Committee of Inquiry: Reg’s Skips Limited – Planning Applications – First Report.

STATES OF JERSEY

COMMITTEE OF INQUIRY: REG'S SKIPS LIMITED – PLANNING APPLICATIONS – FIRST REPORT

Presented to the States on 16th September 2010

by the Committee of Inquiry: Reg's Skips Limited – Planning Applications

STATES GREFFE

2010   Price code: G  R.118

TABLE OF CONTENTS

1 INTRODUCTION.................................................................................................5 2 SUMMARY OF MAIN FINDINGS ...................................................................11 3 HOW REG'S SKIPS BEGAN.............................................................................17 4 THE HOMESTEAD APPLICATION.................................................................21 5 HEATHERBRAE FARM....................................................................................23 6 THE MARCH 2005 "PRE-APPLICATION"......................................................27 7 THE SUBSTANTIVE 2005 APPLICATION.....................................................31 8 THE EVOLUTION OF HEATHERBRAE FARM.............................................41 9 THE COMPLAINTS...........................................................................................43 10 THE 2006 REQUEST FOR RECONSIDERATION ......................................57 11 THE PRELUDE TO THE ENFORCEMENT NOTICE .................................73 12 THE 2007 ENFORCEMENT NOTICE...........................................................83 13 THE 2007 APPLICATION TO ROOF OVER................................................93 14 THE VOISINAGE CASE...............................................................................109 15 RECONSIDERATION OF THE 2007 APPLICATION...............................111 16 THE 2008 COURT HEARINGS...................................................................127 17 THE COSTS..................................................................................................133 18 CONCLUSIONS............................................................................................137 19 RECOMMENDATIONS...............................................................................141 ANNEX 1 – CHRONOLOGY............................................................................143 ANNEX 2 – THE POLICY CONTEXT.............................................................149 ANNEX 3 – TRANSCRIPT OF A TELEPHONE CONVERSATION.............151

1  INTRODUCTION

1. The Committee of Inquiry was appointed by the States on 20th October 2009 with the following terms of reference –

To investigate all planning matters relating to the various relevant planning applications made by, or on behalf of, Reg's Skips Ltd. in connection with the activities of the company as skip operators –

1. to establish whether the various planning applications were determined appropriately and to a standard expected of the Planning and Environment Department;
2. to establish whether the legal fees accrued by Reg's Skips Ltd. totalling nearly £300,000 were as a result of any failings in the processes or actions of the Planning and Environment Department; and
3. to make recommendations for changes and improvements to the planning process to ensure that any failings identified in relation to these applications are not repeated in the future.

2. The proposition to establish the Committee was brought to the States by Senator F.E. Cohen, Minister for Planning and Environment (the Minister'). He proposed the first two of the above terms of reference, recognising that they would require a thorough look not only at procedure and decision-making in his own Department, including from before he himself became Minister, but also at the impact of its actions upon Reg's Skips Limited (RSL), the company's landlord, Mr C. Taylor (owner of Heatherbrae Farm, St John), and neighbours Advocate and Mrs M. Yates, who were the principal complainants in the case. The third, broader, term of reference was added by an amendment during the States debate on the proposition.
3. This initiative by the Minister followed an earlier debate on a proposition by Senator B.E. Shenton that Reg's Skips Limited (RSL') should be compensated for costs incurred in defending a civil action brought against the company in the Royal Court by Mr and Mrs Yates. The reasoning behind this proposition was that the legal action against RSL had arisen only because of shortcomings on thepart of the Planning and Environment Department (the Department') regarding RSL's relocation to Heatherbrae Farm in 2005 and its handling of subsequent events after complaints were received about noise pollution. After lengthy debate the proposition was not agreed by the States, whose sentiment was that the matter warranted independent examination before any view on its merits could properly be taken. The Minister responded promptly to this by proposing to set up the Committee.

4. The initial debate in the States had been on 1st April 2009. The Minister's proposition to take matters forward through a committee of inquiry was agreed on 13th May 2009. There was then a five month delay until our being established was agreed bythe States on 20th October. After due formalities we thus began work only in November 2009, some eight months after Senator Shenton's initial proposition was lodged and almost five years since the commencement of the main train of events to be examined.
5. We started by seeking out relevant files and documents held by the Department's Development Control Section and other departments such as Health Protection (part of the Health and Social Services Department). It proved to be a less than wholly straightforward exercise for all the relevant papers to be identified and drawn together. There were a lot of them. We then identified those persons from whom we judged we should receive oral evidence in order to begin to understand what had occurred. Between December 2009 and March 2010 we held five public hearings for this purpose. We received or requested a range of memoranda and advice from various interested parties and have had helpful exchanges with several of them to clarify or illumine particular things as our work has progressed. This includes our having received very useful comments for accuracy on sections of our report in draft.
6. We place on record that we have had full cooperation from all those with whom we have needed or wanted to communicate. In particular, we have received valuable assistance from Mr and Mrs R. Pinel, the proprietors of RSL, and from the Minister and officers of the Department.
7. The voluminous evidence that we have received and reviewed has sometimes been less than simple to digest and interpret. The case had many twists and turns, some unusual, over several years. The papers from the Department also revealed that not inconsiderable elements of the actions it took concerning RSL, including Ministerial decision-making, were carried through with only limited preparation of reports or written memoranda, and without satisfactory minuting of decisions and actions taken. It also needs to be said that some of the key events we have been investigating happened over five years ago and memories fade, especially of the more commonplace activities that tend not to be recorded in detail in a busy government department. One potentially key witness, the late Advocate C. Lakeman, who represented RSL in the Court of Appeal in 2008, sadly died before we were in a position to seek to interview him. All this has made our task of understanding that much more onerous and is one reason why it has certainly taken a little longer to prepare this report than we had initially envisioned. We are confident, though, in now presenting it that we have been able to read, hear and review all appropriate evidence and that our analysis, conclusions and recommendations are accordingly well- founded.
8. This report addresses only the first two of our three terms of reference, that is, those concerning RSL's planning history and the way it, and Mr and Mrs Pinel themselves, came to be faced with some very particular problems and, eventually, substantial legal costs. We intend to present before long a second, final report pursuant to our third term of reference, on possible changes and

improvements to the planning process aimed at averting a repeat of any failings we have identified in examining RSL's case. We have found on the Department's side a fair number of failings of procedure and process, as will be apparent from this first report, and we want to give ourselves time enough to ensure that, once these are open for debate, so to speak, we are then able to make good, credible recommendations for the future conduct and governance of the planning process in Jersey that reflect what emerges from this report. This is not least because we got to know in the course of our work that we were not the first reviewer or official body in recent years to have identified failings' and apparent organisational weaknesses within the Department; and, indeed, in this regard we have also noted a recent initiative of the Minister himself to enlist expert advice to help simplify the planning process to make best use of the Department's resources. In the meantime, though, it is important that our findings and conclusions about RSL's case are brought into the public domain without more ado.

9. Our report starts with a short summary of our main findings. This summary is, in truth, reasonably comprehensible only when read alongside the main body of our report. That comprises a narrative account of RSL's planning case, the various actions by, and interactions with, the Department surrounding it, covering principally the period 2005–2008, and other key events, notably Mr and Mrs Yates' successful obtaining of an injunction requiring RSL to leave their premises at Heatherbrae Farm and related cases in the Royal Court and the Court of Appeal. The narrative is interspersed with commentary and criticism as the story goes along that we hope speaks largely for itself. Our conclusions in relation to our first two terms of reference then follow, together with certain recommendations.
10. We have added three annexes for the benefit of the reader. First, we have prepared a chronology of main events to assist charting a course through quite dense territory. Secondly, we have sought to adumbrate the Island's waste management strategy and policies, broadly as they obtained at the time. This is important background to the case. It includes, for example, reference to action by what is now the Transport and Technical Services Department (TTS)[1] in 2003, endorsed by the then Finance and Economics Committee, deliberately to further discourage the receipt of unsorted skip loads at the La Collette reclamation site, a policy that had a direct impact upon the nature of the skip industry in the Island by, in effect, imposing a requirement for mixed loads of inert waste in skips to be sorted on private land before being taken for disposal. Thirdly, we have reproduced the transcript of a telephone conversation on 9th January 2008 between the Minister and Senator Shenton. We were made aware of this conversation in evidence that we received and we deduced, correctly, that it had been recorded. We therefore prepared a full transcript from the recording on file at Senator Shenton's place of work. This conversation, together with the very fact of its having been recorded, has already happened to achieve some public notoriety and, since it is a very important piece of evidence, any misunderstanding about what was said in the course of it needs to be averted.

