States of Jersey Complaints Board: findings – Complaint against a decision of the Minister for Planning and Environment

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS BOARD: FINDINGS –

COMPLAINT AGAINST A DECISION OF THE MINISTER FOR PLANNING AND ENVIRONMENT REGARDING THE REFUSAL FOR PERMISSION TO CHANGE A DORMER WINDOW INTO A BI-FOLDING DOOR AND BALCONY

Presented to the States on 3rd September 2009 by the Privileges and Procedures Committee

STATES GREFFE

2009   Price code: B  R.96

REPORT

Foreword

In accordance with Article 9(9) of the Administrative Decisions (Review) (Jersey) Law 1982 as amended, the Privileges and Procedures Committee presents the findings of the Complaints Board constituted under the above Law to consider a complaint against  the  Minister  for  Planning  and  Environment  regarding  the  refusal  for permission to change a dormer window into a bi-folding door and balcony.

Connétable J. Gallichan of St. Mary ,

Chairman, Privileges and Procedures Committee.

STATES OF JERSEY COMPLAINTS BOARD 12th August 2009

Findings of the Complaints Board constituted under

the Administrative Decisions (Review) (Jersey) Law 1982 to consider a complaint by Mrs. R. Paling (represented by Mr. S. Osmand)

against the Minister for Planning and Environment regarding the refusal for permission to change a dormer window into a bi-folding door and balcony

1. Present – Board Members

Mrs. C. Canavan, Chairman Mrs. M. Le Gresley

Mr. T.S. Perchard

Complainant

Mrs. R. Paling Mr. S. Osmand

On behalf of the Minister

Mr. J. Gladwin, Senior Planner (Appeals) Others present

Mr. and Mrs. Daligault (neighbours of the applicant) Mr. S. Platt (Complaints Board member designate)

States Greffe

Mrs. L. Hart , Assistant Greffier of the States

The  Hearing  was  held  in  public  at  9.30 a.m.  on  12th  August  2009  at St. Clement 's Parish Hall .

2. Summary of the dispute

2.1  The Board was convened to hear a complaint by Mrs. R. Paling against a decision of the Minister for Planning and Environment to refuse permission to change a dormer window into a bi-folding door and balcony.

3. Site Visit to Willowmere, Willow Grove, St. Clement

1. After the formal opening of the Hearing at St. Clement 's Parish Hall , the parties went together to visit the site, and viewed the proposed balcony from the garden of Willowmere, as well as the outlook from the extension over the neighbouring properties. The parties also visited the garden of Mrs. Paling's neighbours, Mr. and Mrs. Daligault, the owners of the property known as Li-

Vana  (35  Victoria  Court),  over  which  it  was  claimed  the  balcony  would impose.

2. On returning to St. Clement 's Parish Hall , the Chairman advised the meeting that Mr. S. Platt was in attendance in an observational capacity, as he would soon  be  joining  the  Complaints  Board,  and  all  of  the  parties  agreed  that Mr. Platt could ask questions if he wished during the proceedings.

4. Summary of the Complainant's case

1. The Board had received a brief summary of the Complainant's case, together with photographs, before the Hearing and had taken note of the submissions made on her behalf.
2. Mr. Osmand,  representing  Mrs. Paling  as  her  Design/Consulting  Agent, observed that the site visit taken by the Board had been extremely useful. He advised that planning approval had been given for a two-storey extension to the northern elevation of the property, with opaque dormer windows fixed at the bottom to the west and east elevations. During construction, the plans had been  altered  and  a  small  balcony  with  bi-folding  doors  installed  on  the western elevation. Mr. Osmand had been under the impression that, as the balcony would face directly west, there would not be any cause for concern by the owners of the properties to the north and he claimed that the Planner assigned as Case Officer had visited the site and raised no formal objections to its creation. A refusal notice was issued for the revised plans and, following a public Ministerial Hearing, Senator F.E. Cohen, Minister for Planning and Environment, had agreed to defer his decision until he had visited the site. On 2 occasions the scheduled visit had been cancelled and the actual visit had taken place when Mrs. Paling was not at home. Upon her return later in the day Mrs. Paling had discovered a message on her answerphone recorded at

12.57 p.m. advising that a visit would possibly take place that day between

2.30 and 3.30 p.m. Mr. Osmand contended that, as the Minister had been unable to access the balcony area, he could not have been able to properly assess  the  extent  to  which  it  overlooked  the  neighbouring  properties  and therefore his decision had been taken without full knowledge of the facts and was unfair.

