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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Brimacombe -v- Minister for Planning [2011] JRC 132 (06 July 2011) URL: http://www.bailii.org/je/cases/UR/2011/2011_132.html Cite as: [2011] JRC 132 |
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[2011]JRC132
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Before : |
Sir Philip Bailhache, Kt., Commissioner, and Jurats Le Cornu and Marett-Crosby. |
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Between |
Michael William Brimacombe |
Appellants |
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Pamela Brimacombe |
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And |
The Minister for Planning and Environment |
Respondent |
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And |
Wendy Lees |
Third Party |
Advocate A J. Clarke for the Appellants.
Mr Duncan Mills for the Respondent.
Mrs Lees appeared on her own behalf.
judgment
the commissioner:
Background
1. Mrs Wendy Lees is a keen gardener. In 1980, she and her husband bought a fine granite property in a country lane in St Martin. At the time of the purchase, they were aware of some large Holm oak trees growing in a row on the other side of the road. These trees undoubtedly cast shade over their garden at that time, but there is equally little doubt that over the last thirty years, the trees have grown in height and density. They now cast a heavy shade over large parts of Mrs Lees' garden and indeed over the house itself. Mrs Lees has asked her neighbours, Mr Michael Brimacombe and his wife, Pamela, ("the appellants") on a number of occasions over the years whether they would do something about the trees. They declined.
2. In 2007, after much discussion, the Projet de Loi entitled "The High Hedges (Jersey) Law 200-" came before the States Assembly for debate. It was adopted unanimously and was sanctioned and came into force on 11th January, 2008. We will refer to it as the "2008 Law". The 2008 Law empowered the Minister of Planning and Environment to issue a remedial notice if satisfied, following a complaint by a landowner, that a high hedge is causing an adverse effect to that landowner's property. There are procedures to be observed and limits to the Minister's power, but at the end of the day, he may require the owner of the high hedge to take such action as may be specified to remedy the adverse effects upon the complainant's property.
3. Shortly after the 2008 Law came into force, Mrs Lees made enquiries about its applicability to the Holm oaks that were causing distress to her and her husband. On 2nd October, 2009, she wrote to the appellants asking that the Holm oaks be reduced in height. She expressed the hope that it might be possible to reach an agreement, and that it would not be necessary for her to have to apply for a remedial notice under the 2008 Law. The appellants replied on 18th November, 2009, making a number of points to which we will come in due course, but essentially stating that they were not prepared to cut down the trees. On 24th November, 2009, Mrs Lees lodged a formal complaint with the planning and environment department ("the planning department") under the 2008 Law, and paid the requisite fee of £359.
4. A copy of the complaint was served upon the appellants. On 14th December, 2009, they wrote to the planning department, seeking a delay of four months owing to their prospective absence from the Island. On 13th May, 2010, a report of the planning department in relation to the complaint was completed. The officer's recommendation was that a remedial notice should be issued requiring an initial reduction of the height of the trees to 7 metres above the ground, and thereafter, to be maintained at a height not exceeding 8 metres. The recommendation was made following consultations with the Principal Ecologist in the Environment Division, Mr Brian Livesey, a chartered surveyor, and the States Arboricultural Officer. On 28th May, 2010, the Minister conducted a public hearing at which the appellants, Mrs Lees and some neighbours were present and made representations. The Minister adjourned consideration of the complaint and asked the planning department to prepare a sunlight analysis.
5. On 24th June, 2010, the appellants submitted a detailed report in substantiation of their oral presentation on 28th May and a legal review by their then Advocates, Ogier. Their report included a number of appendices, being reports from the Jersey Society for Prevention of Cruelty to Animals, ("JSPCA"), Mrs Tiffany Blackett, B VetMed MRCVS (on red squirrels in the context of the Holm oak trees in question), Mr Conrad Evans, Jersey Trees for Life (analysis of the trees and their value), the Jersey Bat Group and Mr Geoffrey Blackstone FRICS, chartered surveyor, (the application of the 2008 Law to these trees).
