States of Jersey Complaints Panel: Report for 2009.

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS PANEL: REPORT FOR 2009

Presented to the States on 20th April 2010 by the Privileges and Procedures Committee

STATES GREFFE

2010   Price code: B  R.45

REPORT

Chairman's Foreword

The Privileges and Procedures Committee is pleased to present the Report of the States of Jersey Complaints Panel for 2009. The Committee would like to place on record its thanks to the Chairman, Deputy Chairmen and all of the members of the Panel  for  their  honorary  work  dealing  with  complaints  during  this  period.  The Committee recognise that all of the Panel members are extremely busy people in their own right and generously give their time freely to serve the community. Particular gratitude  is  expressed  to  Messrs  P. Freeley  and  P. Farley,  who  retired  as  Panel members during 2009 after several years of service. The Committee also welcome Messrs. R. Bonney, F. Dearie, C. Beirne and S. Platt who were appointed as new members in 2009.

Connétable J. Gallichan of St. Mary

Chairman, Privileges and Procedures Committee

ADMINISTRATIVE DECISIONS (REVIEW) (JERSEY) LAW 1982: REPORT OF THE STATES OF JERSEY COMPLAINTS BOARD FOR 2009 _______________

Dear Madam Chairman,

I have pleasure in forwarding to you the report for 2009, which includes the resolution of matters outstanding as at the end of 2008. The following statistics show the work undertaken by the Administrative Appeals Panel during this period –

In accordance with Article 5 of the Administrative Decisions (Review) (Jersey) Law 1982, the following persons were reappointed as the Chairman, Deputy Chairmen and 5 members  of  the  States  of  Jersey  Complaints  Panel,  from  whom  members  of Complaints Boards can be drawn, for a period of 3 years, by the States on 17th June 2009 (P.92/2009 refers).

Chairman

Mrs. Carol Elizabeth Canavan

Deputy Chairmen

Mr. Nigel Peter Edgar Le Gresley Advocate Richard John Renouf

Members

Mr. John Geoffrey Davies Mrs. Mary Le Gresley

Mr. Thomas Siouville Perchard Miss Christine Vibert

Mr. David James Watkins.

On 21st July 2009, in accordance with Article 5(2) of the Administrative Decisions (Review) (Jersey) Law 1982, the States agreed to appoint the following additional members of the Panel for a period of 3 years (P.116/2009 refers) –

Mr. Christopher Beirne

Mr. Robert Frederick Bonney Mr. Frank Dearie

Mr. Stephen William Platt.

During the course of 2009 a total of 6 hearings were convened. Three hearings were chaired by the Chairman and 3 by a Deputy Chairman.

The Panel noted an increase in the number of matters which had gone to the appeal stage of the process following the initial refusal by the Chairman. In 3 such instances the matter had been referred to the Deputy Chairmen and in all 3 cases the decision to refuse a hearing had been upheld. The Panel is aware that this has created a greater administrative burden for the Greffier of the States and his team. On behalf of the Panel I would like to thank Michael de la Haye, the Greffier of the States and his team for their continuing support at all times.

The Panel noted that in 2009 it received the first complaint in relation to Freedom of Information and the Code of Practice on Public Access to official information, which was upheld; and also the first request to film a Complaints Board by persons not affiliated to the accredited media.

Mrs. C.E. Canavan, Chairman, Complaints Panel

The  following  is  a  summary  of  the  outcome  of  the  complaints  which  were outstanding in the 2008 Annual Report and of new complaints received in 2009 –

Outcome of complaints that were outstanding at the end of 2008 and which were referred to in the Annual Report for 2008 (R.18/2009) –

1. A statement of complaint dated 22nd September 2008 was received relating to a decision of the Planning and Building Services Department regarding the level of fees due for Planning Application P/2008/1461.

The  Chairman  reviewed  the  report  presented  by  the  Department  and concluded that this was not an appropriate case for a hearing by a Board as the department had acted intra vires, and the complainant was informed of this in a letter dated 17th December 2008.

On 18th December 2008, the complainant appealed against the decision of the Chairman not to proceed with a review. The matter was considered by the Deputy Chairmen in February 2009. The Planning Department refunded part of the fees incurred by the complainant on 5th March 2009. However, the complainant  sought  an  extension  of  the  appeal  for  a  total  refund.  The Chairman  considered  that  there  was  no  provision  for  a  full  refund  on  a withdrawn  planning  application,  and  the  matter  was  then  referred  to  the Deputy Chairman who upheld the view of the Chairman that there was no justification for a Complaints Board hearing. The complainant was informed that the case was closed on 17th July 2009.

2. A statement of complaint dated 15th December 2008 was received relating to a decision of the Minister for Planning and Environment to order the removal of parts of a fence erected at the property known as Saval, La Route des Côtes du Nord, Trinity .

