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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Herold -v- Minister for Planning and Environment and Sea View Investments Ltd [2013] JRC 200A (16 October 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_200A.html Cite as: [2013] JRC 200A |
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Before : |
Advocate Matthew John Thompson, Esq., Master of the Royal Court. |
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Between |
Mary de Faye Herold |
Appellant |
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And |
The Minister for Planning and Environment |
Respondent |
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And |
Sea View Investments Limited |
Applicant |
The Appellant appeared in person.
Advocate G. G. P. White on behalf of the Respondent.
Advocate A. J. Clarke on behalf of the Applicant.
judgment
the master:
1. This is an application by the Minister for Planning and Environment ("the respondent") that the Notice of Appeal filed by Mrs Herold ("the appellant") be dismissed for want of legal validity. The basis of the application is that the Notice of Appeal was served out of time and therefore the appeal should not be allowed to proceed.
2. The summons issued does not set out the legal basis pursuant to which I may grant the relief sought and I was not addressed on this point by any party. However, I regard the application as one made under Royal Court Rule 6/13(1) to strike out the Notice of Appeal on the basis that if the appeal is out of time and I am not permitted to extend time, then it would be an abuse of process to allow the proceedings to continue. I propose to deal with the application on this basis.
3. I observe that the respondent's application could also be dealt with under Royal Court Rule 7/8 as a question of construction. However, I have no power under the Royal Court Rule 1/1(1) and Schedule 1 to determine an application under Rule 7/8 so I must deal with the application under Rule 6/13(1).
4. On 12th October, 2012, Sea View Investments Limited ("the applicant") subject to completion of a planning obligation agreement, was granted permission to develop 17 residential units of accommodation at Keppel Tower, Elizabeth Cottage, and Maison du Roc, La Grande Route des Sablons, Grouville.
5. It is not in dispute that the appellant's property adjoined the property in respect of which planning permission was given. It is also not in dispute that the appellant spoke against the application. She therefore meets the criteria contained in Article 114(1) of the Planning and Building (Jersey) Law 2002, as amended (the "Planning Law"). I set out later in this judgment at paragraph 24 the provisions of Article 114.
6. The terms of the planning obligation agreement were completed between October 2012 and June 2013. Accordingly, on 31st July, 2013, the respondent granted unconditional planning permission. It was accepted by all parties that 31st July, 2013, was the date of the respondent's decision for the purposes of Article 114 of the Planning Law.
7. By a letter dated 2nd August, 2013, the appellant was notified by the respondent of his decision to grant permission to allow the applicant to construct 17 residential units of accommodation. It is accepted by all parties that although the date of this letter was 2nd August, 2013, it was not posted to the appellant until 5th August 2013.
8. Attached to the letter was a document entitled "Development Control Practice Note No 3A - Right of Appeal by a Third Party against a planning application approval". The note stated "the procedures, including how to correctly make your appeal are set out in part 15 of the Royal Court Rules 2004, as amended. A copy of this document can be obtained from the States Greffe Bookshop, Morier House, St Helier, JE11JD, or on the internet at www.jerseylaw.je".
9. The note later continued: "a third party appeal must be served on the Minister and filed with the Judicial Greffe in accordance with the Rules, within 14 days service of the notice".
10. On 7th August, 2013, the appellant wrote to Mr John Nicholson, Principal Planner at the Planning and Building Services seeking confirmation that, as the letter of the 2nd August was posted on 5th August, 2013, it was deemed to be served by reference to Royal Court Rule 5/6(3) on the second day after which it was posted i.e. 7th August, 2013. The appellant therefore sought confirmation that the deadline for serving a Notice of Appeal was 21st August, 2013.
11. Mr Jonathan Gladwin who filed an affidavit in support of the respondent's application and who is the Appeals' Officer and Senior Planner for Planning and Building Services by an email dated 8th August, 2013, replied to the appellant confirming that she had until the 21st August to "submit an appeal".
