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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Kanetech Limited v AG [2013] JRC 121 (21 June 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_121.html Cite as: [2013] JRC 121 |
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Planning - Magistrate's Court Appeal.
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone. |
Kanetech Limited
-v-
The Attorney General
Appeal by way of case stated purusuant to Article 21(1) of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949.
Mr Martin Kane in person as Director of the Appellant.
M. T. Jowitt, Esq., Crown Advocate.
JUDGMENT
THE DEPUTY BAILIFF:
1. The Appellant appeals by way of case stated pursuant to Article 21(1) of the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949 ("the 1949 Law") on a question of law. I will come to the formulation of the question later in this judgment.
2. The Appellant has been charged with 16 offences in respect of building work conducted at different addresses in the Island between 19th August 2010 and 30th June 2011. Apart from the address at which the work was carried out, the substance of each charge is the same. Charge one reads as follows:-
3. Article 33 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") provides:-
4. Article 10 of the Building Bye-Laws (Jersey) 2007 ("the Bye-Laws") provides as follows:
5. So there we have it. The question for the trial court will be whether, on the evidence, the Appellant contravened Article 33(1) of the Planning Law by permitting or causing to be carried out prescribed building work to which the Building Bye-Laws applied without having applied for a building permit. The question for me is the preliminary question which is set out at paragraph 17 below.
6. I pause here to say that Advocate Jowitt, on behalf of the HM Attorney General, quite rightly conceded immediately that the charges had been wrongly framed. The offence is complete when the relevant building work is carried out without a permit having been obtained. The Crown must show not that the work was carried out without an application for a permit having been submitted, but that the work was carried out without a permit having been issued.
7. Before the Magistrate - at that time the Assistant Magistrate - a preliminary point was taken as to whether the Appellant fell within the definition of "a person who undertakes prescribed building works". The Magistrate found that it did, hence this appeal by way of case stated. The Magistrate proceeded on the basis of what was said to be a largely agreed set of facts - although it was indicated one does not know at the present time whether these are all the material facts - and necessarily on this case stated appeal, I now do the same although the facts at trial will be those in respect of which evidence is adduced and accepted, or admissions made.
8. In recent years, the States of Jersey has run an Energy Efficiency Service (EES) through the Eco-Active unit in the Planning and Environment Department. A scheme known as the Home Energy Scheme was developed upon the basis that government money would be provided to eligible members of the public, especially those on low income or in receipt of heating allowances, to enable them to improve the energy efficiency of their homes. One aspect of the scheme was to replace old inefficient heating boilers with new more efficient boilers.
9. The procedure that was adopted was that local contractors would apply to the EES for approval to install boilers under the scheme. The requirements for contractors were set out in a document provided by EES entitled "Schedule of Works". Contractors had to agree to the terms set out in the Schedule of Works in order to be eligible to be assigned specific work by EES, for which they would be paid by EES. The contractual relationship was between EES and the contractor, and the Schedule of Works was in essence the contract. Clause 3.2.4.9 of the Schedule of Works stated that:-
This was one provision in a document which with its appendices ran to some 66 pages.
10. Members of the public were entitled to apply to EES to take part in the scheme. Once the applicant was deemed to be eligible, EES would contact one of its approved contractors retaining that contractor to carry out the work and install the boiler. When the work was complete the contractor would send an invoice to EES and be paid from EES funds. The householder was not obliged to pay anything or deal directly with the contractor other than allow access to the premises and to confirm that the work had been completed.
11. The business of the Appellant includes the installation of domestic heating boilers and the Appellant was one of the contractors which applied to EES to be included as an approved contractor to carry out the installation of boilers under the home energy scheme. The company was approved by EES and it carried out the work in question on the 16 properties mentioned in the charges.
12. Application for building permission is required for the installation of heating boilers under the relevant legislation. Accordingly Bye-Law 10 of the Building Bye-Laws applies. There is an exemption for Bye-Law 10 provided in Bye-Law 15 for companies registered as members of Offtec (a trade association for heating engineers and technicians). Such members benefit from an exemption to the Bye-Law so that boiler installations carried out by them do not require building permission. It would seem by implication to be the case that the reason for control over this particular building work (boiler installation) must be to ensure the delivery of one or more of the objectives set out in Article 31(2) of the Planning Law, such as securing the health, safety and welfare of people in or about buildings, or to prevent the waste, undue consumption or misuse of fuel and energy in or about buildings, etc. By virtue of the exemption for members of Offtec, it is clear that the Planning and Environment Department does not consider that this building work is work that requires the department's specific attention as long as it is carried out by competent persons.