The Chairman considered the complaint in January 2009 and agreed that this was an appropriate case for a hearing, which was held at Trinity Parish Hall on 6th April 2009. This hearing was the first occasion when the Board had been asked to consider whether to allow the filming of its proceedings by persons  not  affiliated  to  the  recognised  media.  In  the  Board's  view  such permission should have been sought well in advance of the hearing rather than requiring it to make an instant' decision on the matter which also affected the accredited  press.  It  had  been  agreed  that  this  was a  matter  on  which  all members of the Complaints Board should be able to express their views and the matter was to be raised at its next general meeting.

The Board (the Chairman and 2 members) did not believe that the decision of the Planning Applications Panel was contrary to Article 9(2)(b), (d) and (e) of the Administrative Decisions (Review) (Jersey) Law 1982, and but believed that there could be a spirit of compromise extended by both parties to resolve the situation amicably. The Board's findings were presented to the States on 28th April 2009 (R.43/2009).

New complaints received in 2009 –

Chief Minister's Department

1. A statement of complaint dated 19th January 2009 was received relating to a decision of the Chief Minister to refuse access to certain documents to the complainant whilst he was preparing his defence in respect of his suspension from his post of Chief Officer of the States of Jersey Police.

The initial application for a hearing was refused by the Deputy Chairman (the Chairman having been conflicted) due to the interaction with the ongoing Judicial  Review  initiated  by  the  complainant.  The  complainant  appealed against  this  decision  on  8th  April  2009  and  the   Deputy  Chairman  was requested to reconsider his decision following an amendment to the scope of the Judicial Review which removed the aforementioned conflict.

The Chief Minister was advised of this appeal on 29th April 2009 and was given further time to consider the matter in order that an informal resolution could be found. On 29th June 2009 the Chief Minister advised that he had sought legal advice and was not willing to provide the information requested because he maintained that the Code of Practice on Public access to Official information  applied  to  existing  documents  only  and  was  not  intended  to require a department to construct a document not already in existence.

The matter was referred to the Deputy Chairman for a decision on 1st July 2009 and it was agreed that a hearing should be convened. The hearing took place  on  16th  September  2009.  The  Board  (the   Deputy  Chairman  and 2 members)  concluded  that,  in  accordance  with  Article 9(2)(d)  of  the Administrative Decisions (Review) (Jersey) Law 1982, the decision of the Chief Minister could not have been made by a reasonable body of persons after proper consideration of all the facts'. In accordance with the Law the Board therefore requested the Chief Minister to reconsider his decision and report back to the Board within one month. In reconsidering his decision the Board urged the Chief Minister to consider carefully how disclosing 3 times and dates, and nothing else, could possibly disclose whether any legal advice was  sought  or  given  and  thereby  breach legal  professional  privilege. The findings were presented to the States on 14th October 2009 (R.115/2009).

A response was received form the Minister dated 14th October 2009. The Minister accepted the Board's findings.

2. A statement of complaint was received on 12th October 2009 relating to a decision  of  the  States  Employment  Board,  that  a  PECRS  member  who continues to work after normal retirement age should not receive an enhanced pension.

A résumé was sent to the Chairman on 20th October 2009. The Chairman sought additional information from the complainant regarding his submission and will consider the papers to determine whether a review is justified in early 2010.

Housing

3. A complaint was received on 16th July 2009 from a complainant regarding a decision of the Minister for Housing to refuse her application for residential qualifications to be granted under Regulation 1(1)(g) of the Housing (General Provisions) (Jersey) Regulations 1970. Following the receipt of legal advice from H.M. Attorney General on the issue of Human Rights, the Chairman agreed that a hearing should be convened.

`The Board (the Chairman and 2 members) met on 27th October 2009. The Board acknowledged that the Minister for Housing and his Department had acted in accordance with the current policies in relation to granting consent under  Regulation 1(1)(g)  of  the  Housing  (General  Provisions)  (Jersey) Regulations 1970 on the grounds of hardship.

The Board, whilst having every sympathy for Mrs. X's situation and a high regard for her efforts to provide a stable home for her young sons, accepted that in making the decision to refuse her application, due process had been followed. The Board, having carefully reviewed the decision made by the Minister and his Department, found it to be entirely in accordance with the policies which applied to the application.

The Board's findings were presented to the States on 17th November 2009 (R.123/2009)

Planning and Environment

4. A  statement  of  complaint  was  received  on  14th  February  2009  against  a decision of the Minister for Planning and Environment to reject an application for  the  demolition  of  a  garage  and  the  construction  of  a  single-storey extension to the east elevation of the property known as No. 3 Teighmore Park, Grouville to create one unit of residential accommodation.