11. As already noted, we include such reference as is necessary to various cases in the Royal Court and the Court of Appeal: Mr and Mrs Yates' unsuccessful application for leave to seek judicial review of certain decisions of the Department and the Minister concerning RSL; their successful action in voisinage against RSL in the Royal Court (Yates v Reg's Skips Limited ([2007] JRC237)), RSL's unsuccessful appeal against the Royal Court's order for it to vacate its premises at Heatherbrae Farm ([2008] JCA077B), the Royal Court's direction that the Minister should pay a proportion of RSL's costs ([2008] JRC088), and the Minister's successful appeal against that order ([2008] JCA203). The significance and somewhat unusual nature of these cases adds more than a footnote to the history of RSL's planning case. It is not for us to seek to reopen the judgments that were delivered but we do comment on aspects. Linked closely to this, we also comment on aspects of the Department's evidence submitted both to the Royal Court (in both instances, but in the first on behalf of the plaintiffs, Mr and Mrs Yates) and to the Court of Appeal (on the costs appeal), which we think was not entirely sufficient in its account of the planning history, a factor possibly not without consequence in the way the various cases went. In any event this succession of legal actions is an especial reason why RSL's case in these years was out of the ordinary.
12. We do not apologise for having written a quite lengthy report. The shortcomings we have uncovered in the way that RSL's case was handled by the Department, especially once complaints about the company were first received in 2006, were considerable and we have felt it only correct to seek to elucidate them in some detail in order to justify our conclusions and to set the scene for recommendations in both this report and our second. Those in particular who profess interest in the quality of public administration in Jersey and the importance for good government of its being conducted to the highest standards will, we trust, find the narrative of some interest, perhaps regardless of specific interest or otherwise in planning policy and practice itself.
13. Throughout our report we have named all relevant actors in the story, including officers of the Department and some other officers. We are conscious that this has not always been the practice in reports such as this but our view is that disguising or omitting names would not be good on public policy grounds and might even seem to be tantamount to dissembling on our part. Moreover, if we did not name the relatively few officers who were involved in RSL's case, others, we reasoned, soon might or would. We do believe, however, that individual officers should not in anywaybe inhibited from saying publicly what they will about our report and our findings, whether individually, collectively or through the Minister or their Chief Officer. That is the best way, we think, to ensure good debate about our findings and the best contribution to the learning and improvement that may flow from them.
14. Where we have commented on the actions of individuals, those persons had the opportunity to comment for accuracy on drafts of what we proposed to say about them. We reviewed with care the drafting of our report in the light of comments received, makingmany changes as a result. The resultant findings

and conclusions, however, are ours alone and they do include criticism, to varying degrees, of the actions or approaches taken by the Minister, of other politicians involved in the work of the Department, and of certain officers. We have not shied away from doing this in fulfilment of our remit but in all cases we have been determined to present such criticism in a measured way.

15. One mitigation of any such criticism, perhaps applicable especially in regard to those who handled day-to-day work on RSL's case, is what we consider to have been some systemic weaknesses in the management and organisation of the development control function in the Department that potentially allowed elements of poor procedure and process to go unremarked and unchecked. Organisational weakness or failing does not excuse action that may have been unsatisfactory, misdirected or poorly executed, or corporate action that fell short of standards to be expected by citizens, but perhaps in some way helps to explain it. We also appreciate that the Department faced a good deal of pressure because of its relentless workload at a time of buoyant economic activity, and that senior officers also had to contend with other challenging factors, such as the introduction in 2006 of the Planning and Building (Jersey) Law 2002 and, in one particular instance, untoward external pressure from a political source. The true failing in this case was a corporate one and the responsibility for that has to be shared quite widely, including at the political level where justified. The same goes for learning from it.
16. We also make the point that many of the events we have endeavoured to describe and consider took place a good few years ago. Things have moved on, including in respect of both the political and official leadership of the Department, and while it has been our duty to seek to establish accurately what happened in this case several years ago, and why it happened, particularly where it did not go right, we are equally conscious of the need to look forward to improvements in the planning process and not just backwards to things that could have gone better at the time but didn't. That will be the theme of our second report. Meanwhile, we hope that the States, in accepting our analysis and recommendations, will create closure of an unfortunate saga, for the sake of all involved or concerned.
17. Transcripts of our public hearings will be made available in due course on the States Assembly website at www.statesassembly.gov.je. Other key documents that we sought or received will similarly be available. Some will not, such as, for example, legally privileged communications, material from commercial sources or otherwise given to us in confidence, and some documents relating to other planning cases that we examined for comparative purposes.
18. The Committee's direct expenditure to date has been £4,135, which has been found from the existing States Greffe budget. Two-thirds of this sum comprises the costs of recording and transcribing oral evidence. Most of the rest is attributable to hiring a good room at the Town Hall for our public hearings and the cost of newspaper advertisements about the same. Time spent on the case so far by our appointed Clerk has been notionally costed at approximately £10,000 but the Greffier of the States has been able to absorb this within his budgets for 2009 and 2010 without seeking refund from another source. No expenses have been claimed byany member of the Committee, whose contribution has been voluntary, although we received lunchtime refreshments during four of our five public hearings. The budget of £15,000 from the Planning and Environment Department that was identified for our work by the Minister for Treasury and Resources we have thus, so far, not needed to use.

19. Last but certainly not least the Committee wishes to place on record its commendation of the excellent support and advice it has had from its Clerk, Mr Ian Clarkson of the States Greffe. Our task would have been next to impossible without his continuous industry, knowledge, wisdom and grip from the moment of our appointment. His contribution has been an example of public administration in Jersey at its very best.

2  SUMMARY OF MAIN FINDINGS

1. A planning application submitted by RSL in 2004 to relocate to The Homestead, St. John, was generally determined appropriately, although the Department did not take into account relevant Island Plan waste management policies. (Paragraphs 4.1–4.9)
2. The policy and legal bases for the enforcement action initiated by the Department in 2004 to inhibit RSL's operations at La Prairie, St Peter, were not beyond challenge. The main driver was concern at the visual impact ofthe site as seen from the adjacent main road. The Department had no documented procedures or guidance for staff on pre-1964' sites. Nothing was put in writing to question the sorting of skips on the site byRSL although the notion of unauthorised' skip sorting at La Prairie became, later on, a key element in enforcement action against the company at Heatherbrae Farm. (3.8-3.14)
3. Once Heatherbrae Farm had been identified by RSL in January 2005 as a potential new location, the Department encouraged and assisted the move. In considerable part this was because it was seen as a solution' to the visual amenity problem' at La Prairie. The Department itself, unusually, sought pre- application advice from the Planning Sub-Committee and the very next day, notwithstanding a cautious response by the Sub-Committee as recorded in its minutes, assisted the landowner, Mr Taylor , to prepare and submit a planning application, which was accepted for processing immediately despite loose wording (which we believe was suggested by officers of the Department). (5.6–6.12, 9.14)
4. The Department's subsequent handling of this application fell short of a reasonable standard, although at this initial point that was not in any way detrimental to RSL. Health Protection was not properly consulted. It was told only that the use would be commercial' with no mention that a skip business would be involved. Later on, it said that, had it known what was involved it would have advised refusal. Policy considerations regarding such factors as noise pollution and development in the Countryside Zone were not taken into proper account, and the draft conditions were not reviewed by a senior officer in signing off the file asthey should have been. (One of these conditions, requiring operations to be conducted in the same way...as a skip storage and sorting yard only' as at the previous site, was very loosely worded, and the Department's interpretation of this came to lie at the heart of the problems that it later caused for RSL.) It is also far from clear that officers were empowered to determine the application under delegated powers, as they did. (6.8–7.28)
5. The Department's celerity in 2006 in initiating formal enforcement action against RSL in response to one neighbour's complaints about noise failed to take into account the scope of the planning permission that had been given. The permission had imposed no enforceable constraint either on the quantum of sorting of skips or on the working methods to be used for sorting. But, in response to the complaint, it was presumed bythe Department that it had, and that an increase in the number of skips sorted, compared with activity at the

previous site (for which there was no documented evidence), and the use of mechanical assistance for sorting, amounted to a material change of use (intensification') that required a fresh planning permission. This was not well founded in planning policy. (9.15–9.38)

