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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 [2014] JRC 012 (16 January 2014) URL: http://www.bailii.org/je/cases/UR/2014/2014_012.html Cite as: [2014] JRC 12, [2014] JRC 012 |
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Planning - third party appeal against decision of the Minister.
16 January 2014
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Marett-Crosby and Crill. |
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Between |
Mary de Faye Herold |
Appellant |
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And |
Minister for Planning and Environment |
Respondent |
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And |
Sea View Investments Limited |
Applicant |
Advocate G. A. H. Baxter for the Appellant.
Advocate D. J. Benest for the Minister.
Advocate A. J. Clarke for the Applicant.
judgment
the deputy bailiff:
1. The appellant, who is the owner of Seymour Cottage, a "potentially listed building" adjoining the site of the proposed development, brings this third party appeal against the decision of the Minister to grant the applicant planning permission in respect of a proposed development at the properties known as Keppel Tower (also a "potentially listed building"), Elizabeth Cottage and Maison du Roc, which are neighbouring properties to be found between La Grande Route des Sablons, Grouville, and the sea shore. The planning permission which the applicant has obtained is for the demolition and aggregation of the three previously separate properties, and the development on the site of 17 residential units of accommodation.
2. As between itself and the Minister, the applicant cannot be criticised for the care which has been taken in dealing with this application. Pre-application plans and designs dated August 2010 were considered with officers of the Planning and Environment Department, and a second set of pre-application plans dated January 2011 with associated computer representations were subsequently presented to the officers. The design of the proposed development evolved, and we saw a number of the earlier plans which show the extent of that evolution, promoted by the suggestions of planning officers whose views were being informally sought, no doubt on the basis that the applicant thought the obtaining of planning permission would thereby be facilitated. Ultimately, the formal application was submitted in September 2011. It was advertised in the usual way, and a number of consultation responses were received by the Minister. Among those making representations was the appellant. In her letter of 19th October, 2011, the appellant emphasised concerns in two different areas - the impact upon her during the construction of the property, and secondly the effect that the proposed development would have once it was completed. Similar objections were to be found in the representations made by other neighbours, albeit that those objectors have not taken the further stage of entering any third party appeal.
3. The proposed application was also considered by the Historic Environment Team; the Transport and Technical Services Department; the Environment Division which, apart from pointing to the relevant provisions of the Conservation of Wildlife (Jersey) Law 2000 had no substantive comment to make, the environmental protection officer who made some comments in relation to the disposal of swimming pool backwash, the issue of construction activities in close proximity to the beach, and the possible existence of asbestos; and the Parish of Grouville. In connection with the latter, both the then Connétable and the Deputy of Grouville made representations objecting to the development.
4. Following consultation, the Minister referred the application to the Planning Applications Panel. The Panel visited the site on 28th February, 2012, and a number of persons spoke against the application. In the event, Panel members were split in voting on the planning application, with three members voting for an approval and three members voting against. As a result of the spilt vote, the application was referred to the Minister personally. There was a Ministerial meeting on 20th April, 2012, when once again a number of persons spoke against the application - including the Connétable and Deputy of Grouville - and the Minister expressed a number of concerns regarding Block D which is at the northern end of the development site. The Minister also expressed some reservations about Blocks B and C. It does not appear that any reservations were expressed about Block A, which is the block with which we are substantially concerned on this appeal. Following this Ministerial meeting, there were further discussions between the architect on behalf of the applicant and the planning case officer, which resulted in further changes being made to the draft scheme. The revised scheme was submitted and advertised. Further representations were made and a revised report was submitted to the Minister by the planning case officer, and agreed by the Director of Planning. The Department recommendation was for approval with 15 recommended planning conditions, some of which were relevant to the appellant - Condition 11 required obscure glazing to first floor windows on the south elevation of Block A, facing the appellant's property and Condition 15 required revised drawings to be submitted for approval showing an increased height of 1.8 metres for the first floor privacy screen on the south elevation of Block A. These conditions were recommended as a response to concerns expressed by the appellant regarding the impact of the proposed development on her property Seymour Cottage.
5. The Ministerial meeting in respect of this application was held on 12th October, 2012. The appellant, the Deputy of Grouville and one other person spoke against the application, the architect and the applicant spoke in favour of it. The Minister determined to grant permission subject to the planning conditions recommended, and subject also to the signing of a Planning Obligation Agreement between the respondent and the applicant so that the applicant would provide a financial contribution to the delivery of a bus shelter nearby to the development site, a financial contribution to the eastern cycle network and the provision of a public pavement that was subsequently to be ceded to the public in front of the development on La Grande Route des Sablons. Once the Planning Obligation Agreement was signed on 24th June, 2013, the planning permit and letters of notification to people who had made representations were sent out.
