corrective action was required after service of enforcement notices or in relation to specially "listed" houses of historical interest which may not be demolished without a special order. But there is nothing in section 12 or elsewhere which makes it plain that demolition per se or simpliciter is necessarily excluded from the very wide words of section 12 (1) if otherwise the relevant operation fits within those words as a plain matter of the use of the English language.  In fact there is nothing to exclude demolition.  In this case the Minister has decided that this demolition is an engineering operation and so within the section.  I do not understand how, if this demolition be properly so described, the fact that it is only demolition per se takes it out of that section."

I note that in this case it is plain that the demolition of most of the Janvrin Farm buildings was with a view to, and as a precursor to redevelopment, as the applications by JHL for planning permission show.  Later, on page 762 he said:

"that a building operation in, on, over or under land includes an alteration to a building which would include mere demolition; the subsection, however makes it clear that to fall within subsection (1) an alteration is limited to a building operation which materially affects the external appearance of the building.  There is nothing to exclude an alteration which is no more than demolition per se."

And finally this:

"My Lords in these circumstances it does not seem to me that the question whether demolition per se or simpliciter is a development within section 12 (1) calls for determination by your Lordships.  All that it is necessary to decide is that, if such demolition is covered, as in this case by other provisions of that subsection, it is not saved from the application thereof merely by reason of the fact that it is only demolition per se or simpliciter."

56.      Lord Wilberforce declined to answer the question whether demolition per se could constitute "development", because the 1962 Act did not segregate out any separate operation for which the label "demolition" was apt:

"It is on the definitions now contained in sections 12(1) and 221 of the Act of 1962 that the appellants seek an answer to the question whether demolition or, as the appellants call it, demolition per se, can constitute development.

Unfortunately I do not think that the question in this form can be answered because neither in the terminology of the Act, nor in its discernible policy as regards development, is it possible to segregate some identifiable operation, for which the description or label "demolition" is apt and to say of it that it does or does not amount to development under the Act.  References, indeed, appear, in various contexts, as, for example in the sections of the Act dealing with listed buildings, or in those which contain enforcement provisions, to demolition, removal, restoration or reinstatement, but these bear meanings which, while appropriate for their subject-matter, carry no consistent implications as regards the meaning of expressions in other contexts.  The Act seems to be drafted empirically rather than logically."

Lord Wilberforce observed at page 764E that if demolition was not included in the general definition of "development" in the equivalent to Article 5(2), then the equivalent of Article 5(2)(i) in the proviso would have nothing to bite on.  He said that there was no "genus" in the words "building, engineering, mining or other operations".  He then said this at pages 764-765:

"Finally there is the appellants' suggestion that the relevant operations must at least be of a constructive character, leading to an identifiable and positive result.  I think that this is near the heart of the matter, and that there is an important element of truth in the argument.  I would accept, and think it important to emphasise, that the planning legislation should be approached with a disposition not to bring within its ambit, unless specific words so require, operations in relation to land which do not produce results of this kind, that is to say, results (I deal only with operations, not with use) of a positive, constructive, identifiable character.  In my opinion, the appellants succeed in showing that neither the development of the legislation, nor the successive descriptions of "development," nor the policy of control and, while it lasted, of charge on development, nor common sense or common expectation, require or suggest that the mere removal of a structure, or a building, or of a part of a building should be subject to the code.  And I think that they derive important support for this argument from the Minister's circular No. 76 of February 15, 1949, in which he stated that he was

"Advised that the demolition of a building does not of itself involve development, although, of course, it may form part of a building operation, or lead to the making of a material change in the use of the land upon which it stood.""

