Trump Holdings Ltd v Planning and Environment Comm

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailiff
• Judgment Date: 16 January 2004
• Neutral Citation: [2004] JRC 11
• Date: 16 January 2004

[2004] JRC 11

ROYAL COURT

(Samedi Division)

Before:

M. C. S. J. Birt, Esq., Deputy Bailiff and Jurats Tibbo and Allo

Between

Trump Holdings Limited

Appellant

and

Planning & Environment Committee

Respondent

Advocate M M G Voisin for the Appellant;

The Solicitor General for the Respondent Committee.

Authorities.

Mesch v Housing Committee (1990) JLR 269).

Island Development Committee v Fairview Farm Limited (1996) JLR 306.

Token Limited v Planning & Environment Committee (2001) JLR 698.

Planning & Environment Committee v Le Maistre (2002) JLR 389.

Island Planning (Jersey) Law 1964.

Interim Policies for the Conservation of Historic Buildings (July, 1998: Planning & Environment Committee).

Broad v Brisbane City Council and Baptist Union of Queensland (1986) 2 QdR 317 at 326).

Collis Radio Limited v Secretary of State for the Environment (1975) 22 P & CR 390 at 395.

North Wiltshire District Council v Secretary of State for the Environment (1992) 3 PLR 113.

Caesar Investments Limited v Planning and Environment Committee (2003) JRC 180.

Appeals from two decisions of the Planning and Environment Committee

Bailiff

THE DEPUTY

Introduction

1 The Court has before it appeals from two decisions of the Planning and Environment Committee (“the Committee”). The appeals have a somewhat convoluted procedural history and give rise to two preliminary procedural issues for resolution. In order to explain how these arise, it is necessary to set out the history of the matter in a little detail.

The procedural history

2 On 22 ^nd August 2000 Trump Holdings Limited (“Trump” or “the applicant”) made an application (the “first application”) for permission to:–

“Demolish existing buildings Nos 12–14, 16–18, Hilgrove Street and 8–10 & 12 Halkett Street. Construct new three-storey building, comprising retail unit at ground and first floor, storage area and one-bedroom flat at the second floor.”

3 The buildings comprising the site had previously been included/removed as Buildings of Local Interest (“BLI”) on the Register of Buildings and Sites of Architectural, Archaeological and Historical Importance (“the Register”) as follows:–

• (i) 12–14 Hilgrove Street: registered in 1992 and never removed;

• (ii) 16–18 Hilgrove Street and 8–10 Halkett Street: a redeveloped building registered in 1992, removed in 1999;

• (iii) 12 Halkett Street: registered in 1992 and removed on 23rd June 1997.

4 The usual consultation and advertising took place. The Parish of St Helier, the National Trust for Jersey and a resident of St Brelade objected to the demolition of 12 and 14 Hilgrove Street. The Committee considered the first application on 23 ^rd November 2000 at which time it received an oral presentation from the appellant's architect, Nigel Biggar & Partners and a report dated 15 ^th November 2000 from one of its officers recommending that the application be refused because it would result in the loss of two registered buildings, namely 12 and 14 Hilgrove Street. The Committee adjourned the first application pending receipt of a report being prepared by Trumps's structural engineers, D J Hartigan & Associates (“Hartigan”) relating to the structural condition of 12 and 14 Hilgrove Street.

5 On 6 ^th December 2000 officers of the Committee met with Hartigan and Trump's architect on site to discuss Hartigan's structural report. Subsequently the Committee commissioned its own structural report from the Morton Partnership (“Morton”). Although we will need to refer to the Hartigan report and the Morton report in more detail later, it may be helpful to summarise them at present by saying that Hartigan states that the two buildings are in a very poor state of repair and that major works, including underpinning, are required in order to render them suitable for use. Morton, on the other hand, considers that the extent of repairs necessary to preserve the useful life of these buildings is significantly less.

6 On 28 ^th December 2000 the Committee refused the first application. The grounds for refusal were as follows:–

“The proposed development would result in the unacceptable demolition of two buildings included in the Planning and Environment Committee's “Register of Buildings of Architectural, Archaeological and Historic Importance in Jersey” as Buildings of Local Interest, contrary to interim policy HB6, 1998.”

