States of Jersey Complaints Board: findings – complaint against a decision of the Minister for Planning and Environment regarding an appeal in respect of the issue of an Enforcement Notice and failure to respond to the applicant

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS BOARD: FINDINGS –

COMPLAINT AGAINST A DECISION OF THE MINISTER FOR PLANNING AND ENVIRONMENT REGARDING AN APPEAL IN RESPECT OF THE ISSUE OF AN ENFORCEMENT NOTICE AND FAILURE TO RESPOND TO THE APPLICANT

Presented to the States on 19th November 2013 by the Privileges and Procedures Committee

STATES GREFFE

2013   Price code: C  R.144

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 an appeal in respect of the issue of an Enforcement Notice and failure to respond to the applicant.

Deputy J.M. Maçon of St. Saviour

Chairman, Privileges and Procedures Committee

STATES OF JERSEY COMPLAINTS BOARD 23rd October 2013

Findings of the Complaints Board constituted under

the Administrative Decisions (Review) (Jersey) Law 1982 to consider a complaint by Mr. D.R. Manning

against the Minister for Planning and Environment regarding an appeal in respect of the issue of an Enforcement Notice and failure to respond to the applicant

1. The Review Board was composed as follows -

Ms. C. Vibert , Chairman Mr. J.F. Mills, C.B.E. Mr. G.G. Crill

The parties were heard in public at St. John 's Parish Hall on 23rd October 2013.

The  complainant  Mr. D.R. Manning  represented  himself,  with   Deputy J.H. Young in attendance.

The  Minister  for  Planning  and  Environment  was  represented  by Mr. A. Townsend, Principal Planner.

The parties visited the site in question at Mandorey Villa, St. John after the opening  of  the  hearing,  and  viewed  Areas  A'  and  B'  (as  more  fully described in paragraph 3.1 of these findings) and their relationship to the rest of the property.

2. Summary of the complainant's case

1. In his written submission, Mr. Manning had contended that the Minister had issued an unlawful Enforcement Notice and had not taken any action to rectify the matter. The Enforcement Notice had been issued on 30th June 2010 under Article 40 (re. breach of development controls) of the Planning and Building (Jersey) Law 2002 in respect of the unauthorised external storage of items "on land to the east of the existing storage building which lies outside and beyond the approved site curtilage to this building" at Field No. 1007, La Grande Route de St. Jean, St. John . Mr. Manning had subsequently appealed under the Law but the appeal had not been allowed. Mr. Manning considered that, as the storage which was the subject of the Enforcement Notice had been undertaken for  a  period in excess  of  8 years,  Article 40(1)  of the  Law  rendered  him immune from enforcement action. The Law states: The "Minister may serve an enforcement notice in respect of breach of development controls (1) This Article applies where it appears to the Minister – (a) that there has been a breach of development controls during the previous 8 years; and (b) that it is expedient that action should be taken to remedy the breach.").
2. At the hearing, Mr. Manning questioned the appropriateness of the inclusion in the papers of "Interested Party" submissions dated 8th September and 9th

October  2013.  He  was  concerned  that  an  officer  of  the  Planning  and Environment Department had – on 17th June 2010 – written to Mr. M. Stein, who  represented  Mrs. V. Whitworth,  a  next-door  neighbour,  outlining  the department's position regarding its consideration of whether or not to pursue enforcement action against Mr. Manning and referring to the existence of an "8-year rule" under Article 40(1) of the Planning and Building (Jersey) Law 2002 (as amended). Mr. Manning questioned whether Mr. Stein's previous employment by the department had not been a factor in such correspondence having been sent to him.

3. Mr. Manning was concerned that the amendment to Article 40 of the Planning and Building (Jersey) Law 2002 which came into force in August 2007 and which introduced the 8-year rule' had not been notified to him and that, consequently, he had not been able to take that aspect into account in his appeal  against  the  2010  Enforcement  Notice.  The  Board  noted  that Mr. Manning had only become aware of the 8-year rule' when he visited the department in September 2012 to review his case file and saw the letter, written on 17th June 2010, to his neighbour's representative. This letter had not been copied to Mr. Manning nor was it disclosed during the Royal Court Appeal. As a result of this discovery, Mr. Manning's lawyer wrote to the Minister on 21st September 2012 requesting information. A response to this enquiry (from a Law Officer) was not received until 17th April 2013 in spite of more than one reminder.
4. Mr. Manning emphasised that it was the Enforcement Notice dated 30th June 2010 which was of relevance to the present hearing, contending that had he known about the 8-year rule' at the time he had contested the Enforcement Notice the outcome might have been different. He indicated that such research as he had been able to undertake regarding the Planning and Building (Jersey) Law 2002 had not revealed that there had been subsequent amendments to that legislation. He argued that the Planning and Environment Department had acted improperly in withholding from him the existence of the subsequent amendment to the Law (Amendment No. 4) which had introduced the 8-year rule' and he suggested that at the relevant time there appeared not to have been a proper process in place to deal with the issuing of Enforcement Notices (although it was recognised that this had since begun to be addressed through the  publication  of  Supplementary  Planning  Guidance  (SPG),  dated  3rd December  2010).  In  the  absence  of  such  SPG,  Mr. Manning  questioned whether  the  Planning  Enforcement  Officer –  Mr. C.K. Bray –  who,  it was confirmed, had been appointed in May 2008, would have been adequately familiar with the department's enforcement procedures.
5. Referring  to the  Judgment  of  the  Royal  Court  dated  2nd  February  2011, Mr. Manning  contended  that  the  inclusion  of  a  new  condition  in the development permission granted in November 1996 (and carried forward in the amended permissions in May 1997 and December 1997) which required the  inclusion  of  landscaping  detail  as  part  of  the  plan  submitted  for  the redesign of the storage shed and the remainder of Field No. 1007, meant in practice that that area of land could not have been used for agriculture.
6. Mr. Manning indicated that he was not aware that the department's allowing Jersey Telecom (JT) in 2004 to store telegraph poles on his land was only a temporary  arrangement,  he  not  having  received  anything  in writing  from

