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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Trump v Planning [2004] JCA 112 (23 June 2004) URL: http://www.bailii.org/je/cases/UR/2004/2004_112.html Cite as: [2004] JCA 112 |
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[2004]JCA112
court OF APPEAL
Judgment reserved: 10th May, 2004; delivered: 23rd June, 2004.
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Before: |
R.C. Southwell, Esq., Q.C., President; P.D. Smith, Esq., Q.C.; and The Rt. Hon. Sir Charles Mantell. |
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Between |
Trump Holdings, Limited |
Appellant |
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The Planning and Environment Committee |
Respondent |
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Between |
Trump Holdings, Limited |
Appellant |
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And |
The Environment and Public Services Committee |
Respondent |
Appeals by the Appellant from the Judgment of the Royal Court of 16th January, 2004, whereby it was ordered that the Appellant's appeal, brought under Article 21 of the Island Planning (Jersey) Law, 1974, as amended, against the Respondents' refusal to grant permission for the demolition of existing buildings at 12-18, Hilgrove Street, and 8-12, Halkett Place, St. Helier, and the construction of a three storey building, comprising a retail unit and a one bedroomed flat, be dismissed.
Advocate M.M.G. Voisin for the Appellant;
The Solicitor General for the Respondent Committees.
judgment
SMITH JA:
INTRODUCTION
1. This case involves appeals by Trump Holdings Limited ("Trump") against two decisions of the Royal Court, the Deputy Bailiff presiding. Each of those decisions was made in respect of appeals by Trump against refusals of applications brought by Trump for permission to develop certain properties in St. Helier under the Island Planning (Jersey) Law 1964 as amended ("the Planning Law"). The first of those refusals was made by the Planning and Environment Committee and the second by the Environment and Public Services Committee which, in the period intervening between the two decisions, took over the relevant functions of the Planning and Environment Committee. In what follows I refer to both Committees as "the Committee."
2. Trump first made application to the Committee in August 2000. The application sought permission to:
"Demolish existing building nos 12-14-16-18 Hilgrove Street and 8-10 & 12 Halkett Street. Construct new three-storey building, comprising retail unit at ground & first floor, storage area and one bedroom flat at second floor."
3. On 28 December 2000 the Committee refused the first application. The grounds were stated in the following terms:
"The proposed development would result in the unacceptable demolition of two buildings included on the Planning and Environment Committee's "Register of Buildings [of] Architectural, Archaeological and Historic Importance in Jersey" as Buildings of Local Interest, contrary to Interim Policy HB6, 1998."
4. Trump asked the Committee to reconsider its decision, which it did on 15 March 2001. However, it maintained its refusal, having been advised that the two buildings in question, 12 and 14 Hilgrove Street, were capable of being refurbished.
5. On 21 March 2001 Trump gave notice of appeal to the Royal Court ("the First Appeal"). However, in August 2001 the Committee was asked to reconsider its decision of 15 March 2001, Trump putting forward additional material in support of the application. On 25 October 2001 the Committee maintained its refusal and Trump subsequently amended the First Appeal to include reference to this reconsideration.
6. For reasons set out in the Royal Court judgment and which I need not repeat, a second application for permission was made by Trump in respect of the same premises which included material additional to that presented to the Committee in respect of the August 2000 application. This second application was also refused by the Committee on 3 April 2003. Once again the substance of the refusal was that the proposed development would result in unacceptable demolition of 12 and 14 Hilgrove Street. On 8 April 2003 Trump appealed to the Royal Court against this refusal ("the Second Appeal").
THE APPEALS TO THE ROYAL COURT
7. The First and Second Appeals were brought under Article 21 of the Planning Law which provides that any person aggrieved by the refusal of the Committee to grant development permission may appeal to the Royal Court on the ground that the decision of the Committee " ... was unreasonable having regard to all the circumstances of the case.". Because the two appeals had the same subject matter the Royal Court decided to hear them both at the same time and gave leave for all material adduced by both parties since October 2001 to be adduced in evidence in relation to the First Appeal.
8. The Royal Court considered the test applicable to the appeals. It referred to and sought to apply the remarks of Le Quesne JA in Island Development Committee -v- Fairview Farm Limited (1996) JLR 306 and which are in the following terms (at p. 317):
9. The Royal Court also found assistance in the Bailiff's judgment in Token Limited -v- Planning and Environment Committee [2001] JLR 698 where he said (at p. 703, para. 9):
10. The Royal Court observed that the approach taken by the Bailiff was endorsed by this Court in Planning and Environment Committee -v- Le Maistre [2002] JLR 389 at pp. 398 and 405. The test adumbrated by Le Quesne JA in the Fairview Farm case and developed by the Bailiff in the Token case and as restated in the Deputy Bailiff's judgment is accepted by both parties to be the correct one.