He expressed the view that the circular was relevant to the interpretation of statutes (including the 1962 Act) later than the date of the circular, though he considered the circular inaccurate, in that it should have said that demolition might fall within one of the specific types of operation described in the equivalent to Article 5(2)(a)-(c) and rank as development accordingly.  He concluded that the Minister was entitled to hold that the removal of the embankments was an "engineering" operation and the removal of the walls would be a "building operation".  He ended with these words:

"The Act, in general, as the subject-matter probably requires, is drafted with a wide mesh; its use of expressions, particularly those relating to building, demolition, alteration and the reverse of these operations, is not precise or consistent - as to engineering or mining there is no definition at all - and the sections conferring power of decision on the Minister, in particular section 43, show that decisions on marginal questions as to development - what it is and what it is not - are intended to be left to him through or with his expert and professional staff.""

Thus Lord Wilberforce (1) considered that the relevant operations must be of a "constructive" character, a conclusion not reached by the other Law Lords; (2) held that the mere demolition of the embankments and blastwalls could be "development" and the Minister was entitled to hold that it was; (3) made clear that decisions on "marginal" questions as to what was or was not development were left to the Minister and his staff to decide as questions of fact.

57.      Lord Pearson approved the Minister's conclusion and went on at pages 770-771 to consider the argument that demolition by itself was not "development" in these words:

"The argument for the appellants was mainly based on the proposition that demolition, or demolition in or by itself, or demolition per se, does not constitute development.  I think there is in this proposition some truth but only a limited amount of truth.  On the one hand, there is in section 12 and in the relevant definitions in section 221 no mention of or reference to demolition or removal or any such operation.  Therefore, an operation does not qualify as development by virtue of being a demolition or removal operation. It is not right to say "This is a demolition or removal operation: therefore, it is development."  On the other hand, there are not in section 12 or in the relevant definitions in section 221 any words excluding operations from being development if they are demolition or removal operations.  An operation is not disqualified for being development because it is a demolition or removal operation.  It is not right to say "This is a demolition or removal operation: therefore, it cannot be development." Notwithstanding that an operation is a demolition or removal operation, one still has to see whether it comes within the scope of development as defined in section 12 assisted by section 221.  It may be within the definition of "building operations" e.g. because it constitutes a structural alteration of a building or because it is such an operation as to be normally undertaken by a person carrying on business as a builder.  It may be an engineering operation.  Whether it is or not any of those things depends on the facts of the particular case."

In paragraph 18 of the majority judgment only part of this passage has been quoted.

58.      Lord Pearson then dealt (page 771) with the arguments based on the eiusdem generis principle of interpretation:

"The argument for the appellants also sought to apply the eiusdem generis rule to the words in section 12 (1) "the carrying out of building, engineering, mining or other operations in, on, over or under land."  It was contended that there must be one single genus comprising building, engineering and mining operations, and that the other operations must belong to this genus.  It was further contended that the single genus was of positive, constructive operations and, therefore, could not include any operations of demolition or removal.  I think there is a first step which can properly be taken along this line of argument: the "other operations in, on, over or under land" must be in some way restricted by the juxtaposition of these words with the words "building, engineering, mining": if the "other operations" were any operations whatsoever in, on under or over land, there would be no need to mention specifically building, engineering or mining: therefore, it is to be inferred that the draftsman or Parliament intended to deal primarily with building, engineering or mining operations but also intended secondarily to bring in some other operations similar to these specified operations or to some of them.  This first step would be covered by the maxim noscitur a sociis.  I doubt whether in construing this subsection - seeking the intention to be found in it - it is safe to say that there must be a single genus comprising building operations, engineering operations and mining operations and the other operations must be fitted into that genus.  Another possible construction which can be suggested is that there are three genera and the other operations must be similar to building operations or to engineering operations or to mining operations.  However this may be, I think the sufficient answer in this case is that if there is a single genus it cannot be of the kind suggested, because it has to include mining operations, which so far as they affect the land are not positive and constructive but negative and destructive operations.  For instance, coal-mining demolishes and removes the seam of coal, leaving behind in the land a subterranean hole partly filled with waste and perhaps shored up but not having any utility and possibly causing disturbance and eventually subsidence of the upper strata.  Secondly, there are operations which are both destructive and constructive.  If a piece of ground is cleared of buildings and levelled for use as a sports ground or astrodome, there is a destruction of the buildings and the mounds of earth but there is created the useful flat surface.  In some circumstances it could be regarded as a positive and constructive operation."

