BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Wakeham -v- Minister for Planning and Environment [2012] JRC 106B (24 May 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_106B.html Cite as: [2012] JRC 106B |
||
[New search] [Help]
Planning - Third Party appeal against decision of Minister dated 4th November, 2011.
|
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Fisher and Marett-Crosby. |
|
Between |
Elias Marius John Wakeham & Others |
Appellants |
|
And |
Minister for Planning and Environment |
Respondent |
|
And |
Style Group Limited |
Applicant |
Advocate JH. J. Heath for the Appellants.
Mr D Mills on behalf of the Minister.
Advocate M. L. Preston for the Applicant.
judgment
the deputy bailiff:
1. This is an appeal by thirteen appellants against a decision of the Minister for Planning and Environment on 4th November, 2011, to grant planning permission for the construction of a new office building with associated landscaping and parking on land at La Rue des Sapins, St Peter. The application site forms part of the Landes du Marche site. It has been vacant for some time, with the most recent user as that of a vehicle compound. Access to and from the site is from the adjacent Landes du Marche site onto La Grande Route de St Pierre.
2. The site is located within the built up area. Under the 2011 Island Plan Proposals map, the site was zoned as a protected industrial site. There is no dispute that although the applicant submitted its application prior to the adoption of the 2011 Island Plan, it is that Plan which is relevant for the purposes of the Ministerial decision, and therefore for the purposes of the present proceedings.
3. The application was to construct a two storey rectangular building with a footprint of around 30m by 15m parallel to the site's north-west boundary with field 555. The building would be about 14m from the public road, La Rue des Sapins, at its nearest point. The overall height would be 8m.
4. The grounds for appeal are annexed to this judgment. In essence, they are that the decision of the Minister was unreasonable in that he failed to take into proper account the policies defined in the 2011 Island Plan, past case histories and the impact that the construction would have on neighbouring properties and on protected species. Within those general grounds, the appellants assert a lack of procedural fairness.
5. On 2nd February, 2012, the Master made an order that the appeal should be heard under the modified procedure, but that there should be oral hearing of the appeal, as the appellants requested.
6. The application received by the Minister was to "construct new office building and form a new vehicular entrance from La Rue des Sapins". The application was submitted by the applicant and refers to land to the rear of Marks and Spencer, La Rue des Sapins, St Peter. The site included a hard surfaced car park, a grass bank that abutted La Rue des Sapins and field 555, with vehicle access via the Landes du Marche site. The building was owned by Century Holdings Limited. To the east and south-east are a number of dwellings, to the north agricultural land and a dwelling, and to the south car parking for the commercial site and beyond that more dwellings. The remainder of the Landes du Marche commercial site lies to the south-west. The site abutted the countryside and a church to the north-west.
7. The application site was previously used as a gas bottle storage compound and a two to three metre high sloping embankment along the eastern and north-western boundaries was constructed as a preventative measure to channel any potential explosive blasts over the top of the adjacent houses. The existing car parking is enclosed by a two metre chain link fencing at the base of the sloping embankments and positioned to the south-west of the site is a warehouse shed, which is currently being occupied by a number of commercial outlets.
8. The application site is currently protected as an industrial site under the Island Plan.
9. The application was proposed upon the basis that the main function of the new building would be to accommodate the administration branch of the applicant, which has an agreement to purchase the land, subject to planning approval, so that the manufacturing operation of the company could be relocated within the existing adjacent warehouse building if the new office building were constructed.
10. The Landes du Marche site has incrementally changed over a number of decades from agricultural use to a mixture of light industrial, commercial and retail uses. The site was designated as industrial land in the Island Plan 2002, reflecting the use of the land at that time. Retail uses have been permitted since in parts of the site used for car showroom and sales.
11. The application was received on 8th December, 2010. It was advertised for the usual consultation process, and comments were received from the Environment Department, the Parish of St Peter, the Transport and Technical Services Department, the Environmental Health Officer at Health and Social Services and in addition twenty two letters of representation were received from thirteen separate sources with two petitions from local residents. Representations were also made on behalf of the site owner.
12. As a result, amended landscape proposals were submitted by the applicant on 1st February, 2011.
13. On 4th February, 2011, there was a departmental design review group meeting, attended by both the case officer and the department architect. A public meeting was held on 16th March, 2011, chaired by the Connétable of St Peter. Members of the public were able to discuss the plans directly with the applicant and its agent. The planning case officer attended only for the purposes of observing the proceedings.