6. On 3rd November, 2010, a revised report was prepared for the Minister, taking account of the various reports submitted by the appellants in June. The recommendation of the planning officer remained unchanged, namely that a remedial notice be issued requiring an initial reduction in the height of the Holm oak trees bordering field 654A to 7 metres, with the trees thereafter to be maintained at a height not exceeding 8 metres. It may be noted that Mrs Lees had asked that the Holm oak trees bordering field 655 as well as field 654A be reduced in height. On 5th November, 2010, the Minister visited the site in question.
7. On 12th November, 2010, the Minister made his decision on the complaint of Mrs Lees. It recorded:-
"The following action is to be required:-
a) Initial action
The minister requires the following steps to be taken in relation to the hedge before the end of the period specified in paragraph 4 below:-
1) Reduce the height of the Holm Oak trees (the hedge) along the roadside boundary of Field 654A to a height not exceeding 7.0 metres above ground (tree base) level along the whole of its length along the roadside field boundary;
b) Preventative action
Following the end of the period specified in paragraph 4 below, the Minister requires the following steps to be taken in relation to the hedge:-
1) The hedge shall be maintained along its length at a height not exceeding 8.0 metres above ground (tree base) level.
The initial action specified above must be complied with, in full, within three months."
8. The remedial notice was issued on the same day and was in the following terms:-
"High Hedges (Jersey) law 2008
REMEDIAL NOTICE
1. The Notice
This Notice is issued by the Minister for Planning and Environment under Article 7 of the High Hedges (Jersey) Law 2008 pursuant to a complaint about a high hedge situated at Fields 654A and 655, Temple View, La Rue des Marettes, St Martin. The Minister has decided that the hedge along the boundary of the Field 654A (but not Field 655) is adversely affecting the reasonable enjoyment of the property at Lynton, La Rue des Marettes, St Martin and that action should be taken in relation to the hedge with a view to remedying the adverse effect and preventing its recurrence.
2. The hedge to which the Notice relates
The hedge forms the northern boundary of Field 654A and is clearly marked on the attached plan. The hedge is formed by a series of evergreen Holm Oak (Quercus Ilex) trees.
3. What action must be taken in relation to the hedge.
a) Initial action
The Minister requires the following steps to be taken in relation to the hedge before the end of the period specified in paragraph 4 below:
1. Reduce the height of the Holm Oak trees (the hedge) along the roadside boundary of field 654A to a height not exceeding 7.0 metres above ground (tree base) level along the whole of its length along the roadside field boundary;
Reason: the hedge is required to be reduced to this maximum height to reduce the problems caused by it, whereby it adversely affects the level of daylight enjoyed by the Complainant, whilst ensuring the survival of the hedge.
b) Preventative action
Following the end of the period specified in paragraph 4 below, the Minister requires the following steps to be taken in relation to the hedge:
1. The hedge shall be maintained along its length at a height not exceeding 8 metres above ground (tree base) level.
Reason: To ameliorate the impact of the hedge upon the adjacent property whilst seeking to ensure the survival of the hedge.
c) Informative
All works should be carried out in accordance with good arboricultural practice/BS 3998: 'Recommendations for Tree work'.
It is recommended that skilled contractors are employed to carry out this specialist work.
In taking the action specified in this Notice, special care should be taken not to disturb wild animals. All species of bats, squirrels and all species of birds (apart from feral pigeon, magpie, crow and starling) are protected species under the Conservation of Wildlife (Jersey) Law 2000 and should any trees house their dreys or nests then they cannot be felled. Careful checking by a professional arboriculturist during any site works is imperative to prevent any damage to possible dreys or nests.
If nesting birds, bats or squirrels are found to be present then the tree work should not commence, or if the tree surgery has already started and nests are then discovered then the work should stop immediately and be rescheduled for later in the year.
It is recommended that all tree work, including the cutting of the larger branches, takes place during the winter months between January and March, as this will leave nuts and berries, which are a valuable food source for wildlife, on the trees for longer. This is also the time of year when the wildlife activity within the hedgerow is at its least productive. Cutting early in the spring months can disturb nesting birds and breeding mammals.
