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

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS BOARD: FINDINGS –

COMPLAINT AGAINST A DECISION OF THE MINISTER FOR PLANNING AND ENVIRONMENT REGARDING

No. 49 ST. MARK'S ROAD/ BYRON LANE, ST. HELIER

Presented to the States on 8th December 2010 by the Privileges and Procedures Committee

STATES GREFFE

2010   Price code: B  R.144

REPORT

Foreword

In accordance with Article 9(9) of the Administrative Decisions (Review) (Jersey) Law 1982 as amended, the Privileges and Procedures Committee presents the findings of the Complaints Board constituted under the above Law to consider a complaint against  the  Minister  for  Planning  and  Environment  regarding  No. 49  St. Mark's Road/Byron Lane, St. Helier .

Connétable J. Gallichan of St. Mary ,

Chairman, Privileges and Procedures Committee.

STATES OF JERSEY COMPLAINTS BOARD 16th November 2010

Findings of the Complaints Board constituted under

the Administrative Decisions (Review) (Jersey) Law 1982 to consider a complaint against the Minister for Planning and Environment regarding

No. 49 St. Mark's Road/Byron Lane, St. Helier

1. The Review Board was composed as follows –

Mr. N.P.E. Le Gresley (Chairman) Mr. T.S. Perchard

Mr. C. Beirne

The parties were heard in public in the Le Capelain Room, States Building, Royal Square, St. Helier on 16th November 2010.

The  complainants  were  represented  by  Mr. E. Hibbs,  Mr. P. Grainger  and Mr. B. Hibbs.

The Minister for Planning and Environment was represented by Connétable P.F.M. Hanning of St. Saviour , a member of the Planning Applications Panel; and Mr. J. Gladwin, Senior Planner, Planning and Environment Department.

The parties visited the site in question after the opening of the hearing, viewed drawings  of  the  proposals  and  viewed  the  site  from  the  gardens  of  the 2 neighbouring properties to the east.

2. Hearing

1. Summary of the complainant's case

1. Mr. Grainger outlined that by letter dated 16th July 2010, Mr. E. Hibbs had indicated that, as a result of his application being rejected, and in the absence of being able to appeal against the decision other than through the Royal Court or a Complaints Hearing, he had 3 concerns. Firstly, he considered that the Minister for Planning and Environment and the States of Jersey were not acting in conformity with the provisions of the Human Rights (Jersey) Law 2000.  Secondly,  he  considered  that  the  Minister's  decision  to reject  his application was unreasonable, having regard to all the circumstances. Thirdly, he  considered  that  the  Minister's  refusal  to reconsider  his  application following its rejection by the Planning Applications Panel was contrary to the provisions of the Planning and Building (Jersey) Law 2002 and planning practice.
2. Issues on the determination of applications and appeals against that decisionThe planning application submitted on 20th November 2009, together with the planning fee of £747.00, had been to "Convert 1 No. dwelling into 1 No. flat and  1  No.  maisonette.  Demolish  garage  and  construct  store  and  1  No. maisonette." The application was subsequently consulted upon and advertised,

both in the "Jersey Gazette" section of the Jersey Evening Post and by means of a site notice displayed on-site, with a report being prepared by planning officers which recommended the refusal of the application on a number of grounds. This had subsequently been determined by the Planning Applications Panel, rather than by the Minister – as specified in Article 19 of the Law: "Grant of planning permission." Mr. Hibbs, having written to the Minister to appeal against the decision, was informed that as the application had been determined by the Planning Applications Panel, the Minister was unable to consider an appeal and that Mr. Hibbs' only recourse was to refer the matter either to a Review Panel or to the Royal Court. Mr. Hibbs did not consider this to  be  acceptable.  Further,  he  considered  that  the  system  of  Ministerial delegation of functions by means of Ministerial Decision was unreasonable, given  the  complexity  associated  with  identifying  the  extent  of  such delegations. Nowhere in the Law or under Supplementary Planning Guidance could Mr. Hibbs find any reference to the Minister being unable to determine an appeal, and he was concerned that, his application having been determined by the Planning Applications Panel, he was being denied the opportunity to appeal directly to the Minister which he considered to be unreasonable and possibly ultra vires.