6. The enforcement action taken by the Department against RSL in 2006, and key aspects of its subsequent treatment of the case, were capable of being seen as weighted too much in favour of the complainant's position, important though that was. The first action was initiated but two weeks after the first complaint was received (nine months after RSL had begun operations at Heatherbrae Farm), in the context of a barrage of well-argued communications to the Department from theone complainant. No written summary of the issues, including an analysis of the background to the 2005 permission and the looseness of the relevant condition, was prepared for review before any action was taken. (9.19–9.38)
7. The Department had no procedures laid down governing the enforcement function. There was a blank space in the Department's procedures manual under the heading of Enforcement'. (9.8–9.12)
8. The enforcement action, requiring RSL to cease using a mechanical digger to sort skips full of mixed inert waste, which RSL obeyed notwithstanding the questionability of its lawfulness, had negative financial implications for the company in that it had to employ additional temporary labour to sort skips manually in order to maintain turnover. (9.26, 10.18)
9. An outcome of the enforcement action was an invitation to RSL to submit a request for reconsideration of two of the conditions of the 2005 planning permission, in particular in order to allow mechanical sorting of skips. The Department should not have proceeded in this way because the planning permission already authorised skip sorting without constraint on method. A letter from RSL's lawyer objecting as a matter of law was, without being answered, deemed by the Department to constitute a formal request for reconsideration and was duly put in the public domain as an application.' It should have been protected under legal privilege. Nor was the landowner informed. This was maladministration bythe Department. (10.1–10.7)
10. The Department's report prepared for the Minister for a site visit at Heatherbrae Farm in September 2006 was extremely unsatisfactory. It offered no analysis of intensification' as a planning concept or of the legal arguments submitted on RSL's behalf in relation to the 2005 permission. It drew conclusions about noise that went beyond careful and measured advice from Health Protection. Somewhat astonishingly, it recommended that RSL should be required to end all skip sorting. There were no supporting arguments whatsoever to back up this extraordinary proposition, which would have amounted to a revocation of the planning permission, and no consideration at all given to the fact that the Minister had no powers to order such a revocation, and that even if he had a compensation situation would arise. The Minister fortunately had the good sense to ignore the report but the fact that it was presented to him at all did him, as well as RSL, very poor service. Nor was the report made public in accordance with normal practice. (It was supplied to the complainant on request after the event but not given to the other parties, who got to see it later onlyby chance when it was too late to take issue with alleged inaccuracies in it.) This too was maladministration. (10.28–10.40)

11. The Minister's good intentions at the site visit to seek to achieve a reasonable compromise were undermined –

1. by the lack of advice available to him about the validity of the existing permission, and
2. by the lack of advice available to the landowner, Mr Taylor , in order to give precision to the intended way forward signalled by the Minister (roofing over the yard used byRSL subject to meeting requisite, but unspecified, noise reduction objectives). (10.29-10.30, 10.42–10.46)

12. The Department failed formally to record the decisions taken bythe Minister at the site visit and the basis on which he made them. This was in breach of the rules for the recording of such decisions presented to the States shortly before the commencement of ministerial government. (10.54–10.55)
13. Mr Taylor followed the advice of the Minister and the Department given at, and following, the site visit, at not insignificant cost. This included taking professional advice on noise mitigation and various works on his site. This culminated in his submission, in December 2006, of a planning application to roof over the area utilised byRSL at Heatherbrae Farm. At the September 2006 site visit he had been led to believe that this would be approved provided the application could be backed by independent evidence of appropriate noise mitigation. (10.44-10.46, 11.20–11.29)
14. The decision in January 2007 to reject the 2006 reconsideration application' and to serve an enforcement notice on RSL was made at an informal meeting at which neither the advice given to the Minister (especially on Mr Taylor 's actions to seek ways of reducing noise since the September 2006 site visit) nor the reasons for the decision he reached were documented. The decision itself was not recorded at the time. These were breaches of the updated rules on the recording of ministerial decisions that had been presented to the States but a month previously. The decision was recorded only some five months later when the applicant', Mr Taylor , asked for copies of key documents. The wording of the decision document prepared then did not record what the Enforcement Notice had actually said. In fact, it reproduced the untoward September 2006 recommendation to end all skip sorting that the Minister had ignored! (12.1–12.14, 13.27–13.28)
15. When the case was referred to another planning officer following the decision of RSL to appeal against the Enforcement Notice, that officer concluded almost immediately that the notice was both unreasonable and unenforceable. This was readily confirmed by advice from HM Solicitor General. This was because it was recognised that one condition attaching to the 2005 planning permission was wholly inadequate (paragraph 2.4 above) and that the Department's attempt to rely on it to inhibit intensification' of a business was impermissible. The notice was subsequently withdrawn. (12.16–12.23)

16. Officers of the Department met with the complainant to advise him of the withdrawal of the Enforcement Notice. That was a reasonable courtesy. There was, however, also some discussion at this meeting of the tactics the complainant might now want to pursue, including whether a civil action against RSL might be the most effective method of his resolving things. Although this did not influence the complainant's actions it was inappropriate subject matter to have been raised by an officer of the Department. (12.32– 12.33)
17. In April 2007 the Department refused Mr Taylor 's roofing-over' application under delegated powers. The handling of this decision, and the reasons given for it, were not satisfactory given what had happened at, and since, the September 2006 site visit. In particular, a very high, effectively impassable, test of noise mitigation was imposed, possibly unthinkingly, that went beyond Health Protection's advice on the application. There was no planning policy on noise on which case officers could draw. Given the particular circumstances of the case and the prior involvement of the Minister, whose intervention at the site visit had led to the application in the first place, this application should have been referred for a political decision. (13.6–13.26)
18. The Department acceded to a request by the complainants' lawyer to provide a witness statement for the Royal Court on their behalf as plaintiffs in their civil action against RSL (the voisinage case). This was very unusual, though not inherently irregular. Legal advice, either on the statement itself or the giving of it, was not taken. The statement was provided to the Royal Court only 24 hours before the case began. This put RSL's lawyer at a considerable disadvantage and inhibited his ability to challenge it. On his application, however, two paragraphs of the statement were struck out by the Court, including an expression of sympathy for the predicament of the complainant and an acknowledgement that, with hindsight, the 2005 planning application was more significant than had been anticipated at the time. The statement rehearsed key aspects of the planning history without exactitude. In particular, it did not address the Department's motives in encouraging RSL's move to Heatherbrae Farm in order to resolve what it saw as the La Prairie problem', or set out the supportive actions it took to get the planning permission accepted and decided quickly. It did not address the intensification' question as a matter of planning policy, the defectiveness of the key 2005 condition (paragraphs 2.4 and 2.15 above), or, following on from that, the reasons for the withdrawal of the Enforcement Notice. This was important not only intrinsically but also because it created an unsatisfactorily incomplete factual basis for the Court. (13.44–13.49)
19. The Royal Court found against RSL and issued an injunction requiring it to leave Heatherbrae Farm after a due period of notice. The Court, however, expressed sympathy for the plight of the defendants and concluded that RSL had been permitted, if not encouraged' by the Department to establish its business at Heatherbrae Farm, which it did in good faith. This led to the Court ordering that the Minister should pay 25% of RSL's legal costs (albeit that the order was subsequently overturned). (14.1–14.5, 16.1–16.10, 16.17-16.22)

20. RSL's decision to appeal against the Royal Court's judgment was directly influenced bythe Minister's assurance, given during a telephone conversation with Senator B.E. Shenton in January 2008, that Mr Taylor 's roofing-over' application, by now the subject of a request for reconsideration, would be approved. What he said touched directly on the one plausible line of appeal in view at that stage, viz. a change of circumstances that could enable the Court to take a different view. Although the Minister also said that RSL needed to be sure that it had taken good legal advice before appealing, and notwithstanding the singular circumstances of the conversation, he should not have made any such statement, not only as a matter of principle because it fettered ministerial discretion but also because he had stood himself down, several months before, from determining the case on account of a perceived conflict of interest. During the conversation the Minister expressed a personal view of the process surrounding the granting of planning permission for RSL in 2005 that he had expressed to Senator Shenton, a view he could have acquired only from officers' briefing. (15.3–15.16, Annex 3)
21. Mr Taylor 's roofing-over' application request for reconsideration was, nonetheless, rejected by the Assistant Minister in April 2008 in line with a strong recommendation from the Department. These parties were unaware of the Minister's assurance. The report presented to the Assistant Minister did not serve her well. It failed to set out the full case history, including the Minister's intervention at the September 2006 site visit that had heralded the application now before her. It iterated, again, an all but unachievable noise test that had not been recommended by Health Protection and the line of argument concerning intensification of use' that had been discredited bythe withdrawal of the Enforcement Notice a year earlier. It made no mention of the enforcement notice saga itself. The report was published and then, unusually, was withdrawn because of objections by the parties. The revised version did not remedy the deficiencies noted above. (15.21–15.49)
22. RSL lost its appeal against the voisinage judgment. It decided to switch to another law firm and the grounds of its appeal were changed on the advice of the new lawyers. Had this change not been made, the original, single, ground of appeal (the putative imminent likelihood of approval of the roofing-over' application) would have fallen away once the application had been rejected. This would almost certainly have led to the appeal's withdrawal. Thus RSL's decision to switch lawyers was, with hindsight, costly. It was not a decision that could be directly attributed to failings on the part of the Department. (15.18–15.20, 16.11-16.16)
23. RSL's costs consequent upon the Department's enforcement actions against it from April 2006, the voisinage case, the costs hearings relating to the same and the appeal were £249,000. This is somewhat less than the sum cited in our terms of reference. It mostly comprised legal fees, including taxed plaintiffs' costs payable byRSLas the losing side. But it also included labour costs incurred in 2006 as a result of the Department's enforcement action to halt mechanical sorting of skips. (17.1–17.8)
24. Of the £249,000, we consider that the sum of £157,000 was incurred as a direct consequence of failings in the processes or actions of the Department. This

figure excludes costs incurred following RSL's acceptance of the second opinion and its consequent decision to change lawyers on or around 20th February 2008. The balance, £92,000, would, for better or worse, have been averted had the ground of appeal remained unchanged, for given the Department's decision in April 2008 to refuse the request for reconsideration of the roofing-over' application the ground would have become untenable. We understand RSL borrowed a considerable sum in order to settle its costs but, in the absence of firm evidence to confirm the arrangements made, no interest costs have been taken into account in preparing our calculations. (15.20, 16.16, 17.5)

