States Meeting Transcript - 02/04/2009

STATES OF JERSEY OFFICIAL REPORT THURSDAY, 2nd APRIL 2009

PUBLIC BUSINESS – resumption ...............................................................2

1. Ex gratia compensation payment: Mr. and Mrs. R. Pinel (P.29/2009) - continued .....2

1. Deputy P.J. Rondel of St. John : ..........................................................2
2. Senator B.I. Le Marquand:...............................................................5
3. Deputy R.G. Le Hérissier of St. Saviour:................................................8 Mr. T.J. Le Cocq Q.C., H.M. Solicitor General:................................................9
4. Deputy T.M. Pitman of St. Helier:......................................................11
5. Deputy A.E. Jeune of St. Brelade:......................................................13
6. Deputy R.C. Duhamel of St. Saviour:..................................................13 The Greffier of the States (in the Chair):......................................................14
7. Deputy J.G. Reed of St. Ouen:..........................................................17
8. Senator S. Syvret:......................................................................18
9. Senator P.F.C. Ozouf :..................................................................23 The Deputy of St. Mary:......................................................................25 The Solicitor General:........................................................................25
10. Connétable K.P. Vibert of St. Ouen:....................................................28

11. Deputy A.E. Pryke of Trinity :..........................................................28
12. Deputy S. Pitman of St. Helier:.........................................................29 The Solicitor General:........................................................................30
13. The Deputy of St. Mary:................................................................30
14. Senator B.E. Shenton:..................................................................31

2. The Connétable of St. Mary (Chairman, Privileges and Procedures Committee):.......38

1. Deputy M. Tadier :......................................................................38
2. Deputy I.J. Gorst of St. Clement (The Minister for Social Security):....................38
3. The Connétable of St. Ouen:............................................................39 The Greffier of the States (in the Chair):......................................................39

ADJOURNMENT................................................................................39

The Roll was called and the Dean led the Assembly in Prayer. PUBLIC BUSINESS – resumption

1. Ex gratia compensation payment: Mr. and Mrs. R. Pinel (P.29/2009) - continued The Greffier of the States (in the Chair):

Just before we resume the debate I did overlook at the end of yesterday's sitting to point out to Members that Deputy Le Claire had lodged a proposition, P.47 Planning and Environment: division into 2 ministerial offices, and that was lodged yesterday. Very well, the debate resumes on the proposition of Senator Shenton relating to the ex gratia payment. Does any Member wish to speak? Deputy Tadier ?

Deputy M. Tadier of St. Brelade :

Before we continue I missed the opportunity yesterday, but I do have to declare an interest in this particular matter and so I will not be speaking and I will be abstaining.

The Greffier of the States (in the Chair): Very well, that is noted. Deputy of St. John ?

1. Deputy P.J. Rondel of St. John :

I am sorry that this has got as far as the Chamber. I was hoping it could have been resolved outside. I have known the family, Rita and Reg Pinel all my life. A more solid Jersey family you could not wish to find. Not for the first time in their married life have Reg and Rita Pinel been dealt a hammer blow by life. The first time was when they lost a child. On this occasion I hope that we will do what is right and see that in this Chamber justice will be done. As Members will see from covering correspondence that the persons who wrote a letter, i.e. Appleby .. I have been dealing with lawyers in one way or another, either as Centenier or in my business life, all my life and to receive an 8 page document, 9 page document, like we did several days ago, signed just by the name of the company, to me seems rather strange, to say the very least, rather strange. Every time I have ever dealt with a lawyer it has always been signed by a partner or senior management within a company, but never ever, and I went through a number of my records just to see I was correct in what I was saying, right the way back to the 1960s, and I have never ever come across a document that is signed by the company name. There are things within this document that we have all received including comments about Senator Shenton once again all signed by Appleby, not by any specific partner within the company or senior partner. Now, to me, if something with contents of this nature is going to be distributed to 53 States Members and Crown Officers, et cetera, I would really expect that somebody would put their name to it. [Approbation] Because to me to be making these comments hiding behind the nom de plume, for want of a better word, is not acceptable, totally not acceptable. Therefore, I would ask Members not to put any weight on this document given that it is not signed by any specific person. So, please do not put any weight to this document. I will move on from there. In fact, I would suggest that you put this aside and do not even refer to it. Can I move on to the documents supplied to us by Planning? I have got to find it now, the original reports. In the Planning comments .. but just prior to doing that, can I also tell Members that prior to this particular application and in the early stages of this application, I was the Deputy who represented Mr. and Mrs. Pinel at the time going back to 2004 and beyond. I have correspondence and I will start back that far. On 19th May 2005 from a planning officer, I do not believe I am permitted to use the planning officer's name, which reads: "I write in reply to your fax dated 18th May concerning the above site" dah de dah de dah: "with regard to the application at Heatherbrae Farm for Reg's Skips. The application passed yesterday to the Assistant Director with a recommendation to approve the application. The Assistant Director must now decide whether the matter must return to the sub-committee for their consent or can be determined as a delegated item.

The previous meeting at which this matter was considered by the committee was at a pre- application advice stage, before the formal application was submitted. I therefore hope to be able to contact the applicant, Mr. Taylor , with a decision on the application in the next couple of days. Mr. and Mrs. Pinel are not the name on the application form and as such all correspondence must go through the applicant/owner, in this case, Mr. Taylor ." So this is drawing it to our attention that in fact it was not in Mr. and Mrs. Pinel's name. Then I go on to comments made within the comment sheet number 3 from Planning, where in the second column it says: "From 2000 to 2004 the company operated from Home Farm and Les Prairies, St. Peter. Planning permission was not in place to operate from those properties", and the company was under investigation by Planning and Building Services' enforcement team. Well, as Les Prairies in St. Peter was in operation prior to 1964 then I am given to understand that no planning permission was required. So why would Mr. and Mrs. Pinel, operating legally, require that particular permit? To me, it seems rather strange that if a business has been running from a particular set of premises for, shall we say time immemorial, and we put a law in place in 1964, retrospective applications should not be required. To me, to operate a business legally and then be told that you should move and be encouraged to move by Planners, because if I can move on to a letter received: "Following discussions under item 4, the Planning Service in the form of the Planning and Environment Committee, the company applied to move to a vacant shed, a disused silage plant at Heatherbrae Farm, St. John, owned by Mr. Taylor . Permission was duly granted subject to several conditions, one of which was the use of this site shall operate in the same way as the current site at Les Prairies." Given that the current site at Les Prairies was in existence prior to 1964, I would expect that, therefore, they had a carte blanche to basically operate as they wished. I may be totally wrong but that is the way I would read it. We have seen businesses operating across the Island prior to 1964, those sites are still legal today with no stipulations on them because they are historic, so why are we saying that there are, in fact, on Heatherbrae .. we are being told that the same conditions as applied in the areas at St. Peter, so therefore I would have thought it was not necessary to go any further than that. So I will read a letter Senator Shenton has received from Mr. Christopher Taylor , the owner of Heatherbrae Farm: "I wish to clarify as the landlord of Reg's Skips Limited, the truth about how Reg's Skips Limited came to occupy my premises here at Heatherbrae Farm. I am sure you know that all planning matters are dealt with by the landlord or land owner or with the specific consent of the land owners. I am, therefore, also able to comment with first hand knowledge. In February 2005 or thereabouts I was approached with a visit from a Planning Officer to ask if I would be prepared to accept Reg's Skips as a tenant. I showed her the vacant area, which she described as ideal. Ms. Baxter explained the background to Reg's Skips and made it very clear to me that I would be helping the Planning Department and, I repeat, helping the Planning Department if I were to accept Reg's Skips as a tenant. I subsequently made the required application for Reg's Skips to come here. Consent was then forthcoming in May 2005 and Reg's Skips took up occupation in June." Members have got this letter within their packet on their desk, I believe, so I will skip now to the appendices on the following page. Under paragraph 8: "Reg's Skips did not apply to roof over the former .." I will start from paragraph 4: "Reg's Skips did not apply to go to Heatherbrae Farm, St. Olaves Investment Company Limited applied for Reg's Skips to come to Heatherbrae Farm at the specific request of the Planning Department." Paragraph 8: "Reg's Skips did not apply to roof over the former silage plant following a site meeting with the Minister for Planning in September 2006." At the specific request of the Minister the landlord agreed to submit a request to roof over the area occupied by Reg's Skips. A full acoustic report was submitted based on a model showing that the roof over would more than satisfy the noise reduction required. The response from the Environment Health Department was: "We do not have the sophisticated computer software or the information to be able to model the exact reduction the structure would achieve. This department would not oppose the application if it will improve the existing unsatisfactory situation." This letter was dated on 2nd February 2007 and the Minister's response is therefore untrue. He is