3. Mr. Osmand accepted that the balcony had been installed without the requisite permission, but argued that it was created whilst the application was still live',  with  an  expectation  that  it  would  be  acceptable,  and  it  had  been essential during the winter months to ensure that the area was wind- and water-tight,  as  Mrs. Paling  had  been  living  in  the  property  during  the construction period without any heating. It was envisaged that the room would be used as a small study or hobby room, rather than a bedroom and therefore its  use  would  be  limited.  Mr. Osmand  accepted  that  a  part  of  Mr.  and Mrs. Daligault's garden was visible from the balcony area, but he suggested that there remained other areas of their garden which would continue to afford them privacy.
4. It was noted that Mrs. Paling was not a developer wishing to extend the property for financial gain, but a homeowner wishing to simply maximize the

enjoyment of her house during her retirement. She had lived in the property for over 20 years and Mr. Osmand opined that she was, to all intents and purposes, an ideal' neighbour, being a single occupant with a pet dog as her companion, disinclined to holding noisy social gatherings and suchlike.

5. Mr. Osmand advised that when Willowmere had been constructed during the 1930s, it had been a solitary building in the area, but over the years had been surrounded by new properties which had reduced the privacy of the site. Indeed he highlighted that the dormer windows of Mr. and Mrs. Daligault's home  overlooked  Mrs. Paling's  garden  and  conservatory.  Mr. Osmand reiterated that he considered the Minister's decision to refuse the application to have been unfair. He referred to photographs which had been included in Mrs. Paling's  submission  and  indicated  that  netting  which  Mr.  and Mrs. Daligault had placed across their boundary, which had served to obscure any view of their patio area from the proposed balcony, had been removed since the photograph had been taken. Furthermore, in a photograph taken 6 weeks ago, there was seemingly more foliage within the border of their property, which served as a natural screen, and the outside furniture which the Board  had  been  shown  during  its  site  visit  to  Li-Vana  was  not  visible. Mr. Osmand emphasized the outline of the proposed balcony screen, which would be stainless steel and glass and some 1,100 centimetres in height. He also  produced  a  plywood  template,  representing  the  usable  space  on  the balcony, which would be extremely limited and sufficient only for one or 2 persons to stand upon at the same time.
6. It was confirmed that the conditions imposed upon the original application had stipulated that the dormer windows be obscured glazing and fixed at the base. Mr. Osmand advised that the window needed to be a certain height in order to comply with building control regulations to allow an egress should there be a fire. However, this was at odds with the conditions imposed by the Planning Department. It was noted that during construction of the second storey it had only been possible to fully appreciate the amount of space available once it was almost built, at which point Mrs. Paling had decided that the room would benefit from a full length window and small balcony in order to extend the perspective of space in what was quite a small room. Mrs. Paling considered that there would be a very limited sense of light within the room if she was required to replace the bi-folding door with the type of window required by Planning.

5. Summary of the Minister's case

1. The Board had only received the Request for Reconsideration report prepared for a ministerial meeting and some associated correspondence setting out the Minister's case before the Hearing but did not receive the normal full written summary of the case. The written submissions were amplified by the Senior Planner (Appeals).
2. It was confirmed that the application site lay within the Built-Up Area and the property  concerned  was  located  to  the  rear  of  a  row  of  terraced  houses fronting Green Road. A large number of individual detached properties were interspersed along the north boundary and these were set 2–3 metres higher