59.      I consider that the effect of the speeches of the majority (and perhaps also Lord Wilberforce) in Coleshill can be summarised (so far as relevant) in this way:

(i)        demolition can fall within the definition of "development"; Jurats or a jury would have to be directed accordingly, and it would be wrong to direct that any particular form of demolition or destructive operation (even if the demolition is not part of or accompanied by or the prelude to construction) could not fall within that definition;

(ii)       in any particular case it is primarily a question of fact for the Jurats or jury whether the particular demolition operations are within or without the definition of "development".

60.      The next English case is Iddenden & ors v Secretary of State for the Environment [1972] 3 All ER 883 CA.  For convenience I quote from the headnote the facts and the first holding:

"The appellant acquired a site in a residential area on which were certain buildings, including a workshop.  The appellant applied for permission to replace the existing buildings with a new workshop and garage.  Permission was refused but the appellant nevertheless went ahead and, having demolished the existing buildings, erected new buildings in which he developed a manufacturing business.  The planning authority, in exercise of their powers under S 15 of the Town and Country Planning Act 1968, served a notice on him requiring him to demolish the unauthorised buildings and to discontinue the unauthorised use.  The appellant contended that the notice was invalid on the ground that, because it did not require the re-erection of the buildings which the appellant had demolished, it failed to comply with the requirement of S 15 (5) (b) of the 1968 Act that it should specify 'the steps required by the authority to be taken ....... for the purpose of restoring the land to its condition before the development took place'.

Held - (i)          The steps which had to be specified by the notice were those required to remedy the breach of planning control.  The demolition of the old buildings was not a breach of planning control; the only breach was the erection of the new buildings and their unauthorised use.  Accordingly the notice was valid since it required the appellant to remedy that breach and specified the steps that he had to take."

The question whether the demolition was or was not "development" was not considered by the Court of Appeal in any detail.   Lord Denning MR (with whom Buckley and Orr LJJ agreed) said merely this (page 885):

"The words of the section are 'to remedy the breach'.  That means the breach of planning control.  What was the breach in this case?  If it was the pulling down of the old Nissen hut or the old workshop, then it may be that, in order to remedy the breach, they would have to be restored.  But I do not think their demolition was a breach of planning control.  Whilst some demolition operations may be development (see Coleshill and District Investment Co. Ltd. v Minister of Housing and Local Government), the demolition of buildings such as these was not development.  Mr Iddenden did not need planning permission so as to pull them down.  No doubt the pulling down of the old and the erection of the new was all one combined operation by the workmen.  But in planning law they are different operations.  Mr Iddenden only required planning permission for his new buildings and their user.  The only breach by him of planning control was the unauthorised erection of the new buildings, the concrete base, and the user of the factory.  The enforcement notice required him to remedy that breach.   It told him the steps he had to take.  It was perfectly good."

Lord Denning's dictum that the demolition of the old buildings and the erection of the new buildings were "different operations" in planning law was, in my judgment, of doubtful validity on the facts of Iddenden.  There was one set of operations including both destruction and construction.  I derive little assistance from the unreserved judgment in Iddenden.