3. Issues on planning appeals contrary to Human Rights legislation

Mr. Hibbs had confirmed that he did not submit an appeal against the decision of the Planning Applications Panel within the 2 month period set out in the Supplementary Planning Guidance, and was consequently considered to be out of time' to appeal to the Royal Court. His only remaining option had then been  to  request  the  present  Complaints  Board  hearing.  Mr. Hibbs  was concerned that the planning appeal procedures were such that he could not afford to appeal to the Royal Court, and that in any event he did not have the expertise to pursue such a course of action. He noted that the disincentive to pursue  appeals  to  the  Royal  Court  which  faced  prospective  appellants, primarily  on  the  basis  of  costs,  had  been  referred  to  in  the  report accompanying  the  Draft  Planning  and  Building  (Amendment)  (Jersey) Law 200- (P.210/2004), although this had, nevertheless, been adopted by the States on 15th December 2004.

4. Issues  on  the  reasonableness  of  the  decision  on  Mr. Hibbs'  planning application

Mr. Hibbs had referred to his letter, dated 11th June 2010, which he had sent to the Chairman of the Planning Applications Panel setting out his reasons for wishing to appeal against the Panel's "unreasonable" decision to refuse his application. It was suggested that the planning officer recommendation to reject his application "had been totally unfounded and appears to be based on a desire to appease objectors rather than on taking an impartial view having regard  to  the  standards  currently  being  adopted  by  the  Minister  and  the Department."  Mr. Hibbs  had  also  questioned  the  reasonableness  of  using generalised policies to justify a decision which was very important to him, given that "such generalised policies are open to a great degree of individual interpretation." Mr. Hibbs was also concerned as to why the planning officers had felt it appropriate to object to the relationship of the proposed works to his existing property, as he considered that the Planning and Building Law was not intended to apply to the configuration of his own property. After all, if he

wanted to create a specific relationship within his own site, then why should planning officers feel justified in objecting thereto.

5. In his letter of 11th June 2010, Mr. Hibbs had drawn attention to some of the content of the "Draft Supplementary Planning Guidance: New Development Guidelines for the Town issued on 16 April 2008" which he considered had not been consistently applied to his application or which he contended either met or surpassed the requirements. It appeared toMr. Hibbs that the Case Officer had either not been aware of or had ignored the 2002 Island Plan policy "that new residential development should be undertaken in the existing urban areas to avoid unnecessary expansion into the countryside." Mr. Hibbs opined that the new accommodation he had proposed facing Byron Lane "is the standard configuration of most of the town area", and he was of the view that the Minister had indeed approved similar schemes, which meant that the refusal of his application represented the adoption of a double-standard and demonstrated inconsistency in the decision-making process.
6. Mr. Hibbs contended that his intention was to create additional space to meet the needs of his family, and that he had endeavoured to make some provision for amenity space, despite not particularly wanting or needing this for his own purposes. He had, nevertheless, made every effort to minimise the possible effects  of  the  proposed  development,  but  he  considered  the  concerns expressed by the neighbours to be excessive. Furthermore, Mr. Hibbs was of the view that it appeared that no account had been taken of the existing open amenity  space  to the  front  of  the  property.  Mr. Hibbs  confirmed  that,  if necessary, he was prepared to remove the balconies proposed for the first floor.
7. Mr. Grainger  indicated  that  originally,  4 units  had  been  proposed,  which requirement had been reduced to 3 units under the present application. His clients were concerned that it had taken some 5 months to obtain initial advice from the Planning Department and that, having suggested the inclusion of balconies, it had then objected to them. Having provided his clients with a draft  of  proposed  new  standards,  the  application  had  subsequently  been determined under the old standards' – some of which dated back to 1988. It was apparent that there was some disagreement between officers within the Planning Department as to what might be acceptable, and this inconsistency in approach  was to the  detriment  of  applicants.  By  way  of  illustrating  such inconsistency, photographs of a number of schemes elsewhere in St. Helier and  a  recent  article  in the  Jersey  Evening  Post  were  cited.  Further inconsistency in approach was suggested as being apparent in the divergence of views as between the Planning Officers and the Parish of St. Helier as regards achieving pedestrian and vehicle visibility lines and the sufficiency of on-site  parking  and  vehicle  turning  space.  It  was  considered  unfair  that, without reference to the applicant, officers had referred the application for determination by the Planning Applications Panel whereas it could have been determined by officers under delegated authority. Such referral to the Planning Applications Panel had precluded appeal to the Minister, limiting Mr. Hibbs' options for appeal to the Royal Court – an expensive venture – or to the Complaints Board, as at present. Overall, Mr. Grainger confirmed that his clients were concerned at the level of negativity demonstrated in the Planning Officers' correspondence regarding the application, rather than any effort –

particularly in the early stages – to discuss the matter with the applicant, possibly with a view to overcoming any perceived deficiencies therein. Also of concern was reference in Planning's correspondence to direct overlooking of the adjacent children's nursery being "very unsatisfactory."

