Jersey Unreported Judgments

Planning.

[2023]JRC108

Royal Court

(Samedi)

29 June 2023

Before     :

Sir Timothy Le Cocq, Bailiff, sitting alone.

 

H. J. Heath in Person

Advocate J. P. Rondel for the Respondent

judgment

the bailiff:

1.        This is an application for leave to apply for Judicial Review brought by Heidi Jane Heath ("the Applicant") against the Minister for Planning ("the Respondent") for a decision between 30 June 2022 and 13 July 2022, to decline to refer a Planning Application in respect of a property known as 'Pine Grove' ("the Planning Application") to the Planning Committee ("the Decision").

2.        Although the Minister for Planning is named as the Respondent, this case is listed under the heading above which is the original listing in this application for Judicial Review.

Background

3.        In short, the Planning Application was to construct a new two-bedroomed house in the garden of the property Pine Grove and to extend the roof of the current building.  It is characterised as, in the Applicant's words, "a major application".

4.        Pine Grove is adjacent to the Applicant's property and both sit in the sensitive coastal zone of St Aubin's Bay in the Green Backdrop Zone surrounded to the west, north and east by a Green Zone. 

5.        The Applicant's property is one of a number of listed buildings in the area and Pine Grove is one of the more prominent buildings enjoying an elevated position.  I am informed that it is visible from both Noirmont and Elizabeth Castle. 

6.        The Planning Application was made on 12 January 2022 and amongst others, the Applicant made public comments during the succeeding period.  The decision to approve the Application was made on 13 July 2022. 

The Applicant's Case

7.        The Applicant asserts that, at the time of the Planning Application, rules existed (and still exist) made pursuant to Article 9A of the Planning and Building (Jersey) Law 2002 ("the Planning Law") regarding when planning applications shall be referred to the Planning Committee ("the Planning Rules").

8.        It is asserted that, contrary to the statutory position and without any explanation or notice to the Applicant or any other member of the public, the Planning Application was not referred to the Planning Committee as required by the Planning Rules.

9.        It is further asserted that, by ignoring the requirements of the Planning Rules, the Respondent had denied the Applicant, amongst others, an opportunity to hear and to make representations concerning the Planning Application in the public forum of the Planning Committee prior to a decision being made.

10.      Article 9A of the Planning Law provides:

(1)       Functions under any of the provisions listed in paragraph (2) may be carried out wholly or partly by a Planning Committee established in accordance with standing orders under Article 48(1) of the States of Jersey Law 2005.

(1A)    Functions shall be allocated to the Planning Committee by agreement between the Chief Officer and that Committee, and in default of such agreement, the Minister shall determine which functions shall be so allocated.

(2)       The provisions mentioned in paragraph (1) are -

(a)        in Part 3, Articles 19 to 23, 26 and 27;

(b)        in Part 5, Articles 40, 42 and 45; and

(c)        Orders made under Articles 76 and 81.

(3)       A Planning Committee holding a meeting for the purpose of carrying out any of its functions under this Article shall -

(a)        permit members of the public to attend the meeting; and

(b)        cause to be published in the Jersey Gazette, at least 5 days prior to the date of any such meeting, a notice inviting the public to attend and specifying -

(i)         the date of the meeting and the time and place at which it is to be held, and

(ii)        the applications for planning permission or (as the case may be) decisions to be considered at the meeting.

11.      The Applicant goes on to argue that the importance of public meetings has not just been recognised in Article 9A(iii) as above, but also by the Planning Department itself.  The report to the Planning Committee on Planning Committee procedures and arrangements dated 19 June 2018 notes:

"It is important that the agreement (the Article 9A(1A) agreement) is clear and accessible so that everyone involved with or interested in an item to be considered by the Committee understands how and why it is being considered by the Committee."

12.      It is asserted that sometime after 29 May 2022, the Planning Rules were removed from the appropriate website and are no longer publicly available.  Requests by the Applicant for a copy of the Planning Rules have been unsuccessful. 

13.      I should at this stage interpose and say that Kelly Marie Whitehead, Group Director for Regulation, has filed an affidavit on behalf of the Respondent on 27 February 2023 ("the Respondent's Affidavit) which at paragraph 7 and 8 states:

"7.       I have made enquiries and can confirm that no 'Planning Rules' were removed from the Government of Jersey website, 'sometime after 29 May 2022'.  The current Committee agreement and the August 2022 agreement replace their predecessor agreements on the Planning Committee website, but this was not until at or around the date that those agreements were made, and not at the material time of the decision which has been challenged in the present application.

