Jersey Unreported Judgments

[2010]JRC143B

royal court

(Samedi Division)

3^rd August 2010

Before     :

Sir Philip Bailhache, Kt, Commissioner, and Jurats Le Cornu and Liddiard

 

Advocate P. C. Sinel for the Appellant.

Howard Sharp, Q.C. HM Solicitor General for the Minister.

judgment

the commissioner:

Background

1.        On 30^th March, 2007, Alexander Burnett ("the appellant") purchased Dawn Villa House, Le Vieux Beaumont, St Peter ("the property") from Hedley Lawrence Le Ruez, together with an adjoining field numbered 818 to the south and east of the property ("Field 818"). 

2.        On 22^nd August, 2007, the Minister for Planning and Environment ("the Minister") granted permission to the appellant to carry out sundry works including the construction of a swimming pool and pool house at the property.  Work began, but during a site inspection in October 2007 it became clear that, amongst other unauthorised works, the pool house had been constructed in part on Field 818 and to a size and scale much greater than had been actually permitted.  On 4^th October, 2007, a revised application was submitted, inter alia, in relation to the pool house.  A full report was prepared and submitted to the Planning Applications Panel ("the Panel") which visited the property and discussed the matter on 24^th January, 2008.  The Panel received the appellant's architect, Mr James Naish.  The minute of the meeting records that Mr Naish acknowledged that his client had not followed the appropriate procedure but that his actions had been borne out of frustration.  The Panel expressed its grave concern and ordered that the pool house should be demolished within three months and that Field 818 should be returned to its original state. 

3.        A report of the Panel's conclusions was published in the Jersey Evening Post.  The reporter stated that Mr Naish had defended his client's actions and stated that the pool house would be invisible from the main road once the hedge had grown.  Mr Naish was reported to have added:-

"He knew that Agriculture would not be interested in that piece of land and he took that as an OK to nudge it forward.  What started off as a nudge ended up 5 metres or so".

That statement was not disavowed in Mr Naish's affidavit. 

4.        On 5^th February, 2008, a planning permit was issued consenting to various amendments to the approved plans.  Condition 1 of the permit provided:-

"The change of use of part of Field 818 to residential curtilage and the construction of the pool house are not approved.  The pool house must be demolished (including its foundations), the field boundary must be reinstated in its former location and the part of the field to the south-east of the original boundary must be returned to its previous appearance and condition, all within a period of 90 days from the date of this notice.  For the avoidance of doubt, the extent of the property's residential curtilage shall be as per that previously approved on drawing no. P/2007/1374 U.  The pool house approved under the former application (P/2007/1374) may then be constructed, or if this is unable to be achieved on account of the swimming pool now having been relocated, then an alternative position may be considered, but must be agreed in writing beforehand with the Minister for Planning and Environment."

There was no appeal against that decision. 

5.        Nothing was done to comply with the Panel's decision that the pool house should be demolished.  On 12^th June, 2008, an enforcement notice was issued under Article 40 of the Planning and Building (Jersey) Law 2002 ("the 2002 Law") requiring the appellant to:-

"(a)      Remove of all buildings and terraces, including foundations, constructed south-east of the south-eastern boundary shown on Naish Waddington Architects' Drawing No. 4768/02/Revision B (Drawing 'U' on an earlier planning permission under reference P/2007/1374, granted on 22 August, 2007), within the land to which the notice relates. 

(b)       Reinstate the former condition of the land, including topsoil, as grassland. 

(c)       On completion of the above, install a suitable means of enclosure to the new domestic curtilage of the residential property on the boundary indicated in (a) above, to be agreed by the Minister for Planning and Environment."

6.        On 9^th July, 2008, the appellant lodged a notice of appeal against the enforcement notice.  This appeal was not pursued in accordance with the rules governing planning appeals because the parties agreed that it should be stayed.  By Act of 21^st October, 2008, Commissioner Clyde-Smith ordered, by consent, that the appeal should be stayed until further order of Court. 

7.        Further discussions apparently took place with a view to agreeing a measurement of the site, presumably, although it is not clear from the papers, in order to assist the appellant to establish that what he had done had taken place within the curtilage of the property.  Nothing came of those discussions. 

