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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Therin -v- Minister for Planning and Warwick [2018] JRC 098 (01 June 2018) URL: http://www.bailii.org/je/cases/UR/2018/2018_098.html Cite as: [2018] JRC 98, [2018] JRC 098 |
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Planning - Appellant appeals against a decision made by the Minister on 5th June, 2017.
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Before : |
Sir William Bailhache, Bailiff, sitting alone |
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Between |
Mark Peter Therin |
Appellant |
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And |
Minister for Planning and Environment |
First Respondent |
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And |
Derek Warwick |
Second Respondent |
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Advocate H. J. Heath for the Appellant
Advocate D J. Mills for the Minister.
Advocate D J. Read for the Second Respondent
judgment
the bailiff:
1. The Appellant appeals pursuant to Article 116 of the Planning and Building (Jersey) Law 2002 (the "Planning Law") against a decision by the Minister on 5th, June, 2017, by which he had rejected the appeal brought by the Appellant to him, the Minister's decision thereby confirming planning permission P/2016/1593 in respect of a development at Pine Grove, Le Vieux Mont Cochon, St Helier, JE2 3JQ ("Pine Grove"). As a result of the Minister's decision and confirmation of the planning permission, the Second Respondent was given permission to demolish the existing dwelling and construct a new five bedroom dwelling with associated parking and landscaping. The Ministerial decision under reference MD-PE-2017-0051 indicates that the reason for the Minister's decision was that he agreed with the recommendation of the Inspector as detailed within his report. Accordingly the parties agreed that the Court is able to look at the Inspector's report and treat it as setting out the reasoning of the Minister.
2. I do not consider there is anything untoward with the Minister approaching the matter in this way. Under the amendment to the Planning Law adopted by the States in 2014, the function of considering planning applications is one to be performed in the first instance by the Planning Committee. A right of appeal exists against decisions of the Committee and pursuant to Article 114 of the Planning Law, the appeal comes before an inspector nominated by the Minister. The inspector has a wide discretion to deal with many of these appeals, but at all events, having heard the appeal, makes a recommendation to the Minister who ultimately determines the appeal. By Article 116(1) of the Planning Law, the Minister "shall determine the appeal, and in so doing shall give effect to the inspector's recommendation unless the Minister is satisfied that there are reasons not to do so". Where the Minister departs from the recommendation of the inspector, it will naturally follow that he must set out his own reasons for doing so. Where he intends to reach the same conclusion as the inspector but for different reasons, it again follows that he must set out those reasons for doing so. Where, however, he reaches the same conclusion as the inspector and for the same reasons, there is no requirement for him to set out all the reasons afresh and it is perfectly appropriate for him merely to adopt the inspector's reasoning.
3. Pine Grove is one of the larger more prominent buildings in the general environment of St Aubin's Bay. It enjoys a prominent and elevated position within St Aubin's Bay and is visible from Noirmont to Elizabeth Castle. The current building is an extended 20th century detached house which has had various extensions over the years. It is accessed via a private drive from Le Vieux Mont Cochon, a drive shared with the property Les Champs House, which belongs to the Appellant and sits to the north and slightly to the west of the Applicant's property. The Inspector, Mr Philip Staddon BSc, Dip, MBA, MRTPI (the "Inspector") described Les Champs House as a "potentially listed building" whereas the Appellant describes the property as a listed building. I do not think anything turns on whether the listing has or has not been completed, and I have treated the property as though it were listed, I am told on the basis of its historical and architectural interest.
4. The Inspector in his report described Pine Grove as an extended mid-twentieth century detached house set on a sizeable (3,504 square metre) elevated plot with views across St Aubin's Bay. The footprint of the existing house is 314 square metres. It is currently of split level design due to the slope of the site, with the northern elevation including a garage block, of single storey with rendered walls and pitched tiled roofs and a two storey southern elevation which includes an array of large windows, the building adjoining a terrace and a swimming pool. He described Les Champs House, the Appellant's home, as aligned to the north of Pine Grove, about 65 metres from the boundary. To the east of Les Champs House is the road and open green zone land beyond. To the west and south are residential properties although these are not clearly discernible due to the topography, hedging, trees and vegetation.
5. Pine Grove is located within the defined built-up area where there is a presumption in favour of development. It is also within the defined green backdrop zone of the Island Plan. The application proposal was described by the Inspector in his report as follows:-
"12. The proposal involves the demolition of the existing dwelling and its replacement with a five bedroom replacement house. The dwelling would be sited in a broadly similar position to the existing house but it would extend about 18 metres further to the west and include two south-facing wings, one of which would extend about 10 metres to the south of the existing house and the other just over 5 metres. The footprint of the dwelling would be 431 square metres.
13. It is intended to level and remodel the site to facilitate the construction of the two storey house and to provide a more level garden area. Internally, the ground floor would include a games room/study, lounge, kitchen/dining area, garage and gym. The first floor would accommodate the five bedrooms, three of which would have terraces.
14. The design is contemporary and includes flat roofs and extensive glazing on the southern elevation. The design is focussed on its southerly aspect, with the northern elevation including, at first floor level, high level windows and opening to serve a corridor and ancillary accommodation. External materials would include grey granite panels and white render. On the southern elevation, the walls would be predominantly faced with granite.
15. In terms of height, most of the proposed building would be set at the same height as the ridge of the existing roof over the garage, which is marginally higher than the roof ridge over the main house. A central, largely glazed section, would rise 1.36 metres above this level. As the dwelling extends westward (beyond the current footprint) it would be two storey for most of it [sic] length but the last 5 metres or so would drop down to single storey (over the pool room and part of the study/games room)."
6. The Planning Committee had approved the application at its meeting on 23rd February, 2017, which led to the appeal to the Minister conducted by the Inspector on his behalf. The Committee members had undertaken a site inspection, although it appears they may not have viewed the site from the private grounds of Les Champs House.
7. A number of matters were raised on appeal to me, but the Inspector regarded the main issues as arising out of two principal objections - those related to the Appellant's concerns about impacts on heritage, and those related to the green backdrop zone. It will be convenient to deal with the Inspector's assessment when I come onto the submissions made in relation to the present appeal in this Court. The Inspector's conclusion, however, was that, for the reasons given in his report, the appeal should be dismissed and the planning permission confirmed. I note that there is no issue raised directly as to the presence or otherwise of whether there is sufficient justification for departing from the Island Plan pursuant to Article 19(3) of the Planning Law because the Inspector did not consider that granting planning permission would be inconsistent with the Plan.