either the company or from the department. Mr. Manning confirmed that the newly-created area of hard standing had initially been shared between JT and himself, which had been particularly helpful to him as the storage of telegraph poles had been a useful source of income, although he also stated that he gave JT notice to remove the poles upon noticing that problems (leaching) had occurred with the storage of the telegraph poles. Mr. Manning stated that he was  unsure  why  he  had  approached  the  Planning  and  Environment Department rather than JT when the leaching of creosote was noticed. He considered that possibly he would have made such an approach because he would have recognised that the permission he ultimately obtained would have been  needed  from  the  department.  This  enabled  him  to  remove  the contaminated topsoil and replace it with hardcore (to form a hard standing area) in advance of his subsequent application for the construction of a shed (which was refused). The Board noted that an exchange of correspondence/e- mails  in  April  2004  between  the  Environment  Department  and  JT  had discussed  the  recommended  storage  methodology  for  the  telegraph  poles (i.e. a  sand  trap')  in  accordance  with  the  manufacturer's  instructions, although  it  was  apparent  that  this  advice  had  not  been  adequately implemented.

7. Mr. Manning contended that photographs showing Area A' should not have been provided to the Royal Court during the proceedings relating to his appeal against the 2010 Enforcement Notice as these were irrelevant to the matter then under consideration, as that Enforcement Notice related only to Area B.' Mr. Manning confirmed that he would not subsequently have applied for a change of use in respect of Area B' (which was subsequently refused) had the Court not suggested it as a way forward. The Board's attention was drawn to the statement in the Royal Court judgment which stated that: "It is right to emphasise  that  in  relation  to  the  storage  of  telegraph  poles  over  an approximate two year period and the laying of hard standing in the appeal site area, the Appellant has done absolutely nothing wrong."
8. The Board  noted  Mr. Manning's  contention  that,  as  evidenced  by  a photograph  representing  a  "location  plan"  of  his  property  and  adjacent properties, the use of Area B' for agricultural storage in the form of tractors and/or  other  large  pieces  of  machinery  would  be  entirely  inappropriate because such use would have introduced more noise and disturbance nuisance than the current minimal domestic' operations. Photographs taken between 1997 and 2012 were viewed, and the Board referred to an e-mail dated 11th February 2012 from Deputy Young (to the Deputy of St. John ) which outlined his recollection of when he was Chief Officer at the time when consent had been granted to allow Mr. Manning to develop his storage shed under strict conditions to ensure that the area was maintained in a tidy state.
9. The Board also noted an undated "Statement", purported to have been made by  Mr. A. Coates,  Senior  Planner  (but  unsigned),  which  said  that  "the evidence garnered from the series of aerial photographs does not suggest that a  continuous  breach  of  planning  control  had  occurred,  in  respect  of  a material change of use of the land to storage use, for a period of, or in excess of,  8 (eight) years." Mr. Manning  suggested  that  the  contention  by  the department, referred toin a letter dated 1st March 2001, that the storage at that time was associated with the need for the development of the approved shed and house which remained to be finished, was erroneous, as it was unlikely

that a builder's compound' would still have been required some 6 years after the development had commenced.

