Jersey Unreported Judgments

Planning - appeal

[2023]JRC147

Royal Court

(Samedi)

14 August 2023

Before     :

M. J. Thompson Esq., Commissioner, and Jurats Christensen and Opfermann

 

Advocate C. B. Austin for the Appellant

Advocate D. J. Mills for the Respondent

judgment

the commissioner:

1.        This judgment contains our decision in respect of an appeal by the Appellant pursuant to Article 116(5) of the Planning and Building (Jersey) Law 2002 ("the Planning Law").  The appeal was brought in respect of a decision by the Respondent dated 30 May 2022 by which he rejected an appeal brought by the Appellant to a planning inspector, Mr Graham Self.  The Respondent, in line with the recommendations of the inspector, decided to dismiss an appeal against a refusal to grant planning permission in relation to a site owned by the Appellant ("the Site") to use the Site as a car park. 

2.        The Site, the subject of the appeal, is an open area on the north side of the road Havre des Pas.  Entrance to the Site is by an access way surrounded for the most part by houses.  The access way then widens into a larger square shaped area.  Around the sides of this area are twenty-six open fronted carport type structures made of timber framing with corrugated sheet roofing.  Each structure contained a covered parking space for one vehicle.  The central part of the Site is marked out with twelve white lined parking spaces.  Altogether there are thirty-eight parking spaces within the square shaped part of the Site. 

3.        The original application for planning permission in relation to the Site was for "A change of use of part of the Site for 'private parking'" and also sought retrospective consent to construct fourteen carports.  The description was amended to seek retrospective consent for the construction of twenty-six carports.  The planning officer recommended refusal to the Planning Committee which accepted that recommendation.

4.        The inspector's report was dated 23 March 2022 and recommended that the appeal be against the decision of the Planning Committee be dismissed.  As is set out in more detail below, his recommendation was made by reference to the relevant policies of the Revised 2011 Island Plan ("The 2011 Plan").  Between the inspector's report and the Respondent's decision, the 2011 Plan was superseded by the Bridging Island Plan approved by the States on 25 March 2022 ("the Bridging Plan").  The approval of the Bridging Plan led the Respondent to state the following in his "Reason for Decision(s)":

"The Minister agreed with the recommendations of the Planning Inspector. The Minister also had regard to the fact that the original decision on the planning permission and subsequent inspector's report was made under the policy regime of the 2011 Island Plan (revised 2014) which was superseded by the bridging Island Plan on 25 March 2022. However, the Minister did not consider that the change in development plans made any material difference, in this instance, to the assessment of the proposed development."

5.        The Appellant's Notice raised the following grounds of appeal:

"The appeal is brought on the following point(s) of law:

1) That the Minister erred in his interpretation and/or application of the 2011 Island Plan (as revised)/Bridging Island Plan such that his decision was rendered irrational;

2) That the Minister, in his interpretation and/or application of the 2011 Island Plan (as revised)/Bridging Island Plan, took into account and/or failed to take into account relevant factors, such that his decision was rendered irrational;

3) That without prejudice to the generality of the foregoing, the Minister erred in his interpretation and/or application of Policies SP1, SP2, SP6, GD1 and TT11, or any of them, of the 2011 Island Plan (as revised)."

6.        The grounds of appeal referred to "points of law" because, under Article 116(5) of the Planning Law, a person wishing to appeal may only appeal a decision of the Minister on a point of law.  This means that the Royal Court's role is more limited than was the case prior to the introduction of Article 116(5).  The current position was summarised in v Minister for the Environment [2018] (2) JLR 1 at paragraph 9 as follows:-

"As far as I am aware this is the first occasion on which there has been an appeal to the court under the new appeal arrangements which were adopted in 2014. As provided by art. 116(5), the appeal to the court is on a point of law. It is not only not a full merits appeal, which was the appeal to the Minister carried out by the inspector, but it is not even an appeal along the lines of Planning & Environment Min. v. Hobson (5), an appeal brought under the previous procedure which required the Royal Court to form its own view of the merits of the application before, allowing the Minister a margin of appreciation, it considered whether the Minister's decision had been unreasonable. The revised appeal provisions which allow an appeal to the Royal Court on a point of law only therefore now classically engage the GCHQ principles of illegality, impropriety and irrationality (Council of Civil Service Unions v. Minister for Civil Service (2))."

