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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Boyle and Kehoe -v- Minister for Planning [2012] JRC 036 (20 February 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_036.html Cite as: [2012] JRC 036, [2012] JRC 36 |
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Planning - Third Party appeal against the decision by the Minister dated 28th June, 2011.
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Cornu and Olsen. |
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Between |
Susan Margaret Boyle and Glen Thomas Kehoe |
Appellants |
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And |
The Minister for Planning and Environment |
Respondent |
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And |
Modern Hotels Group Holdings Limited |
Applicant |
The Appellants represented themselves in person.
Mr D. Mills for the Minister.
Advocate D. S. Steenson for the Applicant.
judgment
the commissioner:
1. The appellants appeal under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") against the decision of the respondent (who we will refer to as "the Minister") on 28th June, 2011, to grant consent to the applicant for a development in respect of a large site currently occupied by the Metropole Hotel, which borders Roseville Street on the west and Hastings Road on the south. Consent was given to the demolition of the existing Metropole Hotel and certain other buildings and the construction of 153 apartments, to the conversion of Hastings Villas, which border Hastings Road, into 19 apartments and to create seven apartments in a certain building known as "the Granary".
2. The reason given for the approval is as follows:-
"Permission has been granted having taken into account the relevant policies of the approved Island Plan, together with other relevant policies and all other material considerations, including the consultations and representations received. It is considered that the grant of permission as a suitable exception is justified in this instance having regard to all the circumstances of the case. In particular regard has been had to the need to make the best use of brownfield sites in the Built-Up Area, the design excellence, and the mix of well appointed units. Further consideration has been given to the character of the area and the potential harm to the amenities of the existing residents and on balance these issues were found not to be unreasonable, and the Minister has by conditions imposed upon this permission sought to control and mitigate any potentially unreasonable impacts."
3. The appellants live immediately opposite and towards the southern end of the development in Roseville Street, Susan Boyle at 24 Roseville Street and Glen Kehoe at 26 Roseville Street. Their two houses adjoin each other and are built back from Roseville Street behind their respective gardens. The rear of their properties face on to a cemetery and their only windows face east towards Roseville Street. In their gardens are two low single width buildings which, in the case of Glen Kehoe, comprise a garage and in the case of Susan Boyle a small residential unit, which she calls "the chalet", known as 24A Roseville Street. The chalet is behind a large granite wall which fronts the pavement and its windows face north across her parking area.
4. The development lies within the "Built-up Area" set out in the Island plan approved by the States on 11th July, 2002. Consent to this development was granted one day before the new Island plan was approved on 29th June, 2011. According to the affidavit of Jonathan Gladwin, a senior planner of Planning and Building Services of the Minister of Planning and Environment, the policies of relevance under the 2002 plan are:-
5. The development comprises four blocks separated by courtyards with underground parking. Block A faces Roseville Street and comprises four storeys with a fifth recessed floor. Blocks B and C and the Granary lie to the east and are within the site. To the south of the site are Hastings Villas, which are currently and will remain four storeys. Although the appellants object to the scale and density of the development as a whole, it is fair to say that their main concern relates to Block A.
6. Both appellants wrote in to object to the development. They did not object to the principle of development on that site, but objected (in summary) to the scale and density of the development, their loss of privacy and natural light and to the car parking and traffic issues that would ensue.
7. The usual consultation process was undertaken and the Department of the Environment ("the Planning Department") in their report of 26th May, 2011, said that although the development was "optimistic" they were minded to recommend approval. They welcomed the approach of the applicant and praised the key elements of the architecture; in particular the high quality facades which they felt were "comfortable in the street". They were concerned about the "mass", key concerns being the retention by the applicants of the Granary, the size of some of the units and the height of Block B which had a 6 storey western elevation (and 5 storey eastern elevation).
8. In relation to the impact of Block A upon the nearby properties in Roseville Street, the Planning Department's report said this:-
"The key issue with Block A is the impact on the other properties along the western side of Roseville Street. Primarily those which are currently opposite the open entrance/car park. Here, the residents of Richelieu and 20 Roseville Street will have the main façade directly opposite them, at a distance of approximately 12m.
This is a close relationship, and there will certainly be an impact on the character of the street, and an impact on the amenities of the identified properties - their outlook will certainly be different (both face entrances to the site) and they may experience an element of overshadowing, particularly in early morning. However, the building line on the street will be restored to its natural back-of-pavement position, and the relationship of the relative heights is not considered unreasonable in a town centre setting. The resolution of this issue has to be balanced against other factors, which are considered later in this report."