10. Mr. Manning questioned why it was that, given that storage on the site had started in 1999, a complaint had not been made until 2009, by which time the amount of material stored had substantially reduced. [It was confirmed at the hearing  that  enforcement  action  usually  followed  an  investigation  by  the enforcement team of the subject of a complaint received from a member of the public –  often  a  neighbour].  As  regards  his  complaint  regarding  the correspondence which had been sent to a neighbour's representative shortly before  the  issue  of  the  Enforcement  Notice  dated  30th  June  2010, Mr. Manning was aggrieved that no substantive response had been received from the department to the letter dated 21st September 2012 from his legal representative to the Minister for Planning and Environment concerning that correspondence and the fact that he was never advised himself about the 8-year rule.'
11. Deputy  Young,  on  Mr. Manning's  behalf,  outlined  his  rationale  for considering  that  he  was  not  conflicted  in assisting  Mr. Manning  as  a consequence of his previous association with the Planning and Environment Department, even though he had been Chief Officer at the time of the original development proposal in 1996. Deputy Young confirmed that, in his former capacity as Chief Officer of the department, he had had no involvement in the consideration or determination of any of Mr. Manning's applications, although he was aware that there had been concern at the time that the site at Field No. 1007 could become a "despoiled area."The Board noted that a letter dated  22nd  October  2013  from  Mrs. Whitworth's  legal  representative  had been handed to the Clerk at the hearing contending that Deputy Young's support of Mr. Manning's complaint raised an issue of "conflict of interest" and  potentially  a  breach of  confidentiality  given  that the   Deputy –  in his capacity as a member of the States – had met Mrs. Whitworth earlier in 2013 to discuss related matters such as "why the Planning Department had not dealt  with  breaches  of  the  Planning  Legislation  on  Field 1007  with appropriate  speed  and  diligence." The Board  confirmed  after  due consideration that it was content with Deputy Young's explanation and for him to continue to assist Mr. Manning at the hearing.
12. Deputy Young outlined the circumstances which had led to his meeting with Mrs. Whitworth to discuss her concerns regarding disturbance arising from Mr. Manning's operations next door to her. The Deputy emphasised that he was not present at the hearing to argue against the interests of any third party, but simply to support Mr. Manning. Deputy Young commented that he had been pleasantly surprised upon his first visit to Mr. Manning's property (about 3 months after the issue of the Enforcement Notice) to see just how tidy the area was and how little was stored there. In looking through Mr. Manning's papers relevant to the present complaint, the Deputy considered that there was clear evidence of "sloppy" administration on the part of the department, with correspondence not being responded toin a timely fashion and other delays in dealing with matters being apparent.
13. Deputy  Young  confirmed  that  Mr. Manning  had  not  been  involved  in an application  from  Mr. Gurd  relating  to Advanced  Glass  Limited  for  the proposed use of part of the storage shed for the purpose of the manufacture of

windows, other than to sign Mr. Gurd's application as landowner, and could not therefore have been aware of any conditions imposed as part of the permit subsequently  granted  to  Mr. Gurd.   Deputy  Young  considered  that  the department's  handling  of  the  various  applications  associated  with  Field No. 1007 had been "a bit of an administrative mess" and that there appeared to be similarities with matters identified in the Reports emanating from the Reg's  Skips  Committee  of  Inquiry  (R.118/2010  and  R.38/2011).  Also  of concern was that the department had corresponded with Mr. M. Stein in 2010 without having provided Mr. Manning with a copy at the time. Deputy Young considered that it was of importance to establish a firm boundary as between the area of hard standing and the remainder of Field No. 1007 to the east and that the suggestion that the area of hard standing should only be permitted to be used for "agriculture" did not appear to be appropriate given the potential for increasing noise/disturbance that this could engender.

14. In summary, Deputy Young expressed the view that the discovery' of the 8-year rule' was a substantial factor in the case and that complaints of this nature were more properly dealt with under Noise and Nuisance laws rather than by the Planning Department. He hoped that an accommodation could be reached between the two neighbours to enable them to co-exist peaceably.

3  Summary of the Minister's case

1. The written response on behalf of the Minister clarified that the area of land to which  Mr. Manning's  complaint  referred  was  that  designated  as  Area B' shown on an aerial photograph dated 12th June 2013. It was noted that this area of land lay immediately to the east of another, smaller, area of land, designated as Area A' on that same aerial photograph, located immediately to the east of a shed and extending out a distance of 6.7 metres or 22 feet from the eastern gable end of that building. It was emphasised that the planning history associated with Field No. 1007, St. John was relatively complex and care was needed in order not to confuse the two areas of land and the separate planning issues which related to them.
2. It was recalled that Area B' had previously been the subject of applications relating to the construction of a dwelling and then later a storage shed on the land. However, it was recognised that the present complaint related to the issue of an Enforcement Notice over use of the external area (Area B') for storage,  and  a  judgment  of  the  Royal  Court  dated  2nd  February  2011 specifically  dealt  with  Mr. Manning's  appeal  against  the  above-cited Enforcement  Notice.  That  judgment  concluded  that  the  authorised  use  of Area B' was for agriculture and that therefore the use of Area B' for non- agricultural storage was unauthorised and that consequently the serving of the Enforcement  Notice  in 2010  was  not  unreasonable.  The department  had thereafter expected that the unauthorised use of Area B' would cease.
3. However, it was further recalled that the above-cited Royal Court judgment had also explained the circumstances surrounding the authorisation in 2004 of the temporary use of Area B' for the storage of between 30 and 40 telegraph poles for a period of 18 months (up to 400 in total). A planning application for this proposal had not been submitted but it was agreed administratively' by the department. Discussions had subsequently ensued because heavy rainfall had caused creosote to leach from the telegraph poles into the ground below,

with Mr. P. Thorne , then Director of Planning, subsequently agreeing verbally to the removal of the contaminated soil and its replacement with hardcore. Regardless of some uncertainty regarding the timing of this latter event, the Royal Court had concluded that it would now be unreasonable to require Mr. Manning to remove the hardcore surface. The department accepted that Mr. Manning could continue to use Area B' for agricultural use including storage  (which  might  be  for  the  parking  of  tractors  or  other  agricultural machinery, ancillary to another agricultural use) given that the authorised use of the site was for agriculture.

