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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Fern -v- Minister for Planning [2012] JRC 034 (14 February 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_034.html Cite as: [2012] JRC 034, [2012] JRC 34 |
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Planning - Third Party appeal against decision by the Minister dated 1st August, 2011.
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Before : |
M. C. St. J. Birt, Esq., Bailiff, and Jurats Clapham and Kerley. |
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Between |
Catriona Jane Fern |
Appellant |
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And |
Minister for Planning and Environment |
Respondent |
The Appellant appeared in person.
Mr D. Mills appeared for the Minister.
judgment
the bailiff:
1. This is a third party appeal by the appellant against a decision of the Minister for Planning and Environment dated 1st August, 2011, to grant planning permission for the construction of a single storey two bedroom dwelling in the garden of Cliff House, La Rue au Moestre (also known as Market Hill), St Aubin.
2. The application site forms part of the garden of Cliff House and is located on the east side of Market Hill. It looks out east, towards the Harbour and the sea over existing properties in Le Quai Bisson and the Bulwarks. The land slopes steeply down to the east, with a high retaining wall at the lower part. Immediately below the site are three terraced houses, the Methodist Church Hall and a commercial building (Mailmate), all of which front onto Le Quai Bisson. The Mailmate premises include a rear single storey flat roof extension which wraps around the rear boundary of the terraced dwellings and abuts the lower retaining wall to Cliff House. The appellant lives in one of the terraced houses, namely 4 Albert Place, Le Quai Bisson.
3. Immediately prior to the hearing of the appeal, the Court conducted a site visit during which, at her invitation, we entered the appellant's property and viewed the application site from her property. We also attended on the application site in order to view the surrounding area, including the appellant's property, from that site. The site visit was undoubtedly of assistance to the Court in appreciating the submissions which were put before it.
4. There have been two previous applications in relation to the site. In July 2005 the applicant (who is the owner of Cliff House) sought permission to construct a large three bedroom house with double garage on the site. Permission was refused in January 2006 for the following reasons:-
"1. That the proposed development by virtue of its scale and mass represents an over development of the site causing a detrimental effect on the character of the area contrary to policies G2, G3 and H8 of the Jersey Island Plan 2002.
2. That the proposed development by virtue of its design and positioning creates an unacceptable level of over-bearing and over-looking to the adjacent properties to the East of the site and fails to satisfy the requirements of policies G2 and H8 of the Jersey Island Plan 2002."
5. In June 2006 a revised application was submitted to construct a detached house and double garage of modified scale, form and design. During the consideration of that application, revised plans were submitted but permission was ultimately refused in October 2009 for the following reasons:-
"1. The proposed development occupies the majority of the site, with limited outdoor amenity space and landscaping, and due to its scale and site coverage, is likely to appear as a cramped development, overbearing upon and resulting in a loss of privacy to, houses in Quai Bisson. It is considered that the proposals would have a detrimental impact upon the character and amenity of the area which is designated as a Potential Conservation Area. The proposals therefore fail to satisfy the requirements of Policies G2 (I, ii, iv and vi) (General Development Considerations), G3 (I, ii and iv) (Quality of Design), H8 (ii, iii, iv, vii, viii) (Housing Development Within the Built up Area), and BE9 (Conservation Areas), of the Jersey Island Plan 2002.
2. The site is narrow and steeply sloping, closely surrounded by other buildings and only accessible for construction and thereafter by a narrow lane with buildings close to its edge, many of them of considerable age. Due to the narrowness and steep gradient of the site, there is no space on site for the storage of materials and equipment during construction. The site is also within a Potential Conservation Area and a Tourist Destination Area, reflecting the area's historic character and importance to the Island's recreational and tourism facilities. It is considered that in these exceptional circumstances, due to the nature and position of the site, the scale of the building, the volume of material to be excavated and the lengthy and disruptive construction process, that the scheme is likely to have an unreasonably harmful impact upon the amenities of residents and the character of the area as a whole. It is therefore considered that the scheme fails to satisfy the requirements of Policies G2 (I, ii, vii, viii, x) (General Development Considerations), H8 (ii, iii, iv) (Housing Development Within the Built Up Area) and BE9 (Conservation Areas), of the Jersey Island Plan 2002."