61.      The last case is Cambridge City Council of State for the Environment & anor (1992) 64 P&CR 257 CA.  The facts are rather complex and I take them in the main from the headnote:

"Milton Park Investments Ltd purchased two semi-detached houses at 21 and 23 Milton Road, Cambridge, with the intention of demolishing them to provide an area for car parking, landscaping and vehicular access for an office development known as the Westbrook Centre.  Whilst construction of the offices was in progress, the company used the two houses under a temporary planning permission as site offices.  When that consent came to an end, it was intended to demolish the houses and the chief planning officer of Cambridge City Council was so informed in March 1989.  However, the company had failed to give six weeks' notice of the intention to demolish as required under the Building Act 1984.  Accordingly, the company instructed its demolition contractor to carry out only a limited amount of demolition at that time so as to make the houses unattractive to squatters.  Shortly afterwards, the council obtained an interim injunction prohibiting further demolition work to be carried out to the houses.  This was set aside following an inter partes application.  In May 1989, the council served a building preservation notice in respect of the houses on the company which sought to leave to challenge the notice by way of judicial review.  The council then agreed to withdraw the preservation notice.  Two enforcement notices were served in October 1989 alleging that the works of demolition were carried out without planning permission.  No further work took place and the notices were appealed.  The company (inter alia) contended that the works complained of did not constitute or involve development.  The inspector appointed to deal with the appeals by way of written representations accepted this argument and quashed the notices.  The council appealed to the High Court which allowed the appeal and ordered that the matter be remitted to the Secretary of State for the Environment with its opinion.  The Secretary of State and the company appealed against that decision."

62.      It is relevant to note that in the enforcement notices the breach of planning control was alleged to be

"The demolition of part of the premises involving the removal of all slates or roof tiles, battens, and other materials from the main roofs of the premises ... and the making of holes in the ceilings of some of the first floor rooms in the premises without having previously obtained the benefit of planning permission.

The notices required Milton Park to cease the alleged breach of planning control, and to replace the slates or roof tiles on the roofs of the premises so as to match those existing, and to make good and repair the ceilings.  The period for compliance with the notices was six months."

Thus the extent of the actual demolition was relatively minor.  However the inspector decided to act on the basis of the company's intention totally to demolish the houses: whether he was right to do so seems not to have been considered by the Court of Appeal, but it proceeded on the basis that the relevant fact situation was the intended total demolition of the houses to provide additional car parking for the adjoining offices.  The inspector had accepted that demolition whether total or partial could be "development" by reason of the Coleshill decision.  He decided that the total demolition of the two houses to form a car park meant that it was not preparatory to erection of a building and not of such scale or complexity as to be an "engineering operation" in its own right.  It was common ground in the Court of Appeal that the demolition was not a "building operation" unless it was an "other operation normally undertaken by a person carrying on business as a builder", that it was not an "engineering operation", and that it was not otherwise "development" unless it was an "other operation ... on ... land".  The words quoted come from the Town and Country Planning Act 1971 which was in terms similar to the 1962 Act.  At the time when the Court of Appeal was hearing the appeal the 1971 Act had been replaced by the Town and Country Planning Act 1990, and by the Planning and Compensation Act 1991 the 1990 Act had been amended so as expressly to include "demolition of buildings" in the definition of "building operations".  It appears that this express change in the statutory provisions was a significant element for the purposes of the Cambridge decision.

63.      In the main judgment Glidewell LJ summarised his conclusions on the law in this way:

"(a)     Works for the demolition of a building may, but do not necessarily or inevitably, constitute "development" within the meaning of section 55 of the Act of 1990.

(b)       Such works constitute "development" if, but only if, they are properly to be regarded as either

                       (i)         "building operations" as defined in section 336(1)

                                   of the Act; or

                       (ii)        "engineering operations": or

                       (iii)       "other operations ... on ... land."

(c)       Demolition works may be building operations if they are a part of "structural alterations of ... buildings" as in Coleshill.  In such a case the demolition will inevitably be partial only, since if it were total there would be no building left to be altered.

(d)       Demolition works of a particular type or scale may be "operations normally undertaken by a person carrying on business as a builder".

(e)       Demolition works of particular structures e.g. the embankments in Coleshill, may be "engineering operations".

(f)        Whether works of demolition are within any of these categories of development is a question of fact for the decision maker - the Secretary of State or, as in the present case, the inspector to whom he had delegated the decision.