6. The planning permit was dated 31st July, 2013. The reasons given for approval were that the proposed development was considered "to be acceptable having due regard to all of the material considerations raised. In particular, the development has been assessed against Policies GD1, GD2, GD3, GD5, HE1, HE5, H6, BE4 and WM1 of the Jersey Island Plan 2011. In this case, having regard to the character and grain of the area, and the scale, form and architecture of the proposal, alongside the full package of works including to the Martello tower, the proposed development is regarded as acceptable because it does not detract from the amenities of the area and provides enhancements to the urban form and historic environment.
In addition, the representations raised to the scheme have been assessed. However, it is considered that the proposal accords with the terms of policies within the Jersey Island Plan 2011 in that it does not have an unreasonable impact on amenities of neighbours or the area generally."
7. A little belatedly, the appellant appealed. Her application to appeal out of time was permitted by the Master, whose decision was upheld by the Royal Court on different grounds when the Minister appealed.
8. The parties have very helpfully put together a single bundle which contains all the relevant material. Furthermore, the written submissions which have been made by each of the parties have been clearly set out. In addition, the Court has been shown a model of the proposed development which model was prepared by the architects for the applicant. We would like to pay tribute to the quality of the work which has been done by the parties in presenting all this material to us.
9. Advocate Baxter sought leave to introduce some perspective drawings showing the outline of Seymour Cottage against the proposed new building. The basis upon which he contended it was appropriate that these drawings be put before the Court was that the Minister had not had the benefit of perspective drawings showing such an outline, and that this was a material deficiency in the process which was adopted. He also said that the strength of his submission that the Minister should have called for perspective drawings could be demonstrated by actually looking at them, whether they were or were not accurate. On behalf of the Minister, Advocate Benest objected to the admissibility of such drawings. He said, rightly, that the drawings were not before the Minister, and the Court's primary function was to review the decision of the Minister in accordance with the established rules. Furthermore, the perspective drawings had only very recently been shown to him, and they were unproved - the measurements and the perspective had not in fact been checked and it was potentially very unfair that they should be before the Court. In the circumstances, we would not allow them to be submitted, and they were not put before us.
10. Although there were sundry other points which were raised by Advocate Baxter, the appellant's case really rested on two linked but alternative propositions. The first was that the Minister had failed to take into account that the appellant's property Seymour Cottage was a "potentially listed building", which would be adversely affected by the proposed development, particularly Block A, which by its mass and proximity to the boundary had an adverse effect on the setting within which the potentially listed property Seymour Cottage lies. The Minister's decision was on this analysis unreasonable because he either did not apply Policy HE1 of the Island Plan at all, or if he did apply it, he failed to apply it appropriately. The second proposition was that to approve the development was unreasonable, because granting permission was inconsistent with the Island Plan, and in particular the increase in footprint, height and proximity of Block A would dwarf Seymour Cottage and, using the expression adopted by the appellant, "give the impression that the Appellant is living in its shadow, prejudicing amenities of the property and its grounds". We take those two arguments separately.
11. Although the material was not put before us in the instant case, the situation in relation to the listing of heritage assets was described in Seymour Villas Limited v Minister for Planning and Environment [2013] JRC 155, a case which involved an appeal against a decision by the Minister to list the property in question. At paragraph 5, the Court said this:
12. Although in the case of Seymour Villas Limited, the Minister had issued a notice of intent to list the property, invited representations and subsequently reached a conclusion that the property should be listed, in the instant case, we understand that no formal listing process has been completed either in relation to Seymour Cottage, the appellant's property, or Keppel Tower, one of the properties of the applicant. Both these properties are described as "potential listed buildings". It is to be noted from the Seymour Villas Limited case that the fact that a building is designated as a "potential listed building" as opposed to an actually listed building does not apparently prevent the Minister from relying upon the designation as a "potential listed building" for the purposes of applying Policy HE1 of the Island Plan 2011 and in that case indeed using the provisional listing at an earlier stage as a reason for refusing a planning application.
13. Policy HE1 is in these terms:-
14. Advocate Baxter submits that the applicant's proposal which was granted by the Minister does not preserve or enhance the special interest of the property Seymour Cottage or its setting. Whether it does or does not so enhance that property, the Minister, he says, does not appear to have considered it. For these reasons, he submits the appeal should succeed.
