Jersey Unreported Judgments

Inferior Number Sentencing - contravention of the Planning and Building (Jersey) Law 2002.

[2012]JRC208

Royal Court

(Samedi)

12 November 2012

Before     :

W. J. Bailhache, Q.C.,Deputy Bailiff, and Jurats Morgan and Kerley.

The Attorney General

-v-

The Jersey Royal Company Limited

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

3 counts of:

Contravention of Article 7(i) of the Planning and Building (Jersey) Law 2002 (Counts 1, 2 and 3).

Plea: Guilty.

Details of Offence:

The company undertook development of a field within the Green Zone in Grouville in October 2011 without permission, as required under Article 5(2)(d) of the 2002 Law, by removing a hedgerow separating two fields.  When officers from the Department of Environment became aware of the unauthorised development, they invited the company to file a retrospective application to regularise the position.  The company failed to do so (Count 1).  A few weeks later, the company undertook further similar unauthorised development of two fields in St Ouen (Counts 2 and 3). 

Details of Mitigation:

Admitted infractions on Indictment.  The company produced many examples of its environmental awareness and in particular its tree-planting police Island-wide.  The company has now put in place a new remediation policy to ensure similar breaches did not occur in the future. 

Previous Convictions:

23^rd April, 2004 - breach of Article 21(1)(a) Health and Safety at Work (Jersey) Law 1989.  Fined £10,000 with £2,500 costs.

Conclusions:

Count 1:	£3,000 fine.
Count 2:	£4,000 fine.
Count 3:	£4,000 fine.

Total: £11,000 and £2,500 costs towards costs of Prosecution.

Two weeks given in which to pay.

Sentence and Observations of Court:

Conclusions granted.

Mrs S. Sharpe, Crown Advocate.

Advocate N. S. H. Benest for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Jersey Royal Company Limited is actioned by the Attorney-General to answer three charges of having developed or caused or permited to be developed, land without the grant of planning permission as required by the Planning and Building (Jersey) Law 2002.  The charges relate to the removal of banks and/or hedgerows in two fields; one in Grouville and the other in St Ouen.  The Grouville work was carried out at some point between 1^st and 14^th October, 2011, and the St Ouen work was carried out in 2012.  There was argument between counsel as to whether it was in January or February of 2012 but for the purposes of the decision which we have reached, we do not think that argument is of particular significance and we therefore proceed on the basis that The Jersey Royal Company's suggestion that the work took place in January is correct. 

2.        We would like to start by saying that there is considerable evidence before us of a commitment by The Jersey Royal Company Limited to environmental protection and indeed in that respect the company in the nature of its business as agriculturists, adopts an approach which many agriculturists do adopt because they know that it is important to love and respect the land.  We recognise and we commend that record of environmental protection and we treat the company as a first offender for the purposes of these offences. 

3.        On the other side of the coin, the legislation, the Planning and Building Law is there to be observed and breaches of the Law lead to the potential for those charged to be liable to a fine at large, in other words an indeterminate amount.  We also note that the Planning Department must rely, to a large extent, on the voluntary observance and acknowledgement of controls by Island residents because the Planning Department cannot possibly police the Law all through the Island with any degree of certainty of avoiding breaches taking place; that is simply as a matter of logistics.  It follows that when the legislation is not observed, it is inevitable that the Court will impose a significant sanction by way of deterrence.  We would like to add that we approve the approach of encouraging retrospective applications in cases of this kind where the damage done does not appear to be very significant of itself and we are influenced, by the fact, indeed we have taken it into account considerably, that had the damage been significant we would have expected an enforcement notice to have been served requiring the relevant hedgerows to be reinstated.  In that connection we have noted that in the context of certainly one of the fields if not more, the bank or hedgerow that was removed did not appear to extend for the full length of the field and therefore there is no question of that particular bank or hedgerow amounting to a wildlife corridor in the sense that it did not appear to lead from anywhere to anywhere else. 

4.        On the other side of the coin, the company, in our view, did not respond as constructively as it should have done to the Environment Department's approach.  We have taken account of the fact that when the Department first invited the company to file a retrospective application setting out the case for the removal of the hedgerow in Grouville and setting out those factors which would go to the company's credit, like tree planting around the perimeters, the response was that the company had not taken away anything that could sensibly be described as having any value, and that it would effectively be a waste of money to make an application for a retrospective consent, and that the company would prefer to spend its money on its environmental programme rather than on needless bureaucracy.  That was an unfortunate response.  We think the position was aggravated in relation to the removal of the banks in the field at St Ouen.  The company should have known better, probably knew better anyway but it certainly should have known better, having regard to the company's experience in relation to the Grouville field which had taken place some two months earlier with the approach that had been made by the Planning Department.  And indeed, as Advocate Benest accepted in her submissions to us, the chief executive would not have approved the work in relation to the St Ouen field, had he been asked for permission in advance for it to be carried out. 

5.        Following these matters having taken place the company has introduced an internal guidance protocol and we commend the company for that.  We hope the result of that will be that these sorts of problems will not arise again.  There are no direct comparatives for the purposes of finding an appropriate sentence for these offences.  We come back to the point made earlier that the legislation provides for planning offences to be met in some cases with very large fines and we come back to the fact that in this case the offences in St Ouen aggravated the position, having regard to the Grouville offence some three months earlier. 

6.        Having regard to all these factors on both sides of the balance, as will be apparent from the language used in this judgment, we think in the balance the conclusions of the Crown are right and we therefore sentence the company as moved for by the Crown, namely a fine of £3,000 on Count 1, £4,000 on Count 2 and £4,000 on Count 3 making a total of £11,000 with costs of £2,500, and two weeks in which to pay. 

Authorities

Planning and Building (Jersey) Law 2002.

AG-v-Hamel Bros Limited and The Jersey Royal Company Limited [2010] JRC 080.

AG-v-Gindill [2003] JRC 056.

R-v-F Howe & Son (Engineers) Ltd [1999] 2 Cr App R (S) 37.