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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Pallot v Minister for the Environment and Anor [2019] JRC 026 (18 February 2019) URL: http://www.bailii.org/je/cases/UR/2019/2019_026.html Cite as: [2019] JRC 026, [2019] JRC 26 |
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Planning - reasons - appeal against Minister's decision.
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Before : |
Sir Michael Birt, Commissioner, sitting alone. |
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Between |
Graham Pallot |
Appellant |
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And |
Minister for the Environment |
Respondent |
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And |
Somerleigh Farms (1996) Limited |
Third Party |
Advocate D J Benest for the Appellant.
Advocate D J Mills for the Respondent.
judgment
the COMMISSIONER:
1. In this case the Planning Committee ("the Committee") granted the application of the Appellant ("Mr Pallot") for planning permission. The Third Party ("Somerleigh") mounted a third party appeal to the Minister against the decision of the Committee and the Minister, having received a report from a planning inspector, allowed the appeal and refused planning permission.
2. Mr Pallot now appeals on a point of law to the Court under Article 116(5) of the Planning and Building (Jersey) Law 2002 ("the Law") seeking an order that the Minister's decision be overturned and that the decision of the Committee to grant planning permission be re-instated.
3. The principal issue of law which arises is whether Somerleigh qualified as a 'third party' for the purposes of Article 108(4) of the Law and therefore whether it had the necessary standing to appeal to the Minister against the decision of the Committee. This is Ground 1 of the Notice of Appeal. There are two further grounds to which I shall refer later.
4. Mr Pallot is the owner of the property known as La Tache, La Grande Route de St Ouen ("the Property"). On 12th October, 2017, he applied for planning permission for the construction of a building and associated hard standing on the site of what is currently an open yard on the Property. The proposed development was described in the application as "application for the erection of a new structure to contain the existing skip sorting and waste transfer operations".
5. The application was duly advertised on 17th October and members of the public therefore had 21 days in which to make representations in connection with the application. This time limit is laid down by Article 4 of the Planning and Building (Application Publication) (Jersey) Order 2006 ("the 2006 Order"), the relevant part of which provides as follows:-
Article 4(4) then goes on to make provision for extension of the time limit of 21 days in certain circumstances but I shall consider that below in connection with the parties' submissions.
6. The Committee considered the application at its meeting on 25th January, 2018, ("the January meeting"). No representation from any member of the public had been received but, in the usual way, other States departments had been given the opportunity of commenting on the application and some had done so. The report of the planning officer to the Committee recommended that the application be refused for a number of reasons, including that the Property was situated in the Green Zone where there was a presumption against any development.
7. However, by a majority, the Committee decided that it wished to approve the application. Practice Note 6 of the Supplementary Planning Guidance issued by the Department of the Environment ("the Department") provides that if the Committee wishes to overturn a recommendation of the Department, the decision will be deferred pending recommendations on any planning conditions or reasons from the Department and will be brought back to the Committee at a subsequent meeting for confirmation. The application was accordingly deferred to a later meeting for confirmation.
8. Somerleigh became aware of the result of the January meeting. It had not previously objected because it was aware of the objections raised against the application by other departments and that the officer was recommending refusal. It had felt it was not necessary to make its own objections given the strength of those other objections. However, having now become aware of the Committee's recommendation to approve the application, it wished to bring certain matters to the attention of the Committee when the Committee considered on 15th February whether to ratify its previous decision.
9. The letter of representation by J Design Limited on behalf of Somerleigh ("the Letter") is dated 12th February. It appears that it was emailed after office hours on that date and was therefore treated by the parties as having been received by the Department the following day.
10. The matter was returned to the Committee at its meeting on 15th February, 2018, ("the February meeting") at which time the Committee agreed the relevant conditions and confirmed its previous decision to grant planning permission. Although we have been referred to an email from a member of the Department to J Design Limited which acknowledged the Letter and said that it would be placed before the Committee at its meeting 15th February, there is no evidence from the minutes or any other document that it was in fact placed before the Committee. Accordingly, the Court simply does not know whether it was or not. However, it was undoubtedly received before the Committee met on 15th February.
