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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Bougeard -v- Minister for Planning and Environment [2015] JRC 176 (26 August 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_176.html Cite as: [2015] JRC 176 |
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Planning - third party appeal against decision of the Minister.
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Before : |
T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Fisher and Marett-Crosby |
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Between |
Roger Bougeard |
Appellant |
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And |
The Minister for Planning and Environment |
Respondent |
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And |
Dr C Taylor and Mrs A Taylor |
Applicant |
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Advocate D. S. Steenson for the Appellant.
Advocate D. J. Mills for the Respondent.
Advocate N. M. C. Santos-Costa for the Applicants.
judgment
the deputy bailiff:
1. This is a third party appeal under the modified procedure brought by the Appellant under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") against the decision of the respondent ("the Minister") to grant planning permission to the applicants in respect of the property Maraisia, La Route de Cotils, Grouville ("Maraisia").
2. The application was to "remodel and refurbish property to include removal of extension to south elevation and construct new first floor extensions to south and west elevations, new balcony to east elevation and new second floor extension. Convert ground floor store to utility and insert window. Various external alterations to include replacement windows and doors and enlarge window openings. Various landscaping works to include alteration to garden levels with new and removed retaining walls. Replacement of suspended timber garden deck with concrete base and slab finish."
3. Maraisia is situated off a private roadway and is next door to and to the south of the property La Cachette which is owned by the appellant. Both properties are in the Green Zone and both are on a cotil and enjoy very fine and extensive views over the Royal Bay of Grouville.
4. The grounds of appeal are that:-
(i) The development proposed is out of character with the surrounding landscape, and/or
(ii) It will infringe upon the privacy of the appellant;
(iii) It will affect the view of the appellant; and/or
(iv) It appears from the documentation that the Minister had sought out justifications for not adhering to the Island Plan and has subverted the presumption against non-development in the Green Zone; and/or
(v) The planning permission sought was not in accordance with the Island Plan and there is insufficient justification for granting permission in contravention of the Island Plan;
(vi) Specifically, the Minister's decision contravenes policies GD1 and NE7 of the Island Plan; and
(vii) In the premises the Minister has failed to take into account adequately or at all the human rights of the appellant.
5. For the purposes of the hearing we have before us the affidavit of Jonathan Gladwin, a senior planner with Planning and Building Services Department, the appellant Mr Bougeard, Mr Andrew Harvey, a chartered architect whose affidavit is tendered on behalf of the appellant, that of Dr Taylor, one of the applicants, and of Mr Waddington, an architect acting for the applicants. The Court has also had the benefit of a site visit which has assisted us greatly in understanding the layout of the property, the potential effect of the development and indeed the arguments and evidence put before us. Although this appeal is brought under the modified procedure, because the Court acceded to the request for a site visit, which as we have said we have found to be a helpful exercise in this case, the matter had nonetheless been listed for a full day. We accordingly, taking the site visit into account, allowed each of the parties approximately an hour and 15 minutes to make submissions to us with the applicant a maximum of 30 minutes by way of reply.
6. The test applied by this Court in considering appeals under Article 114 of the Law has been set out in numerous cases and we do not need to examine the subject at length.
7. In Dixon and Another v Minister for Planning and Environment [2012] JRC 237A, in considering the test that we should apply, the Court said this:-
8. It is for this Court to determine whether or not the decision of the Minister was unreasonable and we take our approach from the dicta of the Court of Appeal in the Minister for Planning and Environment v Hobson [2014] JCA 148 in which the Court said at paragraphs 78 and 79:-
9. Part of the appellant's submissions suggest a procedural irregularity on the part of the Minister. We, therefore, bear in mind the decision of the Royal Court as set out in Ferguson v Minister for Planning and Environment [2013] JRC 022 where the Court said:-
10. To understand the nature of this appeal it is necessary to consider the planning policies that apply to this site.
11. The appellant's first contention is based upon the Island Plan Policy GD1, general development considerations. Policy GD1 so far as relied on by the appellant, is in the following terms:-
12. The next policy is that of Policy NE 7 which is that applicable to the Green Zone. Insofar as relied on by the appellant, the policy states:-
13. The appellant submitted that, the Court having had the benefit of a site visit, it was clear that the proposed development must clearly breach the relevant policies and was both substantial and would result in a much larger property. In addition, the appellant in his written contentions submits that the decision of the Minister demonstrates an unreasonable departure from the relevant Island Plan policies and in particular points to the following issues and policies:-
(i) That the decision amounted to an inversion of the presumption against development in the Green Zone;
(ii) The scale and mass of the proposed development;
(iii) The unreasonable loss of amenity to the appellant;
(iv) The unreasonable loss of the appellant's privacy;
(v) The provision for parking;
(vi) Harm to the landscape character of the Green Zone.