12. By a letter dated 21st August, 2013, the appellant wrote to the Viscount's Department with the following instructions:-
"Please serve a copy of the accompanying letter and Notice of Appeal on the Minister for Planning and Environment at the following address no later than close of business today."
13. The address given was the address of Planning and Building Services at South Hill.
14. During the course of the hearing I was provided by Mr White for the respondent with a copy of the appellant's letter dated 21st August, 2013, received by the Viscount's Department with annotations by members of the Viscount's department. I assume that this copy was provided to the respondent's office at his or Mr White's request.
15. The copy notes that the Viscount attempted service on 21st August, 2013, and is marked as follows:-
"Respondent out of Island till late tonight. His PA believes he's at home all day tomorrow."
16. The copy then notes that on the 22nd August, 2013, the respondent was served at 11:55am at the offices of Planning and Environment at South Hill.
17. By an email dated 10th October, 2013, Mr Paul Stephens acting Principal and Enforcement Officer of the Viscount's Department wrote to Mrs Herold and stated:-
"As you are aware you issued instructions on 21st August, 2013, requesting that the Viscount served a Notice of Appeal on the Minister for Planning and Environment. You asked for the letter to be served on the Minister on that same day.
Unfortunately, the Minister for Planning and Environment was out of the Island and was unavailable for service. The Viscount's officer was advised by the Minister's PA that the Minister would be at home for the whole day on 22nd August, 2013.
On the 22nd August, 2013, at 11.55 a.m. the Minister for Planning and Environment was served with your Notice of Appeal at the Offices of Planning and Environment."
18. In her written submissions at paragraph 30 the appellant stated:-
"Greg Herold-Howes, the appellant's grandson, received a phone call from Terry De Gruchy during the afternoon of 21st August, 2013, confirming that the respondent was not in fact in the Island that day and that service was therefore impossible. Mr Herold-Howes questioned whether, despite the respondent's absence, service could be instead be effected on another representative of the respondent's department. Mr De Gruchy confirmed that this was not possible and service of the Notice of Appeal under the law could only be effected on the respondent."
Mr P de Gruchy is employed in the Viscount's department.
19. Mr Herold-Howes accompanied his grandmother to the hearing and at my request specifically confirmed the matters stated at paragraph 30 of the appellant's submissions. In particular he confirmed that no option of service on any other person on 21st August, 2013, was raised with him. I address the relevance of this later in my decision.
20. The substantive date to fix a date for the hearing of the appeal occurred on 28th August, 2013. That date fix was attended by Mr Herold-Howes for the appellant. Mr Duncan Mills from the Law Officers' Department for the respondent and Advocate Adam Clarke who appeared before me and who represents the applicant were also present.
21. It appears that Advocate Clarke attended the date fix because by that time the applicant had become aware of the Notice of Appeal filed by the appellant (See paragraph 5 of the Affidavit of Mr Robert Beslievre one of the beneficial owners of the applicant who deposes that he first became aware of the existence of the third party appeal on 26th August, 2013).
22. I address later in this judgment issues arising from the above chronology. However, what is clear is that the Notice of Appeal was served one day after the time limit in Article 114(7) of the Planning Law but within 28 days of the respondent granting planning permission. This is relevant to the effect of Articles 114(3) and 114(4) of the Planning Law. The applicant was also aware of the Notice of Appeal within 28 days of the decision albeit the appellant as required by Rule 15/3D(3) of the Royal Court Rules had not served a copy of the Notice of Appeal on the applicant at the same time as the respondent was served.
23. In relation to the application before me the following articles of the Planning Law are material. Firstly Article 108 provides:-
24. Articles 113(2) Articles 115(3) Articles 116(2) and Article 117(4) all give rights of appeal as follows:-
25. Article 114 provides as follows:-
26. The relevant parts of the Royal Court Rules 2004, as amended in relation to this appeal are Rules 1(5), 15/2 and 15/3D which provide as follows:-
27. The precise question I have to determine relates to Article 114(7) of the Planning Law and whether any exercise of a right of appeal has to occur within 14 days of service of a notice by the respondent informing a person of the right to appeal the respondent's decision or whether I may extend that time limit. If I am satisfied that there is a power to extend the time limit the question then arises whether I should exercise that power.