(g)       The definition of development does not comprehend every operation on land.  This is made clear by the words in section 64(1): "If any person who proposes to carry out any operation on land ...

                       (a)        wishes to have it determined whether the carrying out of those operations ...... would constitute or involve development of land ......". 

Thus "other operations ...... on ...... land" in the definition in section 55(1) does not mean all other operations (per Lord Morris in Coleshill).

(h)       "Other operations" in that definition are operations which, while not of one genus comprising also building and engineering operations, nevertheless "must at least be of a constructive character, leading to an identifiable and positive result,"or be "similar to building operations or to engineering operations" (per Lord Wilberforce and Lord Pearson in Coleshill).

(i)        Whether particular works of demolition constitute development within the statutory definition must be decided in relation to those works and not to other projected works to which the demolition is a preliminary.  "In planning law they are different operations": (per Lord Denning MR in Iddenden).  The Marks & Spencer decision does not controvert this proposition.  In that case the works of demolition were held to be"works for the erection of alteration of a building" which, as Jenkins LJ made clear, is a phrase with a wider meaning than "building operations" and apt to include preliminary works of demolition."

64.      There are these points to be made on the conclusions of Glidewell LJ:

(i)        Conclusions (a) and (f) are the most important ones.  The function of the judge is to decide whether as a matter of law the demolition (or other) works are capable of coming within the statutory definition of "development", and no more.  It is for the Jurats or the jury as the deciders of fact (or in circumstances such as in Cambridge the inspector or higher authority, there the minister) to decide whether on the facts the demolition (or other works) do come within that definition.

(ii)       As to Conclusion (h), the quotations from Lords Wilberforce and Pearson are to different, and not the same, effect, as Glidewell LJ seems to have thought.  As  my summary of and quotations from the speeches in Coleshill show, the majority did not consider that, to be "development", operations must be "of a constructive character".  Only Lord Wilberforce expressed this as a general view based primarily on his reliance on the Ministerial circular (though later in his speech he expressed the view that demolition could be development).  The  majority rejected the circular as a guide to statutory interpretation.  In my judgment, so far as concerns Article 5 of the 1964 Law, "other operations" in Article 5(2)(a) include demolition insofar as it is analogous to "building", "engineering" or "mining" operations, all of which may themselves cover demolition, whether total or partial.

(iii)      Conclusion (i) is in my judgment overstated, at any rate for the purposes of Jersey planning law.  It is not open to a developer to divide his operations into two parts, (a) demolition and (b) construction, and then to argue that the demolition operations, because they have been separated off, are not "development" and require no planning permission.  Such an interpretation of the 1964 Law would fly in the face of the authorities already cited which make it clear that demolition may be a "building" or "engineering" or "mining" or "other" operation.  It also ignores the fact that in Cambridge the inspector did not look at the demolition of the houses as a separate operation, but rather as part of an operation involving both demolition and the creation of a car park.  It is for the deciders of fact to determine whether any demolition is truly an operation all by itself, or whether it is part of a larger operation involving building, engineering, mining or other operations.

65.      Both Glidewell and Nolan LJJ appear to have adopted Lord Wilberforce's view that operations must be of a "constructive" character to be "development", though none of the other four Law Lords agreed in Coleshill.  As Smith and Tugendhat JJA have recognised in paragraphs 27 and 28 of their judgment, it would appear to have been inappropriate for the English Court of Appeal to adopt the minority, rather than the majority, view of the House of Lords in Coleshill.  In my judgment this factor, together with the others I have already mentioned, makes Cambridge a less persuasive authority.

