States Meeting Transcript - 27/06/2011

STATES OF JERSEY OFFICIAL REPORT MONDAY, 27th JUNE 2011

STATEMENT ON A MATTER OF OFFICIAL RESPONSIBILITY..........................3

1. Statement by the Minister for Economic Development regarding Jersey Post .........3

1.1 Senator A.J.H. Maclean (The Minister for Economic Development):....................3

1. Deputy R.G. Le Hérissier of St. Saviour:................................................4
2. Deputy D.J.A. Wimberley of St. Mary:..................................................4
3. The Deputy of St. Mary:.................................................................4
4. Deputy G.P. Southern of St. Helier:......................................................4
5. Deputy G.P. Southern :...................................................................4
6. Deputy P.V.F. Le Claire of St. Helier : ...................................................5
7. Senator A. Breckon: .....................................................................5
8. Senator A. Breckon: .....................................................................5
9. Deputy M.R. Higgins of St. Helier:......................................................5
10. Deputy M.R.Higgins:................................................................6
11. Senator F. du H. Le Gresley:..........................................................6
12. Connétable G.F. Butcher of St. John : .................................................6
13. The Connétable of St. John : ..........................................................6
14. Deputy P.J. Rondel of St. John:.......................................................6
15. The Deputy of St. John:...............................................................7
16. Senator S.C. Ferguson:................................................................7

PUBLIC BUSINESS - resumption................................................................7

2. Island Plan 2011: approval (P.48/2011): fifty-sixth amendment (P.48/2011 Amd.(56))7

Senator F.E. Cohen:............................................................................7 Deputy J.B. Fox of St. Helier:..................................................................8 Deputy R.G. Le Hérissier:......................................................................8 Deputy M. Tadier of St. Brelade:..............................................................8 The Deputy of St. Mary:.......................................................................8 Deputy G.P. Southern :.........................................................................9 Senator F.E. Cohen:............................................................................9

1. Senator F.E. Cohen (The Minister for Planning and Environment):.....................10

1. Deputy J.M. Maçon of St. Saviour:.....................................................11
2. Deputy D.J. De Sousa of St. Helier:....................................................11
3. Senator J.L. Perchard:..................................................................11
4. Deputy M.R.Higgins:..................................................................12
5. Senator P.F.C. Ozouf :..................................................................12
6. Deputy M. Tadier :......................................................................12 Mr. T.J. Le Cocq Q.C., H.M. Attorney General: ..............................................14 Senator T.J. Le Main: ........................................................................14 Deputy P.V.F. Le Claire: .....................................................................14

Deputy G.P. Southern :........................................................................15

Deputy M.R. Higgins:........................................................................15 The Deputy of St. Mary:......................................................................16 Deputy S. Power of St. Brelade:..............................................................17 Deputy P.V.F. Le Claire: .....................................................................17 Deputy J.A.N. Le Fondré of St. Lawrence : ...................................................18 The Deputy of St. Mary......................................................................19 Deputy G.P. Southern :........................................................................19

SHORT ADJOURNMENT ......................................................................20 The Attorney General:........................................................................20

7. Deputy P.V.F. Le Claire: ...............................................................21
8. Deputy S. Power:.......................................................................24
9. Deputy R.C. Duhamel of St. Saviour:..................................................25
10. Deputy G.P. Southern : ..............................................................27 Connétable K.P. Vibert of St. Ouen:..........................................................29 Senator F. du H. Le Gresley:..................................................................29 Deputy G.P. Southern :........................................................................30
11. The Connétable of St. Ouen : ........................................................31
12. The Deputy of St. Mary:.............................................................32
13. Senator F.E. Cohen: .................................................................32

2. Island Plan 2011: approval (P.48/2011): fiftieth amendment (P.48/2011 Amd.(50))..34

1. Senator F.E. Cohen (The Minister for Planning and Environment):.....................34
2. Deputy J.A. Hilton of St. Helier:........................................................35
3. Deputy P.V.F. Le Claire: ...............................................................35
4. Deputy A.E. Jeune :.....................................................................36
5. Senator J.L. Perchard:..................................................................36
6. The Deputy of St. Mary:................................................................37
7. Connétable D.J. Murphy of Grouville :..................................................38
8. Connétable J.M. Refault of St. Peter:...................................................38
9. Senator P.F.C. Ozouf :..................................................................39
10. Deputy A.K.F. Green of St. Helier : ..................................................40
11. Senator A. Breckon:.................................................................40
12. Connétable P.F.M. Hanning of St. Saviour:..........................................41
13. Deputy M. Tadier :...................................................................41
14. Deputy T.A. Vallois of St. Saviour:..................................................42
15. Connétable L Norman of St. Clement:...............................................42
16. Senator F.E. Cohen: .................................................................42

ADJOURNMENT................................................................................47

[14:30]

The Roll was called and the Dean led the Assembly in Prayer.