8. Article 116 of the Planning Law provides as follows:-
9. As far as I am aware this is the first occasion on which there has been an appeal to the Court under the new appeal arrangements which were adopted in 2014. As provided by Article 116(5), the appeal to the Court is on a point of law. It is not only not a full merits appeal, which was the appeal to the Minister carried out by the Inspector, but it is not even an appeal along the lines of Minister for Planning and Environment v Fairman and Hobson [2014] JCA 148, an appeal brought under the previous procedure which required the Royal Court to form its own view of the merits of the application before, allowing the Minister a margin of appreciation, it considered whether the Minister's decision had been unreasonable. The revised appeal provisions which allow an appeal to the Royal Court on a point of law only therefore now classically engage the GCHQ principles of illegality, impropriety and irrationality.
10. No question of procedural impropriety arises in the instant case.
11. Some of the grounds of appeal raised by Advocate Heath are founded upon the alleged unreasonableness of the Minister. For the avoidance of doubt, this is Wednesbury unreasonableness so named after the discussion in Associated Picture Houses Limited v Wednesbury Corporation [1947] 2 All ER 680 - a decision by the Minister which falls outside the range of responses which a Minister could reasonably adopt. It is a higher test for the Appellant to overcome than that which existed under the previous law. As Advocate Read contended for the Second Respondent, the Court should be astute not to allow a point of fact to fly under the false flag of a point of law, and one should realise that an error of fact has to become quite fundamental if it is to become an error of law. As this Court said in Dixon v Minister for Planning and Environment [2012] JRC 237A at para 15, by way of distinction between the test before the 2014 amendment and Wednesbury unreasonableness:-
12. Planning decisions are taken in relation to planning policy, the most important policy document of which is the Island Plan approved by the States. The interpretation of the Island Plan is a matter of law for the courts. The application of policy within the Island Plan is an exercise of planning judgment by the relevant decision maker, in this case the Planning Committee and, on appeal, the Minister. Of course it does happen from time to time, and it has indeed arisen in relation to this case, that a party wishes to contend for a particular construction of the Island Plan and the policies contained within it such that one can then assert that the Minister's decision was Wednesbury unreasonable. Thus it is that some submissions have been made which require rigorous analysis to ensure that the Court does justice to the jurisdiction which the Planning Law has conferred upon it.
13. The status of the Island Plan is clearly set out in that legislation. Under Article 3, the Minister is to prepare and present to the States for approval a draft Island Plan, and to keep that Plan under review. Part 1 of the draft Plan is to be a written statement of the Minister's policies in respect of the development and use of land, together with a reasoned justification of each of those policies. By Article 4(3), the policies must designate land for particular development or use, and must further the general purposes of the Law which are set out in Article 2. Part 2 of the draft Island Plan consists of such map or maps as illustrate the Minister's proposals for the development or use of land on a geographical basis.
14. One then comes to the relevant provisions in relation to the grant of planning permission which are at Article 19, which provides, in so far as material:-
15. The status of the Island Plan therefore is such that if a particular application is in accordance with it, planning permission to the proposed development must be granted. If the proposed development is inconsistent with the Island Plan, planning permission may be granted, but the Planning Committee or Minister must be satisfied that there is sufficient justification for doing so. A decision on whether or not a proposed development is consistent with the Island Plan is one of mixed fact and law; a decision as to whether there is sufficient justification for a departure from the policies contained in the Island Plan is a judgment call for the decision taker, but it is a matter of law as to what the Island Plan means and whether the decision is sufficiently reasoned as objectively justifies the departure from the Plan.
16. This approach to the Island Plan was considered by the Court of Appeal in Minister for Planning and Environment v Hobson [2014] JCA 148, where at paragraph 62, the Court summarised the position:-
17. I do not think there was any substantial dispute between the parties on the test which had to be applied, albeit each party put its own emphasis on different integral parts of the relevant test. I have adopted the test as described above on the adjudication of this appeal.
18. There is one qualification to the comments which are set out above. The process for appeal under the Planning Law is now in some respects similar to the process which applies in the United Kingdom - there is an appeal to the Minister (in the UK the Secretary of State) with a right of appeal to the Court from the Minister's decision on a point of law. The question which arose following the enactment of the Human Rights Act 1998 was whether that process of appeal was Human Rights compliant. The matter was considered by the Divisional Court and then by the House of Lords in R (on the application of Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions and other cases [2001] 2 All ER 929. It was noted in that case, as is the case here, that decisions under the corresponding statutory provisions were subject to judicial review or a statutory appeal to the Court based on similar principles, but there was no provision for an appeal to Court on the facts or the merits. In each case the essential complaint in Alconbury was that, when a decision was taken by the Secretary of State rather than by an inspector appointed by him, the Secretary of State's role in the making of policy meant that he had such an interest in the decision that he could not be regarded as an independent and impartial tribunal and that this was incompatible with Article 6 of the Human Rights Convention. Of course in some cases in the United Kingdom, the appeal on the merits is determined by the Inspector appointed by the Secretary of State, whereas in this case we have a decision on the appeal made by the Minister personally, albeit he relies upon the Inspector's report.
19. The House of Lords concluded that the impugned powers of the Secretary of State were not in breach of or incompatible with Article 6 of the Convention. The view taken by the House of Lords was that although the Secretary of State was not himself an independent and impartial tribunal when dealing with called in matters of this kind, the crucial question was whether there was sufficient judicial control to ensure determination by a subsequent tribunal. For different reasons, their Lordships concluded that the judicial review jurisdiction of the High Court constituted such sufficient review, but it is now necessary to look at how their Lordships expressed themselves. At paragraph 29, Lord Slynn said this:-
20. At paragraph 29, Lord Slynn said this:-
21. And then at paragraph 51:-
22. Lord Slynn went on to hold that even if proportionality and the review of material errors of fact are left out of account, the scope of review is sufficient to comply with the standards set by the European Court of Human Rights. Lord Slynn's views were adopted in his speech by Lord Nolan, who made two points which seem to me to be valid. The first is that, in the United Kingdom Parliament has entrusted the requisite degree of planning control to the Secretary of State, and it is to Parliament that the Secretary of State is accountable. Similar considerations apply in Jersey, especially where the Bailiff sits as a single judge, and, as Lord Nolan said, "To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic." Secondly Lord Nolan pointed out that electoral accountability was insufficient to satisfy the rule of law. He then drew the distinction between a review of planning merits and a review of the decision making process, the latter of which was fundamental to the Court's jurisdiction. Of course a review of the decision making process may involve a consideration of the planning merits if the question of Wednesbury unreasonableness comes up for consideration - nonetheless it is important to hold in mind the distinction between the two issues.