66.      Before considering Mr Voisin's arguments on behalf of JHL, I consider it helpful to take stock of the underlying realities:

(i)        No one in the English cases seems to have decided that demolition by itself cannot be "development".  That demolition and destruction by itself can be "development" can be seen from the unanimous decision in Coleshill, which involved only destruction, destruction of the embankments and the blast walls.  If one takes the destruction of a skyscraper, for example, in my view it is clear that this may be an "engineering" operation just as much as was the removal of the embankments in Coleshill.  In my judgment Coleshill is an authority against JHL's arguments, and does not support them.  (Indeed Mr Voisin in his oral submissions expressly accepted that mere demolition could be development.)

(ii)       If, contrary to my view, demolition by itself could not be "development", then it would be an interesting question on the facts of any particular case to decide at what point that part of the works which was not destructive became a large enough part to make the whole works qualify as development.  That question would have to be decided in the usual way by the Jurats.  The question might be a "marginal" one such as Lord Wilberforce described in Coleshill, and the decision might go one way or the other.  I mention this point because in this case Smith and Tugendhat JJA have referred to undue "legal uncertainty" if it were held that demolition can be development and it is for the Jurats in a particular case to decide on the facts whether it is development.  In my judgment that element of uncertainty will be present in almost every decision by the Jurats that what has taken place amounted to development without permission and therefore to a criminal offence, and is in no way specific to this case alone.  It is an element to be found in many modern statutory offences.

(iii)      For the Court of Appeal (or the Royal Court) to decide in a case such as this that the demolition of the Janvrin's Farm buildings could not be development in my judgment involves judges usurping the role of the deciders of fact - here the Jurats.

67.      In the present case the Crown conceded that the demolition of the Janvrin's Farm buildings could not be an "engineering" operation.  I consider that this was an incorrect concession, but as an appellate court we have to proceed on the legal basis as limited in the Court below.  The Bailiff also directed the Jurats that the demolition could not be a "building" operation.  I consider that this direction was incorrect, but again we must proceed on the legal basis as limited in the Court below.

68.      The Bailiff left to the Jurats only the question whether the demolition was an "other operation" within Article 5(2)(a), directing them that the demolition could in law be such an "other operation".  In my judgment the Bailiff was right to leave this question to the Jurats and to direct them accordingly.

69.      I turn in the light of the above to the grounds of appeal against conviction as stated in JHL's notice of appeal, insofar as they raise questions of law.

Ground (i)            The Bailiff erred in law in failing to accede to the Applicant's submission of no case to answer.

70.      As is clear from this judgment, I consider not only that the Bailiff correctly rejected the submission of no case to answer, but that he ought to have left the case with the Jurats on a wider legal basis.

Ground (ii)           The  Bailiff erred in law in misdirecting himself and the jurats as to the meaning of "other operations in, on, over or under land" under Article 5(2)(a) of the Island Planning (Jersey) Law 1964.      

71.      For the reasons already expressed, in my judgment the Bailiff did not misdirect the Jurats.

Ground (iii)          The  Bailiff erred in law in failing to direct himself and the jurats to the effect that "other operations in, on, over or under land" under the said Article must at least be of a constructive character, leading to an identifiable and positive result, so as to constitute development

72.      For the reasons already expressed, which were foreshadowed by all the Law Lords in Coleshill except Lord Wilberforce, this ground is in my judgment misconceived.

Ground (iv)          The  Bailiff erred in law in directing himself and the jurats that the scale of the work undertaken is relevant to the issue of development, particularly as there was no evidence on scale and no guidance to the jurats as to how they were to consider this issue other than a direction that "the essence of development is the bringing about of some substantial change or physical effect upon the land ..."

73.      Mr Voisin on behalf of JHL addressed the scale of the demolition works in the Royal Court (see pages 2-3 of the transcript of his final oral submissions in the Royal Court).  The transcript is not wholly clear:  it reads as follows:

"So if the works do not necessarily, or inevitably, constitute development what brings them within that category?  Well, I do not believe that the scale of the works necessarily ... automatically ... brings me [them?] to the category of development, but even if you consider the issue [of?] scale, to the extent of the demolition to be carried out in four hours, I wouldn't describe that as a scale of works which would be significant or large in its terms."