15. These submissions require us to consider first of all whether Policy HE1 was intended to apply directly to a case such as the present one. The Minister contends that it was not. He says that Seymour Cottage is not yet listed, and therefore Policy HE1 does not apply because this only applies to listed buildings. Secondly, it is said by the Minister that Policy HE1 in any event gives neighbouring historic buildings less weight than historic buildings which happen to be on the proposed development site.
16. We consider that the Minister's objection that Seymour Cottage is only a "potential listed building" and not as yet a listed building is unattractive. In the Seymour Villas case to which we have referred, the Minister had earlier refused an application for planning permission on a number of grounds, the first of which being that the development would impact on a "potential listed building". To acquiesce in the Minister's contention in the instant case would amount to approving an approach which permitted the Minister to stand on his head - indeed to act like the fictional character Humpty Dumpty in Lewis Carroll's Through the Looking Glass:-
17. The Court of Appeal in the Seymour Villas Limited case determined that the effect of Article 51 of the Planning and Building (Jersey) Law 2002 ("the Law") was to require the Minister, in taking a listing decision, to have regard only to the special zoological, ecological, botanical or geological interest, or the special archaeological, architectural, artistic, historical, scientific or traditional interest that attaches to the building or place in question. In making a listing decision, the Minister is not to have regard to any other circumstances. Given that the process which was described in paragraph 5 of the Royal Court's judgment in the Seymour Villas case has resulted in over 3,500 sites being given a designation of "potential listed building", it is apparent that it will take some time before each of those sites has been given the detailed consideration that is required before the listing becomes confirmed. In those circumstances, it seems to us that the Minister's policy of applying Policy HE1 to "potential listed buildings" which were the subject of a planning application makes more sense than to say the policy does not apply until they are listed in that if it were otherwise, the delay between the publication of the provisional list and the formalisation of that list might lead to a very large number of buildings of historic interest being demolished or altered so as to remove the particular points of interest. At all events, we will not permit the Minister to be inconsistent in this respect. If we did, his reasoning would be truly impenetrable because it would be impossible to determine the basis on which some potential listed buildings would be regarded as listed and others would not. For that reason the contention that the Policy HE1 does not apply because Seymour Cottage is not yet listed is not one which we find to be attractive.
18. The second objection put forward by Advocate Benest to the application of Policy HE1 was that Seymour Cottage is in any event not on the site which was being considered by the Minister. Thus it was said that Policy HE1 gives neighbouring historic buildings less weight than historic buildings which may be on the development site. In this respect we preferred the submissions of Advocate Baxter for the appellant. The first sentence of Policy HE1 refers not just to the historic character and integrity of listed buildings and places, but also to their settings. The setting of a listed building in our judgment includes the general area in which it is to be found and its characteristics within that area - the topography as well as the nature of the special interest which the building itself carries. It may be for example that there is a fine building in architectural terms which stands against the backdrop of an escarpment, thus in effect preventing the building being viewed from behind. In those circumstances the grant of planning permission for a much larger building on the adjacent site under the escarpment might carry a much greater prejudice to the listed building in terms of the ability of the public to appreciate its architectural heritage and worth than it would if the escarpment against which it is constructed were not present. In other words, the setting of the listed building changes by reference to what is around it and how its characteristics are to be appreciated in that context and we think that is included within the ordinary construction of Policy HE1.
19. Secondly, Advocate Baxter submits that the final paragraph of Policy HE1 makes it plain that if a proposal affects a listed building, then sufficient information must be provided to enable the extent of the effect to be considered, understood and evaluated. We agree that this paragraph also tends to suggest that the Minister is required to have regard to listed buildings on adjoining properties when considering an application in respect of a development site. Thirdly, Advocate Baxter relied upon the case of Garner and Others v The Elmbridge Borough Council and Others [2011] EWCA Civ 891. The case on its facts was rather extreme. The appellant was applying for judicial review in respect of the grant of planning permission for the comprehensive redevelopment of land at Hampton Court Railway Station, which was on the opposite bank of the river to Hampton Court Palace and its park, a scheduled ancient monument of international significance and a Grade I listed building. One of the issues before the Court of Appeal was the construction of Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 which provides:-
20. The judge at first instance rejected all three grounds of the application for judicial review, and his decision was upheld in the Court of Appeal. What is of interest for the purposes of the instant judgment is that a wide approach was taken both by the judge at first instance and the Court of Appeal. Ouseley J said at paragraph 67 at first instance that he was:-
21. The Court of Appeal did not criticise that approach. Both courts proceeded on the basis that the setting included more than the site on which the listed building stood.