THE PLANNING FRAMEWORK
11. Article 2 of the Planning Law sets out the purposes of the statute. As far as these appeals are concerned the relevant purposes are:
12. In 1998 the Committee published a document entitled "Interim Policies for the Conservation of Historic Buildings" ("the Interim Policies"). These made provision for the designation of buildings as "Buildings of Local Interest" ("BLIs") and their inclusion in a register. The criteria for designation of buildings as BLIs and consequent inclusion on the register include architectural interest, historic interest and scenic and group value. Furthermore, age is identified as "a significant consideration." Interim Policy HB6 provides that "There is a presumption in favour of the preservation of registered buildings; therefore permission will not normally be granted for the total demolition of a registered building ... " The introductory text to HB6 reads (so far as is material):
"Applicants seeking to justify demolition, or detrimental change, on the grounds that there is no viable use for a registered building in its existing state, will be expected to produce evidence of the failure to find a purchaser despite active, professional, marketing of the building on realistic terms during the previous twelve months. Economic and technical appraisals of the options considered are required. Arguments that an historic building is beyond reasonable repair, for example because it would need to be so extensive as to amount to reconstruction, or that repair and refurbishment are uneconomic, must be supported by detailed technical evidence as to condition and costs, by appropriately qualified persons; the burden of proof lies on the applicant. The condition of the building and the cost of repair is a material consideration, but will carry much less weight in cases of deliberate neglect."
13. The Interim Policies were not part of the 1983 Island Plan, nor were they approved by the States. However, the 2002 Island Plan, which was approved by the States in July 2002, does make reference to the Interim Policies and provides that these remain in force for the time being as supplementary planning guidance. Furthermore, policy G13 of the 2002 Island Plan provides:
"There will be a presumption in favour of the preservation of the architectural and historic character and integrity of registered buildings ... Permission will not normally be granted for the ... total or partial demolition of a registered building."
14. All of the premises comprised in Trump's applications to the Committee are or have been BLIs. Thus:
(i) 12 and 14 Hilgrove Street were registered in 1992 and have never been removed;
(ii) 16 and 18 Hilgrove Street and 8 and 10 Halkett Street (together constituting a redeveloped building) were registered in 1992 and removed in 1999;
(iii) 12 Halkett Street was registered in 1992 and removed in 1997.
15. The Committee's Notice of Decision on Trump's second application (i.e., the subject of the Second Appeal) did not refer to Interim Policy HB6 but stated that the proposed development was contrary to Policy G13, to which I have already referred, and also to Policies G16, G2, BE2 and BE3. It is not necessary to set out the terms of these latter policies which, insofar as they are material, merely replicate the protection afforded by Policy G13. Suffice to say that before the Royal Court and this Court, both parties accepted that the policies provide for a rebuttable presumption against the demolition of a BLI.
THE DECISIONS OF THE ROYAL COURT
16. In his careful and detailed judgment the Deputy Bailiff dealt first with the Second Appeal. The Royal Court considered that the Committee's conclusion that 12 and 14 Hilgrove Street retained such architectural, historical and scenic interest as to warrant their inclusion in the register (with the consequent presumption in favour of their retention) was reasonable; that it was reasonable for the Committee to have concluded that Trump's argument that repair and refurbishment of those properties would not be economically viable was not so persuasive as to overcome the presumption against demolition; and that the Committee's conclusion in relation to repair and refurbishment that it was not satisfied that Building Bye-Law compliance would not be possible was not unreasonable.
17. The Royal Court held unanimously that there had been inconsistency in the Committee's attitude to 12 Halkett Street, which had been removed from the register and in respect of which the Committee had granted permission for demolition when it was in the ownership of the States, and to 12 and 14 Hilgrove Street, both of which had been retained on the register. The properties are very similar and in an immediately adjoining location. It was (as the Deputy Bailiff put it) a "like for like situation." The Royal Court went on to hold, again unanimously, that 12 Halkett Street ought to have been retained on the register, rather than 12 and 14 Hilgrove Street being removed from it.
18. At this point, the Royal Court divided. One Jurat felt that the refusal to allow the demolition of 12 and 14 Hilgrove Street was unreasonable because it was inconsistent with the decisions in relation to 12 Halkett Street. The Committee had not acknowledged that it had got it wrong in relation to 12 Halkett Street; rather it had maintained that that property was not as worthy of preservation as 12 and 14 Hilgrove Street, an opinion with which the Royal Court unanimously disagreed. Furthermore, the Jurat considered that 12 Halkett Street having been owned by the States at the material times, upholding the Committee's decision in relation to 12 and 14 Hilgrove Street would be damaging to the public perception of the fairness and impartiality of the planning process. The other Jurat considered that as the unanimous view of the Royal Court was that the decision to permit the demolition of 12 Halkett Street was wrong a decision to allow the demolition of 12 and 14 Hilgrove Street would also be wrong. He thought that the decision of the Committee was not unreasonable notwithstanding the inconsistency. The Deputy Bailiff preferred the reasoning of the latter Jurat. Accordingly, the Second Appeal was dismissed by a majority. There being no material differences between the factors pertaining to the Second and First Appeals, the First Appeal was also dismissed by a majority.
THE APPEALS TO THIS COURT: PRELIMINARY APPLICATIONS
19. At the beginning of the hearing before this Court, Advocate M. M. G. Voisin, who appeared for Trump, made two applications: one that additional evidence be received to the effect that 12 and 14 Hilgrove Street are uninsurable in their present condition and the other that the members of this Court should themselves view the properties, the subject matter of the applications for permission to develop.