7.        In his oral submissions, Advocate Austin, for the Appellant, confirmed that what was at the heart of the appeal was that the Respondent's decision was irrational.  At the outset of the hearing, the parties raised whether it was necessary to sit with Jurats because the appeal was on a point of law alone and in Therin the matter was determined by the Bailiff sitting alone.  In the present case, because the main criticism of the Respondent's decision and the inspector's findings which the Respondent had accepted and therefore formed part of his decision, was that the decision was one that was irrational, it was appropriate to sit with Jurats.  Unlike Therin, this was not an appeal which primarily turned upon construction of the Island Plan, which would ordinarily be a matter for a judge sitting alone.  Rather, the Appellant's case was that the Respondent's decision was irrational because the inspector and the Respondent had taken into account a policy within the Island Plan that did not apply.  This was therefore a factual issue, albeit falling within the point of law test, which it was appropriate for Jurats to evaluate. 

8.        What was at the heart of the Appellant's case was that the inspector and the Respondent had failed to take into account that the Site was an area where car parking had existed for more than eighty years.  The inspector, at paragraph 13 of his report summarised the Appellant's case in this way:

"The planning department's and highway authority's assessments were muddled and inconsistent. The application seeks to formalise a use for car parking which has existed or more than 80 years. The area was originally a coach park, then a hire car depot with spaces let out to residents and for commercial vehicle parking in the winter months."

9.        The inspector also noted the following submission by the Appellant:

"The applicant never thought the application was necessary because the use as a residential car park had been carried on for more than eight years, but it is important that the use be formalised."

10.      The policy at the heart of the 2011 Plan relevant to the appeal is Policy TT11 which states as follows:

"Policy TT 11

Private car parks in St Helier

Planning permission for the development of new private non-residential car parks with public access in St Helier will not be permitted, except where;

-       the provision of such car parks will contribute to reducing vehicular penetration of, and congestion in, core areas;

-       such car parks replace an existing private non-residential car park within the Ring Road; and

-       there is no net increase in the provision of private non-residential car parking spaces.

The redevelopment of existing private car parks that are available to the public and are not related to any particular building, for uses other than car parking, will generally be encouraged."

11.      The Appellant's submission was that the Respondent "had erred because the site was not a new private non-resident car park with public access in St Helier" and therefore Policy TT11 did not apply.  Advocate Austin fairly accepted for the Appellant that, if Policy TT11 did apply, then the Appellant could not bring himself within any of the exceptions to that policy.

12.      At paragraph 15 of his report, the inspector noted the respondent's submission that the creation of a private car park was a change from previous uses undertaken by commercial operators. 

13.      At paragraph 19, in making his assessment, the inspector made the following observations:

"19. It is necessary to mention first a point concerning the existing use of the site. My site inspection was after the hearing, and it only became apparent to me after starting the inspection that the current mixed use of the land includes a residential component. The majority of the site (including most or all of the space under the carport-type structures) is apparently used for car sales, and a smaller part is used for car parking not associated with the car sales business. As regards the residential use, an amended site plan (Drawing Number 02C) shows the site boundary excluding the cottages on the east side of the access, but the access way itself and the parking area allocated to one of the cottages is within the site. In these circumstances part of the site (the access way) is in mixed use for three purposes (car sales, car parking not associated with car sales and residential use); and the parking area next to the cottages is in wholly residential use." (emphasis added)

14.      We were informed during the hearing that, while this inspection took place after the hearing as the inspector noted in paragraph 19, the inspector was accompanied by representatives of the Appellant and the Respondent.  While it does not affect our decision, we observe that it would have been preferable for any inspection to have taken place before the hearing so that the inspector could have raised any concerns with the Appellant (or the Respondent) arising out of his visit so that those concerns could be addressed at the hearing itself. 

15.      What the inspector noted was that the site was apparently being used for car sales with a smaller part being used for car parking, not associated with the car sales business.

16.      The inspector then made two observations.  Firstly, he noted that part of the Appellant's case contended that planning permission was not needed for what was proposed because the proposal did not involve a new use or new development.  This led him to say this at paragraph 21:

"Part of the appellant's case contends that planning permission is not needed for what is proposed, primarily because the proposal does not involve a new use or new development. In other jurisdictions where planning law is broadly similar to the law in Jersey, such an argument could have appropriately been pursued through an application for a certificate of lawfulness. That option is not available in Jersey (although much the same effect could be obtained by an appeal on ground (c) of Article 109(2) of the 2002 Law). Be that as it may, Mr Young has applied for planning permission, and although the site history is a material consideration, the planning merits or demerits of what is applied for have to be weighed separately from any consideration of whether or not the development might be lawful because of immunity from planning control. To determine lawfulness, evidence about the recent site history would need to be more detailed than that put forward for this appeal."

