Jersey Unreported Judgments

[2009]JRC237

royal court

(Samedi Division)

10^th December 2009

Before     :

Sir Philip Bailhache, Kt., Commissioner and Jurats King and Fisher.

 

Advocate J. D. Kelleher for the Appellant.

Advocate C. R. Dutot for the Minister.

Advocate D. J. Benest for the Applicant.

judgment

the commissioner:

Background

1.        This is a third party appeal against a decision of the Minister for Planning and Environment on 17^th February, 2009, to grant conditional planning permission for a development on land at Westmount Quarry, Westmount Road, St Helier.  The third party is Mr Roger Dunn, to whom we shall refer as "the appellant".  The appellant is the owner of a flat in a block of flats adjacent to the development site known as Regent House.  The applicant for planning permission is a developer, Dandara Jersey Limited, to which company we shall refer as "Dandara".  The proposed development is substantial and includes a number of tall buildings as defined in the Island Plan.  It was described in the application for planning permission in the following terms:-

"Redevelopment of former parish depot and disused quarry to provide 196 residential apartments including 16 sheltered apartments, plus 60 bed nursing home and associated facilities, 60 place pre-school nursery and associated facilities, ground floor artists studio units, basement and covered ground level parking for 281 vehicles with associated plant and refuse areas.  Alterations to existing vehicle entrance.  Creation of new ground level public space to include improved access to protected cemetery, new landscaped residential amenity spaces and regarding, stabilisation and re-planting of existing quarry faces."

2.        This appeal, although directed in law against the permission granted for the entire development, is in reality only concerned with one part of the plan, namely the proposed block D, which is adjacent to Regent House.  It must be added that the chairman and the directors' committee of the company owning Regent House is not opposed to Dandara's plans.  The appeal purported to have been lodged on behalf of other owners at Regent House as well as the appellant, but Mr Kelleher readily accepted that no person other than the appellant, who had made submissions to the Minister, had the legal standing to bring this appeal.

3.        The history of the application must be briefly addressed.  The planning application was received on 1^st August, 2008.  Following the usual advertisement process, a number of letters of objection were received, including one from the appellant.  Amongst the grounds of objection was the contention that the relationship between block D and Regent House was unacceptable by virtue of overlooking, visual mass, and loss of light.  The application was referred to a ministerial public meeting on 21^st November, 2008.  The appellant addressed that meeting, as did a number of others.  The Minister decided that in broad terms he supported the application.  It represented an opportunity to regenerate this part of the town; the quarry presented a good opportunity to locate tall buildings; the architecture was of a high quality.  He expressed the wish that all outstanding technical issues should be resolved by mid January 2009, and he set up a working group to achieve that end.  Importantly, the Minister also decided to examine further the issues relating to the proximity of block D to Regent House. 

4.        On 3^rd December, 2008, the appellant wrote to the Minister complaining that block D, at 15 metres distance from Regent House, would cause an unacceptable loss of privacy, a loss of light, and an overbearing mass resulting from its physical proximity.  On 28^th January, 2009, at a meeting at the Planning Department, a photograph and drawing prepared by a technical adviser, was supplied by the appellant in support of his contentions. 

5.        On 30^th January, 2009, the Minister visited the appellant's apartment accompanied by the Planning Case Officer.  The appellant then confirmed that his objections to the proposed development would be overcome if block D were to be reduced in height by 5 storeys.  The result of these representations by the appellant was the attachment to the planning permission of a condition in the following terms:-

"Condition 1:

Notwithstanding the information on the submitted drawings, prior to the commencement of development a scheme showing the alterations to the east elevation of Block D to include obscured glazing and restricted opening to the windows on Floors 4 to 8 inclusive, and a privacy screen to the terrace for the penthouse, shall be submitted to and agreed in writing by the Minister for Planning and Environment, to be thereafter implemented and maintained in perpetuity.

Reason 1:

In the interests of the preservation of the amenities of the occupiers of neighbouring properties, to accord with Policies G2 and H8 of the Jersey Island Plan 2002."

The Minister declined to accede to the request that block D be reduced in height. 

6.        A notice of appeal was filed on 3^rd March, 2009, appealing against the Minister's decision.  The notice was amended on 4^th August, 2009, to an appeal on the grounds that:-

"In granting the Conditional Permission the Minister's decision was unreasonable having regard to all the circumstances of the case in that the Minister failed to have proper regard to material planning considerations relating to the scale, orientation, design, height and fenestration of the Development contrary to the requirements of the planning policies identified in the Island Plan 2002.  Furthermore, the requirements of Condition No. 1 of the Conditional Permission, failed to address or adequately address the fundamental problems created by the building mass itself and Condition No 1 is an inadequate attempt, having regard to all material planning considerations, to overcome the deficiencies of the application itself relating to the impact of the Development on the appellants' Property, open space, and amenity."