20. We refused both applications. As to the first, it was clear that the criteria for the admission of fresh evidence by the Court of Appeal, derived from Ladd-v- Marshall [1954] 1 WLR 1489 and adopted on numerous occasions by this Court (in, for example, Mayo Associates SA-v- Cantrade Private Bank (1998) JLR 173), had not been met. Moreover, I think it important to stress that, in cases of this sort, the circumstances in which it would be appropriate to admit fresh evidence in this Court or, for that matter, the Royal Court, are extremely limited. This is because the responsibility for administering planning policy in this Island lies with the Committee and not with the Royal Court or this Court. Furthermore, the reasonableness of the Committee's decision falls to be judged "... in relation to the conditions prevailing at the time of the consideration of the application." (See Arbaugh -v- The Island Development Committee (1966) JJ 593 per Bois, DB at p. 595). Therefore, although I do not say that this Court does not have the power to admit fresh evidence in an appropriate case, it seems to me that the granting of such an application is likely to be rare and limited to situations in which the two factors set out by me above are not prejudiced.
21. As to the second application - that we view the properties - we rejected this application also. We did not think it necessary to see the buildings in order to understand the case - we have ample explanatory material before us including drawings and photographs. Therefore, if we were to visit the buildings, it could only have been on the basis that what we would see might cause us to take a different view of the applications than that of the Committee or the Royal Court. In my opinion this would be quite inappropriate. There is more than enough evidence as to the quality, condition etc., of the buildings in the voluminous documentation provided by the parties and, in my judgment, there is no justification for supplementing it with our subjective reactions to what we might see.
THE APPEALS TO THIS COURT: SUBSTANTIVE ISSUES
22. Although the amended notice of appeal common to both appeals comprises sixteen grounds these were helpfully marshalled by Mr. Voisin under two headings - economic viability and inconsistency. I consider the arguments advanced under each heading in turn.
ECONOMIC VIABILITY
23. In order to deal with the arguments on this issue it is necessary to set out the background to it. The material before the Committee and the Royal Court included a report obtained by Trump and dated 28 November 2002 from Barnes and Partners, a firm of chartered surveyors, valuers and property consultants ("the Barnes Report"). This report included valuations of 12 and 14 Hilgrove Street in their current condition which totalled £213,500 and valuations of the two buildings totalling £417,000 after the completion of structural works which, according to D. J. Hartigan & Associates Limited ("Hartigan"), a firm of consulting engineers engaged by Trump, are the minimum required to extend the life of the two buildings for a viable period. These works were costed at £220,800 in 2001. In addition, it was asserted to the Committee and argued in the Royal Court that a further £101,510 would fall to be added to cover a number of items including inflation, finance charges and letting costs. Thus, it was contended, repair was not a realistic economic proposition. The uplift in the value of the properties after completion of the works would only be £203,500. Yet, according to Trump, achieving this would cost £321,310. The Committee sought advice from consulting engineers, The Morton Partnership Limited ("Morton"). According to Morton effective repairs could be carried out for approximately £100,000 - the principal difference between the Morton and Hartigan figures resulting from the Morton's contention that underpinning is not required. In his report to the subcommittee which processed the second application on behalf of the Committee (for the sake of convenience I refer to it hereafter as "the Committee") Mr. R. S. Fell, Assistant Director of Planning and Building Services, increased the figure of £100,000 to £125,000 to allow for inflation.
24. The minute recording the Committee's assessment of this issue reads as follows:
"In terms of the economic arguments, the Sub-Committee was apprised that no effort appeared to have been made by the current owners to market the buildings, to establish interest either in their repair or re-use. The Sub-Committee noted that whilst there was no disagreement between the respective engineers that these properties could be repaired, the point of contention was the extent and cost of repairs that would be necessary. The question of the economic viability of repairs and refurbishments depended critically on the estimated cost of these works and there was substantial difference between the parties on this point. The Sub-Committee noted that there was agreement between the parties that the combination of these two buildings into a single unit would not be viable and that the only realistic prospect would be to improve each building individually. The Sub-Committee noted that property advisers acting for the Committee and for the applicant agreed that these properties, if repaired and improved, would command considerable interest for letting and retail use. Having considered the submissions on costings and viability, the Sub-Committee concluded that the applicant's argument that the repair and refurbishment of these properties would not be economically viable was not so persuasive as to overcome the presumption against demolition."
25. As I have said, the Royal Court considered that it was reasonable for the Committee to have reached the conclusion it did reach on this issue. Mr. Voisin attacked the Royal Court's reasoning. Focussing on its treatment of the Barnes Report, Mr. Voisin contended that the Royal Court's view that the current market values of 12 and 14 Hilgrove Street would depend on the amount that would be required to be expended on repairs was not supported by the Barnes Report; that the Royal Court was bound by or limited to the Barnes Report as it comprised the only relevant expert valuation evidence; and that the Royal Court failed to appreciate that the current market values put on 12 and 14 Hilgrove Street by Barnes assumed that the works proposed by Hartigan would be required to be executed before the buildings would be in a lettable condition.