14. The appellant's first argument, however, was not based upon the Green Zone Policy but rather on Policy GD1. The appellant argued that the development did not even fit within that criteria let alone the more stringent requirements of the Green Zone Policy. The appellant argues that the development should have failed because it did not accord with paragraphs 2, 3a and b, 5b and c of Policy GD1.
15. Policy GD1 sets out the general considerations relating to all applications for development and the general criteria against which any application is considered. There are references in the body of that policy to other policies applying to specific areas and circumstances and it seems to us, where other policies are referenced within GD1, it is to those policies that the Planning Minister has principal regard in considering whether or not the more general criteria in Policy GD1 have been met. For example paragraph 2 of GD1 refers to Policy NE7 and it seems to us that in considering whether paragraph 2 of GD1 contains any barrier to the proposed development it is appropriate for the Minister to have regard to Policy NE7 which is specifically concerned with determining what may be an "unreasonable impact on the character of the ... countryside" or might "unreasonably affect the character and amenity of the area". Some parts of GD1 do not contain references to other policies. Paragraph 3 of GD1 , for example, relates to "serious harm" to the amenities of neighbouring uses and in particular the level of privacy and the level of light that owners and occupiers might expect to enjoy. In our view Policy GD1 paragraphs 3 and 5 fall to be considered in connection with this application and we will come on to make observations in connection with those paragraphs in due course.
16. The appellant also argues that the Minister has failed to understand Policy NE7. The Minister should, so the appellant contends, have started with the presumption against any development of the Green Zone. Instead, he appeared simply to look for reasons to permit development.
17. We do not agree that this appears to have been the Minister's approach or indeed that the Minister's approach should have been that argued for by the appellant. Policy NE7 does not, self-evidently, create an absolute block on any form of development within the Green Zone. What it does is reflect the fact that the Green 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". However, within that general presumption, the Minister recognises that there must be exceptions. One of the exceptions expressly within Policy NE7 is that which relates to "domestic extensions and alterations of an existing dwelling".
18. The following excerpts from the Island Plan assist our consideration as to the ambit of Policy NE7. They are as follows:-
19. We are of course dealing in this case with an extension to an existing dwelling. Accordingly, as such it is a permitted exception within Policy NE7 and the Minister is allowed not to apply the presumption against any new form of development. What the Minister, through his officers, considers is whether or not the development by reason of its scale, location and design would detract from or unreasonably harm the character of the area. The measure of harm is also expressed by the phrase "seriously harm the landscape character of the area" at the end of Policy NE7. The question for the Minister is whether the development seriously harms or unreasonably harms or detracts from the character of the area by reason of its scale, location and design.
20. We have considered this appeal, accordingly, in general under the headings of location and design; privacy; light and view; occupancy and parking; and scale and mass. Those matters will of course need to be considered against whether or not what is proposed detracts from or unreasonably or seriously harms the landscape and character of the area and against the more general provisions set out in GD1. We are doing this to assess whether, in our view, the Minister's decision was a reasonable one. We also consider whether there was anything deficient in the Minister's process such that would make the decision itself unreasonable.
21. As to the location of the development if is, of course, already an existing dwelling and is positioned next door to the appellant's property. There does not seem to be, in our view, any principled objection to a development at the location in question.
22. The design of the building is modern. It is not out of keeping with the design of the neighbouring property belonging to the appellants nor generally with the character of the other buildings in the area. In our view the decision by the Minister to approve a building of this design could not be considered unreasonable.
23. On the matter of the effect of the development on the appellant's privacy, we were referred to the case of Cox and Eynon v The Minister for Planning and Environment [2013] JRC 141 in which the Court said, at paragraph 23:-
24. It is clear that the development as proposed would have no openings in the part of it facing towards the appellant's property nor would it be possible, with the permanent establishment of a Juliet balcony as required in the permission, for access to be had by the applicants to the roof space outside of the bedroom which could if it had been allowed, to some extent cause a loss of privacy to the appellant. In our view the appellant's privacy has been adequately protected by the condition relating to the Juliet balcony placed on the permission, and by the design of the development and indeed in his submissions before us, Advocate Steenson accepted that there was no material loss of privacy.