STATEMENT ON A MATTER OF OFFICIAL RESPONSIBILITY

1. Statement by the Minister for Economic Development regarding Jersey Post

The Bailiff :

Now, before we return to the Island Plan, the Minister for Economic Development has given notice under Standing Orders that he would like to make a statement and it seems this would be a convenient moment to do it before we recommence. Minister, would you wish to make your statement?

1.1 Senator A.J.H. Maclean (The Minister for Economic Development):

Under the Postal Services (Jersey) Law, the Minister for Economic Development has an obligation to ensure that postal services are provided both within Jersey and between Jersey and the rest of the world. In order for Jersey Post to fulfil its obligations, it is important to ensure that it has sufficient financial resources available. In recent weeks and months, a material threat to Jersey Post revenues has emerged with the potential to impact on these obligations. Members will be aware that in his budget statement on 23rd March this year, the U.K. (United Kingdom) Chancellor of the Exchequer announced changes to V.A.T. (Value Added Tax) Low Value Consignment Relief, more commonly known as L.V.C.R. Under the current L.V.C.R. arrangements, items imported into the U.K. from non-E.U. (European Union) jurisdictions with a value of less than £18 do not attract U.K. V.A.T. currently levied at 20 per cent. The Chancellor announced that with effect from November 2011, the limit would be reduced to £15 and that furthermore, Her Majesty's Treasury would be consulting the E.U. with regard to further changes to L.V.C.R. aimed at reducing or eliminating V.A.T. losses. The particular focus of the U.K. Chancellor's action was the import of goods such as CDs and DVDs from the Jersey and Guernsey online retail or fulfilment sector at prices below the L.V.C.R. threshold that generated what the U.K. Treasury consider to be significant V.A.T. losses. Jersey's fulfilment sector is an important contributor to the economy which we must seek to protect. The sector directly employs approximately 1,000 staff, the majority of whom are locally qualified. Since 2005 when the issue of V.A.T. losses to the U.K. became a prominent issue in the U.K., my department has been in active discussion with the U.K. Treasury and has taken action to ensure that abuse of L.V.C.R. is not a facet of the Island's fulfilment sector. Since the Chancellor's speech, we have worked closely with Senator Cohen in his new external relations role which has opened up valuable access to U.K. Ministers and senior officials. In addition, the Channel Islands Brussels Office is working at E.U. level to ensure that E.U. officials have a thorough and accurate understanding of the fulfilment sector in both Jersey and Guernsey before any decision is made on action that could have a detrimental impact on the fulfilment sector in both Islands. However, despite our best efforts, there is still a material risk that the U.K. Treasury and the E.U. will take action that could threaten the sustainability of the sector in its current form. If this were to happen, it could result in a significant loss of revenue to Jersey Post. This is a complex area which, at least in part, is impacted by factors over which we have no direct control. However, in the area of postal regulation, I do have the power to act. I am determined that in discharging their role as postal regulator, the J.C.R.A. (Jersey Competition Regulatory Authority) has a fully developed view of the current and future market. Indeed, given the role of postal services within our community, I consider it in the public interest. Therefore, under Article 9(1) of the Postal Services Law, I have today issued a direction to the Jersey Competition and Regulatory Authority to undertake a full review of the current and future market conditions that may impact on Jersey Post, given recent changes and future risks to the market that I have outlined to Members. My overriding objective in issuing this direction and the review is to determine whether, as Minister, I am meeting my obligations under Article 8 of the law. In directing the J.C.R.A. in this manner, I understand that this will restrict the J.C.R.A.'s ability to award any further Class 1 postal licences until the review is complete.

The Bailiff :

Does any Member wish to ask any questions of the Minister?

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

Would the Minister not accept that there is a total contradiction in that he was warned, the J.C.R.A. were warned, that to allow this business to be tendered for, let alone to allow the business to exist, was going to pose considerable problems? Does he not feel that his apparent defence of Jersey Post at the moment is rather hollow?

Senator A.J.H. Maclean:

No, I do not agree with the Deputy at all. It is certainly not hollow. It is meeting obligations that I believe under the Jersey Postal Services Law that I have. I do not think it removes the threat of competition at all. I do not think it removes the need for Jersey Post to ensure that they are efficiently operated and drive through efficiency changes that are absolutely necessary and review their business model. I think it is absolutely essential that those things continue to happen. Nevertheless, I think it is right at this stage that this action is taken.

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

The problem is, Minister, that the licences have been issued. That is the problem. The Minister is going to restrict the J.C.R.A.'s ability to award any further Class 1 postal licences. Did the Minister and his department not see this coming?

Senator A.J.H. Maclean:

The Deputy is correct. Licences have been issued. There are indeed more under consideration, but this is very much more than just that. This is not just about issuing of licences. This is about fundamental changes to the postal market. This is also about changes that are driven from outside of Jersey over which we have little control. L.V.C.R. I have clearly mentioned and there are other changes which are impacting upon the viability and sustainability of postal services, not just in Jersey but around the world.