than the ground level of Willowmere. The Senior Planner (Appeals) referred to the reasons for refusal and emphasized that due to the close proximity of the  north  boundary,  the  proposed  balcony  would  result  in  unacceptable overlooking to the private amenity spaces of the neighbouring properties Li- Vana'  and  Wichita'  and  would  also  afford  direct  overlooking  to  their principal  windows  contrary  to  Policy G2(ii)  of  the  Island  Plan  (General Development Considerations). The Board was advised that the decision to refuse the application had originally been made under delegated powers and signed by the Assistant Minister at the time, Deputy A.E. Pryke of Trinity . A number of photographs had been taken of the site by the Planning Officer involved and these had been provided to the Assistant Director of Planning and the Assistant Minister when the case was considered. Both had agreed with the officer's recommendation to refuse the application on the grounds that  there  would  be  unacceptable  overlooking  into  the  neighbouring 2 properties. The  matter  had  been  considered  by the  Minister  at  a  public Ministerial Hearing, at which Mr. and Mrs. Daligault had been supported by former   St. Saviour   Deputy  Mrs.  C.J.   Scott - Warr en.  The  matter  had  been deferred in order to enable the Minister to visit the site. It was noted that there were  approximately  2,500  planning  applications  every  year,  and  it  was impossible  for  the  Minister  to  visit  each  one,  but  he  had  indeed  visited Willowmere  and  viewed  the  balcony  from  Mrs. Paling's  garden  area,  in conjunction  with  the  aforementioned  photographs  and  background information  provided  by  the  Case  Officer.  The  Senior  Planner  (Appeals) conceded that it could have been useful for the Minister to have seen the perceived visual impact from the balcony itself and also the gardens of the neighbours concerned, but was content that the Minister, having regard to the objections received in relation to this application, and with the information provided by the Case Officer, had made his decision to maintain the refusal in full knowledge of the facts.

3. The Senior Planner (Appeals) outlined the history of the application, which had originated in 2007. Binding conditions had been attached to the planning permit regarding the windows on the second storey of the extension, which were to be obscured glazing and fixed. Concerns had been raised regarding the proximity to neighbouring properties and the relative heights of the same, and Mr. Osmand had been advised that a proposed balcony would not be approved on the basis that this would contribute further to the unacceptable overlooking of  the  adjacent  properties.  It  was  noted  that  there  was  a  large  disparity between  the  agreed  dormer  style  window  with  obscured  glazing  and  the balcony which had been constructed in contravention of the planning permit. Although it was accepted that Mrs. Paling would be using the room on a limited basis, it was argued that there was a possibility that future owners of the property could seek to remove the partition wall within the room and create a larger space with increased usage and this would be to the detriment of the neighbours. It was noted that in response to the initial application in 2007, there had been 2 letters of objection from the owners of Li-Vana and Wichita citing overlooking issues.
4. The Board was advised that 3 letters of objection had been received, along with several electronic mail messages from Mrs. Scott - Warr en in relation to the  revised  application.  The  Senior  Planner  (Appeals)  attempted  to  read excerpts from the letters in order to highlight the strength of feeling against

the creation of the balcony at Willowmere, but was reminded that neither the letters, nor indeed the photographs upon which the Minister had based his decision to refuse the application (in the absence of viewing the vantage point from  the  balcony  himself),  had  been  included  within  the  Department's submission and therefore could not be part of the Board's considerations.

5. The  Senior  Planner  (Appeals)  advised  the  Board  that  he  understood  the reasons for the neighbours' concerns. Overlooking was a key issue in Jersey, particularly in St. Clement where it was a prevalent problem, given the large proportion  of  infill  development.  The  extension  was  0.9 metres  from  the boundary, whilst the balcony was 3.4 metres from the boundary to the west, and 4.5 metres from the boundary with Li-Vana. There was a difference of approximately 2 metres between the ground levels of the application site and the neighbouring properties, and the balcony would enable Mrs. Paling to look directly into Mr. and Mrs. Daligault's garden causing, in the neighbours' and the  Department's  view,  an  unacceptable  level  of  overlooking. The  Senior Planner (Appeals) quoted the Planning Policy in respect of private gardens, which had also not been submitted as part of the Department's bundle for consideration by the Board. The Department's policy in relation to private gardens advocated that the amenity space should provide adequate separation between properties, as well as adequate light, privacy and security. It was extremely difficult to provide private amenity space in the Built-Up Area, but up until now Mr. and Mrs. Daligault had enjoyed a relatively private space. The  Senior  Planner  (Appeals)  argued  that  the  existence  of  the  current abundant landscape screening was not relevant as this was not permanent, and the foliage could decrease during the autumn and winter allowing a greater view of the Daligault's garden from the balcony area. He opined that should the existing shrubs and trees need to be removed (as would be the case should the fence need to be replaced or the roots of the tree in one corner continue to undermine the patio area), then the level of overlooking would be extremely unacceptable. The Senior Planner (Appeals) suggested that it was not just the physical impact of overlooking which affected residents, but also the fear' of being  overlooked  which  contributed  to  the  invasion  of  privacy.  Planning Officers now placed a large emphasis on the impact of developments on neighbouring properties and consulted fully to ensure a balance between an applicant's desire to improve a dwelling and the neighbour's loss of privacy. As there were no exact standards within the Jersey Planning Law it was very much  a  judgement  call,  and  the  rights  of  the  wider  community  and neighbours' objections were taken into account to perhaps a greater degree than in the past.
6. The Senior Planner (Appeals) reiterated that the strength of the objections received from the owners of Li-Vana and Wichita, and emphasized that the degree in which they would be overlooked had been the main determining factor in upholding the refusal of the application. Overlooking caused distress and affected the enjoyment of one's property. The occupancy of Willowmere could change in the future and this could increase the level of use of the balcony. In response to Mr. Osmand's reference to the dormer windows at Li- Vana which overlooked Mrs. Paling's garden and conservatory, the Senior Planner  (Appeals)  reminded  the  meeting  that  the  said  property  had  been constructed in 1965 under different planning rules. He maintained that it was important  that  the  current  laws  and  policies  were  applied  in  relation  to