13. In this case the Minister, through EES, has approved the Appellant as a contractor fit to install domestic heating boilers. One would have thought that before approving any company as an approved contractor, due enquiry would be made as to the skill and competence of the persons to be approved. My starting assumption would have been that by approving the Appellant as an approved contractor to carry out work under the home energy scheme, EES in fact had expressed themselves satisfied with the competence of the Appellant. Given that EES is, or seems to be on the information currently available to me, the employer for the purposes of this contract, one would also have thought that, as employer, EES were satisfied that the Appellant was fit to carry out the work in question. This is doubly so, given that the work was to be carried out in the homes of members of the public, who no doubt relied upon EES to ensure that they only permitted competent contractors to carry out the work.
14. In those circumstances, it does seem quite extraordinary that an application for building permission should be needed from a firm such as the Appellant, which had not only been pre-authorised by the Minister (through EES) to carry out work of this kind, but specifically contracted by the Minister (through EES) to the particular pieces of work in question. I also note that paragraph 4 of the Schedule of Works contains a pricing schedule, from which it is clear that a specific hourly rate is attributable to work done in a number of particular specialisms. It seems hard to understand why an approved contractor which is a member of Offtec needs no permission to carry out building works for EES, but an approved contractor which is not a member of Offtec is paid the same rate for the job but has to pay a fee for the submission of a building application, and obtain a permit, thus reducing his profit as compared with his Offtec competitor.
15. I have also noted that paragraph 1.4 sets out the process of the home energy scheme. In the case of houses built before 1996, it stipulates 16 steps which need to be followed. Clause 6 requires that the contractor "gets permission for work signed by the applicant if owner occupier". Paragraph 9 says that EES "obtains permissions for work signed by landlords as applicable". Clause 11 provides that the contractor "can proceed with work subject to relevant permissions being in place and the contractor returning the signed the [sic] JCT contract". It does not seem to me to be reasonable to construe "subject to relevant permissions being in place" as a reference to anything other than the permissions signed by the applicant or by the landlords as applicable, and it is therefore of interest that the process of the scheme does not contemplate the application for building Bye-Law permission as described in this paragraph.
16. The procedure adopted in this case is curious in the sense that the facts have not yet been found. I am asked to make a finding now on a point of law on an assumed set of facts. The law should generally not be assessed in a vacuum. Context is everything. On the facts that have been presented to me so far as set out above, it would seem surprising that the defendant has been charged at all, and, if on these facts the matter goes to trial, and the prosecution is not stayed on the ground of abuse of process, one would on conviction expect a nominal penalty to be imposed for any breach which was found to be established; accordingly I would expect the prosecution to revisit the public interest in bringing these charges. However, I do not know whether I have been given all the relevant facts and there may be other matters, not before me, which would have an impact either on the prosecutor's decision to proceed, on any plea of abuse of process or on the penalty which might be imposed. The Magistrate, in her very helpful summary of the case for the purposes of this appeal, rightly said that it was unusual and generally not desirable for the Magistrate to state a case on an interlocutory matter. This is especially so given that the Appellant has apparently indicated to the Magistrate that, even if the appeal failed, there would be other matters which the Appellant would want to raise at trial. The drawback of this procedure is therefore that the Appellant might conceivably face three if not four court hearings to adjudicate upon its guilt or innocence in respect of the charges laid.
17. The prosecution contended before the Magistrate that the "person" referred to in Article 33 includes contractors such as the Appellant who actually carried out the building work. The Appellant contended that the person who undertakes the prescribed building work could not on these facts include the Appellant - it was either the householder who applied to EES for the work to be done, or it was EES itself who was the person who proposed to carry out the building work. In the circumstances the question put by way of case stated was whether a contractor, in this case the Appellant, could be criminally liable under Article 33 of the Planning and Building (Jersey) Law 2002 on the basis of the facts set out in the statement of case by the Magistrate.
