Jersey Unreported Judgments

[2008]JRC049

royal court

(Samedi Division)

20^th March 2008

Before     :

F. C. Hamon, Esq., O.B.E., Commissioner, and Jurats Allo and Le Cornu.

 

Advocate D. G. Le Sueur for the Appellant.

Advocate E. L. Hollywood for the Respondent.

judgment

the commissioner:

1.        The site which is the subject of the appeal is a private domestic terrace above the Navigator Restaurant at Rozel Harbour in Trinity.  The terrace abuts the adjacent dwelling, Granite Corner, which is in the same ownership - that of Mr Paul Knight, the appellant.  There are other properties affected by the proposal and particularly that of Mr and Mrs J Vautier, whose windows overlook the terrace.  The site lies within the Built Up Area, but has no other Island Plan designations. 

2.        On 23^rd December, 2005, an application to construct the roof enclosure in place of a blue canopy was approved, but with one condition, which reads:-

"Notwithstanding the approved plans, the upper dining room area as demonstrated on the plans shall ensure for the private use of the owner of Granite Corner and shall at no time be used in connection with the operations of the restaurant".

3.        The reason "for the avoidance of doubt" was to protect the amenity of surrounding residential properties in accordance with Policy G.2 of the Jersey Island Plan 2002.

4.        It appears that Mr Vautier wrote a letter on 14^th November, 2005 about his concerns on the application but a copy of his letter is not in the bundle.

5.        The Court has made a site visit and noted that there is a storage shed erected above the restaurant and behind the patio area and, according to a letter written by Advocate Benest to the Minister on 19^th July, 2006, this is "constantly utilised by the restaurant and accessed by staff in breach of the conditions already in place".  If that is so, then the appellant is in breach of the condition then imposed. 

6.        Two amendments altering the roof form and extending the private terrace area on to the roof of the approved restaurant were allowed by the Principal Planner by letters dated 6^th February, 2006 and 17^th May, 2006 as minor amendments.

7.        On 6^th September, 2006, following a visit which we will refer to later, the respondent issued a notice of revocation or modification of the planning permission under Article 27 of the Planning and Building (Jersey) Law 2002.  The modification was issued "in order to safeguard the amenity of nearby residents" and the plan attached clearly showed the deletion of the south-eastern part of the terrace.  Nothing was done by the appellant but on 26^th January, 2007 an application was submitted to "create a timber deck and railing over the roof of the Navigator Restaurant".  As a result of this application there were two formal objections.  This was the same application as had been made on 23^rd December, 2005 (and subsequently revoked by causing the deletion of the small section in the south-eastern part of the terrace).  It is from that decision that the appeal is made.

8.        To summarise at this stage, the present position is that there is extant a planning permission as modified by the modification notice and this is an appeal from the refusal to allow the original plan without the modification.

9.        Before we examine one matter which has caused us some concern, let us look at the law.

10.      In Trump Holdings Ltd v Planning and Environment Committee (C.A.) [2004] JLR 232, it was held that a previous decision of the Committee on similar property was not binding on it but was a material consideration, so it is clear that a different approach may be adopted even if it is inconsistent.  Of course the modification notice in the previous application does not prohibit further application.  The modification notice (and the circumstances of it being issued) is part and parcel of the planning history.  The legal test is that applied in Token Limited v Planning and Environment Committee [2001] JLR 698 at paragraph 9.  This decision of the Royal Court was approved by the Court of Appeal in Trump (above).  This Court must form its own view of the merits but must reach a conclusion that the Minister's decision is not only mistaken but also unreasonable before it can interfere.  Normally, one would have to agree that the weight that the Minister has put on the position of the fencing is a planning decision and -even if the Court disagrees - it is a matter for him and not for this Court to disagree.  We have to decide that the decision is not only mistaken but also unreasonable.

11.      The refusal to the application made "de novo" by the appellant is in these words:-

"Erection of the fencing as demonstrated on the submitted plans on the south-eastern part of the roof terrace would cause harm to the amenity of nearby residents and as such would be contrary to Policy G2 of the Island Plan 2002".

12.      We are, in fact, back where we started when the modification notice was issued - that is, that the development is approved without the south-eastern corner.  The Planning Officer's site notes bear this out:-

"This application seeks to directly reverse the notice of revocation and modification and to erect the terrace as originally approved via the minor amendment.  The application offers no information that was not available to the Minister when he made his modification decision and as such there is no reason to conclude that the development should be allowed as proposed".

13.      The learned Jurats having visited the site have found that the decision of the Minister is unreasonable.  If the Minister was concerned about Mr and Mrs Vautier's view, he should have refused the whole application.  He did not.  We cannot see that the cutting out of the south-east corner can have the slightest effect on the view of the harbour from the windows of Mr and Mrs Vautier's property. 

14.      But there is worse and this is the matter which has caused us most concern.  We note that there is an e-mail sent to the Planning Department, setting out the concerns of Mr and Mrs Vautier by their Deputy who is also a member of the Planning Sub-Committee.  During the course of the hearing, we heard that the Minister, before he issued his modification notice, visited the site.  The appellant was away, the architect was not informed and the Minister apparently made his way on to the roof and met with Mr Vautier and that member of the Planning Sub-Committee.  That is, in our view, quite wrong and makes the issue of the modification notice very unjust and a mistake.

15.      What happens next is entirely a matter for the Minister and his advisers.  We allow the appeal on the strict understanding that the roof area shall only be used by the appellant and his family, and access to the wine and storage shed by the staff must cease immediately.

Authorities

Jersey Island Plan 2002.

Planning and Building (Jersey) Law 2002. 

Trump Holdings Ltd v Planning and Environment Committee (C.A.) [2004] JLR 232.

Token Limited v Planning and Environment Committee [2001] JLR 698.