14. On 19th April, 2011, the case officer visited the site for the purposes of assessing the scaffold profile which had been constructed, and the submitted drawings. The intention was to assess the impact of the proposal on the neighbouring properties, on the character of La Rue des Sapins and the wider area. Following that site visit, the case officer wrote up a departmental report dated 1st June which was reviewed by senior staff in the department. The Minister is understood to have undertaken an unaccompanied site visit to observe the scaffold profile as well.
15. On 10th June, 2011, the Minister considered the application at a public meeting. He heard from the department architect, the agent and the architect for the applicants, who explained the basis of the design of the building, the percentage for art contribution and the intended use of the vehicular access. The Minister heard the representations of a Mr Platt, who objected to the application on the grounds that the application was contrary to Island Plan policies, would cause noise disturbance, be overlooking, overbearing and intrusive and would cause shadowing of neighbouring land. In the event, the respondent deferred the application pending receipt of further information. In so doing, the Minister stated that the proposed entrance onto La Rue des Sapins would not be permitted and that alterations would be required to the percentage for art contribution and to an element of the design of the building.
16. Amendments to the proposal were received. Amended plans were submitted by letter dated 17th October. There was a routine Ministerial meeting between the Minister and the case officer on 21st October when this application was raised, although the Court has not been given any details of what was discussed. There were further amendments to the proposals subsequently tendered by the applicant on 24th October. The case officer and the Minister attended on site on 2nd November. Note was taken of the agreement of the applicant to make a planning obligation agreement. On 4th November, 2011, having considered the departmental report and the proposed planning obligation agreement, the Minister approved the application subject to conditions, including a requirement that the applicant enter into a planning obligation agreement.
17. On 7th November, 2011, a planning department official sent a letter to the applicant's architects enclosing a note of the Minister's decision. What was apparently attached was a planning permit which is in these terms:-
"The Minister for Planning and Environment, having considered your application hereby GRANTS PERMISSION TO DEVELOP LAND under Article 19 of the Planning and Building (Jersey) Law 2002.
Construct new office building and new vehicular access from La Rue des Sapins. Model available. AMENDED plans: omit proposed vehicular access, additional landscaping. To be carried out at:-
Land to the rear of Marks and Spencer, La Rue des Sapins, St Peter."
18. It is not entirely clear why the planning permit should both approve new vehicular access from La Rue des Sapins and at the same time note amended plans which omit the proposed vehicular access. However when one looks at the reasons for approval, it is clear that the creation of a new vehicle entrance to the site from La Rue des Sapins is not approved.
19. The reasons for approval are set out over the following five pages of the permit. This is a discursive, perhaps rather ambulatory, recital of what has been received, what has been discussed, what has been objected to and what the objectors' concerns were but it is certainly a very full statement. In summary, it appears to us that the reasons for the decision were:-
(i) Although the application was inconsistent with the policies contained within the Island Plan, the Minister was satisfied that there was sufficient justification to grant a permit for the development having regard to all the circumstances of the case.
(ii) On the 2011 Island Plan Proposals map, the site was zoned as a protected industrial site, but the broad thrust of the relevant policies of the new plan, insofar as they related to this development, remained largely unchanged. The application therefore continued to represent an exception to policy but the Minister was entitled to grant consent should he consider there were sufficient grounds to do so.
(iii) The applicant has confirmed, since June 2011, that it was prepared to enter into a binding legal agreement to occupy floor space within the adjacent industrial shed in the event that permission was granted for the new office development, thereby tying the new development to the existing industrial shed. This was considered sufficient justification to grant permission in this case.
(iv) Although objection had been taken by adjoining residents that the building would be overly large, visually intrusive and therefore inappropriate to the surrounding context, the Minister did not believe that the impact would be unreasonable.
(v) To cope with the objections from neighbours as to overlooking from the first floor, the approved plans would require that windows facing neighbouring properties to the east were obscurely glazed.
(vi) The reduction in the height and width of the existing roadside bank would not be a significant problem, notwithstanding the objections of neighbours, because the new use of the site would be that of an office building, which is not an inherently noisy use, and the lower bank would be densely planted as part of the redevelopment of the site. Reducing the bank in its height and width would increase the useful site area which the Minister accepted made good sense from an operational perspective.
(vii) Overall there would be an attractive finish for the project because there would be a significant amount of landscaping and greenery reintroduced across the site as a whole.
(viii) A prominent percentage for art contribution was integral to the design and the scheme, which achieved a building research establishments environmental assessment method rating of "very good", meaning that it had been designed in such a way as to increase sustainability and minimise environmental impact.