28. The respondent's submission is that there is no power vested in the Royal Court to extend time and that the time limit in Article 114(7) should be construed as imposing a mandatory time limit. He further contends that the time limits contained in Articles 113, 115, 116 and 117 of the Planning Law which I have set out above are also mandatory. He made this submission because the language used in each of those sections as well as in Article 114(7) is that a person "may" appeal. It would be an illogical construction if Article 114(7) was construed differently to any other section within the Planning Law giving a right to appeal.
29. In relation to the approach I should take to a question of construction, Mr White for the respondent referred me to the Court of Appeal case of Jones-v-AG [2000] JLR 103. The appeal in Jones concerned whether a jury trial could continue with only 11 jury members. The Royal Court had decided that it could use its inherent procedural power to allow the trial to continue. The issue on appeal was whether the Royal Court could exercise such a power in the face of the express language of Article 33 of the Loi (1864) reglant la procedure criminelle.
30. In construing Article 33 the Court of Appeal stated at page 109 lines 23 to 27 "Plainly is it possible for an inherent jurisdiction to exist in respect of matters about which a statute is silent. Equally an inherent jurisdiction may supplement a permissive jurisdiction granted by statute. What it cannot do is to confer a power inconsistent with a statutory provision which is itself mandatory." On the facts the mandatory language of the 1864 Law could not be altered by the Court's inherent jurisdiction.
31. Advocate White for the respondent contended by reference to Jones that Article 114(7) is a mandatory provision and therefore I could not use any inherent jurisdiction or any power under Royal Court Rule 1/5 to extend time because to do so would be to exercise a power inconsistent with a statutory provision.
32. I agree I cannot exercise any power inconsistent with a statutory provision that is mandatory either pursuant to any inherent jurisdiction or Royal Court Rule 1/5. However, the reference in Jones simply begs the question as to whether the requirement in Article 114(7) is mandatory.
33. The appellant in her written submissions on the question of construction referred me to the Guernsey case of Canivet Webber Financial Services Limited-v-Guernsey Financial Services Commission [2007-08] GLR 221 a decision of Lieutenant Bailiff Newman.
34. In Canivet the appellant sought to challenge the GFSC's decision to revokes the appellant's licence to carry out business under a regulatory statute. The relevant section of the statute provided that an appeal "shall be instituted within 28 days of the [decision under challenge]". Neither the section nor any other part of the statute specified whether the Court had the power to extend the time limits set out. On the facts while the appellant had started the process of obtaining permission of the Royal Court for leave to appeal within 28 days that process was not completed until the relevant time limit had expired.
35. The head note is instructive and states as follows:-
36. At paragraph 6 of the judgment Lieutenant Bailiff Newman stated:-
37. On the facts Lieutenant Bailiff Newman followed the approach in R-v-Soneji [2006] 1 AC 340 and allowed the appellant to appeal out of time, stating:-
38. I was also provided by the appellant with a copy of R-v-Soneji [2006] AC 340.
39. Lord Steyn in his judgment in paragraphs 14 and 15 stated as follows:-
40. He continued at paragraph 23 as follows:-
41. Based on Lord Steyn's reasoning with which the majority expressly agreed Soneji concluded that the original mandatory/directory distinction had outlived its usefulness. It is right to note however, that at paragraphs 61 to 63 Lord Carswell stated as follows:-
42. I consider the effect of Soneji to mean that I should consider whether the States of Jersey can fairly be taken to have intended total invalidity of an individual's right of appeal under the Planning Law if the appeal is made outside the applicable time limits referred to in the Planning Law. In taking this approach I therefore have to consider objectively what intention should be imputed to the States of Jersey.