11. Although the Committee decided at its meeting on 15th February to grant the application with relevant conditions, the decision notice containing the formal grant of planning permission and setting out the relevant conditions was not issued until a few days later, namely 23rd February. 2018.
12. Article 112(3) of the Law provides that any notice of appeal against a decision to grant planning permission must be lodged with the Greffier no later than 28 days from the date of the decision against which the appeal is made. Somerleigh lodged its appeal on 19th March.
13. In accordance with Article 113 of the Law, a planning inspector was appointed to consider the appeal and prepare a report containing his advice to the Minister. The inspector's report is dated 30th April, 2018. He began by rejecting the submission on behalf of Mr Pallot that Somerleigh did not have standing to bring a third party appeal. The point is renewed on this appeal and I shall consider it further below.
14. He went on to recommend that the appeal be allowed in the following terms:-
15. The Minister agreed with the recommendation of the inspector and on 1st May, 2018, he issued a notice allowing the appeal and refusing planning permission. The reasons given in the notice were identical to those set out in the report of the inspector, which I have quoted in the preceding paragraph.
16. Mr Pallot now appeals to this Court against the Minister's decision refusing planning permission.
17. Article 116(5) of the Law provides that an appeal from the decision of the Minister lies to this Court on a point of law. As Sir William Bailhache, Bailiff, said in Therin -v- Minister for Planning and Environment [2018] JRC 098 at para 9:-
The Bailiff went on to say at para 11:-
18. Article 116(5B) provides:-
19. Pursuant to Article 108(3)(a) of the Law, an appeal to the Minister against a decision to grant planning permission may only be brought by the applicant or by "any third party". Article 108(4) defines "third party" as a person, other than the applicant, who:-
20. Ground 1 of the Notice of Appeal is in the following terms:-
"1. That the Respondent erred in finding that the Third Party had sufficient locus to bring an appeal, and thereafter in permitting the Third Party to bring an appeal, under the provisions of the Planning and Building (Jersey) Law 2002 ... and the Planning and Building (Application Publication) (Jersey) Order 2006."
21. It is accepted that Somerleigh fulfils paragraph 4(a) of Article 108 in that it is the owner of neighbouring land which lies within 50 metres of the Property. The sole issue therefore is whether it fulfils paragraph 4(b), namely did it make a representation in writing prior to the determination of Mr Pallot's application by the Committee?
22. Before the inspector, Advocate Benest submitted that the 'determination' of Mr Pallot's application for planning permission had taken place at the January meeting. On this basis, the representation of Somerleigh contained in the Letter had not been made prior to the determination and accordingly Somerleigh did not qualify as a third party and had no right of appeal.
23. The inspector rejected this submission. He agreed with the submission of the Department that determination of Mr Pallot's application occurred when the decision notice itself was issued, which was on 23rd February. The representation by Somerleigh had therefore been made prior to that date.
24. In his written submissions in this Court, Advocate Benest maintained his submission that the application had been determined at the January meeting, with the consequence that the Letter was subsequent to the determination. However, in his oral submissions, he did not pursue this point and accepted that the determination of the application had not occurred until the decision notice dated 23rd February. Advocate Mills agreed with this approach and the appeal therefore proceeded on that basis.
25. Advocate Benest therefore relied only on the second argument which he had made to the inspector and which he renewed before the Court. In summary, he submitted that there were strict requirements laid down by the 2006 Order as to how and when representations by members of the public could be made. The Letter did not comply with those requirements and accordingly did not amount to a representation for the purposes of paragraph 4(b) of Article 108. Only a representation which complied with those requirements could amount to a 'representation' for the purpose of paragraph (4)(b).