3. The Deputy of St. Mary :

A supplementary, if I may. The question was about the ability of his department to see things coming.

Senator A.J.H. Maclean:

Well, the department clearly does not have a crystal ball. Nevertheless, I believe that we have acted responsibly in this matter. Since 2005 when LV.C.R. first became a significant issue, we have acted appropriately. We have introduced the film policy. We have sought to protect this particular sector and we will continue to seek to protect this sector so I believe the department has acted absolutely appropriately.

4. Deputy G.P. Southern of St. Helier :

Just for the sake of clarity, will the Minister state which rival companies do have a current Class 1 licence and which have their applications suspended? How many are we talking about?

Senator A.J.H. Maclean:

There is, aside obviously from Jersey Post, other Class 1 category licences, numbering 2 in total at the moment, and others are under consideration, as the Deputy is well aware.

5. Deputy G.P. Southern :

Okay, and to confirm, this is not the Dutch or German Post Office bids? This is the 2 small companies that are competing for fulfilment business effectively?

Senator A.J.H. Maclean: No, it is not.

6. Deputy P.V.F. Le Claire of St. Helier :

The Minister has stated that this industry affects 1,000 people in relation to employment. Is that the total amount of people that are employed in this industry and if this industry is under threat, what active steps are being taken by his department to find those people alternative employment if their industry stops being?

Senator A.J.H. Maclean:

First of all, I think I should make it clear that no job losses have resulted at this stage. Simply we are forecasting that there are potential risks in the future and that is the purpose of the direction. So there have been no job losses.

[15:00]

Also, this is a Channel Island issue. We have been working closely with Guernsey and there are jobs of a similar nature, not quite as many, in Guernsey. If, in due course, job losses are likely to result from any structural changes, then, of course, the department will work together with other Ministers and other departments such as Social Security to address those issues and find work for those that may be affected.

7. Senator A. Breckon:

I wonder if the Minister could tell the Assembly regarding Low Value Consignment Relief whether £18 or the euro equivalent is a European Community thing and it cannot be changed unilaterally by the U.K.

Senator A.J.H. Maclean:

In fact, the U.K. can change down to as far as 10 euros but across the E.U., that is the minimum standard currently so the U.K. have some flexibility to reduce further L.V.C.R. Currently it has been reduced or will be reduced from November this year to £15. They could reduce it down to the equivalent of approximately £8, dependent on currency exchange.

8. Senator A. Breckon:

Can I follow that up and say that the Minister has just given a figure across the European Community. Is the U.K. proposing to do it across the European Community or to the Channel Islands?

Senator A.J.H. Maclean:

Yes, the U.K. can go across the European Community as far as their decision is concerned for imports into the U.K. They have latitude across the E.U. to do it as far as 10 euros.

9. Deputy M.R. Higgins of St. Helier :

Deputy Le Claire asked the main question I was going to ask, but the second one I was going to ask was again this has not come out of the blue. Will the Minister tell us what correspondence or meetings he has had certainly in recent months with the U.K. Government on this issue? It has not come out of the blue, it has been going on for some time, but what are the most recent ones and what have they said?

Senator A.J.H. Maclean:

It has not come out of the blue. As I have said a moment ago, we have known about the issue of L.V.C.R. and the threat since 2005. There was a fulfilment policy put in place at that stage. There were 16 or 17 companies who were misusing the U.K. tax system who were expelled from Jersey as a direct result, so it is not unknown. In recent times, we have had, since the budget speech and prior to that, contact at ministerial level and with senior officials in the U.K. and we will continue to do so in order to fight Jersey's corner, make sure that our proposition is well understood and that we support out local fulfilment industry, which is greatly valued.

10. Deputy M.R. Higgins:

A supplementary. Can the Minister tell us whether those meetings were taking place before we allowed the J.C.R.A. to issue the first set of licences that were issued?

Senator A.J.H. Maclean:

I think I have made it plain that this is not an issue just in relation to competition. This is an issue in regard to the change in market dynamics. Conversations have been going on with regard to L.V.C.R. since 2005 with Treasury officials and they will continue to go on. More recently, they have been stepped up as the matter has changed and accelerated from a political point of view in the U.K.

11. Senator F. du H. Le Gresley:

As the review will include a review of the ongoing financial viability of Jersey Post, does the Minister envisage that we may have to have States funding to keep Jersey Post going?

Senator A.J.H. Maclean:

That is a matter to date that the Minister for Treasury and Resources has made clear, that subsidies would not be made available to Jersey Post. Clearly, in the future, that may well come to a position where it might have to be a decision of this Assembly as to whether or not that was deemed to be an appropriate future course.

12. Connétable G.F. Butcher of St. John :

Given that the J.C.R.A. have given licences to other operators with a view to trying to drive down prices for the general public, does the Minister's department monitor the fulfilment industry as to whether their prices have dropped?