4. Time for compliance
The initial action specified in paragraph 3 above must be complied with, in full, within three months of the date specified in paragraph 5 of this Notice.
Reason: To provide a reasonable period of time within which the Initial Action may be carried out.
5. When this Notice takes effect
This Notice takes effect on 12 November 2010.
6. Failure to comply with the Notice
Failure by any person who, at the relevant time, is an owner or occupier of the land where the hedge specified in paragraph 2 is situated
a) to take action in accordance with steps specified in paragraph 3 above within the period specified in paragraph 4; or
b) to take action in accordance with steps specified in paragraph 3 above by any time stated there;
may result in prosecution of an offence and they may be liable to a fine up to level 3 on the standard scale.
The Minister also has power, in these circumstances, to enter the land where the hedge is situated and carry out the specified works. The Minister may use these powers whether or not a prosecution is brought. The costs of such works will be recovered from the owner or occupier of the land.
7. Rights of appeal against determination in respect of a remedial notice
The owner or occupier of the land where the hedge specified in paragraph 2 above is situated may appeal to the Royal Court against;
a) a determination by the Minister that the allegation made in a complaint is justified; or
b) any requirement or condition specified in a remedial notice.
The appeal must be made within 28 days of the owner or occupier being sent a copy of the remedial notice or within such further period as the Royal Court may consider justice requires.
Where an appeal is made, the remedial notice shall be of no effect pending the final determination or withdrawal of the appeal.
On the appeal the Royal Court may;
a) confirm the determination of the Minister;
b) order the Minister to withdraw the remedial notice; or
c) order the Minister to amend the remedial notice in such manner as the Court directs.
Signed: Lawrence Davies, Planner
On behalf of the Minister for Planning and Environment.
Dated 12 November 2010"
9. The appellants appealed against the issuance of that remedial notice on 9th December, 2010. We will deal with the different grounds of appeal below.
The appropriate test
10. We must first, however, address a submission of counsel for the appellants as to the appropriate test to be applied by this Court in considering an appeal under the 2008 Law. This is, we are told, the second appeal under the 2008 Law to come before the Court. The first appeal was Hobbs-v-Minister for Planning and Environment [2009] JRC 146. In that appeal, it was assumed, although no argument was addressed to the Court, that the conventional test for appeals under the Planning and Building (Jersey) Law 2002 ("the 2002 Law") was the appropriate test. The appellants were not legally represented. The Court applied the test laid down in Token Limited-v-Planning and Environment Committee [2001] JLR 698 at 703 in the following terms:-
11. Mr Clarke submitted that this was not the appropriate test under the 2008 Law. The statutory language was different. Article 13 of the 2008 Law provides, so far as material:-
12. Counsel submitted that Article 109 of the 2002 Law provides, by contrast, for an assessment of the reasonableness of the Minister's decision. Paragraph (1) of that Article provides:-
In the 2008 Law, no assessment of reasonableness, counsel submitted, was required. The Court could substitute its own decision for the Minister's decision. That was implicit from Article 13(4)(c) of the 2008 Law which empowered the Court
13. The Minister's legal representative was not, unfortunately, able to assist the Court very greatly in relation to this submission of counsel for the appellants. In fairness to Mr Mills, he had been given no notice that this contention would be advanced by Mr Clarke. In reliance upon Hobbs, Mr Mills contended that the Token test was the appropriate approach for the Court to adopt, although he thought that the Court might have a little more latitude. He suggested that the test under the Housing (Jersey) Law 1949 might be a comparator.
14. The Court has accordingly been obliged to undertake its own research, and it would seem that Mr Mills' instinct was sound. Article 12 of the Housing (Jersey) Law 1949 then provided under the heading
The article has subsequently been amended, and is now Article 18. The essential elements of the article remain, however, unchanged. It may be noted that, as with the 2008 Law, there is no reference to nor indeed any indication as to how the Court should exercise its discretion. Furthermore, there is also a provision that the Court may give such directions to the Committee as it considers proper, which may be viewed as analogous to the power in the 2008 Law to order the Minister to amend the remedial notice in such manner as the Court directs.