18. The Appellant in this case was represented by Mr Martin Kane who is a co-director. He was understandably concerned about the factual position which I have described above, and, as is not unusual with those who have a personal interest in the litigation, I hope it is not unfair to say that he shows both a mastery of the relevant material before the Court and a lack of legal focus as to what precisely the appeal was about. On the latter point, he said that there were facts which were relevant to the Magistrate's decision but were not put before the Magistrate. As I had indicated earlier, that may be so, but as an Appellate Court exercising the case stated jurisdiction, any other facts which might be relevant are outside the scope of this appeal. It will be a matter for Mr Kane to raise them if the prosecution is renewed before the Magistrate, whether in the context of an application to stay the proceedings on the grounds of abuse of process or otherwise.
19. Accordingly, when Mr Kane submitted that there were three essential questions, namely why the appellant had been prosecuted, why had the prosecution continued, and who was responsible for taking these positions, he was going onto territory which was not the subject of the case stated appeal.
20. Equally, his submission that the Planning and Environment Department committed the offence and was the correct defendant was also off target for the purposes of this appeal. The correct issue identified for determination on this case stated appeal is not whether there are other potential defendants who have committed offences but whether the language of Article 33 of the Planning Law includes contractors such as the Appellant in circumstances where the facts are as they have been agreed to be for the purposes of this case.
21. It was contended by the Appellant that for the purposes of Article 33 the only people who undertake prescribed building work are those who propose it. In effect, this is a cross-reference to Article 10 of the Bye-Laws. The Appellant contended that the home owner had not proposed the work, but the Minister had proposed it. In effect the Minister was the main contractor, and the Appellant was the sub-contractor. If the Court accepted the submission that the person who undertook the work was the person who proposed it, that would allow the Court to narrow the prosecution down to the person who ought to be prosecuted. On the facts of this case, Mr Kane submitted that if one asked the home owner who had proposed the works, the home owner would certainly not say that the Appellant had done so.
22. In a nutshell, it was submitted that the Planning and Environment Department, therefore the Minister, have responsibility for the works in this case because they have retained the Appellant to carry out the work and indeed are paying for it. The Department was seeking to pass on its responsibility for obtaining building permission, and that is not delegable. It was contended that the Department are well aware of their own failures.
23. At one point it was contended that this was a malicious prosecution. Mr Kane submitted that the question of abuse of process was raised with the Magistrate in this connection as well - to that all I can say is that the appeal by way of case stated does not refer to any decision on the part of the Magistrate not to stay the prosecution on the grounds of abuse of process, and I have not found in the transcripts the relevant reference to which Mr Kane has referred. The extract from the transcripts which does contain a reference to abuse of process does not show in my view that this point has been raised and decided in the Magistrate's Court. However, for the reasons I have already given, I do not think that this is relevant to the point of law raised by the present appeal although it may be relevant in relation to arguments to be heard in the Magistrate's Court later.
24. Mr Kane added that the word "undertakes" in Article 33 could not refer to the contractor such as the Appellant because the Appellant could not legally apply for building permission in the first place.
25. In his address, Crown Advocate Jowitt conceded, as indicated above, that the charges had been incorrectly worded, and that if the matter was to proceed, an amendment of those charges would be necessary. As to whether the prosecution was a malicious prosecution, he submitted that that was a question which would have to be raised by the Appellant with the Magistrate in due course. He pointed out that EES had invited people to tender for the right to install boilers, and that the Appellant had tendered and had in fact received some £70,000 of public money. He contended that the Appellant was reminded by letter of the need to obtain a building permit, but it was not prepared to do so. In his submission the Magistrate had concluded that any number of people could be responsible under Article 33. The Bye-Laws, he said, did not create a criminal offence. The offence was created by Article 33 and he pointed out that Article 33 was adopted by the States some five years before the Bye-Laws were actually enacted.
26. It was submitted by the Crown that "undertakes" is to be given its ordinary English meaning. It was apparent, Crown Advocate Jowitt submitted, that in the world of building and construction, a good deal of work will be done by corporate bodies, and the 2002 Law cannot have sought to exclude liability on the part of corporate entities. Furthermore the Interpretation (Jersey) Law 1954 made it plain that "person" includes a body corporate.