6. The present application was submitted on 23rd September, 2010. The application was accompanied by a comprehensive Design Statement which the Court has seen. This sought to address a number of the concerns raised in respect of the refused applications. In particular it:-
(i) explained how excavated material would be removed, how any potential land slippage would be addressed and the method and programme of construction work;
(ii) pointed out that, whereas the previous scheme had involved a two storey dwelling with internal floor space area of 297 square metres, the revised scheme was for a single storey two bedroom dwelling of 163 square metres with no garage;
(iii) explained the design measures undertaken to mitigate overlooking of Le Quai Bisson properties, in particular by orientating the building so that the main views from within the building were to the south and north of the rear of the houses fronting Le Quai Bisson and by introducing a glazed balustrade on the eastern edge of the terrace which would lie immediately to the east of the proposed dwelling.
7. The application was advertised and put out to consultation in the normal way. The Parish of St Brelade did not comment on the merits of the development but made various points about access to the site, the need for delivery vehicles to comply with the 7½ tonne weight restriction which exists on Market Hill and for a structural survey to be undertaken of nearby properties before and after the work to ensure that no damage was caused to these properties.
8. The National Trust commented that the proposed development would not be in keeping with the area which was a potential Conservation Area. They also pointed out that it would be seen from the St Aubin's Harbour area.
9. Four local residents objected including the appellant. We have seen those objections and they dealt with a number of different concerns but, for the purposes of this appeal, they referred to the adverse impact on residents of Quai Bisson through over-looking and over-bearing, to the disruption which would be caused during construction, to the danger of potential slippage and subsidence and to the fact that the proposal was not in keeping with the proposed Conservation Area.
10. The St Aubin's Residents Association also raised queries as to whether concrete would be mixed on site or brought in by lorry (because of concerns regarding potential obstruction on Market Hill).
11. Following receipt of these views the planning officer prepared a report on the application which we have seen. It annexed all the relevant correspondence and described the history of the site as well as the relevant planning policies. It dealt with the issues of size and scale, of the impact on neighbours by virtue of over-looking and over-bearing and the concerns in relation to potential landslip and damage to neighbouring properties as well as the construction process. It recommended approval subject to a number of conditions, including one that all balustrading should be obscurely glazed as shown on the application.
12. The previous Minister, Senator Cohen, considered the application at a public hearing held on 11th February, 2011. The then Assistant Minister (Deputy Duhamel) and the Chairman of the Planning Applications Panel were in attendance. The Minister heard representations from Deputy Power and Deputy Jeune, from a surveyor representing the owners of a nearby guest house, from the appellant, from Senator Ferguson and a representative of the Methodist Church whose church hall lies next to the appellant's property in Le Quai Bisson, as well as some other residents and the applicant himself.
13. We have read the minute of that hearing and at the end of it the Minister deferred further consideration of the application pending discussion with the Assistant Minister and the Chairman of the Planning Applications Panel and stated that he would issue a Ministerial decision in due course.
14. Following the meeting the planning officer, having discussed the matter with the Minister, wrote to the applicant's architect by e-mail dated 1st March, 2011, indicating that, although there was potential for a dwelling on the site, there were concerns regarding the extent of excavation and the potential disturbance and damage during construction, which needed to be addressed. To achieve that objective, the extent of excavation needed to be reduced and a lightweight prefabricated method of construction be pursued, so as to reduce the length of the construction period and the potential for disruption and damage. He also emphasised that the Department would need to see that sufficient insurance was in place to cover any buildings which were affected by the works.
15. The planning officer also wrote to all those who had made representations (including the appellant) explaining the Minister's position in the following words:-
"Although it is considered that there remains potential for a dwelling on this site, the applicant has been asked to look at the detail of the scheme again with a view to addressing concerns regarding excavation and disturbance during construction. A decision will be made on the proposals once further information is received."