4. As  regards  Area A'  (described  as  part  of  the  curtilage  of  the  original shed/storage building on-site which was immediately to the west of Area B'), it was noted that it had been included in the original planning applications for the shed/storage building, whereas Area B' had not been so included. The planning  permits  for  the  area  which  included  Area A'  and  the  shed  had consistently  included  conditions  to prevent  external  storage  around  the building. However, these areas had nevertheless been used for unauthorised storage which had led to the service of an Enforcement Notice in November 2009. Upon receipt of a subsequent Royal Court Appeal case the department had  withdrawn  that  Enforcement  Notice  on  the  basis  of  an  unintentional ambiguity in the conditions included in the then most recent (2006) planning permit.
5. In September 2010, an application was submitted for use of part of the storage shed  by  Mr. R. Gurd  (Advanced  Glass  Limited)  for  the  purpose  of  the manufacture of windows. That application was approved in October 2011 subject to a number of conditions, one of which was a prohibition of external storage  on  Area A';  however,  that  area  had  continued  to be  used  by Mr. Manning for storage and the parking of a mobile crane. This had led to the service of an Enforcement Notice on 31st January 2012, in response to which Mr. Manning had lodged a further Appeal to the Royal Court. This Appeal had subsequently been deferred by the Royal Court and currently remained outstanding.
6. With regard to the so-called "8-year rule" under Article 40(1) of the Law, this had come into force in August 2007 and effectively allowed for development which had been ongoing for more than 8 years to continue without the threat of  enforcement  action  being  taken.  Article 40  did  not  grant  planning permission to unauthorised uses; rather it offered immunity from enforcement action for that specific breach of planning control. However, such immunity could only last for as long as the breach lasted. In cases of a change of use' this could occur over a period of time, or even cease and then recommence subsequently. The department contended that, in order to be immune from enforcement action any unauthorised change of use had to be material', and continuous' for a period of more than 8 years. Consequently, the materiality and  therefore  the  enforceability  of  a  use  could  change  over  time. Mr. Manning's contention, on the other hand, was that the site had been used for storage since at least 2001 and that storage had continued in the form of the storage of telegraph poles between 2004–2006 and thereafter up to (and beyond) the 2009 complaint and the service of the Enforcement Notice in June 2010. However, the view of the department was that to start with, broadly up to when the poles arrived, the storage was associated with the need for the development  of  the  approved  shed  and  house.  Thus,  the  department

considered that the area was then being used effectively as part of the building site in the  manner of  a compound,  something  against  which  enforcement action would not normally be taken provided such use was for a temporary period  (as  provided  for  in  the  Island  Planning  (Exempted  Development) (Jersey) Regulations 1965).

7. As regards Mr. Manning's contention that the department had kept from him the existence of the 8-year rule', singling him out not to be notified, this was considered by the department to be incorrect. It was accepted that details of the amending legislation which introduced the change to Article 40(1) from August 2007 had not been specified in the Jersey Gazette notice, but this was confirmed as being normal practice, as was the fact that individuals were not personally notified of such changes when they occurred. Mr. Townsend made the point that the department did not actually announce the existence of the 8-year rule' to Mr. Stein, thereby informing him of its existence for the first time, whilst at the same time not mentioning itto Mr. Manning. A Principal Planner had simply referred to the 8-year rule' when writing to the agent of an interested third party.
8. As previously noted, storage of telegraph poles had commenced in 2004 and it was intended that this would cease in or around 2006. Aerial photographs taken in 2007 showed that most materials had been removed from the site but that some poles remained. By 2008 the materials which had been evident in 2007 appeared to the department to have been removed and the level and extent of storage had reduced significantly from that which had been evident previously, to a point where the level of storage was such that the department considered that it could be regarded as de minimis or non-material. However, it was evident that in subsequent years the extent of storage on the site had increased again and it could be seen from the later photographs how the proportion of the area, now put down to hardcore, had changed, with some use for  agricultural  storage –  which  use  was  authorised.  The department considered that examination of photographs from 2009 onwards indicated that even in the event that all of the material visible was not agricultural, then the proportion of the hardcore area being used for unauthorised storage was less than  50%,  representing  a  material  change  in the  extent  of  the  use  from previous years. Consequently, it was the department's view that if the level of storage had reduced to a point, according to its view of the 8-year rule', there had been no breach of planning control in 2008, then the latest breach had only commenced after that date and thus certainly within 8 years of the date of service of the Enforcement Notice in 2010.
9. Overall, the position of the department was that the site lay within the Green Zone  wherein  there  was  a  presumption  against  development  and,  as demonstrated by the subsequent application which was the subject of the 2012 Royal Court Judgment, the Minister's Planning Applications Panel at the time had  considered  that  an  external  storage  use  of  that  piece  of  land  was unacceptable. Consequently, the department considered it to be reasonable to pursue enforcement action in order to ensure the cessation of the unauthorised use.  Throughout  this  period  complaints  had  been  received  which,  under Policy GD1, necessitated the amenities of adjacent properties being taken into account when addressing a planning application and therefore in assessing the acceptability of an unauthorised use. It was emphasised that the result of not taking action would be that the use and its impact would continue.