8.        The relevant Committee agreement was available for members of the public to download from the Planning Committee's website and to view accordingly both during and after the relevant period of this Planning Application process which is subject to challenge."

14.      The Applicant goes on to argue that it is procedurally improper and unlawful that the Minister took the decision to ignore the Planning Rules which thus denied the Applicant the opportunity to hear and make representations concerning the Planning Application.

15.      Further, it is submitted that the Respondent has not provided a comprehensive or rational account for his decision nor is it possible to ascertain when the decision was taken.  It is asserted that inconsistent and incompatible explanations as to the status of the Planning Rules have been provided.

16.      It is further asserted that there is a significant difference between a planning application determined on notice and those taken in a public forum in which members of the public are allowed to make representations and it was wrong for the Minister, without explanation or notice, to ignore the statutory-based Planning Rules. 

17.      It is generally argued that this leads to a fundamental unfairness, a lack of accountability and transparency in the Minister's approach and is offensive to natural justice in as much as it has denied a public hearing and a public forum relating to a planning application.

The Respondent's Case

18.      The Respondent resists the application for leave, on the basis that there is no evidence that the Applicant has been subject to procedural unfairness and that in any event there is an alternative remedy available pointing out that concurrently to the application for judicial review, the Applicant issued a third party planning appeal against the decision to grant planning permission in relation to the Planning Application.  That appeal was dismissed on 30 January 2023 but the Applicant then has the opportunity to appeal that decision to the Royal Court on a point of law.

19.      The Respondent disputes that the Planning Application should have been referred to the Planning Committee for determination.

20.      There was an agreement reached pursuant to Article 9(1A) of the Planning Law dated 24 February 2021 which, so it is argued, is the relevant agreement for this purpose.

21.      A version of the Planning Committee agreement was provided to the Applicant on 20 September 2022 and whilst that version was outdated the Respondent has confirmed in its affidavit that:

"...this version is identical in every respect to the relevant Committee agreement.  Indeed, the only reason the relevant Committee agreement replaced its predecessor was to reflect re-constitution of the Planning Committee due to member resignations."

22.      There accordingly is no evidence and it is wrong, so the Respondent argues, for the Applicant to state that the Respondent has removed a publicly accessible document or refused to provide a copy of the same to the Applicant.  The current Committee agreement remains on the Planning Department's website and is accessible.

23.      The relevant Committee agreement states that the following applications are to be allocated to the Planning Committee for determination:

"1.      Where a grant of planning permission would be inconsistent with the Island Plan;

2.        Where, following the refusal of an application or the imposition of a condition, the decision was taken by the Chief Officer and the Applicant requests within 28 days of the date of the original decision that the Committee review the decision;

3.        Following a request from the Chairman of the Planning Committee that the Committee should consider the matter;

4.        Where the matter is considered by the Chief Officer to be of such a nature as to require the Planning Applications Committee to consider the case;

5.        Where an application for planning permission has attracted four or more representations from individuals, where each individual appears to be from a different address, and the representations are contrary to the recommendation of the Chief Officer;

6.        If, after due consideration, the Committee reaches a conclusion which does not agree with the principle of the recommendation made by the Chief Officer, the Committee will furnish the Chief Officer with its planning reasons for arriving at that conclusion.  The Committee will require the relevant documentation to support the Committee's decision be prepared by the Chief Officer and presented back to the Committee at its next meeting for ratification.

If the disagreement relates only to a condition or a reason attached to a recommendation then the decision can be finalised at the same meeting of the Committee;

7.        When an application has been included on an agenda for consideration by the Committee the item will only be removed from the agenda with the agreement of the Chairman of the Committee."

24.      It is argued by the Respondent that in this case the Planning Application in question simply did not satisfy the criteria and it was not accordingly referred to the Planning Committee for determination.  This process took place in accordance with the relevant Committee agreement. 

25.      With regard to paragraph 5 of the relevant Committee agreement mentioned above, the Respondent in its affidavit notes at paragraph 17:

"...four public comments were submitted in relation to the application from three different members of the public, including the Applicant.

...the Applicant did not receive four or more representations from individuals, where everyone appears to be from a different address."

