Token Ltd v Planning & Environment Committee
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | Bailiff |
| Judgment Date | 28 November 2001 |
| Neutral Citation | [2001] JRC 236 |
| Date | 28 November 2001 |
[2001] JRC 236
ROYAL COURT
(Samedi Division)
Sir Philip Bailhache, Bailiff and Jurats Quérée and Bullen
Advocate M.M.G. Voisin for the Appellant
The Solicitor General for the Respondent Committee.
I.D.C. v Fairview Farm, Ltd (1996) JLR 306 C of A.
Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222.
Crabb v Arun District Council [1976] 1 Ch 179.
Thrasyvoulu v Secretary of State for the Environment [1990] 2 AC 273.
De Smith, Woolf and Jowell's Judicial Review of Administrative Action (5 th Ed'n) (1995): paras. 8 – 046 to 8 – 066; 13 – 029 to 13 – 035.
R v North & East Devon Health Authority ex parte Coughlan [2000] All ER 850.
Wightman v IDC (1963) JJ 315.
Scott v IDC (1966) JJ 631.
Maçon v Quérée (2001) JLR 80.
Lane v Lane (1985) JLR 48.
Island Planning (Jersey) Law 1964: Article 1–7 & 21.
Binet v IDC [1987–88] JLR 514.
Coopers and Lybrand v I.D.C. [1992] JLR 70.
R v Newham L.B.C. ex parte (1) Manik Bibi (2) Ataya Al Nashed (2001) EWCA.
Western Fish Products, Ltd v Penwith District Council [1981] 2 All ER 204.
Arbaugh v I.D.C. [1966] JJ 593.
Appeal from an administrative decision, under Part XII of the Royal Court Rules 1992, against refusal by the Respondent Committee of development permission for 3 single storey bungalows.
THE
This is an appeal by Token Limited (“the appellant”), pursuant to Article 21 of the Island Planning (Jersey) Law 1964, against a decision of the Planning and Environment Committee (“the Committee”) to refuse permission for the development of three single storey bungalows in Field 248A, Mont Gras d'Eau, St. Brelade. The reasons given in the formal notice of refusal dated 7 th February 2000 were that –
“1. The proposal is contrary to the approved Island Plan policy for the Green Zone in which there is a presumption against all forms of new development for whatever purpose.
2. The proposed development would adversely affect the established spacious character and appearance of the neighbouring residential area.
3. Further residential development in this area, with the associated increased traffic generation onto the existing substandard private access road, would cause unacceptable loss of amenity to existing residents.”
A notice of appeal was filed on 3 rd March 2000.
The appellant is the successor in title to Mr. Peter Higgins (“Mr. Higgins”), now deceased, from whom the appellant acquired Field 248A by deed of gift dated 18 th August 1995. Mr. Higgins had in turn acquired the field and the adjacent Field 303A from Mrs. J. Oxenden. Mrs. Oxenden had applied for development permission in 1974 to construct housing on both Fields 248A and 303A. That application had been refused on the ground that:
“the proposed works would represent an extension of estate development on land not zoned for that purpose and would be contrary to the provision of the Development Plan”.
That development plan was superseded by the Island Plan which was lodged au Greffe on 30 th June 1987 and approved by the States on 10 th November 1987. The Island Plan designated Field 303A as part of the “Built-Up Area” while Field 248A was placed in the Green Zone. In anticipation of those designations, Mr. Higgins had written to the Planning Department protesting about the proposal to place Field 248A in the Green Zone and asking that this be re-considered. On 7 th September 1987 a delegation of the Committee visited the site and on 14 th September 1987, according to the minutes of the meeting, the Committee “agreed that it could not give a decision at this time but expressed the view that it would recommend that the fields be included in the Built-Up Area when the first amendments to the Island Plan were formulated, possibly in 1989”. That was followed by a letter dated 17 th September 1987 (to which we shall refer as “the 1987 letter”) from the Assistant Director — Planning to Mr. Higgins in the following terms –
“Fields 248 and 303A, St. Brelade
Further to your recent correspondence with this Department, I write to advise you that the Island Development Committee, having visited the site, would not oppose in principle the development for housing purposes of Field 303A and the southern part of Field 248 as shown on the drawing appended to your letter of 5 th June 1987.