43. I also agree with Lord Carswell that I should not ignore completely any distinction between whether language is mandatory or permissible as suggested by the Court of Appeal in Jones. I consider I am able to take this approach because Jones pre dated Soneji. However, because the issue of whether Soneji affects the decision in Jones has not been considered, I will also approach matters on the basis that I am bound by Jones.
44. The question of whether time limits in the Planning Law exclude any right of the Court to extend time somewhat to my surprise appears not to have been considered directly by the Royal Court.
45. In the case of Arbaugh-v-Island Development Committee [1966] JJ 593 Article 21 of the Island Planning Law 1964 (the statute replaced by the Planning Law) provided that an appeal might be brought within two months of notification of committee's decision. Although the appeal was out of time the Court noted that the Committee had agreed not to raise any objection and therefore the Court proceeded on the basis as if the appeal had been made within the time limit prescribed by Article 21. There was no discussion before the Court whether the Court could proceed on this basis.
46. The appellant referred me to Burnett-v-The Minister for Planning and Environment [2010] JRC 143B. In that decision Sir Philip Bailhache sitting as a Commissioner rejected an application by the Solicitor General to dismiss the appeal on the basis that the appeal was in substance an appeal against a decision to refuse development permission and was out of time, the 28 days stipulated in Article 113(2) of the Planning Law having long since expired.
47. Paragraph 11 of the judgment states:-
48. At paragraph 13 the judgment continues:-
The decision was not appealed.
49. In submission before me it was contended by the respondent and the applicant that Burnett did not assist me as it was very much a case on its own facts both because of the procedural muddle caused by the actions of the Planning Department and because the appellant had not been notified of his right to appeal. What the Court did therefore, was to treat the appeal "de bene esse" as an appeal in time.
50. What was accepted in submission by the respondent was that if the Minister failed to give notice as required by Article 114(6) and (7) the Minister would be precluded from saying that an appellant could not appeal in essence because of the Minister's own wrong doing. However, it was also contended that Burnett did not go any further than this concession and was not authority for the proposition that the Court had a general jurisdiction to extend time under the Planning Law. The argument against that submission is that if the Court can extend time on one basis notwithstanding the express words of a statute, in doing so it must be using its inherent jurisdiction or a power vested in it by the Royal Court Rules. If the Court can extend time because of a failing by the Minister to discharge his obligations the argument is that it also has power to extend time in other circumstances.
51. I was referred by Mr White to a decision of the Deputy Judicial Greffier in 2008 between Keith Stuart Smith and the Minister of Planning Environment and an interested party. I was also provided with a copy of the reasons for that decision although those reasons were never reported.
52. In that decision the Notice of Appeal was not only served outside the 14 day period referred to in Article 114(7); it was also outside the 28 day period referred to in Article 114(3).
53. I regard this difference as significant because under Article 114(3), the Minister's decision has no effect for 28 days. Article 114(4) then provides that if a person appeals in accordance with Article 114 the Minister's decision does not take effect until the appeal is withdrawn or is determined. However, Article 114(4) commences with the words "If during that period". That can only be a reference to the 28 day period in Article 114(3). In other words once 28 days has elapsed after the decision has been made without any appeal then the Minister's decision takes effect.
54. The effect of a decision becoming unconditional is that an applicant for planning permission is then free to deal with the property in accordance with the permission granted. That could include demolishing property or commencing works. In the Stuart Smith case the property was in fact sold.
55. I am of the view that if I do have any power to extend time, I do not have power to extend time beyond the 28 day period referred to in Article 114(3). This is because the States clearly intended by Articles 114(3) & (4) for the planning permission to become unconditional after 28 days. I therefore agree with the Deputy Judicial Greffier that I cannot use any inherent jurisdiction or Rule 1/5 to extend time to cut across the clear words of Article 114(3) & (4).
56. However, in this case the position is different from the Stuart-Smith decision because the Notice of Appeal although it was served outside the 14 day period referred to in Article 114(7), it was served within the 28 day period referred to in Articles 114(3) & (4). The question that I have to determine therefore is whether I have power to extend time under Article 114(7) as long as I do not fall foul of provisions of Article 114(3) and (4).
