Committee of Inquiry to examine the operation of third party planning appeals in the Royal Court (up to 31st March 2008)

STATES OF JERSEY

COMMITTEE OF INQUIRY TO EXAMINE THE OPERATION OF THIRD PARTY PLANNING APPEALS IN THE ROYAL COURT

(UP  TO 31ST  MARCH 2008):

FINAL REPORT

Presented to the States on 24th February 2009

by the Committee of Inquiry to examine the operation of third party planning appeals in the Royal Court (up to 31st March 2008)

STATES GREFFE

TABLE OF CONTENTS

Committee of Inquiry – Third Party Planning Appeals

20 February, 2008.

To the President and Members of the States of Jersey

This Committee of Inquiry was appointed following a proposition adopted by the States on 13th May 2008.

The report analyses the first year of operation of the Third Party Appeals process. In addition, it lists the Appeals so far and considers the issue of why this provision remained in limbo for so long.

We have, within the constraints of both our Terms of Reference and the procedures set out in the Law, made recommendations. We do not exclude and, in fact, recommend a more fundamental review after a further period of time. We have proceeded though on the evidence before us, given clearly and honestly, which leads to recommendations for the present and a way forward to strengthen the system in the future.

The body of the Report is divided into 5 Sections:

Section 1 I n tr oduction

Section 2 P l a nning and Building (Jersey) Law 2002 Section 3 P l a nning Application Process

Section 4 T h i rd Party Appeal Process

Section 5 R o y al Court.

On behalf of the Committee, we wish to express our thanks to the Deputy Greffier of the States, our temporary Clerk, Nat Guillou, and other staff at the States Greffe; also to the witnesses and officers of the Planning Department for the way in which they assisted us with our work.

We record our special thanks to our Clerk, Jane Aubin.

CHAIRMAN

REPORT

Executive Summary

In 2001, Deputy C.J. Scott   Warr en of St.  Saviou'rs amendments to include a Third Party Appeals provision in the then Draft Planning and Building (Jersey) Law  200- were adopted. It was anticipated, by the Deputy , that this provision would give an aggrieved third party an accessible and affordable means of appeal against a planning permission. However, the later removal of the Planning Appeals Commission from the Planning and Building (Jersey) Law 2002 and the introduction of more informal Royal Court proceedings marked a significant change in the way that the Third Party Planning Appeals system could operate. Witnesses testified to the problems and pressures that this created.

The Deputy also brought amendments that limited the right of appeal, as the full-scale provision was seen as being too expensive to introduce. As will be seen from the following report, the actual operation of the system, since 31st March 2007, has not proved to have been as accessible or affordable as was intended; further, the number of Third Party Appeals has been much fewer than was anticipated.

Deputy Scott Warr en, prompted by expressions of public concern about the effectiveness of the Third Party Planning Appeals process, sought approval from the States to urgently review its operation; hence the establishment of this Committee of Inquiry.

The Committee received a wide variety of submissions. The comments came from individuals with personal experience of the process from the point of view of potential or actual appellants, as well as from officers of the Judicial Greffe and the Planning Department, together with senior government officials.

These comments confirmed the belief that would-be appellants found the process to be complicated and potentially prohibitively expensive, contrary to what they had been lead to believe was the intention of the compromise process that eventually had been reached.

There was criticism of the restricted eligibility to appeal and of the grounds on which the decision could be contested. Initially it was intended that appeals would be reviewed on the full merits of the case, but this was replaced by the test of reasonableness' in the Royal Court.

The Association of Jersey Architects, on the other hand, shared the view of the Bailiff and the Attorney General that a system of Third Party Appeals was not desirable.

Although officers of the Planning Department gave personal opinions that were sympathetic to the position of potential appellants and saw areas where the process could be improved or clarified, several witnesses considered that it was too early to form an opinion as to whether or not the process was working.

The Committee concludes that, whilst there are understandable grounds for amending the Third Party Planning Appeals system, as currently structured, the unexpectedly small numbers of cases that have come forward to date means that any fundamental recommendations for immediate change would be premature.

It therefore makes the following interim recommendations to mitigate the current situation, recognising that a further examination of the situation should take place once adequate experience of the process has been gained.

Recommendations

1. W E RECOMMEND that, after a period of 3 years has elapsed from the date of this report, a further independent review should take place to reassess whether the system is fulfilling its intended aim.
2. W E RECOMMEND that, at the next review, the following areas should be reconsidered –

• The 50 metre rule (see paragraphs 4.6.2(c)(ii) and 4.9.5).