16. Subsequently, on 20th May, 2011, a meeting was held at the Planning Department attended by officers of the Department, the applicant and his architect, the building contractor and Deputy Power to discuss the issues raised by the Minister. Following that meeting and subsequent discussion, a method statement prepared by the applicant's building contractor, Regal Construction (Jersey) Limited, was submitted. This set out details of the method of carrying out the work. This was sent to the politicians who had made representations inviting any comments within a two week period before the Minister determined the application. This triggered 14 further letters of objection from or on behalf of local residents. The objections were broadly similar to the previous objections, but included the point that, despite the additional information, there was still concern regarding potential damage from the construction work and disturbance during the construction period. The Parish, in a further letter, noted the concerns of local residents and concluded that the site was totally unsuitable for development.
17. Following these representations, the planning officer prepared a further report for consideration by the Minister. This was now Deputy Duhamel following Senator Cohen's resignation on 5th July, 2011. The report, dated 29th July, again recommended approval of the application subject broadly to the same conditions but with an extra one requiring that the development be carried out in accordance with the submitted method statement.
18. The Minister considered the application on 1st August. He had all the papers which had been before the previous Minister in February 2011 together with the minute of the February meeting (at which he had been present) and the further report from the planning officer together with the enclosures to that report. He decided to approve the application subject to the conditions recommended in the report together with an additional condition requiring a further detailed statement concerning the construction method and materials to be used. The reasons contained in the planning permission for approving the application were stated as follows:-
"Permission has been granted having taken into account the relevant policies of the approved Island Plan, together with other relevant policies and all other material considerations, including the consultations and representations received.
In particular, the Minister has had regard to the fact that this site lies within the Built Up Area as designated on the 2011 Island Plan (and on the 2002 Island Plan)where there is no presumption against development.
In considering the very specific objections made by residents to this application, the Minister has taken special steps to ensure that the impact of the development is minimised to a reasonable degree. The Minister has had regard to the constrained and inaccessible nature of the site and its position within a tight-knit part of La Rue au Moestre, St Aubin. In addition to moderating the size and physical impact of the structure on neighbours, conditions have been applied to the permission which seek to control future development and the manner and times in which the dwelling may be constructed. This is to accord with policy GD1 of the 2011 Island Plan, which seeks (at paragraph 3) to ensure that development does not seriously harm the amenities of neighbouring uses."
19. In relation to the reasons for imposing some of the conditions (including the proposed balustrading on the terrace that had to be fitted with obscure glazing in perpetuity) the permit stated at paragraph 7:-
"7. To avoid a loss of privacy to both the approved dwelling and its neighbours.
10. The Minister has recognised the particular difficulties associated with the development of this constrained site and wishes to ensure that every precaution is taken to minimise its impact on the surroundings."
20. In the Ministerial decision which was drawn up and signed on 8th August, 2011, the reason for the decision was given as follows:-
"In arriving at the decision to approve the application, the Minister took into account the reports issued by the Department and the accompanying background papers. In particular, the Minister considered the letters of objection submitted in association with the application, together with the responses of the applicant's architects. The Minister decided to impose various conditions relating to the development, in particular conditions designed to ensure that there be no on-site construction during the weekend and public holidays and to ensure construction methods which would have the minimum impact on residents."
21. The appellant lodged a notice of appeal on 24th August on the grounds of "inappropriate scale and design and overbearing impact and unacceptable loss of privacy for neighbouring residential occupiers as per Reg.2617/E and 2617/G hereby attached". The two attached documents were rejections of applications in respect of a property known as Villa St Aubin, which lies further up Market Hill. The rejections were on the ground of the inappropriate scale and design which would detract from the existing character and appearance of the area and also on the ground that the development would have an overbearing impact and cause unacceptable loss of privacy for neighbouring residential occupiers. During the course of the hearing it was accepted that no direct comparison could be made with the present application because the location of Villa St Aubin is different and the nature of the proposed development was also very different. Nevertheless the appellant relied upon the rejections as showing how important these two aspects are and how they were not taken properly into account in granting the present permission.