However, more detailed evidence was not put forward for the purposes of the appeal to the inspector. 

17.      In addition to describing the current use as "mixed use" in paragraph 19 of his report, the inspector also stated the following at paragraph 23:

"Moreover, the appellant's argument that the application seeks merely to "formalise an existing use" ignores the fact that the existing use includes car sales as a major component of the existing mixed use. Car sales use is not mentioned in either the original application or the amended description of what is proposed, so it seems that the proposal if implemented would not include this component of the existing use."

18.      The inspector, at paragraph 31, also stated the following:

"31. The planning permission being sought would not only allow continued use of the existing parking spaces (i.e. the spaces not currently used for car sales) but would increase their number from around 12 to about 38. So what is under consideration here is not just a continuation of a use conflicting with policy towards the private car, but a significant increase in this use."

19.      The inspector therefore reached the conclusion that the application involved a change of use which he regarded as being in conflict with Policy TT11. 

20.      Before us, Advocate Austin accepted, albeit reluctantly, that the application was a change of use because what was sought was permission to operate a car park only as distinct from previous businesses where parking had been ancillary to those businesses, whether it was coach parking, parking of hire cars or the selling of cars. 

21.      However, he relied on the fact that the car hire business had been operating for many years and there had been some other parking on the site for that period.  This meant that no enforcement notice could be served under Article 40 of the Planning Law because there was no evidence of planning permission ever having been granted for such parking. 

22.      In our view, it was open to the inspector to reach the conclusion that the application involved a change of use and therefore was a development of a new private non-residential car park and was contrary to Policy TT11.  We therefore agree with the inspector that there is a difference between parking vehicles on a site ancillary to some other business and the primary purpose of the site being to offer a car parking service.  Prior to the present application, apart from one small area, the previous use of the site was ancillary to the operation of a coach business, a car hire business or the sale of cars.  While there was some leasing of parking spaces that had occurred (without permission), the main use was either for some other business or was at best a mixed use.  It does not matter that that the previous uses were as a coach depot, a depot for a car hire business or the sale of cars.  Advocate Austin was therefore right to accept that there was a change of use because the Site was now intended to be used for private car parking alone, with spaces being leased to anyone who wished to do so, not for any other business or ancillary to any other business.  

23.      We also note that in the Bridging Plan, the policy on parking within St Helier has become even stricter.  The relevant part of Policy TT4 states:

"The development of land for the provision of off-street car parking space in Town will not be supported except where it is provisioned as a 'meanwhile use' against agreed timeframes for use as a short stay (shopper) parking."

24.      The Minister, in noting that the Bridging Plan had superseded the 2011 Plan stated that he did not consider the change in development had made any material difference to the assessment of the proposed development.  The Appellant, in relation to Policy TT4 of the Bridging Plan, relied on the same grounds as he had relied upon in relation to Policy TT11 of the 2011 Plan.  However, just as the Appellant has not persuaded us that there has not been a change of use by reference to Policy TT11 of the 2011 Plan, nor has he persuaded us that his application is not development of land because it is based on a pre-existing use.  We are therefore satisfied that the Respondent was entitled to have regard to the Bridging Plan and, in particular, to Policy TT4 in reaching his decision to refuse permission. 

25.      Advocate Austin also referred to Hobson v The Minister for Planning and Environment [2014] (1) JLR 216 where a decision of the Minister was set aside as being unreasonable on the grounds of inconsistency with the planning history of the site.  Advocate Austin argued in the light of Hobson that, if the principle applied that the grant of planning permission might be unreasonable if inconsistent with the site's planning history, logically it meant that the reverse must also be true, namely that not to grant planning permission must also be unreasonable if inconsistent with a site's planning history.

26.      We did not regard this decision of assistance.  Hobson concerned the previous grant of planning permission where the Minister had decided that the previous development would be the maximum development allowed.  Paragraph 64 of the judgment stated the following:

"Where the decision which has been given is inconsistent with a previous decision relating to the same property, then there is more obvious force in the complaints about inconsistency, and there is all the more need for the Minister to justify the departure from the previous decision."