57. For the sake of completeness I should make it clear having regard to the approach taken in Burnett, if the Minister were not to serve the notice required by Article 114(7) until after the 28 day period referred to in Article 114(3) I consider the Minister would be precluded from arguing that the appeal had become unconditional. The position of the applicant might be different. However such a scenario for an applicant is a matter for another day and beyond the scope of the application before me.
58. I turn now to consider the meaning of Article 114(7) itself. I start by reference to the history of Article 114. I have already referred to the right of appeal contained in the 1964 Law which was the precursor to the current Planning Law. Article 21 of the 1964 Law provided for a time limit of two months and indicated that any person aggrieved by a refusal of the committee "may appeal".
59. One of the issues with the 1964 Law that it did not give any right to third parties to appeal even if they had objected to the application. Article 114(1) of the Planning Law when originally enacted in April 2002 allowed any person who had made a submission to the Planning and Environment Committee in respect of an application to exercise a right of appeal. However this provision never came into force and was replaced in 2005 pursuant to the Planning and Building Amendment No.2 Law. Amendment Number 2 was adopted by the States in April 2005. It is pursuant to this amendment that Article 114(1) in its present form was enacted. The majority of the provisions of the Planning Law came into force on 1st July, 2006, with Article 114 which taking effect from 31st March, 2007.
60. I have referred to the above history because between passing the original version of Article 114(1) in 2002 and the current version in 2005 the States restricted the right to bring a third party appeal. In particular the current law does not allow anyone who objects to an application to appeal. Instead it limits the ability to appeal to anyone who has an interest in or resides in a property within fifty metres of the site to which the planning permission relates.
61. The report accompanying the proposition leading to the amendment Article 114 2005 lodged by Deputy Scott-Warren stated as follows:-
"Members will be aware that the delay in bringing the Planning and Building (Jersey) Law 2002 into force has in part been due to concern that third party appeals may increase to an unacceptable level the cost to the Environment and Public Services Committee of implementing the Law.
The Law at present provides that any person who has objected to an application for planning may appeal against the grant of the permission. This means that a person who may in no way be affected if the development goes ahead would have a right of appeal merely by objecting to the application.
My proposed amendments will limit the right to appeal against the grant of planning permission to those who, having objected at the time of the application for the permission, fulfil the criterion of either living within 50 metres of any part of the site to which the planning permission relates, or having an interest in property, any part of which is within 50 metres of any part of the site. The interest is property includes a body or person created by statute.
If these amendments are agreed the number of appeals against the grant of planning permission should fall considerably and consequently the cost to the Committee of implementing the Law would be greatly reduced. However, the original intention of providing a third party right of appeal for those who feel genuinely aggrieved by a grant of permission would still be retained, albeit limited to a radius of 50 metres of a site.
It should therefore be possible to implement the Law IN FULL, as it was to be implemented, soon after the amending Law has been approved by the Privy Council."
62. I have referred to the above report because insofar as I can ascertain the intention of the States when Article 114(1) was passed in its current form the focus of the States appears to have been on who might exercise a right of appeal rather than any time limit when a party may appeal. This is subject to the observations I have made at paragraph 57 of this judgment.
63. In relation to the language in Article 114 itself, I note that the obligation in Article 114(7) follows on from Article 114(6). Article 114(6) requires the Minister to serve a copy of the Notice on anyone who is entitled to bring a third party appeal. The obligation on the Minister appears to me to be a mandatory one in that the Minister "shall serve a copy of the Notice". Likewise Article 114 commences with the words "the copy of the Notice must". There is similar language in Article 114(3) which provides the decision shall not have effect during the period of 28 days and Article 114(4) which provides that if during the 28 day period a person appeals the period shall be extended. Similarly in Article 114(9) the Minister shall comply with any order made under Article 114 paragraphs 8(b) or (c).