8.        On 30^th July, 2009, the appellant filed an application to vary or remove a planning condition, i.e. condition 1 attached to the planning permit of 5^th February, 2008.  On 18^th August, 2009, a submission was filed by the appellant's legal advisers setting out the reasons why it was contended that the condition should be removed.  We shall turn to those submissions below.  The application was considered by the Panel on 12^th November, 2009, which deferred its decision in order to consider further information which was promised by Mr Joseph Carney, a surveyor acting for the appellant.  The application was reconsidered by the Panel on 15^th December, 2009, which again received Mr Carney.  There was a discussion, and the Panel then decided to refuse the application.  The stated reason was:-

"By virtue of its position within Field 818, its size, prominence and its proximity to La Route de Beaumont, the pool house and associated encroachment into the open, undeveloped field is considered to have an unreasonable, adverse impact upon the character and scenic quality of the Countryside Zone and is, accordingly, contrary to the provisions of Policies G2 and C6 of the Jersey Island Plan, 2002."

9.        On 13^th January, 2010, the appellant lodged a notice of appeal against that decision, setting out a number of grounds, and linking this appeal to the notice of appeal filed on 9^th July, 2008. 

10.      On 9^th March, 2010, the Master of the Royal Court ordered that the parties should comply with a consent order dated 15^th February, 2010, but this was not placed before us.  We assume that the parties agreed that the two appeals should be consolidated. 

Procedural muddle

11.      The Solicitor General invited the Court to dismiss the appeal on the ground that it was in substance an appeal against the decision to refuse development permission on 5^th February, 2008.  The appeal was now out of time, the 28 days stipulated in Article 113(2) of the 2002 Law having long since expired.  The appellant's application in August 2009 to review the condition was in reality an attempt to challenge the February 2008 decision and to circumvent the appeal process and the relevant time limits.  While this submission may be technically correct, it is not an argument which we are inclined to accept.  The procedural muddle which has developed over the last two years seems to us to stem entirely from the actions of the Planning Department in February 2008 in failing to issue a notice of rejection of the retrospective application to construct the pool house and to change the use of land by extending the curtilage of the property into Field 818.  Instead of reflecting the Panel's decision in that way, the Department included in the planning permit for other building works the condition to which we have referred in paragraph 4 above.  This so-called condition was not in fact a condition at all, but was a rejection of the proposed change of use and construction of the pool house.  As a result of this error, the appellant was not notified of his right to appeal against the decision which is standard practice when a notice of rejection is issued. 

12.      Error was built upon error when the enforcement notice was issued on 12^th June, 2008, referring to the condition and the failure to comply with it, rather than to the unlawful development per se.  The tangle became only worse when the appellant applied on 30^th July, 2009, under Article 21 of the 2002 Law to vary the so-called condition.  Article 21 empowers the Minister to vary or remove a condition attached to a planning permission, and to "amend the permission accordingly".  This condition had nothing to do with permitted works of development.  It was, as we have stated, actually a rejection of an application to carry out certain works.  An application under Article 21 was entirely inappropriate in the circumstances, and should not have been accepted. 

13.      The result is an impossible procedural tangle.  We think that the only fair approach for the Court to take is to cut the Gordian knot and to treat this appeal de bene esse as an appeal out of time against the Minister's decision to refuse to consent to the retrospective application to build the pool house and to change the use of part of Field 818.  We take the grounds of appeal to be essentially those set out in the appellant's subsequent appeal against the decision of the Panel of 15^th December, 2009.  We accordingly give leave to the appellant to appeal out of time against the decision of 5^th February, 2008, and will consider the appeal on its merits. 

The test on appeal

14.      The statutory ground of appeal is set out in Article 109 of the 2002 Law which provides:-

"Grounds of appeal

(1)       An appeal under Chapter 2 may only be made to the Royal Court on the ground that the action taken by or on behalf of the Minister was unreasonable having regard to all the circumstances of the case."

Both the Solicitor General and counsel for the appellant agreed that the legal test to be applied by the Court was set out in Token-v-Planning and Environment Committee [2001] JLR 698 at paragraph 9:-

"9.      The test to be applied by this court in determining appeals under the Island Planning (Jersey) Law 1964d 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."

15.      The arguments of the appellant can be grouped under three sub-headings, namely the exempt development contentions, the Island Plan contentions, and other miscellaneous complaints.  It is convenient to take the last first. 