25. Mr Taylor spent in excess of £10,000 on planning applications, driveway resurfacing works and professional fees. Mr and Mrs Yates incurred legal and professional costs of £170,000 of which they recovered £80,000 from RSL. It would be impracticable to seek to estimate how much the whole episode notionally cost the Department in time and effort, but it would have been a lot. (17.9–17.11)

3  HOW REG'S SKIPS BEGAN

1. Mr and Mrs Pinel decided to start their own skip business after J.H. Michel & Son, for which Mr Pinel worked, was purchased in 2000 by Mr W. Le Marquand's recycling and skip hire business.
2. Mr Pinel purchased his first skip lorry on 27th September 2000, together with 50 skips. Reg's Skips then commenced operations from Home Farm, Le Mont de la Hague, St. Peter , having leased land at that property from Mr G. Le Ruez.
3. RSL was formed in March 2001.
4. The company offered from the outset a waste collection, sorting and disposal service. Mixed loads were generally sorted on site. Sorting of waste materials was generally performed by hand, although bought-in mechanical assistance was utilised when loads were too heavyor bulky to process in that way. RSL gained its own capacity to sort skips mechanically after 22nd June 2005, when the company leased a mini-digger.
5. RSL identified significant demand for the services it provided. It was therefore able to achieve notable growth within its first two years of operation. By December 2002 the company had acquired its fourth skip lorry and a significant quantity of additional skips, and employed a fourth driver. Management support was provided by one part-time member of staff. RSL later acquired one further skip lorry and one ancillary vehicle (which was subsequently replaced), and took on two additional members of staff. By 2004 RSL possessed approximately 350 skips, the number remaining close to that thereafter.
6. On 14th December 2001 the Department received a complaint about RSL's operations at Home Farm from an anonymous concerned parent' whose children attended the neighbouring St George's School. Mr and Mrs Pinel believe that the complainant was the owner of a competitor company. This prompted some investigations by a Planning Enforcement Officer, who concluded that the operations carried out at Home Farm byRSL were not authorised under the Island Planning (Jersey) Law 1964. Although the owner of Home Farm subsequently submitted a planning application to seek to regularise the use, this was subsequently refused bythe Department on the grounds that the storage of skips was considered an inappropriate use in the countryside and contrary to Policy C6 (Countryside Zone) of the Island Plan 2002.
7. On 19th January 2004 a Review Board upheld the decision to refuse the application and by April 2004 RSL was forced to vacate the premises. It is worthy of note that the primarypolicy basis on which the Committee based its refusal and its case before the Board (and which, one year on, it would later put to one side) was as follows –

the storage of skips represents an inappropriate storage use in the countryside, detrimental to the amenities of the area and contrary to Policy C6 (Countryside Zone), which states that this zone will be given a high level of protection and there will be a general presumption against all forms of new development for whatever purpose.'

8. The company relocated to a site in St Peter, known as La Prairie, La Route de Beaumont. This site, which also belonged to the owner of Home Farm, was smaller than the Home Farm site and adjacent to the main road. Planning permission was not sought because La Prairie had been in commercial use since well before the coming into force of the 1964 Planning Law. We understand that the site had been a haulage depot' where vehicles, trailers, skips and other items of building plant were stored and maintained.
9. Sales records and invoices shown to us byRSL indicate that the company was receiving and processing on average about 50 mixed loads per month while at La Prairie. Broadly half of these were taken for processing to another company, Abbey Plant, because of La Prairie's limited size. For a time in 2004 RSL also sorted mixed loads at a property known as McQuaig's Quarry, St John. We learnt, however, that that arrangement ceased after a few months following intervention by a Planning Enforcement Officer.
10. Mixed load sorting generated significant income for RSL and its having to subcontract such work impacted on profitability. For that reason Mr and Mrs Pinel were keen to find another site with more space. The urgency of this search was heightened in the latter part of 2004 following complaints to the Department about the appearance of the La Prairie site, at least one of which was made by a member of the States. Mr Le Gresley, the Assistant Director – Development Control, also told us that having motored past the site from time to time he had commented to his Enforcement Section that the site looked a mess'. Mr G. Bisson, former Enforcement Officer, told us that he had received a number of complaints about the sorting of skips at La Prairie and that several of the complaints had been made by politicians. On 19th August 2004 he therefore wrote to RSLin respect of the La Prairie site, saying –

For the avoidance of doubt, I would confirm that the storage of skips is in order, however, the keeping of skips full of waste material is not'.

11. This intervention reflected several factors. First, the complaints received, and indeed Mr Le Gresley's comments to Mr Bisson, were essentially about the visual impact of RSL's activities at La Prairie, notably for passers-by and motorists, not noise impact or disturbance of neighbours. This was confirmed to the best of officers' recollections in our first public hearing. Such enforcement action as was taken against RSL at this point was driven by those reasons. Secondly, Mr Bisson said that his view, once he had checked with planning colleagues, was that the keeping of full skips, and skip sorting, at La Prairie represented a material intensification amounting to a change of use beyond that of a haulage depot. He told us that he knew that sorting of skips did take place (although to his knowledge by hand only) and that he had said to Mr Pinel that it was impermissible. Various conversations with Mr Pinel led to the letter of August 2004 noted above, which however, and perhaps not insignificantly, did not explicitly say that sorting of skips was not permitted. It was concerned, rather, with the visual' problem of the storage of full skips because, to quote from the letter again, the site is in full view to passing members of the public'.

12. Thirdly, the intervention rested on a presumption that the Department was empowered at that time to control the site under the 1964 law, notwithstanding that commercial usage had been in place well before 1964. We conclude that this was presumptive action because the Department was unable to demonstrate to us that it had any relevant entry in a procedures manual or any formal legal advice on file covering the subject of pre-1964' sites. Nor did the Department possess any reliable documentary evidence confirming the precise use to which La Prairie had been put prior to 1964. What was on file, however, was evidence that in 1996 the Department had considered an established commercial haulage use at another site to be sufficient for the purposes of both skip storage and sorting. Given that La Prairie seems to have benefited from a long-established commercial haulage use, we suggest that the Department was not quite as well placed to progress enforcement action as it had indicated. Mr Bisson said that he had a good personal knowledge of the La Prairie site history. We accept that but this was hardly sufficient by itself to give legitimacy to the Department's seeking to control RSL's operations on the site, especially in view of the Department's actions in 1996.
13. We ourselves sought legal advice on whether RSL could lawfully have been prevented from continuing to sort skips at the La Prairie site. We concluded from this advice that the Planning Department's approach was not beyond challenge. Article 5 of the 1964 Law required that the Committee's permission was needed to develop land. It also confirmed that a material change in the use of a building or land would constitute development and, further, that the deposit of waste or refuse on land would constitute a material change of use in certain specified circumstances. From the evidence we have received we cannot conclude that these factors applied to RSL's operations and it might well have taken legal action to resolve the question had RSL not been minded to respond to the Department's pressure in the cooperative manner that it did. The larger concern, though, is that the Planning Department was seeking to act in a way that potentially had a significant adverse impact upon a private business in the absence of settled policy and procedure backed up, as necessary, by legal advice. The enforcement function, Mr Le Gresley said to us, was just custom and practice over the years, to be honest'.
14. It seems RSL largely complied with Mr Bisson's letter and avoided storing full skips at La Prairie, save occasionally overnight or at weekends, which it was told was all right. We deduce this because the Enforcement Section case file notes reveal a marked lack of activity in respect of La Prairie between August 2004 and May 2005. No specific enforcement action was taken in respect of skip sorting, which continued as and when.