• The definition of interest in land' and resident on land' (see paragraphs 4.6.2(c)(i) and 4.9.5).

• The extension of Third Party Appeals to including representation from general or specific environmental and heritage interest groups (see paragraphs 4.7, 4.9.4 and 4.9.5).

• The introduction of a full-merits' based appeal in planning matters as opposed to the current test of reasonableness' (see paragraphs 5.4, 5.7.9 and 5.7.10).

3. W E RECOMMEND that more appeals should be decided on written submissions as this reduces the administrative burden on all parties, reduces the fear of going to Court, minimises the costs and assists with a speedy resolution of the appeal to the benefit of the applicant, appellant and Minister (see paragraphs 5.2 and 5.7.7).
4. W E RECOMMEND that officers of the Planning Department and the Planning Applications Panel should continue to strive to make the planning application processes even more transparent and address issues, such as third party objections, at an early stage (see Section 3).
5. W E  RECOMMEND that the Planning Department and the Judicial Greffe continue to co-operate as now in relation to providing assistance to would-be appellants. The Committee alsoRECOMMENDS that any guidance is made available in hard copy in both departments (see paragraph 4.9.6). The Committee acknowledge the efforts of the Judicial Greffe in compiling, over the last few months, the comprehensive Guide to Third Party Planning Appeals. However, urgent consideration should be given to seeking to make the Guide more user-friendly for the ordinary citizen, unfamiliar with court proceedings (see paragraphs 4.3.10 and 4.9.7).
6. It  is to be expected that in Jersey conflicts of interest and personal friendships will arise. We do not accept for one moment that any system is perfect. The application of the 2 tests of actual bias and appearance of bias are essential to maintain public confidence.WERECOMMEND that the Code of Conduct for the Planning Applications Panel should be updated to clarify what constitutes a conflict of interest and to outline clear procedures as to how this is communicated to those in attendance (see paragraphs 3.2.6 and 3.4.4).
7. W E  RECOMMEND (to the extent that it relates to Third Party objections but also on the basis of good government and common sense) that, whilst the law allows the Panel to regulate its own procedure, the Panel should always be composed of an uneven number so that the Chairman's casting vote is never used. In the event that such a situation does occur WE RECOMMEND that the planning application be remitted to the Minister (see paragraphs 3.3, 3.4.4 and 3.4.5).
8. W E RECOMMEND that the Planning Applications Panel should introduce amplification for Panel Members and those addressing the meeting, so that the proceedings can be heard more effectively by all those present (see paragraphs 3.2.4 and 3.4.6).
9. W E RECOMMEND that, whilst great strides have been made in improving the openness of Planning Applications Panel meetings, improvements should be made in the way in which the final decision is reached and communicated to those attending the public meeting, so that objectors can know that their concerns have been properly taken into account (see paragraphs 3.2.4 and 3.4.7).
10. W E RECOMMEND that the Master of the Royal Court and officers of the Judicial Greffe should always give strong consideration to deciding Third Party Appeals under the modified rather than the ordinary procedure, where this is possible within legal constraints, in order to reduce the fear of and potential for costs being awarded against an appellant or applicant (see paragraphs 5.2, 5.3 and 5.7.4).
11. W E RECOMMEND that the Planning Department should keep a record of the number of Third Party Planning Appeals' enquiries (even if a Notice of Appeal is subsequently not received) in order to provide valuable statistical data for the next review (see paragraph 4.9.8).
12. W E RECOMMEND that the Chief Minister's Department pursue ratification by the Bailiwick of the

Aarhus Convention in order to meet international standards in relation to the right of access to justice in

environmental matters (see paragraph  4.9.9).

SECTION 1 – Introduction

1. T h e decision to establish a CommitteeofInquiry

1. On 26th February 2008, a proposition was lodged in the States by Deputy C.J. Scott Warr en of St. Saviour –

• To establish a Committee of Inquiry into the operation of Third Party Planning Appeals in the Royal Court for the first 12 months since its introduction and, if necessary, make

recommendations for the future. To present its report to the States Assembly by the autumn of 2008.

2. A full copyof the proposition P.35/2008 can befound at Appendix 1.The proposition was adopted by the Stateson 13th May 2008.
3. T he States voted a budgetof£15,000tomeetany staff, administration andothercostsincurred,which is to be provided from the Planning andEnvironmentDepartment's budget. Todate,theCommitteehas spentabout£7,200,forthe taping and transcription ofevidencegivenatoralhearings,the salary of the Clerk tosupportthework of the Inquiry and miscellaneousitems.