23. In his judgment, Lord Clyde was careful to emphasise that one had to look at the whole process in order to decide compatibility with the European Convention; but he emphasised also that the supervisory jurisdiction of the Court was adequate to deal with a wide range of complaints which can properly be directed to the legality of a decision. He aligns himself with Lord Slynn where at paragraph 169 he says this:-
24. Finally Lord Hutton considered that the Strasbourg jurisprudence recognised that where an administrative decision constituted a determination of a civil right, a review of that decision by a court is sufficient to comply with Article 6 of the Convention, notwithstanding that the review does not extend to the merits of the decision. He thus concluded that a right to judicial review of such a decision was adequate protection. Picking up the point in relation to political accountability, he said at paragraph 198:-
25. He accordingly concluded that a government minister could be both a policy maker and a decision maker without there being a violation of Article 6 of the Convention.
26. It is clear that the inspector is not an independent tribunal for the purposes of Article 6 of the European Convention on Human Rights. Nonetheless, in my judgment the decision of the House of Lords in Alconbury is one which, notwithstanding some criticism of it, is appropriate for application in this Island. The merits of the planning application in question will have been considered by at least three different bodies before the matter could come to a court - the Planning Commitee, the Inspector and the Minister. At every step of the way, both the applicant and any third party with locus standi to object has the ability to make representations to the decision taker. Whether to grant a planning permission in accordance with planning policies is essentially a judgment call on those policies having regard to the facts of the application - it is a policy matter in respect of which the legislature has charged the relevant decision makers with the obligation of taking those decisions. The ability of the Court, on an appeal on a point of law under the Planning Law to carry out a review of the process on grounds of illegality, procedural impropriety and irrationality is a sufficient protection of the civil rights of islanders, and I proceed accordingly. In reaching this conclusion, I have also had in mind that there is at least one material difference between the process in Jersey and the process in England and Wales. Here, the relevant policies are prepared by the Minister but are approved by the States, which indeed has the ability to amend the proposals for an Island Plan which the Minister puts forward. If it is the case, as Lord Hutton concluded, that a government minister in England and Wales can be both the policy maker and a decision maker without there being a violation of Article 6 of the Convention, the Jersey position is yet stronger because here the government minister does not make the policy - the States does. Accordingly the Minister, representing the executive, is a decision maker on appeal in relation to policies which the legislature has adopted.
27. The Appellant contended through Advocate Heath that there had been a number of policies misapplied by the Inspector in his report. In her skeleton, Advocate Heath dealt first with policy HE1, dealing with the historic environment. The relevant policy provides:-
28. The complaint here was that the Inspector had received a number of photo montages which the Appellants claimed were inadequate to judge the impact of what was proposed. The Inspector handled that by indicating that he disagreed that he was not able to make a decision on the information available - this was because he had a full set of accurate plans; he had the benefit of the scaffold profiles; he spent time at the site with the parties and allowed them to draw attention to any matters that they wished; he had viewed the site from a range of near and distant vantage points; he was well aware of the benefits, limitations and pitfalls of using photo montages and computer generated imagery and finally he was well experienced at making planning assessments both with and without the benefit photomontages. Advocate Heath submits that the Inspector does not say whether the photomontages were or were not treated as accurate - and if he thought they were accurate, why has he disregarded them?
29. At paragraph 15 of his report the Inspector says that "most of the proposed building would be set at the same height as the ridge of the existing roof over the garage, which is marginally higher than the roof ridge over the main house. A central largely glazed section would rise 1.36 metres above his level." Advocate Heath submitted that the Inspector has got the ridge heights wrong, which suggests that he does not have the expertise which he has claimed.
30. When this application was submitted it was referred to the historic environment team which reported on 9th February, 2017. That team emphasised that in any view south from Les Champs House, the only building seen would be Pine Grove and as a result any new development would have an impact on the setting of the listed building. It was suggested by the team that the key would be to ensure that the new dwelling sat no higher than the existing ridges and that the massing was carefully managed to have no greater impact. The historic environment team described Les Champs House as "A distinctive c1920's house of unusual design which retains its character and integrity."
31. I am not satisfied that the Inspector failed to appreciate the proposed height of the new building. As I have set out above, paragraph 15 of his report deals with his statement of the application proposal. He had the report of the historic environment team, which raises the question of height, and accordingly he knew that height was an issue. Advocate Heath submits that the lookout (the central section) is considerably higher than the proposed new roof and that the new roof is in fact 1 - 2 feet higher than the existing roof of the garage. In other words, she submits that the Inspector has made a mistake in saying that most of the proposed building would be set at the same height as the ridge of the existing roof over the garage. Having studied the photomontage, and recognising that there may well be limitations and pitfalls in using computer generated imagery, I am not satisfied that the Inspector was mistaken in his conclusions. Furthermore, I entirely respect his statement that he is more expert at reviewing plans than I am, and he also has been on site and has had the benefit of the scaffold profiles. In the circumstances, I do not see enough on the paperwork before me to justify a conclusion that the Inspector made a material mistake in relation to his summary of the height of the proposed building at paragraph 15 of his report.
32. I now turn to the way in which the Inspector handled policy HE1. The relevant part of his report in this respect is set out between paragraphs 42 and 55. He correctly identified that there was a presumption in policy HE1 in favour of preserving and enhancing the special interest of listed buildings and places and their settings. He correctly noted that Les Champs House had a potential Grade 3 listing and he described its characteristics. He noted the decisions of this Court in Herold (No.1) Herold v Minister for Planning and Environment and Sea View Investments [2014] JRC 012 and Herold (No.2) Herold v Minister for Planning and Environment and Sea View Investments [2015] JRC 111.and he went on to say that the statement of significance in relation to Les Champs House attached to the potential listing of the house itself rather than the extensive gardens or its history. He therefore took the extent of the potentially protected site as being the house and its present day garden curtilage. In my judgment there is nothing to be criticised in that assessment.
33. The Inspector then went on to comment that the "setting" of a listed building can be a "slippery matter" to define. He agreed that it was not just the present day curtilage, which he described as the immediate setting, but he thought that it extended to the area around the curtilage and its wider context. He was satisfied that the proposed building at Pine Grove fell within the wider setting of Les Champs House, and accordingly he concluded that policy HE1 was mandatory. I consider he was right to do so.
34. In his report, the Inspector criticised the contribution from the historic environment team on two grounds. First of all, he said it was not clear whether that team had been consulted on the full detailed planning application as submitted. Secondly he said that rather than stating that the massing should be "carefully managed to have no greater impact", the historic environment team's submission should have assessed whether the submitted proposal did or did not achieve this. I respectfully agree with those criticisms, and think that in future cases it would certainly be more helpful for the decision taker if the historic environment team could set out more clearly what documents they have seen in respect of which they are commenting, and secondly be clear as to what their judgment is on the particular document submitted rather than what the proposal ought to look like. The latter comment would be helpful to an applicant in advance of drawing up a submission, but is not so helpful to a decision taker who has to resolve whether the proposal does or does not fall within the scope of the Plan policy.