4  THE HOMESTEAD APPLICATION

1. In May 2004, shortly before Mr Bisson first intervened at La Prairie, RSL applied to the Planning Department for planning permission to operate from a property known as The Homestead, La Rue de L'Etocquet, St John. The application was marked P/2004/1056 and assigned to the then Miss E. Baxter, Senior Assistant Planner. Her advice after assessment was that the application should be refused, on the grounds that the anticipated disturbance (particularly noise) to neighbouring residents would be too great and because the proposed use would not be appropriate in the Green Zone. This was accepted by a senior officer and the application was duly turned down under delegated authority. As RSL was desperate for a viable new home, and as The Homestead seemed at that time to be the only available option, RSL submitted a request for reconsideration of the application bythe full Environment and Public Services Committee (EPSC).
2. The EPSC carried out a site visit at The Homestead on 20th January 2005 with Senator P.F.C. Ozouf , then President of the Committee, in attendance. Connétable R.N. Dupré of St John was not present and took no part in the subsequent determination of the application as he had previously expressed an opinion on it.
3. The report by officers for the site visit was limited in detail and did not address relevant waste management policies within the Island Plan 2002. This is an omission that occurred again in subsequent reports about RSL and it leads us to the view that the Department had not in any guise taken steps corporately to ensure that these important wider policies were taken into account, alongside other, possibly more mainstream', planning issues in the Island Plan. Mr Thorne in fact confirmed that in his evidence to us, referring not just, or even mainly, to RSL's case. (Yet, as will be seen later (paragraph 13.33 below), the Minister, when he became involved in RSL's case, did have such considerations well within his purview, which in our view was creditable.) What this seeming omission meant in 2005 was that the Department did not readily perceive RSL to be a waste management' business operating in a sector of the economy for which planning policy properly made some considerable provision. By the same token it is evident that the Department was not conscious of other States policies that were having the very direct, and indeed deliberate, effect of driving up demand for skip sorting on private land. Nor is it apparent that the connection to broader policy was made by other departments consulted on the application.
4. RSL's request for reconsideration was refused on 20th January 2005, notwithstanding representations in support of the company by Deputy P.J. Rondel of St John. The refusal reflected the Committee's concern at possible noise disturbance affecting neighbouring residents and the anticipated appearance of the site from the north. These were clearly not unreasonable concerns.
5. It is nevertheless apparent that the EPSC was trying to keep the door open for RSL. The minute reads as follows –

The Committee decided to maintain refusal of the application, but noted that the applicants would be invited to re-apply with modifications to the application, notably guarantees in respect of the permanent coverage of entrances on the south side, and the screening of the site from the north.'

6. This positive intent may have been reflected recognition by Senator Ozouf and his political colleagues of the wider waste policy implications. In any event it was commendable. Mr and Mrs Pinel, however, told us that they had decided at this point not to pursue the Homestead site option further, not least because they realised that the issue of neighbours being very close would remain problematical however a possible re-application might have been formulated.
7. Miss Baxter (who no longer works at the Planning Department and who is no longer resident in the Island) telephoned Mr and Mrs Pinel promptly after the 20th January meeting and reported the Committee's decision. Confirmation of the decision was provided subsequently in a letter she sent dated 1st February 2005. This letter made clear that the Department would seek to assist RSL in its search for a new home. The following extract is of particular note –

During our telephone conversation I indicated that I would attempt to put together a list of recent applications for sheds and sites which may be suitable for the business which you currently operate. I am still in the process of compiling this list and shall forward it to you in due course. If in the mean time you find a site which you feel may be suitable, please write into the Department and I shall be happy to offer an informal opinion as to whether the site may be appropriate.'

8. This was a very satisfactory and helpful stance by Miss Baxter, no doubt building on the political discussion to which she had recently been privy, and Mr and Mrs Pinel told us that they took the same view.
9. We conclude that the Homestead application P/2004/0156 was generally determined appropriately and to a standard expected of the Department. We say more later about the impact of the helpful approach instigated byEPSC and reinforced by Miss Baxter.

5  HEATHERBRAE FARM

1. Mr and Mrs Pinel's search for a new location for their business continued. It was at the point of the Homestead refusal in January 2005 that the Pinels received a suggestion from a third party that they should approach Mr C. Taylor , the owner of Heatherbrae Farm, St John.
2. Mr Taylor had recently ceased dairy farming, taking advantage in 2002 of an initiative by the States to restructure the dairy industry. Through his consequent pursuit of alternative uses for his farm buildings and farmyard land, he had established a regular contact at the Planning Department. This was Mrs E. Ashworth (then Miss Clapshaw), a planning officer of long standing. On 1st August 2002 Mr Taylor had received an initial three year, time-limited permission for a change of use at Heatherbrae from redundant dairy buildings to dry storage. Thus began an important evolutionary change in the use of the Heatherbrae Farm site.
3. The 2002 permit issued to Mr Taylor specified three conditions. Conditions 2 and 3 in particular demonstrated that the Committee of the day had adopted a very cautious approach to the application, having weighed the commercial realities facing the landowner against the land use implications for a site deemed to fall within the newly classified Countryside Zone now that the Island Plan 2002 had come into effect. These said –

2. That prior to the dry storage operation coming into use, the

User shall be agreed with the Planning and Environment Committee.

3. The use hereby permitted is for dry storage purposes only and

no processes or manufacturing shall take place on the premises, nor shall any employees be engaged on the site.'

4. Mr Taylor said that hefelt that these arrangements were stricter than had been imposed in some other, similar, circumstances but it is not within our remit to consider that.
5. When Mr Taylor identified a potential client for one of what became his series of dry storage units he would write to Mrs Ashworth with details. We observe that these letters were processed rather informally and that they were not referred to the full Committee in accordance with its August 2002 decision. Instead Mr Taylor would receive a letter from Mrs Ashworth confirming whether the proposed use and user were considered acceptable' by the Department or, if more information were required, requesting the same. Mr Taylor , and indeed the Department, relied on such letters of confirmation in lieu of the issuing, each time, of a new or updated permit and he had no reason but to assume that officers had the authority to administer such approvals in such a manner on the Committee's behalf. Our own view, having reviewed the August 2002 decision and the delegation agreement in place during this period, is that these particular matters were not authorised for determination at officer level.

6. One of the proposed users of the Heatherbrae Farm site was a haulage company looking for somewhere to park lorries and a mechanical digger. Correspondence between Mr Taylor and Mrs Ashworth in April 2004 indicates some relatively specific concern on the latter's part about aspects of the proposed use, including the possibility of the sorting of loads occurring. Approval was given by Mrs Ashworth only after she had reviewed additional information on traffic movements and other matters, and after Mr Taylor had accepted that any storage of topsoil and hardcore would require a separate change of use application. One can surmise from this episode, as did Mr Taylor , that the Department was quite strongly focussed at this point on his not being able to go beyond normal dry storage at Heatherbrae Farm.
7. When Mr and Mrs Pinel got to know about Heatherbrae Farm as a possible option for the relocation of their business, they communicated the suggestion promptly to Miss Baxter pursuant to her offer of assistance already made. Mr Taylor told us that Miss Baxter accordingly visited Heatherbrae Farm on or shortly before 24th January 2005, saying that she thought it would be an ideal site for RSL and that were he to be agreeable to RSL's moving to his land he would be helping out the Department'. Miss Baxter, in her written evidence, said that she could not recall the visit, although it might well have occurred. Mrs Ashworth certainly said in her evidence to us that it had. Mr Le Gresley said he had no reason to doubt that it did. We conclude that it definitely did. Notwithstanding, Miss Baxter did not think that she would have spoken in quite the terms reported by Mr Taylor but wehave no reason not to accept the latter's testimony on the thrust of Miss Baxter's remarks. As reported, they were entirely in keeping with the helpful stance of the EPSC that we have already identified, and with the terms of Miss Baxter's letter to RSL.
8. Mr Taylor was thus, as he put it, left with the clear impression not only that the Department regarded Heatherbrae Farm as a potentially good location for RSL but also that he would be assisting the Department if he submitted a planning application to that end. By this time, January 2005, as the three year period of his original change of use permission approached its end, he was entitled to infer that the Department's stance towards his property was changing from that referred to at paragraph 5.6 above. This was naturally positive for him from a business perspective. The stringency of the conditions attached to his temporary 2002 permit and the slight difficulty he had had the previous year over the vehicle storage application should otherwise have left him in not much doubt that the chances of securing planning approval for something on his land going beyond dry storage to an enterprise such as a skip sorting business would be remote at best.
9. Soon after Miss Baxter's visit to Heatherbrae Farm, Mr Pinel also visited it for the first time. He readily came to the conclusion that the site in question – the former silage clamp, a partly walled, concreted area – would be ideal for RSL and he expressed that view to Mr Taylor . The latter, having regard as well to Miss Baxter's positive stance, thus began to commit time and resources to the securing of permission for RSL to relocate to his property.
10. On 24th January 2005 Mr Taylor wrote to Mrs Ashworth citing an approach from Mr Reg Pinel of "Reg's Skips Limited" '. This letter was written in the

usual manner, seeking approval for RSL to undertake skip storage and sorting at Heatherbrae Farm. The letter made no mention of Miss Baxter's visit and it followed broadly the same format as Mr Taylor 's previous letters about possible tenants. He told us that he took this step immediately following Miss Baxter's visit and her encouragement to him to take on' RSL. RSL itself had no contact with the Department at this stage about Heatherbrae other than Mr and Mrs Pinel's initial contact with Miss Baxter in January that had set things in motion.