2. M  embership

1. T he States appointed thefollowing persons as membersof the Committeeof Inquiry ("theCommittee") –

Mr. Rowland Anthony

Advocate Christopher Gerard Pellow Lakeman

Deputy Roy George Le Hérissier of St.  Saviour

Deputy Sean Seamus Patrick Augustine Dooley Power of St.  Brelade Deputy Celia Joyce Scott Warr en of St.  Saviour

Clerk to the Committee – Mrs. Jane Aubin.

2. A dvocate LakemanwaselectedChairman at the meeting oftheCommitteeon 11th June 2008 and Deputy Le Hérissier waselectedVice-Chairman.
3. T he Chairman declaredatthe first meeting that he – amongstotherlawyers – had been approached for advice bynumerous residents of St. Lawrence in relation to Fields 848,851 and 853,Bel Royal "(Goose Greendevelopment"),whohadwished to invoke the Third Party Planning Appealsprocess. This advice was given on an informal basis,withoutremuneration.The Committee notedtheposition.

3. P r ocedure Note

1.3.1  A t the beginning of the Inquiry, the Committee formulated a procedure note which informed all parties involved as to how the Inquiry would be conducted. A copy of this, as amended on 26th November 2008, can be found at Appendix 2.

4. M  ethodology

1. T heCommittee requested files and papers from various parties involved in the history and setting upof the Third Party Planning Appeals system. Departmental files relating to specific Planning Applications were also researched. The Committee received full co-operation from all concerned, for which it is grateful.
2. T he Committee held regular meetings to review progress and decide onfutureactions. The first meeting

was held on 11th June 2008.

3. C  all for Evidence advertisements were placed in the Jersey Evening Post on 3  occasionsbetween June and September. A callfor Evidence wasalso placed on the main page of the StatesAssemblywebsite. The Committeeaskedtohear from anyonewhohad initiated orconsidered a Third Party Appeal. It also sought written or oral submissions from applicants whomay have been affected byany potential appeal.

5. H  earings

1. T hefollowing hearings, open to the public, wereheld,atwhich oral submissionswere received from the Law Officers' Department, membersofthe public, officersandStatesMembers –

5th September – First Hearing Mrs. I. Haydon

Mrs. R. Mesch

Mr. R. Crick

Mrs. G. Le Maistre

15th September – Second Hearing

Mr. P. Thorne (Director of Planning)

Mr. R. Webster (Principal Planner, Appeals)

Mr. D. Mills (Legal Adviser – Planning, Law Officers' Department)

9th October – Third Hearing

Advocate P. Matthews ( Deputy Judicial Greffier)

Mr. W. Bailhache Q.C. (Attorney General)

Deputy A.E. Pryke of Trinity (Assistant Minister for Planning and Environment) Mr. A. Scate (CEO, Planning and Environment Department)

Deputy I. Gorst of St.  Clement and Mr. D. Morris

21st October – Fourth Hearing

Senator F.E. Cohen (Minister for Planning and Environment) and Mr.  P.   Thorne

3rd November – Fifth Hearing

Mr. M. Waddington (President – Association of Jersey Architects) Mr. J. Gladwin (Senior Planner – Appeals)

Senator P.F.C. Ozouf (Minister for Economic Development)

13th November – Sixth Hearing Sir Philip Bailhache ( Bailiff )

2. T ranscriptions were madeof the evidence provided by witnesses.
3. W  e received correspondence from Ms J. Riggall, whowas the respondent to a ThirdPartyAppeal,which commencedon 27th May 2008. TheCommitteedidnotask either party to give evidence,as the matter was then under consideration by the Royal Court.Thedecisionof the Royal Court was delivered on27th November2008 and is attached, as it isnot generally availabletothe public, at Appendix  3.

SECTION 2 – Planning and Building (Jersey) Law 2002

1. I n troduction

2.1.1  T he Committee felt it was important to establish the process by which Third Party Planning Appeals were introduced through the Planning and Building (Jersey) Law 2002 ("the Law").

2. B a ckground

1. F oreaseof reference, a full chronologyof the debate andcoming into force of the Lawis attached at Appendix  4and a discursive accountat Appendix  5.
2. T he key areasof interest, from the Committee'spointof view were –

(a ) 6 th June 2001 – Deputy Scott Warr en's successful amendments to the Law gave a right of appeal

against grant of a planning permission to any person or body who had been party to consideration of the planning application. At that time it was intended that such appeals – together with first party appeals – would be heard by a Planning Appeals Commission, providing aggrieved third parties with an accessible and affordable means of appeal (P.50/2001, reproduced at Appendix 6).

