Premier Tour Ltd v Planning and Environment Minister

JurisdictionJersey
CourtRoyal Court
JudgeClyde-Smith, Commr. and Jurats de Veulle and Liddiard
Judgment Date23 May 2007
Date23 May 2007
ROYAL COURT
Clyde-Smith, Commr. and Jurats de Veulle and Liddiard

C.M.B. Thacker for the appellant;

S.C. Nicolle, Q.C., Solicitor General, for the Minister.

Cases cited:

(1) Burt v. States, 1996 JLR 1, dicta of Le Quesne, J.A. applied.

(2) Island Dev. Cttee. v. Fairview Farm Ltd., 1996 JLR 306, dicta of Le Quesne, J.A. applied.

(3) McCarthy v. Planning & Environment Min., 2007 JLR 167, considered.

(4) Planning & Environment Cttee. v. Le Maistre, 2002 JLR 389, referred to.

(5) Token Ltd. v. Planning & Environment Cttee., 2001 JLR 698, dicta of Bailhache, Bailiff applied.

(6) Trump Hldgs. Ltd. v. Planning & Environment Cttee., 2004 JLR 16; affirmed, 2004 JLR 232, considered.

Legislation construed:

Planning and Building (Jersey) Law 2002 (Revised Edition, ch.22.550, 2007 ed.), art. 109(1):

"An appeal under Chapter 2 may only be made to the Royal Court on the ground that the action taken by or on behalf of the Minister was unreasonable having regard to all the circumstances of the case."

art. 113(3): "On the appeal the Royal Court may

(a) confirm the decision of the Minister; or

(b) order the Minister to grant the permission, amendment or certificate sought subject to such conditions as the Royal Court may specify."

art. 114(8): "On the appeal the Royal Court may

(a) confirm the decision of the Minister; or

(b) order the Minister to vary his or her decision or any part of it (including any condition of the planning permission) as the Royal Court may specify; or

(c) order the Minister to cancel his or her decision to grant the planning permission."

Planning Lawappealsfinding of reasonablenessunder Planning and Building (Jersey) Law 2002, art. 109, court only to interfere with Minister's decision if so mistaken as to be unreasonableunder art. 113(3), on appeal against refusal of permission, court may only confirm Minister's decision or order permission to be granted, subject to any conditionsno provision for appeal against part of refusal and appeal only successful if entire refusal found to be unreasonable

The appellant appealed against the Minister's refusal to grant it planning permission.

The appellant purchased two buildings in 2005 and intended to redevelop them, having been informed by the Planning Department that they were not listed on the Register of Buildings and Sites of Architectural, Archaeological and Historical Importance in Jersey. After obtaining a pre-application opinion that the properties could be demolished, the appellant applied for planning permission to demolish them and construct a new building comprising six flats. The Planning Department then discovered that the buildings were in fact registered as Buildings of Local Interest, in respect of which there was a presumption against demolition, and informed the appellant.

The appellant challenged the registration of the buildings, which was reassessed. It asked to see the report presented to the Minister for Planning and Environment and also to make further comment to him but was not permitted to do so. The Minister considered the report and oral evidence and decided to retain the buildings on the Register.

The Planning Applications Panel, acting on behalf of the Minister, subsequently refused the appellant's application for planning permission on six grounds, including that the proposed development would result in the unacceptable demolition of Registered Buildings, contrary to the Island Plan 2002; the proposal was inappropriate in scale, form, mass, density and design to the site and its context, contrary to the Plan; the proposed new building would result in unacceptable overlooking of neighbouring properties, also contrary to the Plan; and it would provide insufficient car parking. The minutes of the Panel meeting showed that the members recognized that there was a presumption against the demolition of Registered Buildings but, notwithstanding that, they considered the application to be unacceptable for other reasons.

The appellant appealed against the refusal, under art. 109(1) of the Planning and Building (Jersey) Law 2002, on the grounds that the Minister failed to advise it for an extended period that the buildings were listed on the Register; and the Minister's decision to retain the buildings on the Register was flawed and unsatisfactory. Article 113(3) of the Law provided that, on an appeal against a refusal of planning permission, the Royal Court could either confirm the Minister's decision or order him to grant the application, subject to any conditions it might specify. The court had wider powers under art. 114(8), on an appeal by an interested person against a grant of permission, in which event it could confirm the decision, order the Minister to vary it, or part of it, or cancel the permission.