Miscellaneous complaints

16.      Mr Sinel for the appellant complained of apparent bias on the part of the Panel.  On 24^th January, 2008, the Panel was driven for a site visit to Field 818 by Mr Peter Le Gresley, a planning officer.  The complaint is that Mr Le Gresley had prepared a report recommending that the appellant's application be rejected; he should not therefore, it is said, have allowed himself or been allowed to act as a chauffeur for the Panel.  We see no force whatever in this complaint.  It is the duty of planning officials to advise the Minister and the Panel, and whether they do so in writing or on a journey to a particular site under consideration seems to us immaterial.  Counsel also complained of alleged statements by members of the Panel.  According to an affidavit sworn by the appellant, the Constable of St Saviour, a member of the Panel, stated at a meeting on 26^th January, 2008:-

"Irrespective of what you apply for I will not be supporting it.  I never supported the four 1-bedroom applications, and I certainly will not support anything else that you bring to the table".

It appears that the appellant complained to the Assistant Minister, Deputy Pryke, who agreed that the Connétable should not sit at the next meeting of the Panel on 5^th February, 2008.  We have received no evidence from the Connétable, and it may be that the Connétable was misrepresented.  If, however, remarks of that nature were made, they were improper.  Nonetheless, whatever the truth of the matter, the Connétable did not form part of the Panel which made the decision on 5^th February, 2008, and there is therefore no substance in this complaint. 

17.      Counsel for the appellant also complained of remarks made by Deputy Power on 15^th December, 2009, when the Panel was considering the application to lift the so-called condition.  The minute of the meeting records:-

"The Panel discussed the matter and Deputy S. Power of St. Brelade took exception to what he perceived as Mr. Carney "lecturing the Panel" on the perils of refusing the current application.  Deputy Power stated that the applicant appeared to have a history of ignoring details on approved permits.  Mr. Carney stated that whilst he had not represented the applicant from the outset on the current application he had acted on his behalf in respect of other schemes and that although there had been some contention in relation to certain work carried out at the public house formerly known as the Bond, his client did not have a history of ignoring approved plans."

Mr Carney had appeared before the Panel on behalf of the appellant and had clearly made forceful submissions in his client's interests.  The reference to previous contentious issues by the Deputy was perhaps injudicious but Mr Carney was able to respond to them and we do not think that any fair-minded observer would consider that the proceedings were thereby tainted. 

18.      A further complaint advanced by counsel for the appellant related to the measurement of Field 818.  The appellant contended that the boundary between the residential part of the property and the adjoining Field 818 had been incorrectly determined by the Minister.  It is contended that, if the extent of Field 818 were properly measured, it would be seen that the building works fell within the curtilage of the dwelling house and were then arguably exempt development.  We will revert to the question of curtilage and exempt development below, but we do not think that the Minister acted unreasonably in declining to agree that the matter could be resolved by a survey. 

Exempt development contentions

19.      Counsel for the appellant contended that the construction of the pool house and changing rooms were exempt development.  This is a difficult submission in that, if they were exempt development there would have been no need for a planning application.  Yet the appellant did make a retrospective application for planning permission, and paid the requisite fee.  Nonetheless, in view of the departmental administrative errors, it is important to consider the arguments on their merits.  

20.      It is also necessary to examine exactly what allegedly unauthorised development is in question.  The appellant has constructed (in part) a pool house to the south of the swimming pool and changing rooms and an open Jacuzzi pool to the south-west of the pool.  The changing rooms are not specifically mentioned either in the so-called condition or in the enforcement notice of 12th June, 2008.  The enforcement notice required the removal of "all buildings and terraces, including foundations, constructed south-east of the south-eastern boundary shown on Naish Waddington Architects' drawing No. 4768/02/revision B" (to which we shall refer hereinafter as "the architects' 2007 drawing").  There seems no doubt that the changing rooms and Jacuzzi area are embraced by this notice even if they are in fact to the south-west rather than to the south-east of the boundary line in question on the architects' 2007 drawing.  There seemed to us to be two structures, namely the pool house and the changing rooms/Jacuzzi.  Can it be said that (a) the pool house and (b) the changing rooms/Jacuzzi area are exempt development?