( b ) 5 t h November 2002 – The Planning and Environment Committee's proposition was lodged,

P.206/2002 (Appendix 7), to repeal Third Party Appeals. It stated that the Committee at that time was –

" p h i lo s o p h i c a ll y o pposed to a system of Third Party Appeals. It is also genuinely concerned about the additional costs of supporting Third Party Appeals. It believes that these considerable costs, and additional staff, both for the Planning and Building Services Department and for the Planning and Building Appeals Commission are not justified by the questionable benefits that a third party system would bring."

It i d e n ti f ie d the number of potential appeals to a Commission, both first and third party, at 450  p.a.

and the estimated additional cost of Third Party Appeals (that is not including first party appeals) as £539,000, offset, to some extent by charging fees to appellants. The detailed costings are shown in Appendix 5.

T h e p r o p o s it ion noted that the more open and transparent applications process set out in the Draft

Law would –

" g iv e ap p  li c an t s a n d third parties far greater confidence in our planning system, and reduce the likelihood of appeals being made."

The proposition was eventually withdrawn under the 12 month rule and discussions subsequently took place between the Planning Department, the former Solicitor General and Deputies Scott Warr en and Dorey.

(c ) 1 5 th December 2004 – The Environment and Public Services Committee's amendment to the Law,

P.210/2004 (Appendix  8). The proposition noted that, although the Law had received Royal Assent in October 2002, it had yet to be brought into force. It explained this delay as follows –

" I ts i n tr o d u c ti o n h as been delayed, primarily because of the costs of establishing the Planning and Building Appeals Commission. The inclusion in the Law of a provision enabling appeals to be made by third parties substantially increases the number of appeals and thus the costs of the Commission."

T h e p r o p o s ition also mentions concerns being expressed about the "proliferation of different

tribunals in such a small Island" (see paragraph 2.3 below) and equal concerns about creating a "Planning Court for Planners".

H o w  e v er , a n important change brought about by the adoption of this proposition was the removal

of the Planning Appeals Commission as the appellate body and the "reinstatement" of the Royal Court. This was seen as the quickest and most efficient way to bring in the Law at the earliest opportunity as –

" it d o e s n o t m  a k e g ood sense to forego the wider benefits of the new Law by waiting for resources to be made available to introduce the new Appeals Commission".

S e n a to r O  z o uf commented on this in his testimony to the Committee –

" w e h a d a n e w la w   which was incapable of being brought into force because of financial considerations."

L a te r i n h i s s ubmission he added –

" W h at I w i l l re m in d the Committee is that if there would not have been an amendment to bring in an alternative, cheaper version of the Commission, we would not have the new Island Plan (sic) a compromise had to be reached."

T h e p ro p o s i tion goes on to mention discussions that were being held with the Bailiff and Court

Officers regarding the possibility of introducing more informal court procedures for planning appeal cases to make it easier for appellants to access the court process. This ultimately led to the two-tier system of ordinary' and modified' (more informal) procedures that are now set out in the Royal Court Rules (see paragraph 5.2).

(d ) 2 0 th April 2005 – The Committee brought in an amendment to the Law, lodged on 15th March,

P.47/2005 (Appendix 9), from reviewing cases de novo under the Planning and Building Appeals Commission (a full merits appeal) to use of the reasonableness' test in the Royal Court (see paragraph 5.4). Deputy Scott Warr en lodged further amendments toP.47/2005 on 5th April (Appendix 10) to limit the right to appeal to those who lived, or had an interest in land, that was within 50 metres of the site. The 50 metre limit was introduced to restrict the number of appeal and thus reduce the potential cost of bringing in the Law (see paragraph 4.6). The amendments were adopted by the States on 20th April.

U l t im a te l y , it was not until 31st March 2007, seven years after Deputy Scott Warr en had first

gained approval for her amendments to introduce Third Party Appeals, that this provision was finally brought into force under the Law.