26. I do not accept that the Royal Court or the Committee for that matter was bound by the Barnes Report or, when considering the value of the properties, was limited to whatever was contained within the four corners of that report. To my mind, each body was fully entitled to draw its own conclusions from the material comprised in the report and from whatever other information had been placed before the Committee. Having said this, it does appear that the Royal Court did overlook the fact that the Barnes market values were indeed predicated on the Hartigan works being carried out. However, in my opinion this does not lead to the conclusion that the Barnes Report must be taken at face value and the economic viability issue resolved in Trump's favour.
27. For my part, I found the valuation evidence comprised in the Barnes Report somewhat puzzling. The current market values of the properties as they stood at the date of the valuations were based on that belief that there was someone, somewhere who was prepared to pay the figures totalling £213,500 - if not, there was no market and therefore no market values. The Barnes Report must have assumed that that person was purchasing buildings which were not in a lettable condition and therefore would generate no rental income unless and until the works proposed by Hartigan had been executed at a cost (including consequential items) of £321,310. Yet if that person did spend that sum he or she would obtain an income stream which the Barnes Report capitalises at only £417,000.
28. What is puzzling is how it could be that there would be a person who was prepared to spend £213,500 for no income or a total of £534,810 for buildings which, once repaired, would be worth only £417,000. The Barnes Report offers no explanation for this. Without an explanation one is driven to one of two conclusions. Either the market values are too high or there are other factors at work. The Barnes Report gives no clue as to what those factors might be. Mr. Voisin suggested that someone might be prepared to purchase the properties on the basis that at some indeterminate point in time in the future the Committee might relent and permit demolition and redevelopment. But I decline to speculate. If there are other factors they ought to have been set out in the Barnes Report as forming part of the basis of the relevant valuation. Had this been done the Committee would have been able to examine and evaluate them. It was not done and I do not consider it appropriate for this Court to take into account something which, before us, is merely a suggestion of counsel.
29. It might be thought, as the Royal Court thought, that if the cheaper Morton works were all that were required to put 12 and 14 Hilgrove into lettable condition this would have an impact on the valuations of the buildings. Not so, asserted Mr. Voisin: the valuations of the two buildings totalling £213,500 stand irrespective of any variations in the cost of repairs. As I understood his argument, a prospective purchaser would buy on the basis that execution of the Hartigan works and not just the Morton works would be essential before the buildings would be lettable. But if this is the case, it is certainly not spelt out in the Barnes Report which, on my reading of it, is predicated on the mere assumption on the part of Barnes that the Hartigan works would have to be carried out.
30. Moving on from the valuation evidence Mr. Voisin also sought to criticise the Royal Court for failing "to give reasons for preferring the Morton Report costings, in reaching its conclusion ... that those costings were preferred" and argued that it was wrong for the Royal Court to conclude "that the Committee's decision to reject the costings and viability evidence of [Trump] was reasonable." (I quote from Trump's written submissions).
31. In my judgment these criticisms are misconceived. There is nothing in the Deputy Bailiff's judgment that I can find that indicates a preference for the Morton Report. Moreover, I do not understand the Committee to have indicated a preference for the Morton Report either. The Committee's decision was that Trump had failed to persuade it that repair and refurbishment would not be economically viable and that therefore Trump had failed to overcome the presumption against demolition. The Royal Court considered that the Committee's decision on this issue was not unreasonable. In my view, it was not necessary for either the Committee or the Royal Court to choose between the two views as to what would be required properly to repair the buildings. Furthermore, even if it was incumbent on them to choose, in the light of the concerns I have expressed about the valuation evidence it does not follow that even if the Hartigan view had been preferred the economic viability issue would necessarily have been resolved in Trump's favour.
32. Mr. Voisin went on to criticise the Royal Court for placing weight on the failure to market the properties in accordance with the expectation described in the introductory text to Interim Policy HB6 (see paragraph 9 above). The Royal Court, he argued, ought to have considered whether it was reasonable to require Trump to conduct a marketing exercise given that Trump was not the owner of the building and that both the Committee and the Royal Court had before them the Barnes Report.
33. As to the ownership point, it seems to me to have been disposed of by Mr. Voisin's concession before the Royal Court that the owners had not sought to market the buildings because they knew that they would not be able to achieve the prices offered by Trump. In other words, the exercise was not performed because it did not suit the owners or Trump to perform it. As to the valuation point, my reading of the Barnes Report suggests that the estimates of the current market values were very much at large. There does not appear to have been sufficient data available to produce reasoned figures. The "best evidence" (I am not using this phrase in a technical way) would have been what, if anything, the market would have been prepared to pay. It is noted that the policy does not offer valuation evidence as an alternative to marketing. The absence of marketing was not stated by either the Committee or the Royal Court to have been determinative and neither body ignored the Barnes Report. In my judgment the absence of marketing was a material consideration which both the Committee and the Royal Court were entitled to take into account.
34. Mr. Voisin criticised the Committee for adducing its own evidence as to economic viability. The Committee should have considered Trump's evidence on its merits. In obtaining evidence on its own behalf the Committee was going outside the proper scope of its functions.