15. The nature of the Court's power on an appeal under the Housing (Jersey) Law 1949 was considered by the Court of Appeal in Housing Committee-v-Phantesie Investments Limited [1985-86] JLR 96. Counsel for Phantesie, Advocate William Bailhache, argued that the words in Article 12(1) conferred an unrestricted right of appeal with the result that the Royal Court was in a position to exercise precisely the same powers as the Housing Committee - that is to say the hearing before the Court was a hearing de novo. The submission in Phantesie was, in effect, the same submission as that made by Mr Clarke in this case.
16. The Court of Appeal did not find it necessary to decide the point, but Neill JA, who delivered the Court's judgment, made the following observations at page 117:-
17. Without the material to which reference was made in the judgment of the Court of Appeal, and in the absence of full submissions on the point, we do not think that it would be right to make any definitive ruling on the proper approach for the Court to take on appeals under Article 13 of the 2008 Law. Suffice it to say that the contention of Mr Clarke is plainly not without merit. After the hearing, Mr Mills drew our attention to the case of Glazebrook-v-Housing Committee [2000] JLR 381, but we do not think that decision is really in point. Owing to the unusual circumstances of that case, it was treated as a judicial review rather than an appeal. It is true that Southwell J A stated, at page 389:-
But with all respect to the learned judge of appeal, it is not at all clear to what extent he had addressed the issues raised by Neill J A in Phantesie, let alone all the cases to which reference is made in that judgment. Phantesie was cited by counsel, but it was not referred to in the judgment of Southwell J A. In any event, as the learned judge acknowledged, his remarks were clearly obiter. In fairness to the appellants, we propose, therefore, to take the view that we have the wider power for which Mr Clarke contended. We will examine the matter de novo, although due respect must obviously be paid to the careful balancing exercise undertaken by the Minister, and to his experience and knowledge.
The appellants' contentions
18. Mr Clarke grouped his contentions under three categories, viz:-
(i) that the present circumstances of the trees and the properties do not lend themselves to the imposition of a remedial order under Article 7 of the 2008 Law;
(ii) that, in the alternative, the Minister failed to take account of or give sufficient weight to relevant considerations, including the expert evidence submitted by the appellants; and
(iii) that the Minister failed to provide the appellants with any or sufficient reasons why their submissions have been rejected.
19. We find it convenient to take first the contention that insufficient reasons for the decision were provided. In oral submissions counsel added a further related contention, namely that the Minister had failed to give the appellants the opportunity to comment upon the expert evidence as to the solar path and the effect of the trees upon the sunlight reaching Mrs Lees' property. As recorded at paragraph 4 above, the Minister directed at the public hearing on 28th May, 2010, that a sunlight analysis should be prepared. Instructions were accordingly given to Mr Brian Livesey of N S J Chartered Surveyors to undertake the necessary work. Mr Livesey requested that some of the data assembled by the appellants' expert, Mr Rex Miller of Land Surveying - Geomatics, be made available to him. This request led to an email dated 21st September, 2010, from Mr Brimacombe to the planning department in the following terms:-
"We refer to your request transmitted via Mr Livesey to authorise Mr Rex Miller to make available certain additional data to that submitted by us to the minister on 23rd June, 2010. We understand that this is required in order that your consultants can prepare the "Sunshine Survey" ordered by the Minister. Having carefully considered the matter, we are prepared to authorise Mr Miller to release this data in the format requested by Mr Livesey, but subject to the following caveat:-
We had assumed, when a sunshine survey was suggested at the Tribunal by the Minister, that this would involve some physical measurement of the actual conditions at Lynton. However we now understand that this is not the case. Instead what is proposed is a selective computer modelling technique, about which we have severe reservations, because inter alia:-
It will only produce a selection of impressions of the actual conditions at various times of day and of season.
