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

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS BOARD: FINDINGS –

COMPLAINT AGAINST A DECISION OF THE MINISTER FOR PLANNING AND ENVIRONMENT REGARDING THE PROPERTY KNOWN AS TRANSVAAL', LA RUE DE FAUVIC, GROUVILLE

Presented to the States on 13th September 2011 by the Privileges and Procedures Committee

STATES GREFFE

2011   Price code: B  R.112

REPORT

Foreword

In accordance with Article 9(9) of the Administrative Decisions (Review) (Jersey) Law 1982,  the  Privileges  and  Procedures  Committee  presents  the  findings  of  the Complaints Board constituted under the above Law to consider a complaint against the Minister for Planning and Environment regarding the property known as Transvaal', La Rue de Fauvic, Grouville .

Connétable J. Gallichan of St. Mary ,

Chairman, Privileges and Procedures Committee.

STATES OF JERSEY COMPLAINTS BOARD 18th August 2011

Findings of the Complaints Board constituted under

the Administrative Decisions (Review) (Jersey) Law 1982 to consider a complaint by Mr. and Mrs. D.J. Murphy

against the Minister for Planning and Environment regarding

the property known as Transvaal', La Rue de Fauvic, Grouville

1. The Review Board was composed as follows –

Advocate R. Renouf , Chairman Ms. C. Vibert

Mr. R. Bonney

The parties were heard in public at Grouville Parish Hall on 18th August 2011.

The  complainant,  Mr.  D.J.  Murphy,  was  present  and  was  represented  by Mr. M. Smith of J. Design Limited.

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 Messrs. J. Gladwin (Senior Planner – Appeals, Planning and Environment Department)  and  R. Fearnley  (Assistant  Engineer,  Highways  and Infrastructure Section, Transport and Technical Services Department).

The parties visited the site in question after the opening of the hearing, and viewed drawings of the proposals. Additionally, the sites nearby which the complainant had cited as comparable examples were also visited.

2. Hearing

1. Summary of the complainant's case

1. A planning permit for the conversion of the existing first- and second-floor lodging house at Transvaal' to 3 self-contained units of accommodation was granted on 20th November 2008, Condition No. 4 of which required that the residents of the development approved were to have free and unrestricted access to the external amenity space at the rear (south-east) of the property as shown on Drawing D. The removal of this condition was requested in June 2010 on the basis that –

1. the  existing  amenity  space  was  in fact  the  private  garden  of  the existing  ground  floor  dwelling  which  was  not  being  altered  or converted as part of the current proposal to convert the first- and second-floor accommodation;
2. the  property  Transvaal'  was  within  easy  walking  distance  of  the beach via a private right of way, such that ample amenity space would thus be provided; and

3. the existing accommodation – consisting of 6 lodging house rooms – had no access to the amenity space located at the rear of Transvaal.'

2. The application  requesting  the  removal  of  Condition  No. 4  was  initially considered by the Planning Applications Panel on 19th August 2010, when it was deferred in order to allow the submission of a revised proposal which was duly made in September 2010. Thereafter, negotiations with the Planning Case Officer continued, leading to the amendment of the revised proposal and subsequent re-submission, ultimately being considered by the Panel on 24th March 2011 resulting in a Notice of Refusal on the basis that: "The proposal would  be  deficient  in relation  to  amenity  space  provision  standards  and presents an unacceptable parking arrangement, to the detriment of highway safety, so being contrary to Policies TT26, H8(i), H8(v), G2(vii) and G2(viii) of the Jersey Island Plan 2002.".
3. Mr. Smith indicated that J. Design Limited and Mr. and Mrs. Murphy were concerned that the application had not been dealt with in a manner which took due account of normal' planning criteria as applied to other developments, nor the representations which had been made in connection with the proposal. It  was  understood  that  the  Planning  Department's  policy  required  the provision of a minimum of 20 square metres of amenity space per unit which, for  Mr.  and  Mrs. Murphy's  proposal,  resulted  in a  total  requirement  for amenity space of 60 square metres. It was emphasized that due to the confines of the site and the area in which the amenity space was to be located – which area was shared with the parking area for the property – the revised proposal represented the provision of an area of 56.8 square metres (subsequently re- measured by Mr. Smith as approximately 52 square metres).
4. It was contended that the Planning Department regularly and routinely relaxed the 20 square metre requirement for amenity space, particularly in cases where a property was being converted, as in the case of Transvaal.' Mr. Smith emphasized that J. Design Limited had reiterated to the Planning Case Officer the situation whereby the client owned an adjacent private path to the beach for the use of the residents of Transvaal', and the contention that such facility could be considered to provide the amenity required. Concern was expressed that, whilst the private path to the beach was considered to be a relevant consideration to the application, it appeared that neither the Planning Case Officer nor the Planning Applications Panel had adequately taken this factor into consideration.
5. Mr. Smith  was  aware  that  the  Planning  Case  Officer  had  also  expressed concern regarding the privacy of the amenity space proposed for the use of the residents on the basis that it was located at the corner of the site, bounded only by  a  low  granite  wall,  and  subject  to overlooking  by  road  users  and pedestrians. However, it had been emphasized to the Planning Case Officer that there were other instances in the Island where planning approval had been given for balconies for flats so as to provide the necessary amenity space, and it was contended that the amenity space proposed by Mr. and Mrs. Murphy could not possibly be any less private than such balconies. In the light of these points, it was reiterated that it appeared that due consideration had not been given to the precedent so created.