The Minister submitted that the appeal was bound to fail as it challenged only the first ground for refusal, whereas the Royal Court did not have power under art. 113(3) of the Planning and Building Law to rule on one particular ground.

The appellant submitted in reply that the minutes of the Panel's meeting showed the registration of the buildings to have been the policy issue on which the refusal was based and that the other grounds could have been addressed by reducing the density of the scheme and making design changes through a process of negotiation with the Planning Department. It proposed that the court should order the Minister to grant permission subject to various conditions, including that the number of flats should be reduced, that amended proposals should be submitted to the Minister for approval, and that it should satisfy the Minister that the buildings could be demolished.

Held, dismissing the appeal:

(1) The appeal would be dismissed as it effectively challenged only the first of the six grounds on which the application was refused, namely that the proposed development would result in the unacceptable demolition of Buildings of Local Interest, contrary to the Island Plan. An appeal could be brought under art. 109(1) of the Planning and Building (Jersey) Law 2002 on the same ground as under the Island Planning (Jersey) Law 1964, i.e. that an action taken by the Minister was unreasonable having regard to all the circumstances of a particular case. The Royal Court had to form its own view of the reasonableness of the refusal but could only intervene if it considered the refusal was so mistaken as to be unreasonable. Although, under the 1964 Law, there had been no restriction on the court's power to make appropriate orders on an appeal against a refusal of planning permission, art. 113(3) of the 2002 Law restricted the court to either confirming the Minister's decision or ordering him to grant the permission sought subject to such conditions as it might specify. There was therefore no provision under the 2002 Law for an appeal against part of a refusal or against a particular ground for refusal of planning permission. As the appellant's appeal only challenged the issue of demolition of Registered Buildings, which was the first ground for refusal, it would be dismissed because the application was also refused on five other grounds, in particular the scale of the proposed new building, its impact on the neighbours and insufficient car parking. The appeal could only have succeeded if it had established that the refusal as a whole was unreasonable. In any event, the refusal was clearly reasonable in the circumstances, irrespective of the issue of the demolition of the Registered Buildings ( paras. 18-21; paras. 25-26; para. 41).

(2) It could not be said that the demolition of the Registered Buildings was in fact the policy decision on which the refusal was based, and that the other grounds of refusal could have been addressed by reducing the density of the scheme and making design changes through a process of negotiation with the Planning Department. The minutes of the Panel's discussion did not show that registration was the conclusive factor but, in any event, they simply recalled what the members said as part of the discussion and should not be relied on as constituting the Panel's formal reasons for its decision. The collective mind of the Panel could only be determined from the decision actually made and the formal reasons given. Furthermore, it was not open to the appellant to contend that the grounds of refusal that it had not challenged in the present appeal would have been resolved by a process of negotiation, as that was a matter of speculation. The court had to determine whether the Panel's decision to refuse the application, as it had been presented, was unreasonable ( paras. 30-31).

(3) Nor would the court make an order in the form proposed by the appellant, i.e. that the Minister should grant the permission sought subject to certain conditions, inter alia, that the number of flats was not approved and would be reduced; amended proposals reducing the scale and density of the design would be submitted for further approval; and the appellant would satisfy the Minister that the existing buildings could be demolished. Such an order would not be a grant of planning permission for a defined development but would rather establish a new application which would go through the planning process on the basis that the buildings were not registered and therefore not subject to a rebuttable presumption against demolition. It would therefore be tantamount to permitting the appellant to appeal against only one ground of the refusal and to ordering the Minister to grant only part of the permission sought, which were not provided for under the 2002 Law. The court's power under art. 113(3) of the Law to impose conditions would only be exercised to apply conditions to a reasonably defined development; conditions could not be used to define a development, which the appellant in effect proposed. While the sensitive use of conditions could improve development control and...

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