22. The Island Plan in force at the time of the application and when Senator Cohen considered the matter in February 2011 was the 2002 Plan. Since then the States has adopted the 2011 Island Plan and the Minister applied the policies under that plan when he made his decision on 1st August. However, it was not disputed between the parties that there is no material difference in the effect of the applicable policies on this site when the 2011 Plan is compared with the 2002 Plan even if the wording used is not the same.
23. The application site lies in the Built-up Area under both plans. Under both plans, new housing is, so far as possible, to be concentrated in the Built-up Area so as to avoid encroachment into the countryside. In the 2011 Plan this priority is described in general terms at page 15 of the Plan and Policy H6 goes on to provide as follows:-
24. Policy GD1 of the 2011 Plan replaces Policy G2 of the 2002 Plan and the relevant part provides as follows:-
25. Policy GD7 dealing with design quality, replaces Policy G3 of the 2002 Plan and is broadly similar to it. The relevant provisions are as follows:-
26. In relation to Conservation Areas, Policy HE3 of the 2011 Plan supersedes Policy BE9 of the 2002 Plan. The relevant provisions of Policy HE3 are as follows:-
No Conservation Areas have as yet been designated by the Minister under either Island Plan. However, St Aubin's Village is identified as a possible Conservation Area under both Plans (see para 3.28 of the 2011 Plan).
27. Finally we were referred by the appellant to paragraphs 4.84 and 4.85 of the 2011 Plan, which were introduced by an amendment lodged by Deputy Jeune. These read as follows:-
We were informed that no detailed planning framework as referred to in para 4.85 has yet been issued.
28. The appellant has filed grounds of appeal, a detailed affidavit with exhibits and she has also addressed us at the hearing. We have carefully considered all the points which she has made and we would summarise those which seem to be most relevant as follows:-
(i) She does not believe that the Minister had time to read, absorb and consider the voluminous papers in this case, given its lengthy planning history. He was only appointed on 12th July, the updated report from the planning officer was dated Friday 29th July and the Minister made the decision the following Monday 1st August. He therefore only had the weekend to consider these matters. The appellant supports that contention by asserting that, at a meeting on 23rd August between the Minister and some of the objectors (including the appellant) the Minister became uncomfortable as the objectors brought their concerns to his attention. She asserts that it appeared that he had been unaware of many of the points raised and had been relying solely on the short updated report from the planning officer together with the minute of the February 2011 hearing, which she contended was incomplete.
(ii) In relation to the February 2011 hearing, she contended that Senator Cohen had required a number of matters to be addressed before he took his decision, but these had not been referred to in the minute. According to her, Senator Cohen had required further details with regard to the construction method, that a more detailed structural survey of the site be carried out, that further test holes be drilled, that further clarification be obtained with regard to the amenity/lay-off area, that evidence of insurance would be required and that a full scaffolding profile should be erected in respect of the application. She asserted that most of these had not been addressed prior to the Minister taking the decision in August.
(iii) The development would be fundamentally unsafe. There was a history of landslides in the area and she referred to the Evening Post of 8th February, 1936, which reported on a landslide in the very area of the site and stated that the face of the hill was composed of gravel, earth and clay.
(iv) The construction work would adversely affect the health, safety and environment of the immediate area and those using it, particularly in respect of vibration during the building operations and in terms of access to and from the site.
(v) The proposed dwelling was a modern design which was totally out of keeping with the traditional charm of buildings in the area. It was completely inconsistent with Policy SP7 which stated in its introduction
(vi) The proposed development would have a serious effect on the privacy of her property and the neighbouring properties in Le Quai Bisson and would overbear and overlook them. No-one had been to view the site from her property prior to the application being decided despite her request that they should do so. In certain respects, the overlooking and damage to privacy were worse with the current application than the previous one because the terrace was some two metres closer than had been the case in respect of the previous application. At present, her house and the neighbouring properties had complete privacy in the rear because they were faced only with a plant covered slope. Now they would be faced with a building which, although it would be no higher than the top of the present slope, would overlook them, would be near to them in terms of the carrying of sound and would lead to a sense of overbearing at the rear of their property which was not present now. The effect in terms of loss of privacy would be particularly noticeable in relation to her daughters' bedroom on the top floor, which has a dormer window which would be only just below the level of the terrace of the proposed dwelling and would therefore be easily seen from the terrace. A decision to allow the dwelling to be constructed would be inconsistent with para 3(a) of Policy GD1.