The Chairman agreed that a hearing was justified and a meeting was held at Grouville Parish Hall on 25th June 2009. The Board (a Deputy Chairman and 2 members) concluded that none of the constraints imposed by Policy H8 applied to the application under question and the proposals did not represent an unreasonable development of the site. The application also did not, in the opinion of the Board, appear to contravene Policy G2. The Board upheld the complaint  and  requested  that  the  application  should  be  reconsidered.  The findings  were  presented  to  the  States  on  20th  July  2009  (R.78/2009).  A response  was  received  from  the  Minister  dated  21st  October  2009.  The Minister maintained his decision.

5. A statement of complaint was received on 3rd March 2009 against a decision of  the  Minister  for  Planning  and  Environment  in  respect  of  a  planning application at Field 268, Les Croix, La Rue du Tas de Geon, Trinity . The Chairman  agreed  to  a  hearing  and  the  Board  (a   Deputy  Chairman  and 2 members) convened at Trinity Parish Hall on 1st July 2009.

The Board acknowledged that the Planning Applications Panel had acted in accordance with the current Policy which presumed against development in the  Green  Zone.  It  was  recognised  that  exceptions  to  this  policy  were extremely  rare.  The  Board,  whilst  having  every  sympathy  for  the complainants  and  high  regard  for  their  efforts  to  provide  for  themselves, accepted that the planning applications process had to be governed by the relevant laws and policies adopted by the States of Jersey. The Board, having carefully reviewed the decision made by the Planning Applications Panel, found it to be entirely in accordance with the policies which applied to the application. Accordingly the Board rejected the Complainant's contention that the decision made by the Panel could not have been made by a reasonable body of persons after proper consideration of all the facts.

The  Board's  findings  were  presented  to  the  States  on  28th  August  2009 (R.93/2009).

6. A  statement  of  complaint  was  received  on  7th  April  2009  relating  to a decision  of  the  Minister  for  Planning  and  Environment  in respect  of  a planning application for permission to change a dormer window into a bi- folding  door  and  balcony  at  the  property  known  as  Willowmere,  Willow Grove, St. Clement .

The Board (the Chairman and two members) met on 12th August 2009 at St. Clement 's Parish Hall to consider the matter. During the meeting it was acknowledged  that  a  number  of  documents  had  been  omitted  from  the Department's  submission  which  were  actually  pivotal  to  the  Minister's decision-making process in relation to the application. Without the benefit of the  10 photographs,  the  letters  of  objection  and  also  the  Planning Department's policy in relation to gardens (alluded to by the Senior Planner (Appeals) during his verbal submission), it was extremely difficult for the Board to determine whether the Minister would have been able to make a sound judgement in relation  to the  overlooking issues, particularly  as the Minister had not viewed the site from the vantage point of the balcony.

The Board was mindful that the balcony had been constructed in breach of the planning  permit  and  that  this  was  a  retrospective  application.  The  Board nevertheless  concluded,  in  accordance  with  Article 9(2)(d)  of  the Administrative Decisions (Review) (Jersey) Law 1982, that the Minister's decision could not have been made by a reasonable body of persons after proper  consideration  of  all  the  facts'.  The  Board  reached  this  conclusion because of the inclusion of the neighbouring property within the grounds for refusal in relation to the balcony on the west of Willowmere when it was manifestly clear to the Board, having visited the site at the beginning of the hearing,  that  no  such  overlooking  was  possible  from  the  balcony.  This inclusion, in the Board's view, cast doubt on the validity of the whole decision to refuse.

The Board requested the Minister to reconsider his decision within 2 months and believed it was essential that the Minister conducted a full site visit. The Boards  findings  were  presented  to  the  States  on  3rd  September  2009

(R.96/100). A response from the Minister was received dated 21st October 2009. The Minister had reviewed the application and maintained his refusal on the grounds of unacceptable loss of privacy for the neighbouring properties.

7. A statement of complaint dated 25th April 2009 was received relating to a decision  of  the  Minister  for  Planning  and  Environment  in respect  of  an application  for  the  removal  of  a  Leylandi  hedge  under  the  High  Hedges (Jersey) Law 2008 at the property known as Sablon Cottage, La Grande Route des Sablons, Grouville .

A résumé of the complaint was sent to the Chairman on 14th May 2009 and on 17th May 2009 she advised that there were insufficient grounds for a hearing. It was noted that the High Hedges (Jersey) Law 2008 could only be invoked in relation to loss of light and this had not been mentioned in the submission by the complainant. The complainant was advised to amend or resubmit her appeal.

The Connétable of Grouville undertook to resolve the matter informally on the complainant's behalf and the case was closed on 3rd June 2009.