26. He included reference to the following matters in his submission:-
(i) Article 11(1) of the Law provides:-
He submitted that the fact that the Minister is obliged to prescribe how representations may be made indicates the importance attached to the need for representations to be made in the prescribed manner.
(ii) The 2006 Order was made in fulfilment of the Minister's obligation under Article 11. As set out at paragraph 5 above, Article 4 of the 2006 Order sets a time limit of 21 days from the first advertisement of the planning application for representations to be made.
(iii) Article 4(4) of the 2006 Order allows that period of 21 days to be extended in the following terms:
(iv) It is clear, submits Advocate Benest, that the power of the Chief Officer has to be exercised on a case by case basis. That is because he has to have regard to the public interest - which can only be considered in relation to the circumstances of a particular case - and because paragraph (6) only makes sense if the extension of the period relates to a particular application and property.
(v) Despite this, it is apparent that the Department routinely ignores the provisions of Article 4(4) of the 2006 Order. Thus:-
(a) Before the inspector, it was asserted on behalf of the Department that it operated an open process whereby representations on planning applications were routinely accepted up to the time of the decision.
(b) That is consistent with Practice Note 15 of the Supplementary Planning Guidance issued by the Department in May 2018. Having referred to the need to make comments within 21 days the Practice Note goes on to say:- "We'll consider comments received after the 21 day deadline if the application has not already been determined." A similar statement is made in Practice Note 16.
(vi) Further evidence of the lack of clarity in the Department can be derived from the fact that Practice Note 6 states at para 9 that, where the Committee defers consideration of a matter because it has decided in principle to overturn a recommendation from the Department, "the Committee will not hear additional representations at the subsequent meeting". That this is the practice is confirmed by the minutes of the February meeting where, in relation to those matters which are confirmations of the decision in principle taken at the January meeting, it is said "No further public representation allowed as Committee are confirming previous resolution". Yet, Somerleigh was informed by a member of the Department that the Letter would be placed before the Committee at the February meeting.
27. In summary, Advocate Benest submitted that it was clear that the Letter did not comply with the requirements of the 2006 Order. It had not been lodged before the expiry of the 21 day period and the Chief Officer had not exercised the power to extend that period conferred on him by Article 4(4). It could not therefore be regarded as a representation for the purposes of Article 108(4)(b), with the consequence that Somerleigh was to be treated as not having made a representation and accordingly not qualifying as a third party with the standing to bring an appeal to the Minister.
28. In response, Advocate Mills accepted that there had been no extension of time by the Chief Officer as required by Article 4(4) and that the Department's policy of routinely allowing representations up to the time that the Committee takes a decision was not consistent with Article 4(4). However, he emphasised the importance which the Minister and the Committee placed upon public engagement in the planning process; they did not wish to discourage this through unduly strict restrictions. He submitted that whether or not the requirements of the 2006 Order had been complied with did not affect whether the Letter amounted to a representation. In his submission it did. It was a document in writing in relation to the application which, apart from the issue of timing, complied with the requirements of Article 4 of the 2006 Order as to the content of representations. It was received before the determination of the application. Somerleigh therefore qualified as a third party.
29. In my judgment, the Department's procedure does not accord with the requirements of the 2006 Order. The Order clearly provides that representations must be made within the 21 day period and that that period may only be extended on a case by case basis by the Chief Officer under Article 4(4). A general practice of extending the time limit without consideration of the particular circumstances is not permissible under the 2006 Order.
30. This is not a satisfactory situation. The Department should comply with the requirements placed upon it under the 2006 Order. If it wishes to maintain its current practice of routinely accepting representations up until the Committee decides the matter, it should procure an amendment to the 2006 Order to allow for this. Alternatively, if it leaves the 2006 Order in its current form, it should comply with it and therefore the Chief Officer should consider extensions of the 21 day time limit on a case by case basis.