27. It was submitted that Bye-Laws are technical pieces of subordinate legislation. A professional is expected to have knowledge of them and so compliance is best expected from professionals rather than land owners.
28. As to Article 10 of the Bye-Laws, it was submitted that the phrase "proposes to carry out" is not a defined phrase but in common English to propose to do something meant that one had it as one's plan or intention to do that thing. It was contended that there was no reason why the phrase in question should not include the actor himself - thus a person proposing to install a gas boiler would include in ordinary language the land owner who procures that it is installed, the person who makes the contract for its installation, and the installer himself.
29. The Magistrate decided that the offence under Article 33 is to undertake building work other than in accordance with building permission. She considered that Bye-Law 10 set out the circumstances in which building permission was required, and described, in terms which could apply to a number of persons, who should apply for building permission. She considered that a person who proposed to carry out the work and the person who actually undertook the work may be and often are the same person, but that this was not necessarily so. By necessary implication, she therefore decided that more than one person might be guilty of the offence of undertaking work without building permission under that Article of the Planning Law.
30. In the Magistrate's view the offence under Article 33 did not require that the prosecution prove a failure on the part of the defendant to apply for the relevant building permission. Accordingly, it was not relevant as to whether the defendant to a charge under Article 33 could or could not make application himself for building permission. The offence was complete when he carried out some work which required building permission where no such permission had been obtained.
31. I agree with the conclusions of the Magistrate although, given the nature of the argument before me, I will add a few comments of my own.
32. The offence is created by Article 33 of the Planning Law and it is in the terms set out in paragraph 3 above. It is to be noted that the offence is framed not as "the person who undertakes prescribed building work" but as "a person who undertakes prescribed building work". The use of the indefinite article contemplates by implication that the same building work may in fact be undertaken by more than one person. Let me assume, for example, circumstances where the landowner who wants a piece of work done which requires building permission, instructs his builder; and the builder decides that some elements of the work need specialist input, and hires a sub-contractor. On this hypothesis, each of the landowner, the builder and the sub-contractor is well aware that the work needs building permission and that no-one has applied for it. It seems to me that on the ordinary use of language, each one of them has undertaken the work for the purposes of Article 33 and all or any of them might be prosecuted. Such a construction also meets the objectives of the legislation, which are to be found in Article 31(2) of the Planning Law. The Bye-Laws are intended to prescribe procedures and the functional requirements of buildings in order to achieve a number of results - for example securing the health, safety and welfare of people in or about the building in question. It may be necessary to prosecute the landowner, but it may not be enough to prosecute only him - because it may be that the builder and/or the sub-contractor in the example given are known to be cavalier about the requirement to obtain building permission. It would be a perfectly appropriate prosecutorial decision to bring a prosecution against all of the three defendants in the hypothetical circumstances which are contemplated.
33. Because the offence is created by the Planning Law and not by the Bye-Laws, it is unnecessary to spend time analysing what is meant by "a person who proposes to carry out building work". There is no dispute in this case that unless Bye-Law 15 applied, this was work which required a permit. It follows that if the Appellant undertook the work, whether it was responsible for obtaining the permit or not and indeed whether it was able in law to obtain the permit or not, it would be guilty of the offence if no permit had been issued. That the Planning and Environment Minister, or any of his officials and/or the landowners in question might also be theoretically at risk of prosecution is neither here nor there. Prosecution decisions are a matter for the Centenier in the first instance and ultimately the Attorney General and once the decision to prosecute has been taken, it is then for the Court to deal with it in accordance with the established law and procedure. If in fact the Appellant were able to establish that it was not able to apply for a building permission, that could be an additional reason why the Magistrate might decide to dismiss the case as an abuse of process or impose a nominal penalty.
34. For these reasons this appeal by case stated is dismissed and the matter is remitted to the Magistrate.
35. However, in the light of paragraphs 11-16 above, I invite the Attorney General to consider further the question as to whether it is in the public interest that this prosecution continue given the probability of an abuse of process claim at some future date if it does.