25. The appellant's property enjoys fine and extensive views of the Royal Bay of Grouville and the proposed development will not in our view impact upon those views to any significant extent. The proposed development has no affect at all upon the north and west of the appellant's property and it is only to the south that there is any potential effect. We accept that the increased height of the development will have some effect on the light falling on the appellant's property. However in our view that was taken into consideration by the Minister and the development will not unreasonably reduce the light for the appellant. Any development, whether in the built-up area or in the Green Zone, may have some effect on neighbouring properties. Different considerations may well, as Advocate Steenson urged upon us, apply to loss of amenity in the built-up area as opposed to in the Green Zone. Nonetheless an extension to a dwelling inevitably comes with the risk of some loss of light to neighbouring properties and we do not consider that the loss of light to the appellant will be material and would not in our view render the decision of the Minister unreasonable.
26. It is perhaps well understood that there is no right to a view in Jersey law and we have been referred to the case of Dunn v Minister for Planning and Environment [2009] JRC 237 where Sir Philip Bailhache, Commissioner, stated:-
And the Commissioner went on to state:-
27. As we have said the appellant's property currently enjoys and will continue notwithstanding any development, wide-ranging views over the Royal Bay of Grouville. This will in our view be minimally affected by the development. In terms of the view to the south, over what is currently the roof of Maraisia, this is a view of trees and is visible from the southern edge of the first floor balcony of the appellant's property. As far as we could tell from our site visit, there appeared to be no opening window at first floor level that would afford a view from the southern side of the appellant's property generally and the view appeared to be limited to that from the southern part of the balcony.
28. The view will therefore be affected to some extent by the development but the loss of view would be limited. It does not in our judgment cause serious harm to the amenities of neighbouring uses.
29. There was considerable comment addressed to us on the matter of occupancy and parking, Maraisia currently has three rooms that could be used as bedrooms. In fact the smallest of these rooms is used as a study.
30. The application was considered on the basis that the existing property had only two bedrooms. If the development goes ahead it will have four bedrooms. There will be some increase in occupancy; indeed that is the purpose of the proposed extension. The question is whether a move from two or three bedrooms to four bedrooms would represent a significant increase in occupancy for the purpose of Policy NE7.
31. In our view it would not. In the context of this particular dwelling a move from two bedrooms to four bedrooms would not in our view represent a significant increase in occupancy. It is not simply a matter of percentages as these can be misleading. For example, a movement from one bedroom to two would represent a 100% increase. The Court must, instead, take a realistic approach in the light of the nature of the property and character of the area and, in our view, the increase proposed is not significant.
32. We were addressed at some length on the question of parking and it is a matter that has caused us some anxious consideration.
33. It seems to us that under the new design there is space for at least three parking spaces. Two are in the garage and one, rather smaller, in what is currently referred to as the turning space. Access and egress from these three parking spaces could, it seems to us, be quite naturally facilitated by reversing into them from the private roadway outside or reversing from them into the roadway in order to drive down that roadway to the public highway.
34. We are not, however, so sanguine as to the availability of a fourth parking space. We were shown where it was anticipated that this parking space would be but it appears to us to be very small and, on the assumption that the other parking spaces are occupied, the fourth space does not appear to admit of easy access or egress. It would require an ability to turn within the confines of the width of the private road. This does not appear to us to be satisfactory.
35. During the course of submissions we were referred in some detail to the parking guidelines contained in Supplementary Planning Guidance Policy Note 3 dated September 1988. The purpose of the guidelines are, amongst other things:-
36. The guidelines themselves indicate their non-mandatory nature in that in paragraph 1, 5th bullet point, it is explained:-
It is clear that the guidelines are intended to apply not only to new developments but also "where practicable to redevelopment, extensions and/or conversions" [our emphasis].
37. The development was considered by the case officer on the basis of an increase in occupancy to a total of 5/6 persons. This would, in accordance with the tables set out as part of the guidelines have required for residents three or four parking spaces.
38. The guidelines are not binding on the Minister and they expressly apply to extensions only "where practicable". The question for us, therefore, is whether the decision of the Minister to permit this development where there are three parking spaces which are adequate and a fourth which is somewhat inadequate would be unreasonable.
39. In our view, as it would not have been unreasonable for the Minister to approve this development on the basis of three parking spaces, it was not therefore unreasonable for him to have approved it on the basis of four spaces albeit that one of them is inadequate in some respects.
40. Mention was made to us during the course of oral submissions on the possibility of access by emergency services or indeed guests of the applicants. This, it seems to us, is a problem inherent in the property at present and is not made worse or affected in any way by the development.
41. The appellant put before us the case of Steenson v The Minister for Planning and Environment [2009] JLR 427 and urged that we should consider this case with a great deal of care.
