Jersey Unreported Judgments

[2004]JRC065

royal court

(Samedi Division)

 

6^th April, 2004.

 

 

 

 

Appeal, under Part XII of the Royal Court Rules 1992, as amended, from an administrative decision  of the Respondent Committee, under to Article 8 of the Island Planning (Jersey) Law 1964, requiring the Appellants to cease  the unauthorized use of a shed for any form of commercial activity.

 

Advocate F J Benest for the Appellants.

Advocate J Hawgood for the Respondent Committee.

 

judgment

the bailiff:

Introduction

 

1.        These appeals were consolidated by an order of the Master of the Royal Court of 3rd February 2004.  Both appeals concern notices issued by the Environment and Public Services Committee pursuant to Article 8 of the Island Planning (Jersey) Law 1964 ("the law") relating to a shed situated to the North of the property 'South View' on La Grande Route de la Côte in St Clement ('the shed').  The first notice was addressed to the first appellant as owner of the shed and required him to 'cease the unauthorised use of the shed .... for any form of commercial activities'.  The second notice was addressed to the second appellant as tenant of the shed and required him to 'cease the unauthorised use of the shed .... as a commercial carpenter and joinery workshop'.  The ground of appeal is that the decision of the Committee was 'unlawful and/or unreasonable having regard to all the circumstances of the case in that the shed was used and has continued to be used for commercial purposes both before and after the Law was enacted'.

The facts

2.        The following facts are not in dispute between the parties.  The shed is a block-built construction measuring approximately 35 feet by 14 feet.  It was built in the 1930s by Mr Clifford Buesnel who was the maternal grandfather of the first appellant.  Mr Buesnel had bought South View in 1926.  Following their return to the Island after the Liberation, between 1946 and 1949, the first appellant's parents and their family (including the first appellant) went to live at South View.  From about 1955 the first appellant's parents regularly gave Mr Buesnel support following Mrs Buesnel's admission to hospital.  In 1970 the first appellant formed a company, G E A Lister & Sons Limited, with his father and two brothers.  A three phrase electrical supply was laid down to the shed.  After Mr Buesnel's death in 1972 South View was inherited by the first appellant's mother.  There was a falling out amongst the brothers in about 1973 and the company was thereafter run by Mr Hayden Lister.  In 1983 the appellant's mother died and in November 1984 the first appellant came into possession of South View.

3.        The first appellant was then working as a labourer for Ronez Limited and it is conceded that the shed was not used at all for two years between 1983 and 1984.  In 1985 the first appellant let the shed to a Mr Wilkinson as a motor-cycle repair shop.  This led to protests from neighbours and a notice was issued by the Committee requiring the first appellant to cease this use.  Subsequently the first appellant applied for permission to change the use of the shed so as to enable it to be let lawfully to Mr Wilkinson.  The application was refused and the first appellant did not appeal. 

4.        Between 1986 and 2002 there were a number of relatively short-term lettings of the shed to different businesses for the purposes of the fabrication of heating ducts, the assembly of windows, doors and similar artefacts, the assembly of double-glazing units and then the construction of fibre-glass mouldings.  This last letting led to further complaints and then to an intervention by the Committee resulting in the cessation of this use.  In April 2002 the shed was let to the second appellant as a joiner's workshop.

5.        It is the first appellant's case that the shed has been used commercially since it was constructed in the 1930s.  The appellants contend that this commercial use was in existence before the Law came into force in 1965, that the use has not been abandoned, and that the Committee therefore has no legal right to seek to suppress it.  The Committee's case is that the shed was never used for commercial purposes and that at all material times prior to 1965 it has always been used as a domestic shed or store.

The evidence

6.        Both parties filed a number of affidavits.  The first appellant asserts that the shed was built by his grandfather, Clifford Buesnel, who was a 'jack of all trades'.  He undertook general building and carpentry work and kept a field for growing potatoes and tomatoes.  The shed was built for his business purposes.  The first appellant had lived with his grandparents between 1946 and 1949 when his parents returned to the Island after the Occupation.  During the 1950s he had frequently visited his grandparents at South View.  He recalled that his grandfather had worked as a small jobbing builder and that the shed had been used as a store and workshop.