7.        The appellant asserted that the decision was unreasonable, having regard to the alleged failure to take into account policies G2, G3, G4, G5, BE5 and H8 of the Island Plan adopted by the States in 2002.  We will examine these grounds below, but we turn first to the legal test to be applied. 

Legal test

8.        All parties were agreed that the legal test was to be found in a judgment of this Court in Token-v-Minister for Planning and Environment [2001] JLR 698 at paragraph 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."

Submissions of the parties

9.        The appellant's affidavit, so far as it is material to this appeal, records that he and his wife bought the apartment in March 2002 and that they have lived there since.  It is a three-bedroomed apartment of about 1600 sq. ft.   One of the attractions of the apartment is the view towards St Aubin's Bay and Elizabeth Castle, which led to the price for the flat being some 35% more than that of equivalent flats elsewhere in the complex.  The appellant has been advised by an estate agent that the effect of Dandara's development will be to reduce the value of his apartment from £995,000 to around £595,000. 

10.      Two points raised by the appellant, but realistically not pursued with any energy by his counsel, can be shortly dealt with.  The appellant complained that he would lose the fine view of St Aubin's Bay and Elizabeth Castle if the development proposed by Dandara went ahead.  The Minister conceded that this was so.  The law, however, confers no legal right, in the absence of a servitude, to a view.  If a property owner could prevent development from taking place because some desirable view from his property would be adversely affected, hardly anything would ever be built.  As Lord Goff of Chievley stated in Hunter-v-Canary Wharf [1997] AC 655:-

"As a general rule, a man is entitled to build on his own land, though nowadays this right is inevitably subject to our system of planning controls.  Moreover, as a general rule, a man's right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour's enjoyment of his land.  The building may spoil his neighbour's view (See Attorney-General-v- Doughty (1752) 2 Ves.Sen.453 and Fishmongers' Co.-v-East India Co. (1752) 1 Dick. 163); in the absence of an easement, it may restrict the flow of air on to his neighbour's land (Bland-v-Mosely) (1587) 9 Co. Rep. 58a, cited in Alfred's Case (1610) 9 Co.Rep. 57b, and Chastey-v-Ackland [1895] 1 Ch. 389; and, again in the absence of an easement, it may take away light from his neighbour's windows (Dalton-v-Angus (1881) 6 AppCas 740, per Lord Selborne L.C., at pp. 794-795, per Lord Blackburn, at p. 823): nevertheless his neighbour generally cannot complain of the presence of the building, though this may seriously detract from the enjoyment of his land."

The loss of a view may be an element of the loss of amenity to be taken into account in that sense, but it is not per se a material planning factor.  Put simply, you can buy a room with a view, but you cannot buy a view.

11.      The second point concerns the diminution in value of the apartment which, it is said, the appellant will suffer.  This is, again, not in itself a material planning factor except in so far as it might indicate or be the consequence of a loss of amenity.  It is unfortunately the case that the value of a property may diminish as the result of development taking place on adjacent land, and we are prepared to accept that the appellant may suffer in this way.  We accept the grievance which landowners might feel, but planning decisions must be made against a broader backcloth than potential financial detriment.  The discretion to grant or to refuse planning permission should not be turned into an accounting exercise, balancing the losses of a landowner against the gains of another, or of the community.

12.      We turn to the more significant arguments of the appellant.  Mr Kelleher encapsulated the basis of the appeal as being the negative and detrimental effects that block D would have on the appellant's apartment by virtue of its size, scale, massing, orientation and siting.  It was accepted that block D would be, at its nearest point, some 14.5 metres away from Regent House.  The appellant produced for the Minister a drawing indicating the likely view from his apartment following the construction of block D, but the Minister did not accept that this was an accurate representation.  Counsel for the appellant submitted that the new building would occupy a larger proportion of the existing visual corridor, and that its windows faced directly the apartment belonging to the appellant in Regent House.  In particular, counsel submitted that block D would affect the daylight and sunlight reaching the appellant's apartment and that its overwhelming mass would be oppressive. 

13.      Counsel drew attention to parts of the relevant policies in the Island Plan.  Paragraphs (i) and (ii) of policy G2 provides:-

"Applicants need to demonstrate that the proposed development:

(i)        will not unreasonably affect the character and amenity of the area;

(ii)       will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations."

14.      Policy G3 provides:-

"A high standard of design that respects, conserves and contributes positively to the diversity and distinctiveness of the landscape and the built context will be sought in all developments.  The Minister will require the following matters to be taken into account as appropriate.