35. The Inspector then turned to the "preserve or enhance" test. He concluded that the proposal clearly did not preserve the setting of the potentially listed building, because it changed it, and new buildings would almost inevitably deliver a degree of change. However, although he considered the issues to be finely balanced, he concluded that there was a net enhancement of the wider setting because although the building would be wider and a little higher and the additional mass weighed against any enhancement, it would replace some unremarkable and dated architecture with a high quality contemporary design in suitably muted materials. It would also remove the mass of the garage block, and he considered the landscaping proposals would serve to enhance the interface between the site and the gardens of the potentially listed building and therefore enhance the wider setting.
36. Despite Advocate Heath's trenchant criticisms, it seems to me that the Inspector has faithfully considered policy HE1 and reached a view on whether the proposal accords with it. I think he was correct to treat the test as being satisfied if the proposal either preserved or enhanced the existing or potentially listed building. In reaching that conclusion, I should refer to Herold (No 1) [2014] JRC 012 and Herold (No 2) [2015] JRC 111.
37. In Herold (No.1), the third party appellant was successful because policy HE1 applied and had not been considered. The Court made it clear that it did not matter whether the listed building under consideration was actually listed or potentially listed. It also made it plain that it did not matter whether the listed building under consideration was on the development site, and there is a reference to "setting" at paragraph 18 of that judgment in these terms:-
38. In my judgment the Court's comments in Herold (No.1) in that respect continue to apply notwithstanding the revised rights of appeal, and it appears to me to be clear that the Inspector conducted the full merits appeal on that basis.
39. In Herold (No.2) it is important to note that the Court considered policy HE1, where it applied, to be mandatory. The Inspector in the current case also applied that approach. What the Court faced in Herold (No.2) was again a situation where the setting would not be preserved, as indeed is the case here. The difference, however, is that in Herold (No.2), the Court accepted that whilst the setting of another listed building would be enhanced, the setting of Seymour Cottage would not be enhanced. At paragraph 39(v) the Court concluded that the Minister acted unreasonably in approving the proposal where the setting of the potentially listed building Seymour Cottage was not only not preserved by the proposed development, but it was not enhanced either - indeed there was an adverse impact.
40. It is submitted by the Minister and by the interested party that "preserve or enhance" is an alternative test. I agree that that is so and note that that is the conclusion which the Royal Court reached in Herold (No.2) at paragraph 41 of its judgment.
41. Before leaving the question of "preserve or enhance" I would also refer to a decision of the House of Lords in South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141. In this case, the House of Lords was considering Section 277(8) of the Town and Country Planning Act 1971 which requires the planning authority, where an area is designated as a conservation area, to pay special attention to the desirability of preserving or enhancing the character or appearance of that area. Lord Bridge put the question in this way at page 146G/H:-
42. Having noted that Lord Justice Mann in the Court of Appeal had concluded that neither the word 'preserving' nor the word 'enhancing' was used in any meaning other than its ordinary English meaning and that he had concluded that character or appearance can be said to be preserved where they are not harmed, Lord Bridge went on at page 150F to say this:-
43. The judgment of Lord Bridge was agreed by the remaining Law Lords.
44. Of course, the South Lakeland case concerned a different statutory provision, relating to conservation areas, rather than the listing provisions envisaged by the Planning Law 2002 and policy HE1. Nonetheless, it appears to me that the comments of the House of Lords in South Lakeland are apposite and are of assistance in the construction of policy HE1. Essentially, this was the approach that the Inspector took as well, and I find no error of law in the exercise the Inspector conducted in relation to the application of policy HE1.
45. Both Les Champs House and Pine Grove are sited within the green backdrop zone, which the Island Plan describes at paragraph 4.93 as consisting "of hill slopes with low density residential development set amongst private gardens or natural landscaping providing a green backdrop to the urban environment. There are also important views from the higher ground down to the town roofscape in particular, as well as to the coast and sea beyond." Policy BE3 is then expressed as follows:-
46. The Inspector considered this policy between paragraphs 28 and 41 of his report. He noted that the appeal site was located in the defined built up area and also within the defined green backdrop zone and he identified policy BE3 as applicable. He considered that there was scope for misunderstanding the interplay between policies SP1 and the supporting housing policy H6 in relation to special strategy for concentrating development in the built up area, and the additional restrictions imposed by policy BE3 in the green backdrop zone. He concluded that although these various policies could be seen to be pulling in different directions, there was no inherent conflict and they just needed to be assessed together. Accordingly in his judgment the planned objective of maximising development in the built up area was tempered and mediated by the over-riding landscape considerations in the green backdrop zone, and this amounted to good sophisticated planning.
47. The Inspector stipulated three specific criteria to assess under policy BE3:-
(i) The first test requires that the "landscape remains the dominant element in the scene and where the proposed development is not visually prominent or obtrusive in the landscape setting".
(ii) The second test requires that existing trees and landscape features are retained.
(iii) The third test requires satisfactory landscaping proposals.
48. In my judgment the Inspector correctly construed policy BE3. A judgment call falls to be made as to whether, if the proposed development goes ahead, the landscape remains the dominant element in the overall setting such that the proposed development is not visually prominent or obtrusive. That being so, I need to consider whether, in his assessment, the Inspector has reached a conclusion which could reasonably be reached.
49. The Inspector noted that the bigger building would involve the reduction of a limited area of green backdrop. He considered it limited because it related to the approximate 18 metres of expansion to the west of the existing house. Offsetting the greater size in his view was the flat roof design and muted materials, notably the use of grey granite on much of the south facing walls. That could be compared with the existing property which, with its light painted render and terracotta tiled pitched roofs, he considered was quite prominent in the landscape. He concluded that although the proposed building was bigger its presence would not unduly diminish the landscape character of the green backdrop zone and that the landscape proposals were of a good standard and well thought through, with some additional screen planting and reinforcements to the northern boundary, the south steep sloping côtil and the new bank which would be formed to the south of the lawn and the pool.
50. Advocate Heath contended that this was not sufficient. The new development would not show a building broken up by trees or other soft or hard landscaping - instead there would be one large unbroken and oppressive mass of building. She submitted the 'modern' design would be incongruous and a major component of the landscape. She also submitted that the effect of paragraph 4.93 of the Island Plan, which is the introduction to policy BE3, was to create a right to a view ("there are also important views from the higher ground down to the town roofscape in particular, as well as to the coast and sea beyond"). This was not dealt with by the Inspector in his report, and I should address it.