20. The planning permit then sets out eight conditions which were applied, and the reasons for those conditions. Those reasons noted that the planning obligation agreement was required to ensure that the new office building would be related to the industrial operations within the wider industrial site, with other reasons which go to particular conditions imposed.
21. In her submissions before us, Advocate Heath really concentrated on the following points. She alleged that material policies were not taken into account by the Minister, and in particular she pointed to the fact that the planning official's report made no reference to Policy NE1 in the 2011 plan. She noted that the proposed development would infringe the Code of 1771, and she asserted that the Minister ought to have taken that into account. As importantly, the Minister failed to take into account Policies C10 (of the 2002 Island Plan), NE2 and NE4. In relation to Policy NE2, the Minister had not paid any or any adequate attention to the impact, from the reduction in the height and width of the bank, on the common toad. In relation to Policy NE4, it was said that the banks were of biodiversity importance and there was a breach of that policy in giving approval, which meant that a material consideration had not been taken into account. It was further asserted that there was no sufficient justification under any of the Island Plan policies to depart from the terms of Article 19 of the Law. She pointed out that notwithstanding the comments of the Environmental Health Officer, mentioned above, the matter was never remitted back to him.
22. As to the question as whether a planning gain was in principle a legitimate planning factor to take into account, she agreed that in principle it was but she asserted that it was unreasonable to have regard to any planning gains in this case. She pointed out that if the planning obligation agreement fell short in any respect, her clients as third parties had no recourse, and she asserted that there should as a result have been a tighter condition attached to the terms of the consent. Finally, she asserted that the model which was produced was an inaccurate model, and that there was no proper consultation. As a result, the process adopted by the Minister had not been procedurally fair, and that the result was that the Minister's decision was unreasonable in all the circumstances of the case.
23. Advocate Heath contended for the Aappellants that a number of material policies in the Island Plan 2011 were not taken into account. The first policy to which she referred was Policy NE1 which is in these terms:-
24. This is a new policy which does not appear in the Island Plan 2002 in the same terms. There is therefore no legitimate criticism to be made of the planning officials who prepared the report for the Minister in November 2010, which naturally was prepared on the basis of the Island Plan 2002. Nonetheless, this policy was the effective policy at the time the decision under appeal was made.
25. Clearly insofar as this policy is concerned, we are not considering the total or partial loss of a protected site. However, there is a judgment call to be made as to whether the proposed development would seriously adversely affect biological diversity. We do not consider that it would be unreasonable to conclude that the development would not seriously adversely affect biological diversity, but we think that the policy as a general statement of the need for conservation and enhancement of biological diversity is one which needs to be borne in mind when we look at the other policies which are to be considered.
26. It was submitted for the appellants that the Minister had failed to take into account sufficiently the material policies set out in Policies NE2 and NE4 of the Island Plan 2011. Policy NE2 is in these terms:-
27. Policy NE4 is in these terms:-
28. Policy NE4 expands what was Policy C10 of the Island Plan 2002. It is clear that significant importance is attached to the protection of banks and hedgerows.
29. Advocate Heath made the point that the consultation which was carried out by the Minister on the original application occurred during the first six months of 2011, prior to the adoption of the new Island Plan. Accordingly, there was no consultation in terms on the effect of Policies NE1, NE2 and NE4 with the relevant Highway Authority, the St Peter's Roads Committee, with the Environment Division and with the Environmental Health Officer. That was important for the following reasons:-
(i) Pursuant to Article 2 and Schedule 1 Part 1 of the Conservation of Wildlife (Jersey) Law 2000, the common toad is a protected wild animal.
(ii) There was evidence before the Planning and Environment Department in the form of a letter from Mr Malcolm Macready who lives nearby that any reduction in the bank or hedgerow along the north eastern boundary bordering on La Rue des Sapins might have an effect upon the wildlife which fed and lived on that bank, putting their habitat at risk. His letter of 4th January, 2011, makes that point, and it is reaffirmed in his letter of 18th February where he said that "the bank is not stark and harsh; it supports a variety of flora and fauna".
(iii) Reliance was also placed on an affidavit sworn by Mr Macready, although not until March 2012, when he said that he had a successful toad breeding pond in his garden, as another neighbour Mrs Scally also had, and at least seven toads were killed crossing the road from the bank. It was said that that shows that the bank was of importance to the common toad as a protected species.