.....

(ii)       the relationship to existing buildings, settlement form and character, topography, landscape features and the wider landscape setting;"

15.      Policy G4 provides:-

 "Where a development is likely to have a significant impact on the quality and character of the physical and visual environment due to its location, scale or type of development, the Minister will require an applicant to submit a design statement with the planning application.

The design statement should provide details as to how the development responds to the need for quality design and in particular should, where appropriate, set out:

...

(iii)      a detailed landscape and visual impact assessment."

16.      Policy H8 provides:-

"Proposals for new dwellings, extensions or alterations to existing dwellings or changes of use to residential, will normally be permitted within the boundary of the built-up area as defined on the Island Proposals Map, provided that the proposal:

...

(ii)       will not unreasonably affect the character and amenity of the area;

(iii)      will not have an unreasonable impact on neighbouring uses and the local environment by reason of ..... visual intrusion or other amenity considerations; ...

Proposals which do not satisfy these criteria will not normally be permitted."

17.      Counsel submitted that the amount of sunlight/daylight received by the appellant's property contributed materially to its character and amenity.  No expert advice had been sought by the Minister.  Counsel for the appellant contended that the landscape and visual impact assessment prepared by Dandara had focused almost exclusively on the development as seen from the People's Park and the south of the site.  Little consideration had been given to the effect of the development, and particularly block D, upon Regent House and the appellant's apartment.  The mass of this tall building next to Regent House had not been given serious consideration. 

18.      Miss Dutôt, for the Minister, submitted that all these matters had been given full attention by the Planning Department.  She pointed out that the Design Statement prepared by Dandara had observed:-

"The relationship of the new development to the existing [Regent House] building needs careful consideration."

The effect on the amenities of the neighbourhood and the appellant's property in particular was a matter of judgement for the Minister.  The exercise of judgement required a balancing of all the material considerations.  The Minister was perfectly entitled, she submitted, to give greater weight to the overall benefits of the proposed development from the viewpoint of the community than to the narrower interests of the appellant. 

19.      Mr Benest, for Dandara, aligned himself with all the arguments put forward by the Minister.  He submitted that, even if the proposed development took away from the appellant his view, his privacy and his amenities, the Minister's decision was not unreasonable if he had weighed in the balance all the relevant considerations.  That, counsel contended, had been done and the appeal was without substance. 

Discussion

20.      These are powerful arguments.  It is not for the Court to usurp the function of the Minister.  The law gives the Minister the duty and the responsibility of weighing the detriment to neighbours in the balance with the wider benefits to the community.  If the Minister is in possession of all the relevant information, and has given appropriate consideration to all the conflicting arguments, the Court will not overturn his decision unless it has reached the conclusion that his decision is not only mistaken, but also unreasonable.  There is no doubt that the Minister did approach his difficult task with care and with circumspection.  What has troubled the Court is not so much the decision at which the Minister ultimately arrived, but the information available to him at the time when that decision was reached. 

21.      There is no doubt that the Minister was concerned at the impact which the proposed development would have upon the appellant's property.  He took the trouble to visit the apartment and to see for himself.  He was sufficiently concerned at the potential impact upon the appellant's privacy to attach a condition to the planning permission, requiring obscured glazing and restricted opening to all the windows on floors 4 to 8 of block D overlooking the appellant's apartment.  While this condition does indeed mitigate the potential impact upon the appellant's privacy, it is by no means a definitive answer.  The planning condition imposes a duty upon the developer but creates no private rights as between the appellant and his successors in title on the one hand, and the owners or occupiers of the dwelling accommodation in block D on the other.  If standard glazing were later to be installed, the appellant's only remedy would be to seek to persuade the Minister or his successors to enforce the planning obligation.  It would, of course, be open to any of the Minister's successors to waive or even to revoke the condition.

22.      The real substance of the appellant's complaint relates, however, to the potential deprivation of daylight and sunlight, and the overwhelming mass resulting from the construction of this tall building within 15 metres of his windows.  Counsel for the appellant contended that the Minister ought to have procured a report from a suitably qualified expert to demonstrate what effect, if any, would be caused in terms of light.  The Minister's response was that there was no statutory requirement within the Island Plan nor within any supplementary planning guidance for Jersey which mandated that a BRE daylight/sunlight analysis be conducted.  That may well be so, but there is a general duty to make proper enquiry into all relevant matters.   In Taylor-v-Island Development Committee [1969] JJ 1267 the Court stated:-

"It is the duty of the Committee, when considering any application, to make proper enquiry into all matters relating thereto which are, or which may be, relevant and of which it has knowledge.  Where relevant matters are submitted on behalf of the applicant, so that the Committee has knowledge of them, it must, unless it has already accepted the interpretation placed upon those matters by the applicant, make proper enquiry into them."

