Reg’s Skips Limited – Planning Applications (R.118/2010): compensation and further action (P.130/2010) – comments

STATES OF JERSEY

REG'S SKIPS LIMITED – PLANNING APPLICATIONS (R.118/2010): COMPENSATION AND FURTHER ACTION (P.130/2010) – COMMENTS

Presented to the States on 22nd October 2010

by the Committee of Inquiry: Reg's Skips Limited – Planning Applications

STATES GREFFE

2010   Price code: A  P.130 Com.

COMMENTS

Given that the States is seemingly faced with a variety of proposals regarding the recompense that it should make to Reg's Skips Ltd. (RSL) the Committee of Inquiry felt that it might be helpful if, for the avoidance of any doubt and to aid good debate, it set out its recommendation on this and the rationale for it.

We concluded after very careful analysis that the costs incurred by RSL were some £249,000. This is, we believe, not now in dispute although this sum excludes any putative interest costs that may have been incurred by the company; we assiduously sought information about these but none was forthcoming. We came to the view that of  this  sum,  £157,000,  rounded  down,  could  properly  be  judged  to  be  directly attributable, per our terms of reference, to the failings of the Planning Department. The reasons for this are spelt out in section 17 of our report.

The £157,000 comprises –

We excluded the following costs –

We excluded the £91,000 from our recommendation because we judged that this element of the total was not directly attributable' to the failings of the Planning Department.

Up to 20th February 2008 RSL had been pursuing an appeal based on the premise that Mr. C. Taylor 's application to roof over the skip sorting yard at Heatherbrae Farm

would be approved. This was intrinsically consequent upon the processes and actions of the Minister and the Planning Department because –

1. the  roofing-over'  application  had  arisen  because  of  the  Minister's  overt support for the idea during his site visit to Heatherbrae Farm in September 2006;
2. RSL  had  been  advised  by  Senator  Shenton,  following  a  telephone conversation he had had with the Minister (a recorded transcript of which is printed in our first report) of the Minister's assurance that the roofing-over' application would be approved; and
3. because, and only because, of the Minister's assurance, an appeal against the voisinage  judgment  against  RSL  was  forthwith  lodged  with  the  Court  of Appeal on grounds of material change of circumstances: roofing over of the skip sorting yard would have allowed RSL to assert to the Court that the injunction against the company awarded by the Royal Court requiring it to vacate  Heatherbrae  Farm  was  now  not  necessary  in  order  for  the  noise nuisance to be abated.

RSL had been advised by Messrs. Le Gallais and Luce that the scope for an appeal was not wide. But the change of circumstances' argument was a runner provided the Minister's  assurance  could  be  had  promptly  in  writing.  As  is  normal  in  such circumstances RSL were not discouraged from seeking a second opinion if it were unsure as to whether it was adopting the best course of action. In the circumstances this was not an imprudent course for any company to take. Messrs. Sinels were approached for that second opinion. As noted above we estimated that Sinels' costs attributable to this process were some £11,000.

Sinels  identified  possible  different  grounds  for  appeal  from  the  single  ground cautiously  identified  by  Le  Gallais  and   Luce .  Essentially  these  concerned  the lawfulness  of  the  Royal  Court's  application  of  the  rules  of  voisinage.  On  20th February 2008 or thereabouts, RSL, having considered the new arguments, elected to instruct Messrs. Sinels and the grounds of the company's appeal were accordingly changed.

This was a calculated risk taken by RSL and was not a decision influenced directly by the actions of the Planning Department. As things turned out the revised grounds of appeal were resoundingly rejected by the Court of Appeal, which was also critical of Sinels (but not RSL) for making changes at a late hour. Admittedly with the benefit of hindsight, it was clear to the Committee that the stance taken by Messrs. Le Gallais and Luce had been appropriate in the circumstances. And once it would have become clear that written confirmation of the Minister's assurance to his fellow Senator was not to be forthcoming, and indeed once the Assistant Minister (not knowing of her Minister's assurance) had turned down the roofing-over' application, the only advice to RSL would have been to withdraw the appeal. Substantial costs would have been averted as a result, as indicated in the table above.

The considerable risks surrounding the appeal as pursued by Messrs. Sinels could not, we decided, be attributed to any failings by the Department and so we excluded them from our recommendation accordingly.

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P.130/2010 Com.

It  was  not  part  of  the  remit  given  to  us  by  the  States  to  consider  the  case  for compensation  to  Mr.  and  Mrs.  Pinel  to  reflect  the  losses  and  difficulties  they experienced throughout this long and difficult saga because of the actions of the Planning Department. We shall let our report speak for itself on this, trusting that States members will wish to take its findings as a whole into careful account as they decide how best to seek to remedy the wrong that the Committee concluded was indeed suffered by RSL, by Mr. and Mrs. Pinel and by Mr. Taylor .

John Mills CBE

Edward Trevor MBE FRICS Richard Huson Esq

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Committee of Inquiry – Reg's Skips Terms of Reference

To  investigate  all  planning  matters  relating  to  the  various  relevant  planning applications  made  by,  or  on  behalf  of,  Reg's  Skips  Ltd.  in  connection  with  the activities of the company as skip operators –

1. to  establish  whether  the  various  planning  applications  were determined appropriately and to a standard expected of the Planning and Environment Department;
2. to  establish  whether  the  legal  fees  accrued  by  Reg's  Skips  Ltd. totalling  nearly  £300,000  were  as  a  result  of  any  failings  in  the processes or actions of the Planning and Environment Department; and
3. to  make  recommendations  for  changes  and  improvements  to  the planning process to ensure that any failings identified in relation to these applications are not repeated in the future.