8. In summary, Mr. Grainger contended that general considerations, as set out in the relevant policies within the 2002 Island Plan, should not form the basis of planning  decisions.  It  was  suggested  that  the  effect  of  the  proposed development would be to reproduce the street scene which existed further along Byron Lane, and would therefore not be detrimental to the character of the area. It was claimed that it was not apparent from the relevant policy that development proposed for the rear of a property registered as a Building of Local Interest' property should have any bearing on a designation based on the front of the property. In the case of No. 49 St. Mark's Road, it was of concern that it appeared that no report was available supporting the case for registering the frontage of that property. It was considered unfair that the entire planning system appeared to be geared towards professional persons, rather than lay persons, with the threat of potential costs arising from an appeal taken to the Royal Court clearing acting as a deterrent to such a course of  action.  As  far  as  Mr. Hibbs  was  concerned,  he  believed  that  he  had complied with all the relevant Island Plan policies and that he had acted in accordance  with  advice  received  from  the  Planning  Department. Consequently, the refusal of the planning application in respect of No. 49 St. Mark's Road was considered to be unfair.
9. Messrs. E. and B. Hibbs  reaffirmed  their  agreement  regarding  the  points which had been raised by Mr. Grainger, indicating their belief that planning officers should have provided advice to them regarding the various perceived deficiencies  of  their  application  prior  to the  matter  being  referred  to  the Planning Applications Panel. Messrs. Hibbs expressed their appreciation of the presentation of their case by Mr. Grainger, confirming that – as laymen – they would have been unable to do so themselves.

2. Summary of the Minister's case

1. By letter dated 30th July 2010, the Senior Planner, Appeals indicated that the background and details of Mr. Hibbs' application in respect of 49 St. Mark's Road/Byron Lane, St. Helier were set out in the report of the Planning and Environment Department dated 31st March 2010, which had been considered by the Planning Applications Panel at a public meeting held on 15th April 2010. It was noted that the Department had received a 10-signature petition against the application as well as 5 letters of objection. It was confirmed that the decision to refuse the application had been made having taken into account all  representations,  including  those  which  had  been  made  in person  by Mr. Hibbs and his agent. The application had been recommended for refusal by the Case Officer and checked and agreed by the Assistant Director of Planning.
2. It  was  recalled  that  the  application  had  been  refused  on  7 grounds,  as follows –

1. The proposed balconies to both the proposed new 2-bedroom dwelling and the first floor of the main dwelling would result in unacceptable overlooking to the respective residents of these new units and to the neighbouring properties to the north/east; 53 St. Mark's Road and Raldi Lodge to the south/east of the site, contrary to Policies G2(ii) and H8 of the Island Plan 2002.
2. The windows to the first and second floors of the north elevation of the  proposed  new  2-bedroom  unit  would  result  in  unacceptable overlooking and loss of privacy to the amenities of the residents of the main dwelling; 49 St. Mark's Road, and to the neighbouring property to the north/east; 53 St. Mark's Road, contrary to Policies G2(ii) and G3(iii) of the Island Plan 2002.
3. The proposed windows to the first and second floors of the south elevation of the new dwelling proposed, at approximately 6 metres from the north facades of the properties opposite the site on Byron Lane, would result in unacceptable overlooking and loss of privacy to the  residents'  habitable  accommodation  and  general  amenities, contrary to Policies G2(iii) and G3(iii) of the Island Plan 2002.
4. The proposed development, by virtue of its size, height, position on the  site  and  its  relationship  with  the  surrounding  neighbouring properties, results in an unacceptable overbearing impact which is dominant and intrusive and therefore harmful to the amenities of the occupiers of Raldi Lodge to the south/east of the site, to the properties opposite  the  site  on  Byron  Lane,  to the  main  dwelling  of 49 St. Mark's Road, and to 53 St. Mark's Road, contrary to Policies G2(ii) and H8(iii) of the Island Plan 2002.
5. The proposal fails to provide adequate standards of usable on-site amenity  space  for  the  new  2 bedroom  unit  of  accommodation (13 square  metres)  and  the  new  2 bedroom  unit  within  the  main dwelling (12 square metres), contrary to the minimum standards set out in planning Policy Note No. 6 A Minimum Specification for New Housing Developments, February 1994' of Planning Policies G2 and H8 of the Island Plan 2002.
6. The proposed development provides insufficient car parking of 5 No. car parking spaces for 3 No. new units of accommodation, contrary to the Minister for Planning and Environment's Planning Policy Note No. 3, Parking Guidelines 1988' of Policies G2 and G3 of the Island Plan 2002.
7. The proposed development does not provide enough space to enable vehicles to turn on the site and exit onto the highway in a forward direction and fails to show how pedestrian and vehicle visibility lines can be achieved onto Byron Lane and would therefore be prejudicial to highway safety contrary to Policy G2(vii) and (viii) of the Island Plan 2002.

