Jersey Unreported Judgments

[2006]JRC088A

royal court

(Samedi Division)

23^rd June 2006

Before     :

Sir Philip Bailhache, Kt., Bailiff and Jurats de Veulle, and Clapham.

 

Advocate S. J. Young for the Appellant

Advocate J. N. F Hawgood for the Respondent.

judgment

the bailiff:

1.        This is an appeal by Richard Peter Ledo ("the appellant") against the decision of the Environment & Public Services Committee (as it was then), to refuse development permission for the change of use of part of field 552, St Saviour and the construction of a new driveway across that field to form an access to various properties at Pigneaux Farm.  The decision was made on 4^th May, 2005 and reaffirmed at meetings of 4^th August, 2005 and 27^th October, 2005.  The notice of refusal gave the following reasons:-

"1.  The development proposed, because of its location and impact would be harmful to the character of this part of the Countryside Zone, contrary to Policy C6 of the Jersey Island Plan, 2002 which presumes against all forms of new development for whatever purpose.  Furthermore, the approval would set a harmful precedent for further such incursions into the Countryside Zone.

2.  The proposal is contrary to Policy C13 of the Jersey Island Plan, 2002 in which there is a presumption against the permanent loss of agricultural land for development or other purposes."

The ground of appeal is that the Committee's decision was unreasonable, having regard to all the circumstances of the case.

2.        Pigneaux Farm was developed in the early 1990s so as to create a number of properties adjacent to the old farmhouse.  The present access from all these properties to the public road runs along the back and to the side of the farmhouse until the track reaches Princes Tower Road.  The use of this track by all the vehicular traffic from the new properties is said to cause dust, inconvenience, and the risk of injury to the appellant's children.  The appellant accordingly wished to divert traffic across field 552 and on to Rue de la Parade, a minor road which joins Prince's Tower Road.

3.        The legal test on appeal was agreed by both counsel as being that laid down by the Court of Appeal in Island Development Committee-v-Fairview Farms Limited [1996] JLR 306 and developed in Token Limited-v-Planning & Environment Committee [2001] JLR 698.  The Court stated at paragraph 9 of the judgment in Token:-

"9  The test to be applied by this court in determining appeals under the Island Planning (Jersey) Law 1964 was settled by the Court of Appeal in Island Dev. Cttee. v. Fairview Farm Ltd. (2). Le Quesne, J.A. stated [1996] JLR at 317):

"The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable. It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view . . .

. . . The duty of the Court on an appeal under art. 21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that that decision was, in its view, unreasonable."

The Solicitor General submitted that the decision in Fairview Farm did not entitle the Court to find that the Committee's decision was reasonable but quash it because the Court had reached an equally reasonable but different decision. We agree. The Court might think that a Committee's decision is mistaken, but that does not of itself entitle the Court to substitute its own decision. The Court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene. There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken. To put it another way, there is a margin of appreciation before a decision which the Court thinks to be mistaken becomes so wrong that it is, in the view of the Court, unreasonable."

4.        Mr Young, for the appellant, advanced a number of arguments on his client's behalf.  As set out in the Notice of Appeal, it was submitted that:-

"1.  the decision of the Committee is inconsistent with other decisions it having failed properly or at all to consider previous decisions of the Committee with regard to similar applications e.g. Field 1007, La Planque Farm, Trinity; Field 579, La Rue du Ministre, St Saviour; Field 398, Bel Air, La Route du Petit Port, St Brelade;

2.  it failed adequately or at all to give proper or due consideration to the decision of the Department of Agriculture and Fisheries dated September 2002 and 2 December 2002 which recognised that Field 552 was ruined for the purposes of agricultural use and, therefore, that the Department would not be opposed to relocation of the driveway and change of use to unconditional, it having already changed its status from Agricultural 'A' grade to 'B' grade;

3.  it failed to adequately or at all to consider the development of field 552 by the Appellant to bring it to its present state;

4.  it failed adequately or at all to consider the safety benefit to Pigneaux Farm of re-routing traffic from 6 houses away from a private dwelling housing small children;

5.  it failed to adequately or at all to give proper consideration to the "Highway" benefit resulting from the application in that the relocation of the drive would remove from Princes Tower Road the access and egress of traffic from 6 properties ill suited to such volume;

6.  it failed adequately to consider the ambit of "Policy C6 - Countryside Zone" ("C6") in that the Committee wrongly adopted the position that there is an "overriding policy presumption against new developments in the Countryside Zone" when in fact C6 states that "to preclude all forms of development would be unreasonable" and that domestic extensions and alterations, limited ancillary buildings may be permitted where the same "would not detract from or unreasonably harm the character and scenic quality of the countryside". In particular the Committee failed to have regard to or consider adequately or at all section 5.48 of the Jersey Island Plan, 2002;

7.  It failed adequately to consider the ambit of "Policy C14 - Safeguarding farmland" ("C13") in that the Committee wrongly adopted the position that there is a "presumption against the permanent loss of agricultural land for development or other purposes" when the land in question had already been downgraded to "B" status and would further be downgraded to "Unconditional" by the body responsible for agricultural land in the Island of Jersey;

8.  it failed to provide any or any sufficient reasons to support its decision, instead relying upon unfounded considerations of possible future development applications;

9.  it failed adequately or at all to give sufficient weight to pertinent factors in relation to the appeal, being safety, public amenity, condition of land and instead wrongly interpreted policy causing it to consider irrelevant, and in the Committee's mind, absolute presumptions and prohibition on development; and

10.  it failed to have proper regard to Article 2 of the Law in that the Committee's purpose is to; inter alia:

(1)  ensure that land is used in a manner serving the best interests of the community;

(2)  to protect and enhance the natural beauty of the landscape or the countryside;

(3)  to preserve and improve the general amenities of any part of Jersey;

   and generally to prevent despoliation of the amenities of the Island

   when in all the circumstances the Appellant's application was designed to and did meet the above criteria."