9. The Planning Department considered that the relationship between the proposed development and the other properties along the western side of Roseville Street was not unacceptable and that this issue needed to be balanced with considering the other factors and benefits of the scheme, such as redeveloping this brownfield site within a sustainable location for much needed and high quality residential accommodation.
10. The application was considered at the ministerial public meeting on 10th June, 2011, which was attended by the appellants. Glen Kehoe expressed concern that his property would be deprived of sunlight throughout the year, as well as a general lack of privacy for neighbouring properties and within the blocks themselves. Susan Boyle expressed concern at the overshadowing, which would result from the construction of such tall blocks in close proximity to existing low level properties, as well as the problems associated with overlooking. Noise and general disturbance during the course of construction were also a concern. She felt that the parking provision was inadequate. She suggested that it was apparent that no account had been taken of the overlooking that would occur if the development proceeded in its present form. According to the minutes she made no mention of the chalet.
11. The Minister was supportive of the application subject to the buildings being set back further from the road and the mass of the roofs being further broken up but deferred the decision for a number of reasons, including:-
(i) So that a study could be undertaken to determine the daylight penetration implications of the current proposals on the immediate neighbouring properties.
(ii) To receive confirmation that the units to be created would meet the current minimum size plus 10%.
(iii) So that a noise survey would be undertaken in order to assess the impact upon neighbours.
12. A solar shading path analysis report dated 20th June, 2011, and revised plans addressing the issues raised by the Minister were subsequently submitted. Planning consent was then granted.
13. The legal test for planning appeals can be found in the Royal Court's judgment in Token Limited-v-Planning and Environment Committee [2001] JLR 698 at paragraph 9:-
14. The grounds of appeal of the appellants were set out under the following headings, namely, loss of privacy, loss of light/sunlight, traffic generation, road safety and parking issues, noise and disturbance, other planning issues, in particular in relation to tall buildings and finally the character of the area and the character of the building. We take each of those headings in turn.
15. Due to the height and proximity of the new development, the appellants' properties, they argue, will be overlooked by numerous windows and balconies, causing visual intrusion which will have a dramatic impact on the current level of privacy enjoyed in both properties and their respective gardens.
16. Although some of the windows on the southern end of the existing hotel building overlook the appellants' properties, it is undoubtedly the case that they will suffer a loss of privacy compared to that which they currently enjoy. This was the central objection made by the appellants, both in writing and at the ministerial public meeting. We are satisfied that it was taken into account by the Minister.
17. The problem for the appellants is that this site lies within the Built-up area, where there is a presumption in favour of development. To the north of the site lie high density residential and commercial uses that front directly on to the street, which is typical of the town centre and edge of centre of St Helier. As you move further south into Havre des Pas, the buildings are again largely sited up to the street frontage, albeit that many existing buildings in Havre des Pas have narrow front gardens with dwarf walls to the pavement. The proposed building on to Roseville Street would be set back two metres from the pavement on Roseville Street, replicating the form seen in parts of Havre des Pas. It would be four storeys in height (the same height as the existing Hastings Villas) with a recessed top floor making five storeys in total. There are balconies at first floor level and what might be described as internal balconies interspersed above that.
18. Expectations as to privacy must be relative to the environment in which you live. The appellants live in a built up area where buildings front on to the street and whilst we sympathise with the appellants, we do not regard their objections on this ground to be reasonable. In a built up area buildings with windows will face each other across the street, with the lack of privacy that entails. If their objections on this ground were to be considered reasonable, then it would seem to us that the potential for development in such locations would be severely restricted, which would not be in the public interest.
19. In his affidavit at paragraph 43, Mr Gladwin states that the Minister decided that the proposed relationship of the buildings to Roseville Street was acceptable and that the two metre set back nature of the buildings from the pavement would result in the development being in keeping with the surrounding area. The Minister was also of the view that the proposed development would not result in an unreasonable loss of privacy to residential properties on the other side of Roseville Street, including the appellants' properties. We do not regard the Minister as being mistaken, let alone unreasonable, in reaching that view.
20. At paragraph 39 of his affidavit, Mr Gladwin states that the appellants' properties are some 29 metres from the proposed Block A, with their "gardens and garages" being 8 - 9 metres away. Susan Boyle points out that hers was not a garage, but the chalet, and questioned whether the effect of this small unit had been taken into account. It was not clear from the documentation whether the former Minister, Frederick Ellyer Cohen, who made the decision, had visited the site with his officers and we therefore sought clarification from him as to whether he had visited the site, and in particular, whether he was aware of the chalet. In his affidavit of 16th December, 2011, Mr Cohen deposed as follows:-
"7. During my term I did not always arrange site meetings with officers preferring to consider proposals by visiting sites on my own, usually at weekends. In respect of the Metropole development, I viewed the site on numerous occasions before the public hearing and I went again after the hearing. As best I remember my visits were not with officers.