3. In response to Mr. Hibbs' letter of 16th July 2010, the Planning Department considered  that  Mr. Hibbs  had  been  made  aware  of  the  different  appeal options available to him by means of an explanatory "An Applicant's Right of Appeal" sheet which had been sent to him with the Refusal Notice. As the application  had  been  determined  by  the  Planning  Applications  Panel, Mr. Hibbs had been afforded, and had taken up, the opportunity to be heard at the public meeting, and it was considered that this had ensured that a fair and impartial hearing of the application had been held.
4. The Senior Planner, Appeals confirmed that the proposed development had been deficient in a number of respects, and that this had been illustrated by the number of objections to the application which had been received from near neighbours. It was emphasized that it was open to the applicant to submit a new planning application which took into account the "Reasons for Refusal" set  out  in the  Refusal  Notice,  and  it  was  confirmed  that  the  Planning Department was more than happy to provide planning advice as to how to achieve a satisfactory application.
5. Mr. Gladwin  explained  that  the  initial  delay  in responding  to Mr. Hibbs regarding  his  submitted  application  had  been  due  to the  backlog  of applications being dealt with at the time by the Planning Department. The Planning Officer had in due course written to Mr. Hibbs on 16th February 2009 in some detail, and it was emphasized that such advice as might be proffered by officers was always without prejudice' to any further advice which might be forthcoming from higher authority, whether senior officers, the Planning Applications Panel, or indeed the Minister himself. Mr. Grainger commented that whilst such a situation might be acceptable with regard to approvals,  but  certainly  not  for  refusals –  in  respect  of  which  it  was maintained that there should be an easily accessible and inexpensive appeals system. Mr. Gladwin confirmed that, although negative, the Senior Planners' letter had been based on an application depicting an unsuitable scheme. In situations  where  a  scheme  was  almost,  but  not  quite,  acceptable,  some negotiation of detail with applicants might be possible, but officers did not pursue such a route where it was clear to them from the outset that little improvement could be made. Indeed, with regard to the present application, part of the initial advice had been to produce a design whereby the gable of the proposed building would front on to Byron Lane, but that advice had not been followed.
6. As  regards  requests  for  the  reconsideration  of  applications,  Mr. Gladwin confirmed  that  such  reconsiderations  were  undertaken  by  the  Planning Applications Panel, for which there was no charge. Whilst proposals had been in train  to establish  an  Applications  Commission  or  similar  body,  which would have resulted in requests for reconsideration being other than to the Planning Applications Panel or to the Minister, this had not come to fruition. It was explained that, for the reconsideration of an application by the Planning Applications Panel, applicants had the same rights for such an oral hearing as they did in respect of the initial consideration of the application by the Panel. Mr. Gladwin restated the willingness of the Planning Department to discuss the possibility of a revised application being submitted which could overcome the objections raised with the present proposal. Indeed, it was confirmed that it might well be possible to agree some sort of development for the rear of

No. 49 St. Mark's Road, but not the present proposals, which were considered to be fundamentally flawed, being too large, significantly overbearing and overly intrusive.

7. Mr. Gladwin outlined the different forms of appeal which were notified to an applicant  upon  refusal  of  an  application. These  were  considered  to  be in conformity  with  the  Island's  Human  Rights  legislation  and  included  both "ordinary" and "modified" Court processes. It was suggested that reassurance could be drawn from the unlikelihood of costs being awarded against either party as a result of following the "modified" procedure, as although it was theoretically possible for such costs to be awarded, no circumstances were envisaged as to when this might occur and it had not occurred hitherto. It was further explained that an applicant had the option whereby an appeal could be determined  on  the  basis of  the  paperwork  alone, without  an  oral  hearing before the Court. Costs of self-representation to the Court were estimated at approximately £500, which was considered to be within the reach of most applicants, and an explanatory booklet was available from the Judicial Greffe.
8. The 7 reasons on which the refusal of the application was based were outlined, and it was emphasized that it was clear that the fundamental reasons therefore had been indicated as far back as in the pre-application advice, some of which advice had not been followed. It was explained that decisions regarding pre- application advice and/or the initial approach adopted towards an application were not solely the responsibility of an individual officer, as each of the Department's 2 teams of planners were led by a Principal Planner, to whom reference would be made in the early stages, and that there was also some involvement by the Assistant Director – Development Control, who would raise with the Case Officer any perceived problems. Consequently, it could be seen that there was consistency in approach towards applications. In the case of No. 49 St. Mark's Road, the application could not have been determined by officers under delegated authority in view of the scale of the scheme proposed and its involvement with a Building of Local Interest (BLI).
9. It was emphasized that the ability for all interested persons to be heard in public  at  an  oral  hearing  before  the  Planning  Applications  Panel  was considered to be an important part of the planning process. All determinations of planning applications were based on the provisions of the 2002 Island Plan, which contained a list of criteria within each detailed policy. However, it was clear that an element of planning judgement was required in the assessment of each application which, in this case, had advocated its refusal. It was apparent that the main problems surrounding the application centred on the dwelling proposed for the rear of the site which was considered to be too high and too large-scale for the relatively narrow site. Also of concern was that the space between the 2 building elements of the proposal would only be 6 metres.
10. Mr. Gladwin indicated that the examples of other sites which had been cited were not considered to be directly comparable with No. 49 St. Mark's Road. It was  clear  that  the  current  application  would  result  in a  building  which significantly  overlooked  Mr. Bouchard's  property  next  door  (No. 53 St. Mark's Road). However, it was evident that an alternative proposal which might envisage a smaller development could well provide adequate space for parking and turning vehicles. The view of the Historic Environment Team –