Senator A.J.H. Maclean:

I am not sure what prices the Connétable is referring to. Is he referring to the retail price of products being sold or indeed postal charges?

13. The Connétable of St. John :

No, it is the postal and delivery charges because I buy a certain amount on line and I have seen no change at all.

Senator A.J.H. Maclean:

All I would say is that the success of the fulfilment industry demonstrates, and the fact that we have the companies we do operating out of Jersey, the revenues that they are generating, that the postal costs are acceptable and have supported a growing sector.

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

Given the J.C.R.A.'s costs are covered by the various operators and having gone down the road of breaking up our postal services the way we have, is the Minister happy that, shall we say, the millions or the hundreds of thousands it costs to run the J.C.R.A. is good value for money? Would he consider returning us back to a single operator? I know it is probably not possible.

Senator A.J.H. Maclean:

In reverse order and simply, no. Yes, I do believe the J.C.R.A. have done a splendid job in the Island. They have adapted to the Island economy and I think they have delivered incredible value for consumers in terms of driving down prices generally. So I think we should continue to support them and we will continue to support them.

15. The Deputy of St. John :

Supplementary. In supporting them, it is costing each and every one of the people who have letters, et cetera, additional funding to keep the J.C.R.A. in place by the fees they charge.

Senator A.J.H. Maclean:

Yes, clearly there is a cost to regulation and that is fully understood but the cost in terms of stamps, which I think the Deputy is alluding to, is driven by far more factors than just the J.C.R.A. and that must be borne in mind.

16. Senator S.C. Ferguson:

Given that the U.K. industry and the U.K. Government appear to have overlooked changes in the market, is there not a conflict for Economic Development supporting changes in the market when these will adversely affect Jersey Post in the long run?

Senator A.J.H. Maclean:

Changes are occurring in the market from external forces outside of Jersey. That is the first point that I would make. Secondly, I think it is absolutely right Economic Development to get the balance right in terms of supporting businesses and supporting sectors. Jersey Post have to run a sustainable financial model that has long-term sustainability and I certainly believe that they have started the process in terms of driving efficiencies, but clearly it appears that there is a great deal more work to be done to meet the challenges as we move forward in the future.

Senator S.C. Ferguson: Supplementary. But the effect is

PUBLIC BUSINESS - resumption

2. Island Plan 2011: approval (P.48/2011): fifty-sixth amendment (P.48/2011 Amd.(56)) The Bailiff :

I am so sorry, Senator, the time has run out. Very well. Now the next matter then, just before we return to the Island Plan debate, is that the Minister for Planning and Environment has lodged a 56th amendment, which hopefully is on Members' desks. He will need to obtain the consent of the Assembly for it to be debated so do you wish to make that request of the Assembly?

Senator F.E. Cohen:

Yes, I wish leave of the Assembly to debate Amendment 56. It is as a result of recent advice that I have received and, consequently, I wish to withdraw 3 sites from the rezoning policy, field 1219, field 785 and De La Mare Nurseries.

Deputy G.P. Southern :

Will the Minister take this opportunity to fully explain what appears to be an absolute bombshell of an amendment which has thrown into disarray his proposals for the Island Plan? It is owed to the Assembly to give some fuller explanation of why he has taken this action now. I would be grateful if he would. Is that possible?

The Bailiff :

It would be helpful, Minister. I am afraid this will come as a surprise to Members.

Senator F.E. Cohen:

Certainly, Sir. I did distribute a note earlier to Members to explain the reason but I will now detail a little further and I will be repeating it again in my speech, so I am sorry if I repeat it. During the States debate on the Island Plan, as a result of legal advice I received via my officers on Thursday, it became apparent that there is a potential risk that a requirement by the Planning Department to deliver a specific mix of categories of housing under the H1 Policy could be challenged. It is possible that a Planning Department designated mix could be challenged on the grounds of the reasonability of the designation. The advice is that it is difficult to quantify this risk at the moment. Therefore, the prudent and cautious approach, in relation to these privately-owned sites, is that we withdraw them from the Island Plan for the present, that we form a group of the relevant departments and interested States Members to revise the H1 Policy and, if necessary, bring back a revised H1 Policy together with rezoned sites at a later date when the work is completed, and it was my proposal that any Member who was interested in participating in the review work should make themselves known and they would be included in the group.

The Bailiff :

Very well. Does any Member wish to say anything on whether to allow the Minister to have this amendment debated?

Deputy J.B. Fox of St. Helier :

Just one question. How does this affect the current process that we are going through for this Island Plan? Are we still able to pursue it and confirm it or does something else now have to happen as we have a gap?

Deputy R.G. Le Hérissier:

Without trespassing into the merits of the revamping of the policy, nevertheless, it is a vital part of the Minister's argument that somehow by getting a group of people together, he will overcome the obstacles that have been put in his way at this point. Can he tell us how more substantial progress is going to be made at that point than is going to be made at this point?