22. We accordingly conclude that Policy HE1 did apply to this present application, not only in relation to Keppel Tower which is on the development site, but also in relation to Seymour Cottage.
23. We deal next with the argument that the Policy treats neighbouring historic buildings as having less weight than historic buildings on the development site. We see nothing in Policy HE1 that should drive such a conclusion. It is true that of the four specific examples in that Policy where permission will not be granted, two of them would apparently apply only in connection with a listed building which was on the development site - but of those four examples, numbers c) and d) include references to the setting of a listed building or place, which it seems to us therefore naturally extends these provisions to proposed developments on sites which are adjacent to a listed building or place, such that the proposed development site forms part of the setting of the listed building. Advocate Benest suggested that it might be different if the listed building were one cottage of a row of four where three of the four cottages were on the development site and were to be knocked down. In such a case he accepted that it might be possible to say that the setting of the listed cottage which was not on the development site would be adversely affected by the proposal. It seems to us that this only goes to emphasise that Policy HE1 does indeed apply if there is an impact of the development proposal on the setting of a listed building nearby.
24. We therefore proceed on the basis that the Minister was required to have regard to Policy HE1 both as to the potential listing of Keppel Tower and that of Seymour Cottage, and on the basis that the Policy does not contain any built in bias in favour of the listed building on the development site as opposed to the listed building, if any, on the adjacent site.
25. The next question therefore is whether or not the Minister did actually consider Policy HE1 in relation to the development proposal, by reference to Seymour Cottage.
26. In this context, Advocate Baxter's first point is that if there had been perspective drawings, showing the outline of Seymour Cottage against the outline of what was proposed, it is obvious that the Minister would not have given planning permission, because there is such a marked impact upon the setting of Seymour Cottage as a listed building. Secondly, he says that it is clear there was no consultation with the historic buildings environment team by reference to Seymour Cottage. Indeed the representations of the Historical Buildings environmental officer refers only to the impact of the proposals upon Keppel Tower. Thirdly, he says that there is no sign in any of the paperwork of any balancing of Policy HE1 insofar as concerns Keppel Tower with Policy HE1 insofar as concerns Seymour Cottage, nor is there any balancing of Policy HE1 against Policy GD1 or Policy H6.
27. Accordingly, Advocate Baxter submits that given the absence of any follow up, historical consultation with the appellant, or site visit onto the appellant's property, and given the absence of any assessment of the development on a potential listed building in the planning officer's report, it is simply not clear that the Minister was in a position to balance the relevant factors and reach a considered view. He had accordingly failed to take into account something which ought to have been taken into account, and Advocate Baxter submits that for those reasons, among others to which we will come shortly, the appeal should succeed.
28. Advocate Benest, for the Minister, points out that in her representations to the Minister, the appellant mentioned several times that Seymour Cottage was a listed building. This is indeed referred to both in the first and second reports of the planning officers. Accordingly the Minister could not have been unaware that there were two potential listed buildings to be considered.
29. Advocate Clarke associated himself with the submissions of the Minister but added that if Seymour Cottage had stood alone as an original historic building, its historic status might have been relevant to the present development. As it is, however, Seymour Cottage has itself been the subject of a number of developments over the years, and is not in its original historic form, and therefore has less value as a building of heritage status. By contrast, there are some significant planning gains, he said, from the proposed development because it will enable the other building with potential listed status, namely Keppel Tower, to be considerably improved - buildings currently attached to the Tower will be removed, and those travelling along the public road will get a clear view of the Tower standing apart from any other buildings, and also of the sea through the gaps between the Tower and those buildings. The trouble with this submission is that while one can understand the planning gain described, there is no adequate material available to us - nor apparently available to the Minister - to enable us to assess the heritage status of Seymour Cottage. All we know is that it has sufficient merit to be a "potential listed building" with the grounds for that potential listing.
30. Having reviewed the letters of objection, the reports of the planning officer, the minutes of the meetings of the Planning Applications Panel and the Minister, and the formal approval given to the applicant, the Court is satisfied that neither the Minister nor his officials did in fact consider the impact of the proposal on the appellant's property under Policy HE1. To the extent that the formal paperwork reveals that Policy HE1 was considered, it appears to us that this was a reference to the application of Policy HE1 to Keppel Tower rather than an application of that Policy in relation to Seymour Cottage. There is nothing before us to indicate that the Minister considered at all the impact of the proposed development on the setting of the potential listed building Seymour Cottage as is required by Policy HE1 nor as to how he balanced that against the other planning considerations which affected this particular proposal. In those circumstances we are satisfied that the Minister acted unreasonably by failing to take into account a material consideration, and accordingly that the appeal of the Appellant succeeds on this ground.