3. T r ibunalsWorkingParty

1. I n 2003,concernswereexpressed politically as to how tribunals in the Island were to be supported in their work. Part of the catalystfor this tribunal inquiry wastheproposalto establish anEmployment Tribunal and the discussionswhich took place relating to the proposed AppealsCommission for the Planning and Building Law.
2. A TribunalsWorking Party was establishedonwhich,at various times, twomembers of this Committee served. Themainrecommendationof the Working Party was that thereshouldbe a detailed investigation into the feasibility of establishing a CentralisedTribunals' Service.
3. W henthe initial Reportwasreleasedon 23rd April 2003, the Privileges and ProceduresCommittee(as then established) expressedsome concern that the researchbehind the WorkingParties' report had not been as complete as necessary.
4. F urtherconcerns were expressed on behalf of the Bailiff and Court service that there was a danger that a perfectly adequate system (the Royal Court and the Judicial Greffe) was going to be unnecessarily replicated, creating some form of centralised tribunals' secretariat.
5. A feasibility study was undertaken by the then Policy and ResourcesDepartmenton 16th October 2003 and sent to the Tribunals Working Party, as reconstituted, for their consideration. Due to political constraints onmembers' time, theWorking Group wasunableto finalise its study untilDecember2004,

when it decided, mainly due to changing political circumstances, the move to ministerial government and tighter

financial constraints, that a Centralised Tribunals' Service should not be established. At the same time Proposition P.210/2004, to reinstate the Royal Court in place of the Planning Appeals Commission, was approved in the States, the Environment and Public Services Committee having decided not to delay the introduction of the Law any further.

6. I n anyevent, the Employment Tribunal wasestablished and was provided with a separateresource in a building alongside JACS. No other tribunals were provided with a centralised resource. There thus continues to exist a system whereby departments provide support for individual tribunals.

4. C o nclusions

1. The Committeenotes,withconcern, the length of time that it took to bring in the Third PartyPlanning Appeals process over some 7 years. There were clearlysome philosophical objections to the idea of bringing in a ThirdPartyAppeals system, as well as resistance, in somequarters,to taking poweraway from the Courts.
2. The removalof the Planning Appeals Commission from the Law (P.210/2004)wasgiven approval by the States, in part, because they were persuadedby the proposed introduction ofmore informal Royal Court proceedings (modified procedures) that would, theoretically, make the process more accessible to appellants. As will bediscussed later in this report (see Section 5 Royal Court), this approachhasnot achieved the results that were initially envisaged.
3. The number of potential appeals estimated by the Planning Department in 2002 (450 p.a.) clearly increased the concerns of politicians and officers as to the potential costs. This contributed to the delay in bringing forward the Third Party Planning Appeals process and to the resulting limited appeal process that is currently in place.

SECTION 3 – Planning Application Process

In order to explain the background to Third Party Planning Appeals, the Committee felt it was necessary to examine how planning applications are made and the different levels at which members of the public and interested bodies can object during the early stages of the process. The Committee recognised that, following the introduction of the Planning and Building (Jersey) Law 2002, the requirement for greater openness and transparency means that applicants and objectors can experience first-hand how their representations are being taken into account.

1. P l anning Applications and Planning Permission

1. A pplicants wishingto develop their land in accordance with the Law have tomake a planning application to the Planning and Environment Department for consideration by the Minister for Planning and Environment("theMinister").Dependenton the sizeandcomplexity of the application, the Minister will often delegate this responsibility to departmental officers orthe Planning ApplicationsPanel. Article 19 of the Law (Appendix 15) states that the Minister, in determining an application for planning permission, –

• Shall take into account all material considerations.

• In general will grant planning permission if the proposed development is in accordance with the Island Plan.

2. S ince the introduction of the Law,themannerinwhichan application for permission todevelop land is publicised has beenenhanced, particularly by the placement of sitenotices,whichshouldbe located in a prominent place on the site. Priorto the implementationof the Law,there was no legal requirement to publicise applicationsatall.

3. A ny objections to the plans from neighboursor other interested parties must normally arrive at the Planning Department offices within 21 days of the planning applicationbeing publicised in the Jersey Evening Post and onwww.gov.je/Planning.Commentssubmitted outside this 21 day period are, however, taken into account, provided that the officer dealing with the application has not yet made his recommendation. Objections are normally in writing orpostedon the Register of Planning applications on the PlanningDepartmentwebsite.
4. T hemajorityof planning applications are examined and approved by a Planning Officer.For disputed, more complexandlarger-scaledevelopments,the planning application maygothroughsomeor all of the following stages –

• The Planning Applications Panel

• Ministerial Meetings

• Public Hearings.

5. A t eachofthese stages objectors are able to express theirviewsand have them taken into accountby the Planning Department before a decision ismade.
6. Planning permission granted by the Minister does not take effect until 28 days after the date that permission isgranted. If during that 28 day period a ThirdParty Planning Appealis lodged, in accordance with theLaw,the28 day period is extended until the appeal is withdrawnby the third party appellantor determined bytheRoyalCourt.