31. The question then is what effect the breaches of the 2006 Order have. Does a document which would undoubtedly qualify as a representation if the time limit had been validly extended under Article 4(4) cease to be a representation for the purpose of Article 108(4)(b) because, although accepted as a representation by the Department, it did not comply with the requirements of the 2006 Order as the 21 day time limit had not been validly extended, with the consequence that the representation was out of time.
32. Although a short point I have not found it an easy one. However, I have concluded that Advocate Benest's arguments, although persuasively put, should be rejected and that the Letter did constitute a representation for the purposes of Article 108(4)(b). I would summarise my reasons as follows:-
(i) During the course of Advocate Benest's submissions, I referred him to Article 4(2) of the 2006 Order, which states that a representation must contain details of how the person making the representation may be contacted. I asked him whether a failure to provide such details would mean that the document in question could not constitute a representation for the purposes of Article 108(4)(b) because it did not comply with the requirements of the 2006 Order. He replied that such a breach of Article 4(2) would not prevent a document amounting to a representation, but submitted that a minor defect of that nature was very different from a failure to comply with a time limit. However, once one concedes that some forms of non-compliance with the requirements of Article 4 do not prevent a document constituting a representation for the purposes of Article 108(4)(b), it is hard to see where one would draw the line. How would one decide which defects were sufficiently serious to deprive a person of a right to a third party appeal and which were not? This points in favour of the proposition that a breach of the requirements of Article 4 does not of itself prevent a document amounting to a representation for the purposes of Article 108(4)(b).
(ii) Advocate Benest's argument in effect requires one to insert words to the effect "(which complies with the requirements of Article 4 of the 2006 Order)" after "representation in writing" in Article 108(4)(b). Article 108 in its current form was enacted after the 2006 Order and it would therefore have been open to the States to so provide had this been its intention. One should only read into a statute words which are not there if it is necessary to do so.
(iii) Taken on their own, the natural meaning of the words is that if a representation in writing is made before determination of the application, that qualifies the person making the representation as a third party. On its face, the Letter constitutes a representation in writing in respect of the application and it was indeed made prior to the determination of the application.
(iv) Advocate Benest's construction would operate quite harshly. It would mean that a representation by a neighbour which, although lodged after the 21 day limit, is accepted as a representation by the Committee and considered by it when making its determination, does not qualify that neighbour to appeal simply because the Chief Officer has failed to exercise his power under Article 4(4) of the 2006 Order to extend time.
33. I accept that, as discussed during the hearing, this interpretation means that, assuming an application is not determined until the issue of the decision notice (as was common ground at the hearing) the neighbour could send in a letter of representation between the date upon which the Committee reaches its decision (15th February in this case) and the date of the decision notice, yet this would still qualify as a representation for the purposes of Article 108(4)(b) even though the Committee never in fact considered it or even had an opportunity of doing so. This would clearly be unsatisfactory and could be used by a neighbour who has not objected prior to the Committee reaching its decision but, having heard of the decision, puts in a representation prior to the issue of the formal decision notice simply so that he can appeal.
34. I have to say that, although the date of the decision notice is clearly the appropriate date for considering when time starts to run for an appeal under Article 112(3) ("the date of the decision") I am not convinced that it is necessarily also the date of "the determination of [the] application" for the purposes of Article 108(4)(b). It seems to me arguable that the date of the determination for the purposes of deciding whether a representation has been made before that determination is the date upon which the Committee finally decides the matter (including the terms of any conditions). In this case that would be the date of the February meeting. The fact that a few days were required thereafter for the necessary paperwork to be drawn up and the formal document granting planning permission issued would not seem to alter that. It might of course be possible for the Committee to change its mind before the issue of the decision notice but, if it did, the date of the change of mind would become the date of determination of the application. If this view were correct, that would avoid the sort of problem discussed in the preceding paragraph.