Deputy M. Tadier of St. Brelade :

Again, not wanting to talk on the substantive amendments because we are likely to be debating them shortly, I just have to comment on how these amendments and the fact that it is being brought now at the last moment - I understand the circumstances, of course - will potentially and I am sure completely change the whole dynamics of the Island Plan as a whole. The issue is we cannot go back now to the beginning of the Island Plan. Clearly, time travel is not possible though if it were, we would wish it would be possible in a forward direction, I think. But the bottom line is, which of us knows how we might have voted back then if we had known what the Island Plan was going to be as a whole now as it is being presented towards us? So it is a very unsatisfactory situation. I am not sure if it was avoidable. Perhaps the Minister will clarify that in summing up but it does seem that this changes what we have before us in a very fundamental way.

The Deputy of St. Mary :

The previous speaker said the Minister's summing up. I thought this was a statement and so far we have had 10 minutes of questions. We have not heard a single answer yet.

The Bailiff :

It is not a statement, Deputy . He is requesting the Assembly to allow him to have this amendment debated.

The Deputy of St. Mary :

That is fine, Sir, and I seem to remember Deputy Southern asking whether the Minister should not make a statement to explain this "bombshell", as he put it, so that Members could my understanding was that Members could then quiz him a little bit and then we would all be in the clear before we come to the debate because a debate is a very unsatisfactory way of having questions answered.

The Bailiff :

The Deputy may have used the word "statement" but what he was really asking for was elaboration from the proposer of the reasons for this late amendment. Carry on, Deputy , please.

The Deputy of St. Mary :

So what I was going to put to the Minister - I do not quite know how this all fits together now because it is all very unprecedented - but my understanding of what the Attorney General was telling us all yesterday was that such declarations by the Planning Department would be likely to sustain challenge, provided they were justifiable. We are now being told that on the day before we were given that advice, his department had had advice which was different. So I for one am bamboozled and unsatisfied.

Deputy G.P. Southern :

Yes, if I am going to vote that the Minister can bring this amendment, although obviously it is of concern to him that he does, given his advice, I want a very clear picture of what difference this amendment makes in terms of what can and cannot be delivered, if that applies to even the number of houses that can and cannot be delivered as a result of us eventually in the next who knows how long passing the Island Plan overall.

The Bailiff :

Yes, well, then I ask the Minister to reply.

Senator F.E. Cohen:

This is described as a "bombshell". It is not a bombshell. It relates only to 3 particular sites and it is a matter of taking a prudent and belt and braces approach. I will mix the answers together to try and give a clearer explanation. The advice that I received via my officers on Thursday was that while there was no certainty that there could be a potential problem, that there was a risk and I have further examined the issue since and have taken further detailed legal advice. The answer is that there is a potential risk but it is difficult to quantify the risk. So rather than take the risk, as it makes little difference to the general dynamics of the Plan, I would remove the 3 sites.

[15:15]

That would simply mean that instead of delivering a total of 1,240 homes during the period of the Plan, of which 500 would be social rented and 500 Homebuy 2, we would be delivering 1,140 houses during the term of the plan of which 450  would be social rented  and 450 would  be Homebuy 2. The group would examine the existing H1 policy. They would take detailed and further legal advice. They would decide whether or not it was appropriate and necessary to bring forward an amendment to redefine or better define the H1 policy and, at the same time, would consider whether or not they wanted to bring back these 3 sites for further consideration by the States Assembly. So, effectively, the net effect of this is we lose 50 social rented housing from the plan, 50 Homebuy 2 houses from the plan on a temporary basis only. We go off, we look at whether we can deliver an improved policy and whether it is necessary to deliver an improved policy and then we bring them back to the Assembly before the end of the year hopefully for a final decision. So effectively it just pulls them out of the plan and I do not see it as a bombshell.

Deputy A.E. Jeune of St. Brelade :

I do not know if it is appropriate at this stage to ask the question but it is I think a point of clarification. Is the Minister saying that these 3 sites that he is pulling out will then become trigger sites like we were talking about last week?

Senator F.E. Cohen:

They could become trigger sites but more likely that once the group has completed its deliberations and decided on the way forward, that one or more or all 3 of the sites may be brought forward by the Minister for rezoning at the time or subsequent to a revised H1 Policy.

The Bailiff :

Very well. All those in favour of allowing the Minister to have his amendment debated, kindly show? Those against? Very well, the Assembly agrees that it may be taken. Now, having considered the matter, it seems to the Greffier and me that logically this must be the next matter to take because this will affect the wording of Deputy De Sousa's amendment, which was going to be the next amendment so it seems to me the Minister must be allowed to make his first. If he succeeds, then field 1219 will come out, in which event, Deputy De Sousa's amendment is not necessary. If he fails so that field 1219 is still in, then, of course, we will proceed to Deputy De Sousa's amendment. So, on that basis, Minister, perhaps you would like to propose the 56th Amendment.