7.        Mr David Lister, a brother of the first appellant, states that he has born in 1949 and that he recalls his grandfather working as a stonemason, blocklayer and carpenter.  He states that his father, who was also a builder, used the shed as a workshop before the death of his grandfather, Clifford Buesnel.  At that time (1970) the company G E A Lister and Sons Limited was formed and the shed was renovated.  A new asbestos roof was erected and an underground 3 phase electricity supply was installed.  When the brothers fell out in or about 1973, Mr Hayden Lister continued to use the shed as a store and joinery workshop until their mother's death in 1983.

8.        Mrs Margaret Butler, nee Lister, is the sister of the first appellant.  She was born in England in 1941.  She states that, while the family was living with the grandparents at South View between 1946 and 1949, she recalls that the shed contained dangerous machinery and that the children were not allowed to enter.  She recalls one occasion when her grandfather came out of the shed covered in sawdust.  She remembers helping her mother to hang haricot beans in the loft to dry.  She also recalls lorries going to and from the shed.  She states that her grandfather was a stonemason and carpenter and that the shed was always referred to in the family as 'the workshop'.

9.        Mr John du Heaume is a neighbour whose property adjoins the shed.  His house 'Iona' is separated from the shed by a narrow strip of garden.  He has lived in Iona since his birth in 1957.  He recalls that during his childhood the shed was used by Mr Buesnel only for storage.  He remembers Mr Buesnel as being a farm contractor who did other odd jobs.  He recollects the shed being cleared out after Mr Buesnel's death.  He states that the shed was used for the next ten years or so until 1983 by the Lister brothers very occasionally to do small carpentry jobs.  Mr du Heaume expresses doubt as to whether Mr Buesnel was ever a builder.  His researches at the Jersey Archive have uncovered an identity card from the Occupation years in which Mr Buesnel describes himself as a 'grower'.

10.      Mrs Hazel Haines was the owner of a property, now demolished, which adjoined the driveway leading to Iona and giving access to the shed.  She and her husband lived at the property between 1964 and 1990.  She recollects the shed being used by Mr Buesnel for storage but not for commercial purposes.

11.      Mrs Natalie Cutter is another neighbour who lives in a property adjoining South View on the West.  This has been her family home between 1954 to date, although she did not live in it for short periods during the 1970s.  She was aged 10 when the family moved there in 1954.  Her recollection of Mr Buesnel was of a quiet lonely odd-job man who spent his time tending his garden and looking after his rabbits.  She does not recollect the shed being used for commercial purposes.  She recalls Mr Buesnel repairing tomato boxes but not otherwise engaging in the trade of a builder or carpenter.

12.      Richard Guillard is also a neighbour who was born in 1944 and lived in a house on the other side of the main road from South View until 1965.  He recalls the track leading to the shed as being in a rough state.  He does not recollect any commercial activity taking place to the rear of South View.

13.      The Court derived much assistance from the comprehensive affidavit filed by Mr Roy Webster, a Principal Planner employed by the Committee.  The statement of material facts leading up to the Committee's decision appended to the affidavit was clear and concise.  Mr Webster described the surrounding area as being residential in character and the shed as being in close proximity to existing buildings.  He states that the current use of the shed as a joinery workshop is causing an unacceptable loss of amenity to neighbours, primarily but not exclusively by virtue of noise nuisance.  Another issue is the use of the access road by commercial vehicles which have no room in which to turn; reversing out towards the main road poses a threat to pedestrian safety.  Mr Webster makes it clear that development permission has not been given for this use, nor would it be granted if application were to be made.

14.      Mr Webster's affidavit also appended file notes and correspondence relating to the issue of Article 8 notices in 1985 to cease the use of the shed for mechanical repairs, the sale of motor vehicles and the storage of spare parts for vehicles.  The Committee's view at that time seems to have been that the shed enjoyed no existing commercial use; that issue was not, however, resolved, and the Committee proceeded upon the basis that the use for motor vehicle repairs and sales was in any event a material change of use.  A report to the Committee dated 24th September 1985 from its then Chief Officer presciently remarked that 'the final decision on these opinions might lie with the Royal Court'.