35. However, the point was not argued and therefore I shall say no more about it. The appeal proceeded on the basis that the date of determination was the date of the decision notice. Even if that is correct, I do not consider that the concerns outlined in paragraph 33 are sufficient to cause me to depart from the ordinary meaning of the words used in Article 108(4)(b).
36. For these reasons I conclude that the Letter was a representation in writing which was submitted prior to the determination of Mr Pallot's application. Somerleigh therefore had the necessary standing as a matter of law to bring the third party appeal to the Minister.
37. Ground 2 of the Notice of Appeal is in the following terms:-
"That the Respondent failed to apply (or failed to properly apply) his mind to the test of "sufficient justification" provided by Article 19(3) of the 2002 Law and thereby failed to consider whether, given the history, nature and location of the site there was sufficient justification for departing from Policy NE 7 of the Island Plan."
38. Article 19 of the Law provides (so far as relevant) as follows:-
39. The Property lies in the Green Zone to which policy NE 7 of the Island Plan applies. Policy NE 7 provides that the Green Zone "...will be given a high level of protection from development and there will be a general presumption against all forms of development". The policy goes on to provide "only the following exceptions may be permissible, and only where they do not cause serious harm to landscape character...". There then follow 11 listed exceptions.
40. The case of Minister for Planning and Environment -v- Hobson [2014] JCA 148 was concerned with policy NE 6, which deals with the Coastal National Park. The format of policy NE 6 is very similar to that relating to the Green Zone. It starts by stating that the Coastal National Park "... will be given the highest level of protection from development and this will normally be given priority over all other planning considerations." It goes on to provide for exceptions using the same language as in the policy for the Green Zone namely "only the following exceptions may be permissible and only where they do not cause harm to landscape character." There then follows a list of 8 exceptions relevant to the Coastal Protection Zone.
41. It is clear from the terms of Article 19 of the Law, as elaborated by the Court of Appeal in Hobson at paras 54 - 62, that the decision-maker should first consider whether an application for planning permission is in accordance with policy NE 7. If it is, Article 19(2) says that the application should be granted. In considering whether an application is within policy NE 7, the decision-maker must decide whether it falls within any of the exceptions listed in that policy. If it does, then a decision to allow development in the Green Zone will be in accordance with policy NE 7 despite the general presumption against the allowing of development in the Green Zone. That is because the listed exceptions form part of the policy.
42. However, if the application does not fall within any of the exceptions, that is not the end of the matter. As the Court said in Kerley -v- Minister of Planning and Environment [2008] JRC 199 at para 38(iii):-
43. Thus, assuming an application to develop in the Green Zone does not fall within the listed exceptions in policy NE 7, the decision-maker must, pursuant to Article 19(1), have regard to any material considerations which point towards granting a permission which is inconsistent with policy NE 7 (and any other relevant policies). If there are such material considerations, the decision-maker must balance them against the relevant Island Plan policies and determine, pursuant to Article 19(3), whether there is 'sufficient justification' to grant permission notwithstanding that the application does not fall within the policy.
44. That is the process which was undertaken by the Committee in this case. Thus the concluding paragraph of the minutes of the January meeting states:-
45. The inspector expressed himself somewhat differently in his report. I have quoted it earlier at paragraph 14 above but for convenience repeat it here:-
That wording was repeated by the Minister in his decision to allow the appeal in accordance with the recommendation of the inspector.
46. Advocate Benest submits that this discloses a fundamental misunderstanding of the position. It suggests that the inspector considered it sufficient to refuse the application simply because it did not meet the test of exceptional circumstances for such buildings in policy NE 7; in other words it did not fall within any of the exceptions listed within the policy. He submits that the inspector misapplied the Law in that he did not go on to consider whether, despite the fact that the new building would not fall within the list of exceptions and would therefore be inconsistent with the policy, there was 'sufficient justification' nevertheless to permit the development. This amounted to an error of law. The Minister fell into the same error of law as he simply adopted the reasoning and recommendation of the inspector.