It will make arbitrary assumptions about the extent and density of the canopy and the effect of particular trees on the transmission of light.
It is unlikely to accurately demonstrate the effects caused by the gradient between the fields in question and Lynton.
We hope you will pass on our reservations to the Minister. In the interests of expediting the matter, we are copying this message to Mr Miller, with the request that he send the full data in the format required direct to Mr Livesey."
20. Mr Livesey's report was sent to the planning department on 12th October, 2010. The submission of counsel for the appellants was that they were not given the opportunity to comment upon this report before the Minister made his decision. If this were an application for judicial review, the submission would have much force. As Beloff, JA stated in Re the X Children [2009] JLR 143 at paragraph 36:-
But this is not an application for judicial review. It is an appeal, which, in accordance with the submission of counsel for the appellants, is being conducted as a re-hearing de novo. Subsequent to the Minister's decision, the appellants commissioned and have placed before us without objection from the Minister a lengthy report by Mr Paul Harding of BDK Architects setting out findings, inter alia, in relation to the report provided by NSJ Chartered Surveyors. In the event, no prejudice has been caused to the appellants by reason of the omission to offer them the opportunity to comment upon the material contained in Mr Livesey's report.
21. As to the submission that the Minister did not sufficiently explain his decision by giving adequate reasons for it, we do not consider that this complaint is made out. It was plain from the outset that the Minister had to undertake a balancing exercise and to reconcile the interests of the complainant, Mrs Lees on the one hand and the interests of the appellants on the other. The arguments against a remedial notice were comprehensively marshalled by the appellants. They made them orally at the public meeting on 24th May, 2010, and supplemented those arguments by a written dossier delivered during June. All these arguments were recorded in the departmental report compiled for the Minister prior to his decision. The report balanced the competing considerations and reached the conclusion that a remedial notice should be issued. That was the recommendation to the Minister. On 12th November, 2010, the Minister made his decision. He upheld the complaint in accordance with the department's recommendation. On the same day, the planning department wrote to the appellants, sending them a copy of the formal decision and a copy of the departmental report, upon which the decision was founded. It is true that neither the letter nor the decision recorded specifically the reason for rejecting the different objections articulated by the appellants. It must, however, been plain to them that the objections to the proposed remedial notice did not, in the Minister's judgement, either individually or collectively, outweigh the complainant's right to the reasonable enjoyment of her property. We find no substance in this submission by counsel for the appellants which is, in any event, otiose in the light of the Court's decision to examine the matter de novo.
22. We turn to the contention that the circumstances of the trees and the properties do not lend themselves to the imposition of a remedial notice under Article 7. In essence, it is submitted that the 2008 Law was not intended or designed to deal with mature trees that are probably more than one hundred years old. In oral argument, Mr Clarke conceded that this was not his strongest point. It was suggested, but not with any degree of conviction, that because the properties of the appellants and Mrs Lees were divided by a public road, the trees were not growing on neighbouring land. That is plainly unsustainable both as a matter of common sense and as a matter of statutory construction. Article 1 states that in respect of a complaint, Next, it was submitted, that the Holm oak trees subject of the remedial notice were not a "high hedge" and that the 2008 Law was not intended to be used in this type of situation. It is true that, as a matter of ordinary language, one might not describe a row of Holm oak trees as a hedge. Article 4(1) of the 2008 Law provides, however:-
Counsel conceded, as he had to, that the Holm oak trees in question were (i) a barrier to light, (ii) a line of two or more evergreens and (iii) more than 2 metres above ground level. Furthermore, although it is unnecessary to refer to the Hansard report of the debate in the States Assembly upon the draft Law, it is clear that members were in no doubt that the draft Law would embrace a line of evergreen trees. The statutory language expresses the intention of the legislature. It is also true that Mr Conrad Evans of Trees for Life expressed the view that "[t]he trees in question are part of a group of deciduous trees that combine to make a woodland". The existence of adjacent small deciduous trees does not prevent, in our judgement, this line of Holm oaks from being a "high hedge" within the meaning of the 2008 Law.