claiming that in paragraph 8 of the .. Senator F.E. Cohen:

I refute that anything I said was untrue and I explained yesterday the letter that is relevant is .. there are 2 letters, the first is the 2nd February 2007 and the second is 23rd January 2008.

The Deputy of St. John :

I am not disputing one way or the other, I am just reading the letter, Senator, as per 8 on your comment sheet and the response from within the appendix to the ..

Senator F.E. Cohen:

But it claims what I said is untrue and what I said is factually accurate. The Deputy of St. John :

I am only the messenger, please do not shoot the messenger. On paragraph 12(a), the original planning report for the request for change of use states that Reg's Skips was trading legally from St. Peter. The only reason Reg's Skips was being moved was due to the visual impact of his business alongside a main road. Once again, as I said earlier, I personally believe that if that site was in operation prior to 1964, it was a legal operation. Therefore if the same criteria is being used, as we are told it is, therefore I do not believe that the Planning Department had any right in putting any additional stipulations. But then we move on to the comments given to us this morning by the Minister for Planning and Environment on Reg's Skips over the debate as far as it had come yesterday. In fact I mentioned here that having represented Reg's Skips on an application in St. John at Homestead, which is absolutely right, I did, and can I tell the Members that at the time of that application there was a site visit which I attended on behalf of the former Constable, Connétable Dupré who had been the Member who dealt with the original application for Homestead Farm. At that time Senator Ozouf was the President of the Committee. There was a site visit and I attended. The Connétable thought he was conflicted because he had represented Reg's Skips and therefore he did not attend the meeting, he thought it was wrong. But can I say that another States Member who attended as a member of the Committee was conflicted but did not declare he was conflicted at the time; it was not until he was challenged by me in this Chamber several weeks later that he stood away from that particular application. That was the Deputy of St. Clement at the time, because he was conflicted having his own family involved in skip hire. But the decision had been made and it was a balanced decision. If he had not been on that particular committee and the Connétable of St. John had attended, we would not be having this debate here today because it would have gone the other way. But there we are, as they say, we are where we are. But going further on from there, if I could come to the penultimate paragraph of the Minister's comments from yesterday: "The condition is not sufficiently precise because it does not emphatically state which operations are permitted and which are not." This is to do with the permit

that was granted and I will repeat that: "The condition is not sufficiently precise because it does not emphatically state which operations are permitted and which are not." It leaves open to interpretation and debate the level of use which would be acceptable when in January 2007 the Minister for Planning and Environment served an enforcement notice on the company requiring compliance with that condition. The notice was appealed by Reg's Skips in the Royal Court. The Minister withdrew as it was considered that lack of precision in the conditions made it unenforceable. To me this is a real concern. It was after this matter deteriorated on site, until the neighbours finally took private legal action culminating in a court decision in December 2008 to force the company to leave the site. Well, on the Minister's own admission there is a very, very grey area; a very grey area here in these last 2 paragraphs because we are being told on the one hand that Reg's Skips were basically operating illegally because of the size of the operation, the noise they were making and yet he is admitting, in black and white here, and this is the way I am reading it, but I am not a law person who would look at it probably slightly differently, but it looks to me as if we are being told that there has been an error on the part of the Planners by not ticking all of the boxes in the first instance. I might be totally wrong, but I do not think I am because if they have not ticked all the boxes, how are Reg's Skips or Mr. Taylor who was the applicant supposed to know? I think if there  is blame to be placed on anybody it is at our Planning Department who have not done their job. I do not say this lightly because I have a lot of respect for the officers, but, that said, if we have made a mistake let us put our hands up and say: "We have made a mistake." It seems to me what the Department are saying, we have made a mistake because they have left these grey areas and really .. I do not know, I am at a loss to think that we are putting this family through all this turmoil when there has been a mistake made by a department. Let us put our hands up and say: "Enough is enough, let us do what is right by these people." Really I am not going to say much more because I am aware that other Members have had meetings with Mr. and Mrs. Pinel also and have got information that they would like to give to this House and I am aware that the noise on the board is up there, the graph, if I could just pass one or 2 comments on there, to be picked up by Members afterwards. If you look at the noise graph there that has been done by an independent company you will see that none of the noise on that graph, and you have got copies in front of you, emits from Reg's Skips. It comes from aircraft noise and, in fact, there are other vehicles or other machinery, but nothing from Reg's Skips. I am given to understand from my research that in fact the Royal Court only had these copies, these A4 copies, they did not have the full blown-up copy that we are fortunate to have on the wall there and comments. Therefore, that is another reason that I think Members should take into account that anything that has happened, we appear to be looking at the wrong people, because if you look at this it is aircraft noise, aircraft noise, aircraft noise, aircraft noise on all of the spikes ..

Deputy D.J.A. Wimberley of St. Mary :

Could I add a point of possible clarification which might help the speaker? It is just that when you said that none of the noise from here comes from the skips, I think that might be misinterpretation. The spikes do not come from the skips and it should be known to Members that that bar across the middle where most of the noise is includes all background noise; cars, whatever, planes and also of course the skips.

The Deputy of St. John :

Yes, I thank the Deputy of St. Mary for the interjection on that and therefore, as I said earlier, I know other Members will pick up on this so I therefore will not say more than that. But when the time comes to vote, I sincerely hope Members look at this and see, you know, are the States of Jersey liable or are we not because of an action or actions of possibly our officers by not ticking all the boxes? At the end of the day, why should a good Jersey family be put to the wall, and possibly even made bankrupt, lose their house and everything else because we are not man enough to turn around and say: "Sorry, we made a mistake, we should have ticked all the boxes, let us do what is right by these people." As far as I am concerned I want to do what is right. I will take some real convincing by Planning and others to change my mind because unless you can prove to me that all the boxes were ticked, I am supporting Mr. and Mrs. Pinel.