35. No authority was quoted in support of this criticism. For my part, I would require strong authority based on cogent reasoning before I would be prepared to accept it. The Planning Law confers on the Committee the unenviable task of dealing with the competing interests of owners who wish to develop their properties and the public who have expressed their objectives in the legislation passed on their behalf by the States. It may well be that in many cases the Committee would not think it necessary to obtain evidence off its own bat. But the idea that the Committee must limit itself in performing its statutory functions to whatever an applicant for permission chooses to lay before it seems to me to be fundamentally inconsistent with the due performance of those functions. In my opinion the Committee is fully entitled, where it thinks it appropriate, to obtain such evidence as it thinks fit in order to test material presented to it by an applicant. It is interesting to note that the present case the evidence obtained on behalf of the Committee in relation to the repairs issue was at variance with that furnished on behalf of Trump.
36. Mr. Voisin contended that the Royal Court was wrong in law in accepting that the Committee was entitled to prefer an oral assurance proffered to Mr. Fell concerning Building Bye-Law compliance over a letter dated 28 January 2002 from a Senior Fire Safety Officer from the States of Jersey Fire and Rescue Service. This letter expressed concern as to the practicality of Bye-Law compliance in relation to fire safety in the event of repairs being attempted. Mr. Voisin argued that it was prejudicial and perverse for the Committee to prefer an oral assurance.
37. The letter of 28 January 2002 is not explicit as to which Building Bye-Law requirements could not be met (as Mr. Fell put it in his report to the Committee dated 18 March 2003 " ... in the absence of specific indications of the nature of the breaches of statutory control, it is impossible to deal effectively with this assertion"). No information on the issue emanating directly from Building Control was furnished to the Committee on Trump's behalf. Furthermore, the Committee's written case furnished to this Court contains a detailed analysis of the relevant legislation and associated documentation which tends to show that the Building Bye-Law problem may not be insurmountable. Mr. Voisin did not attempt to challenge this analysis.
38. Mr. Voisin submitted that the letter of 28 January 2002 was the "best evidence" before the Committee. Insofar as that submission implies that the Committee should conduct itself as if it is a court of law, I reject that proposition. In my opinion, in performing its statutory functions the Committee is entitled to have regard to material which would not be admissible in a court. Provided it acts fairly, it is entitled to give such weight to that material as it may reasonably bear. In the circumstances, it was sensible for Mr. Fell to have checked the question of Bye-Law compliance with Building Control. In my view, having failed to do so themselves Trump cannot complain if the outcome of that check was prejudicial to their application. Mr. Voisin did not suggest that Mr. Fell did not accurately report to the Committee the terms of his discussions with Assistant Director - Building Control. In my opinion the fact that the information was conveyed orally to Mr. Fell, or that it was hearsay, did not preclude the Committee from receiving and considering it.
39. The Royal Court, although accepting that in the circumstances the conclusion of the Committee on this point was not unreasonable, thought that the Committee would have been well advised to have procured written advice from the Building Control officer. No doubt this would have been sensible in order to ensure that the Committee had a precise record of that advice. However, I emphasize that it is my opinion that when an applicant for permission comes to the Committee and asserts that something is not feasible it is up to that applicant to support that assertion with complete and credible material and that it is not the responsibility of the Committee to go to lengths to check out assertions that are not fully developed and fully supported in the applicant's submissions to it.
40. Finally, under this heading, Mr. Voisin argued that the Committee's promotion of a scheme for the refurbishment of 12 and 14 Hilgrove Street as one unit ("the Gibb Scheme") constituted acceptance by the Committee that the repair and refurbishment of the buildings individually was neither economically viable nor capable of Building Bye-Law compliance.
41. As to the first limb of Mr. Voisin's argument on this point, I do not consider that it follows that merely because the Committee suggested a possibility which would permit redevelopment without its BLI policy being breached, it is to be deemed to have expressed an irrevocable conclusion on the economic viability issue. The Gibb Scheme might have provided a compromise on the conflicting positions of Trump and the Committee. That it did not do so did no more than throw both parties back to the apparent conflict between the BLI policy and Trump's insistence that repair of 12 and 14 Hilgrove Street would not be economically viable - a conflict which the Committee was bound to go on to address without further reference to the Gibb Scheme which simply dropped out of the picture.
42. As to the second limb of this point, this was based on the assertion that as the Gibb Scheme addressed the factors raised in the letter of 28 January 2002, the Committee must be deemed to have tacitly accepted that repair of the buildings individually would have to address those factors and that, therefore, such repairs would not be viable.
43. In my judgment, neither the sponsorship of the Gibb Scheme by the Committee, nor its abandonment, is open to any such interpretation. In his report to the Committee of 18 March 2003 Mr. Fell explained why the Gibb Scheme was no longer being advocated by the Committee's officers. But it was made quite clear that the repair of the individual buildings stood on an entirely different footing. As the report stated: " ... a scheme of basic repair, improvement and continued use of these buildings in their existing configuration was considered by officers to be financially viable."
INCONSISTENCY
44. Mr. Voisin argued that it was not open to the Royal Court to hold that the previous decisions of the Committee to remove 12 Halkett Street from the register as a BLI and permit its demolition were wrong. It ought to have regarded those decisions as material considerations. Unless the Royal Court could identify some new and distinguishing factor justifying departure from those decisions it was bound to hold that the Committee's refusal to permit the demolition and redevelopment of 12 and 14 Hilgrove Street was unreasonable. No such new and distinguishing factor had been identified by the Royal Court.