Since Mr Voisin had addressed the Jurats on the question of the "scale" of the works, it was in my judgment incumbent on the Bailiff to cover this aspect in his summing-up to the Jurats.  He did so in these words (I take the whole passage so as to make the context clear):

""Other operations" means operations which could be spoken of in the context of or in association with or as having some relation to building operations, engineering operations or mining operations.  As to [whether?] "other operations" whatever they may be constitute development, you may take into account the scale of the work.  Something which is small in scale may well not amount to development.  Defence Counsel suggested to you that the demolition of buildings which could be achieved in four hours was not a significant or large operation.  Well, that is a matter for you to consider.  The essence of development is the bringing about of some substantial change or physical affect on the land.  But I make it clear that not every demolition will necessarily amount to development.  It is a question of fact in each case.  You have heard the evidence of what was done on 11th March 2000.  I direct you that the demolition of Janvrin's Farm was capable of falling within the phrase "other operations" in Article 5 of the Island Planning (Jersey) Law 1964.  Whether it did so fall so that the Defendant Company is guilty of an offence under Article 8, is a matter of fact for you to determine having regard to all the circumstances of the case and to all the submissions which have been made to you by Counsel."

In my judgment the Bailiff's direction in this respect was correct, particularly having regard to the way in which Mr Voisin had put JHL's defence.

74.      The final ground relied on by Mr Voisin, as set out in the notice of appeal, was that the conviction was unreasonable and unsupported by the evidence.  It is apparent from paragraphs 39-43 of Mr Voisin's written contentions that this ground was squarely based on the issues of law:

(i)        that "development" had to involve "constructive works" (paragraphs 39, 42 and 43), and it was said that there was no evidence of constructive works;

(ii)       that even if there was a totality of activities intended in March 2000 involving demolition and the erection of a new building, such activities must be kept separate, as demolition cannot be "development" (see Iddenden) and there was no evidence that there was any totality of activities intended to be pursued in March 2000 (paragraph 41).

75.      As to (i), I have already dealt with this legal issue.

76.      As to (ii), the Bailiff did not, in his summing-up, direct the Jurats to consider whether a new building was intended to be constructed by JHL following the demolition, or whether if there was any such intention the Jurats should or were entitled to consider the demolition in the context of any such intention to rebuild.  That was in my judgment correct.  Mr Shepherd in his evidence (page 4 of the transcript) said that there were many possibilities, the site could be redeveloped, alternatively it could be sold on again.  He went on to describe instances in which he had bought properties to sell on, and other instances in which he had himself redeveloped properties he had bought (pages 4-5 of the transcript).  Since there was no specific evidence of Mr Shepherd's, and therefore JHL's, intentions for this property, the Bailiff was right not to make any reference in this respect in his summing-up.

77.      Despite the length of this judgment, the legal issue in this case is short and simple.  Destruction or demolition can be "development" and the Bailiff correctly so directed the Jurats.  It was for the Jurats to decide whether the demolition of the Janvrin's Farm buildings did or did not, on the facts, constitute "development".  They decided that it did.  Accordingly in my judgment JHL's appeal should not be allowed, and the conviction should stand.

                                   

 

 

 

Authorities

Island Planning (Jersey) Law 1964.

London County Council -v- Marks and Spencer Ltd and Others [1953] AC 535 HL(E); [1952] Ch.549.

Coleshill and District Investment Co. Ltd -v- Minister of Housing and Local Government and Another [1969] 1 WLR 746 HL (E).

Iddenden and Others -v- Secretary of State for the Environment and Another [1972] 1 WLR 1433; [1972] 3 All ER 883 CA.

Cambridge City Council -v- Secretary of State for the Environment and Milton Park Investments Ltd.  [1992] 64 P and CR 257 CA.

H.M. Attorney General -v- John Ferey [1968] JJ975.

Town and Country Planning Act 1947: s.78 (1).