Planning and Environment Committee v Lesquende

JurisdictionJersey
CourtCourt of Appeal
JudgeBeloff JA
Judgment Date18 July 2003
Neutral Citation[2003] JCA 130
Date18 July 2003

[2003] JCA 130

COURT OF APPEAL

Before:

The Hon. M.J. Beloff, Q.C., President; Sir de Vic Carey, Bailiff of Guernsey; and D.A.J. Vaughan, Esq., C.B.E., Q.C.

Between
Planning and Environment Committee of the States of Jersey
Representor
and
Lionel Read, Q.C.
First Respondent

and

D.H. Le Vesconte
Second Respondent

and

R.V. Perchard
Third Respondent

and

Lesquende, Limited
Fourth Respondent

Advocate G.S. Robinson for the REPRESENTOR.

Advocate M.L. Preston for the FOURTH RESPONDENT.

The First, Second, and Third Respondents did not appear in the court below and were not represented.

Authorities

Planning and Environment Committee v Read and others (30th January 2003) Jersey Unreported; [2003] JCA 021.

Planning and Environment Committee v Read and others (10th January 2003) Jersey Unreported; [2003] JRC 004.

Planning and Environment Committee v Read and others (15th October 2002) Jersey Unreported; [2002/196].

Planning and Environment Committee v Lesquende Limited [1998] JLR 85.

Planning and Environment v Lesquende Limited [1998] JLR 1.

Lesquende Limited v Planning and Environment Committee [1997] JLR 56.

Compulsory Purchase of Land (Procedure) (Jersey) Law 1961 and amendments.

Court of Appeal (Jersey) Law 1961 and amendments.

Court of Appeal (Civil) (Jersey) Rules 1964 and amendments.

Island Planning (Jersey) Law 1964 and amendments.

R v Criminal Injuries Compensation Board Ex parte A 2 AC [1999].

Haron Bin Mohammed Zaid v Central Securities (Holdings) BHD [1983] 1 A.C.16.

Unit Four Cinemas Ltd v Tosara Investments Ltd [1993] 44EG 121.

Handley v Nationwide Anglia Building Society [1992] 29EG123.

Zermalt Holings SA v Nu-Life Upholstery Repairs Ltd [1985] 2 EGLR 14.

Fox v Welfair Ltd [1981] 2 LLR 514.

Becker v City of Marion Corporation and Another [1977] A.C. 271.

Tampion v Anderson (1973) 48 ALJR11.

Salter Rex and Co v Ghosh [1971] 2 Q.B. 597.

Thomas Borthwick Glasgow Limited v Faure Fairclough Ltd [1968] 1 LLR. 16.

Edwards v Bairstow [1995] 3 All ER.

Bozson v Altrincham Urban District Council [1903] 1 K.B. 547.

Section 60 Supreme Court Act 1981.

Russell on Arbitration, 2 nd Edition p.257.

The Lysland [1973] 1 LllR 296 CA.

Tradax Export SA v Andre et Cie (3rd March 1978) “The Times”.

Salaman v Warner and ors [1891] QBD 734.

Phipson on Evidence (14 th Ed'n): paras 32–39, 40: pp.829–832.

Application for leave to appeal by the REPRESENTOR against the Order Royal Court of 15th October, 2002, whereby it was ordered that the Board of Arbitrators state a case on Issue 1 only, namely whether the Board erred in law in concluding that the re-zoning of Area 1 for Category A Housing on 31st July, 1990, was not part of the scheme, but refused to order the Board to state a case on Issue 2, namely on what basis it found in the no scheme world there would have been a 5% discount in respect of uncertainty.

Leave to appeal was refused by the Royal Court on 10th January, 2003, and by a Single Judge of the Court of Appeal on 30th January, 2003.

Beloff JA

This is the judgment of the Court. The decision was given on 16th July 2003 and this reasoned judgment has been handed down today, the 18th July 2003.

Introduction
1

This is a renewed application by the Planning and Environment Committee of the States of Jersey (“the Committee”) for Leave to Appeal Against the Decision of the Royal Court dated 15th October 2002 refusing to Order the Board of Arbitrators to State a Case on what was described in the context of the Arbitration as “Issue 2”.

2

On the 10th January 2003 the Committee applied to the Royal Court for leave to appeal. The Royal Court refused to grant leave while ordering the Board to State a case on what was described in the same context as “Issue 1”. We shall explain the meaning of these issues later in this judgment.

3

On the 30th January 2003 a renewed application was heard by Southwell JA, sitting as a single Judge of the Court of Appeal, over a video link. He refused the application.

4

The Committee now renews its application to the Full Court.