64. The language I have emphasized namely "must", "shall" or "shall not" contrasts with the use of the word "may" in Article 114(7) and indeed in Article 114(8). The use of the word "may" does not contain the same sense of obligation as is contained in other parts of Article 114. It is clear that under Article 114(8) the use of the word "may" also gives the Court a discretion and is not mandatory. Why should use of the same word in Article 114(7) be construed in a different sense? The use of the word "may" was also a continuation of the language contained in the 1964 Law which again suggests that the States were not in enacting the Planning Law looking to impose a more onerous requirement than had already been in place. Instead their focus was on who would be allowed to appeal as I have already indicated.
65. It was contended by the respondent that the fact that somebody may only do something within a specified period makes the language mandatory. I do not accept that submission. Although I was referred to a number of different statutory provisions where the Court is granted an express power to extend time, the absence of such a power does not of itself make any time limit compulsory or mandatory. Rather what is created are the difficulties recognised by Lieutenant Bailiff Newman in the Canivet case and by Lord Steyn in the Soneji case.
66. Article 114(7) also is silent about how a party may appeal. What it provides is that the Notice the Minister is obliged to serve under Article 114(6) must be accompanied by a notice stating that the recipient may appeal within 14 days. It does not state how the person is to appeal and what is required in order to do so.
67. Instead by Article 108 the States left it to the Royal Court to "make Rules regulating practice and procedure in applications and appeals under this part". Those Rules relate to rights of appeal found in Articles 113, 115, 116 and 117 set out above as well as in Article 114.
68. It is therefore Rule 15/2 which determines how a person may appeal rather than Article 114(7). The appellant in this case is in breach of Article 114(7) because she has failed to adhere to Rule 15/2(1) in that service of the Notice of Appeal did not occur within 14 days. It was therefore the Rules rather than Article 114(7) which defined that the obligation to serve a Notice of Appeal required service to be effected through the Viscount's Department. Article 114(7) on its face does no more than state that a third party appellant may appeal within 14 days. The Planning Law otherwise left it to the Royal Court to determine procedures for applications under appeals. The Royal Court Rules have always contained a power to extend time which the States either knew or is presumed to know.
69. I therefore conclude that the States by using permissive language and by leaving it to the Royal Court to make Rules in relation to practice and procedure for appeals cannot be said to have intended that any right of appeal contained in the Planning Law could only be exercised during a defined period and could never be extended by the Court. The other provisions of the Planning Law conferring a right of appeal to which I have referred to and to which Article 108 also applies are identical in effect in that they simply all use permissive language in the sense that the person "may" appeal within 28 days of notification of the decision in question. Other than the reference to Article 114(3) which I have dealt with, there is nothing in either Article 114(7) or any of the other Articles of the Planning Law giving rights of appeal from which I can draw a conclusion that such time limits are intended to be mandatory.
70. Applying the Jones formulation the language is permissive with the States expressly allowing the Royal Court to determine practice and procedure. That practice and procedure ordinarily includes a power to extend time as recorded in Rule 1/5 of the Royal Court Rules 2004. I have reached the view that by including Article 108 in the Planning Law the States did not intend to exclude the power of the Royal Court to extend time as it ordinarily can. There is certainly no language in Article 114 or in another Article granting a right of appeal under the Planning Law to indicate such an intention. The history of Article 114's enactment reveals that the focus of the States was on who may appeal and not whether any time limit was to be mandatory. I also regard this construction as consistent with the approach taken in Burnett.
71. Applying the reasoning in Canivet and Soneji also leads to the same conclusion as applying the approach in Jones. Just as the language in Article 114(7) is not mandatory for the reasons set out above, those same reasons allow me to conclude that the States did not intend to exclude a right of appeal if there was non- compliance with the 14 day time limit.