47. Advocate Mills reminded me of the need not to adopt an unduly strict linguistic approach to planning decisions. He referred me to the observation of the Bailiff in Therin at para 56 where the Bailiff said:-
48. To like effect are paras 225 - 227 of the judgment of this Court in Francis -v- Jersey Financial Services Commission [2017] JRC 203A:-
49. Advocate Mills submits that, when read as a whole, it is clear from the inspector's report that he took account of all material considerations and concluded that there was no reason to depart from the presumption against development in the Green Zone pursuant to policy NE 7. He had in effect found that there was not 'sufficient justification' to depart from the policy.
50. He referred first to paragraph 33 of the inspector's report which summarises the contentions put forward on behalf of Mr Pallot, including as to why planning permission should be granted despite the fact that the Property was in the Green Zone:-
51. He went on to refer to the paragraphs containing the inspector's conclusion on this argument as follows:-
52. He said that, when read fairly, it was clear that the inspector was not recommending rejection of the application simply because it did not fall within any of the exceptions in policy NE 7. The inspector had considered other material considerations put forward by Mr Pallot (such as the need for waste disposal) and concluded - although he did not use the exact words - that there was not 'sufficient justification' to depart from the presumption against development in the Green Zone.
53. It is unfortunate that neither the inspector in the summary of his recommendation at para 59 of his report nor the Minister in his decision referred specifically to whether there was sufficient justification to grant planning permission even though the application was inconsistent with policy NE 7 (with its presumption against development in the Green Zone). I accept that the summary of the decision at para 59(1) of the report (echoed in the Minister's decision), when read alone, gives the impression that the application has been refused simply because it does not fall with any of the exceptions listed in policy NE 7.
54. However, I bear in mind the warning against construing a planning decision as if it were a statute or a decision of the Court and the emphasised passage in the extract from De Smith referred to at para 48 above. It is clear that the 'material consideration' put forward by Mr Pallot before the inspector as a reason to depart from the presumption against development in the Green Zone was the need for a waste management site and the fact that these were difficult to find, as well as the consideration that enclosing the existing facility would not cause concerns for the environment. Having decided in paragraph 50 of his report that the application did not fall within the exceptions listed in policy NE 7, the inspector goes on to explain at paragraphs 51 and 53 why he nevertheless was recommending refusal. He addresses and rejects, albeit in brief terms, the argument put forward on behalf of Mr Pallot to the effect that the need for waste management and the suitability of the site for this purpose justified making an exception to the Green Zone policy.
55. On balance, I conclude that, on a fair reading of the inspector's report as a whole, he has applied the correct test and has considered whether, even though the application did not fall within any of the listed exceptions in policy NE 7, there were nevertheless material considerations which, when balanced against the requirements of the policy, might lead to there being sufficient justification to depart from the policy, but has concluded that there are not.
56. Ground 3 of the notice of appeal is in the following terms:-
57. The background to this appears from the inspector's report. In July 2012, an enforcement notice was issued in respect of the whole of the Property requiring that the use of land for skip storage and the storage and sorting of waste materials and the parking of commercial vehicles should cease. However, it is not disputed that such activities have continued. The enforcement notice was not complied with but no prosecutions have been pursued. The inspector concluded at paragraph 40 of his report that permission for the construction of a building on part of the site which would contain the existing skip sorting and waste transfer operations did not override the enforcement notice. He did however point out that permitting the erection of a building which would have the effect of encouraging the unlawful use of land which was subject to an extant enforcement notice, was a rather strange thing to do.
58. At the hearing, Advocate Benest did not proceed with Ground 3 and I consider he was right not to do so. I can see no error of law in the conclusions of the inspector as to the effect of granting planning permission or as to the nature of a decision to grant planning permission for a building in which to undertake activities which were prohibited by the enforcement notice.
59. For these reasons I dismiss the appeal against the Minister's decision.