31. Article 114(8) of the Law provides as follows:-
32. It is completely unclear what decision the Minister would have made, had he addressed his mind to the impact of the development proposed on the potential listed building Seymour Cottage - in the context of the characteristics and setting leading to its potential listing - pursuant to Policy HE1. Perhaps he would have reached the same decision, but maybe he would not. We do not think we have the material before us to second guess him on that score. The Historic Buildings officer does not seem to have considered it, nor has the planning case officer. Accordingly we consider we must order the Minister to cancel the planning permission, gather such further advice as is required and consider the matter again.
33. In this connection we recognise and indeed regret that this whole process has taken time which naturally impacts on the applicant's developer's profit. To some degree that is an inevitable consequence of a system which permits third party appeals. The Minister and his officials may also want to consider the extent to which this is a consequence of the listing process which has been adopted and the language of Policy HE1. In the Seymour Villa case, this Court as presently constituted was troubled by the effect of this Policy on the planning process. We accept that our solution then was found by the Court of Appeal to involve a strained construction of the Law and of course we respect that. However, what that emphasises - as perhaps this instant case does too - is that the process and policy adopted do need a careful review. We feel that, absent such a review, further problems of the kind which have arisen here may arise in the future, unless there is an improved mechanism for distinguishing the importance of different "potential listed buildings".
34. By way of illustration of these difficulties, there is nothing in the Plan Policies which shows how the Minister will be able to assess the relative merits of two potential listed buildings. Far worse, there is nothing in the Plan which legitimates the different categories within which listed buildings will fall, nor which legitimates the different treatment which such buildings may attract; with the result that there is no obvious method or challenge open to those who may be adversely affected by any such designation.
35. It is strictly unnecessary to consider this ground of appeal as the matter is remitted to the Minister on the basis described above but we think it may be helpful to do so.
36. The test we apply has been set out many times. We must form our own view so as to decide what should or should not be taken into account. Having done so, then assuming the Minister has taken all material and only the material considerations into account and followed a proper process, we must assess the reasonableness of his decision, allowing him a margin of appreciation.
37. Had we been deciding the matter ourselves, this Court unanimously would have refused the application. It seems to us that although it is true that there is much building along La Grande Route des Sablons; although there is a planning gain from the removal of buildings adjacent to Keppel Tower and from the creation of a view line from the road down to the sea; and although Policy H6 would suggest new housing development in the Built-Up Area should be approved; the overall mass of this proposed development is out of keeping with the local environment and adversely affects the amenities of adjoining properties; and is therefore not consistent with Policy GD1. We are doubtful as to whether the proposal is consistent with Policy GD2. We think the proposal is too big for a rural parish.
38. But that is not the test. We have to allow a margin of appreciation to the Minister. So although we are firmly aligned with those members of the Planning Applications Panel who would have refused this permission, we have to consider whether the decision is sufficiently distanced from our own view that we would categorise it as unreasonable. One Jurat would have so decided, especially on the basis that Block A is overbearing on the amenities of Seymour Cottage. The other Jurat considers that although the proposal is not one which she would have approved, the decision falls into the category where, applying the Fairview Farm and Token tests, the Minister's decision would have stood (had this been the only ground of appeal) as one which, allowing him a margin of appreciation, was not unreasonable.
39. Had this been the only ground of appeal, I too would have taken the view that the Minister's decision fell within the margin of appreciation the Court should allow him. There is much to be said on both sides of the debate as to how the different Plan Policies might be balanced, even though I would not have hesitated to resolve that debate by a refusal if I were taking the decision myself. As was said in Manning v Minister for Planning and Environment [2012] JRC 086A at paragraph 17:-
40. Here the Planning Applications Panel was equally divided. Thereafter further revisions to the proposals were made. It is very difficult in those circumstances to conclude that the Minister's decision should, on this ground of objection, be struck down as unreasonable even though it is not one the Court would have made.
41. For the reasons set out above the appeal is allowed on the ground that the Minister failed to take into account the impact of the proposals on the setting within which the potential listed building Seymour Cottage is found, contrary to what is required by Policy HE1. Accordingly, we order the Minister to cancel the planning permission and the matter is remitted to the Minister for further evaluation and consideration. The cancellation of the planning permission requires us also to order the abrogation of the Planning Obligation Agreement and its cancellation in the Public Registry.