42. In that case the appellant appealed against the decision of the Minister to grant planning permission to his neighbours. The neighbours have been given permission to build a substantial extension to their property which was in the Green Zone on the basis, so the Minister communicated with the appellants, that "permission had 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". The appellant had appealed, amongst other things, on the basis that the Minister had not given sufficient weight to the Island Plan and the presumption against development in the Green Zone. The Court allowed the appeal and found that the Minster's decision to grant the applicants planning permission had been so mistaken as to be unreasonable. In its judgment, the Court said this:-
43. Policy C5 referred to in the extract set out above is the pre-cursor policy to NE7. The area that was being considered in that case now has a much higher level of protection in that it is now part of the coastal national park. However the approach of the Royal Court in that case is instructive in the present circumstances. It is quite clear that to a large extent the Court was concerned with the apparent mass of the building should the development take place and whether it would be out of proportion to the neighbouring area both in size and character. The Court was concerned that the new building would "dominate the area in an overbearing way".
44. We also note the case of Webb and others v The Minister of Planning and Environment [2012] JRC 107 in which the Court was addressed about an increase in proposed size in connection with properties by reference to percentage and square metreage. The Court, at paragraph 28 said this:-
45. We respectfully agree. Argument advanced to us in terms of percentage increase in floor area does not of itself assist us in forming our own view. What is important from our perspective, is what the apparent scale and mass of the property will be should the development proceed. It is in part for that reason that the site visit was particularly helpful in this case.
46. We have considered carefully the scale and mass of the property. We have noted the height of the proposed development in connection with the appellant's property and the general scale. In our view the proposed development will be neither overbearing nor will it unreasonably impact on or harm the landscape character and amenity of the area. In any event this seems to us to fall within the area of planning judgment and we do not think that the Minister would have been acting unreasonably in permitting a development of the scale and mass proposed.
47. A number of other concerns were raised by the appellant. These to a significant extent related to the form of the plans submitted and whether they gave an accurate picture of the development. These concerns were primarily referred to in the affidavit of Mr Andrew Harvey of 13th March, 2015.
48. We do not need to address these individual concerns. It may be that in some respects the plans submitted were inadequate or not fully in accordance with the appropriate directions. In our view, however, the plans were not materially inaccurate and were not misleading. They clearly were not thought to be misleading by the case officer.
49. It is clear that when the application to develop was made it attracted concern from the appellant. Those were expressed in letters written by the appellant. On two occasions the case officer attended on site. The appellant was given the opportunity to explain his concerns in connection with development and those concerns were noted by the case officer.
50. We have had the benefit of reading the affidavit of Mr Jonathan Gladwin of 3rd February, 2015. This sets out at some length the process that the case officer and other officers within the planning department went through in connection with this application, the concerns of the appellant and the way that those concerns were considered and addressed. We do not need to go through Mr Gladwin's affidavit in detail. It appears to us that there was nothing inadequate or unsatisfactory about the application or the way it was dealt with by the Minister such as would render the permission susceptible to challenge on the grounds of procedural irregularity or that rendered the decision itself unreasonable.
51. The grounds of appeal contained reference to the appellant's human rights. In submissions before us no separate argument was put forward in connection with human rights but in our view the appropriate and careful application of the relevant planning polices together with an appreciation and consideration of the concerns of the appellant, in particular in connection with privacy, address human rights concerns. In this case the principal concern arose under Article 8 of the European Convention on Human Rights 2000 which is the right to respect for family life. This of course has a direct bearing on the concerns raised by the appellant in connection with the potential loss of privacy but for the reasons which we have set out above we do not think that the loss of privacy is in this case significant.
52. It does not appear to us that human rights considerations that are outside any balancing exercise contained in the decision process arise in this matter and take the argument before us any further.
53. We remind ourselves that it is not for us to consider whether, had we been the original planning authority, we would have allowed the development in this form. Neither is it for us to consider whether a different or, in our view, better development could have been applied for or permitted. It is for us to determine whether or not the Minister's decision was unreasonable.
54. There will be some loss of light to the appellant occasioned by this development. There will be some restriction in his view directly to the south. In our view, whereas understandably undesirable from the appellant's perspective, neither of those amenities are unreasonably affected. Furthermore we do not consider that the scale and mass of the proposed development will amount to an unreasonable impact on the landscape character of the area. We have concerns about the adequacy of the parking in as much as it does not appear to us that the proposed development will necessarily have the four parking spaces that are anticipated. However, whilst of concern for the reasons set out above, we do not consider that this issue renders unreasonable the decision of the Minister to permit the development.
55. In summary in our view the decision of the Minister could not be characterised as unreasonable and accordingly we reject the appeal.