Minister for Planning and Environment and Bernard William Fairman and Judy Lumsden Fairman (née Coleman) v Andrew Alvin Hobson and Maureen Audrey Hobson

JurisdictionJersey
CourtCourt of Appeal
JudgePleming JA
Judgment Date25 July 2014
Neutral Citation[2014] JCA 148
Date25 July 2014

[2014] JCA 148

COURT OF APPEAL

Before:

James McNeill, Q.C., President; Nigel Pleming, Q.C., and; Sir David Calvert-Smith.

Between
Minister for Planning and Environment
First Appellant

and

Bernard William Fairman and Judy Lumsden Fairman (née Coleman)
Second Appellants
and
Andrew Alvin Hobson and Maureen Audrey Hobson
Respondents

Advocate D. J. Benest for the First Appellant.

Advocate J. D. Kelleher for the Second Appellant.

Advocate N. M. C. Santos-Costa for the Respondents.

Authorities

Hobson -v- Minister for Planning and Environment and Fairman [2014] JRC 028 .

Planning and Building (Jersey) Law 2002.

Court of Appeal (Jersey) Law 1961.

Hobson -v- Minister for Planning and Environment and Fairman [2012] JRC 200 .

Island Planning (Jersey) Law 1964.

2002 Island Plan.

Trump Holdings Limited -v- Planning and Environment Committee [2004] JLR 232 .

Minister for Planning and the Environment v Dorey [2009] JCA 219 .

Kerley v Minister of Planning and Environment and Riggall [2008] JRC 199 .

Gransden & Co Ltd v Secretary of State for the Environment and another [1985] 54 P&CR 86 .

City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 .

J A Pye (Oxford) Ltd v Oxford City Council [2001] EWHC Admin 870 and [2002] EWCA Civ 116.

Tesco Stores Ltd -v- Dundee City Council [2012] UKSC 13 .

British Oxygen Co Ltd -v- Board of Trade [1971] AC 610

R (on the application of Alconbury Developments Ltd) -v- Secretary of State for the Environment [2003] 2 AC 295 .

Steenson v Minister for Planning and Environment [2009] JLR 427 .

Manning v Minister for Planning and Environment [2012] JRC 086A .

Planning and Environment Committee v Le Maistre [2002] JLR 389 .

J. Sainsbury Plc v Secretary of State for the Environment and Another [1993] 2 PLR 32 .

J. Sainsbury Plc v Secretary of State for the Environment and Another [1993] E.G. 203 .

JK Limited v Minister for Planning and Environment [2012] JRC 090 .

Alpine Contractors Limited v Minister for Planning and Environment [2010] JRC 105A .

Webb & others v Minister for Planning and Environment [2012] JRC 107 .

Dixon v Minister for Planning and Environment [2012] JRC 237A .

Wakeham v Minister of Planning and Environment [2012] JRC 106B .

Haden v Minister for Planning and Environment [2013] JRC 161A .

The Test for Appeals Against Decisions of Administrative Bodies: Unreasonable or Just Plain Wrong?”, Nicole Langlois, Jersey and Guernsey Law Review, February 2008.

Fordham, Judicial Review Handbook (4th Ed).

Anchor Trust Company Ltd v Jersey Financial Services Commission [2005] JLR 428 .

Financial Services (Jersey) Law 1998.

Crociani v Crociani [2014] JCA 089 .

United Capital Corporation v Bender [2006] JLR 269 .

Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 .

Hereford Waste Watchers Ltd v Herefordshire Council [2005] Env LR 29 .

Caesar Investments Limited v Planning and Environment Committee [2003] JLR 566 .

Planning — appeals of First Appellant and Second Appellants against the judgment of the Royal Court given on 29th January 2014 that the decision of the First Appellant of 27 June 2013 be cancelled.

Appeals of First Appellant and Second Appellants against the judgment of the Royal Court given on 29th January 2014 that the decision of the First Appellant of 27 June 2013 be cancelled.

Pleming JA
Introduction
1

This is the judgment of the Court.

2

This is an appeal from the decision of the Deputy Bailiff, assisted by Jurats Peter John Morgan and Paul Nicolle, dated 29th January 2014 ( [2014] JRC 028), in which it was directed that the First Appellant (“the Minister”) cancel his decision to permit the construction of a semi-basement double garage at Beauport Place, Le Chemin De Beau Port, St Brelade (“the Property”). The Property is owned and occupied by the Second Appellants (“the Fairmans”). It is common ground that the proposed garage would be a standalone, but ancillary, building (of approximately 40 square metres) and would increase the footprint of the Property by between 5% and 8%. We will refer to the facts in greater detail later in the judgment.