4  The Hearing

1. At the hearing, Mr. Townsend for the Minister confirmed that the key issues for  the  department  were  (i)  the  8-year  rule'  and  (ii)  the  absence  of  a substantive  response  to correspondence.  As  regards  the  8-year  rule', Mr. Townsend  said  that  the  department's  view  was  that  immunity  from enforcement action could only be achieved in relation to a single breach of development controls, which must be "material" and "unauthorised" across the whole site. In Mr. Manning's case, it was considered that the use had at times  reduced  to being  non-material  (or  de minimis')  and  had  then subsequently  recommenced,  particularly  after  2008.  The  department considered that the temporary storage of telegraph poles between 2004 and 2006 had been authorised administratively' and therefore that use would not in any event have been enforceable' against. Thus, it was evident to the department that the whole of the site had not been used for an unauthorised purpose for more than 8 years.
2. As  regards  the  delays  on  the  part  of  the  department  in responding  to correspondence, the criticism of this was accepted by the department. Reviews of the relevant processes had been undertaken, and were ongoing, with a view to improving existing methods for reminders' in relation to correspondence outstanding and enforcement processes generally. In summary, Mr. Townsend argued that the department, whilst aware of lapses in administration, including its failure to reply to letters – in which areas it was working hard to improve upon –  did  not  consider  that  it  had  been  unreasonable,  in fact,  quite  the reverse: the department considered that it had made every effort not to place undue pressure upon Mr. Manning whilst the matter awaited resolution and that in any event this had not disadvantaged Mr. Manning as the use had continued in the meantime.
3. Mr. Townsend responded to a number of points which had been raised by Mr. Manning and/or Deputy Young in their oral submissions and, in relation to allegations regarding the "withholding" of information specifically from Mr. Manning  he  categorically  denied  this.  It  was  confirmed  that  the publication  of  information  relating  to  the  adoption  by  the  States  of amendments  to the  Planning  and  Building  (Jersey)  Law  2002  and  their subsequent coming into force had been undertaken in exactly the same routine way as applied to any such legislative changes. With regard to the potential for  confusion  arising  from  the  juxtaposition  of  and  cross-referral  in correspondence  and  documentation  to Areas A'  and  B',  Mr. Townsend suggested that this was regrettable but nevertheless understandable, and it was evident that a number of correspondents had referred to both areas together. Nevertheless, the department considered that any such confusion which may have arisen therefrom had not in any way disadvantaged Mr. Manning.
4. Mr. Townsend also refuted the suggestion that Mrs. Whitworth, through her representative Mr. Stein, had been given information about the 8-year rule' that was intentionally withheld from the Complainant. Mr. Townsend asserted that the purpose of the letter written to Mr. Stein was to say that the 8-year rule' had been considered, and discarded, and it was not intended to withhold that notice from Mr. Manning. The temporary nature of the storage by JT of telegraph  poles  between  2004  and  2006  had  been  clearly  set  out  in

correspondence with the company, although the Planning and Environment Department was surprised that JT had not shared this information with its landlord, Mr. Manning. With regard to the agreement by the department that the remaining area of Field No. 1007 to the east put to grass could be mown, the department considered that this did not represent acceptance in any way that its use had changed to "domestic."

