Jersey Unreported Judgments

2000/99

ROYAL COURT

(Samedi Division)

 

7th June, 2000

 

 

The Attorney General

 

-v-

F.W. Woolworth & Co (Jersey) Limited

and

A.C. Mauger & Son (Sunwin) Limited

 

1 count of:

contravening Article 9 of the Public Health (Control of Buildings) (Jersey) Law, 1956, by carrying out/causing to be carried out work without a building permit required by Bye Law 9 and without plans having been passed by the Planning and Environment Committee, as required by Article 5 of the said Law.

 

Plea:    Facts admitted.

 

Details of Offence:

Woolworths made a simultaneous application for consent under the Island Planning (Jersey) Law, 1964 and under the 1956 Law for a building permit, confirming that works met the requirements of the Building Bye Laws in September, 1998.  The works cost in excess of £2m. and involved the demolition and reconstruction of a management suite from level 2 to level 3 and extension of the retail area from level 1 to level 2 with the provision of an escalator and public lift.  Maugers were the main contractors and Reddish Associates were responsible for providing drawings, etc.  Planning indicated it would approve and passed to Building Control in late October, 1998.  A chance visit to the site at Woolworths in King Street revealed preparatory work had started by December, 1998.  On 23rd December, 1998, Building Control wrote to Woolworths, Maugers and Reddish indicating that work was unauthorised and the matter would be referred to LOD.  Work continued in January, February and March, with no permit being issued.  Eventually both consent and building permit were issued on 1st April, 1999.

 

Details of Mitigation:

Repeated and regular contact from January to March between Building Control and Maugers/Woolworths/Reddish, including several site visits.  It was not suggested by Building Control that work should actually stop.  Court was not surprised that defendants gained misleading impression that all would be well and a permit issued.  Delay in issuing permit partly due to heavy workload of the Department.

 

Previous Convictions:

None.

 

Conclusions:

Count 1:

£2,500 against each defendant. £750 costs against F.W. Woolworth & Co (Jersey) Ltd. £1,500 costs against A.C. Mauger & Son (Sunwin) Ltd, who changed their plea late.

 

 

Sentence and Observations of Court:

Count 1:

Conclusions granted, including costs, with 14 days to pay.  Court observed that had this been a deliberate breach of the 1956 Law, the fines moved for were far too low.  This case not to be taken as a precedent.  Conclusions lowest possible in the particular circumstances.

 

 

Mrs. S. Sharpe, Crown Advocate.

Advocate D.J. Benest for F.W. Woolworth & Co (Jersey) Ltd.

Advocate G. Le V. Fiott for A.C. Mauger & Son (Sunwin) Ltd.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        This prosecution arises out of substantial building works undertaken by F.W. Woolworth & Co (Jersey) Ltd (Woolworths) at their site in King Street in the winter of 1998 to 1999.  The main contractor was A.C. Mauger & Son (Sunwin) Ltd (Maugers).    

2.        The applications for planning permission under the Island Planning (Jersey) Law, 1964 and for a Building Permit under the Public Health (Control of Buildings) (Jersey) Law, 1956 were submitted on 28th September, 1998. 

3.        Permission in principle under the 1964 Law was given fairly shortly and the matter was referred to the Building Department under the 1956 Law.    

4.        On 25th November that Department called for revised plans to be submitted by Mr. Reddish, the agent for Maugers and for Woolworths.  There is some confusion as to when those revised plans were submitted and on balance it seems probable that the Planning and Environment Department mislaid the plans which were lodged just before Christmas.  Further plans were submitted on 18th January.        

5.        In December it was ascertained that work had started on site despite the lack of a building permit.  The Department sent a letter to Woolworths at their Head Office in London on 23rd December, 1998, making it abundantly clear that it was unlawful for the work to be taking place before the permit was granted and that the papers were being referred to the Attorney General for consideration of a prosecution.       

6.        Despite this the work carried on in January, February, and March and indeed it was almost complete by 1st April, which was the date when the building permit was finally granted.  Had the matter rested there the Court would have regarded the fines moved for by the Crown as being wholly inadequate.  The 1956 Law is concerned with the safety and health of users of buildings and people in the vicinity of the buildings.  To progress work in the absence of a permit gives rise to potential risk.  The Court is of the view that fines for a deliberate breach of the 1956 Law should be at a level to bring home the seriousness of the breach to the offenders.  But the position in this case is not so straightforward.  It seems that there was repeated and regular contact between the Department and the defendants in January, February, and March of 1999, concerning the development, including a number of site visits.  Not once, either in the letter of 23rd December, or in those meetings, did any representative of the Department say that the work should stop.  We are not surprised that the defendants took this as informal encouragement that there were no serious difficulties.        

7.        We do not criticise the Department for continuing to process the application and for discussing it with the applicants.  However we do criticise the fact that no advice was given to the applicants that they must stop the work until a building permit had been granted and we think that the frequent visits, in the absence of such advice being given, gave rise to a misleading impression as to the Department's attitude towards the continuation of the work.  However, the fact remains that the work was undertaken in the absence of a building permit.  The delay in issuing the permit seems to have arisen because of the inadequate plans repeatedly put in by the applicant's agent, although it seems also to have been contributed to by the heavy workload of the Building Department.  Certainly it is not a matter for satisfaction that in respect of an application submitted on 28th September for a development of this importance and significance a consent was not granted until 1st April.      

8.        In the circumstances we think that the fines moved for are the least that can properly be imposed.  The level imposed on this occasion should not be taken as a guide for future cases where defendants with the means of these two defendants proceed with building works without first obtaining a permit.         

9.        Would the representatives of the companies stand up, please.  We are going to fine each defendant £2,500, as moved for by the Crown, and we order that Woolworths pay costs in the sum of £750 and that Maugers, for the reasons given by the Crown in respect of the additional work caused by the not guilty plea, pay costs of £1,500.  We will allow the defendants 14 days in which to pay.

Authorities

R. -v- F. Howe & Son (Engineers) Ltd (1999) 2 All ER 249.

A.G. -v- Newlynn Apartments, Ltd (12th December, 1997) Jersey Unreported.

A.G. -v- Coutanche (15th July, 1998) Jersey Unreported.

Island Planning (Jersey) Law, 1964: Article 8.

Public Health (Control of Buildings) (Jersey) Law, 1956