26.      Thus it is argued that the Planning Application should not have been placed with the Planning Committee for determination as such would not have been appropriate to do under the rules that then applied.

27.      The Respondent notes that the Applicant argues that the Planning Application is inconsistent with the Island Plan.  The Respondent argues that there is a distinction between the interpretation of planning policy and its application, the former being a matter for the Court but the latter being an exercise in planning judgement by a decision-maker. 

28.      It is further pointed out that the decision notice granting permission for the Planning Application mentions the relevant policies that had been taken into account. 

29.      As to the argument that the Applicant was prevented from making representations to the Planning Committee, the Respondent argues that this did not amount to a procedural unfairness.  The Applicant made two separate representations to the decision-maker, including a 14-page document entitled "Objections".

30.      With regard to the question of alternate remedies, as already mentioned above, the Applicant initiated a third-party planning appeal on a basis which, apparently, overlapped the grounds of the current application.  It is open to the Applicant, or at least was at the time of this application, to appeal to the Royal Court on a point of law against the refusal of the third-party planning appeal.

31.      Lastly, the Respondent argues that the application was not made promptly.

The Law on Judicial Review

32.      The test to be applied by the Court in respect of applications for leave for judicial review is set out in a number of judgments and, most recently, in WE (Jersey) Limited v Minister for the Environment [2022] JRC044 as that set out by Commissioner Belhof in Warren v Lieutenant-Governor [2017] (1) JLR 291 in the following terms:

"3. The test for such leave in this jurisdiction, as applied in Welsh -v- Deputy Judicial Greffier (7), is that set out by the Privy Council in Sharma -v- Browne-Antoine (6) [2007] 1 WLR 780, at para 14(4):

"The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied and there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R -v- Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628 and Fordham, Judicial Review Handbook 4th ed (2004), p426. But arguability cannot be judged without reference to the nature and gravity of the issued to be argued. It is a test which is flexible in its application."

4. For an application for judicial review to succeed, the Royal Court would have to be satisfied that His Excellency's decision was unlawful, irrational or flawed by procedural impropriety (Planning & Environment Cttee. -v- Lesquende Ltd. (4)) and for present purposes I must be satisfied that one or more of those grounds is arguably established on the material before me."

33.      In Sharma, cited above, the Judicial Committee of the Privy Council also stated:

"It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to "justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen": Matalulu v Director of Public Prosecutions [2003] 4 LRC712, 733."

Conclusion

34.      It is not always the case that a Respondent files an affidavit at the leave stage but has done so in order, so it appears, to explain the advent of the Planning Rules and to address the Applicant's concern that relevant provisions have been taken down from the website and, as a result, she had been deprived of the ability to make representations to a Planning Committee. 

35.      In the light of the explanation offered in the Respondent's affidavit it appears to me that, prima facie, there was no obvious procedural unfairness in that it was not required under the rules then applying for the application to be referred to the Planning Committee.  As a matter of fact, of course, the Applicant does not address the various rules that I have set out above but it is not clear to me that the Applicant in any event would have had any right to require the matter went before the Planning Committee.  In the light of the procedure set out in the Respondent's affidavit and the documentation referred to therein, there was no right to have the matter referred to the Planning Committee and the application was dealt with in accordance with the then-applicable policies.

36.      Even were I wrong in this regard, however, it seems to me that it is entirely clear that there is, or was, an alternative remedy available to the Applicant in this case.  The Applicant availed herself of the right of appeal and at the time of this hearing was in a position to avail herself of an appeal to the Royal Court against the refusal of her appeal on a question of law.

37.      These are the correct mechanisms by which decisions of the Planning Authority can be dealt with and, in my view, there is no basis for bringing an application for judicial review in these circumstances.

38.      I make no observation about any delay in the application nor about the apparent lack of clarity with regard to which party should be the Respondent. 

39.      In my judgment, in the light of the explanation from the Respondent in the affidavit and the documents referred to therein, there is no procedural unfairness, and no right to have the matter referred to a Planning Committee.  As I have said, were I wrong about this, it seems to me to be clear that there is an alternative remedy available to the Applicant. 

40.      In the circumstances, I refuse the application for leave.

Authorities

Planning and Building (Jersey) Law 2002. 

WE (Jersey) Limited v Minister for the Environment [2022] JRC044.  

Warren v Lieutenant-Governor [2017] (1) JLR 291.