45. In my opinion, the relevant legal principles are correctly set out in the judgment of Mann LJ in North Wiltshire District Council -v- Secretary of State for the Environment and Clover 65 P. & C. R. 137 (a decision of the Court of Appeal of England and Wales) in the following terms (at p. 145):
46. Although the learned Lord Justice's remarks relate to a somewhat different decision making setting and there was an express statutory requirement that the inspector should have regard to material considerations, in my opinion the principles enunciated by Mann LJ are applicable to the planning process in Jersey and I endorse their adoption by the Royal Court in the instant case (see also the unreported judgment of the Deputy Bailiff in Caesar Investments Limited-v- Planning and Environment Committee [2003]JRC180 at para. 74). Moreover, I share the view, implicit in the Deputy Bailiff's judgment in the instant case, that they are applicable even where (as in this case) the earlier decisions relate to one set of premises and the later decision to two others (see Collis Radio Limited and Another -v- Secretary of State for the Environment and Another 22 P. & C.R. 390).
47. Isofar as Mr. Voisin sought to argue that the Committee's treatment of 12 Halkett Street created some sort of binding precedent, I reject this argument on the ground that it is patently at variance with the passage from the judgment of Mann LJ in the North Wiltshire case which I have quoted and adopted above. As to Mr. Voisin's argument that it was incumbent on the Royal Court to find "some new and distinguishing factor" before it could endorse a decision inconsistent with the previous one, I consider that this overstates the position in law. No such requirement is laid down in any of the authorities put before us and it will be observed that Mann LJ, in the passage I have quoted, limits what is required to a statement of the reasons for departure from the previous decision.
48. In deciding the inconsistency issue against Trump, the Royal Court did not accept the arguments advanced by the Committee which, it appears, proceeded on the basis that its decisions in relation to 12 Halkett Street were not material considerations. The Royal Court concluded that they were material, but that they were wrong. In order to examine the validity of that conclusion it is necessary to look more closely at the Royal Court's reasoning.
49. The Royal Court was clearly influenced by two factors. One was a report furnished to the Committee on behalf of Trump from a Mr. Jonathan Carey, an expert in the repair, adaptation and conservation of historic buildings. Perhaps surprisingly, Mr. Carey did not seek to argue that 12 Halkett Street and 12 and 14 Hilgrove Street did not meet the criteria for registration as BLIs. He contended that 12 Halkett Street is a rather better building than had been appreciated by the Committee, being of somewhat greater merit than 12 Hilgrove Street and of only slightly less than 14 Hilgrove Street. He conceded that all three buildings still make some contribution to the character of their respective streets and are "pleasant reminders of an earlier age." He argued that the decision to permit the demolition of 12 Halkett Street merely compounded the Committee's "error" (in conservation terms) of permitting redevelopment of the two streets in the 1970s - 1990s. Mr. Carey supported the demolition of 12 and 14 Hilgrove Street on the basis that their enforced retention would leave them as isolated relics in what is largely a twentieth century street. As Mr. Carey put it: "The horse has bolted and there seems little point in now shutting the stable door."
50. The second factor which influenced the Royal Court was a site visit made by the Court. Mr. Voisin did not criticise this visit. However, I have to confess to a degree of disquiet about the Royal Court making its own qualitative or aesthetic judgments on the basis of what it sees which is, after all, beyond the knowledge of and scope of challenge by the parties. It is true that, as in this case, its reactions are recorded in the judgment of the Royal Court, but this Court is hardly an appropriate forum for such challenge. While I would endorse a view directed solely to enabling the Court to understand the issues, I wish to reserve my position on the question of whether a view may legitimately go further until such time as this Court has the advantage of full argument.
51. However, in my opinion, the report from Mr. Carey in itself contained sufficient material to dispose of the inconsistency issue. Although it was his view that it was pointless to preserve 12 and 14 Hilgrove Street because the horse had bolted, his findings were obviously open to the converse interpretation - that all three buildings are of such quality that they would be worth preserving. Had the Royal Court expressly stated that in the light of Mr. Carey's report the Committee's decisions in respect of 12 Halkett Street had, in the Court's opinion, been mistaken this, in my view, would have met adequately the requirement that the Court give its reasons for not acting consistently with those decisions in respect of 12 and 14 Hilgrove Street. On this basis, and in this context, it would have followed inexorably that it could not have been said that the Committee's decision to refuse permission was unreasonable.
52. Another point canvassed by Mr. Voisin was that it was not open to the Royal Court to decide that the decisions to remove 12 Halkett Street from the register as a BLI and permit its demolition were wrong. There is a presumption of regularity and lawfulness of the decisions of public authorities. The earlier decisions have not been challenged by appeal or judicial review. The question of their validity was not before the Royal Court and it had no locus to adjudicate on it. If the Royal Court's decisions in relation to 12 Halkett Street were to stand it might be open to the Committee to reinstate that building, which has not yet been demolished, as a BLI.
53. Mr. Voisin produced no authority to us in support of this point. In my view, the authorities on inconsistency placed before us clearly support the contrary. In the North Wiltshire case Mann LJ gives no indication that a previous decision is to be given the status contended for by Mr. Voisin. On the contrary, the learned Lord Justice's judgment can only be read as permitting disagreement with a previous decision if it is a material consideration, provided only that there is justification for doing so and that that justification is stated.