And, in Guillard-v-Island Development Committee [1969] JJ 1228, the Court stated that:-

"The [Minister] should have before [him], and be in a position to appreciate, all the information relevant and necessary to enable [him] to come to a proper decision on the application."

23.      Did the Minister have the necessary information to enable him to come to a proper decision?  Does it matter that there was no technical or expert information available to the Minister in terms of the potential deprivation of daylight/sunlight, nor in relation to the impact in terms of mass of the proposed development?  Counsel for the Minister submitted:-

(i)        that Dandara's architects were internationally renowned and would have employed their skills and experience of schemes set in an urban context to assess issues of light and mass in relation to the appellant's property;

(ii)       that officials in the Planning Department were also very experienced, and furthermore were competent to advise the Minister on these matters without specialist advice.

We do not doubt in any way the expertise or experience of the architects acting for Dandara nor of the Minister's officials.  At the end of the day, however, it is the Minister who makes the decision; and it is the quality of the Minister's decision that the Court has to assess.  The Environmental Impact Assessment produced by Dandara contained nothing of substance in relation to the impact of the development on Regent House.  It stated that:- "The relationship of the new development to the existing [Regent House] building needs careful consideration" and indicated that the new buildings would be placed at an oblique angle to mitigate overlooking issues.  Sunlight and views were examined in relation to the new buildings, but not in relation to Regent House. 

Conclusion

24.      The Court asked whether or not there were perspective drawings which would assist in understanding whether the appellant's fears in relation to mass were over-stated.  There were drawings from a number of different angles, but not from the perspective of Regent House.  The members of the Court, conscious of their duty to form their own view on the merits of the Minister's decision, looked across Hill Street from the judges' room to the buildings on the other side of the street.  We judged that the distance was about 15 metres, and we tried to imagine the impact of a building rising four storeys or so above that aspect.  With the information available to us, we did not feel competent to make a judgement on the acceptability of Dandara's proposal in relation to Regent House.  We did, nonetheless, feel able to conclude that it was not reasonable to make such a judgement in the absence of perspective drawings and expert advice in relation to light.  It would not be difficult to produce computer generated impressions of the prospective view from the appellant's apartment towards block D if constructed in accordance with Dandara's plans.  The appellant produced a drawing, but it was not regarded as accurate by the Planning Department.  The Department took no steps, however, to require Dandara to produce, through their architects, the kind of perspective drawings which would have enabled the Minister to be fully informed of the potential impact upon the appellant's apartment.  It is true that there was available to the Minister a model of the proposed development, which the Court studied carefully, and found most helpful.  But the model was not an adequate substitute for the kind of additional information which we have in mind.

25.      The Minister took the trouble, as we have said, to attend on site.  He was sufficiently concerned about the impact upon the appellant's apartment to attach a condition to the planning permission to mitigate the threat to the appellant's privacy.  We do not consider, however, with the greatest respect to the Minister's experience, that he was in a position to make an informed decision as to whether the mass of block D, and its potential effect upon the light reaching the appellant's apartment, outweighed the desirability of approving Dandara's plans.  We have some sympathy for the Minister.  He was clearly impressed with the merits of the overall scheme, and did not want to delay giving the requisite permission.  His duty, nonetheless, was to assemble sufficient information to enable him to make an informed decision in relation to the objections articulated by the appellant.  The relevant parts of the Planning Policies require him to do so.  In our judgement, his failure in that respect rendered his decision not merely mistaken but also unreasonable.

26.      We accordingly allow the appeal and quash the planning permission granted to Dandara on 17^th February, 2009.  We direct the Minister to reconsider the objections made by the appellant having obtained:-

(i)        expert advice in relation to the impact of the proposed block D upon the appellant's apartment in terms of daylight and sunlight, and

(ii)       perspective drawings indicating how the mass of block D would relate to the appellant's apartment 

It will, of course, be open to the Minister, having obtained this additional information, to maintain his decision to grant planning permission to Dandara on the basis of the existing plans.  On the other hand, if persuaded that the mass of block D, and its effect upon the light reaching the appellant's apartment would have a seriously detrimental effect upon the amenities currently enjoyed by the appellant, the Minister will be at liberty to require the plans to be modified in some way.  It will be for the Minister to balance these private and public interests in the light of the additional information available to him.

Authorities

Token-v-Minister for Planning and Environment [2001] JLR 698.

Hunter-v-Canary Wharf [1997] AC 655.

Taylor-v-Island Development Committee [1969] JJ 1267.

Guillard-v-Island Development Committee [1969] JJ 1228.