29. Third party appeals are dealt with at Articles 114 and 109 of the Planning and Building (Jersey) Law 2002. The effect of these provisions is that the Court may only allow an appeal on the ground that the decision of the Minister was unreasonable having regard to all the circumstances of the case.
30. Assistance as to what is meant by "unreasonable" is found in the well known case of Token Limited-v-Planning and Environment Committee [2001] JLR 698 at paragraph 9 where Bailhache, Bailiff said this:-
31. It is important to emphasise that the Court is not the Planning Minister and the right of appeal conferred by the 2002 Law does not substitute the Court for the Minister in relation to planning decisions. The Jurats may well conclude that a decision of the Minister is wrong, in the sense that they would not have reached the same decision. That does not entitle the Court to allow the appeal. It is only if the Jurats consider that the decision was wrong to such an extent that it can be categorised as unreasonable that the Court is entitled to intervene - see also Anchor Trust Company Limited-v-Jersey Financial Services Commission [2005] JLR 428 at paragraphs 13-14.
32. With that background, we turn to consider the grounds put forward by the appellant, using the numbering at paragraph 28 above.
33. As to ground (i) it would of course be a dereliction of duty for a Minister not to read the papers relating to a decision which he was to take personally. However, whilst she may harbour her suspicions, the appellant has produced no evidence to support her assertion that the Minister did not read the relevant papers in this case prior to taking his decision. We do not know when on the Friday he received the planning officer's updated report nor do we know the time on the Monday that he reached his decision. But even if he considered the matter only over the weekend, this still gave him sufficient time to read and consider all the relevant information. Members of this Court are well used to receiving a much greater volume of paperwork for assimilation and consideration over a weekend prior to a hearing on a Monday. As to the impression which the appellant formed at the meeting with the Minister on 23rd August, we do not consider this is a sufficient evidential basis to conclude that the Minister had not properly considered all the relevant background material. On the contrary, the fact that, as described in para 18 above, the Minister imposed a condition which went beyond those recommended by the planning officer shows that he had considered the matter carefully, had applied his mind to it and had reached his own decision. Accordingly we do not consider that this first ground is established on the facts.
34. As to ground (ii), the Court is unable to ascertain from the evidence whether or not Senator Cohen required further matters to be addressed as set out in para 28(ii) above. The appellant asserts that he did whereas the minute, which is very full in many respects, makes no reference to these aspects. But, even if Senator Cohen did request this further information, that could not be binding on his successor as Minister, Deputy Duhamel. It is up to the Minister for the time being to decide whether he has sufficient information to reach a decision or whether he requires further information. Clearly, the less information a Minister has, the more he runs the risk that his decision may turn out to be unreasonable because of a lack of information. But ultimately it is the reasonableness of his decision which has to be considered by this Court. Accordingly this ground alone does not assist the appellant.
35. As to ground (iii) there is insufficient evidence before the Court to allow it to overturn the decision on this ground. The fact that there may have been landslides in the area previously does not show that, in these days of modern engineering, it is not safe to build on this particular site, particularly given that there are houses built all around the immediate area. In any event, these are matters primarily for consideration under the Building By-laws issued pursuant to Article 31 of the Planning and Building (Jersey) Law 2002. Accordingly we cannot find that this ground renders the decision of the Minister unreasonable.