8. A statement of complaint dated 1st May 2009 was received on 5th May 2009 relating to a decision of the Minister for Planning and Environment in respect of an application for change of use to domestic curtilage at the property known as Mandorey Villa, La Grande Route de St. Jean, St. John .

A résumé of the complaint was sent to the Chairman on 15th May 2009. The Chairman refused the request for a hearing as she considered that it was not an appropriate  case  for  a  hearing  by  a  Board  and  the  application  had  been correctly  dealt  with  in  accordance  with  Article 3(5)  of  the  Administrative Decisions (Review) (Jersey) Law 1982. The complainant, having been advised of the Chairman's decision on 20th May 2009, decided to appeal and the matter  was  referred  to  the   Deputy  Chairmen  on  24th  July  2009,  who considered the appeal in significant detail. Looking to the provisions of the Administrative Decisions (Review) (Jersey) Law 1982, they concluded that the Chairman had reached a correct conclusion in relation to the application for a hearing. The complainant was advised of this decision on 24th July and the case was closed.

9. A statement of complaint dated 26th May 2009 was received on 28th May 2009 relating to a complaint against 2 named officers of the Planning and Environment Department.

The complainant was advised to refer his complaint to the Chief Executive Officer of the Planning and Environment Department in the first instance as the  Board  did  not  become  involved  in  processes  which  could  lead  to disciplinary action.

10. A  statement  of  complaint  dated  10th  August  2009  was  received  on  18th August  2009  in relation  to a  decision  of  the  Minister  for  Planning  and Environment regarding the refusal of planning application P/2008/1212 for proposed  alterations  to create  self  contained  units  of  lodging  house accommodation  at  the  property  known  as  Transvaal,  La  Rue  de  Fauvic, Grouville .

A  résumé  was  sent  to  the  Chairman  on  8th  September  2009  and  the complainants were advised on 21st September 2009 that their request for a hearing had been refused on the grounds that the Chairman considered the department had followed its policies correctly in respect of the definition of a "lodging house" which was a series of rooms with shared facilities and that the Housing Control requirements with regard to size had also been followed. The Chairman considered that the application related to self contained units which were not "lodging houses" and therefore decided, in accordance with Article 3(5) of the Administrative Decisions (Review) (Jersey) Law 1982 that a review of this case was not justified.

The complainant appealed this decision and the matter was referred to the Deputy Chairman and one of the longest-serving Board members to adjudicate (as the other Deputy Chairman had declared a conflict of interest). Having considered the appeal, the Deputy Chairman and Board member concurred with  the  decision  of  the  Chairman  that  the  circumstances  did  not  justify review  by  a  Complaints  Board  and  the  complainant  was  advised  of  this outcome on 20th November 2009.

11. A statement of complaint was received on 17th November 2009 in relation to decision of the Minister for Planning and Environment regarding the refusal for permission to change a single three-bedroom dwelling into 2 one-bedroom units at the property known as Amani, La Route de St. Aubin, St. Helier .

A résumé was sent to the Chairman on 7th December 2009. The Chairman will consider the papers to determine whether a review is justified in early 2010.

12. A statement of complaint dated 22nd December 2009 was received relating to a decision of the Planning and Building Services Department regarding the zoning  of  land  at  against  the  decision  of  the  Minister  for  Planning  and Environment to refuse permission for the re-zoning of Field 287, St. Peter .

A  request  for  a  résumé  was  sent  to  the  Minister  and  Planning  and Environment  Department  on  23rd  December  2009.  The  Chairman  will consider the papers to determine whether a review is justified in early 2010.

Scrutiny

13. A statement of complaint dated 22nd April 2009 was received on 27th April 2009 relating to a decision of the Scrutiny Chairmen's Committee not to allow filming of Scrutiny meetings.

A résumé was sent to the Chairman on 28th April 2009. The complaint was disallowed as the proceedings of the Chairmen's Committee fell outside the scope  of  the  terms  of  the  Administrative  Decisions  (Review)  (Jersey) Law 1982. The complainant was advised of the refusal of his request for a hearing on 24th June 2009.

Complaints against non-States Departments

14. A statement of a complaint against a charitable organisation was received on 20th February 2009. The complainant was advised that this fell outside of the jurisdiction of the Board in accordance with the terms of the Administrative Decisions (Review) (Jersey) Law 1982, as it was not a publicly administered body. The complaint was then withdrawn.
15. A statement of complaint was received via electronic-mail on 28th July 2009 against the Dean of Jersey. The complainant was advised that this fell outside of  the  jurisdiction  of  the  Board  in  accordance  with  the  terms  of  the Administrative Decisions (Review) (Jersey) Law 1982. The complaint was then withdrawn.