6  THE MARCH 2005 "PRE-APPLICATION"

1. The Planning Sub-Committee (PSC) considered the proposed relocation of RSL as a pre-application advice' item at its meeting on 9th March 2005. Mr Taylor , however, had not requested pre-application' advice; he had no reason to, having already had the benefit of Miss Baxter's views. He had, at this point, simply applied' for a new tenant in the usual manner in place since August 2002. Given that RSL had not requested pre-application advice either (the company had no contact with the Department during this period), we are satisfied that the agenda item was initiated by the Department itself. This was not a usual procedure but was not unreasonable if one concludes that the Department was at that time at least partially aware of the policy implications arising from the proposal in a way that made it desirous of guidance at the political level. The evidence indicates that the Homestead and Heatherbrae Farm cases were the Department's first concerning skip sorting on land in the Countryside or Green Zones. That the Department itself took this step underscores, moreover, the fact that it was actually keen to get RSL moved to Heatherbrae Farm in order to bring to an end what it regarded as the visual' problem caused byRSL at La Prairie. The Department's evidence submitted to the Royal Court on behalf of the plaintiffs in the voisinage case in 2007 stated wrongly that RSL itself applied for pre-application advice.
2. The Chairman of the PSC at the time was the then Deputy J.L. Dorey ofSt Helier. Only Connétable R.N. Dupré of St John was present with the Chairman for the consideration of the item. Deputy M.A. Taylor had withdrawn, having cited a conflict of interest.
3. The report submitted to the PSC was prepared by Miss Baxter. There is no evidence on file to show that the report was seen in draft byMrs Ashworth, the main repository of knowledge about Heatherbrae Farm, or that it was reviewed before issue by senior officers. The template for such reports includes a space for a senior officer to add her or his signature and the date of signing; the copy of the report on the file, however, lacks such an endorsement.
4. Miss Baxter's report made it clear that RSL was involved, that the company both hired out and sorted skips, and that it operated at that time with four lorries. Broader factors, however, were not covered in the report in a comprehensive manner. For example, RSL's operation was described as a small amount of commercial use,' yet the only data provided by which the scope for impact could be gauged by the Sub-Committee was the number of lorries owned. Although Heatherbrae Farm's dry storage permission was correctly noted, no reference was made to the fact that, in 2002, the Committee as previously constituted had viewed the site with sufficient caution to make the dry storage permission temporary in the first instance. Nor was reference made to the fact that the temporary permission would be up for renewal shortly. The report did not outline the full range of occupants at Heatherbrae Farm approved by officers without recourse to the EPSC and did not elaborate on the waste management processes to be conducted on site. Importantly also, it did not in any guise elucidate the encouragement for RSL's intended move to the new site that had already occurred; rather, the matter was inappropriately presented as solely an initiative of the site owner, Mr Taylor . Whether or not the (only) two PSC members knew more of the case than had been set out in the report, which we have no reason to presume, the historical record on the planning file would be clouded by these shortcomings.

5. The essence of the report was that Heatherbrae Farm was already intensively used' for dry storage and that, therefore, the proposed change of use would not have a detrimental impact upon the character or amenity of the area. And any impact upon neighbours would be limited. It stated –

Impact on Neighbours The nearest neighbour to this site is the owner, who has approached the Department with this suggestion. It is considered that whilst it is proposed to convert a small part of the shed to a commercial use (rather than the whole site), this will not be damaging to the character of the countryside as the use is similar in nature to those already located on site.'

6. The position of the site within the Countryside Zone, as defined by Policy C6 of the Island Plan 2002, was recognised, as was the fact that such commercial activity in the Countryside Zone would not normally be regarded as a desirable use. This had, of course, been the clear position adopted both by officers and the EPSC when RSL's application for skip sorting at Home Farm had been rejected. Although waste policy considerations themselves could have been prayed in aid – they were highly topical at the time in the lead up to the 2005 Waste Management Law and the Solid Waste Strategy debate – they were not mentioned. A site visit was not recommended. Instead the PSC was all but invited to set anypolicy conflict to one side in order to enable a problem to be sorted through the following observation –

...it has proven difficult for Reg's Skips to find a suitable alternative site in the Built-up area that would not detrimentally affect neighbouring residents.'

7. Unusually, in a notable deviation from normal practice, the Committee's discussion was minuted as a confidential or Part B' item. In accordance with the provisions of the Code of Practice on Public Access to Official Information, the Minute was marked with an exemption clause asserting that disclosure would, or might, be liable to constitute an unwarranted invasion of the privacy of an individual. This meant, for example, that States Members interested in these things would have been able to read this particular item only following a specific request to the Committee (that would, in practice, have required prior knowledge). A review of the PSC's minutes for 2005 reveals that pre-application advice was generally recorded as an open or Part A' item, both before and after March 2005 (although, of course, this was pre- application' advice of an abnormal kind because, as we now know, it was not initiated by a prospective applicant). Indeed, Senator Ozouf , the then President of EPSC, told us that he worked on the basis that, wherever possible, Planning minutes should be recorded as Part A items on grounds of transparency. We find it quite hard to believe that there was not some element of deliberativeness by the Department in the Part B categorisation, perhaps linked to the relative sensitivity of any issue concerning commercial development in the Countryside Zone, simply because Part A was the default option.

8. Minutes of the PSC were recorded by a Committee Clerk from the States Greffe. The particular minute of the discussion on 9th March is rather short and perhaps simply reflects a rather perfunctory discussion by the Sub- Committee as it worked itsway through a large agenda. Two aspects of it are, nevertheless, worthy of remark. First, there is no reference to Reg's Skips' or even the word skip' in the text. This compounds the opaqueness of the proceedings. Secondly, the minute suggests that the PSC's reaction to the proposal was quite cautious –

...the Sub-Committee agreed that it would be appropriate for the applicant to submit a more detailed proposal.'

9. This wording, subsequently endorsed by the PSC as an accurate record, certainly fell some considerable way short of conceding the principle of a skip company operating from a site in the Countryside Zone, a principle that had been robustly opposed by the Committee as previously constituted. It also fell notably short of the recommendation made in Miss Baxter's report, which had suggested the following course of action –

Advise Reg's Skips that it is appropriate to submit an application for assessment and that it will be viewed (provided all other issues can be adequately resolved) favourably.'

10. The evidence of various officers, however, was that the Department took the view that the principle of a skip company operating from Heatherbrae Farm had received the Committee's approbation, and it was put to us that the minute, in its brevity, was not an accurate reflection of the outcome of the meeting. Minutes of meetings are, for sure, not verbatim records but there is nothing else on file to support this view. We feel obliged to rely on the official minute, as formally approved by the PSC, which did not concede the principle of skip operations at Heatherbrae Farm. Our judgement accordingly is that the Department ended up interpreting the PSC's decision of 9th March 2005 in somewhat more positive terms than were warranted. This was mainly reflected in the subsequent planning application being determined without reference back to the PSC, a decision which we do not believe officers should have taken themselves because of its sensitivities or had the proper authority to take (paragraph 7.19 below).
11. But the sense of positiveness was also conveyed directly to Mr Taylor . In the first formal response to Mr Taylor 's letter of 24th January 2005 to Mrs Ashworth, Miss Baxter wrote to Mr Taylor on 10th March, the day after the PSC meeting, saying –

Whilst the Committee were not prepared to pre-determine the application, it was of the opinion that this may well be a suitable location for such an operation.'

12. This wording, perhaps, could be held to fall halfway between Miss Baxter's recommendation and the minute of the meeting itself. Miss Baxter also rang up Mr Taylor on the telephone to tell him about the meeting. Mr Taylor was clearly encouraged by what he had been told, which prompted surprisingly rapid action, aided bythe Department, to get a planning application submitted and accepted. This is described in the next section of the report.
13. In his evidence to us Senator Ozouf , as the Committee President of the day, expressed concern that the matter had been considered by a sub-committee comprising but two persons, one of whom, moreover (the then Connétable Dupré of St John), had previously expressed a view in public on an earlier application concerning RSL and had thereby disqualified himself from taking part in the determination of that particular application. Senator Ozouf also expressed concern upon learning that the substantive application had not been referred back for further consideration at a political level.

7  THE SUBSTANTIVE 2005 APPLICATION

1. Mr Taylor went to the Department on 10th March 2005, the day after the PSC's meeting, having been telephoned by Miss Baxter and told that the PSC had reacted favourably to the proposal on an in principle' basis. This was before he would have received her letter of the same date. At the Department's offices he completed a planning application form there and then in the reception area and paid an application fee of £210. His application was accepted for processing that same day without more ado – that is, no questions of form or detail were raised upon it, as is sometimes the case ahead of an application's acceptance' – and it was designated P/2005/0423.
2. Mr Taylor described his application in the following terms –

CHANGE OF USE OF AREA (FORMERLY A SLURRY STORE) FROM DRY STORAGE TO COMMERCIAL. ALSO CHANGE OF USE OF DRY STORAGE BUILDING (APPROX 800-1,000sq ft.) TO COMMERCIAL.'