Clearly at this stage it is not possible to include the site as part of the “built-up area” on the Island Map, which hopefully will be approved later this month. However, the Committee would be prepared to recommend the re-zoning of the land to the States at a later date as intimated in Mr. Paton's letter to you of 24th July”.
Mr. Paton's letter of 24 th July 1987 had regretted the delay in making a site visit and continued –
“The delay in making the visit does not prejudice the Committee's decision as it happens because if members agree to amend the Island Plan it will require the approval of the States which can only be obtained, at the earliest, towards the end of the year”.
Despite the advice contained in the 1987 letter, no recommendation to the States for a re-zoning of Field 248A was in fact made “at a later date” or at all.
In January 1992, Mr. Higgins applied to the Committee for permission to build three bungalows on Field 303A. Neighbours lodged objections to the proposed development on the grounds of loss of open space and the restricted access to the site; development permission was nonetheless granted in September 1994 and the bungalows were subsequently built.
In November 1995, Mr. V.A. Tomes, on behalf of Mr. Higgins, wrote to the Committee requesting that a recommendation be made to the States that Field 248A be removed from the Green Zone. In January 1996, the Committee visited the site, and recalled that there had been opposition to the development of the adjacent Field 303A. The Committee took legal advice as to the implications of the indication given in 1987 and, having considered that advice, decided not to recommend the re-zoning of the land. Mr. Higgins' legal adviser was told of that decision by letter of 12 th December 1996.
In September 1997 an application was made by the appellant (by then the owner of the land) for development permission for Field 248A. By notice dated 16 th October 1997 the Committee refused the application for the same reasons given above in relation to the current application. Following that refusal, the appellant applied, pursuant to the Administrative Decisions (Review) (Jersey) Law 1982, for a review of the decision. A Board was constituted and reported on 15 th December, 1998. It recommended that the Committee “should honour the undertaking to take the Green Zone proposal to the States of Jersey”, although it made “no recommendation at this stage with regard to an actual development on the site as to whether any building or what amount of building should take place thereon”. For reasons which counsel have agreed are irrelevant to this appeal, this recommendation was not acted upon.
On 21 st October 1999 a further application was made for development permission. A number of objections were received by the Committee, including a letter from the National Trust for Jersey. A petition signed by 23 neighbours also objected to the application. On 3 rd February 2000 the Committee considered the matter and, for the reasons which we have set out above, refused the application.
The test to be applied by this court in determining appeals under the Island Planning (Jersey) Law 1964 was settled by the Court of Appeal in Island Development Committee v. Fairview Farms Ltd. (1996) JLR 306. At page 317 Le Quesne JA stated –
“The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable. It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view …
…The duty of the court on an appeal under art. 21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that that decision was, in its view, unreasonable” .
The Solicitor General submitted that the decision in Fairview Farm did not entitle the Court to find that the Committee's decision was reasonable but quash it because the Court had reached an equally reasonable but different decision. We agree. The Court might think that a Committee's decision is mistaken, but that does not of itself entitle the Court to substitute its own decision. The Court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene. There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken. To put it another way, there is a margin of appreciation before a decision which the Court thinks to be mistaken becomes so wrong that it is, in the view of the Court, unreasonable.
Mr. Voisin, for the appellant, submitted that the Committee's decision was unreasonable on several grounds. He accepted that Field 248A was situated in the Green Zone. At one stage, he appeared to be submitting that the change of zoning in 1987 from White Land under the earlier Development Plan to Green Zone under the Island Plan was an error, but this submission was not seriously pursued and seems to us to be untenable, having regard to the evidence of Mr. Roy Webster, Principal Planner in the Planning Department, which we accept. In as much as Mr. Peter...
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