7 Trump subsequently asked the Committee to reconsider. This it did on 15 ^th March 2001. By this time it had received an addendum to the Hartigan report (with costings prepared by Tillyard, quantity surveyors) and a further report from Morton entitled ‘An Appraisal of the Appeal Documents’. The addendum to the Hartigan report estimated the cost of the necessary repairs as being £220,800 whereas Morton estimated the cost of the necessary works as £99,968. The difference is explained by the extent of the work which Hartigan and Morton respectively advised had to be done. The Committee also received an appeal report from its Assistant Director of Planning and Building Services, Mr Stuart Fell. The Committee decided to maintain its refusal having regard to the status of the two buildings as BLI's, having been advised that the two buildings were capable of being refurbished.

8 On 21 ^st March 2001 Trump gave notice of appeal against the decision of the Committee dated 15 ^th March 2001 (“the First Appeal”).

9 On 7 ^th August 2001 Trump's advocate, Advocate Voisin wrote a detailed letter requesting the Committee to reconsider its decision of 15 ^th March. This was accompanied by a further report from Hartigan on the poor condition of the two properties. Mr Fell again prepared an appeal report commenting on the letter from Advocate Voisin. In this report he advised that the Committee could concede the loss of 12 Hilgrove Street whilst maintaining its stance in relation to 14 Hilgrove Street, which was a better example of a property built in the mid 19 ^th Century. On 25 ^th October 2001 the Committee maintained its refusal. It appears that that maintenance may have been subject to further consideration if a Mr P Drury, who was due to visit the island shortly, advised adversely on the properties. However he did not and the decision was therefore maintained. Trump subsequently amended its First Appeal to include reference to the reconsideration on 25 ^th October.

10 After the decision of 25 ^th October, the Committee, through its officer Mr Fell, took steps to carry out further investigations in relation to the viability of the two buildings in their present form. Thus, the Committee obtained a report by local historians Paul Craig and Andrew Ferrari on the history of Hilgrove Street. The Committee also instructed a Mr Anthony Gibb to see if he could come up with a scheme for the two buildings. He did so and prepared a plan which involved joining the interiors of the two buildings together while maintaining the integrity of the outside. His scheme was subsequently costed by surveyors for both Trump and the Committee. On 21 ^st January 2001, at the request of the Committee, Morton prepared a further report commenting, inter alia, on the Gibb proposal as well as offering further advice on the Hartigan report. Ultimately both sides agreed that the Gibb proposal was uneconomic.

11 A difference of opinion having arisen between Advocate Voisin and Crown Advocate Sharpe (who was then representing the Committee) as to whether any of the reports etc obtained after 25 ^th October 2001 could be admitted at the hearing of the First Appeal (which had been fixed for 28 ^th October 2002) a directions hearing took place before me on 8 ^th October 2002. I expressed the view that it was undesirable for the Court to have to consider a lot of new material which had not been before the Committee and that such a course appeared to be turning an appeal into an original application. Following discussion the parties, through their advocates, agreed that the First Appeal should be adjourned while Trump went back to the Committee in order to put all relevant new material before it. It is fair to say that the notes of the hearing suggest that all those concerned referred to Trump making a fresh application to the Committee and that is reflected in the Act of the Court which stated that, by consent, it was ordered that the parties should disclose to each other any new information which had come to light since the Committee's decision and that Trump should make a ‘fresh application’ to the Committee.

12 Shortly afterwards Advocate Voisin raised with Crown Advocate Sharpe whether he should not be inviting the Committee to reconsider its decision in the light of the new material rather than making a fresh application but Crown Advocate Sharpe, on behalf of the Committee insisted that the matter should be dealt with as a fresh application and this was what was done, despite the fact that the new application was for an identical proposal to that set out in the first application.

13 The second application was submitted under a very long and detailed letter from Advocate Voisin dated 3 ^rd December 2002 which included all the material which had been before the Committee at the time of the first decision and all the further material which had been obtained since then. We have listed some of that above but there were many other documents exhibited to the letter. Particularly significant documents were a valuation of the properties prepared on behalf of Trump by Barnes & Partners on 28 ^th November 2002, a report dated November 2000 from Mr J Carey of Donald Insall Associates Limited on behalf of Trump and a further detailed report from Trump's architect.

14 On 18 ^th March 2003 the Committee's officer, Mr Fell, prepared a detailed report advising on the second application. On 3 ^rd April the Committee refused the application. The reasons given in the Notice of Refusal were as follows:–

• “1. The proposed...