3

There is an ancillary appeal by the Minister against the Costs Order made by the Royal Court, which it has been agreed will be resolved separately in light of the outcome of the substantive challenge.

4

At the heart of the appeal is a consideration of the meaning and effect of a planning policy, and various Articles of the applicable Law.

The policy
5

The Property is situated in the Coastal National Park (“CNP”) within the States of Jersey Island Plan 2011. The Island Plan (original or revision) is prepared by the Minister, consulted on, and presented to the States for approval. The procedure is set out in Articles 3, 4 and 4A of the Planning and Building (Jersey) Law 2002 (“the 2002 Law”). The applicable policy statement in the Island Plan is National Environment 6 (known as “Policy NE 6”) which, so far as relevant, provides:–

“The Coastal National Park, as designated on the Proposals Map, will be given the highest level of protection from development and this will be given priority over all other planning considerations. In this area there will be the strongest presumption against all forms of new development for whatever purpose.

The Minster for Planning and Environment recognises that there are existing buildings and land uses within the Coastal National Park and there will be a strong presumption against their redevelopment for other uses; their extension; and the intensification of their use.

Exceptions will only be permitted where it is demonstrated that:–

(1) Extensions to existing residential buildings will not cause serious harm to the landscape character of the area, and where their design is appropriate relevant to existing buildings and their context;

(2) …”.

6

The Island Plan, of which Policy NE6 forms an integral part, is not legislation, and not an Act of the States. But, based on the fact that it is expressly approved by the States, and is not merely a statement of the Minister's policy, it attracts considerable and enhanced respect. To this extent it can be distinguished from “guidelines and policies”. The 2002 Law clearly draws a distinction between different exercises of discretion in Article 6(3) and Article 19(3) — see paragraphs 11 and 12 below.

7

The statement of policy in Policy NE6 is supported by explanatory paragraphs 2.55–2.71 in the Island Plan. We here set out paragraphs 2.64, 2.65 and 2.70:–

“2.64 These areas contained within the Coastal National Park are accorded the highest level of protection in the countryside character appraisal, which will take priority over all other planning considerations. Accordingly there will be the strongest possible presumption against all forms of new development and the extension and/or intensification of existing development.

2.65 It has to be acknowledged, however, that Jersey's Coastal National Park is a living landscape, with many buildings and land uses within it. Whilst there should be a presumption against the introduction of new uses or buildings into the Coastal National Park that would detract from the existing landscape character, there may be opportunity to secure the repair and restoration of its character by allowing exceptions to the presumption against new development to be made where it is clear that a redevelopment of existing buildings or land uses might provide an opportunity to repair or reduce the damage caused to the landscape character by existing buildings and uses.

2.70 Proposals to extend the curtilage of existing residential premises in the Coastal National Park will also be resisted as their approval would lead to the cumulative erosion of the extent and quality of the predominant landscape character. It is, however, considered to be reasonable for the Minister to be able to permit small scale extensions to residential buildings in the Coastal National Park where they do not unduly harm or detract from the landscape character of the area and where the cumulative visual impact of the development of a property is not damaging to the wider landscape.”

8

It is common ground in this appeal, first that the Property is covered by Policy NE6, and secondly, that the proposed garage is not an “extension to existing residential buildings” and, therefore, that exception (1) does not apply.

9

In 2012, draft supplementary planning guidance in respect of Policy NE6 was put out for consultation. At paragraph 6.3.7, under the heading “Extension to Existing Residential Buildings”, the Minister suggested a relaxation in relation to the extension exception referred to above:–

“Whilst not explicitly referred to in Policy NE6, proposals to extend dwellings by the provision of ancillary buildings and structures, such as garages and outbuildings (which are not in the form of extensions to the principal dwelling house) should be considered in the same manner as extensions, where the key test will be the impact upon landscape character. As with extensions, the larger the ancillary buildings and structures are the greater their impact is likely to be.”

We were informed that the proposed relaxation was not pursued further nor implemented.

10

It is also necessary here to set out the introductory wording of NE7 covering the Green Zone:–

“The areas designated as Green Zone on the Proposals Map will be given a level of protection and there will be a general presumption against all forms of new development for whatever purpose.”

In the Green Zone, unlike under NE6, “limited ancillary or incidental buildings within the curtilage of a domestic dwelling” will be permitted, but only where “the scale, location and design would not detract from,...

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