72. The conclusion I have reached also leads to a consistent approach in terms of how appeals may be handled. Under Rule 15/2(2) an appellant can amend a Notice of Appeal to include grounds albeit with leave of the Court. Likewise, it is the Rules rather than the Planning Law that impose an obligation on an appellant to serve a Notice of Appeal on an applicant as well as on the Minister (see Rule 15/3D(3)). If such a notice is not served on an applicant at the same time as it is served on the Minister then an appellant may be in breach of the Rules. If the construction advanced for by the respondent were correct the Royal Court could allow service out of time on an applicant but not on the Minister. It does not seem logical to for there to be a provision that allows a Notice of Appeal to be amended after the 14 day period has expired or to allow an applicant to be served out of time but then to conclude that the time limit for service on the Minister cannot be extended and is mandatory.
73. It was also contended by the respondent that the words "in accordance with this Article" in Article 114(4) have the effect of making the reference to 14 days in Article 114(7) a mandatory time limit. I do not agree. Firstly it is the 28 day limit in Article 114(3) and (4) that has mandatory effect. I do not consider that the States by referring to Article 114 as a whole were intending to add in a second mandatory provision within the same paragraph. Secondly the words relied upon are not referring expressly to Article 114(7) but to the entire Article. I therefore am of the view that the States had in mind the fact that they were granting a right to third parties to appeal which third parties had not previously enjoyed rather than intending to make a time limit in another paragraph mandatory. Thirdly this argument ignores the effect of Article 108 which expressly left it to the Royal Court to makes rules in relation to the procedure for appeals.
74. Having found that I have the power to extend time the question arises as to whether I should exercise that power. Although I have reached the view I have such a power, it is a power that should be exercised sparingly. Like Lieutenant Bailiff Newman in Canivet case I am conscious of balancing the public interest in the finality of decision making with the public interest in ensuring that time limits do not work substantial injustice. Like her I consider it is necessary to temper the requirements of certainty with a method of dealing with potential unfairness in an appropriate case.
75. In this case I consider that injustice would arise because the fact that the respondent was not served in my judgment was not the fault of the appellant. The appellant did send the Notice of Appeal to the Viscount's Department for service and in sufficient time to allow service albeit on the last day. The appellant it appears was also told wrongly that service was not possible that day because the respondent was out of the Island.
76. Advocate White did contend that the Chief Minister whom I was informed was in the Island on 21st August could have been served pursuant to 27(2) States of Jersey Law 2005 because during the temporary absence of a Minister the Chief Minister may "personally discharge the functions of that Minister". The problem with this submission however was that neither the appellant nor more importantly the Viscount's office were aware of the option of serving the Chief Minister in lieu of the Planning Minister. A person should not lose a right of appeal merely because either there is no one to accept service or because the person effecting service not being the appellant is not aware of who might accept service. Hopefully in light of this judgment this latter problem will not occur in the future. However in this case to rule against the appellant on the basis of this contention would be to deprive the appellant of a right of appeal and would be unjust. I also note that no party contended that the grounds of appeal were hopeless. In reaching the view that the appellant should be allowed to appeal I have therefore proceeded on the assumption that there is an arguable ground of appeal.
77. The argument in the respondent's favour is in essence a policy or floodgates argument namely that if I agree to extend time in relation to this appeal, then many more applications may be made. However I have made it clear that this is a power which should be exercised sparingly and also is only a power under Article 114 to allow me to extend time as long as the notice of appeal is served within 28 days after the decision has been made and the respondent discharges his obligations when required to do so. I do not therefore consider that a significant number of cases will arise.
78. The respondent also emphasized that the appellant should not have left matters to the last day to appeal. However the appellant in doing so was not acting in an inappropriate manner. A Notice of Appeal is required to set out the grounds relied upon. The period of 14 days to prepare such grounds is not particularly lengthy, given the Notice of Appeal has to identify the grounds relied upon and to consider whether or not the Minister adhered to the requirements of the Island Plan as well as the Planning Law itself. I accept that an appellant may have knowledge already of the application but an appellant still has to respond to the Minister's reasons and any matters in the Island plan relied upon in order to set out grounds of appeal. I regard the Island Plan as a reasonably complicated document which would require any party seeking to appeal to have to evaluate whether the policies contained in that had been adhered to by the Minister in a particular case. The appellant's position in this case is no different. The appellant is also not the first individual and will not be the last when dealing with this Court to leave matters to the last day.