6. Mr. Murphy  confirmed  that  although  it was  recognised  that  the  3 self- contained  units  to be  created  could  be  sold  separately,  this  was  not  the intention for the foreseeable future. Mr. Murphy was concerned at the length of time it was taking to resolve his planning application, and also at the perception  that  dual  standards'  were  being  applied  by  Planning  and inconsistent advice proffered.

2. Summary of the Minister's case

1. The Senior  Planner,  Appeals  outlined  the  background  to the  applications which had been considered in respect of Transvaal.' The recommendation of the Department to refuse the removal of Condition No. 4 on the Notice of Approval  issued  on  20th  November  2008  was  on  the  basis  that  for  any residential development, certain parking and amenity standards were required to be met. In the case of Transvaal', Condition No. 4 had been necessary so as to provide sufficient garden space for each of the 4 apartments in the form of a communal garden as originally applied for (Application No. P/2008/1212 referred).
2. Whereas the applicant had sought to remove Condition No. 4 so as to provide all the garden space available to the rear as a garden for the ground floor apartment, and to provide new garden space for the other 3 apartments in part of the existing car parking area, this would have resulted in the newly created garden being unacceptable as amenity space. It was emphasized that the need for amenity space in new residential units was a basic planning requirement. No mention that the garden would not be available had been included in the original  proposal,  with  the  converse  situation  having  been  set  out  in  the drawings  submitted  which  showed  "External  Amenity  Space"  as  being 193 square metres. It was noted that on the revised application, the area was described as "Private Amenity Space for Ground Floor Apartment.".
3. It  was  noted  that  in  the  report,  dated  4th  August  2010,  of  the  Planning Department to the Planning Applications Panel, it had been suggested that, in seeking to advise the Panel regarding a potential solution, and given the scale of the existing garden and the context of a 20 square metres requirement for each  flat  (Policy PPN6  referred),  the  Department  might  be  amenable  to reconfiguration of the space so as to provide an element for the use of the ground floor apartment, distinct from the other flats, although it was indicated that  this  consideration  could  not  feature  as  part  of  the  then  present determination. In the event, that compromise (to split the use of rear garden between the existing ground floor apartment and the other apartments, thereby providing sufficient amenity space whilst also retaining the existing parking area largely unaltered) had not subsequently been accepted by the applicant and the application was then determined by the Panel on the basis of the outcome of negotiations at that stage.
4. It was emphasized that the concern of the Department was that the area in the existing car park proposed by the applicant to be converted to amenity space would result in a sub-standard area, insufficient in size and one which in no way could be considered to be private. The Department had to be cognisant of the requirements of the Minister for Planning and Environment who, from the

outset of his first term of office, had stated publicly that he was seeking to raise the standards for planning throughout the Island in all spheres of activity. Consequently, sub-standard proposals were generally not considered to be acceptable.  It  was  conceded  that,  on  rare  occasions,  there  might  be circumstances where on particular sites all the Minister's requirements could not be met and, in which cases, it might be necessary to allow less than perfect solutions to proceed. Such had been the case at one of the 2 nearby sites which the applicant had cited as comparable examples, and at least at one of these (which had involved the conversion of a hotel to lodging accommodation) the legislation  in  force  at  the  time  had  not  required  planning  permission. However, it was reiterated that in all cases where the required amount of amenity space could be provided (such as at Transvaal'), it was expected that such requirements would be met.