The law

15.      Both counsel were agreed that, if the shed was being used for commercial purposes at the time when the Law came into force in 1965, the notice issued to the first appellant could not stand.  If, however, there were an existing commercial use of the shed in 1965, it would be necessary to determine its ambit so as to decide whether or not the second appellant's use of the shed as a joinery workshop was lawful.

Conclusions

16.      The Court visited the site and was able to gain a clear impression of the situation of the shed in relation to neighbouring properties.  We well understand both the irritation of neighbours and the stance of the Committee in seeking to suppress what is clearly an undesirable state of affairs, both for residents in the vicinity, and in terms of the general amenity of the neighbourhood.  The development of surrounding land in the last two or three decades has led to a state of affairs where, as Mr Webster put it, 'in planning terms, the use of the shed as a joiner's workshop is an entirely inappropriate and incompatible use in a residential area'.

17.      Our first task is, however, to determine whether there was an existing commercial use prior to the coming into force of the Law.  The use having been asserted, the burden is upon the Committee to show that it did not exist.  On a balance of probabilities we find that the Committee has not discharged that burden.  The scale of the shed itself suggests some form of commercial use.  The preponderance of the evidence shows that Mr Buesnel was a jack of all trades who turned his hand to a number of activities in order to earn his living.  We are satisfied that he constructed the shed in the 1930s in order to use it for the purposes of his different commercial activities.  These commercial activities involved work related to agriculture and to the building trade.  Mr Buesnel was born in 1896.  As he grew older we have no doubt that his energy diminished and his commercial activities decreased.  It may well be that witnesses who lived as children in the neighbourhood did not notice commercial activity in the late 1950s and early 1960s on the scale which is now in evidence.  That does not, however, mean that there was no existing commercial use when the Law came into force in 1965.  In our judgment the shed was built for a commercial purpose in the 1930s and that use had not been abandoned when the Law came into force in 1965.  It follows that the first appellant's appeal must succeed and that the notice directing him to cease any commercial use of the shed must be quashed.

18.      The next question is the ambit of that existing commercial use.  In our judgment the evidence establishes that the shed was used for storage and as a workshop for activities associated with the building trade.  We underline the word 'workshop'.  There is no evidence that the shed was used for any form of wholesale or retail trade.  There would be no justification for erecting signs encouraging the public to resort to the premises nor for using the shed for selling or hiring any artefacts produced in the workshop.  The Committee was therefore correct to issue a notice in 1985 prohibiting the use of the shed for the sale of motor vehicles and the undertaking of mechanical repairs.

19.      The Court went inside the shed and noted an orderly and efficient joinery workshop.  It is true that more modern machinery and equipment were in use than would have been available to Mr Buesnel in the 1930s and 1940s.  We suspect that the enterprise is rather more professionally operated than in the past.  Nonetheless it appears to us that the current use of the shed falls fairly and squarely within the commercial use that existed prior to the coming into force of the Law.  It follows, therefore, that the notice directed to the second appellant must also be quashed.  We accordingly allow both appeals and quash the enforcement notices issued by the Committee on 21st July 2003.

20.      We add a few words by way of postscript.  We recognise that this decision will be a disappointment to those neighbours whose amenities are affected by the carrying out of commercial activities in the shed.  Established legal rights cannot, however, be overridden merely because their exercise causes inconvenience and annoyance.  Nonetheless, like all legal rights relating to the occupation of land, the right to use the shed for commercial purposes is qualified by the obligation not to cause a nuisance to neighbours.  This is not just a question of politeness and good manners.  It is also a matter of law.  We express the hope, therefore, that the second appellant will ensure that he does not cause a nuisance and that, having regard to the residential area in which he is conducting his business so far as possible he does not inconvenience his neighbours.

Authorities.

Token Ltd-v-PEC [2001] JLR 698;

Interface Management-v-JFSC [2003] JRC172.

La Solitude Farm, Ltd-v-IDC (22^nd April, 1985) Jersey Unreported; [1985/37].

Herrick-v-IDC [1984] JJ 103.

Kingdon-v-Minister of Housing [1967] 3 AllER 614.

Young-v-Secretary of State for the Environment [1983 2 AllER 1105.