36. The Appellant asserted in the course of the appeal that the prosecution was malicious. This was a serious accusation to make and, as far as I can tell on the material put before me, there is nothing to justify it. Officials of the Planning and Environment Department, whether or not working in the ECO Active Unit, are not the persons taking the prosecution decision. The decision to prosecute is taken by the Centenier in the first instance, and is subject to review by the Attorney General or his delegates. The system is structured so that the prosecutor is independent of the complainant. The person taking the prosecution decision does so in accordance with the Code on the Decision to Prosecute which can be found on the Law Officers' Department website. It is obviously not the case that there will never be circumstances where an individual decision to prosecute is taken on grounds which are so improper that one could reasonably contemplate describing it as malicious. In the present case, as I have indicated above, there seems on the information available to be every reason why a prosecutor might have decided that it was inappropriate to prosecute - and a court might well decide at some future date that the prosecution ought not to proceed. However that is a far cry from ascribing to the prosecution an intention to act maliciously. A serious allegation such as that should not be made in the absence of clear evidence and, if there is such evidence in this case, it cannot be found in the material which has been put before me.
37. Secondly, it has been suggested that in some way or other these proceedings constitute an abuse of process which brings the Court into disrepute by the judiciary allowing the Planning and Environment Department to instigate criminal proceedings against the Appellant, thus breaching its human rights with regard to a fair hearing. There is no basis for that allegation, which ought not to have been made. It is not the function of the judiciary to "allow" anyone to instigate criminal proceedings. The function of bringing a prosecution lies with the Centenier in the first instance and with the Attorney General thereafter. The court's control of the criminal process lies in the application of the usual rules, whether they be to dismiss a prosecution as an abuse of process or to conduct in accordance with established rules a trial of the matter, and if there is a finding of guilty, to impose such sentence as the court thinks appropriate. This is the court's function, and it should not be criticised for performing that function. The Appellant has decided to appeal the decisions of the Magistrate in this respect, which it is absolutely entitled to do. However, the very limited nature of the present appeal does not seem to have been understood by the Appellant. This appeal by way of case stated relates solely to the point of law which arises as to the proper construction of Article 33 of the Planning Law. It is for the Appellant to raise an issue of abuse of process, but it has not done so in this case so far, and no doubt that will be the application which the Appellant will consider next. To criticise the Court for performing the function which it is charged to perform is wrong, and I do not hesitate to criticise the Appellant for doing so.
38. Thirdly the approach taken by Mr Kane in his submissions to us was that the facts of this case drove a conclusion as to how the Law should be construed. That is not the right approach to statutory construction. Of course it is true that an absurd result on the facts will lead any court to considering whether or not the Law could possibly mean what it is contended to mean by one side or another. Indeed in relation to Article 33, the hypothetical circumstances set out in paragraph 32 above are such that it would be absurd if the Article were to be construed in the way in which the Appellant contends, namely to exonerate the sub-contractor who, in those hypothetical circumstances, was the specialist, well aware of the need to obtain building permission, and well aware that nobody had applied for it. Such a conclusion militates strongly against the construction of the Article for which the Appellant contends. The right approach is to look at the ordinary meaning of the words used in the statute and if on particular facts they are capable of leading to an injustice, as the Appellant contends is the position here, then the criminal law has other procedures which enable the Court to deal with the matter fairly and justly - such as staying the prosecution as an abuse of process or alternatively marking its displeasure at the exercise of prosecutorial discretion by imposing a nominal sanction by way of sentence.
39. I do not mean to be unduly critical of the Appellant in this case given that it is not represented by a lawyer but instead by a director owner who is unfamiliar with court processes. For one reason or another, the Court is increasingly frequently faced with litigants in person and we cannot expect such litigants to be familiar with the rules which lawyers learn in the course of their training or very early on in their careers. The judicial process gives a high degree of protection to litigants to make assertions of fact or submissions to support their case with as such assertions or submissions can objectively be justified, and the Court must adjudicate upon them. Those who are the subject of what are sometimes wild and unfounded allegations have only rarely a remedy other than to persuade the Court that the allegations are indeed unfounded. However the making of the allegations can of itself cause damage to reputation, and the Court must not allow its processes to be used unfairly. It is for these reasons that where fraud is alleged or some lack of integrity on the part of a person in the execution of his professional duties, the Court expects there to be some evidential basis for the assertion to be made, whether at the end of the day that conclusion is drawn or not. The Judicial Greffier is well placed to assist a litigant in person to ensure that assertions involving dishonesty or lack of integrity in the opposite party or in public officials are not made unless there is some evidence to support them.
