Jersey Unreported Judgments

[2009]JRC004

royal court

(Samedi Division)

12^th January 2009

Before     :		J. A. Clyde-Smith, Commissioner and Jurats Bullen and King.
Between	Mrs Susan Kerley		Appellant
And	The Minister for Planning and Environment		Respondent
And	Miss Jenni Riggall		Applicant

The Solicitor General appeared for the Minister.

The Appellant and the Applicant appeared in person.

judgment

the commissioner:

1.        On 27^th November, 2008, the Court dismissed an appeal brought by the appellant under Article 114 of the Planning and Building (Jersey) Law 2002 for the reasons set out in its judgment (JRC 199).   We adopt the definitions contained in that judgment.

2.        Two matters arise, firstly the issue of the conditions as raised by the Court in paragraph 71 of its judgment and secondly, our reasons for refusing the applicant's claim for compensation and costs.

Conditions

3.        The conditions are set out in full in paragraph 35 of the judgment and the Court's concerns in respect of conditions 1, 2, 4 and 9 in paragraph 71.  Both the Minister and the appellant submitted re-drafts of those conditions, although the appellant went further suggesting amendments to condition 3.

4.        The Solicitor General reminded the Court that it had not invited a general review of the conditions, but for the parties' observations on the concerns it had expressed in its judgment.  Weight should be given for the Minister's chosen form of words and variations should only be ordered where it is necessary to do so.  We accept those submissions.

5.        In the Minister's revised condition 1, he now sets out what is meant by "gross margin" which accords with the RES criteria.  The appellant suggested that this definition be expanded to further provide that £20,000 should be derived from sheep or other agricultural activities where best practice demonstrates that it is essential to have a dwelling on site, which is consistent with the test laid down by the Minister in his letter of 5^th July, 2007.  However, the Solicitor General pointed out that this further requirement was issued in the context of an application for a permanent dwelling, but that in relation to the application for a temporary dwelling, reference should be to the RES criteria alone.  We do not regard that stance as unreasonable. 

6.        The Solicitor General accepted that condition 2 still needed to be further amended to allow the Minister to determine the date from which the gross margin must be maintained.

7.        We have considered the other observations of the parties and hereby exercise our powers under Article 114(8)(b) of the Planning Law, to order the Minister to vary conditions 1, 2, 4 and 9 as follows:-

"1.      The temporary dwelling hereby approved (which shall be constructed on removable base pads) shall be for the period until 28 February, 2015.  If by that date the required gross margin of £40,000 per annum (gross margin being a measure of the value of the crops and livestock produced less the variable costs involved in producing them) from the agricultural practices being undertaken on site have not been achieved, then the dwelling shall be removed and the land reinstated to its previous condition in accordance with a scheme of works to be submitted to and approved in writing by the Planning and Environment Department before the expiry date.  The approved reinstatement scheme shall be implemented in full as soon after the expiry date as is reasonably practicable.

2.        Pursuant to Condition 1 above, if the gross margin has been achieved within the period stated, then the gross margin must be maintained for a further 2 years from a date to be agreed in writing by the Planning and Environment Department and the applicant (Jenni Riggall).  If the applicant (Jenni Riggall) and the Planning and Environment Department cannot agree on a date, then the Planning and Environment Department shall determine the date.  Should the gross margin be achieved for 3 consecutive years to the satisfaction of the Minister, then the temporary condition will be removed.  If this is not achieved, then the dwelling shall be removed and the land reinstated to its previous condition in accordance with a scheme of works to be submitted to and approved in writing by the Minister before the expiry date.

4.        The temporary dwelling hereby approved shall enure for the benefit of the applicant (Jenni Riggall) only and shall not enure for the benefit of the land.  In the event of the applicant ceasing to occupy the site, the dwelling shall be removed and the land shall not be used for any purpose other than the lawful use that existed prior to the determination of the application.

9.        The occupation of the temporary dwelling hereby approved shall be limited to a) the applicant (Jenni Riggall) or b) a person solely or mainly employed or last employed in agriculture, or a dependant of such a person residing with him or her."

Compensation and Costs

8.        The applicant applied unsuccessfully for compensation and costs from the appellant and we now set out briefly our reasons.  In terms of compensation, she claimed six months' loss of rental and cost of storage (approximately £6,000) and the loss of a day and a half holiday attending in Court.  In terms of costs, although she had represented herself, she had taken legal advice on her affidavit and planning advice from an architect and planning consultant in respect of which she had yet to be billed. 

9.        Taking first the application for costs which fell to me to deal with alone, the appellant pointed out that this was a third party planning appeal brought under the modified procedure in accordance with Rule 15/3B of the Royal Court Rules, 2004.  It was not intended to be a procedure where costs would be at issue.  This was not a frivolous appeal on her part and if costs were awarded the rights of others to invoke the statutory right of appeal under Article 114 of the Planning Law would be seriously eroded.   It was not in the interests of justice to award costs against her.

10.      I accepted the appellant's submissions, which were consistent with Practice Direction RC06/03 which :-

"in such appeals [under the modified procedure], although either party is entitled to be legally represented or otherwise represented as provided by Rule 15/3B1 of the Rules, the Royal Court will only make an award of costs in such an appeal in exceptional circumstances (whether or not a party is legally or otherwise represented)". 

11.      For these reasons, I refused the applicant's application for costs.  The Minister did not seek costs in relation to this appeal, but expressly reserved his position for future appeals with respect to seeking costs from an appellant.

12.      Turning to the issue of compensation which was a matter for the Court to deal with, Article 114 of the Planning Law is of course a statutory right of appeal, provided that conditions precedent set out therein are met.  The legislation deals with the consequential effect of a third party appeal being brought.  The effect of Article 114(3) - (5) is that the decision to grant planning permission has no effect until the period of 28 days has passed, or an appeal (if made) has been withdrawn or determined (if longer).  In determining an appeal under Article 114, the Court may:-

(i)        confirm the decision of the Minister; or

(ii)       order the Minister to vary his or her decision or any part of it (including any condition of the planning permission) as the Royal Court may specify; or

(iii)      order the Minister to cancel his or her decision to grant the planning permission.

13.      The statutory powers of the Royal Court are not expressed therefore as including the power to make a compensation order in favour of the applicant if the Minister's decision is confirmed.

14.      The Minister is given express statutory protection against claims for compensation (see Article 19(7) of the Planning Law) presumably because, as a matter of public policy, he or she must be in a position to make decisions free from concerns as to whether that decision could give rise to a cause of action.

15.      There is no such statutory protection given to appellants exercising their statutory right under Article 114 of the Planning Law and theoretically, therefore, a claim for damages could be brought by an applicant, but such a claim would need to be founded on a substantive right (outwith the provisions of the Planning Law) and fully particularised and pleaded.  Furthermore, issues of causation, foreseeability and remoteness would need to be considered.  It is difficult to envisage circumstances in which such a claim could be brought against an appellant exercising his or her statutory right of appeal absent evidence of malice. 

16.      In any event, compensation is not something the Royal Court can order in the context of an appeal under Article 114 of the Planning Law and the application was therefore refused.

Authorities

Planning and Building (Jersey) Law 2002.

Kerley v Minister [2008] JRC 199.