2. P l anning Applications Panel

1. T he Planning ApplicationsPanelwassetupas a consequence of the move to Ministerial governmentin 2005 and theneedforan operational, decision-makingbody that wastransparentandobjectivein taking into account all relevant considerations.
2. T he Planning Applications Panelhas a wide range of powers in deciding a planning application. It reviews all the relevantdocumentation, listens to representations on behalfof the applicant andobjectors in open forum, can make site visits, request further information, defer decisions to allow further consideration andimpose conditions on a development. It cannot, however, refuse an applicationifitis supported by a Planning Officer'srecommendation.In this caseitmust refer the application back to the Minister for reconsideration.
3. M embersof the Committeewere invited by the Chairman of the Planning Applications Panel, Deputy Pryke of Trinity , to attend a meetingon 20th November 2008. AdvocateLakeman, Deputy Le Hérissier and Mr. Anthonyattended. Deputy Scott Warr enwas unable to attend, but had previously attended a Panel meeting. Deputy Powerwas already in attendance as one ofthePanelMembers.
4. Through attendance at the Panel Meeting, the Committee Members present noted that they had considerable difficulty in hearing all the proceedings and that the acoustics were generally poor in the Members' Room atThe Société Jersiaise. Deputy Scott Warr enhasalso noticed similar problemsat St. Paul's Centre. Itwasalsonoted,by Deputy Le Hérissier, that whenone objector raised a rangeof issues regarding a planning application, thePanelappeared not to directly address the objector'sconcerns at all, but just approved the application without further explanation.
5. M r. Waddington,in his testimony, also raised some concern aboutthetransparencyof the decision- makingand that the –

" P la n n i n g P anel [is] not given (sic) the forum to articulate exactly what it is they have a problem with or are positive about. I sympathise with them because I think we are into quite a subtle area and you have to have a fairly high degree of understanding of planning issues."

6. It was also noted by the Committee Members that, during the meeting, the Chairman of the Panel withdrew saying "she wasconflicted", but there wasno explanation given as to why the Memberwas conflicted to those attending the meeting. A conflict shouldbe stated and should befor a sustainable reason.
7. T he Committee isaware that duringthe time that itwas undertaking its review that a CodeofConduct was issued for PanelMemberswhich should, in due course, take into account the issues raised and the Recommendationsmadein this Report.

3. C a sting VoteofChairman

3.3.1  D  uring the Committee's hearing, the issue of the use of the Planning Applications Panel Chairman's casting vote was raised. Deputy Gorst attended in support of his constituent, Mr.  Morris, who was an objector to the planning application for Niaroo, La Grande Route de la Côte, St.  Clement (Property No.  2842). While Mr.  Morri'scase might have been suitable to take as a Third Party Appeal, he did not choose to do so due to the fear of the costs of such a case. However, he made detailed objections (as did his neighbours) and he did take his objections to the Planning Applications Panel on 29th November 2007. Deputy Gorst , in evidence before the Committee, stated that at that meeting –

" T h e v o t e w  as split and it was approved on a casting vote of the Chairman of the Panel".

3.3.3 T his is supported by the minutes of the Planning Applications Panel as follows –

" H a v i n g n o t ed that the Panel was divided the Assistant Director, Development Control advised that the Chairman held a casting vote. Having exercised the same, the Chairman declared that permission was to be granted Deputies S. Power of St Brelade and C.H. Egré of St Peter requested that their dissent from the Panel's decision be recorded."

3. T he Chairman of this Committeerequested advice on this issue from the Attorney Generalwhoadvised, in his letter of 18th November 2008, that –

" T h e M i n is te r is entitled," by Article 9A(7) of the Law (Appendix 11),to direct the Panel as to the procedures which it should follow, and where he does not do so, the Panel may determine its own procedures.' "

4. The Attorney General continues in his letter to explain that, as the Lawis "silent onthequestion" and in the absence of a direction under the Article mentioned immediately above, it lies with the Panelto determine its ownprocedures.TheCommittee is not awareof the existenceof any written procedureson this aspectof its work; although weareaware the Departmenthas issued a Code ofConductfor the Panel and has it underreview.
5. The Committee alsoasked the Attorney General for his advice on any presumption (whether arising by law or parliamentary procedure) that in the caseof a tied vote the Chairman and/or thePanel should adopt a policy that the "status quoprevails". The Attorney General advised that this was –

" n o t a p p li c a ble..The reason for this is that a landowner's right to do what he pleases with his land has been heavily curtailed by Planning legislation, but nonetheless Article 19 [of the Law] sets out that an applicant for planning permission is generally entitled to a planning permission if the proposed development is in accordance with the Island Plan." (see paragraph 3.1.1).