Mrs. Paling's application and, as a consequence, the proposed overlooking was deemed unacceptable.

7. The Chairman questioned the level of objection from the owners of Wichita, as the Department's submission appeared to suggest that just the Daligaults had written to raise objections. The Senior Planner (Appeals) advised that there had been a joint letter submitted by both neighbours and this had been part of the submission upon which the Minister had based his decision. No evidence of the objection from the owners of Wichita was, however, presented to the Board in the papers submitted before the Hearing. The Chairman sought clarity  regarding  the  amenity  space  at  Wichita,  which  the  Board  had  not included in their site visit earlier that morning, as she had been unable to see the property, apart from its roof, from the vantage point of the balcony. The Senior Planner (Appeals) advised that he had stood in the garden area of Wichita and had been able to see the eastern dormer window of the extension at Willowmere, although the Board noted that this dormer had been approved by the Planning Department and was not relevant for this appeal. He was of the  opinion  that  the  kitchen  and  lounge  windows  of  Wichita  could  be overlooked, but conceded that the main area which would be overlooked from the  balcony  would  be  the  Daligaults'  property.  It  was  believed  that  the Minister had viewed the site from Mrs. Paling's garden and had not visited either  of  the  neighbouring  properties.  He  had  been  furnished  with  the 10 photographs  taken  by  the  Case  Officer,  which  apparently  showed  the relationship between the dwellings and the level of overlooking from the balcony  to  both  properties.  The  windows  agreed  within  the  permit  were casement style dormers, with obscured glazing and a fixed bottom pane. The top pane would be hinged so as to reduce the capacity to lean out of the window and look out over the vista. The Senior Planner (Appeals), when questioned how such a window would meet the needs of the building control regulations in respect of emergency access, advised that the Minister was able to  over-ride  building  bye-laws  if  planning  concerns  were  of  greater importance and, in this instance, as other rooms could be used to exit the building, it had not been envisaged that there would need to be an egress through the window in question.
8. The  Senior  Planner  (Appeals)  stated  that  the  Minister  had  been  given 10 photographs  taken  from  the  vantage  points  of  both  the  neighbouring properties and Willowmere's balcony, and he had had the benefit of these photographs when he visited the site. Mr. Daligault spoke briefly to the Board and advised that one of the selling points when he and his wife viewed Li- Vana in December 1998 was that the rear garden had been bathed in winter sunshine and was such a private space. Mrs. Daligault added that in recent years a new property had been built to the west of their house and they had fought to protect their privacy and ensure that they were not overlooked by that new building. They were anxious to now also preserve their privacy on the southern boundary of their home.
9. Mr. Osmand was asked why the balcony had been installed without planning consent, given that the notion of a balcony had been withdrawn from the plans submitted at the early stages of the planning process on the recommendation of  the  Planner.  He  advised  that  as  the application  was  live'  and  it  was important that the kitchen was made water-tight, he had simply instructed the

builders  to  leave  out  3 rafters,  which  would  enable  the  window  to  be constructed in line with the original planning conditions if necessary. It was noted, however, that replacing the bi-fold door and the roof slates would represent a considerable cost to Mrs. Paling.