which  was  recognised  as  having  the  necessary  expertise –  was  that  the proposals for development at the rear of the property would not result in a building that was subservient to No. 49 St. Mark's Road. Similarly, it was considered that the whole of a site on which a BLI-designated building was situated was indeed subject to planning constraints. The view of the Historic Buildings Team was normally adopted by the Case Officer involved with an application.  As  regards  the  guidelines  under  which  applications  were determined, it remained unclear whether the draft guidelines would ultimately be  adopted,  and  Planning  Officers  were  required  to  apply  only  currently approved guidelines. It was emphasized that every site was different and that each application was dealt with on its relative merits.

11. The  Connétable  of   St. Saviour  confirmed  his  understanding  that  Human Rights  compliance  was  met  by  the  existing  appeals  procedures.  Whereas Mr. Hibbs had made reference to his desire to secure the development of his property for the benefit of his family, it was to be noted that legal advice received  from  H.M. Attorney  General  was  that  the  Planning  Applications Panel was required to take a long-term view, given that the lifespan of an applicant was generally somewhat shorter than that of buildings. As regards the proximity of the children's nursery next door, the Connétable confirmed that this was indeed a factor that he – and possibly other members of the Planning Applications Panel – would take into account in determining such an application.  It  was  suggested  that,  whereas  such  overlooking  as  presently existed was some distance away, developing the site would inevitably create more direct overlooking. From the perspective of the Planning Applications Panel, the application failed on a number of levels, and it was evident that it would clearly have resulted in a substantial reduction in standards. It was emphasized  that  the  commonsense  decision  of  the  Planning  Applications Panel to refuse the application had been a unanimous one.

3.  The Board's findings

1. The Board  wishes  to emphasize  that  its  consideration  of  such  appeals  is constrained by the provisions of Article 9(2) of the Administrative Decisions (Review) (Jersey) Law 1982. As in the present case, it would not be for the Board to supplant its view for the decision arrived at by the Minister, or his delegate,  under  established  procedures.  It  is regrettable  that  the  applicant chose to ignore much of the pre-application advice offered – albeit after some delay –  by  the  Planning  Department.  Had  he  not  done  so,  and  from  the statement  of  the  planning  representative,  it  is  possible  that  a  satisfactory application  could  have  been  produced,  although  probably  on  a  somewhat smaller scale than originally envisaged by the applicant.
2. The Board was of the view that the refusal of the subject application was –

1. not contrary to law;
2. not unjust, oppressive or improperly discriminatory, nor was it in accordance with a provision of any enactment or practice which is or might be unjust, oppressive or improperly discriminatory;
3. not based wholly or partly on a mistake of law or fact;

4. made by a reasonable body of persons after proper consideration of all the facts; and
5. not contrary to the generally accepted principles of natural justice.

Consequently,  in  respect  of  this  particular  application,  the  Board  was  in support of the decision of the Minister for Planning and Environment.

3. The Board has particularly noted the repeated willingness of officers of the Planning Department to work with the applicant on a revised application with a view to overcoming the perceived shortcomings of the present application. Although this may incur further costs for the applicant, it is clear that the Planning Department, within the constraints of the resources available to it, does endeavour to assist applicants in achieving their aspirations. While the Board does not recommend that the application be reconsidered, it welcomes the Department's preparedness to come to a resolution of the situation to the satisfaction of all those concerned.

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

Mr. N.P.E. Le Gresley, Chairman

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

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

Mr. C. Beirne