4. C o nclusions

1. T he Committee recognises that the Planning andEnvironmentDepartment, through the operation of the new legislation, hasmadesignificantadvances in achieving greater openness, transparency and levels of public consultation in all kindsof planning applications.

2. T  heCommitteenotes that since the Law's introduction, the ability forthose objecting to a proposed development to have their concerns heard, acknowledged and addressed in public forum is a major improvement from the situation under the former Law.
3. W  ith the experience of further yearsof operating under the Law,we have no doubt that the Planning Officers and PanelMembers will continue to strive to make the processesevenmoretransparentand address issues, such asthird party objections,at an early stage.
4. E nhanced written procedures for the Planning Applications Panel will be of benefit toclarify processes in relation to –

(i ) P a n el Members' conflicts of interest;

(i i) U s e of the casting vote.

5. T he Committee recommends that the Panel should alwaysbecomposedofan uneven number to avoid the difficulties of a casting vote.However, in the unusualcircumstanceswhere it does apply, the planning application should be remitted to the Minister.
6. T  he Planning ApplicationsPanelshouldimprove the acoustics of their meetingrooms and introduce amplification forPanelMembers and thoseaddressing the meeting.
7. W  hilst the Planning Applications Panelhasmade great strides in improvingthe openness of their public meetings, the Committee invites them to considerwhetherimprovements can be made to thewayin which the finaldecision is reached andcommunicated to those attending the public meeting, so that objectors can know that their concernshavetrulybeentaken into account.

SECTION  4 – Third Party Appeal Process

1. I n troduction

1. T he statistics for peoplesendingin a NoticeofAppealduringthe first 12 monthssincethe introduction of Third Party Planning Appeals on 31stMarch 2007 (period under consideration by this Committee) are as follows –

Number of Appellants Resolution of Appeal

2 Withdrawn because appellants fearful of costs

3 Withdrawn by appellants without giving reasons 1 Resolved as the appellant modified their position 1 Withdrawn as not within 50 metres of site

Total 7

2. F rom 31st March to 31st October 2008 a further 5 Notices ofAppeal were received by the Planning Departmentasfollows –

Number of Appellants Resolution of Appeal

1 Dismissed as judged out of time'

3 Pending

1 Kerley -v- Minister – judgement delivered on 27th

November 2008 (Decision attached at Appendix  3)

Total 5

3. I n additionto the above, the SeniorPlanner – Appeals isaware that the Department has dealt with a

significant number of enquiries from members of the public keen to enter the appeals process, who have

subsequently failed to complete a Notice of Appeal. The Department does not keep records of these enquiries.

2. W  hyhavethere been sofew Third Party Planning Appeals?

1. F rom the statistics provided above, it can be seen that the predicted numberof third party appellants has been farfewer than was expected.On the positive side, thereasonfor this could be due to –

(a ) T h e greater consultation, transparency and openness following the introduction of the Law.

(b ) Im  provements to the way in which the Minister, Planning Applications Panel and Department take

into account the impact of developments on neighbours.

2. O n the negativeside, a numberof issues have come to lightduring the course of the Committee's investigations and hearings that may be deterring third party appellants from benefiting from the introduction of the ThirdParty Planning Appeals process asfollows –

(a ) th e process, for the lay person, is, on the evidence received –

• complex,
• labour-intensive (witnesses testified to Court bundles becoming quite substantial),
• time-consuming, and
• generally viewed as intimidating, as in any litigation;

(b ) th e timescales and deadlines for Third Party Appeals are tight;

(c ) th e criteria for being eligible to take an appeal are highly constrained;

(d ) th e chance of success is perceived to be low (Since 2000 the Planning Department have had 50

first party appeals of which 14 have gone to the Royal Court and they have only lost 3 of those appeals);

(e ) th e re is a significant fear of the possibility of substantial costs.

3. T heremainderof this section will consider the whole process of Third Party Planning Appeals and discuss, in further detail, the difficulties, identified above, that appellants havehadto face. Theissueof costs and fearof costs will bedealt with later in Section 5 of the report.