2. Senator B.I. Le Marquand:

This is a very bad proposition. I shall try my best to follow the advice of the youngsters that sent me these golden rules and to be kind and gentle, and particularly to those who are messengers on this occasion, but it remains a very bad proposition. There is an important issue of principle where people have fought and lost court proceedings that they should not be allowed to side-swipe the decisions of the courts by bringing propositions to this House other than in entirely exceptional circumstances. It is only too easy for people to come with a sad story and I accept the story of the Pinels' is a sad story, but I am afraid a self-inflicted one in my opinion. It is only too easy for people to come with sad stories and to engage the sympathy of the House. Let us engage our brains on this occasion as well as our sympathy. There is very clear distinction between this kind of matter which involves individual people who have taken individual courses of action on the one hand which have had bad consequences, and the sort of matters we have dealt with in recent times in relation to Woolworths' employees, Pound World where there was a point of wider principle, general principle in relation to lack of redundancy law or something of this nature, lack of notice given to them. This is a completely different categorisation case. The fact is that the courts are good at doing some things and politicians are good at doing other things. The courts are good at hearing evidence and deciding on disputed evidence what happened or did not happen. Courts are good at determining points of law. Politicians are not generally good at these things and if we are not careful, we are going to be drawn into some sort of kangaroo court type of approach, seeking to hack our way through disputed facts without having heard any evidence, without having read transcripts, et cetera, et cetera. This is a very dangerous and very wrong approach. We need to recognise our strengths and also our weaknesses. Now some people have mentioned the possibility of calling for an inquiry. But there already has been a most detailed inquiry into this matter in terms of the court case, which determined fact. There was then subsequently an appeal against that matter which went to the Court of Appeal ..

Senator B.E. Shenton:

The court case did not deal with Planning, the court case was between Mr. and Mrs. Yates and Reg's Skips. It was not a court case against Planning.

Senator B.I. Le Marquand:

No, well I will come to the issue of Planning in a moment, thank you very much. I will come to the issue of Planning in a moment. But there has been a detailed further inquiry in relation to the underlying facts. There has been an appeal. There has been a determination. So, in relation to this matter, there were not just a few red herrings being run there was a veritable shoal of red herrings. Planning red herrings, legal red herrings, judicial red herrings. Let us start with the planning point. This is very often misunderstood by people. I am going to take a very simple example to demonstrate the point that I am trying to make. It is very often misunderstood by people that if Planning grant you permission for something that does not necessarily mean that you have the legal right to do it. The classic example is somebody who applies to build an extension on their property. They put in a plan for the extension of their property. Planning pass the plan, they build the extension and then the neighbour says: "You have encroached on my property. You had no right to build it there." This is not Planning's fault. It is no part of Planning's duty or responsibility in such a case to check boundaries, or conveyancing matters or things of that nature. Planning simply gives a person permission to do something under the Planning Law. That does not mean that they have been given permission to do it as against the Conveyancing Law, or in this case the law of noise nuisance and that is a very important principle to understand. I think there is a complete confusion over this issue of conditions which applies. What has appeared to have occurred here is that the Planning Department, when it granted consent for change of use, intended to do so upon the basis of there being no mechanical sorting. In fact they did not apply the condition as carefully as they should have done and the word "mechanical" did not appear anywhere in the documents. Members have in fact the consent and the conditions in front of them. This mistake was made but that is a mistake in favour of the company, not a mistake against them. It is a mistake in favour of them. How can there be logically arising any cause of action against the Planning Department when they have done something which is more favourable to an individual. That in my submission is nonsensical. There is therefore absolutely no causation, no link, between anything which Planning has done and the ultimate situation which has arisen here. The facts of the court case, and we are talking about the cost here of the court case, the facts of the court case was that there was excessive noise being caused by what was being done by Reg's Skips Limited, which had the effect of massively deteriorating the quality of life of neighbouring occupants, who happen to be Mr. and Mrs. Yates. Now, in such cases what normally happens is a complaint will be made. The neighbours will seek to sort it out between them. There will be an attempt to see whether some change in working practices cannot simplify the matter, cannot reduce the amount of noise down to a tolerable level. I have no doubt that that will have happened, because nobody leaps directly into legal proceedings without going through those sort of steps. Ultimately in this particular case that

obviously failed and a decision was made by the Yates family to seek judicial review of a decision. Now, that is the first point I want to clarify. I was Judicial Greffier from 1990 until 1997 and in fact was the drafter of the Royal Court rules on judicial review, so I do know one or 2 things about the concept of judicial review. The fundamental part of judicial review, it cannot give leave to judicial review a decision unless there is no other remedy available to give, and so when the single judge who was considering the application to leave, in this case happened to be the Bailiff made his decision, he decided there was another remedy available and that is why he will have written down on his notes giving reasons, that he is bound to do in accordance with the rules, written down on his notes that there was another remedy and that is why he is refusing judicial review. That is not advising people on how they should proceed, that is simply indicating in his view another possible cause of action. Now, we come to the next stage which was the actual trial. Again, I have experience here. One of the cases which is mentioned in the papers is the case of Magyar v Jersey Strawberry Nurseries Limited. I happened to be counsel for the unsuccessful defendant in that particular case. I know one or 2 things about noise nuisance cases. The principle of noise nuisance was well established in Jersey well before any of us understood the concept of  voisinage. Voisinage is a French concept but we all knew, and there was plenty of case law in Jersey, about noise nuisance. It is very simple. If someone is producing too much noise to a level which is causing major problems to their neighbours, then they have the right to go to the court and to ask the court for an order to stop them doing what they are doing. Now, in considering this the court will normally see whether there is some intermediate step. Again, a stage in which it is looked at as to where the operations can be changed, and my understanding here is the core of the problem here was mechanical sorting of skips, which caused a great deal of noise. The Deputy of St. John was one of my friends, and I do not want to be too unkind to him this morning, the Deputy of St. John is suggesting that because this graph does not show anything about the noise levels of Reg's Skips that therefore the Royal Court must have gone, if I can put it in the vernacular, barking mad and made a nonsensical decision for that evidence. I am sorry that is not in the least credible. This matter has just been carefully and properly considered. Come now on to the question of recusation and I want to explain to Members the concept of recusation which is familiar to all judges. It is a French word. It just means disqualifying yourself. If you are called upon to be a judge of a case you have to decide whether or not you can properly hear the matter. The test that you apply is an objective test as to whether a reasonable person who knew that the facts would feel that there was a risk of your being biased for or against. That is the test you apply. The Bailiff on this particular occasion will have applied that test, so would the jurats have applied that test, but let us say that he got it wrong, hypothetically. That would be a matter for appeal. Has that matter been raised and determined before the Court of Appeal? That is a matter you would take to the Appeal Court. There is a remedy in relation to a situation where a judge should have stood down and did not. I am not saying that applies here but even if it did, there is a remedy and that is appeal to get the matter looked at. However, you must recall that in relation to civil cases in the Royal Court it is the jurats who in the first instance determine matters of fact. The Bailiff is solely a judge of law, not a judge of facts unless a situation arises in which the jurats are locked one each on a particular factual matter, in which case the Bailiff has a casting vote. Now, there is no suggestion here that that situation arose. The Bailiff is a judge of law only, not of facts. But no one is saying that there was some reason why the jurats would have recused themselves for making factual decisions which they have made, but we go beyond that because there was then an appeal and the appeal procedure is dealt with by 3 judges, normally but not always, who are 3 senior lawyers from another jurisdiction. I can tell you that these are people of extraordinary intelligence and weight and ability having appeared before them on a number of occasions. They looked again at the law and they also would have considered whether decisions in relation to the facts were unreasonable, and they have come to their final decision. Now, there is a side issue which I have to deal with in passing, and that is a side issue in relation to the costs order, because clearly the Royal Court in making this decision had some sympathy with Reg's Skips Limited, because they made a partial costs order against the Minister. Now, whether or not the Minister was heard, I do not know on that. So there