30. It seems to us to be clear from the evidence put before us that the Minister did not consider Policy NE2. On behalf of the Minister, Mr Mills merely submitted that it would be unreasonable to expect the Minister to make further enquiries about the common toad, the first mention of this arising as it did in the affidavit of Mr Macready, sworn after the decision now appealed was taken. He submitted that the Minister did not have to seek out all information in relation to the natural environment, but only had to make reasonable enquiry. He relied on the decision of this Court in Farina-v-Minister for Planning and Environment and Another [2010] JRC 103. In that case, Commissioner Clyde-Smith said at paragraph 26:-
31. When considering an application for planning permission, the Minister is charged under Article 19 of the Law to take into account all material considerations. In particular, he is charged to grant planning permission if the proposed development is in accordance with the Island Plan. By paragraph (3) of the same Article, he is entitled to grant a planning permission that is inconsistent with the Island Plan but he shall not do so unless satisfied there is a sufficient justification for doing so. It follows from these provisions that the Minister is required to have regard to the policies which are contained within the Island Plan.
32. Policy NE2 is worded in very specific terms. Planning permission will only be granted for development that would not cause significant harm to animal species protected by law or their habitats. Where a proposal may have an adverse effect on protected species or habitats, an applicant is expected to undertake an appropriate assessment demonstrating proposed mitigation measures.
33. It appears on the evidence that the Court has that there is a protected species living in the bank to the north-east of the application site. It is clear that the Minister did not consider Policy NE2 because he was not aware of the protected species living there. It does not appear as if he has made any enquiry as to whether there was a protected species living there. Had he made enquiry, then in accordance with the authorities mentioned, the Court might have to consider whether the extent of the enquiries made was proper and reasonable. The effect of Mr Mills' submission is that Policy NE2 would not have to be considered by the Minister unless someone told him that there is a protected species living in or about the development site. If that were right, there would be no obligation on the Minister to make any enquiry at all and he could make his determination of a planning application without an assessment of Policy NE2 even if perhaps he deliberately chooses not to make enquiry as to whether there might be a protected species in the area. The Policy has presumably been inserted into the Island Plan and approved by the States because it is intended, at least as a starting point, that the Minister should make preliminary enquiry as to whether there are protected species in the development site. In this case, no such enquiry appears to have been made, and as it is a countryside site, that appears to us to be unreasonable. Furthermore, the Minister was put on notice that there were fauna on the bank. Given the terms of Policy NE2, that required the Minister to make some enquiry as to what those fauna were. We recognise that part of the problem in this case may have arisen because the application was first submitted and consulted upon under the Island Plan 2002, whereas at the time the decision was taken, the relevant Plan was the Island Plan 2011. It may seem cumbersome that a fresh set of consultations should have taken place, but the Law does require the Minister to take his decision in accordance with the Island Plan policies and if the material policies changed, as they did, then it was necessary for the Minister to make enquiry in relation to the new policies.
34. We recognise that the Law cannot be construed so as to impose on the Minister an unduly cumbersome and expensive process. He does need to make only reasonable enquiry of the material planning considerations when considering a planning application. Nonetheless, he is required to consider the Island Plan Policies and where there is a policy, framed as Policy NE2 is framed, he is required to make sufficient enquiry so as to satisfy himself that granting permission would not cause significant harm to protected animal or plant species or their habitats. In practice no doubt the Environment Department will give such advice when consulted on particular application.
35. Accordingly, we find that the Minister acted unreasonably by failing to consider Policy NE2.
36. The next objection raised by the appellants was that the Minister had not properly considered Policy NE4. It was said that the bank was of biodiversity importance and the breach of Policy NE4 was a material consideration not taken into account. Reliance was placed in particular on the fact that the consultation response from the Environment Department, dated 29th December, 2010, referred to the St Ouen's Bay planning framework and in particular to Policy SO5 dealing with trees, hedgerows, earth banks and so on, and Policies SO6 to 9 dealing with nature conservation. No policies other than the St Ouen's Bay planning framework policies were referred to. In particular Policy NE4 was not referred to. That is unsurprising because the consultation took place at a time when the 2002 Island Plan was the operative Plan. To that, Advocate Heath submitted that there should have been a fresh consultation when dealing with a new Policy.
37. The Court has noted that the response of the Environmental Health Officer was dated 7th June, 2011. The officer visited the site and concluded as follows:-
"I do not envisage any noise issues from the air handling plant as it will be housed in a plantary, is a significant distance from the nearest house and there is a 4-5m bank in between which should assist in reducing the noise.
The only recommendation is the height of the bank remains to assist in reducing any general noise from the development. I believe this will happen, however I recommend it is conditioned to ensure that it actually does occur."