23. Counsel went on to contend that, even if the trees were a "high hedge", the Minister ought not to have exercised his discretion to issue a remedial notice in circumstances such as these. To do so would, it was submitted, open the flood gates to numerous other complaints and potentially blight the countryside. This was a leafy country lane, like hundreds of others, and lent character to the countryside. The appellants were supported in this view by the States Arboricultural Officer, Mr Nick Armstrong. In an email dated 20th April, 2010, he expressed the view:-
"Cutting down the tree/hedge to the Surveyor's recommended height will look unattractive for a number of years. Depending on the trees vigour the hedge/trees should grow 6 to 12 inches twelve a year. In the first year the trees may not respond quickly but on the second year new growth will appear.
It is my opinion that this hedge located in this area is not what the high hedges law was originally adopted to deal with i.e. it is not a Leylandii hedge growing in small restricted gardens. I trust the decision for the reduction will take into account the size of the complainant's garden and how much loss of amenity/light there actually is."
24. These submissions shaded into counsel's last point, namely that the Minister failed to take account of, or give sufficient weight to the relevant considerations, as required by Article 6 of the 2008 Law, and to that contention we will now turn. It is clear, however, that the Minister had the power to issue a remedial notice in relation to these Holm oak trees.
25. Article 6(4) of the 2008 Law provides that, in considering whether a complaint is justified:-
26. There are a number of relevant considerations:-
27. Firstly, it is accepted that the trees were in existence at the time when Mrs Lees and her husband acquired their property in 1980. The report of Mr Conrad Evans of Trees for Life states that the trees vary in size and age from 25 years to 100 years. The largest has a diameter of over 76cms indicating a probable age of more than 100 years. Although Mr Evans considered that the trees were slow growing, and that the increase in height over 30 years would have been minimal, he did acknowledge that the annual growth could have been 15 centimetres per annum. The States Arboricultural Officer indicated growth of between 6 inches - 12 inches per annum was normal, and that would mean a growth of between 15 and 30ft over a 30 year period. Although it is clear that at least one of the Holm oaks will have been a substantial tree at the time when Mr and Mrs Lees acquired their property, it is equally clear that the mass of the Holm oaks will have increased significantly between 1980 and 2011.
28. Secondly, the appellants contended that the effect of the remedial notice would be severely detrimental to wildlife. Mr Conrad Evans stated that the trees provided a vital corridor for squirrels connecting fragmented areas of woodland. Ms Tiffany Blackett, a veterinarian, agreed that in general woodland and hedgerow corridors were important for the red squirrel population. She considered that the Holm oaks offered a valuable food resource and also potential nest and shelter sites. A report commissioned by the appellants from the JSPCA supported the general view of Ms Blackett. The representative of the JSPCA saw and photographed a juvenile red squirrel sitting in one of the Holm oaks on 3rd June, 2010, adjoining a Holm oak that appeared to contain a drey. On the other hand, the principal ecologist in the Environment Division stated that Holm oaks were of little value for wildlife and that the trees in question did not form an essential part of a squirrel wildlife corridor. The appellants commissioned a report from the Jersey Bat Group which conducted two dusk surveys. Approximately 10 bats were seen making loops of the field site, although no bats were seen emerging from the Holm oaks. They were thought to be unsuitable as day roosts for bats although they did provide structure and cover for an under storey of smaller trees. Our conclusion is that, while the implementation of the remedial notice might have an adverse effect upon wildlife, such effect would be likely to be minor and of short duration. It was suggested that the implementation of the remedial notice would or might place the appellants in breach of the Conservation of Wildlife (Jersey) Law 2000 which prohibits the damaging or destruction of nests or dens in certain circumstances. We find no force in this suggestion. The remedial notice contains quite specific instructions designed to avoid damage to wildlife. Article 6(2) of the Conservation of Wildlife (Jersey) Law 2000 would offer a defence to the appellants if damage were caused to a den or nest of a protected wild animal or bird as a result of compliance with the remedial notice.