was some sympathy being shown there but that decision was appealed by the Minister to the Court of Appeal which overturned it. Effectively, what we are being asked to do in a whole number of ways today is to act as if we were a super Court of Appeal over and above the Court of Appeal and to seek to overturn its decisions. That is absolutely and completely and utterly and totally wrong. That is not the function of a legislature. That is why we have courts. Now, I come in closing to one or 2 technical points. There is a technical point, just as an aside, that the claimant is the wrong person in law. Even if there were a valid argument, which there is not in my view for a whole number of reasons including those which I have mentioned, the fact is that the costs orders were made against Reg's Skips Limited and not against Mr. and Mrs. Pinel, so this is absolutely wrong. The principle of law that you separate a corporate body from an individual is being violated in a very strange way, and that is simply not right and justifiable. There we are, for all those reasons, I hope I have not been too boring and too technical and I hope I have not been too rude to anybody this morning, for all those reasons I very, very strongly oppose this.

3. Deputy R.G. Le Hérissier of St. Saviour :

I have had some of the wind taken out of my sails, and I am sure Senator Le Marquand will no doubt be classified as a scion of the Jersey judicial establishment, and I will undoubtedly be classified as his acolytes. I have had considerable difficulty with this because I do not believe we are a court of law. I do not believe we are a 53 person judiciary and quite frankly to apply debating techniques to the methodical examination of 2 sides of a highly complex story does defy credibility quite frankly, even though I am sure the complainants feel that this is the last desperate fling, so to speak, of the dice in an attempt to get justice to what they have seen as a very unjust situation. I would also say, because undoubtedly this argument will be run, to those who would say that the judiciary is compromised, there are too many overlapping relationships, there are too many people unable to be independent and that therefore it has become dysfunctional, to put it politely, even that is not an argument for this Assembly taking on the case. It does not make us better. It just means we have to look more closely at those arguments, but it does not mean we are a better forum. Quite the opposite I would say. It is just sort of pondering the written material that we have received which has made me incredibly doubtful about what is going on and may well lead me to ask Senator Shenton to withdraw this for a rethink, although no doubt, as he said in his opening speech, this is to him the last fling. To take some examples, we have been told by Senator Le Marquand that Planning's role is not directly related to the court cases that did proceed as a result of this, but nevertheless we need to know, and whether in the strange way we are going to adduce evidence by people taking heavily emotional and rational and then emotional positions on this, whether we will ever adduce that evidence in any sensible way remains to be seen, but how does the fact that Planning gave this, it has now admitted, imprecise advice? How does it feed in to the later court actions and why was that not picked up as an absolute central feature for a court case if not the court case that was to be the definitive case. Another point, we have been given these enormous costs and they are absolutely dreadful. I have not worked out, and I thought Senator Le Marquand might have helped me, what the difference is between Mr. and Mrs. P. and Reg's Skips and whether by the possible bankrupting of Reg's Skips this will lead inevitably to the deep indebtedness of Mr. and Mrs. P. I presume this is what is going to happen. But by making that distinction - and perhaps the Solicitor General may wish to sort of dwell on that point when I have finished because some of these points will lead to questions to him obviously - but I cannot .. again

that distinction has been made but I cannot work out what the importance and what the relevance of that distinction is. The other thing is I cannot work out from the evidence presented, given this is ultimately about this terrible cost imposition upon the 2 complainants, I think we need to know, if we were a logical body to look at this, which I do not think we are. I think this is terrible, a 53 person jury using a debating club format to sort this out. How did the costs escalate? What sort of interim steps were there to prevent this escalation or to at least lead to moments of reflection. How was all that handled? As the Solicitor General mentioned yesterday, was the issue perhaps with the manner in which our legal friends handled it and if so, is the redress either the taxing inquiry which he mentioned yesterday, or is indeed the redress which admittedly just adds, it could be argued, injury upon injury, is the redress to sue the lawyers, but we do not know. I mean because again, if we rush to judgment and if we rush and say, you know, once again the judicial system has failed us, et cetera, et cetera, we will not have the answers to those questions and we will have committed 300,000 at least of public money, without knowing all the nuances. All the nuances of the situation, all the internal fights that have presumably occurred, or arguments that have occurred as this matter has progressed. We have just been presented with a certain version of the facts and certainly the material we have received, other than the fact that the sums are obviously humongous and frighteningly high, we have not been presented with any evidence as to how they escalated to that level and what steps were taken. The minor point I would say, the Deputy of St. John kept saying this is a good Jersey family and of course it is, but that is not an issue. I was very sorry he used that language. We are here to get justice for everybody irrespective of whatever family they come from and I know we do not do it well at times and I know we fail people, but that remains the point and I do get very disturbed there. So, to come back to my point, we are not the right forum for this. It is absolutely dreadful that we are doing it just as it is dreadful that Mr. and Mrs. P. find themselves in this situation. But I would like to come back to my points and ask the Solicitor General a couple of questions. What steps could have been taken during the progress of this case to challenge the escalating costs and from his knowledge - and, okay, he was not necessarily the Crown lawyer obviously handling this - from his knowledge were steps taken and what were the outcome of these various steps and, very importantly because it is the elephant in the room and there is a great dispute even though we have had an admission of imprecision from the Planning Minister, did the planning issue - as Senator Le Marquand has mentioned - did it become totally detached from the case and why did it become detached from the case, and given that we appear to be here in some .. we appear to be invited to sort of engage in some chest beating and say: "Our department has been deficient and therefore it lead to this terrible situation." I wonder if the Solicitor General could say why the Planning role in this was detached and how could it have been reattached, and it would have been nice to know legally if it could have been reattached and Planning could have played a role and its alleged, and I use that word very carefully, it has alleged

deficiencies could have been examined in a court of law. The Deputy of St. John :

On a point of clarification before the Solicitor General stands up. The expression I used about Mr. and Mrs. Pinel was done to show that they were genuine in their case and I believe Members know the way I speak and understand that I have to make sure that these are genuine honest people that I am representing and speaking about.