27.      Sir William Bailhache also stated the following at paragraph 66:

"The force of the argument on inconsistency is that there has to be demonstrated a reason for departing from the previous decision."

28.      The difficulty with this part of the Appellant's submissions, in addition to the fact that the application contemplates a change of use, is that there is no planning history for the present site because planning permission was never sought as far as the parties are aware in respect of any of the previous uses relied on by the Appellant.  The distinction argued for cannot therefore apply.  The fact that an enforcement notice might not have been able to have been served in respect of an earlier use does not assist the Appellant as he is seeking permission for a new use.  The application was not to continue a business that had operated for a number of years without permission and where an enforcement notice could not be served to prevent continuing use. 

29.      In addition, a failure to obtain planning permission is a criminal offence even if the Respondent may not be able to address a failure to obtain planning permission by issuing an enforcement notice to remove a structure erected because more than eight years has passed (see Article 40). How the Respondent, if planning permission is sought for permission to continue an existing use, might approach the question of an inability to serve an enforcement notice where a breach of development controls has occurred and therefore a criminal offence might have been committed, is a matter for another day and does not assist the Appellant in this case. 

30.      Another aspect of the submissions made by the Appellant was that the site would not have "public access" and so did not fall within Policy TT11.  The inspector explored this issue at paragraph 27 of his report.  We have considered his conclusions carefully and cannot consider that they can be described as being irrational when he said the following:

"The appellant contends that this car park would not have "public access". At first sight, that is a tempting argument. But an important consideration here is whether and how the potential use of the site could be controlled. When I invited those at the hearing to suggest possible conditions for imposition if planning permission were to be granted, it was clear that any attempt to limit parking to "local residents" would be impracticable, and the appellant's representatives could not suggest how, for example, a restriction on where residents live could be imposed. Nor can I. Any such attempt would be almost impossible for the planning authority to verify and enforce, without unduly draconian measures involving checks on the personal details and addresses of individuals who have been issued by the site owner with some form of barrier-operating authority to use the car park, combined with controls aimed at preventing any such authority being passed to other people."

31.      The reality of the intended use of the site was that any member of the public could apply to lease any parking space.  While we accept that access to the Site would have been restricted to those given permission because they had leased a space, and so in that sense there was restricted access to the Site, the class of persons who could seek such access by leasing a parking space was unrestricted and imposing a condition was not possible. 

32.      We should add that during the course of argument, Advocate Austin sought to suggest that the terms of the 2011 Plan should have been departed from by reference to Article 19(3) of the Planning Law which permits such departure if there is "sufficient justification".  However, this argument was not foreshadowed in his Notice of Appeal and we declined to allow it.

33.      Advocate Austin properly referred us to the other policies in the Island Plan of General Development Policy GD1, Policy SP1 on Spacial Strategy, Policy SP2 and Policy SP6.  However, it is clear from the inspector's report that he was aware of these policies.  We have not however set them out in this judgment because they are general background to the specific policies in issue, namely Policy TT11 of the 2011 Plan and Policy TT4 of the Bridging Plan.  There is nothing in the inspector's report or the Respondent's decision which shows that either the inspector or the Respondent failed to have regard to these policies in any way that can be described as irrational. 

34.      The inspector had before him evidence of the historical position of the site (see page J93 of the Caselines bundle).  The inspector was entitled to conclude that the proposed future use of parking spaces was a change of use and we do not see anything irrational in that decision.  As the inspector noted at paragraph 30 and as Advocate Mills observed, the fact that policy TT11 may not be popular, or to adopt the inspector's words, might be "disliked," is not a reason to set aside the Respondent's decision.  Policy TT11 in the 2011 Plan and now Policy TT4 in the Bridging Plan are policies adopted by the States.  It is not for this Court, in a planning appeal on a question of law, to make a decision based on a policy not being liked.  Rather, we are satisfied that the Respondent's decision was made in accordance with those policies and accordingly, as nothing we have seen persuades us that the Respondent's decision can be set aside on the grounds raised by the Appellant, we are required to and do dismiss the Appellant's appeal. 

Authorities

Planning and Building (Jersey) Law 2002. 

Revised 2011 Island Plan. 

Hobson v The Minister for Planning and Environment [2014] (1) JLR 216. 

Therin v Minister for the Environment [2018] (2) JLR 1.