5. Additionally, the Planning Department considered that the remainder of the parking area proposed would be reduced in size from that presently available, such that it would not provide enough space in which to safely manoeuvre a car,  to which  proposal  the  Transport  and  Technical  Services  Department (TTS)  had  objected  in relation  to the  proposed  parking  and  turning arrangement. The Assistant Engineer confirmed that TTS adhered closely toits technical  guide  for  the  preparation  of  planning  applications  ("Roads Serving  Small  Housing  Developments").  Whereas  the  various  ranges  of numbers  of  units  involved  might  attract  different  requirements,  variations would normally only receive the approval of TTS where the existing public safety situation would be significantly improved by the proposals sought to be implemented. It was recognised that at Transvaal', whereas there might be a reduction  in the  number  of  vehicles  accessing  the  site,  the  smaller  area available  would  not  provide  sufficient  manoeuvring  space.  It  was  further noted  that  a  condition  relating  to the  permanent  restriction  in height  to 900 mm from road level of everything within the required visibility sight-lines had been accepted by the applicant, with agreement having been reached regarding the removal of the existing pointed granite coping stones from the existing wall.
6. The Connétable of St. Saviour summarised the submission of the Planning Department by emphasizing that as the required area of amenity space was able to be provided at Transvaal', it was expected that it would indeed be implemented. The Connétable contended that the advice offered by officers of the Planning Department had been consistent and appropriate, and it was confirmed that the Planning Applications Panel had, on 19th August 2010, deferred the application in order to allow the applicant to submit revised plans based on his agent's suggestion that part of the existing car park could be given over to amenity space. As regards the applicant's contention that the private access to the beach 140/150 metres away should have been taken into account to a greater extent by the Panel, the Connétable confirmed that due regard had been given to this factor, as evidenced by references toitin the Panel's Minutes of both 19th August 2010 and 24th March 2011. It was suggested  that  the  Department's  concerns  regarding  traffic  and  vehicle manoeuvring had been adequately explained by the Assistant Engineer, TTS. The Connétable reiterated that the Panel's approval of the application on 24th March 2011 had been on the basis that adequate amenity space would be provided by means of the communal rear garden arrangements envisaged,

with the proposal to create a small area of amenity space in the car park considered to be inadequate in terms of size and privacy.

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.
2. The Board was of the view that the refusal of the subject application –

1. was not contrary to law;
2. was 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. was not based wholly or partly on a mistake of law or fact;
4. could have been made by a reasonable body of persons after proper consideration of all the facts; and
5. was  not  contrary  to the  generally  accepted  principles  of  natural justice.

Consequently, the Board does not uphold the complaint.

3. The Board noted that, whilst the Planning Applications Panel had originally approved the application for the  proposed  conversion  by  Planning  Permit dated 20th November 2008, an application seeking the removal of Condition No. 4 (requiring "residents to have free and unrestricted access to amenity space" to be provided in the rear garden) had not been submitted until 25th June 2010. It appeared to the Board that from the outset the applicant must have been aware that amenity space was required because he had included a measurement of the rear garden marked as "External Amenity Space" on his plan, and it was therefore considered reasonable for the Planning Department to have assumed that the applicant would be content with the shared use of that area with the 3 lodging units being created in order to meet the planning guidelines,  on  the  basis  that  the  necessary  amenity  space  could  not  be provided elsewhere on site.
4. The Board considered that it had been reasonable for the Panel to defer (in August 2010) consideration of the application then before it, so as to afford the applicant an opportunity to develop his agent's suggestion during the public meeting that it might be possible for an area in the car park to be given over to amenity space. However, the Board accepted that it had also been reasonable for the Planning Department subsequently (in March 2011) not to give  favourable  consideration  to the  proposal  which  had  by  then  been developed by the applicant involving the use of a small part of the existing car park – immediately adjacent to a busy main road and junction – as "private" amenity space, given the degree of overlooking from the public realm and also

having taken into consideration its inadequate size for the purpose, which would have rendered it sub-standard.

5. The Board  further  agreed  that  it  was  also  reasonable  for  the  Planning Department  not  to have  given  credence  to  the  contention  that  the  use elsewhere of balconies towards achieving the total area required as amenity space  should  be  a  significant factor in support  of the  revised  application relating to Transvaal.' Similarly, the Board accepted that the Panel had given due consideration (as evidenced in its Minutes) to the applicant's suggestion that the availability across the adjacent main road of a 140/50 metre private path to the beach (which facility' was inevitably subject to variations in respect  of  tidal  conditions)  should  be  given  significant  weight  in its deliberations. The Board recognised, nevertheless, that the availability of such an access to the beach could be considered to represent a bonus' in terms of the facilities available to the residents of the lodging units at Transvaal', although it could not be considered a substitute for amenity space of good quality nearer to the units.

6. Whereas it was noted that the Planning authorities may, hitherto, have taken a rather more relaxed view of the requirement for adequate amenity space to be provided  at  certain  sites,  the  Board  accepted  that  this  had  only  been  in situations where there had been little or no scope to provide any or any adequate amenity space. It was recognised that the alternative to pragmatically allowing  such  sites  to be  developed  would  have  been  to prevent  their redevelopment, conversion or refurbishment, such that they could ultimately have become derelict and potentially unusable to the detriment of the owner and the Island overall. The Board considered that it was reasonable for the Planning Department to require that, in situations where the required amenity space could physically be provided, it should be so provided – even though the applicant might prefer to pursue some alternative route.

7. With regard  to the  highways  considerations  of the application, the  Board agreed that Planning had had proper regard to the relevant TTS guidelines, with due consideration having been given to the real possibility that some vehicles might reverse along or onto the main road, from which it was evident that the necessary conditions had not been met.

3.8.  Accordingly, the Board does not uphold the submissions of the Complainant. Signed and dated by:  .....................................................................................

Advocate R. Renouf , Chairman

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

Ms. C. Vibert

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

Mr. R. Bonney