Hobson v Minister for Planning and Environment

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: The Deputy Bailiff
• Judgment Date: 19 November 2012
• Neutral Citation: [2012] JRC 214
• Date: 19 November 2012

[2012] JRC 214

ROYAL COURT

(Samedi)

Before:

W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone.

Andrew Alvin Hobson and Maureen Audrey Hobson

Appellants

and

The Minister for Planning and Environment

Respondent

Bernard William Fairman and Judy Lumsden Fairman (née Coleman)

Applicants

Advocate N. Santos-Costa for the Appellants.

Mr D Mills for the Respondent.

Advocate R. A. Leeuwenburg for the Applicants.

Authorities

Planning and Building (Jersey) Law 2002.

Ruette Pinel Farm -v- Minister for Planning [2012] JRC 008 .

JK Limited -v- Minister for Planning and Environment [2012] JRC 193 .

Planning - costs judgment.

The Deputy Bailiff

1 I sat as a single judge to determine the application of Advocate Santos-Costa on behalf of the appellants seeking an order for indemnity costs against the Minister following delivery of the judgment on the appellant's planning appeal under the modified procedure. Advocate Santos-Costa in his summons also sought costs against the applicants on a standard basis, but in the course of argument he withdrew that application. On his doing so, Advocate Leeuwenburg asked for an order for costs on behalf of the applicants against the appellants for convening them to Court. He made no application in respect of the applicant's costs of the appeal itself. At the end of the hearing I ordered the Minister to pay the taxed costs of the appellants, and I made no order against either party in respect of the costs of the applicants. I indicated that reasons would follow, and this judgment reflects those reasons.

Modified Procedure

2 In relation to planning appeals conducted under the modified procedure, Practice Direction RC06/03 provides:-

“In such appeals, although either party is entitled to be legally represented or otherwise represented as provided by Rule 15/3B(1) of the Rules, the Royal Court will only make an award of costs in such an appeal in exceptional circumstances (whether or not a party is legally or otherwise represented)”.

3 There is a strong policy undertone to that Practice Direction. When the Planning and Building (Jersey) Law 2002 (“the Planning Law”) was first passed, there was provision contained within it for a Planning Appeals Commission. As was fully explored in the Ruette Pinel Farm -v- Minister for Planning [2012] JRC 008 case in connection with whether or not the Court had jurisdiction under the Planning Law to remit a matter to the Minister for further consideration on successful appeal, the amendments made to the legislation in 2005 replaced the proposed Appeals Commission with the Royal Court. For those who considered that the Court would be an expensive method of appeal which would discourage Island residents from exercising their legal rights to appeal, especially in the case of third party appeals, the Practice Direction, to which reference was made in outline in the report accompanying the draft legislation put before the States, was a substantial comfort. Its purpose was to ensure that simple planning appeals could be brought forward at very little cost to the appellant, and in the Court's experience that has much more often than not proved to be the case.

4 As was indicated in the Court's judgment in this particular case, there were four lever arch files and three long skeleton arguments. Both the appellants and the applicants were represented. The Court has a site visit and a whole day was set aside for argument. The Court proceeded to hear the appeal on the modified procedure basis because it would have been unfair not to do so. The parties were ready to argue before the Court, and to move to the ordinary procedure would, as Advocate Santos-Costa pointed out, have caused a delay because different representation would have to have been organised for the Minister.

5 I can well see that where a party has engaged in the appeals process on the basis of the modified procedure, they are comforted that they will not have an adverse order for costs. It will be rare, therefore, that the Court moves from a modified procedure appeal to an ordinary procedure appeal in the absence of consent from the parties. The rules of Court however provide no reason why the Court should not redesignate an appeal under the ordinary procedure, and where that comes about at the request of the lay parties, as opposed to the Minister, it seems to me that that is a request with which the Court might generally wish to acquiesce.

6 In this particular case, Advocate Santos-Costa wrote to the Bailiff's Judicial Secretary in April to indicate his request for a number of preliminary directions. The response sent to him by the Bailiff's Judicial Secretary, with my approval, was that the Court was prepared to make one of the directions namely a site visit, if all parties agreed, and would otherwise sit to hear an application. The response went on to indicate that some of the other directions could only be made if...