54. To my mind, Mr. Voisin's argument on this point ignores the obvious distinction between a ruling on the validity of a decision and the expression of an opinion as to whether it was correct or not. In my judgment the Royal Court's finding falls into the latter category and, therefore, was permissible. I am strengthened in this view by reference to the obligation imposed on the Royal Court to form a view as to the reasonableness of the Committee's decision. I do not think that this obligation could be met if the court were to be forced into making a decision on appeal with which it did not agree because it considered itself bound by another decision of the Committee on another application with which it did not agree either.
55. Another reason for rejecting this point, if one were needed, is that it contains the seeds of the destruction of the Committee's BLI policy and, indeed, by extension quite possibly the destruction of other policies as well. If Mr. Voisin is correct, the Committee would be required to permit the demolition of a BLI if a "better" building had been removed from the register, demolition of it had been permitted and there was no new or distinguishing factor justifying departure from those decisions. By this process, 12 Halkett Street would become the benchmark against which all applications for the demolition and redevelopment of BLIs would be measured.
56. Mr. Voisin went on to argue that, Trump having acquired 12 Halkett Street from the States with the knowledge of the earlier decisions in relation to it, this raised a legitimate expectation that a consistent decision would be made in relation to 12 and 14 Hilgrove Street.
57. In is written submissions Mr. Voisin did not explicitly characterise the legitimate expectation contended for as substantive or procedural. However, as Trump's notice of appeal to this Court seeks to have it direct the Committee to grant permission for the proposed development and makes no mention of the remittal of the matter to the Committee for reconsideration it is clear that a substantive expectation was being asserted.
58. This point was not taken or argued before the Royal Court. For my part, if Mr. Voisin had sought to raise it as a freestanding issue I would not have been prepared to entertain it. However, in the light of the fact that he argued the point before this Court under the heading of inconsistency and that the Solicitor General, Miss Stéphanie Nicolle, Q.C., who appeared for the Committee, has addressed it without demur in her submissions to us, I now turn to deal with it.
59. In the course of her helpful submissions, the Solicitor General drew our attention to the useful summary of the requirements which must be met if a substantive legitimate expectation is to be established set out in the unreported judgment of Scott Baker J in Association of British Civilian Internees - Far East Region -v- Secretary of State for Defence [2002] EWHC 2119 (Admin) at para. 27 et seq. The learned judge listed four requirements:
(i) that a clear and unequivocal representation has been made;
(ii) that the expectation is confined to one person or a few people giving the representation the character of a contract;
(iii) that it is reasonable for those who have the expectation to rely upon it and that they do so to their detriment; and
(iv) that there is no over-riding public interest that entitles the representor to frustrate that expectation.
60. In my judgment, Trump fails to meet at least three of the four requirements. As to (i), the previous decisions could not, in my view, constitute representations of any sort in relation to any building other than 12 Halkett Street. As to (ii), one of the characteristics of a contract is that it should have identifiable parties. If what happened in the instant case gave rise to an expectation, it would have vested at the time when it was made in persons who were unidentified and unidentifiable and of indeterminate number - that is to say, in anyone who might subsequently purchase 12 Halkett Street and who owned or purchased a comparable building, or even in any person who merely owned or subsequently purchased a comparable building. Thus, this requirement is not met either. Finally, as to (iii), Trump may have "relied" on the decisions of the Committee in respect of 12 Halkett Street but, if Trump did so, I do not consider it to have been reasonable insofar as that reliance would have involved the assumption that similar decisions in respect of similar buildings would follow automatically.
61. Notwithstanding its absence from Trump's notice of appeal and its written submission to this Court, Mr. Voisin sought to raise before us the procedural point that the Committee had given insufficient reasons for its decision not to permit the demolition and redevelopment of 12 and 14 Hilgrove Street. On this basis he invited this Court to remit the matter to the Committee for reconsideration.
62. To this the Solicitor General did object. Ms Nicolle pointed out that although Mr. Voisin raised four procedural issues before the Royal Court they did not include the point I have described. Furthermore, before the Royal Court Mr. Voisin expressly eschewed any desire on the part of Trump to have the matter sent back to the Committee. To enable the point to be dealt with properly on behalf of the Committee the notice of appeal would require to be amended and an opportunity given for the Solicitor General to research the law and prepare a reasoned response.
63. While it appears that the Committee took the view that 12 Halkett Street was not comparable with 12 and 14 Hilgrove Street and that, therefore, the decisions made in respect of 12 Halkett Street were not material considerations, the process of reasoning by which the Committee reached this conclusion is not very easy to discern from the available material. There is no reference to the 12 Halkett Street decisions in the Committee's notice of refusal of the Second Application but, on the other hand, in the North Wiltshire case Mann LJ expressed the view (at p. 146) that there is no obligation to manifest disagreement with decisions which are distinguishable. It is true that the Royal Court did not consider the 12 Halkett Street decisions to be distinguishable but, if Mann LJ is correct, this could not retrospectively cast doubt on the propriety of the Committee's failure to refer to them. Finally, in this connection, I record that although there are decisions in this jurisdiction which deal with the question of when a procedural failing may render a decision of the Committee unreasonable within the meaning of Article 21 of the Planning Law, Mr. Voisin did not open these authorities to us or even refer us to them.