The Greffier of the States (in the Chair):

Mr. Solicitor, are you in a position at this stage to advise the Assembly? I think the Deputy has also asked a further question about the relationship between the company and the individuals concerned. Perhaps you might want to add on to your advice.

Mr. T.J. Le Cocq Q.C., H.M. Solicitor General:

I can talk to, I believe, all through the questions raised by the Deputy but I can talk in terms of general principle only I am afraid because I do not know the precise interrelationship and precisely what happened in the conduct of this case. But in terms of the relationship between Reg's Skips Limited and Mr. and Mrs. Pinel, the position seems to me apparent from the paperwork that it was Reg's Skips Limited that was the lessee. It was Reg's Skips Limited that carried out the commercial activity and it is Reg's Skips Limited that was the unsuccessful party in all of the court cases and it is Reg's Skips Limited that is charged with the payment of legal fees. Mr. and Mrs. Pinel, as I understand it, are the beneficial owners of Reg's Skips Limited. It is impossible to say on the facts as I know them whether the adverse costs order of Reg's Skips Limited will transfer directly through to damage to Mr. and Mrs. Pinel. That would depend, I suppose, upon circumstances as to whether or not they are indebted to the company, for example, whether their personal property may be supporting the loans of the company. There are circumstances in which injury to the company can translate directly as injury to Mr. and Mrs. Pinel, but those are circumstances that I know nothing about and they are theoretical statements only. Normally the principle of limited liability is that a debt of a company is not owed by its shareholders and the debt stops with the company. If the company is unable to discharge that debt then the person who is entitled to make the claim can declare the company bankrupt and it would therefore have to cease trading and it would become a bankrupted company, but that of itself would not automatically without a lot more consideration and information, transfer into a direct debt of Mr. and Mrs. Pinel.

Senator B.E. Shenton:

Can I just confirm that Mr. and Mrs. Pinel have had to give personal guarantees over their assets to Reg's Skips.

The Solicitor General:

On the assumption that that is right, then to the limit of those personal guarantees, those are callable in the event of a bankruptcy of Reg's Skips Limited. But as I say the normal principle is of limited liability, the buck stops or the duty to pay the buck stops for the company. The next question was whether there are steps that can be taken during the course of litigation to mitigate the incidence of legal costs. In terms of this particular case that is a very difficult matter to be definitive about. In the course of litigation generally though there are ways that costs can be mitigated. I make no observation about the wisdom of it but it seems to me that the costs will have inevitably increased by a change of legal adviser, for example, during the course of the litigation Reg's Skips Limited were represented by one firm during the Royal Court and another firm in the Court of Appeal. It seems inevitable that the firm representing them in the Court of Appeal will have to have learnt and read into the case for the appeal case which would not have been necessary if the same firm had remained. Whether there was a reason for that, what that reason was I would not begin to speculate about, but that is obviously one thing that will inevitably have had an incident on the payment of costs. During the course of litigation to protect a company or a litigant as to costs, particularly a defendant, it is open to a defendant to offer either some form of payment into court, which I do not think would probably have been appropriate in this because what was an issue was a noise, not the payment of money, or to offer some kind of compromise on a without prejudice and subject to costs basis. That basis means that you can offer a compromise in a letter which is not known to the judge, but in the event that the compromise is what the court orders, then you are able to say: "Look I offered the compromise 6 months ago and I should not have to pay the costs of the following 6 months." The costs remain within the discretion of the court, but that is a mechanism which is frequently used in litigation to crystallize the obligation for costs. It is more often than not used when the claim is a cash claim, a money claim, but there is no reason it seems to me in principle why a litigant cannot say: "Well, look I will agree to do A, B and C and that is what I will suggest the court should order" and if the other side accepts the case goes away. If they do not accept then the non accepting party moves as to a greater risk as to the payment of costs themselves in not recovering their costs. But I say that as a matter of theory and I cannot possibly suggest to the Assembly that any of those courses were particularly appropriate in the present case. I would require more or less the state of knowledge of the legal adviser to Reg's Skips Limited at any material time to be able to do that, which obviously I do not have. The last question was the attachment or detachment of the role of Planning. I would respectfully agree with what Senator Le Marquand has told the Assembly. There is no natural linkage between Planning and this particular case because this particular case was a private action between individuals relating to the noise created on one individual's property that they were in control of insofar as it affected another. The planning issue seems to me part of the story but unless there is a suggestion that .. unless a case could be made that in some way Planning was the cause of the problem, then I think there would be no prospect of joining Planning to any particular proceedings. The Planning Law, in my view, is

clear. There is no ability .. the Minister for Planning and Environment cannot be liable for financial detriment outside the confines of the Planning Law for the granting of a consent. It is quite clear he is expressly removed from any kind of liability in accordance with the statute because if he were not then he would effectively be at risk every time he gave a planning consent of being sued by all the neighbours for all the things that they did not like that were going to go on, so in order that he can do his job there is a provision in the law which means he is not liable for losses in those kind of circumstances. So, without looking at the detail of it, it seems to me that there is an issue of principle which makes it difficult for Planning to have been joined in to the action which was essentially a private action as it became between Mr. and Mrs. A. and Reg's Skips Limited.

Senator B.E. Shenton:

I mean Planning did ask Reg's Skips to move Heatherbrae. It was slightly different. Planning contacted Reg's Skips and asked them to move.

The Solicitor General:

I would need to understand, and I confess I do not have my head around all of the detail of the planning matters, I would need to understand that better to know whether there was any basis for commencing proceedings or joining Planning to the action. My instinct though is that there was not. There is a further point to make I think about this, that when the Royal Court made an order that caused the Minister for Planning and Environment to contribute to the costs of Reg's Skips Limited that order was appealed to the Court of Appeal. The Court of Appeal heard extensive argument about the nature of the interrelationship between Planning and the subject matter of the litigation. As I recall the judgment of the Court of Appeal, and I will certainly look at it after I sit down and correct it if I am going to in any way not give an accurate representation, but as I recall the judgment of the Court of Appeal it considered the interrelationship between Planning's activities and took the view that Planning had not effectively been the cause of the litigation and consequently that was one of the reasons that it overturned, one among a number of reasons, that it overturned the costs order made by the Royal Court. I do not think I can help further at this point.

Deputy R.G. Le Hérissier:

Just to build on the point Senator Shenton made; that finding then that the Court of Appeal made that Planning was not, so to speak, contributory to the fact that the company had arrived at Heatherbrae Farm, that decision, that could have been appealed but obviously the financial consequences would have been such as to aggravate an already bad situation. Is that correct?

The Solicitor General:

I think it is a much more difficult question as to whether or not there can ever be an appeal from the Court of Appeal to the judicial committee on a matter of costs. Costs are generally within the discretion of the court, the payment of the cost was challenged between the Royal Court and the Court of Appeal on a matter of legal principle. I suppose to the extent that there was an important matter of principle, it could in theory have been appealed to the judicial committee of the Privy Council but that would have been a very expensive exercise in itself and leave would first have had to have been obtained from the Privy Council, in my opinion, and it is far from certain that leave would have been granted. Without looking at it much more carefully I do not think I can help any further than that.

