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 CLIFFSIDE HOUSE,

65 NEW ST. JOHN'S ROAD, ST. HELIER

Presented to the States on 11th March 2011 by the Privileges and Procedures Committee

STATES GREFFE

2011   Price code: B  R.26

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 Cliffside House, 65 New St. John 's Road, St. Helier .

Connétable J. Gallichan of St. Mary ,

Chairman, Privileges and Procedures Committee.

STATES OF JERSEY COMPLAINTS BOARD 22nd February 2011

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 Cliffside House, 65 New St. John 's Road, St. Helier

1. The Review Board was composed as follows –

Advocate R. Renouf , Chairman Mr. T. Perchard

Mr. R. Bonney

The  parties  were  heard  in  public  at  the  States  Building,  Royal  Square, St. Helier on 22nd February 2011.

The complainant represented himself.

The  Minister  for  Planning  and  Environment  was  represented  by Mr. R. Webster, Principal Planner – Appeals.

The parties visited the site in question after the opening of the hearing, and viewed drawings of the proposals.

2. Hearing

1. Summary of the complainant's case

1. Mr. Slot, by letter dated 2nd June 2010, had outlined that he had submitted an application seeking to provide a handrail and to alter a window so that a flat- roofed area could be safely used as a balcony, which the Planning Department had initially refused under delegated authority, and which had subsequently been reconsidered by the Planning Applications Panel and refused. Mr. Slot was concerned that the Planning Department, having claimed that neighbours were liable to overlooking, had declined his offer to provide a rear screen in order to satisfy the objections raised.
2. Mr. Slot conceded that his original application sought the installation of a handrail – which he now recognised would be inappropriate – and that the suggestion regarding the possibility of installing one or more privacy screens had been a later consideration. However, Mr. Slot was concerned that at the subsequent reconsideration of the application by the Planning Applications Panel, the possibility of installing a privacy panel had not been mentioned and that  refusal  of  his  application  had  been  maintained  on  the  grounds  of "an unacceptable amount of overlooking and loss of privacy", which grounds could  have  been  overcome  by  means  of  the  installation  of  one  or  more screens. It was confirmed that the Planning Applications Panel could, on that occasion,  have  approved  the  application  before  it whilst  requiring  the

installation of suitable screening to be controlled by means of the imposition of an appropriate condition.

3. Mr. Webster confirmed that no formal objections to the proposals had been submitted  to date,  although  it was  recognised  that  whilst  Mr. Slot  had complied with the requirements of the Planning and Building (Jersey) Law 2002, the site notice had been placed on St. John 's Road, whereas the access to at least one of the neighbouring properties (Somerset Apartments) was located on Old St. John 's Road.
4. Mr. Slot  recognised  that  it remained  open  to him  to submit  a  revised application  for  a  simple  scheme,  possibly  featuring  well-designed  and appropriate screening which would seek to overcome the objections which had been raised by the Planning Department, such that no or minimal impact on adjacent properties would be created. It was considered that any screens to be installed would need to be between 5 feet and 6 feet in height in order to minimise the risk of overlooking to the west and to the south.