64. In all the circumstances, I do not consider that it is open to Trump to argue the procedural point in question before this Court. In my opinion, it has not been properly raised or developed before us and, insofar as I have been able to examine it, it does not seem to me to be a point worthy of further scrutiny in the context of these particular appeals.
65. Finally, on this issue, Mr. Voisin argued that fairness dictated that decisions consistent with those made in respect of 12 Halkett Street be made in respect of 12 and 14 Hilgrove Street. He grounded this argument on the dissenting Jurat's view that, the decisions in respect of 12 Halkett Street having been made when that building was in the ownership of the States, it would be damaging to the public perception of the fairness and impartiality of the planning process if the Committee's refusal to make similar decisions in respect of 12 and 14 Hilgrove Street were to be upheld.
66. The other two members of the Royal Court emphasized the importance of public perception and this I fully endorse. However, like them, I do not consider that the concern as to public perception in this case leads to the conclusion that the Committee's decision was unreasonable. In addition to the reasons given by the majority in the Royal Court, with which I agree, I would add a further point. The logic of the dissenting Jurat's argument must, I think, be that every private sector developer who can show that his building is less worthy of retention on the BLI register than 12 Halkett Street is entitled to permission to demolish it. In other words, the benefit of the concern as to public perception surely cannot be limited to Trump merely because that developer, fortuitously, happened to purchase 12 Halkett Street. By this reasoning, understandable concern about perception would be magnified into the mutilation, if not the destruction, of the Committee's policy in relation to BLIs. To my mind this would be quite inconsistent with the spirit and intent of the Planning Law and would be much more damaging to the public interest than the perception of relatively minor unfairness (bearing in mind that it is accepted that there were no improper motives) flowing from the decisions made by the Committee which benefited the States and which the Royal Court considered to have been erroneous.
CONCLUSION
67. I would dismiss both appeals.
COSTS
68. As far as costs are concerned, my view would be that costs should follow the event and that, therefore, the Committee's costs of these appeals should be paid by Trump. However, if either party wishes to make submissions as to costs it should inform the Assistant Judicial Greffier accordingly within seven days of receipt of this judgment, in which case the Court will sit to hear oral submissions or deal with the issue in writing, if this is acceptable to the parties.
THE PRESIDENT:
69. I agree entirely with the judgment of Smith JA and add only the following points which I wish to emphasise:
(i) In my judgment the statement of the test under Article 21 of the Island Planning (Jersey) Law, 1964, as amended, contained in the Bailiff's judgment in Token, at page 703, paragraph 9 is the correct statement of the test. It materially differs from the statement in this Court in Fairview Farm at page 317. The difference is not mere semantic one. The statement of the test in Token is the one which in my judgment should be followed by the Royal Court in cases arising under Article 21 of the Planning Law, and the statement in Fairview Farm should no longer be followed.
(ii) The test is one to be applied in relation to the circumstances prevailing at the time when the Committee makes its decision to grant or to refuse planning consent. It is not to be applied in relation to later circumstances. If such later circumstances are to be considered they should be the subject of a fresh application to the Committee. So one part of the task of the Royal Court and the Court of Appeal is to avoid taking into account factual or opinion evidence which was not before the Committee. That seems to me to be one reason why the Courts should abstain from forming their own subjective views by means of a vue de justice. Probably the only justification for a vue de justice in this type of case is where such a view is necessary to enable the Court to understand the issues raised in the appeal.
(iii) As to the alleged inconsistency with the Committee's decision on 12 Halkett Street, I share the view of Smith JA that this was no more than one of the material factors which the Committee needed to consider. The Committee had to decide whether or not that was a relevant earlier decision, and if it was relevant, and if they were not going to follow it, to set out their reasons for taking a different view in the present case. The decision on 12 Halkett Street was not a binding precedent, as Mr Voisin seemed to be arguing; indeed, in answer to my questions, he seemed to be saying that the Committee, when considering any other building anywhere on the Island which is similar to 12 Halkett Street or is less desirable in architectural or heritage terms than 12 Halkett Street, is bound as a result of its decision on 12 Halkett Street to remove each such other building from the register, and to permit its demolition. That submission is in my judgment entirely misconceived. Previous decisions on other buildings are no more than a material factor, and create no legitimate expectations except the expectation that they will be taken into account as one material factor, and that reasons will be given for the taking of a different view.
(iv) Finally, I wish to make this general observation on the relevance of English planning case-law to Jersey. In this small Island, with a rich but already diminished heritage of buildings of architectural, historic, and scenic value, a decision to demolish such a building has greater impact than a similar decision in the larger jurisdiction of England and Wales. This is one reason why the Jersey authorities and Courts may need to develop their own case-law, and not merely to follow the English cases.
MANTELL JA:
70. I agree that both appeals should be dismissed for the reasons given by Smith JA.
71. Apart from the possible oversight mentioned in paragraph 26, the reasoning of the Royal Court has emerged unscathed. This was, therefore, not only a second tier appeal, but one which turned out to be an unmitigated failure.
72. So, subject to further argument, which I would wish to discourage, like Smith JA, I can see no possible reason why costs should not follow the event.
