Le Boutillier v Min for Planning and Environment

CourtRoyal Court
JudgeThe Deputy Bailiff
Judgment Date11 May 2012
Neutral Citation[2012] JRC 95
Date11 May 2012

[2012] JRC 95




W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Breton and Kerley.

Alfred E Le Boutillier
Minister for Planning and Environment


Matthew Cosgrove

Mr Le Boutillier appeared in person.

H. Sharp, HM Solicitor General appeared for the Minister.

Mr Cosgrove appeared in person.

Planning — application to appeal against the decision of the Court following a third party appeal.

The Deputy Bailiff

On 20 th December 2011 the Court, differently constituted, sat to consider the Appellant's third party appeal under the modified procedure under Article 114 of the Planning and Building (Jersey) Law 2002. The Applicant is the owner of the land which was the subject of the application for development, granted by the Minister, in respect of which the third party appeal was brought.


The Court heard argument on 20 th December and reserved its decision. Judgment has not been given. Amongst the papers put before the Court were the objections which had been lodged following publication of not only the successful application, but also a previous application in respect of the same site, which had been unsuccessful. The papers in the Court file included a representation from the Development Applications Committee of the National Trust for Jersey, objecting to the development proposed unsuccessfully in 2010. This was signed by Mr Michael Touzel, Chairman of that Committee. The Court file also included a letter signed by the Chairman of the Environment Section of the Société Jersiaise, objecting to the second (successful) application in 2011. The Société Jersiaise had also objected to the unsuccessful application in 2010.


Neither the National Trust for Jersey nor the Société Jersiaise are parties to the present appeal, and their representations objecting to the proposals were before the Court for completeness as part of the package of relevant documents related to the planning application now the subject of the third party appeal. Similarly, neither the National Trust for Jersey nor the Société Jersiaise made any further statements or presented any further evidence to the Court. The problem, if it is one, arises simply as a result of the material which we have described. Both letters focused their objections on the fact that the proposal was for development or enlargement of buildings now on the site which is in a zone of outstanding character, and forms part of the extended Green Zone under the Draft Island Plan 2011, subsequently approved by the States. The letter from the National Trust for Jersey, in relation to the 2010 application, expressed strong objections to any further development or enlargement of the buildings now on the site.


On reviewing this material the members of the Court, we regret belatedly, focused upon a matter which we felt obliged to draw to the attention of the parties. I am a member of the National Trust in England, which is I believe an associated organisation of the National Trust for Jersey, and I am also a member of the Société Jersiaise. Jurat Kerley is a member of both the Société Jersiaise and the National Trust for Jersey. Neither I nor Jurat Kerley have or have ever had an executive position in either organisation, and have not expressed any public views as to the objects of either association. Jurat Olsen is not a member of either organisation.


There are two other potential issues. Jurat Olsen's wife is a member of the English National Trust, but not of the National Trust for Jersey. Jurat Kerley's wife is not only a member of the National Trust for Jersey but has also been on the general council for that organisation, although not on the executive committee. She does currently chair the committee of the National Trust which considers planning applications, and has replaced Mr Michael Touzel who signed the letter to which I have earlier referred. Jurat Kerley has confirmed that he has not discussed this appeal with his wife. We do not know if she was on the committee at the time Mr Touzel sent in his letter of objection, but as we made clear to the parties, we have proceeded on the assumption that she was.


On 13 th January, I asked my secretary to inform the parties of these facts to identify whether any objection was taken to the constitution of the Court. The Court's preliminary view was that there was no bias or perception of bias but it was emphasised that if there were objections, a date would be fixed so that argument could take place on that matter and that the view expressed was a preliminary view only. The Applicant has objected, and hence this hearing was fixed. Normally it would have been fixed with the original Court. Unfortunately however the coincidence of leave and other Court commitments has meant that to reconstitute the original Court for the purpose of hearing these objections would be very much delayed and accordingly I have asked Jurat Le Breton, a senior Jurat, to sit with Jurat Kerley on this hearing. For the avoidance of doubt, it should be added that Jurat Le Breton is also a member of the Société Jersiaise and of the National Trust for Jersey. There are no Jurats available today who are not in a similar position. The parties did not object to Jurat Le Breton's participation.


Essentially the position today is this. The Applicant maintains some of his objections. He is no longer anxious about my participation or that of Jurat Olsen, but he is anxious about Jurat Kerley. In his view the connections of Jurat Kerley which I have mentioned are such that he cannot be sure he would receive a fair hearing of the third party appeal. He emphasised that he wished to make no attack on the integrity of the Court and did not assert there was any actual bias against him but he did assert that the constitution of the Court would fail to meet the requirements for an impartial tribunal as there would be a perception of bias. His inherent concerns were, he said, well expressed by the Solicitor General in the analysis in his skeleton argument.


The Appellant does not object to the constitution of the Court in December. The Solicitor General, for the Minister, contended that there was no objection that could be properly maintained to my presiding over the Court but there could be an objection to Jurat Kerley sitting as a member of the tribunal as a result of the connection which his wife has with the National Trust for Jersey. However the Minister did not object to the Jurat sitting on the appeal.


I now therefore turn to the challenge of the Applicant and consider whether the Court should recuse itself from this appeal.


The starting point is Article 6 of the European Convention on Human Rights. The relevant provisions are as follows:-

“(1) In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”


The Royal Court of Jersey has for some time applied the same tests to this question as have been applied in the Courts of England and Wales. There, as is set out clearly in the judgments of the House of Lords in R -v- Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) (1999) 1 All ER 577, the fundamental principle is that a man may not be judge in his own cause. That principle is applied in two ways – it is applied literally if in fact the judge is a party to the litigation or has a financial or proprietary interest in its outcome. It is a principle which also applies where the judge does not have a financial interest in the outcome and is not actually a party, but in some other way his conduct or behaviour gives rise to a suspicion that he is not impartial. It is a doctrine of very long standing. In short hand terms, it is sometimes described as resulting in a two part test – was the judge actually biased, or was there an appearance of bias. In the Pinochet case, the decision proceeded on the test in R -v- Gough (1993) 2 All ER 724 – is there in the view of the Court a real danger that the judge was biased? The Convention test is framed in a slightly different way – do the events in question give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the judge was not impartial? This latter test has been applied in decisions in Canada, Australia and New Zealand. I am not sure whether there is any substantive difference between the two tests but the convention test is certainly the one which has more latterly been applied in the Royal Court – see Syvret -v- Chief Minister and Others [2011] JRC 116 —and it is the test we apply today.


Both I and Jurat Kerley consider that we are not in any way biased in relation to the matters which call for decision in this case. I add this for completeness notwithstanding that actual bias is not asserted. We therefore only approach the matter insofar as concerns the contention that there is a perception of bias – namely whether the fair minded and informed observer would consider that there was a real possibility that the tribunal was biased.


We think there is a good summary of the fair minded and informed observer in the judgment of Lord Hope of Craighead in Helow -v- Home Secretary [2008] 1 WLR 2416 at page 2418 where he said...

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