10. Mr. Osmand advised that he had not considered that the introduction of the balcony would be problematic, as the main concerns expressed during the original  application  consultation  period  had  centred  upon  the  bulk  of  the extension.  He  had  certainly  not  envisaged  any  problems  regarding  the overlooking issue in relation to Wichita, as it was impossible to see that property's garden from the balcony; indeed only part of the roof was actually visible. Mr. Osmand contended that the balcony could not be regarded to afford direct overlooking to the principal windows' of Wichita, as outlined in the reasons for refusal.
11. Mr. Osmand also questioned the opinions expressed by the Senior Planner (Appeals) concerning landscaping. He asked why it was that the Planning Department often requested landscaping plans to be produced in relation to certain  applications  if,  as  stated  by  the  Senior  Planner  (Appeals),  such landscaping was not an important factor and played only a transient role in screening  buildings.  Mr. Osmand,  in  response  to  comments  made  earlier regarding the seasonal reduction in screening levels, then advised the meeting that two of the photographs of the view from the balcony, which he had included in his submission to the Board, had been taken in February and July 2009 respectively and showed little discernable reduction in foliage density.
12. The Chairman thanked both parties for attending the meeting and also for allowing Mr. Platt to be part of the proceedings. The parties then withdrew from the meeting to enable the Board to consider its findings.

6. The Board's findings

1. The Board acknowledged that there had been a number of documents missing from  the  Department's  submission  which  were  actually  pivotal  to  the Minister's decision-making process in relation to the application. Without the benefit of the 10 photographs, the letters of objection and also the Planning Department's policy in relation to gardens (alluded to by the Senior Planner (Appeals) during his verbal submission), it was extremely difficult for the Board to determine whether the Minister would have been able to make a sound judgement in relation to the overlooking issues. This was particularly pertinent in relation to Wichita, as the Board struggled to see how it could have been possible to conclude that the balcony could 'result in unacceptable overlooking to the private amenity spaces of the neighbouring properties Li- Vana' (35 Victoria Court) and Wichita' and would afford direct overlooking to their principal windows' as stated  in the reasons for refusal, when no member of the Board had been able to see more than the roof of Wichita even when venturing to the edge of the designated balcony area.
2. The Board also wished to emphasize that it would have been able to reach a firm  conclusion  had  the  Department  ensured  that  all  of  the  relevant documentation and evidence had been included within its submission. The

Board  expressed  its  disappointment  that  this  had  not  been  the  case, particularly as the 10 photographs were so critical to the Minister's decision- making  process.  The  Board  suggested  that  there  should  have  been  a reasonable  period  of  notice  given  to  Mrs. Paling  when  the  site  visit  was arranged, especially as the whole purpose of the visit had been to assess the overlooking issues from the balcony, and there should have also been liaison with  the  2 neighbours  concerned,  in  order  to  enable  the  Minister  to  be afforded a comprehensive and authentic understanding of the site, rather than relying on the crucial 10 photographs.

3. The Board was mindful that the balcony had been constructed in breach of the planning  permit  and  that  this  was  a  retrospective  application.  The  Board nevertheless  concluded,  in  accordance  with  Article 9(2)(d)  of  the Administrative Decisions (Review) (Jersey) Law 1982, that the Minister's decision could not have been made by a reasonable body of persons after proper  consideration  of  all  the  facts'.  The  Board  reached  this  conclusion because of the inclusion of Wichita within the grounds for refusal in relation to the balcony on the west of Willowmere when it was manifestly clear to the Board that no such overlooking was possible from the balcony. This inclusion, in the Board's view, cast doubt on the validity of the whole decision to refuse. The Board does not believe it was possible for a reasonable decision to have been made by the Minister without going onto the balcony and into the garden of Li-Vana as the Board had done. The Board therefore requests the Minister to reconsider his decision within 2 months and to report back to it with his decision. Before doing so, the Board believes it is essential that the Minister conducts a full site visit, having given reasonable notice of his proposed visit to the owners of both properties and made appropriate arrangements.

Signed and dated by:  .....................................................................................

Mrs. C. Canavan, Chairman

.....................................................................................

Mrs. M. Le Gresley

..................................................................................... Mr. T.S. Perchard