2. Summary of the Minister's case

1. The Principal Planner, by letter dated 21st July 2010, had set out a detailed summary of the case. The application, which sought to create a balcony on an existing  small flat-roofed area  at  Cliffside  House, had  been  submitted on 18th September 2009. Cliffside House was a three-storey property comprising 4 flats (3 x two-bedroom units and one studio unit) located on the west side of New St. John 's Road, and the proposal involved replacing a uPVC window with  a  uPVC  door  to gain  access  to the  proposed  balcony,  and  also  the construction of balustrading around the proposed balcony.
2. It was noted that the Planning Case Officer, following a site visit and planning assessment, had concluded that the proposed balcony, because of its height (fourth floor/roofspace level) and close proximity relative to neighbouring properties,  would  result  in unacceptable  overlooking/loss  of  privacy  to neighbouring  occupiers.  On  that  basis,  refusal  of  the  application  was recommended to the Assistant Director, Development Control. Assessment of the application plans by the Assistant Director, together with a review of the Case Officer's assessment and site photographs, had let to a decision to refuse permission  under  delegated  powers,  with  a  refusal  notice  dated  20th December 2009 specifying the following reason: "The proposed balcony by virtue of its position and close proximity to surrounding neighbours to the south and west at such a height, results in a scheme that would cause an unacceptable  amount  of  overlooking  and  loss  of  privacy  to  the  adjacent neighbours,  and  is  therefore  considered  contrary  to  Paragraph (ii)  of Policy G2 of the Jersey Island Plan 2002."
3. A request for reconsideration of the application was received on 12th January 2010 on the basis that Mr. Slot considered that refusal on overlooking/privacy grounds was unreasonable. The Planning Applications Panel considered the request for reconsideration on 26th February 2010, taking into consideration a further  report  from  the  Planning  Case  Officer  dated  8th  February  2010 – which recommended that the refusal of the application should be maintained – and  also  representations  made  by  the  applicant.  The  Panel  had  deferred

making a decision pending its undertaking a site visit. The matter had been further deferred from 18th March 2010 at the applicant's request, and the application was subsequently taken into consideration on 15th April 2010 – notwithstanding the further absence of the applicant – when the Panel, on the casting vote of the Chairman, decided to maintain the previous decision to refuse permission.

4. It was noted that the Planning Case Officer's report of 8th February 2011 had referred  to the  potential  for  privacy  screens  to be  installed,  although  it concluded  that  these  would  not  be  an  appropriate  alternative,  "given  the height of the flat-roofed area, its close relationship to adjacent property, and the impact of high screens in terms of design and the overall appearance of the property from the street."
5. Mr. Webster referred to the proposed extension at Cliffhouse, which it was recalled was the subject of an extant permit, and suggested that this scheme did not support Mr. Slot's application in relation to the proposed balcony as the approval of something which would create further overlooking would worsen an already difficult situation. It was suggested that a situation where overlooking occurred by virtue of a window in a dwelling was different (less intrusive) to overlooking which would occur from a balcony, where people would be able to peer down at a steep angle into neighbouring amenity areas.
6. Mr. Webster emphasized that each case fell to be determined on its relative merits and, whilst in many cases, tall opaque screening could overcome issues associated with overlooking, taking into account the small area of balcony envisaged in this case, such screening would effectively negate any perceived advantage of creating balcony amenity space. Consequently, rationale for the refusal of the application could be said to be that it was not appropriate to consider the installation of screens as the balcony (which unusually would be located on the side of the dwelling Cliffhouse, rather than at the front) should not be permitted in any event.

3. The Board's findings

1. The Board  noted  that  the  Planning  Case  Officer  who  had  compiled  the original  report  for  consideration  by  the  Assistant  Director  had  also subsequently  compiled  the  Request  for  Reconsideration'  report  for  the Planning  Applications  Panel.  The Board  further  noted  that  the  issue  of "screening", whilst referred toin the minutes of the Planning Applications Panel of 26th February 2010, had not been specifically referred to in the subsequent minutes of 15th April 2010. The Board also noted with interest that the Chairman of the Planning Applications Panel had been required to use his casting vote on 15th April 2010 in order to determine the application following a split vote.
2. The Board  nevertheless  concluded  that  it  had  been  appropriate  for  the Planning  Applications  Panel  to consider  the  application  as  originally submitted  (i.e.  envisaging  the  installation  of  a  handrail  on  the  proposed balcony).  The  Panel  had  visited  the  site  prior  to its  consideration  of  the application  and  appeared  to have  taken  into  account  all  relevant  factors, including the issues surrounding privacy screening.

3. The Board  was  accordingly  of  the  view  that  the  refusal  of  the  subject application was, with reference to Article 9(2) of the Administrative Decisions (Review) (Jersey) Law 1982 –

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 not minded to request the Minister for Planning and Environment to reconsider the matter.

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

Advocate R. Renouf , Chairman

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

Mr. T. Perchard

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

Mr. R. Bonney