51. It is well settled that unless there is some specific covenant affecting the land in question, Jersey customary law does not provide a right to a view. Some of the customary law provisions may have that result, but that has never been recognised as the rationale for those provisions. To accede to Advocate Heath's submission would therefore be to conclude that the effect of introductory remarks at paragraph 4.93 of the Island Plan 2011 of themselves, created a new right upon which Islanders could rely, not in every case, but only where their neighbour proposes a development which required a planning permission under the Planning Law 2002. The right would be ultimately justiciable in the Court but only where the planning committee or, on appeal the Minister, had ignored it. I reject that approach. I do not think it is credible that it can have been intended that the combination of Article 19 of the Planning Law 2002 and paragraph 4.93 of the Island Plan 2011 would create a right to a view which hitherto has not been recognised.
52. Advocate Heath also submitted that the Inspector had conflated plan policy BE3 with plan policy GD5. The latter policy is in these terms:-
53. The submission made by Advocate Heath was that the Inspector failed to take into account the possibility of applying policy GD5 and improving thereby a blot on the landscape. Furthermore he did not identify the view and vista which he should have taken into account under GD5.
54. What the Inspector did in relation to this policy was as follows:-
55. Policy GD5 is a general development control policy. It is there because it is recognised that new development can have a significant visual impact upon important skylines, views and vistas. As paragraph 1.19 of the Island Plan makes plain, the policy is there to ensure that the decision taker considers the widest visual impact of development proposals in order to protect and manage change to these aspects of the Island's character appropriately.
56. I accept Advocate Heath's submission that it does not follow that because there is no breach of policy HE1 or policy BE3, there is no breach of policy GD5. However, it also does not follow that the facts which are relevant to considering any alleged breach of policies HE1 and BE3 will not be also relevant to policy GD5. In my judgment, that was all the Inspector meant by his comments in relation to this general development control policy. I am also very conscious of the need to avoid what has been described in South Lakeland DC at page 148 paragraph H, namely "Excessively legalistic textual criticism of planning decision letters". As Lord Bridge said, that is a course to be strongly discouraged. One needs to look, of course, at the ordinary and natural meaning of what the Inspector has said in his report, but that report is not a piece of legislation crafted by a law draftsman. All I take from the paragraphs of the report which I have mentioned is that the Inspector did not consider that the proposed development would have a seriously detrimental impact on the skyline, views or vistas. He was right to consider whether it did have that impact and concluded that it did not, and it seems to me that that was within his margin of appreciation. It was a judgment call for him to make, as Advocate Mills contended.
57. Advocate Heath submitted that policy GD5 includes a requirement that where the setting of listed buildings is obscured, there is a breach of policy GD5 and therefore the proposal will not be permitted. In my judgment that is to misconstrue policy GD5. The central thrust of the policy is that the decision taker must consider whether the proposed development has a seriously detrimental impact on the listed building, whether by virtue of its siting, scale, profile or design, and as a consequence its effect upon the setting or obscuring of the setting. It remains nonetheless the key question as to whether there is a seriously detrimental impact of the proposal on the listed building and to that extent, there is a degree of overlap between policy HE1 and policy GD5.
58. For these reasons I see no error of law in the approach with the Inspector took in relation to policies BE3 or GD5.
59. Policy NE1 is concerned with the conservation and enhancement of biological diversity. It is in these terms:-
60. Policy NE2 is in these terms:-
61. The introduction to policy NE2 at paragraph 2.33 of the Island Plan refers expressly to the 2000 Law, which provides protection for scheduled plants, birds and animals as well as their nests or dens. The paragraph in the plan indicates that the presence of a protected species will be a material consideration when considering proposals for development which, if implemented could cause significant harm to that species or its habitat.
62. The Inspector dealt with this at paragraphs 64 - 67 of his report. He noted policies NE1, NE2 and NE3 and that the Appellant had argued that inadequate consideration had been given to these policies, and in particular to the impact on legally protected species. In the material parts of his report, the Inspector then went on to say this:-
63. Advocate Heath does not argue that this is a protected site, but she does submit that there is a breach of policy NE2 and she referred to the ecological report, which is a lengthy document. Table 1 shows a summary of ecological survey results. It noted that there were no key habitats within the core development area and that habitats with ecological value would be retained and would not be impacted by the proposed development. The presence of a common toad was observed as also of a single common pipistrelle bat, which had emerged from the ridge on the northern elevation of the garage extension of Pine Grove. The report noted this was an occasional or transitional roost for common bat species and it was consequently considered to be of low conservation value. The report then went on to describe a species protection plan which provided mitigation measures which would ensure that the proposed development could continue without a breach of the 2000 Law.
64. Advocate Heath submitted that policy NE2 and the 2000 Law were inextricably linked and she referred in particular to Article 6(1) of the said law which provides as follows:-
65. Although there is power in the Minister to grant licences under Article 16 which would authorise the doing of something which would otherwise constitute an offence, there are restrictions on when such licences can be granted, as found in Article 16(2) and 16(3) of the same law which is in these terms:-
66. By Article 19(3), any person who knowingly or wilfully aids, abets, counsels, causes, procures or commands the commission of an offence under that law is liable to be dealt with, tried and punished as a principal offender. Advocate Heath contends that the Minister is a "person" for the purposes of Article 19(3), and that by sanctioning the proposed development in the knowledge that it will destroy the habitat of protected species amounts to an error of law.
67. In response to this, the Minister through Advocate Mills contends that this is not an arguable ground of appeal. The planning permission is solely permissive and addresses the requirements for planning permission only. Accordingly it does not overrule the requirement to obtain any other consents or permissions, nor does it overrule the obligation to act in accordance with the 2000 Law.
68. I accept these submissions made by Advocate Mills and by Advocate Read on this point. The issue of the 2000 Law needs to be tackled separately from the granting of planning permission and policy NE2. Having said that, it does seem to me that the 2000 Law may well cause significant difficulties if this planning permission were to stand and be implemented and no doubt those engaged in completing that work will need to pay the closest attention to it. That is not a matter for the Court, however, on this occasion.
69. The next criticism made concerns policies GD1 and SP2. Policy SP2 is in these terms:-
70. There used to be a general development control policy namely GD2, which concerned the demolition and replacement of buildings. That policy has been deleted from the Island Plan following the review in July 2014.
71. Although the matter was not covered in oral argument, the Appellant contended before the Inspector and in the skeleton argument before me that to allow the existing building of Pine Grove to be demolished breached the strategic policy SP2 - and in particular, no consideration appeared to have been given to the possibility of reusing that building and adapting it. Furthermore policy GD1 was said to require that development proposals would not be allowed if a building would be demolished and was capable of being repaired or refurbished.
72. Policy GD1, which has not been abandoned, is in these terms:-
73. The Inspector dealt with this at paragraphs 68 and 69 of his report:-
"68. The appellants question whether the proposal accords with strategic policy SP2, which requires new development to be resource efficient in terms of reusing existing land and buildings. They consider that Pine Grove could be renovated and remodelled.