36. As to ground (iv), we accept that this development will cause disruption to neighbours during the course of its construction. However, it is clear that the Minister has considered this aspect very carefully and has imposed a number of conditions to minimise the impact. In the circumstances we do not consider that the decision to allow the development can be categorised as unreasonable on the ground that there will be disruption to neighbours during the period of construction.
37. As to ground (v), these are inevitably matters of subjective taste to a considerable degree. It is certainly true that the proposed dwelling is of a very modern design whereas the surrounding houses are of a more traditional type, as indeed is most of St Aubin. The building will be visible from parts of the harbour. However, as pointed out on behalf of the Minister, the building will be set well down into the site, so much so that its roof will be at approximately the same height as the current ground level. It will not therefore obtrude into the skyline to any significant extent. All in all, the Court feels unable to categorise the decision of the Minister to allow this particular design as unreasonable on the ground that it is not in keeping with the surrounding area.
38. This leaves ground (vi), which is the issue which has caused the Court most concern. Prior to the hearing of the appeal, the applicant had indicated that he would agree to the imposition of an additional condition on the consent requiring the provision of a solid rendered wall and an additional "set-back" wall to create a "planter" in place of the balustrading with obscure glazing contained in the original application. In the Court's view, this further protection was necessary in order to reduce the possibility of persons leaning over the balustrade to look down onto the appellant's property. However it seems highly undesirable to send the matter back to the Minister for the imposition of this condition, with the appellant then having to bring a new appeal against that decision. The whole aim of the modified appeal procedure is to reduce the cost to parties. Accordingly, we propose to proceed on the basis that this additional condition is included and to consider whether the Minister's decision with that alteration can be categorised as unreasonable.
39. There is no doubt that there is a degree of overbearing. At present, the view from the back of the appellant's property is of a bank covered with plants. After the development, the top part of the bank will be replaced with a building which will also be closer to the appellant's property than the top of the bank is at present.
40. There will also be some loss of privacy. We have attended on site and the applicant pointed out her concerns during that visit. We have in addition been provided with certain computer images showing what the view would be from within the proposed dwelling. We have also been provided with a plan showing the sight-lines from certain points within the proposed dwelling. From these the position would seem to be as follows:-
(i) The alignment of the windows means that the main views from within the proposed dwelling are to the north-east and south-east rather than directly over the appellant's property.
(ii) Anyone sitting within the proposed new dwelling will not be able to see the appellant's property. The view will simply be to the sea beyond.
(iii) In order to see the dormer window of the appellant's property from within the proposed new dwelling, a person would have to stand relatively close to the window of the lounge because otherwise the view is obscured by the proposed wall at the eastern edge of the terrace. A person standing in the main area of the lounge will not be able to see the dormer because of the wall. The dormer is of course the highest window in the appellant's property and it follows that there will be no view of windows on lower floors from within the proposed property.
(iv) A person standing on the terrace will be able to look down towards the appellant's property but the construction of a wall and planter should reduce considerably the possibility of persons leaning over the wall to look down to the properties below.
41. When considering the degree of overbearing and loss of privacy, the Court must take into account the fact that this is a heavily built-up area with a relatively high degree of mutual overlooking of properties already. It is clear that the issue of the impact on neighbours in this respect was dealt with by the planning officer in his first report and was therefore brought fully to the attention of the Minister.
42. The Court has considered the matter very carefully. The Jurats are unanimous in concluding that, if they had been the Minister, they would not have granted permission for this development because of the degree of overbearing and overlooking even with the "planter" wall. However, they remind themselves of the fact that such a view does not entitle them to overturn the decision of the Minister, and that in order to do so they have to be satisfied that his decision is so mistaken as to be properly categorised as being unreasonable. This they are unable to do. They consider that the decision falls within the band where reasonable disagreement is possible and in the circumstances they are not entitled to substitute their own view for that of the Minister.
43. It follows that, whilst having great sympathy with the appellant, the Court can go no further than to allow this appeal to the limited extent of directing that an additional condition be imposed to require the provision of a solid wall and an additional set-back wall to create a "planter" in place of the balustrading with obscure glazing. The Court will hear the parties as to the exact form of the order.