5

There are two preliminary issues which must be disposed of: first, whether there is jurisdiction to entertain the appeal; secondly, if so, whether permission is required.

Jurisdiction to entertain this appeal
6

The Royal Court “inclined to the view” that the Court of Appeal had no jurisdiction to entertain the proposed appeal. [para 13]. Southwell JA, however, held that the Court of Appeal does have jurisdiction under Article 13 of the Court of Appeal (Jersey Law (“the Appeal law”) [para 22].

7

Article 12 of the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961 (the 1961 Law”) provides:

FINALITY OF AWARD AND STATEMENT OF SPECIAL CASES

(1) The decision of the Board on any question of fact shall be final and binding on the parties and the persons claiming under them respectively, but the Board may, and if the Inferior Number of the Royal Court so directs shall, state at any stage of the proceedings in the form of a special case for the opinion of the Court, any question of law arising in the course of the proceedings, and may state its award as to the whole or part thereof in the form of a special case for the opinion of the Court .

(2) The decision of the Inferior Number of the Royal Court on any case so stated shall be final and conclusive, and shall not be subject to appeal to any other Court .

8

It is clear, in our view, that Article 12(2) only prohibits an appeal which is otherwise available under the Appeal Law in respect of “a decision of the inferior number of the Royal Court on any case so stated”. The Royal Court's decision was that no case should be stated on issue 2. It was not therefore a decision caught by the prohibition. In our view, as a matter of plain language, the prohibition on an appeal under Article 12 of the 1961 Law only applies once (1) a case has been stated and (2) the Royal Court has pronounced upon the correctness in law of the case so stated.

9

Accordingly, in our respectful view, Southwell JA was correct in holding that the Court of Appeal has jurisdiction to entertain the proposed appeal.

Permission
10

Before the Royal Court and before Southwell JA the Committee contended that permission to appeal is not necessary. Both the Royal Court in its Judgment dated 10th January 2003 and Southwell JA (para 21) found against the Committee on that point. The contention is sensibly not now repeated. It is obvious that the Royal Court's decision was not final but interlocutory – in Southwell JA's vivid phrase “only one of many interlocutory steps on the long and laborious road to finality in this matter.”

Background
11

We gratefully adopt the summary of what Southwell JA called with similar pungency “the long and lamentable legal history of this matter” (para 2) from the decision of the Royal Court on the 15th October 2002 on the subject of this application, at paras 3–15:

(3) At the material time Lesquende Limited (“Lesquende”) owned certain land at Les Quennevais. It is not necessary to describe it in detail. The relevant part of Lesquende's land for the purposes of this application is that part known as Area 1. In November 1987 the States adopted the Island Plan. Various parts of Area 1 were comprised respectively in the agricultural Priority Zone, the Special Landscape Area of the Agricultural Priority Zone, and the Green Zone. Before and after November 1987 Lesquende attempted to obtain consents for developments of various kinds in respect of various parts of Area 1 but none of them succeeded, no doubt because the application would have involved rezoning. The existing zoning carried with it substantial restrictions on permitted use .

(4) In November 1988 Lesquende applied for permission to develop Area 1 for early retirement homes and sheltered homes for the elderly. This application was refused in July 1989 but the Committee recognised that this part of the land had a potential for Category A housing and would be better developed for that purpose in the public interest. The department was requested by the Committee to produce a draft report and proposition to the States on the basis that Area 1 be re-zoned for Category A housing so that the provision of houses for first time buyers could be more immediately satisfied .

(5) On 31st July 1990 the States, adopting a proposition of the Committee, (a) agreed to re-zone Area 1 for Category A housing development; (b) agreed to the Committee, in the event of a proven need, allocating a suitable portion of Area 1, where appropriate, for small-scale community facilities, including accommodation and specialised facilities to meet the requirements of pre-school and primary school children and elderly and handicapped people; (c) authorised the Committee to negotiate with Lesquende for the purchase of the land; and (d) empowered the Committee to acquire the land by compulsory purchase in the event of no agreement being reached between the parties as to a fair and proper price for the purchase of the land .

(6) At the time, it was highly unlikely that Lesquende or any other private developer would have wished to build Category A housing because it was uneconomical to do so by reason of longstanding price controls and limits on States loans. This changed in 1991. In January 1991 price controls were removed and in November 1991 the limits on States loans were relaxed .

(7) On 28th November 1991 the Committee adopted a development brief for the re-zoned part of the land as the basis for a master plan to be prepared by consultant architects. The Committee contemplated in this brief a mixed development of houses and flats together with community buildings .

(8) The parties did not agree a price for the land and accordingly on 11th December 1992, on the application of the Committee, the Royal Court made an order vesting the land in the public of the island and ordered that...

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