Moody v Minister for Planning and Environment

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith,Jurats Morgan,Olsen
Judgment Date16 November 2012
Neutral Citation[2012] JRC 213
Date16 November 2012

[2012] JRC 213

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Commissioner, and Jurats Morgan and Olsen.

John Edward Moody
Appellant
and
The Minister for Planning and Environment
Respondent

Advocate D. G. Le Sueur

Mr Duncan Mills for the Respondent.

Authorities

Planning and Building (Jersey) Law 2002.

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

Almondale -v- Planning and Environment Minister [2006] JRC 135.

Drainage (Jersey) Law 2005.

Token Limited -v- Island Planning and Development Committee [2001] JLR 698.

Dunn -v- Minister of Planning and Dandara [2009] JRC 237.

2011 Island Plan.

Planning — Third party appeal against the decision of the Minister.

THE COMMISSIONER

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 against the decision of the respondent (“the Minister”) to grant planning permission in respect of the property known as Tamaris, La Grande Route de la Côte, St Clement (“Tamaris”).

2

Tamaris forms one of a line of properties along what is known as St Clement's coast road with views across the road and a narrow public car park to the beach beyond. It comprises a two-storey house built in the 1920s with an attached one bedroom flat. The properties on either side have been developed recently into three storey apartment blocks. Behind lie a number of residential properties including a recent development known as Seapoint, some of the units of which have an oblique view of the sea through the gap between Tamaris and its neighbouring property to the west.

3

There have been a number of unsuccessful applications by the owner to demolish Tamaris and construct apartments in its place. The application, which is the subject of this appeal, was submitted on 3 rd December, 2009. The Planning Department recommended refusal for the following reason:-

“The proposed development by virtue of its design (form, height, massing and design detailing) fails to contribute positively to the adjoining residential properties or the area within which it is located. Accordingly, the proposal is contrary to Policies G2, G3, BE11 and H8 of the Adopted Island Plan 2002.”

4

The Planning Applications Panel, having visited the site, agreed that whilst it was content with the increased footprint of the proposed new building, the height and design were causes for concern. It accordingly deferred determination of the application and requested the planning officers to work with the owner to redesign the proposed building, possibly incorporating a pitched roof.

5

Between May 2010 and October 2011, planning officers had a number of meetings with the owner's appointed agent in order to try and resolve the issues of height and design. These culminated in the submission of revised plans, which incorporated a pitched roof, on 14 th October, 2011, which were re-advertised in the Jersey Evening Post and by way of a site notice. In its report of 11 th January, 2012, the Planning Department now recommended approval on the following terms:-

“Summary: The existing property requires a great deal of refurbishment to bring it back to a good standard of accommodation.

However, even with refurbishment, the property would still be poor in terms of style, form and character and as a consequence, the applicant has taken the view that the demolition and replacement of the property would be the most effective in terms of cost and the general enhancement of the area.

The application was deferred at a meeting of the Planning Applications Panel in May 2010 to enable officers to work with the applicant to re-design the proposed building to possibly include a pitched roof. The applicant's agent has reconsidered the submitted design of the development elevations following comments made at the Panel meeting and the latest proposal reflects the work undertaken in conjunction with officers.

The proposed development is contemporary in design whilst containing some of the existing design characteristics of the area and will enhance the character and appearance of the area whilst at the same time satisfying the Minister's requirement to provide developments of high quality design when the opportunity arises to do so.

Finally, the proposed development is not considered to lead to an unreasonable impact on the residential amenities of the surrounding residential properties and would meet the standard requirements for amenity space and car parking provision.”

6

There were a number of complaints, both when the original plans were advertised and when the revised plans were advertised, concerned in the main with what was felt to be an over-development of the site, its effect on the character and appearance of the area, the loss of privacy from windows and balconies and the loss of views from those properties behind. A particular concern was the potential effect of the development on a surface water culvert along the north-west boundary of Tamaris, which drains all the developments and water courses in the area; it being significant that the land slopes down to the rear of Tamaris by some 3 metres.