5. Responding  to comments  made  by   Deputy  Young,  Mr. Townsend acknowledged that the department accepted that, as noted by the Royal Court in relation to the past history of the site, there had been a degree of "sloppy administration" on its part and that this was regretted. The reference in the Minister's case to Area A' when the complaint related solely to Area B' was, he said, considered to be reasonable in the circumstances. He argued that reference to Area A' was necessary in order to clarify the situation to the Board. With regard to the suggestion that the inference to be drawn from the letter, dated 17th June 2010, from a Principal Planner to Mr. Stein was that the department's case against Mr. Manning was flawed, Mr. Townsend confirmed that the department's interpretation of the 8-year rule' was just that – an interpretation – and was thus entirely contestable. It was, he argued, based on the wording of the Law, but the Law was open to interpretation. He added that there was no case law on this in Jersey and in such a situation it was common to refer to U.K. cases. Mr. Townsend indicated that he was not aware that legal  advice  had  been  sought.  The  Board  noted  that  the  concepts  of continuousness' and materiality' of the use in the interpretation emerged for the first time only in the undated "statement" purported to have been made by Mr. A. Coates, Principal Planner [the date of which Mr. Townsend undertook to confirm to the Clerk in due course – it being subsequently confirmed that Mr. Coates had then been a Senior Planner with management responsibility for the Enforcement and Technical Services teams and that the note had followed a meeting held on 10th April 2013 – which had also been attended by inter alia a member of the Law Officers' Department – and had been given to the Enforcement Officer on 25th April 2013]. The Board recognised that the apparent first use of the words "continuous" and "materiality" in April 2013 post-dated the Enforcement Notice issued in 2010, and were thus post hoc constructs. Mr. Townsend contended that it was possible to distinguish as between  "buildings"  and  "changes  of  use"  in terms  of  breaches  of development controls as, generally, buildings and/or additions to them were completed on a certain date, whereas changes of use could vary in extent. However, he conceded that storage of the telegraph poles had represented an unauthorised  use  because  no  planning  application  had  been  made  and therefore no formal planning permit issued. The use had not therefore been permitted by the issue of a permit. Mr. Townsend did not dissent when it was put to him by a Board member that it therefore followed that the storage of the poles  between  2004–2006  fell  to  be  counted  as  part  of  the  quantum  of unauthorised use for the purposes of the 8-year rule.'
6. Board members asked Mr. Townsend for clarification on a number of points. With regard to the signature on the Enforcement Notice dated 30th June 2010, which  was  indecipherable  and  had  no  name  printed  underneath  it, Mr. Townsend was unable at the hearing to confirm whose signature it was, but agreed to confirm this to the Clerk subsequently. [It was later confirmed that the signature was that of the then Director of Planning, Mr. P. Thorne ]. The Board noted that the "Delegation of Functions" in respect of Article 40 of

the Planning and Building (Jersey) Law 2002 in force when the Enforcement Notice  was  issued  (30th  June  2010)  appeared  to  have  been  only  to  the Planning Applications Panel [R.40/2010 refers]. Mr. Townsend undertook to confirm the position to the Clerk. [It was subsequently ascertained that R.40 enabled officers to do things which the Panel declined to do, or which were not put to the Panel, such officers, however, having to abide by the code of practice' set out by the Minister in R.40; in relation to the serving of an enforcement notice this required the officer responsible for the decision first to obtain the authorisation of her or his senior. It follows in the Board's view that an exercise of delegation' not in accordance with the code was not properly done and therefore of no effect. It has been confirmed to the Board by  the  current  Chief  Executive  Officer  of  the  Planning  and  Environment Department, Mr. A. Scate, that Mr. Thorne did not seek his authorisation as the senior officer, although he, Mr. Scate, considered that Mr. Thorne had acted within his delegated powers]. The Board takes this to mean that in Mr. Scate's view, and indeed reflecting perhaps what was, and maybe still is, the  practice  of  the  department  generally,  the  decision'  to  serve  the enforcement notice on Mr. Manning was taken lower down the line and then put  to  Mr. Thorne  for  authorisation.'  The  Board  did  not  agree  with  the department's  view'  on  this.  The  delegation  authority  in  R.40/2010  says: "provided in all cases the authorised officer's decision is endorsed by a more senior  authorised  officer."  Mr. Thorne  signed  the  notice  so  his  was  the decision.' Mr. Bray's file notes, indeed, make it clear that he put the matter to Mr. Thorne  for  decision. The  context  is  the  significance  of  the  taking  of important  decisions  having  been  delegated  from  their  formal  home,  the Minister. Decisions are by definition important where an action under public law impacts directly upon the interests of a citizen. This is why the due process in the delegation of powers documents was so thoroughly drawn (and remains so). Authorised officers are required to "observe and abide by" the Code of Practice that was set out for the States and the rest of the citizenry plainly to see. If the department's normal practice on enforcement decisions since 2007 has in fact been as happened in this particular case, then the Board considers that all decisions taken in that way will have been improperly made.

7. It was ascertained that the concept of a use being "continuous" did not appear in the  Planning  and  Building  (Jersey)  Law  2002  and  that,  therefore,  the utilisation  of  such  a  notion  by  officers  was  no  more  than  by  way  of interpretation of the Law. Mr. Townsend confirmed that such was indeed the case, although the concept was, he suggested, in line with similar provisions in relevant United Kingdom legislation and that Planning Officers, sometimes on an  individual  basis,  obtained  information  and/or  guidance  from  other jurisdictions.
8. It was therefore evident to the Board that the department could not offer legal certainty regarding the position submitted on the Minister's behalf that in relation to any unauthorised use this had to be "material", and "continuous" for a period in excess of 8 years. That was simply the department's view on the matter. It was noted, moreover, by the Board that, on the basis of the department's interpretation of the requirements of the Law, the Enforcement Notice of 30th June 2010 was worded in a way that hardly supported the department's position insofar as it required the unauthorised storage to "cease forthwith", not that it should or might be reduced in degree to at least a de minimis' amount  in respect  of  which  the  department,  pursuant  to the

policy it was seeking to justify, might well choose not to pursue enforcement action.