21.      The relevant statutory provisions are contained in the Planning and Building (General Development)(Jersey) Order 2007 ("the 2007 Order"), although this Order has now been replaced.  The 2007 Order was in force on 5^th February, 2008.  Article 2 provides:-

"Permitted development

(1)       Planning permission is hereby granted by the Minister for the classes of development described as permitted development in Schedule 1.

(2)       The permission granted by paragraph (1) is subject to any relevant exceptions, limitations or condition specified in Schedule 1."

Part 1 of Schedule 1 at Class B provides:-

 "Permitted development   B1      The erection ... within the curtilage of a dwelling house of -

(a)   a structure required for a purpose (other than habitation) incidental to the enjoyment of the dwelling house as such;".

We interpose that plainly the pool house, changing rooms and Jacuzzi area are all designed to be "incidental to the enjoyment of the dwelling house". 

22.      Class B goes on to provide, however, that work is not permitted if, inter alia:-

(i)        "any part of the structure, building or enclosure exceeds the maximum height of (i) 3.5 metres if the roof is pitched, (ii) 2.5 metres if the roof is flat, or

(ii)       the total external area of any structure, building or enclosure erected under this Class and Class C of the Part of this Schedule since the commencement of these Regulations exceeds 25 square metres. 

23.      Mr Carney's second affidavit referred to the internal dimensions of the structures whereas the 2007 Order refers to the total external area.  The second affidavit of Mr Jonathan Gladwin, senior planner of Planning & Building Services, suggests that the exemption should be tested against the total aggregated external area of any structures erected under this class.  Although this may now be appropriate under later legislation, this seems to us to be equally incorrect in relation to the 2007 Order.  The exemption refers to the erection of "a structure required for a purpose ...incidental to the enjoyment of the dwelling house".  The purpose in relation to each of the pool house and changing rooms/Jacuzzi is different.  Each must be considered on its own.  The external area of the pool house is clearly well in excess of 25 square metres, although Mr Carney's drawing of March 2010 does not tell us exactly what the area is.  By contrast, according to the same drawing, the area of the changing rooms without the Jacuzzi area is 19.67 square metres.  With the addition of the Jacuzzi area, we think it must exceed 25 square metres.  As to the height of the pool house and changing rooms, it seems to us probable that they exceed the permitted maxima, although the affidavit evidence before us appears to be silent on the exact external dimensions.   Mr Carney gives the internal dimensions, but that does not assist. 

24.      The appellant has, however, at least one more serious difficulty in sustaining the submission that either the pool house or the changing rooms/Jacuzzi can be regarded as exempt development.  Article 59(1) of the 2007 Order provides that:-

"Nothing in this Order permits development contrary to any conditions imposed by the Minister on the previous grant of any planning permission."

As the Solicitor General pointed out, the planning permission granted on 22^nd August, 2007, contained the following condition:-

"1.       The development hereby approved shall be carried out entirely in accordance with the plans and documents permitted under this permit.  No variations shall be made without the prior written approval of the Minister for Planning and environment or an authorised officer of the Development Control section of Planning and Building Services."

The additional works were not carried out "entirely in accordance with the plans ... permitted under this permit" and cannot therefore be saved by the provisions of the 2007 Order. 

25.      Furthermore, the saving provisions of the 2007 Order operate only "within the curtilage of a dwelling house".  "Curtilage" is not defined in the 2007 Order nor in the 2002 Law.  It is an ordinary English word and must be given its natural meaning.  According to the New Shorter Oxford English Dictionary, 1993 edition, Volume 1, it means "a small court, yard, or piece of ground attached to a house and forming one enclosure with it".   Clearly, the word must be interpreted with due regard to the nature and scale of the property in question and its adjacent land. 

26.      Counsel for the appellant sought to persuade us that the area of Field 818 as described in the contract of purchase and other administrative records could help to define the curtilage of the property in this case.  We do not think that it can.  We found the aerial photographs of the property which were placed before us to be more persuasive evidence.  The property was built on a part of Le Clos des Boulles which adjoined a larger field later given the number 818.  At the time of its purchase by Mr Le Ruez in 1968 it included a greenhouse and outbuildings which can be seen on the 1997 photograph in close proximity to Beaumont Hill (La Nouvelle Route de Beaumont).  In 1970, Mr Le Ruez acquired Field 818; at that time the boundary between Le Clos des Boulles and Field 818 was defined by two boundary stones but they appear now to have gone, and no evidence was given about them.  All the land therefore came into the ownership of Mr Le Ruez.  By 2003 the aerial photograph shows that either a greenhouse or an outbuilding in Le Clos des Boulles had disappeared, but there remains a clearly defined line between the edge of Le Clos des Boulles and Field 818; it is possible that a fence divides the two pieces of land.  Well inside Field 818 is a structure which is described in the affidavit of Mr Gerald Le Ruez (son of Hedley Lawrence Le Ruez) as a summer house; it was apparently used by his parents for sunbathing and relaxation.  Notwithstanding that fact, the 2003 and 2006 aerial photographs make it very clear that the summer house was not within the curtilage of the property. 