1. Senator F.E. Cohen (The Minister for Planning and Environment):

During the States debate on the Island Plan, as a result of legal advice I received via my officers on Thursday, it became apparent that there is a potential risk that a requirement by Planning to deliver a specific mix of categories of housing under the H1 policy could be challenged. It is possible that a Planning Department designated mix could be challenged on the grounds of the reasonability of the designation. The advice is that it is difficult to quantify this risk. Consequently, I have decided not to run the risk and I am proposing the withdrawal of the 3 sites previously suggested for rezoning. These are De La Mare Nurseries Grouville , field 785 St. Ouen , and field 1219 St. Helier . They could have delivered 50 social rented houses and 50 Homebuy 2. I will immediately set up a working group under the Treasury, including Housing, Planning and interested politicians to examine the issue and to bring back to the Assembly any revisions to the policy, should these be required, together with any site for proposed rezoning again, should these be required. I would be grateful if any Member who has an interest in participating in this group would advise me as soon as possible and, indeed, Deputy Le Claire has already advised me that he would like to be involved and he is most welcome. I distributed a note last night to Members laying out the estimations of required affordable housing during the 10-year life of the plan. This substantiates taking this cautious and prudent risk-limiting approach as even without the rezoned sites, we will still deliver over the life of the plan an estimated 450 social rented homes, 450 Homebuy 2, 70 first-time buyer and 185 lifelong homes for sale, being in total 1,140. I commend this prudent amendment to the Assembly.

The Bailiff :

Is the amendment seconded? [Seconded] Does any Member wish to speak on the amendment?

Deputy G.P. Southern :

Yes, a point of clarification, I think, as to the nature of the challenge. Is it a matter of equity in treating H1 sites in a certain way when you have got a set of rules about H3 sites which you are treating in a different way and, if so, does that open up the H3 sites as open to challenge on a similar principle to the challenge that is potentially there on the H1 sites or is it a fundamental question of a right to enjoyment of possessions in that there is a serious question about the reasonableness of telling somebody they have got to build so many social rental houses which do not make a great deal of profit from that possession?

The Bailiff :

Is that your speech, Deputy ?

Deputy G.P. Southern :

It was intended to be clarification because the Minister said: "I have got a legal objection" and did not explore it at all and I want it explored.

The Bailiff :

Are you willing to give clarification at this stage?

Senator F.E. Cohen:

Yes, most certainly, Sir. The issue is a question of fairness. I am not lawyer and I am describing this as I understand it as a layman but that there is a question over whether the Planning Department could legitimately, on H1 sites, create a designation that, by its nature, may not deliver anything like maximum value for the site and whether, for example, if the Planning Department required the designation of a particular site at 50 per cent Homebuy 2, which will be sold at about £250,000 and 50 per cent social rented, which would be sold at less than £200,000, whether the owner of the site would have a legitimate expectation, bearing in mind Article 1 of the European Law on Human Rights, to come back and say: "That is not fair. I would like to have 25 per cent first-time buyer on the site or 25 per cent lifelong homes open market, both of which are worth well in excess of £400,000". So rather than run the risk and rather than effectively rush through something that has now been questioned, it is better to delay to work on the policy. It is not essential to the core of the plan to deliver it now and to bring it back at a later time once we have had time to work on it with the advice of the Law Officers. In relation to the H3 sites, as I understand it, it has no effect whatsoever on the H3 sites.

1. Deputy J.M. Maçon of St. Saviour :

Unfortunately, Deputy Martin is not here today but she did make the point earlier in this debate that Members should be wary of different Members making promises during planning debates and what may and may not come from it. However, I accept the Minister's point that if we have a policy that we are not sure about, then it makes sense not to be giving planning permission for that which we cannot guarantee. But I feel there is perhaps a more fundamental question about the whole H1 policy and therefore its implications about adopting the Island Plan as is. The Minister has said we do not want to rush this through but if we adopt this amendment, the implication is that the whole of the Island Plan, when voted for, is adopted and therefore we are accepting a policy which we are not entirely sure about, which concerns me greatly.

2. Deputy D.J. De Sousa of St. Helier :

Just firstly to let the Minister know, I would like to be on this panel in the future, please. Where does this leave for clarification all the other debates that we had last week on the rezoning?