69. That may be the case but, following the deletion of policy GD2 (which presumed against demolition of existing buildings), I do not consider that policy SP2 stifles appropriate replacement dwelling proposals. Pine Grove is described, fairly in my view, as an 'unremarkable' building. Its replacement with a contemporary more energy efficient home does offer some support to the underlying SP2 objective and, perhaps just as relevant, the Island Plan's objective of raising the standard of design set out in policy SP7."
74. In my judgment, the Inspector erred in his approach to policy SP2 in that although he raised policy GD1 in other parts of his report, he does not consider it in conjunction with policy SP2. Instead he has approached the matter by assuming that because policy GD2 which presumed against the demolition of existing buildings has itself been deleted, policy SP2 should not be seen as inhibiting replacement dwelling proposals. Reaching that conclusion is my judgment disregards policy GD1 1.(a), which, in particular, requires that a building which is capable of being repaired or refurbished should not be replaced. The context of policy GD1 is sustainable development and efficient use of resources, and SP2 clearly has to be read alongside this part of GD1. In her skeleton argument, Advocate Heath rightly refers to paragraph 2.12 of the Island Plan strategic policy, which highlights the need to make wise and efficient use of land, energy and buildings. Whilst that paragraph may be seen to be primarily addressed to the efficient use of existing buildings in preference to the development of green field sites, and that consideration does not have any really direct relevance in the present context, there is nonetheless a clear indication that planning policy should have regard to whether or not a serious examination has been made of the potential for re-use or adaption of an existing building before permission is given for its demolition.
75. What I take from paragraphs 68 and 69 of the Inspector's report is that he probably accepts that Pine Grove could be renovated and remodelled, no doubt to make it more energy efficient. In my judgment, the Inspector was right to reach the conclusion that policy SP2 did not inhibit demolition, because that policy appears to me to be more directed at the way in which new development should take place, not whether it should take place. Where, however I find the Inspector's report falls down is that he does not address the relevant part of policy GD1. This is of particular importance given the very great increase in the footprint of the proposed new building.
76. I have asked myself whether this is a material issue in the context of this development. Policy GD1 is a general development control policy. One might take from that description that it is a high level policy, and it is designed to meet the general development objectives which are set out separately, amongst which is achieving a more sustainable form of development. That perhaps should be seen against the knowledge that the demolition of buildings unquestionably will generate a significant amount of building waste, not all of which will be reusable. Something has to be done with it, hence the reclamation schemes that have taken place on the south coast during the last 50 years. Set alongside that is the proposed construction of what will be a very substantial building indeed with all the demands on resources which that will entail. This all prompts the question as to whether the balance lies in approving this particular application notwithstanding the pressure on resources which approving it will create, or refusing it. I absolutely do not express a view as to where that judgment call should lie. It is a matter for the Minister, but it seems to me that it is an important question which is prompted by the Island Plan policies, and has not been addressed. It is obvious that the Appellant does not particularly rely upon this plan policy as the principal ground of objection, because it does not directly affect him - the development does, but this particular ground of objection is a general one which addresses the efficient use of resources in the Island. I heard no argument about this particular point from counsel in this case and I did not think it would be right to resolve the appeal without doing so. I held a further hearing on the basis that I was minded, subject to the submissions to be made, to the view that the appeal should be allowed to the limited extent that the permission be set aside for reconsideration by the Minister on the basis that he should consider whether there was a sufficient justification to grant permission notwithstanding the effect of policy GD1.1(a) and its connection with policy SP2.
77. At the further hearing, Advocate Mills for the Minister and Advocate Read for the Second Respondent sought to persuade me that the Minister's determination should stand on the basis that:
(i) The issues of GD1 and SP2 were before the Inspector;
(ii) There were sufficient facts before the Inspector to allow him to consider whether Pine Grove was capable of being refurbished or remodelled;
(iii) The Inspector took into account the relevant facts and policies and disregarded irrelevant facts and policies. It was said that there was no point of law in so far as it was asserted that the grant of planning permission was inconsistent with policy GD1.
78. Advocate Mills also submitted that I could have regard to the evidence which was before the Inspector to determine whether Pine Grove was capable of refurbishment and remodelling. The thrust of that argument appeared to me to be that there was only one conclusion which the Inspector could reach on the facts, and that therefore there was no point in my remitting the matter to him for consideration. This point too was adopted and expanded upon by Advocate Read.
79. Both counsel made the point that virtually any property was capable of being refurbished or remodelled provided that enough money and resources were spent. Advocate Read submitted that in construing policy GD1, it was important to give the policy its ordinary and natural meaning, and it simply cannot be the intention behind the policy to stifle all redevelopment and require property owners to refurbish any existing building whether it is economic to do so or not.
80. Advocate Mills contended that the Inspector had made no error of law in his construction of the effect of policy GD1, and he referred to the amendments made by the States on the recommendation of the Minister in 2014.
81. Although, as I indicated, I had reached a provisional conclusion on the substance of whether the Minister/Inspector had misdirected themselves, the additional hearing has enabled counsel to advance arguments on the point which I ought now to deal with.
82. I have referred at paragraph 73 above to the Inspector's comments at paragraphs 68 and 69 of his report. Advocate Heath was correct to submit that at no stage did the Inspector refer to policy GD1.1(a) in the context of a policy around sustainable development. The only references to policy GD1 come at paragraphs 58 and 59 of the Inspector's report which address quite different concepts. That of itself suggests that the Inspector did not consider policy GD1 in the context of sustainable development; but with particular regard to the demolition of existing buildings. When one asks why that should be so, it seems to me to be apparent from paragraph 69 of the report that the Inspector considered that the deletion of policy GD2 no longer required him to consider in the context of sustainable development the question of demolition or re-use of existing buildings. Indeed, on behalf of the Minister Advocate Mills submitted that was the correct construction to advance.
83. Policy GD2, before it was deleted, provided as follows:-
84. In my judgment policy GD2 contained a mandatory set of requirements, and I think it was right to refer as the Inspector did to that policy containing a presumption against the demolition of existing buildings which were capable of being re-used. Indeed paragraph 1.8 of the Island Plan 2011 indicates that the Minister intended to promote a culture of re-use of buildings rather than demolition and rebuilding. It was said that re-using the Island's buildings will usually be more sustainable and produce less construction waste for landfill. Existing buildings contained embodied energy represented by the energy used to make the materials from which the building was constructed and the energy required to undertake the building of it. Accordingly at paragraph 1.9 of the 2011 Plan, there is the reference that:
85. The Minister's briefing paper issued in July 2013 on policy GD2 indicated that by adopting an absolute presumption against the demolition of a building, there was a lack of flexibility. It was also said that it was very difficult to measure the sustainability of development projects, or more specifically to appraise the relative sustainability merits of new build and refurbishment options. As a consequence, it was thought that the sustainability test carried little weight and effectively was being overlooked by both applicants and decision makers. Accordingly the Minister sought to remove policy GD2 from the Island Plan.