3. The format used and the description given on the application form broadly accorded with those submitted by other parties for change of use applications. This, and the specific terminology used, supports Mr Taylor 's clear recollection that he wrote out the description having been given advice byan officer at the Department's reception area and with the benefit of guidance from Miss Baxter herself. It was nevertheless an unsatisfactory description in that no mention was made of what the commercial' operation in question was, that is, skip sorting and storage. In evidence to us Mr P. Thorne , Director of Planning, observed –

Commercial use is not something we recognise in planning terms. Virtually every premise is commercial in some shape or form. What is important is the nature of the use'

4. This illustrates precisely the problem with the description given. The reference to commercial use was rather meaningless in the absence of any reference to the nature of the proposed use. For that reason alone, the application should not have been accepted in that form. The fact that it was is explained, in our opinion, onlyby reference to the encouragement already given to Mr Taylor that an application by him on behalf of RSL would indeed help' the Department and that there was therefore a desire to move things along with reasonable alacrity perhaps regardless of precision.
5. The Highways Section of the Public Services Department was not consulted on the application by the Department. Although there was no statutory or formal administrative requirement for this, the omission seems somewhat surprising given that the Trinity Infill Report, published only six months previously, should, indeed must, have alerted the Department to the potential implications

arising from skip lorry movements[1]. In this regard, on 14th September 2004 and following presentation of that report Deputy J.A. Hilton, who was then Chairman of the PSC, made a statement in the States in which she said –

Since the report was published I have discussed the whole issue with the President and Chief Officer. Changes have been implemented whereby in future any significant traffic implications will be clearly marked as to the likely volume and effect.'

What happened, or rather did not happen, regarding the 2005 application is an indication of how the Department, at working level, seemed simply unresponsive to political direction even of such an overt kind.

6. The Health Protection Section of the Health and Social Services Department was consulted but the information given to it was limited to the brief description on the application form, which made no reference to a skip operation but only, with imprecision, to commercial' use. The response by Mr Binet , Environmental Health Officer, was therefore, equally, somewhat limited –

There is no objection to the proposed change of use in principle. However, some commercial operations are more likely to cause nuisance to neighbouring properties than others. Commercial uses likely to cause problems with noise or smell should not be permitted.'

7. This response was not unreasonable given that Mr Binet was not made aware of the specific commercial operation envisaged. He told us that had he known a skip company was in the frame he would have responded rather differently.
8. There were other weaknesses in the consultation process on the application that served to compromise its usefulness, including an apparent failure to consult Jersey Water in accordance with Policy NR1 of the Island Plan 2002. A wider question is begged as a result about the way departments other than Planning go about commenting on planning applications, about the duties that those departments believe they face, or do not face, in making comments, and about the way that the Department helps them or otherwise in this important task. This continues to be a not insignificant issue throughout this narrative and we shall seek to address the general point in our second report. For present purposes, Health Protection's not being made aware of what lay behind Mr Taylor 's application was, as will be seen, an administrative shortcoming of some magnitude.
9. At some point between 11th March and 21st March 2005 someone within the Department considered it appropriate to modify the description of the application by adding the parenthesis (for Reg's Skips Ltd.)'. The Planning files give no clue as to why this was done. Although an improvement, this still left the description less than precise. The modified wording was used when

notice of the application was published in the Jersey Evening Post (JEP) on 22nd March 2005. Mr A. Pritchard, Community Health Team Leader at Health Protection, told us that the revised description was not signalled to him and his colleagues. Health Protection told us that they now receive the full text of each notice published in the JEP and that their staff regularly scan the planning application notices in the JEP to see if anything might warrant comment from them, even though they may not have been officially notified of it; nonetheless, we are not clear that this was the established position in 2005. In any event, the small but important addition was not spotted. It was poor practice on the part of the Department that official consultees were not directly notified of the change. Had this been done, and, indeed, an explanation given in the first place of what commercial' meant in this particular instance, it is very likely that, at the least, Mr Taylor 's eventual planning permission for RSL would have contained tighter conditions; and that may have led to a very different outcome in the face of the complaints about noise that arose afterwards. If nothing else, RSL would have been far better placed to make an informed decision on whether to relocate to Heatherbrae Farm.

10. One letter of representation was received bythe Department in response to the notice in the newspaper. Mr W. Le Marquand, owner of another skip hire and waste management company in competition with RSL, submitted an objection dated just one day after publication of the notice. In an evidently carefully composed letter he remarked in particular the absence of descriptiveness and commented that the true nature of the operation envisaged was possibly being hidden. He added –

I understood Planning's policy was to ensure that the general public was to be made aware of the exact uses that were intended so that the general public could comment properly.'

11. Given what we have just noted about the opacity of the application as accepted by the Department, we were surprised by the pertinence, and even prescience, of this observation, albeit that it is not inconceivable that Mr Le Marquand's own commercial interests motivated him to comment in such terms. We were made aware that relations between Mr Le Marquand and RSL had been less than cordial since RSL was established. We are also aware from our analysis of the Department's files that, at that time, Mr Le Marquand himself was directly engaged with it – indeed, with the same development control team as had been dealing with RSL – on matters of compliance with the Island Planning Law arising from his company's operations in St Peter. Notwithstanding, there is no evidence that the Department took his comment into any account, or responded to it, even though it clearly raised a planning' issue.
12. Minutes of EPSC or PSC meetings tended to record which policies of the Island Plan 2002 were considered prior to a particular decision being made. The file for the 2005 application indicates that only Policies C6 (Countryside Zone) and NR1 (Protection of Water Resources) were considered by officers prior to determination. In her March 2005 pre-application' report, Miss Baxter had identified Policy C6 as being the more critical.

13. The Countryside Zone policy sets out a general presumption against all forms of new development'. It then gives examples of development that may be permitted as an exception, subject principally to considerations of impact on the character' of the Countryside Zone and the extent to which the proposal accords with the principles of sustainability that underwrite the Plan.' Developments that could be permitted as an exception include the conversion of existing buildings to appropriate and non-intrusive' commercial uses or development that has been proven to be in the Island interest and that cannot practically be located elsewhere.' We consider that this latter clause was relied on by Miss Baxter when she wrote in her pre-application advice report that RSL had not been able to find a site in the Built-up Area. This point has some significance for later parts of this narrative.
14. We noted at paragraph 3.6 above that in 2004 the EPSC had cited Policy C6 as firm justification for preventing RSL from staying at Home Farm, St Peter. The same test would imply that planning permission for skip storage and sorting at Heatherbrae Farm would be a less than straightforward matter, although it need not have been ruled out having regard to the savings in the Policy. The pre-application' report prepared for the PSC in March 2005 had noted the location as being in the Countryside Zone but did not really adduce the pros and cons of the proposal regarding Policy C6. That seems consistent with an intention by officers to rely on the nowhere else suitable' exemption noted in the preceding paragraph.
15. It is evident, though, that Mr Taylor 's planning application should have been considered in the context of a broad range of Island Plan policies. Policy G2 (General Development Considerations) was relevant in the context of potential impact on public health, safety and the environment. Policy G6 (Transport Impact Assessments) might have indicated a possible need for a transport assessment in the case of an application involving a company with four lorries and 350 skips, albeit that such an assessment might have needed to take the form only of an outline statement. Policy C19 (Change of Use and/or Conversion of Modern Farm Buildings) might not have been relevant because of Mr Taylor 's extant time limited permission for change of use from agricultural to dry storage use but Policy IC12 (New Industrial Development in the Countryside) might have been a reasonable policy to bring into play in view of the nowhere else suitable' approach that was adopted. Above all though, the application should have been assessed against the waste management policies at Section 14 of the Island Plan. It would have scored quite highly against those. The absence of such assessments, while no doubt facilitating an early decision on the application, meant that later on there was a somewhat weak policy foundation, so to speak, on which the debate about RSL's operations, whether for' or against', could be based.
16. There is no evidence in the Department's files that the requisiteness of any of these assessments was weighed, or the assessments themselves undertaken. This was a failure ofdue process, seemingly explicable – but nonetheless not excusable – only by the desired intention to ensure speedy delivery of a successful application in order to help' the Department resolve the La Prairie problem' without recourse to the obvious uncertainties of enforcement action

in relation to the circumstances of that site. In making this observation, we feel it is important to recollect the scale of the problem' that Planning was seeking to address. The complaints regarding La Prairie generally cited no more than the alleged untidiness of the site, and the principal enforcement' concern recorded on file was the visual amenity of passers-by on the main road. But the complaints that would follow at Heatherbrae Farm would allege an impact of a somewhat different kind on those living nearby.