3. I n formationandSupportAvailable

1. D uring the first 12 monthsunder consideration, appellants had to access guidance and information from a variety ofsources –

From www.gov.je or the Planning and Environment Department

Guidance Notes – Planning Appeals Procedure (Judicial Greffe) (Appendix 12) Third Party Rights of Appeal (Planning and Environment) (Appendix 13)

From www.jerseylaw.je or the States Greffe Bookshop

Royal Court Rules 2004 (Appendix  14 [extract])

Planning and Building (Jersey) Law 2002 (Appendix  15 [extracts]) Practice Direction RC  06/03 (Master of the Royal Court) (Appendix  16)

2. T he Committee notes that decisionsof the Royal Court whichhave been deliveredbut not yet reported, are unavailable without a subscription to a website.Whilstwe are sure that the Judicial Greffe would assist in this regard, it doesmean that the ordinary citizen is disadvantaged in comparison to the Minister and the legal adviserstoany potential developer.

3. G  uidance wasalso available to appellants by telephone, e-mailor in person from officers at the Judicial Greffe orPlanningDepartment.The Judicial Greffestaffmadeevery effort tosupport appellants tomost effectively navigate the system, but the process can still be daunting. For example, in the courseof completing and serving a Notice ofAppeal, an appellant would contact the –

Judicial Greffe To obtain guidance on procedures, lodge the Notice of

Appeal and be informed how the appeal will be heard Viscount's To arrange service of the Notice of Appeal Department

Bailiff 's To fix date for appeal hearing

Chambers

States' Treasury To obtain Court Stamps

Planning and To obtain guidance on procedures and information Environment regarding the planning application

Department

4. A t thesametime, the appellant will also normally receive communications directly from the applicant and their lawyers (if they wish to be party to the appeal)and the Committee received evidence that these communicationscouldbeof an intimidating and aggressive nature.
5. T imescales are necessarily tighttopreventunduedelay for the planning applicant (most notably the date that is fixed for the hearing of the appeal must notbe more than 4 months from the date that the Notice of Appealisserved).However, this causes additional pressure onan appellant trying to meet the numerous deadlines for submission of documentsandotherrelatedmatters.An interesting contrast can alsobe drawnbetween a Third Party Appellant,whohas only 14 days to appeal, and a First PartyAppellantwho has 28  days to appeal,i.e. a Third Party Appellant has half the time of the First Party Appellant in which to make an appeal
6. T  he Judicial Greffe canonlyprovide procedural advice in relation toan appeal and cannot give any advice in relation to the merits ofthecase.
7. T he Planning Departmentstaffalsosought to beashelpfulas they couldto appellants requesting advice and guidance. However, they were often in a conflicted position, given that a Third Party Planning Appeal is  against the  decision of the Minister – any  affidavits  produced, defending the  Minister's decision, are drafted by Planning Officers.
8. I t should also benoted that it is only once a ThirdParty appellant hasdecidedtochallenge a planning application that they beginto realise the enormity of the taskahead.Mrs. G. Le Maistre stated–

" W  e g o t n o timescale, no written timetable, so we were constantly up against what the timescale was, as far as the law was concerned and complying with that. I feel, to do this without the help of advocates is virtually impossible because the normal person in the street has not got a clue about how the court's work and the sort of timescales that you have got to comply with."

9. M  r.R.Crick similarly said –

" I d o n o t t h ink the average citizen, without legal and professional help, could get anywhere in these third-party appeals."

10. The Deputy JudicialGreffier,in his testimony,confirmed that appellants were oftenquite unprepared to deal with the complexitiesof the processor the deadlines that have to be met. For that reasonhe indicated that he was in the process ofproducing a Guide for third party appellants. TheCommittee are pleased that this Guide,which brings together information from a numberofsources and seeks to explain the process in layman'slanguage, is shortly to be accessible on the Judicial Greffe section of the States' website

(www.gov.je/JudicialGreffe). However, whilst the document is comprehensive in its coverage of the process, the

Committee feel further consideration should be given to making the document more user-friendly for an ordinary member of the public, unfamiliar with court processes. As an adjunct to the Guide, the Committee have produced a Flowchart of the same process, which should provide additional assistance to appellants (Appendix 17). This Flowchart clearly demonstrates the complexities of the Third Party Appeal process.

11. The Committee recognised that the tight timescales involved in the third party process might make appellants feel they are being quickly drawn into a process with little time toconsider or fully reflect. Therecould be anargumentfor a cooling-off' period to be introduced which would extend the appeal process, but this needs to be weighed against the disadvantages of further delaying a development application.