8. I also looked at the model on many occasions and understood the impact on neighbours as I had considered this both through studying of the plans and studying the model. Development, particularly in the town will often have an impact on neighbours. This is a natural consequence of the progress of a town and it is the case the world over. Impacts can include, light, amenity and overlooking. I considered the impact on all the neighbouring properties and decided that in the context of the town the impact was reasonable.
9. Providing this development is constructed to a high standard under the supervision of a competent architect and further overseen on behalf of the Department by an accomplished classical architect, it has the potential to be an exemplar housing scheme offering high quality living combined with architectural excellence."
21. As can be seen, his affidavit did not address the specific question raised in relation to the chalet. As Mr Mills submitted, it is reasonable to presume that the Minister was not specifically aware of the chalet. Was this a material omission? We do not think so, for the following reasons-
(i) It is necessary to look at the impact on the neighbours as a whole. The chalet is no closer to Block A than a number of properties to the north in Roseville Street, which front on to or close to the street, with their windows looking east directly towards Block A. These properties suffer a far greater intrusion in terms of privacy than that which will be suffered by the appellants in the properties which they occupy, being set back, as they are from Roseville Street.
(ii) The chalet itself will suffer little or no loss of privacy because it is sheltered behind a large granite wall and is orientated towards the north, with its windows looking over the parking area of 24 Roseville Street.
(iii) Susan Boyle did not raise the impact on the chalet, either in her written objections or at the ministerial public meeting. If she had done so, so that its existence was clearly in the mind of the Minister, then we have no doubt that it would have made no difference to his decision at all. It would be quite disproportionate for it to have done so.
22. The appellants' concerns in this regard were clearly taken into account by the Minister, when deferring the decision for a BRE Daylight/Sunlight Analysis to be conducted. That analysis shows the sunlight position on the spring equinox on 21st March at half hourly intervals. Of course the sunlight impact varies throughout the year. The report shows that before 8.30am on the spring equinox there will be some loss of sunlight to the appellants' properties and some loss of sunlight to the appellants' gardens until 10.00am. After 10.00am there will be no loss of sunlight caused by the proposed development to the appellants' houses or gardens. The Minister concluded that this limited loss was not sufficient to justify refusing the application on loss of light grounds and this ground of appeal was not pursued by the appellants at the hearing.
23. Due to the number of permanent residents in the new buildings this will result, the appellants submitted, in an increase in traffic generation in an already very busy one way street raising noise and safety levels. The parking spaces fell short of the guidance and whilst the appellants acknowledged that a condition has been imposed by the Minister that parking spaces cannot be sub-leased, they said it was naïve to suggest that families will not require more than one car.
24. The traffic and parking issues were considered in the Planning Department's report at section f), 'Access, Car Parking & Highways Considerations'. Quoting from the report:-
"Access to the development is proposed to be taken from Roseville Street, roughly in the centre of the elevation. The access will lead directly to the basement, where provision is made 221 car parking spaces (188 individually accessed plus 33 in tandem) and 209 cycle spaces in grouped storage areas.
This provision equates to at least one car parking space per unit, plus the tandem spaces for the larger units (28 x 3-bed units).
The supporting information with the application confirms that the infrastructure will also be put in place for electric car charging points.
The cycle stores are grouped into caged areas and for the purposes of security (which heavily influence their likely use) the Department would prefer to see individual cycle stores.
A marked service bay is proposed to be formed on Roseville Street to deal with block A, whilst Blocks B and C are serviced off St Clements Road, and a turning area for the refuse vehicles is indicated.
Pedestrian access is achieved in two locations, being the main core walkway, running east-west through the whole site, and at the south of the Roseville Street elevation a pedestrian access provides a link to the rear of Hastings Villas.
The site is in an excellent position to provide occupants with the ability to walk to work and the other services within central St Helier, and bearing this in mind the cycle stores and charging points, although the car parking provision is below the published Standards, it is the view of the Department that provision is acceptable.
25. Mr Gladwin says the development is in a very sustainable location, being within walking distance of all town centre amenities and work places, as well as close to the Green Street multi-storey car park for visitor parking. The highway section of the Transport and Technical Services Department confirmed its general support for the development as they considered that the occupants would be able to use alternative forms of transport other than single occupant car use and a transport statement was submitted by the applicant, produced by Peter Brett Associates, which concluded that no significant transport issues have been identified, that the number of vehicle trips generated by the proposed development was not expected to be significantly greater than the existing hotel could generate and as such no highway mitigation measures were considered necessary.