7

At a Planning Application Panel meeting on 25 th January, 2012, having heard from the appellant amongst others, the application was approved. The permit cites the following reasons for the giving of approval:-

“The proposed development is considered to be acceptable having considered all of the material considerations raised. In particular, the development has been assessed against Policies GD1, Gd7 and BE6 and H6 of the 2011 Island Plan in which the principles of residential development are acceptable in the Built-Up area subject to criteria such as the suitability of the site to accommodate development without adversely impacting on amenities of both local residents and the area in general and with suitable access, parking and drainage arrangements available. In this case, the erection of residential development is regarded as acceptable because the design, siting and appearance of the dwellings are acceptable: they can be accommodated on the site without adversely impacting on the amenities of adjoining neighbours; the development makes best use of previously developed land in accordance with the principles of sustainability and the development can provide suitable drainage and parking arrangements without compromising the proper function of the existing surface water culvert located to the north-eastern boundary of the site.

In addition, the representations raised to the scheme on the grounds of height, scale and relationship to adjoining properties have been assessed. However, it is considered that the proposal accords with the terms of policy GD1 Island Plan, in that it does not have an unreasonable impact on the outlook or amenities of the immediately adjoining residential properties.”

Grounds of appeal
8

The appellant owns 14 La Cache de la Ronde in the Seapoint development, which is situated to the north of Tamaris. From his property, and in particular his balcony, the appellant has a view to the left through the gap between Tamaris and the neighbouring property to the sea. The proposed new building will, like its neighbours, extend in part to three storeys, comprising two two-bedroom flats and two one-bedroom flats. It will extend beyond the footprint of the current building and it will therefore reduce the view currently enjoyed by the appellant, both through narrowing the gap through which the view is enjoyed and by its height.

9

Mr Le Sueur, for the appellant, advanced three grounds for the appeal, namely:-

Which we take in turn.

  • (i) The harm to amenity and view;

  • (ii) The effect on the surface water culvert; and

  • (iii) The failure to demonstrate that the existing building was beyond repair.

Harm to amenity and view
10

Mr Le Sueur submitted that the Minister had failed to give sufficient consideration of the harm to the amenities of the neighbours, and in particular the appellant, caused by the proposed development and had failed to give sufficient weight to the harm caused to the appellant's view due to the height and mass of the new building. The appellant produced photographs on which he had indicated how the new building would impact upon his view, which Mr Le Sueur described as a very valuable and precious amenity. Mr Le Sueur referred the Court to paragraph 50 of the judgment in the case of Steenson -v- Minister for Planning and Environment [2009] JLR 427 in which he said the Court had recognised that a loss of view and privacy were relevant planning considerations. He also referred the Court to paragraph 29(i) of the judgment in the case of Almondale -v- Planning and Environment Minister [2006] JRC 135 where Birt, Deputy Bailiff, said:-

“In Guillou -v- Island Development Committee (1969) JJ 1225 the Court made reference to the definition in the Shorter Oxford Dictionary of ‘amenity’ as being “the quality of being pleasant or agreeable” and further noted that ‘pleasant’ is defined as “agreeable to the mind, feelings, or senses.” The Court went on to say that amenity should be interpreted in a wide sense so as to include more than just visual matters. In the Island Plan itself amenity is described as “pleasantness of situation, attractive features of the locality”. In our judgment, sea views and an open break in ribbon development are undoubtedly matters which may contribute to the amenity of an area and accordingly the Committee was entitled to have regard to such matters when considering the effect of the proposed development upon the amenity of the area.”

11

Whilst the Court in Steenson acknowledged that as a matter of law the owner of land has no legal right to a view, Mr Le Sueur argued that the proximity of a construction and the interference to the amenities (light, privacy and view) are matters to which the...

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