3. Senator J.L. Perchard:

I assume, just so we know exactly where we are, if these 3 sites are removed from the draft Island Plan, the sites will, in fact, be Green Zone in the new Island Plan and I assume that that is the case. My question then is what does that do for the integrity of the Green Zone policy? I am just going to quote from the policy NE7 of the draft Island Plan, the first and last paragraph and it says: "Green Zone. The areas designated as Green Zone on the proposal map will be given a higher level of protection and there will be a general presumption against all forms of new development for whatever purpose." The final paragraph says: "Development proposals that are potentially permissible exceptions to the presumption against new development in the Green Zone will only be permitted where they do not seriously harm the character of the area." Our Green Zone policy must mean something and if we are going to come back in a year's time, 6 months' time and say: "Let us put 400 houses on the Green Zone", it really does mean that we have got a 10-year Green Zone

plan that means very little. I am worried about this. In fact, I am worried about the whole housing policy of this plan and I do wish Deputy Power had maintained his amendment because I think I would have supported it. We have got a policy being manufactured as we go and I do not know what to do. I will support the Minister but it just means our Green Zone policy now is a folly.

4. Deputy M.R. Higgins:

Again, it is 2 questions of the Minister effectively. I would like to know how long he expects this to be delayed so we can get a indication of timeframe, and secondly, would he explain whether this blows a hole in the Council of Ministers' alternative to the Deputy of St. Mary's land development tax because, after all, they were looking to try and get a gain from the land they were doing in the mix of housing and surely if this is not going through in this way then the land development tax is the only alternative?

Deputy G.P. Southern :

May I, at this stage, ask if the Attorney General can attend because I would like to hear the legal situation from a legal mind rather than a layman's mind to my layman's mind.

The Bailiff :

Very well, yes, we will ask him to come over.

5. Senator P.F.C. Ozouf :

I rise to briefly support the prudent approach of the Minister for Planning and Environment in dealing with this issue. I believe that it is absolutely correct that we do not take the risk that we could have taken in rezoning parcels of land with an H1 site that potentially has a difficulty. I believe that out of this, we can get something even more positive. We have learned a lot from previous approaches of planning obligations by the 45/55. We have learned a lot in relation to dealing with the owned affordable homes from Homebuy and from first-time buyers and others. I believe that we can put together a cross group of Housing, Treasury, Planning, together with some Back-Benchers, to work up a policy for H1 that will be robust and will deliver the aspirations of many Members of this Assembly, which is to achieve the quite legitimate and rightful dream of home ownership for more Islanders as a result of the H1 Policy. H3 is separate to this. That has a role too but I believe the H1 Policy can be looked at too and the Minister has asked me to get involved. I am more than happy to do so from the previous experience I have had but also perhaps to bring the economics and the Treasury view of "hawkishness" in relation to grabbing land value as a result of rezonings and directing that towards affordable homes and I commit myself to promising - Deputy Maçon says people should not promise in the Assembly - I promise to work very hard in working with other Ministers and other Back-Benchers to find a solution to H1 which is robust and delivers what this Assembly wants.

6. Deputy M. Tadier :

I am glad that the advice of the Attorney General has been asked for because essentially this is a legal issue that we are dealing with. It is a legal minefield and it is not a simple political decision that needs to be made today. Senator Perchard, I think, is quite correct. He has asked essentially where does this leave the Island Plan, although he has then come up with a strange conclusion: "But of course I will support the Minister". I am not sure how those 2 are linked and I would say to Senator Perchard in reality if he has got those many concerns, that he is not obliged to support the Minister if he thinks that the wrong decision is being proposed here. The other problem is it does not simply just undermine the plan and the integrity of the plan. It also undermines the autonomy and the authority of this particular Assembly because we know that the decisions are going to be made by a future Assembly and I think even when the legal advice is brought back in the next proposition and the feedback from the smaller working group is fed back, that is very unlikely to be this session, I would have thought, so this is already an issue.

[15:30]