79. The applicant through Advocate Clarke indicated he would suffer prejudice. The nature of that prejudice was set out in an affidavit of Mr Robert Beslievre, one of the beneficial owners of the applicant, and can be summarised as firstly, that there would be on-going running costs in relation to the development which could not be avoided while the appeal took place. Secondly, the applicant might not be able to retain contractors on the same favourable terms that exist at present. Thirdly, the development might encounter more competition in the market than if it was allowed to proceed now.
80. While I accept that these are matters that may flow from the appeal albeit there is uncertainty as to whether the costs of contractors and market opportunity will strengthen or weaken over the next few months, these are matters that would have flowed had the Minister been served on 21st August, 2013, and had not been out of the Island. They are not additional prejudice due to the appeal being served outside the 14 day time limit. Rather they are risks inherent in any application for a development especially a significant development (which this is). There have been enough proposed developments attracting public comment that a developer must be presumed to know that any permission might be appealed and with resulting delays and further costs being incurred. In this case as noted at paragraph 22 above Mr Robert Beslievre was fully aware that there might be a third party appeal. Indeed, he was first informed of the existence of the appellant's Notice of Appeal on 26th August, 2013, when he contacted the Planning Department. The fact that he made such an enquiry illustrates that he was alive to the possibility of a third party appeal and the consequences that might flow from such an appeal. This is not therefore a case where the applicant, in ignorance of a Notice of Appeal filed out of time, has incurred expense or cost.
81. In view of the fact that the respondent was served the very next day as soon as he returned to office and that service out of time was not the fault of the appellant, in this case I consider the balance of convenience comes down on the side of the appellant who should not be deprived of her right to pursue an arguable appeal. I am therefore not persuaded by the respondent's policy concerns which are not as extensive as was contended. In relation to the applicant the matters raised are inherent risks that any developer faces and are not matters specifically flowing from an appeal being allowed out of time.
82. I do wish to stress however that each case will have to be approached on its facts and that a Court will not be necessarily extend time in every case without appropriate justification.
83. The appellant in her submissions was critical of Mr Robert Beslievre affidavit being attached to an affidavit filed by Mr Gladwin on behalf of the respondent. In particular, there was implicit criticism that the respondent was acting in bad faith. I wish to make it clear that in any planning appeal if an applicant raises relevant matters with the respondent it is the respondent's duty to draw such matters to the attention of the Court. However if an applicant wishes to file affidavit evidence in relation to the issue before the Court then it is preferable if such evidence is filed in future directly by an applicant on all parties rather than via the Minister to avoid a concern arising that an applicant and the Minister are working together or that the Minister is somehow siding with an applicant. I am satisfied that there is no evidence to form such a view in this matter and therefore the appellant's concern is unfounded.
84. The other observation I wish to make concerns the future conduct of this appeal. A hearing date has been fixed for 20th December, 2013, and so directions will need to be given to ensure that this appeal can be conducted within this timeframe. I also want to hear from the parties whether or not this is an appeal which should be conducted under the ordinary or the modified procedure. Having regard to the observations of the Deputy Bailiff in Hobson-v-Minister for Planning and Environment [2012] JRC 214, and giving the scale of the proposed development, this case may not necessarily be a simple planning appeal. I would accordingly like to hear from the parties on this issue as part of giving directions.
85. For the reasons set out in this judgment I consider that I do have power to extend time under Rule 1/5 for the service of the appellant's appeal. In the exercise of that power I allow the appellant to appeal out of time. I therefore dismiss the respondent's summons.
86. In relation to the costs of this application after giving my judgment the respondent conceded that he should pay the appellant's costs of the respondent's application, the subject matter of this judgment. However, while I made such an order, there is a general question of principle as to what approach the Court should take in relation to costs of preliminary issues arising in planning appeals and whether the ordinary rules should apply or whether the test in Hobson referred to above should also apply to preliminary issues or interlocutory applications in planning appeals.