38. As we have indicated, revised plans were submitted over the period between June 2011 and the time the decision was taken in November 2011. The reduction in the size of the bank does breach Island Plan Policy NE4, in our view, and there is nothing that we have seen in the context of the planning permit or its conditions which indicates that this was taken into consideration. Accordingly, in our view the Minister acted unreasonably by failing to take into account a material planning consideration. There is no information before us as to how the Minister have might have balanced this planning policy against other planning policies, because there is no indication the policy was taken into account at all.
39. Insofar as the reduction of the bank is concerned, and following the obligation which the Court has to form its own view on the merits, the Court considers that any reduction in the height and size of the bank would be unfortunate. We cannot make an assessment as to whether it would be unreasonable to approve a plan which included such a reduction, because we have not seen any balancing of the different considerations which would give us the opportunity of considering argument on that point.
40. The next point made by the appellants was that there was no sufficient justification for the purposes of Article 19(3) of the Law in departing from Plan Policies NE1, NE2 and NE4, or Polices EO1 and EIW1.
41. The essence of the complaint in relation to Policy EO1 was that it contains this paragraph:-
42. The Minister's reasoning in relation to this part of the decision was that although new large scale office development would not normally be permitted outside the St Helier town centre, and this was not a small scale office development (because it was around 703 square metres), the intention of the applicants was that they should move from their present out of town office to relocate from their existing base, thus releasing that site for development. The application site was being used as a vehicle compound, and therefore there would not be any loss of existing industrial land in the sense that an existing industrial use or user would be displaced by the proposed scheme. Given the proximity of neighbouring residences, the Minister considered that the proposed office development was potentially a far more benign and neighbourly use than would be the case for a genuine industrial use.
43. Advocate Heath agreed that a planning gain was in principle a legitimate and material consideration for the Minister to take into account, although she submitted that it was unreasonable in this case. In our view the Minister acted entirely reasonably in considering that the planning gain from granting this permission would outweigh the effect of Policies EIW1 and E01 and E03 and we do not find the Minister acted unreasonably in that respect.
44. The final point raised by the appellants was that there had been procedural unfairness. This was based on the submission that the physical model which the Minister took into account in considering his decision showed the neighbouring property Le Petit Clos at road level, whereas in fact it is a metre above road level, and therefore would be more affected by the visual intrusion of the proposed new office. The second procedural unfairness was suggested to be a failure to consult properly. The third objection was that there had been pre-application discussions between the previous Minister, the case officer and the department architect which made the applicant confident that permission would be granted, and local residents were not invited to comment at that stage. This submission was made on the basis of the affidavit of Mr Gladwin, the senior planning officer who said that:-
"The case officer and the Department architect were aware of the site and the nature of the scheme having been involved in pre-applications with the applicant and agent, and these discussions had involved the Minister."
45. The letter from the architects for the applicants, sent on 6th December, 2010, to the Planning and Building Services Department, also said this:-
"The site is classified as an industrial zone under the Island Plan and we have therefore had numerous discussions with the Planning Minister, Department architect and planning officers. Feedback received suggested that the proposals were against the Island Plan Policy however the project would be deemed acceptable if the building provided a good quality of design rather than industrial appearance and achieved a "good" BREEAM office rating."
46. In fact, the application of the applicants was deferred by the previous Minister when it came up for consideration by him in June 2011. There is no suggestion that the present Minister, who took the decision now appealed against, has had any direct conversation with any of the objectors or with the applicants. There is, in our judgment, no procedural unfairness in an applicant seeking a view from a planning official. The obligation for procedural fairness in this respect is that where the Minister is taking the decision on an application personally, he should not personally be involved in any pre-application discussions, whether with the applicants or with the persons who might object.
47. We have already indicated our views as to the extent to which further consultation was necessary, having regard to the policy changes between the 2002 and 2011 Island Plans, and we do not need to add to those comments.
48. We do not consider the fact that the model was slightly inaccurate to be conclusive, and in any event, if the bank is to retain its present height and size, that would obviate any need for a further model to be prepared. Although we were not addressed on the matter in any great detail, we felt constrained to look at the size and mass of the proposed development having regard to the grounds of appeal, and we consider that the granting of permission to a building of that size and mass would not of itself be classed as unreasonable.
49. For all these reasons, the appeals succeed, but on narrow grounds only. The grounds on which the appeals succeed are these:-
(i) The Minister acted unreasonably in not taking into account the requirements of Policy NE2 in relation to the common toad; and
(ii) The Minister acted unreasonably in not taking into account the requirements of Policy NE4 in connection with the proposed reduction of the bank.
50. In all other respects, the decision of the Minister was reasonable.
51. We will invite submissions from the parties as to the consequential orders that should flow from these conclusions.