4. Deputy T.M. Pitman of St. Helier :

Like a lot of other speakers I not only find this case very, very sad, I have to say I find much of the background that we have heard deeply disturbing. Why sad, because here we do have what appear to be ordinary, hard working people who have been hugely let down. I am tempted to say betrayed and that does seem a strong word by elements both of the States and the Island's judiciary. As I think Senator Shenton has alluded to, really the questions we need to focus on are how and why. I have to confess that I have got real reservations about this case being before the Assembly, very

great reservations. Mr. and Mrs. Pinel really should have been able to expect that this would have been appropriately resolved by the courts. Nevertheless, as we have heard, clearly and contrary to what some might think, I believe any hope for this is non existent. I have to depart from my radical friend, Deputy Le Hérissier, in saying that [Laughter] - do not heckle me, come on - far from ideal as this Assembly may be to deal with this, I think we must shoulder this burden because I think, quite frankly due to the failings of the judicial system, as Senator Shenton has outlined, it leaves them nowhere else to go. Also as Deputy Green, I think, said yesterday, a stronger case for an ombudsman you could not make. If we do not take this on and try and put matters right I really wonder who will and I do not think anyone else will do that. The clear issue of the States failure by Planning I can, I hope, put down to error, maybe even gross incompetence. I like the Planning Minister immensely, I respect him, but I think he has to concede that some of the actions of his department do him no favours at all in this. I will say no more on that at the moment. I would also like to put the failings of the judiciary and the person of the Bailiff down in the same way. Unfortunately I do not believe that I can and I have to defer from our Senator Le Marquand, as much as I respect him also. Of course, and I hear the rumblings, that for a number of Members, and indeed people outside the House, any criticism of the Bailiff or, indeed it seems, any Crown officer is deeply taboo. They are, it seems I suggest they might even possibly believe that they are above questioning. Fortunately there are at least a few of us within the Assembly who do not buy into that myth. Every one of us here makes mistakes. I have certainly made enough and I hope we would all acknowledge that we do, and the Bailiff is clearly no different. The one glaring difference, it seems to me, is that the Bailiff and the Crown officers, I think, appear accountable to no one for their actions, absolutely no one. Some might feel I am being too harsh here but I had lunch last year with a Liberal Democrat Lord who asked the very same questions, having such reservations he said: "Can you tell me who monitors these appointees?" If that is coming from England, I think it raises rather a lot of issues. Whatever Senator Le Marquand might suggest - and I know he would do it in good faith - I think the Bailiff was deeply, deeply conflicted in this case. In fact, I find his involvement in it quite embarrassing on the behalf of Jersey Government. This is the point really, because to believe that he could be so conflicted unknowingly is frankly absurd.

Can such an experienced Crown officer really have made such errors of judgment? I would suggest not, but then I recall that same individual did  also permit a convicted paedophile to join the Honorary Police, and it is relevant, it may be uncomfortable but it is relevant.

Senator S.C. Ferguson:

For a point of clarification, I think the Deputy should withdraw those comments until he has the full facts of the case.

Deputy T.M. Pitman:

With due respect, I think we all have to form our opinions on those and those are mine. Senator S.C. Ferguson:

With respect, there is a difference between opinion and facts and evidence.

Senator S. Syvret:

Can I say that I agree with the Deputy 's comments and I have read thoroughly and fully absorbed the report from the Committee of Inquiry.

The Greffier of the States (in the Chair):

I think the Deputy is expressing opinion. I would have stopped him if I thought he had gone too far. I did not stop him so I think he may continue.

Deputy T.M. Pitman:

Thank you, Sir. I do respect the Senator Ferguson's opinion as well. Leaving my observations on this particular issue there - perhaps I should have left them a moment earlier - I would move to the matter of the alleged nuisance at the root of this case. I hope Senator Shenton might talk more about this later but I would ask for some clarification when he sums up, because studies of some of the obvious anomalies within the evidence, as the Deputy of St. John has highlighted, I think should make Members even more concerned. It is the whole basis of the situation which led to the Pinels' unfortunate situation. I quite accept we are a government, we really should not be doing this case but, as I say, I think we have no choice. This whole case smacks of being highly suspect for whatever reasons, whether you say it is gross error, gross misjudgment, incompetence or something more sinister. Indeed, while acknowledging that I am certainly not a lawyer - I know we have some here - I would go to say that it brings our judicial system into disrepute. Yesterday, in my speech on G.S.T. (Goods and Services Tax), I made an observation suggesting that the biggest economic decision some supporters of G.S.T. had ever had to make was choosing between ordering different types of champagne and, on reflection, I think that was a bit harsh. Possibly I should have alluded to choosing the Châteauneuf-du-pape or the Côtes du Rhône in a supermarket but, nevertheless, the point I was trying to make, however badly, was that too many Members of the Assembly are perceived as being out of touch with ordinary working people, and that is what I would ask Members to focus on here. Because, regardless of whether we really are the right people to be examining this case - I do not want to use the same terms as the Deputy of St. John but I know where he was coming from - these are ordinary working people whose lives are about to be ruined, absolutely. They really have nowhere else to go. Government has a part in the situation that the Pinels find themselves. I have only met them once so I cannot judge them on that very deeply. I was touched by what I considered to be the very genuine nature of their case and their situation. They seem to be ordinary people just trying to make their way in Jersey, the very basis of what Jersey is founded on and I think, as some have said, these legal costs are obscene. They almost merit a case on themselves, absolutely disgusting, appalling and I would say - and again I am not a lawyer, thank God - but how can they be justifiable. But to get back to that point, the Pinels, if we do not help them, they are finished. Is that what we really want, and I think that outweighs the fact that we are not really the right body to be looking at this. I think it falls to us, it really does. Where

can they go in a judicial system which, for error or something worse, has led them to this situation? They have nowhere to go and I would really implore every Member to support this. I know it might not be a popular decision with some members of the public but let us all ask ourselves, how would we feel in this situation? People who have given to the Island, done their best. I am sure that the Pinels are not perfect people, none of us are, but from what I have seen they certainly do not deserve to be in this situation. Their lives will be effectively ruined by this, and I also must end by saying I find it very, very strange, indeed sinister, why the other side of this case should be objecting to this being brought any further. It seems deeply, deeply worrying. Government can only come out of this one way if we want it to be positive, and that is to grasp the nettle and support this proposition, and I have great respect for Senator Shenton for bringing it.

5. Deputy A.E. Jeune of St. Brelade :

This proposition has been personalised and I believe it is our duty to stand back and look at it factually. Senator Le Marquand quite rightly, in my opinion, suggested we engage our brain. Deputy Green believed we were being asked to judge. As identified by Deputy Noel, we are being asked to pay not someone's but a business' legal costs. I really wonder where we are coming from on this proposition or, for that matter, where we are going. I do not believe we are an appeals court and neither should we be. We are a legislator and if the laws are wrong, then we should address that issue. I believe we would all feel for any individual who finds themselves in difficult circumstances, but we cannot be responsible for everything. I will not be supporting the proposition.