86. It is interesting to note that in the report to the Minister following a public enquiry as to that proposed change, the inspector (Mr Chris Shepley, assisted by an assistant inspector Mr Alan Langton) noted that the intention of policy GD2 was to promote a culture of re-use of buildings rather than demolition and rebuilding, and that this had caused difficulties in practice which had led to the Minister's proposal. The Inspector noted furthermore that the Minister had drawn attention to the fact that all proposals would continue to be subject to consideration under policy GD1 - General Development Considerations, which set out a wide range of safeguarding requirements.
87. The recommendation that the Minister proceeded as he intended followed immediately the comment at paragraph 2.10 of the Inspector's report which was in these terms:-
"In our examination of the then draft Plan in 2010 we were supportive of the introduction of policy GD2 and remain so regarding a general principle to consider retention and refurbishment as an option before embarking on demolition and replacement ... On balance, and combined with a proper exercise of discretionary decision making with regard to the merits of individual applications in the light of other planned policies, we conclude that the Minister has made the case for omitting policy GD2."
88. The removal of policy GD2 means that that policy no longer exists, but it does not mean that one should ignore references to demolition of existing buildings which appear in other policies. Indeed, policy GD1.1(a) was itself amended in 2014 with the revisions to the Island Plan which led to the exclusion of policy GD2. The States therefore must have contemplated that what was left of policy GD1.1(a) remained a relevant planning policy. If it is correct to say that there is no longer a presumption against the demolition of existing buildings, it is in my judgment not correct to say that policy GD1.1(a) can therefore be disregarded; I would prefer to describe that policy as a light presumption against demolition - if a building is capable of repair and/or refurbishment, a proposed development which involves its demolition will not contribute to a more sustainable form and pattern of development in the Island. At that point, the different policies referred to in GD1 need to be balanced and a judgment call made as to where that balance comes down.
89. The Inspector seems to have formed the view that because policy GD2's presumption against demolition had been removed, policy GD1.1(a) did not need to be considered. The issue for him appears to have been only whether policy SP2 was met - was the new building efficient? That was undoubtedly a relevant question but there was a further question which he did not address, which is qualitatively different. That question is whether the efficiency of the new building more than balances the adverse effects on sustainable development by demolishing an inferior building that could be refurbished or repaired, if it could.
90. The Minister and the Second Respondent suggest that he did in fact consider this in the context of his report. I have read that report carefully and I cannot reach the conclusion that he has. I recognise that one must allow a proper margin of appreciation to the writer of a report of this kind - he is not a draftsman writing legislation where one expects complete provision to be made, and it may sometimes be possible to fill in the gaps. However, where the report does not on its face indicate that the right question has been considered, it does not seem to me that it is appropriate for a court to make the assumption that it has. Indeed, for all the reasons given, it appears to me that the Inspector did not consider the question which I have concluded above as the relevant question; and that while he did make an assessment of the sustainability of the new building, he did not put in the balance the question of sustainability in the context of demolition of an existing building.
91. I put to Advocate Read the possibility that, hypothetically, a very wealthy man might buy most of St Helier and decide to replace all existing buildings with new buildings which were of the highest quality in terms of modern environmental sustainability. If it were the case that policy GD1.1(a) were not to be considered in terms of sustainability, all the waste that flowed from the demolition of the existing buildings would have to be tackled. Advocate Read, rightly, conceded that that would be absurd; in other words, that concession amounts to saying that there has to be a balance of the sustainability of what is proposed against the sustainability of refurbishing or renewing what is currently there. The Inspector's report does not show any indication of that consideration being given.
92. Advocate Mills and Advocate Read submitted that there was really no conclusion that could be drawn from the expert evidence before the Inspector, other than that the building was not fit to be repaired or renewed. In essence that was to ask me to carry out the work which in my judgment is for the Minister. I do not take it as obvious that there is only one answer to that question. I was urged by all counsel to the view that policy GD1 needed to be considered holistically with the other policies in the Island Plan, and I agree with those submissions. It follows that a balancing exercise needs to be carried out as to whether compliance with policy SP2 justifies a conclusion that permission should be given notwithstanding policy GD1.1(a). In that context it is not enough to say that a proposed development complies with policy SP2. The issue is the balance between that policy and policy GD1.
93. For these reasons, I consider that the decision of the Minister, relying as he did on the Inspector's report, cannot stand and the permission should therefore be set aside and the issue returned to the Minister for further adjudication. He will need to reach a view on the question as to whether the proposed new development complies with GD1.1(a) and in doing so will have to consider:-
(i) Whether the existing building is capable of being repaired or refurbished; and if so
(ii) Whether the proposed development makes such efficient use of resources for the purposes of policy SP2 that there is no breach of policy GD1.1(a); or
(iii) That if nonetheless there is a breach of GD1.1(a), then in accordance with Article 19 of the Planning Law, there is adequate justification for departing from this policy in the Island Plan.
94. I now add some further remarks in connection with the question what Advocate Read described as the capability test - whether the building is capable of being repaired or refurbished - in the light of his invitation that I do so.
95. First of all, I accept that policy GD1.1(a) does not require that a building should be repaired or refurbished where it is uneconomic to do so. In principle, I accept the proposition that nearly any building is capable of being repaired or refurbished, and that it is just a question then of how much money one is prepared to throw at that particular job. Spending that money does not however necessarily make it an economic proposition. There is no doubt, for example, that where a building will cost £x to acquire and £y to repair and/or refurbish, it is uneconomic to do so when its value at the end of that work is less than £x + £y. I regard the question as to whether it is uneconomic to repair or refurbish a building as being a relevant question for the purposes of reaching a balanced view on the application of policy GD1.1 including all the policies referred to in it, but it is not the only question.