27.      A further aerial photograph was taken in 2007.  By this time, some encroachment into Field 818 appears to have taken place, and a fence or some form of enclosure now divides the area adjacent to the summer house and Le Clos des Boulles from the remainder of Field 818 to the south.  The aerial photograph of 2008 shows that the building works extend over what was part of Field 818 and the site of the summer house.  We have no doubt that the curtilage of the property did not and does not extend to the area of the disputed works.  Although nothing turns on this, it is clear from the architects' 2007 drawing that the appellant's own architect took the same view. 

The Island Plan contentions

28.      The Minister's decision was that by virtue (inter alia) of "its size, prominence and proximity to La Route de Beaumont, the pool house and associated encroachment into the open, undeveloped field [was] considered to have an unreasonable, adverse impact upon the character and scenic quality of the Countryside Zone and .... [was] contrary to the provisions of policies G2 and C6 of [The Island Plan]".  The relevant provisions of policy G2 appear to be:-

"POLICY G2 - GENERAL DEVELOPMENT CONSIDERATIONS

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;

(iii)      will not have an unreasonable impact on agricultural land;

(iv)      will not have an unreasonable impact on the landscape, ecology, archaeological remains or architectural features and includes where appropriate measures for the enhancement of such features and the landscaping of the site;"

29.      Policy C6 relates to the Countryside Zone in which Field 818 falls.  Policy C6 provides that "this zone will be given a high level of protection and there will be a general presumption against all forms of new development for whatever purpose".  The policy continues:-

"The Planning and Environment Committee recognises, however, that within this zone there are many buildings and established uses and that to preclude all forms of development would be unreasonable.  Thus, the following types of development may be permitted where the scale, location and design would not detract from, or unreasonably harm the character and scenic quality of the countryside;

(i)        domestic extensions and alterations;

(ii)       limited ancillary or incidental buildings within the curtilage of a domestic dwelling;"

30.      Counsel for the appellant submitted that the Minister had been unreasonable in refusing to agree that the disputed works could be regarded as an appropriate "domestic extension".  In time the pool house and changing rooms would be invisible from the public road.  The Department of Agriculture had confirmed that Field 818 was of no agricultural value and there was no objection to the limited loss of agricultural land.  No objections from any neighbours had been received.  Counsel submitted (although there was no evidence on this point) that the cost of demolishing the works and reinstating the land would be over £100,000.  There were no grounds for concluding that the disputed works would unreasonably harm the character and scenic quality of the countryside.  

Conclusion

31.      There is considerable force in the appellant's contentions.  This Court might not have reached the same conclusion as the Panel, but our task is to determine whether the Panel's decision was not just mistaken but unreasonable.  The Solicitor General reminded us that the Countryside Zone is to be given a high level of protection, and that there is a general presumption against all forms of development.  This presumption sometimes calls for hard decisions.  As the Court stated in Ledo-v-Minister of Planning and Environment [2006] JRC 088A:-

"The Countryside Zone is under constant threat and creeping domestication of even small corners of it can have a detrimental effect on the whole".

If it is in order to extend 5 metres into Field 818, why not 10 metres, or 15?  Furthermore, it is not that the appellant made an innocent mistake.  He quite deliberately flouted the planning rules and determined to "nudge" the building works into an area where he knew he had not been permitted to build.  It is impossible to characterise the decision of the Panel to refuse retrospective planning permission as unreasonable.  The appeal is accordingly dismissed. 

Authorities

Planning and Building (Jersey) Law 2002.

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

Planning and Building (General Development)(Jersey) Order 2007.

Ledo-v-Minister of Planning and Environment [2006] JRC 088A.