6. Deputy R.C. Duhamel of St. Saviour :

I think a decision taken by this House today in either respect, supporting Reg's Skips or the Pinels, or not supporting them, as the case may be, will be a decision made incorrectly in both instances. I think the comments that are being made more frequently by Members in this debate, that this House should not see itself in the position of being a higher court is absolutely right and I think that - although I have queries as to whether or not the proposition should have been allowed to have been brought bearing in mind that those objections or those suggestions have been made - we are not the people, effectively, to be making a quality decision. I do not know who made the decision, whether it went through the Bailiff 's officer or whether it was you, Sir, through the Greffier's office, but it does seem, to me

The Greffier of the States (in the Chair):

It was processed, as required by Standing Orders, through the Bailiff 's office and, as you would expect, the Bailiff himself did not take the decision; he asked the Deputy Bailiff to consider it.

Deputy R.C. Duhamel:

Right. Okay. Notwithstanding that, I think the decision to allow the proposition to be debated on the floor of the House was a wrong one. We do not do ourselves any justice or service by continuing this debate and I would like to test the mood of the House by invoking Standing Order 85 and propose that we move to the next item.

Senator B.E. Shenton:

We need to come to a conclusion on this.

Deputy R.C. Duhamel:

I am entitled, under Standing Order 85, to propose it Senator B.E. Shenton:

Well it should be abolished then. It is an abuse of democracy. Deputy R.C. Duhamel:

and there should not be any discussion of the issue. Senator S. Syvret:

This is an abuse of the rights of a minority and it is also a gross insult to the people concerned. If Members do not like the proposition, have the courage to vote against it.

Senator B.E. Shenton:

I suggest that Deputy Duhamel simply votes against it rather than bankrupting the Pinels because he does not want to hear a debate.

The Greffier of the States (in the Chair):

Senators! Please sit down, Senator Shenton. Standing Order 85 does provide that any Member may propose that the Assembly move to the consideration of the next item on the order paper. The presiding officer is not permitted to allow that proposal if it appears to him that it is an abuse of a procedure or an infringement of the rights of a minority. It is always, clearly, a very difficult call for the Chair because Members have in their Standing Orders that provision, Members are entitled to vote on it and the Chair can, effectively, permit or disallow that democratic right to vote for that. The general rule followed by the Chair is that a reasonable number of Members should have been able to express their views before allowing it. I note that some 12 Members have now expressed their view during this debate. I therefore think it is a matter for the Assembly, not for me, and I will allow the proposition to be put. Clearly debate is not permitted on the proposition but I would state that it is a matter for Members to hear the views that have been incorrectly expressed by the Senators who have been on their feet but they will take that decision as to whether they

Senator B.E. Shenton:

Sir, I believe I have a right to sum up this debate and answer the questions that have been raised. The Greffier of the States (in the Chair):

No, you do not, Senator. It is not an issue that

Senator B.E. Shenton:

I also believe that this Standing Order should be removed if it is going to be abused in such a manner.

The Greffier of the States (in the Chair):

Well, that is a matter you must bring to the Assembly. Senator S. Syvret:

I ask for the appel.

Senator P.F.C. Ozouf :

Sir, could you confirm that if we do vote in favour of moving on then the matter could be brought back to the Assembly by the Members?

The Greffier of the States (in the Chair):

Yes. It can be brought back. It does not prevent the matter being brought back at a later date. The Deputy of St. John :

On a point of clarification, could I ask the proposer of this - he has had a minute or so to reflect - to withdraw  this  please,  because  I  think  this  is  the  type  of  debate  that  needs  a  conclusion. [Approbation]

The Greffier of the States (in the Chair):

You are being asked, once again before we put this matter to the vote, are you willing to withdraw it, Deputy Duhamel?

Deputy R.C. Duhamel:

Sir, I have proposed. The House will decide.

The Greffier of the States (in the Chair):

Yes. You are being asked if you are willing to withdraw. The answer is no, you wish to proceed. Connétable J. Gallichan of St. Mary :

Sir, sorry I was waiting for an opportunity. I had a word with the Deputy Greffier before the debate resumed this morning. There are some elements of the principal debate that I am uneasy with. I do not have a financial conflict at the moment, Sir, but situations could evolve in a certain way and I had already made my mind up to abstain from that and to declare that. I will, therefore, just like to note that now and say that I will be abstaining from this as well for the same reason.

The Greffier of the States (in the Chair):

Very well. I would stress this is entirely a matter for Members to decide. I have allowed it to be put to you as the Assembly, as the democratically elected Members, to decide whether you wish to proceed or not and that is your decision.

The Greffier of the States (in the Chair):

Very well. The debate will continue. Deputy Duhamel, had you concluded your remarks or do you wish to say anything further?

Deputy R.C. Duhamel:

No, I think I have said enough, Sir.

7. Deputy J.G. Reed of St. Ouen :

I have been one of a number of States Members who have tried to help Mr. and Mrs. Pinel in resolving some of their planning issues that they have been faced with over a number of years and I will tend to focus, as Senator Le Marquand has suggested, and speak on the wider principles. But before I do so, I just point out that I can well understand, as much as I find difficulty with this particular proposition, the reasoning why Senator Shenton has brought this to the attention of this Assembly. This particular family has basically no other avenue to pursue, apart from other legal activity which Members can clearly see is extremely expensive. Ultimately it is the mechanical sorting of skips, if we want to get down to the basics, that was the major problem and, indeed, this was known when - or at least the Planning permission allowed for the sorting of skips. In fact to suggest that mechanical sorting of skips was not part of the application is ludicrous because, clearly, all waste carriers are required to sort waste as part of the Solid Waste Strategy which, to my knowledge, was approved in 2005 and the idea of being able to dispose of mixed loads, as was the practice in the past, is no longer acceptable. Equally, if we are to encourage recycling in any shape or form, it requires companies to carry out an activity, and this was the whole purpose and the ongoing development of the Reg's Skips business, collecting waste, sorting it, disposing of it. So what about the wider principles? Let us look at the change of use and here we get to the first problem. We have a dairy farm, 7 days a week, 5.00 a.m. until 10.00 p.m. with livestock, 365 days per year, operating adjacent to or within 50 to 100 metres of a private residence. For various reasons the dairy farmer stops his business and seeks to re-use his premises. He apparently applies for change of use and gets permission and skip sorting is allowed on the premises. Quite properly, conditions are attached to any change of use permit, as would be expected and we go from a 365 days a year dairy farm operation, with all the associated noise - and bearing in mind cows do make noise at night as well as during the day, apart from tractors and other machinery - we go to an operation which is limited to 5 and half days per week, Monday to Friday, 8.00 a.m. to 5.00 p.m. and Saturday mornings, basically. One would tend to believe that that was an improvement for neighbours who lived in proximity to that property however, as I say, this is the first issue. We have 2 statutory bodies that start to then get involved. One is Planning, which obviously needs to consider the use, proposed use and the continued use of a facility and then there is Environmental Health. Environmental Health do not presently take into account historic background noises so, all of a sudden, we go from a point of a particular noise level to one that is set at a much lower level because between the time of halting the dairy farm business and achieving the change of use, clearly the farm was not being used. Clearly the buildings and the facilities remained idle. One also must not forget that the property, Heatherbrae Farm, and the neighbouring property are adjacent to a main road and I will come back to that later. Members have a graph in front of them, that has been provided and I am not sure by whom - I presume it is Senator Shenton - regarding noise levels and there is a scale 0-80 on one side and you will notice that the majority of the noise levels measured are between 30 and 60. I have a simple hand guide as to what these noise levels are linked to, because 30 and 60 is a number and nothing more. 30 decibels is the noise that you would find in your bedroom at night [Laughter]; 40 decibels is the noise that you would find in a library. 50 decibels is the noise that you would get with rainfall. 60 decibels - and it probably does not count for me because I do tend to shout - is the level of talking. Traffic 75 to 80 decibels. If you take, and Environmental Health pick, a level of 30 decibels as the background level, you are completely and utterly lost from the word go because, as I have said before, 40 decibels is the sort of level that you would find in a library. Now any operation would never and would struggle to

meet that, bearing in mind that they say that you start up your car it is about 70 decibels. Senator A.J.H. Maclean:

Could I ask for clarification from the Deputy , if he would be very kind? I was just interested in his chart he has there. I would be interested in having a copy of it because my understanding is 40 decibels requires quite a considerable amount of sound block between floors and I think you referred to it as being the noise of a library.

The Deputy of St. Ouen :

Yes. This comes from the Health and Social Services Department and it is issued [Laughter] by one of their officers and was provided to me during the time that I was looking at this issue.

Senator A.J.H. Maclean:

Very helpful. Thank you. Perhaps the Planning and Environment Department could have a copy of it. It might be useful. [Laughter]

The Deputy of St. Ouen :

I did provide Planning with a copy of something similar. So that is the first problem. We have 2 statutory bodies that, although there is some link, there is no real link when it comes to the change of use and subsequent issues that did develop. The other difficulty that arose in this particular instance is the issue of how does a landlord or a tenant try and address the concerns raised by a neighbour. Obviously there should be and every individual should be allowed to properly address those issues prior to any action being taken. Efforts were made, because I have viewed them for myself. Individual consultants were employed and trials were done to reduce levels down to what one might term acceptable. Indeed, on advice from experts, a planning application was suggested which meant, basically, enclosing the facility, minimising the noise, using insulation and sound insulation material to contain the noise within the business, therefore removing the disruption caused to the neighbour and, again, this is where another failing, I believe, or difficulty arose and I am not, I hasten to add, pointing a finger at Planning or anybody else, I am just trying to outline the issues that helped to develop and drove the final conclusion, which is why we are here today. Quite rightly, Planning are required by law to consider planning applications and it is not their duty to look at effects on neighbours regarding noise, although I would like to point out that, with regards to Goose Green Developments, interestingly Planning did actively get involved to enable a housing development to be created next to an existing industrial site; actively helped. Sadly, in this case, for various reasons Planning chose to deny both the landlord and the tenant to address the issue of noise by the creation of a covered area, thereby limiting them in the ability to address the problem, bearing in mind this company is wanting to operate legitimately, a genuine desire to fulfil their function, yes and earn money within the confines of the rules and regulations in place and I think if anything the lesson, above all else, to be learnt from this whole issue is that far more co-ordination and co-operation and linkage between the statutory noise levels - bearing in mind we now have nuisance laws in place - and planning applications and considerations needs to be further developed. So where do we come to? We come to the here and now and clearly, I accept, it is extremely difficult. Do Members believe that the principles that I have outlined are sufficient to support the Pinels? It is for Members to decide. All I would ask is to acknowledge that there are certain rules and regulations that we currently have in place that have clearly helped to create the

problem that the Pinels find themselves in now.

8. Senator S. Syvret:

I would like to start just by dealing with a couple of points that were made by Senator Le Marquand and were followed, rather surprisingly, by Deputy Le Hérissier. I would have expected of both of those individuals perhaps a little more of a grasp and an understanding of the fundamentals of parliamentary privilege. The argument that the States should not "side swipe", as the Senator put it, the decisions of the court, that we should not have these kind of debates about matters that flow from the decision of the courts is, I am afraid, simply wrong. Were we to admit and accept the notion that this Assembly could not debate the consequences and the issues that flow from decisions of the court, we would be saying that the realm of the courts impinges into this place into the realm of the legislature and has that restriction upon our free speech and upon what we may debate, or that we may choose to debate and how we may choose to debate it and the decisions we may make and, while I am sure the Senator is extremely learned in many matters in judicial review and so on, I too have had cause to study a little bit of law myself and I do know a great, great deal unfortunately about the principles and matters of parliamentary privilege and the sanctity of a legislature to debate and decide and speak about whatever it wants to speak about is rock solidly established on centuries of custom and practice. So, first of all, let us be quite clear about that. If this Chamber wants to debate consequences of a court action or something of that nature, especially when frankly it is one of our agencies which has caused the disaster, then we have every right to. Let us be quite clear about that. The Senator went on to suggest that by, for example, trying to sue the Planning and Environment Department, or perhaps attach blame to the Planning and Environment Department was wrong and not realistic that we should use the analogy of the Planning Authority giving planning permission to a person to build an extension, the person building the extension encroaches on to their neighbour's land and that is, rightly, the fault of the person making the encroachment. The Senator said that that would not be the fault of the Planning and Environment Department and, probably in most cases, he would be correct in that view. But is that analogy the same as that which we are dealing with here? I contend on the facts that it is not. We are dealing, manifestly, with a range of serious errors by the Planning and Environment Department. Reg's Skips were not breaking their permissions. The Planning and Environment Department were in error giving those permissions and, indeed, identifying that site and asking them to move there without realising beforehand and checking, well, it might be a bit of an issue having an industrial site there. I will not go into the issues concerning the performance, as it were, of our judiciary in this particular case, as I think they have been touched on enough already, but I can assure Members that the issue of the quality and the law and the standards to which our judiciary works is, in fact, a matter for the legislature and I can assure Members it is a matter we are going to have to start taking a very, very close look at in the coming months, in the next couple of years; so many failings. It was fascinating to hear the Senator refer to the Bailiff and the potential conflict of interest that could arise as, in fact, he knew one of the parties. The Senator makes this argument that, that being the case, a remedy is available. The aggrieved party, as it were, can appeal or can bring a recusable motion before the court. Well, there are a couple of serious problems with that argument. Firstly, the aggrieved parties in this case were not aware of the conflict of interests at the outset. That only became known to them much, much later. That conflict of interest was hidden from them and it is that, I am afraid, that does raise profoundly serious questions about the competency of our judiciary. Secondly, even if there is a remedy available, what would that cost in Jersey, of all places, where there is no fee policy, there is no paid legal aid, we have lawyers that are among the very, very most expensive on the face of the planet and we live in an environment that has a cost of living at least equivalent to central London and indeed that too, in principle, is another issue that this Assembly is going to have to get to grips with, whether it chooses or not because, frankly, the cost of accessing justice in Jersey are such an obstacle as to amount to an unambiguous breach [Approbation], I would say, of our obligations under the European Convention on Human Rights. There may be, in theory, a remedy and, in