26. In our view, the traffic and road safety issues have been properly examined by the Planning Department and considered by the Minister and there are no grounds for suggesting that the Minister was mistaken, let alone unreasonable, in considering that the application did not justify refusal on these grounds.
27. The appellants understandably complain that the development will cause noise and disturbance for them over the build period of some two years. Such disturbance is inevitable and not normally a reason for refusing planning applications but again we are satisfied that the Minister has taken this fully into account and through the insertion of planning conditions on the planning permit mitigated the effects of the proposed development to an acceptable degree.
28. The appellants' arguments under this heading relate mainly to the issue of "tall buildings". The Island Plan 2002, Policy BE5 in relation to tall buildings says this:-
29. The appellants submitted that the development does not appear to be in line with this, although they did not elaborate. Block A is five storeys. Block B (which the appellants will not be able to see) is six storeys on its western elevation and five on its eastern elevation. The height of the existing buildings varies across the site from single to four storeys and although the development will be more than two storeys above some neighbours, in our view it cannot be said that the development is exceptionally high in the context of its neighbours. In any event, it seems to us that the development has been critically assessed in relation to the four factors set out in Policy BE5.
30. The appellants pointed out that the development was passed a day before the 2011 Plan was approved in its entirety by the States of Jersey. In the week prior to that, the States of Jersey apparently approved the new section on tall buildings, which in the view of the appellants is more restrictive. That defines tall buildings as those above approximately 18 metres in height, which will not be considered appropriate outside St Helier. Within St Helier, they will need to be justified in a design statement in urban design terms. A design statement was submitted by the applicant for this planning application and considered by the Minister.
31. Mr Mills submitted that the starting position in law is the 2002 Plan (Articles (1) and (19) of the Planning Law) but that the draft Plan was capable of being a material consideration. For example, one of the reasons for the Minister deferring his decision was to obtain confirmation that the proposed mix of apartments represented an appropriate mix under the terms of the draft Island Plan. That raised the question as to the actual height of the buildings and in particular, Block A. In a second affidavit sworn by James Naish of Naish Waddington, the retained architects, he advised that the street elevation of Block A will vary in height from 16.94 metres opposite 24 Roseville Street reducing to the north to 15.63 metres. It seems to us that he may not have included the high roof parapets (as he has with Block B) which will add 1.1 metres to the total height of Block A, bringing it to 18.04 metres. He advised that the western elevation of Block B, which comprises six storeys, is 18 metres, which when added to the height of the roof parapets gives a total height on the western elevation of 19.01 metres; the eastern elevation comprising five storeys will obviously be lower.
32. It is clear that this development pushes at the boundaries of the policies under both the 2002 and 2011 Plans, in relation to tall buildings. In our view, both policies would have been in the mind of the Minister in that the official report of the debate before the States Assembly on 29th June, 2011, records him as saying this:-
"We have set the path for the regeneration of the town, which we will discuss in the North of Town Masterplan, with spacious well-appointed homes, with high quality amenity space. We must rejoice in this opportunity. This is not an effort to cram poor quality space into poor quality design. An example of that is that I am delighted to have approved the Metropole Hotel application. This will provide approximately 200 new homes for Islanders. It is a fabulous design, designed by local architects, combining exceptional landscaping, amenity space and fabulous proposed artwork. It is a model that we should use for other schemes. Yes, it is high density, but it is high quality. High density and high quality can go together. It is about providing well-sized units of accommodation that people can be proud to live in, that I would be proud to live in, that each Member would be proud to live in."
33. In our view the Minister was not mistaken let alone unreasonable in granting consent to this application in the light of the 2002 and 2011 policies in relation to tall buildings.
34. In the appellants' view, the overall mass and density of the development is overpowering, consisting of five and six storey buildings that will dominate the area and is not in keeping with the character of the area. It is an example, in their view, of "town cramming" which they say was the main strand of the 1987 Island Plan.
35. We can understand the concerns and feelings of the appellants, who presented their case very thoroughly and skilfully. This is a significant development in terms of mass, density and height, but it is of high quality and will provide a substantial number of much needed new homes on a brownfield site within a sustainable location. It is clear to us that the Minster did very carefully consider the character of the area and the size and character of the proposed new buildings and we do not consider his decision to grant consent as mistaken let alone unreasonable.
36. The appeal is therefore dismissed.