9. Mr. Manning addressed a number of questions to Mr. Townsend regarding the process around the serving of an Enforcement Notice, which, it had been established, usually followed an investigation arising from a complaint made to the department. It was accepted that there was inevitably a period of time between the receipt of a complaint by the department and the issue of an Enforcement Notice if requisite. Mr. Townsend confirmed that the main aim of the amendment to the Law which had introduced the 8-year rule' was to assist local property searches so that purchasers could be assured that they would not subsequently be held to account for any transgressions by previous owners if such had occurred more than 8 years previously. Mr. Townsend added that the enforcement process set out in the Supplementary Planning Guidance (SPG) dated 3rd December 2010 (which, the Board understood, was issued shortly after strong criticism had been made of the enforcement process in the Reg's Skips Committee of Inquiry Report published in September 2010) was now under review once more. The Board took this to imply that the process  was  still  regarded  by  the  department  as  being  less  than  wholly satisfactory. Deputy Young commented that whilst it was evident that there remained a number of issues around the interpretation by the department of Article 40(1) of the Law, Mr. Manning remained the most authoritative source of information on the history of the various uses to which the areas within Field No. 1007 had been put.

5. Examination of department's enforcement file

5.1  In addition to the hearing the Board examined the department's enforcement file. The Board commends Mr. Bray for keeping a good record but what was found has bolstered its criticism of the department's position revealed in the Board's findings below.

6. The Board's findings

1. It is clear to the Board that the Enforcement Notice dated 30th June 2010 was improperly issued. It was not issued in accordance with the procedure laid down  in the  department's  scheme  of  delegation  in force  at  the  time, R.40/2010,  which  was  presented  to the  States  on  15th  April  2010.  No authorisation was sought from his senior by the officer responsible for the decision to serve the notice and who signed it as required by the Minister's code of practice. These particular failings lead the Board to conclude that the enforcement notice was ultra vires. Over and above these considerations of lawfulness, first, the notice was decided upon by officials, and duly signed and served, without any reference to, or analysis of, the notion of continuousness' and  materiality'  as  factors  in the  interpretation  of  the  8-year  rule'  in Article 40(1) that the department brought into play afterwards in seeking to justify its actions, in response to requests for information from Mr. Manning's lawyer. It is clear from the file that these factors were developed only in 2013 as a device for seeking to justify the department's position in the face of legal challenge  and  when  the  failure  to reply  to Mr. Manning's  lawyer  was becoming a matter of embarrassment if not concern to officers. Secondly, it was  maladministration  on  the  part  of  the  department  that  Mr. Manning's protagonists were informed about the enforcement notice before he received

it. Thirdly, it was unacceptable that a document of such material significance to the citizen concerned was signed with an illegible and unknown signature and  not  demonstrably  executed  in  accordance  with  prevailing  delegated powers. The Board is of the firm view from the evidence it has seen and heard that the 8-year rule' was not properly considered by senior officers at the time that the decision was made to issue the Enforcement Notice in 2010, and that attempts by the department to address the possible challenge to the Order under the 8-year rule' by creative interpretation of the same only arose after the "rule" came to the complainant's attention some 2 years after the Order had been issued.

2. The Board considers that it is totally unacceptable that it took almost eight months  for  the  Planning  and  Environment  Department  to provide  a substantive response to correspondence raising fundamental issues relating to the Enforcement Notice.
3. The Board considers that it was wholly inappropriate that the department had confided to an interested party's representative that the department was unsure about  the  8-year  rule'  under  Article 40(1)  of  the  Planning  and  Building (Jersey) Law 2002. The Board also concludes that it was very wrong that substantive  correspondence  to a third  party  about  the  complainant's  case, correspondence  which,  moreover,  raised  a  question  of  doubt  about  the lawfulness of the department's case, had not been copied to the complainant at the  time,  nor  apparently  disclosed  at  the  subsequent  Royal  Court  appeal hearing.
4. The Board  formed  the  clear  view  from  the  evidence  before  it  that  the department,  under  intense  pressure  to respond  to the  long  unanswered correspondence  and  obviously  uneasy  about  its  stance  in relation  to the 8-year rule', set about constructing a line of argument which it thought would see  it  through,  viz.  invention  of  the  concepts  of  "continuous  use"  and "materiality  of  unauthorised  use",  neither  of  which  were in the  Law,  the enforcement notice itself or indeed the SPG, in any guise whatsoever. The Board was also satisfied that the line of argument developed had not been the subject of any formal legal advice to the department or indeed policy debate with the Minister.
5. It  appears  to  the  Board  that  the  department  had  decided  to rely  upon  a snapshot' of the site as it had been on a date in 2008 from which it had determined that the site had been cleared of everything other than "a motor car,  small  trailer  and unidentified box-like  cabin" and  that,  being  of the opinion  that  "continuous"  use  of  the  site  had  not  been  proven  to its satisfaction, it had then proceeded to issue an Enforcement Notice on that basis.
6. In any event, the Board considers it to be nonsensical for public policy to allow agricultural' use (and not just storage') on the land in question but not ordinary domestic' storage.
7. As  for the  application  of  the  8-year  rule', the  Board  concluded that  the department had no policy on what it meant or how it might be interpreted in practice at the time the Enforcement Notice was served in 2010. The Board's view is that the Planning and Environment Department sought after the event