29. Thirdly, the appellants contended that the Holm oaks provided their property with privacy and a reduction in noise and pollution from motor traffic making use of the country lane in question. They referred to a letter from Mr Geoffrey Blackstone FRICS of Geoffrey Wills Associates which stated:-
"My final concern is the loss of privacy and enjoyment to the property, Temple View and adjoining fields 654A and 655. The reduction in height of the trees in this area would appear unusual relative to the surrounding mature trees and, as such being the main entrance to the property, would, it is considered, have a diminishing effect on the value of the estate. On a small island such as ours, privacy of such estates is highly valued by potential purchasers."
30. We will return to the question of aesthetics, but we do not consider, having attended on site and viewed the locus in quo, that the implementation of the remedial notice would have any significant effect upon the privacy of the appellants' property. The property is some way distant from the Holm oak trees in question and oriented in such a way that the reduction in height would be barely noticeable, if at all. We doubt that there would be any perceptible effect upon traffic noise or pollution, such as it is, coming from the lane. The effect upon the appellants' privacy and enjoyment of their property would be minimal and insignificant.
31. Fourthly, the appellants contended that the solar path analysis commissioned by the Minister was flawed and misleading. They commissioned, subsequent to the issuance of the remedial notice, a further report from Mr Paul Harding Dip. Arch., RIBA, trading as BDK Architects. The Minister's expert, Mr Livesey, a chartered surveyor, noted that the hedge was approximately 16.8 metres in height above road level and had an effective length of 31.5 metres. He used a methodology contained in guidance entitled "Hedge Height and Light loss" issued by the Office of the Deputy Prime Minister in the United Kingdom to calculate that the hedge should be reduced in height to not more than 7.90 metres above road (datum) level. Mr Harding criticised both the methodology and the conclusion in a number of respects. He stated that it was incorrect to take the effective length of the road on which the trees were planted as 31.5 metres because the Minister had decided not to issue a remedial notice in relation to trees planted on field 655 but only those planted along field 654A. The effective length of field 654A was only 16.37 metres. Mr Harding also suggested that the wrong orientation factor had been used. Other criticisms were made of Mr Livesey's methodology, leading Mr Harding to the conclusion that the UK guidance would have given a corrected action hedge height of 14.93 metres above the ground level of field 654A. Mr Harding prepared a three dimensional model of field 654A, the Holm oak trees and Mrs Lees' property in order to compute a comparative solar shading analysis at different times of the day and year. He concluded from these studies that not more than 25% of Mrs Lees' garden would be in shadow between the spring to autumn equinoxes until after 2 o'clock in the afternoon. At the summer solstice the garden would not be affected by substantial shadow until after 4 o'clock in the afternoon.
32. Mr Harding also pointed out that the UK guidance used by Mr Livesey, to which reference is made on the website of the planning department, stated that the guidelines had been designed to apply to evergreen hedges but not to groups of trees. Yet Mr Harding used these guidelines in part to assist his own calculations.
33. We do not doubt the care with which Mr Harding (and Mr Livesey) approached their calculations. Yet these scientific analyses must always be servants and not masters of the situation. The assessment of whether a high hedge adversely affects the reasonable enjoyment of her property by a landowner is not one that admits of accurate objective scientific analysis. The guidelines produced by government departments in the UK are exactly what they purport to be, guidelines to assist the decision maker. It is to be noted that in this case, the Minister, taking account no doubt of Mr Livesey's advice, fixed upon an ultimate height of 8 metres above the soil, as opposed to the 7.9 metres above the level of the road (which is approximately 1.7 metres below the level of the soil). The Minister reached his own judgement of what was reasonable in all the circumstances having taken account of the interests of both landowners.