96. Advocate Mills submitted that one should recognise that developers need to pay for the disposal of waste, and that therefore the application of policy GD1.1(a) would almost be self-regulating - developers would not in practice demolish a building which was capable of being repaired or refurbished because the cost of doing so in terms of waste disposal was an additional part of the economic cost of whether it was worth it. I do not accept that submission. The value of any particular building, with its grounds, is not simply a question of what its replacement cost would be; the market value of a property depends upon what the market is prepared to pay for it, and, at the end of the day, the market will pay what a single potential buyer in the market is prepared to pay. Any number of considerations personal to the proposed purchaser will be relevant at that point. Some people will have a particular desire for a property overlooking Elizabeth Castle; others for a property overlooking St Ouen's Bay, and so on. I do not say that the market value of the property will be directly relevant to whether or not planning permission should be given. There is no rule that the greater the value of the property, the more likely a planning permission is. Nonetheless, market value is relevant to the question of whether a building can be repaired or refurbished economically. My conclusion is that the fact that a developer has to pay for waste disposal is not one which diminishes the importance of policy GD1.1(a), because there is a finite ability in the Island to cope with the waste generated by the demolition of buildings. As I have indicated above, the difficulties of coping with such waste have led to a number of reclamation schemes south of St Helier. I consider policy GD1.1(a) to be conceived as part of the balance preventing or at any rate delaying the need for a further substantial reclamation scheme or other solution to the problem, whether that be the exporting of waste to the extent that it is possible, or the flattening of valleys or whatever solution might be found.
97. Advocate Mills further submitted that the design statement which will be part of the approved documents for the purposes of any planning permission describes how "materials generated by the demolition process will be re-used on site. Any materials not capable of being re-used will be assessed and directed off site for appropriate recycling, re-use, energy recovery or disposal." This extract comes under the heading of GD1 - General Development Considerations - in the overall design statement. I accept that that statement may be relevant to the ultimate judgment call which the Minister needs to make in relation to this application. What I do not believe I have the ability to do, as at present advised on the documents which are before me, is to make that judgment call myself.
98. Advocate Mills also submitted that the only evidence before the Inspector in relation to whether or not demolition was the only viable option was that of a report by Ross Gower Associates and a report by Henderson Green. His submission was that the inspector had to go on the evidence which was before him, and as no other evidence was before him, he was bound to conclude that demolition was the only viable option. Both reports were written for the Second Respondent in support of the planning application. In its summary, Messrs Ross Gower said this:-
"4.1 The property is a dated bungalow 1970s structure with an 'eastern wing' housing the garage/games room and bedroom to the lower semi-basement flat. The property has had little or no upgrading since construction and appears dated and tired.
4.2. There are a considerable number of small-medium sized cracks to the external cavity wall envelope which have not been repaired/redecorated resulting in damp ingress to the building fabric. In places, inadequate surface water discharge via gutters has exacerbated the problem.
4.3 The internal layout, whilst probably considered state of the art in the 1970s, is poor with a considerable waste of usable space evident throughout. The attic is poorly insulated, of dubious structural integrity and offers limited storage space as a consequence of low headroom and a shallow pitched roof.
4.4 Therefore we feel that upgrading and extending the property is unrealistic and that the only option which makes efficient use of the site is to demolish the existing house and construct a new dwelling to meet present day criteria."
99. The reference to the attic being of dubious structural integrity is a reference to a form of carpentry construction of the rafters which, whilst acceptable in the 1970s, would not comply with current bye-law and British standard requirements. Interestingly, at paragraph 2.7, having referred in the earlier paragraphs to an inefficient layout, damp penetration and the same building defects which appear in the summary and conclusions at paragraph 4, Messrs Ross Gower say this:-
"Therefore, it is unrealistic that the present house could be cost-effectively upgraded to present day Jersey building bye-law standards to produce a quality residence lasting a further 60 years and we therefore conclude that demolition is the only viable option."
100. The difference between the executive summary of structural findings at paragraph 2.7, and the summary and conclusions at paragraph 4 is the requirement that "a quality residence" should be produced. In other words, this evidence is premised upon a completely understandable desire on the part of the developer to produce a residence which is of a different quality than that which exists at present. It appears to me that making a judgment call on the viability of repair and refurbishment for the purposes of policy GD1 of the Island Plan involve a judgment call on the desirability of a quality building in this location having regard to other Island Plan policies in the context of the balancing exercise required by policy GD1.
101. Messrs Henderson Green, consulting engineers, produced their report on behalf of the Second Respondent to consider the mechanical services which exist at present. Their conclusion was that the entirety of the heating, hot water and associated distribution was in need of complete replacement or at least significant updating and remedial works. They also considered the fuel storage should be moved outside the building and replaced with a twin-walled tank with maintenance access around all sides. The conclusion was in these terms:-
"The mechanical services within the dwelling in general are very dated and are well past their design life. The inefficiency and heat losses through pipework due to missing/no insulation in ventilated voids of the building are also contributing to poor performance of the heating system and increasing costs and energy in use."
102. It appears to me that that is evidence which can be taken into account, and it is a matter for the Minister to determine where the balance lies in resolving whether this property is sensibly capable to being repaired and/or refurbished.
103. I add however that I do not think that the Inspector is limited to the evidence of Messrs Ross Gower Associates and Messrs Henderson Green. As I have indicated above, I am not satisfied that the Inspector applied the right test in looking at policy GD1. When he applies the right test, he will no doubt wish to receive submissions from the Appellant who may or may not have his own experts; and the Inspector will no doubt also apply his own skill and expertise to the issues which face him for adjudication. From my lay perspective, on the strength of the report I have seen, I would be unsurprised if he reached a conclusion that Messrs Henderson Green had accurately summarised the position in relation to mechanical services - but this will be a matter for the Inspector, as is equally for him the question which flows from a factual conclusion as to what is necessary for refurbishing or repairing the property in the context of then balancing the other factors which policy GD1 requires to be considered. What one cannot ignore, which is why this balancing exercise is important, is that this is a very substantial proposed development on an existing site, increasing the footprint of the dwelling by approximately 33%. It will be a very sizeable building indeed and the pressure on resources both to construct the new building and to cope with the waste from the old building must go into the balance with all the other factors which policy GD1 requires to be considered.
104. Finally, I was informed by Advocate Heath that the hearings before the Inspector are not recorded. She considered that perhaps they should be recorded and she invited me to comment. In my judgment, recording all such hearings would considerably add to the expense of the appeals process and while I can see that on some occasions it might well be convenient to have recordings made, I would be very unwilling to lay down a firm rule that this should be done. It appears to me that a more sensible approach might be for parties to a hearing before the inspector to request that the hearings be recorded, and at that point there can be a debate before the inspector, who would adjudicate upon it, as to who would be expected to bear the cost of such recording.
105. For all these reasons, the appeal is allowed and the application is remitted to the Minister for reconsideration of the proposed development against policy GD1 in the light of the comments in this judgment. I have been urged at different points by all counsel to indicate that the Island Plan needs to be looked at holistically, and I accept that approach. Clearly it would be inappropriate for the parties to be permitted a repeat of all the arguments which have been considered in this judgment, but that is not to say that in the overall balance of policy GD1, some of the points which have been made in this judgment on other policies will not be relevant. That will be a matter for the Minister.