to construct an argument based on spurious evidence in order to justify the issue of the Enforcement Notice, in the face especially of the considerable pressure to restrict the use of the site emanating from the neighbour and her representative,  Mr. Stein  and  a  seemingly  collective  view  among  officers (which the Board has discerned clearly from the files it has examined) that Mr. Manning was regarded by the department as a difficult' customer.

8. The Board does not consider the approach put forward by the Planning and Environment  Department  regarding  the  8 year  rule'  to be  valid.  The department is urged to seek legal advice on its interpretation of the Law regarding  the  8 year  rule'  and  determine  and,  after  public  consultation, promulgate its policy accordingly.
9. The Board considers that the Planning and Environment Department should invite Mr. Manning to re-submit an application (on a fees waived' basis) for the  change  of  use  of  Area B',  thereby  providing  an  opportunity  for neighbours to make such representations as they consider to be appropriate, and giving the Minister or the Planning Applications Panel the opportunity to grant consent and thus regularise the kind of storage permissible on the land and address the question of agricultural use, subject to such conditions as may reasonably be appropriate, whilst ensuring that both Mr. Manning and any other entitled parties retain their rights of appeal in accordance with the law.
10. The Board considers that the absence in correspondence and documentation of the words "as amended" after references to the Planning and Building (Jersey) Law 2002 is not a matter of concern to it. Any reasonable person would understand "the Law" and Article 40 in particular in this instance, to mean "the Law in force at the relevant time."
11. In summary, the Board is of the view that the serving of the Enforcement Notice dated 30th June 2010 was –

1. contrary to law, and also contrary to the generally accepted principles of natural justice, insofar as it related to the interpretation by the department of the relevant provisions of the Planning and Building (Jersey) Law 2002 (as amended);
2. and  that  the  department's  subsequent  handling  of  the  case  was contrary  to the  generally  accepted  principles  of  natural justice  by virtue  of  the  administrative  failings  and  shortcomings,  including maladministration, described in this report.

Consequently, the Board requests the Minister for Planning and Environment to reconsider the matter.

12. A feature of this case that has caused a degree of dismay on the part of the Board  was  the  evident  closeness  to the  department  of  the  adviser  to Mr. Manning's third party' adversary – his neighbour. (The adviser formerly worked  in the  department  before  leaving  to found  his  own  planning consultancy  and  obviously  knew  well,  and  was  known  by,  his  former colleagues.) The department was far too assiduous in responding to his many enquiries about Mr. Manning's case and, in the Board's considered view, can be seen to have put aside its neutrality in what was, in considerable part, a

dispute between neighbours. In so doing, it adversely affected Mr. Manning's interests in a manner that demands the most forthright apology to him by the Minister. Not only did the department confide its unsureness about the 8-year rule'  to this  adviser  but  not  to Mr. Manning,  but also informed  him,  the adviser, of crucial developments in Mr. Manning's case before he, the latter, was able to. From this lack of even-handedness in behaving, and being seen to behave, neutrally, it was not a large step for the officials concerned to be seen as  showing  a  measure  of  favouritism  to  the  neighbour's  cause  and dismissiveness  towards  Mr. Manning's.  These  were,  we  believe,  sins  of omission, not commission, but they nevertheless had, or had the potential to have, a marked impact upon the fairness with which Mr. Manning's case was treated.

13. We  recommend  that  the  Minister  forthwith  prepares  a  stringent  code  of practice  governing  his  officials'  dealings  with  third  parties  and  their representatives and supporters,  for  public consultation,  and  ensures  in  his current,  further,  review  of  the  enforcement  process  that  these  issues  and factors  are  prominently  brought  to the  fore  and  resolved.  Those  citizens potentially facing planning enforcement action must have the assurance that their cases are being dealt with fairly, and that facts and events pertaining to them are not being disclosed improperly or unfairly to neighbours or other protagonists.

14. The Board invites the Minister to consider the above comments, and to advise it within 28 days of the action he intends to take to address them.
15. Finally, the Board notes that it did not consider that the interested party' had any locusin these deliberations. While the Board has the power to hear any person in relation to a complaint (Article 8 of the Law refers) no-one other than the complainant and the Minister/department has a right to be heard.

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

Ms. C. Vibert , Chairman

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

Mr. J.F. Mills, C.B.E.

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

Mr. G.G. Crill