17. Mr Taylor 's planning application was approved on 23rd May 2005. Curiously, records held bythe Enforcement Section of the Department indicate that the Enforcement Officers learned from Mr Le Gresley, the Assistant Director, some 6 days before the permit was signed off that it either had been, or would soon be, issued. The fact that they were briefed in such terms only adds more weight to our conclusion on encouragement', in that any further enforcement action at La Prairie was now otiose.
18. Miss Baxter drafted the permit and its conditions. She described for us the practice in the Department for the signing-off of permits under delegated authority. Non-controversial items could be handled at her level but where it was judged that there was or might be a degree of controversy, or where representations had been made, it was the Assistant Director's responsibility to review the proposed decision and conditions in draft and then sign them off accordingly. The system had previously worked through the use of differently coloured files. The Heatherbrae Farm case was, Miss Baxter explained to us, handled on what would previously have been a grey file, indicating that its sign-off was Mr Le Gresley's responsibility as Assistant Director. Mr Le Gresley told us that, to his regret, in this instance he approved the application without reviewing the permit conditions that had been drafted by Miss Baxter.
19. The planning permission was issued on the basis that Mr Le Gresley as an Assistant Director had sufficient authority to make the decision without reference back either to thePSC or the full EPSC. Proceeding under delegated authority was in order if, as it was put to us by the officers concerned, it was given that the committee or sub-committee had sanctioned the principle of the change of use for the benefit of RSL. Having regard, however, to the scope of the relevant PSC minute of 9th March 2005 (paragraph 6.8 above) and having reviewed the delegation of powers arrangement in force at that time, we have some difficulty in concluding that officers were authorised to determine the application in the absence of a further political decision. Mr Le Gresley told us that action was taken in good faith on what was seen as a green light' from the Sub-Committee. We do not doubt the good faith but procedurally this was in our view incorrect. This might well have been noticed by Mr Le Gresley had he actually looked through the file put to him by Miss Baxter; but he did not. At the time it made no odds for Mr Taylor or RSL. They had a good, wide-ranging permission (unaffected, once issued, by the absence of delegated authority) that enabled the move to Heatherbrae Farm to proceed successfully and a business to continue developing. In turn the Department had resolved a problem, that is, its concerns about the appearance of the highly visible roadside site in St Peter. But later, when the going got difficult, a political decision on the permission, and the more rigorous attention to detail probably necessitated by that, could well have been a crucial foil for RSL in the battles in which it found itself engaged, not least with the Department itself.

20. Five specific conditions were attached to the permit issued to Mr Taylor . These, and the reasons given for them, were as follows –

CONDITIONS

1. The owner of this site shall notify the Department on the commencement of the use hereby approved on this site. Within 3 months of that commencement of the approved use at Heatherbrae Farm, the operators [sic] existing site on La Route de Beaumont (to the east of Tile Barn' and north west of Field 814) shall permanently cease. The use of this site shall operate in the same way as the current site as a skip sorting yard only and for no other purpose.
2. The permission hereby granted shall enure for the benefit of Reg's Skips only, not for the benefit of the land, or for any other person or persons having an interest in the land.
3. Notwithstanding the provisions of the Island Planning (Use Classes) (Jersey) Regulations 1965, or any subsequent amendment thereto, the building and land in question shall be used for the storage and sorting of skips only and for no retailing, and no other industrial business or manufacturing use.
4. The permission hereby permitted shall only operate between the hours of 8am and 6pm Monday to Friday and 8am to 1pm Saturday and not at all on Sundays or Bank Holidays.
5. The area approved for use by Reg's Skips shall be limited to the one outside area (former silage clamp) and one indoor area (in the southern portion of the shed) indicated on the plans hereby approved. No other areas shall be occupied by this user without the written permission of the Environment and Public Services Committee.

REASONS

1. For the avoidance of doubt and to prevent two sites operating in tandem when the site herby [sic] approved is less intrusive and damaging to the amenities of the area.
2. This permission has been granted on the basis of very particular circumstances (personal permission) and can be met on this site without unacceptable harm to other interests.
3. This change of use has been approved for storage and sorting of skips only. A different use may harm the character of the surrounding area and the Committee requires to retain control over the use of the building in the interests of the character of the area and the amenities of adjoining properties.

4. To protect the amenities of occupiers of neighbouring properties and the area.
5. For the avoidance of doubt.

21. Much if not most of this language is, as one would expect, perfectly all right. It was made quite clear that the permission was for the storage and sorting of skips only, and that this activity was to be confined to a given area of the farm buildings and land only. Hours of operation were specified unambiguously. A time limit was imposed for removal from La Prairie and, importantly, that the operations now approved for the new site should permanently cease at the former. Provision was made for possible future flexibility in the size of the operational area, subject to the Committee's decision. The permission was made personal to RSL, and not to run with the land.
22. The reasons for these various conditions were, equally, not unreasonably specified. It was emphasised that the change ofuse was for storage and sorting of skips only and nothing else. It was made clear that the two sites, La Prairie and Heatherbrae Farm, were not to operate in tandem and that the consent reflected the fact that the latter was less intrusive and damaging to the amenities of the area' compared with the former. Any different use other than skip storage and sorting was not allowed because it might harm the character of the surrounding area; the permission indicates that in mind here were retailing, any other industrial business (that is, other than skip storage and sorting), and manufacturing. The restriction on hours of work was to protect the amenities of occupiers of neighbouring properties and the area.
23. The main, important, weak spot was the last sentence of Condition 1: The use of this site [that is, the new premises at Heatherbrae Farm] shall operate in the same way as the current site [that is, La Prairie] as a skip sorting yard only and for no other purpose'.  This was very imprecise, and there was no clarification in the reasons as to what it was intended to mean. The argument made later, and put to us in evidence, was in essence that RSL's operations at La Prairie were fairly small-scale' and that the intention was to carry this over to the new location. The permission worded in this way was not intended, it was put to us, to sanction the larger operation that RSL subsequently became'. Later sections of this report will address this in considerable detail because it was the cause of the whole unsuccessful and, we believe, inappropriate enforcement saga that ensued following complaints about noise first received in 2006. Suffice it to be said for the moment that, the principle of imprecision apart, it was a bad condition because, as a review of the relevant file quite readily reveals, the Department had on record minimal information about RSL's operations at its former locations. Yet it had had not a little engagement with RSL over several years, since its time at Home Farm, including as a party in a complex administrative appeal, and should have understood its business and its scale and impact, for example in relation to traffic movements. The business was well known to several leading politicians and the full EPSC had only recently been engaged on its case. The Enforcement Section had, of course, been engaged on it too. For such reasons one would have expected to find significantly more background detail on file, and thus able to be brought to bear on the decision, than was the case. Perhaps it was just presumed when

the relevant sentence was drafted that all the necessary information was to hand. Or, more likely, perhaps the sentence was just written in a rush, with insufficient aforethought.

24. In evidence to us it was accepted by Mr Le Gresley and others that Condition 1 was insufficiently precise. But in 2006 and early 2007, the Department asserted, and continued to assert, in seeking to take enforcement action against RSL that it was clear and precise'. The confusion of thinking, or the failure of analysis, on the Department's part that this represented had an extremely significant impact upon RSL, as will emerge from this narrative.
25. It should be noted that Condition 1 also acknowledged that La Prairie was a site on which skips were indeed sorted. This tallies entirely not only with Mr Bisson's evidence but also with RSL's business records supplied to us by Mr and Mrs Pinel. But it was said later by the Department that in its view La Prairie was unauthorised' for such use because its pre-1964 use was as only a haulage depot. This is a relatively minor point but it emerged later during the Department's attempted enforcement actions against RSL.
26. Condition 2 is also worth some remark because its slightly unusual nature was the genesis of some complications once complaints were made about RSL's operations from May 2006. The normal position is for a planning permission to be tied to the land not an individual. We asked whythe Department thought it right to limit the permit to a specific user (about whose business model the Department did not know as much as perhaps it thought it did) rather than link it to a properly defined category of use. Building on the second reason cited at paragraph 7.20 above, Mr Le Gresley, in his evidence to us, said –

it is permissible for the Minister to say: "We are giving consent for this particular person" because we are giving consent on a particular basis of an operation that we are looking at and we would not want another operator to come in and work in a different way.'

27. We understand the point being made. We take it as further evidence that the Department was focussed on ensuring that RSL itself would be incentivised to leave the La Prairie site as soon as possible, and that Mr Taylor would, equally, be incentivised to take on RSL as a tenant, not being permitted to let his land to any other skip operator. But, as we explain later, this condition helped to generate some of the muddle and confusion that afflicted the Department once the complaints about RSL emerged, when it failed to appreciate who was the proper holder of the 2005 permit.
28. Bywayof an aside, when, more than two years later, the Department sought legal advice on RSL's case in relation to a subsequent planning application by Mr Taylor , the advice given by the Law Officer's Department will, we believe, have left the Department in no doubt that such a condition personal to a company was inappropriate because its shares could be transferred to others without effect on its legal personality. In that sense, such a permission was akin to a permanent permission. The permission would cease only if RSL ceased to exist. We have not needed to explore in our report the possible implications of this but we do suspect that, although the device was adopted by the Department in this case for a reason, there was no thinking through of those implications beforehand.