5.        Counsel for the Appellant wisely did not press his argument on the basis of inconsistency.  While it is true that inconsistency of approach may be evidence of the unreasonableness of a decision, it is rarely helpful to cite other decisions of the Committee (or the Minister) in relation to other properties where the factual matrix is different.  Such comparisons merely add to the cost and complexity of an appeal without assisting the critical analysis of the decision under appeal.

6.        It is true that the Department of Agriculture determined in 2002 that the agricultural value of field 552 was very limited.  That department has stated:-

"A request to amend the agricultural conditions to allow the planting of an orchard was approved by the Agricultural Land Sub Committee in September 2002 as the Sub Committee recognised that the whole of the field was effectively ruined for commercial agriculture when it was used for site service for the development of Pigneaux Farm in the early '90s.  The field was not reinstated correctly and large amounts of builder's rubble are buried just below the surface.

This planning application was considered by the Sub Committee at its meeting of 2 December 2002 and it was not opposed to the creation of a driveway from the existing 7 units to La Rue de la Parade and the change of use of the area in the north east corner as the field was no longer viable.

If the Planning Department were to approve the change of use of the north eastern part of the field, the current agricultural condition that applies to the area would be amended to unconditional."

7.        The parochial highways authorities were divided on the matter; the Parish of Grouville (in which Rue de la Parade is situated) was opposed; the Parish of St Saviour (in which Princes Tower Road is situated) was in favour.  The Public Services Department raised no objection from a technical viewpoint to the proposed new access on to Rue de la Parade.  Counsel for the appellant submitted that there would be positive benefits in that fewer vehicles would use the dangerous access on to Princes Tower Road.  We do not accept that the exit is dangerous, although no doubt it could be improved.

8.        We turn to consider the crucial factors in this appeal, namely whether the Committee was unreasonable in justifying its refusal to grant permission by relying upon Policies C13 and C6 of the Island Plan.

9.        At paragraph 6.59 of the preamble to Policy C13 it is stated:-

"There are demands on agricultural land from outside the industry, such as for housing and recreation. There will be changes within the industry, such as diversification. However, it is wise to employ the "precautionary principle" and continue to safeguard farmland for all but essential community or economic purposes or for reversible uses such as woodland."

The Policy itself provides:-

"There will be a presumption against the permanent loss of agricultural land for development or other purposes. Where exceptions are proposed, that nature of the proposed use and the impact on the viability of the agricultural holding will be taken into account."

10.      In Le Maistre-v-Planning & Environment Committee [2001] JLR 452, the Court stated:-

"A presumption is not a strait-jacket. A presumption carries the connotation that, in the absence of more compelling considerations, a decision will go a particular way. But if there are other compelling considerations, a presumption may be overridden."

If reliance upon Policy C13 had been the sole basis for the Committee's decision, we think that it might have been skating on thin ice.  The agricultural value of the land in question is accepted by the Department of Agriculture as being minimal.  As farmland, the part of field 552 which is subject to this appeal is probably not worthy of being safeguarded.

11.      The more relevant policy in this case is Policy C6 which related to the Countryside Zone.  The Countryside Zone is to be given a high level of protection and there is "a general presumption against all forms of new development for whatever purpose".  Of course, not all development in the Countryside Zone is prescribed.  The Policy concludes that:-

"in all cases, the appropriate test as to whether a development proposal will be permitted will be its impact on the character of this zone and whether it accords with the principles of sustainability which underwrite the Plan."

12.      The Court has a great deal of sympathy for the Appellant.  He has taken considerable care to improve the environment around his property.  He took advice as to hedgerow planting and has greatly improved the appearance of field 552 which had been left in an unsightly and bad condition by the development company.  He has levelled it, removed detritus and sown meadow grass.  There is no doubt that the diversion of vehicular traffic from the other adjoining properties would add greatly to the amenity, and value, of his own house.

13.      The Committee took the view however that a driveway which cut across field 552 in the manner proposed would be harmful to the character of this part of the Countryside Zone and we agree.  The aerial photographs of the property which were placed before us serve to underline the effect which the creation of this driveway would have.  The Countryside Zone is under constant threat and creeping domestication of even small corners of it can have a detrimental effect upon the whole.  Even the requirements of the highway authorities for relatively large visibility splays can have a detrimental visual effect upon the character of country lanes which were not designed for significant traffic. 

14.      We have given careful consideration to all the arguments ably deployed by counsel for the Appellant.  It is impossible, however, for the Court to find that the decision of the Committee was unreasonable.  The appeal is accordingly dismissed.

Authorities

Island Development Committee-v-Fairview Farms Limited [1996] JLR 306.

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

Le Maistre-v-Planning & Environment Committee [2001] JLR 452.