34. Furthermore, we find it difficult to reconcile some of the conclusions drawn by Mr Harding from the solar path analyses with our own observations. The members of the Court attended on site, at the request of all the parties, to examine the locus in quo. We attended at about 3pm on Wednesday, 18th May, some five weeks before the summer solstice. By chance, it was a fine sunny day. Not more than 25% of the garden was in sunlight. 75% of the garden was in shadow, caused by the tall evergreen oaks overhanging the road. We would have described the shadow as dense rather than dappled. It may be that some of the calculations in Mr Livesey's report are open to criticism for the reasons given by Mr Harding. However, our own observations would suggest that the calculations in Mr Harding's report as to the times during which Mrs Lees' garden is in shadow caused by the Holm oaks must equally be treated with considerable reservations.
35. Fifthly, we turn to the question of protection of the environment. Clearly, this is a very relevant consideration and one which, we have no doubt, weighed heavily upon the mind of the Minister. The advice of several of the experts was that the reduction in height of the Holm oaks would be potentially damaging to the environment. Ms Tiffany Blackett, opined that:-
"Wildlife corridors are "an important aspect of conservation biology". All too often in both urban and countryside areas, wildlife and its natural habitat suffer increased pressure from loss of woodland areas, building work, erosion and pollution. Woodland and hedgerow corridors are important in helping wildlife to survive in areas where their natural habitat may be disappearing and therefore ultimately help with the conservation of a number of wildlife species."
36. Mr Conrad Evans of Trees for Life wrote:-
"Through the States' funded Countryside Renewal Scheme, administered by the Environment Division of Planning, the planting of trees and hedges as "wildlife corridors" is promoted. The existing mature trees form an important frame work and basis of determining where new planting will be most advantageous. Breaching or removing any of the existing connective corridors or groups of trees will be counterproductive as it will merely serve to make woodlands fragmented once again which is what [an] organisation such as Jersey Trees for Life is striving to prevent."
37. Mr Geoffrey Blackstone, quantity surveyor, wrote:-
"The survey of the trees around the perimeter of the property clearly shows a diversity of principally indigenous species, which are both pleasing to the eye in respect of the overall estate, and provide a sanctuary for birds and other wildlife.
Over many years, the tree planted boundaries have matured into substantial specimens. In particular, along the disputed boundary there is a quiet two-way country lane through which the open spreading branches of these mature trees provide dappled sunlight onto the lane, which characterises some of Jersey's most beautiful country aspects."
38. It is clear that, from an aesthetic perspective, the reduction in height of the Holm oaks would have an adverse effect upon the environment, at least temporarily. The expert advice is that Holm oaks are vigorous trees capable of surviving drastic surgery of this kind. They are likely to re-grow but the necessity to maintain them at a height of less than 8 metres would result in an unusual arboreal appearance in a country lane.
Conclusion
39. The Minister clearly took the view that the right of Mrs Lees to the reasonable enjoyment of her property outweighed the aesthetic and environmental considerations to which we have referred above. We agree with that assessment. We express some regret that it has been necessary for this appeal to be heard. We think that some form of compromise involving the complete removal of some (perhaps not all) of the offending Holm oaks would have resulted in a more satisfactory aesthetic solution than will result from the implementation of the remedial notice. But counsel for the appellants indicated clearly that such a compromise was not acceptable to his clients. The Minister had no power to make such an order. Article 7(4) of the 2008 Law provides that he may not, by a remedial notice, require a hedge to be removed or reduced to a height of less than 2 metres. We doubt that such a limit to the Minister's power to issue a remedial notice serves any useful purpose, but that is what the legislature has decreed.
40. Examining the matter de novo, and given the restrictions upon the Minister's powers, we would not have arrived at a different solution from that at which the Minister arrived. No significant harm is caused to the appellants' property (apart from the general aesthetic harm to the environment to which we have referred) by the reduction in height of the Holm oaks. On the other hand, very substantial detriment to the reasonable enjoyment of Mrs Lees' property is caused by the dark and brooding presence of the Holm oaks which deprive her of light and sun to an unreasonable degree. We accordingly confirm the determination of the Minister and the appeal is dismissed. We direct that the appellants shall comply with the remedial notice forthwith, subject only to the advice of the Planning Department as to when and how the work should be undertaken, provided, however, that the work is completed no later than 31st January, 2012.