I am worried that we are debating an Island Plan which has been researched and amended and there has been lots of work done on it on both sides by Ministers, by perhaps Scrutiny and the Back- Benchers in conjunction with consultation in the Parishes only for something to be pulled which is of significant importance. Being called a "bombshell" was not endorsed by the Minister but it is a significant amendment that we are embarking on here. Other questions need to be asked. I think if essentially we are saying this policy is open to legal challenge, then presumably it has been open to legal challenge for quite a long time and so what has happened in the past, the cynical part of me, or certainly the sceptical part, which I think is necessary in any politician, says are we being sold something correctly here? Is it perhaps that the Ministers know that these proposals here are unlikely to go through anyway this time in the Assembly because we know that there has been so much scepticism and so much opposition for many different reasons about rezoning greenfield sites for housing anyway? Would it not be better to simply leave those in the plan and to reject them for good political reasons rather than very ambiguous smoke and mirror type legal objections, which I think have been concocted at the last minute, if I am honest. It seems to me - and again like the Minister I am not a lawyer - that there is always an element of reasonability because the rights for enjoyments of one's property, whether that be a house or a field which is possibly going to be developed, is qualified. We know that and there is a very strong element of reasonability on what the Government can do; and of course the Attorney General is just coming in now and he will be much better qualified than I to speak on that matter. But certainly that is my understanding of it. Let us give an example; if the States said we need 200 - let us call them non-profit houses and expensive houses with lots of profit because that is essentially what they are - we need a mixture of these; it would seem to me it is entirely reasonable for the States if they are engaging 4 or 5 different developers to do things on a pro rata basis. So if they need half and half of a mixture then each site is asked to produce pro rata a mixture of those houses. Then, of course, the free market element of it, the negotiation of it as to whether the developer and the landowner think there is enough profitability on the site to produce that, then they can go ahead and do it. It would only seem unreasonable, in my humble opinion, if we were to say to one field owner: "You can build 75 per cent profitable homes" and another field owner: "You can only build 25 per cent profitable homes". Of course that kind of thing would be open to legal challenge but I do not see those kind of propositions coming out from a very sensible Planning and Environment Department in the first place. So I think there is a risk that we are being sold a pup here. I would ask what is the actual underlying issue here. It will be interesting to hear from the Attorney General I think in general terms about the qualified aspect of the enjoyment of one's property; how likely it is that legal challenges will be put to reasonable conditions from the Planning and Environment Department; and also whether those legal challenges would be likely to succeed. Again, just to emphasise the fact that it is this Assembly which is debating the current Island Plan, and I do not think certain aspects of it should just be pulled out for certain reasons, which may not be genuine, if I can just about get away with that, or not necessarily be the best founded, let us say. The other thought that just came into my head - and I will finish with this - just because a developer does not get the permission to develop the houses he wants, or the landowner does not the get permission to develop that land that he wants to, there is no obligation as far as I understand on the owner simply to develop the field. If somebody cannot build the amount of houses or the types of houses on the field that they want to then they can simply keep that field as a greenfield. It does not seem to be an obligation for them to have to develop. So I leave that. I am not going to support this amendment because I think we need to debate it on its merits, both politically and legally, in the form it is being presented to us. The Island Plan needs to be considered in its entirety, we cannot simply take parts out. If we are not happy for these parts to be rezoned let us simply vote against it,

but keep them in the Island Plan and we can also consider the advice of the Attorney General. The Bailiff :

Perhaps, as the Attorney General is here, this would be a convenient moment to ask him if he can help. Mr. Attorney, I do not know whether you have been listening on the radio but we are debating the 56th amendment, which the Assembly has been advised has been presented because of legal concerns over whether what was previously proposed could be achieved. I think the Assembly wanted to hear the basis of this legal advice, what are the concerns, the legal advice?

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

I will apologise to the Assembly if I do not address the points precisely as they have been made because I am conscious that there may well have been questions that have arisen during  my perambulation from my office to here. Affordable housing is not as itself defined in any particular way, either within the statute or anywhere else that has legal force. There are a range of models; social rented housing; first-time buyer and others, which can fall within the definition of affordable housing. The purpose, as I understand it, of creating land within the policy H1 for affordable housing is primarily that the kind of mix that the Minister would think is appropriate for various types of affordable housing can be achieved. In other words, the Minister can say: "I think that this particular mix is the correct mix." If it is the case that the Minister, in looking at any particular application, wishes a particular mix of housing on a site and he does so on the basis of evidence of considering the material considerations and exercising his judgment, then it is unlikely - in my view

- that can be challenged before the courts. But it is not impossible that it be challenged before the courts. It seems to me that any condition placed on the nature of a development engages Article 1 of Protocol 1 of the European Convention of Human Rights: the right to full enjoyment of property. Whereas that is a qualified right, by which I mean that right can be interfered with if there is a public interest for the public good, that interference must of its nature be both necessary and proportionate. It seems to me that there is some risk that a particular mix of affordable housing could be challenged as being unnecessary, not proportionate in the light, for example, of the overall portfolio of properties available to the Minister for dealing with affordable housing. There is some risk. So I could not say to the Assembly that any particular mix the Minister might hit upon would be sustainable before the courts. The Assembly, I think, has asked or mentioned in the last few minutes about the level of that risk. It is impossible at this point to quantify what the level of this risk is for 2 reasons; (1) that there is no guidance is available from authority within Jersey relating to this particular question; (2) each will inevitably turn on its individual facts and until all the individual facts are known it is impossible to say whether there is a tenable and reasonably strong argument. My view at the moment is that there is not a strong risk that any particular mix of the Minister, if properly evidenced and justified, would be susceptible to challenge; but there is a more than negligible risk - perhaps less than very significant risk but a more than negligible risk - that is possible. I am not sure that I can assist but I suppose the corollary of that is that there is a more than negligible risk in my opinion that the Minister cannot in any particular case deliver the particular mix on sites that he might otherwise wish to do. It is very difficult to be more categoric

than that.

Senator T.J. Le Main:

Could I ask a question of the Attorney General? Does this come out of a concern of the mix that was changed at La Providence where a developer certainly was looking at the unfairness of that mix being changed compared to the other H2 sites?

The Attorney General:

I can say with confidence that is not the case because I did not have that forefront of my mind. This is an analysis that comes from first principles.

Deputy P.V.F. Le Claire:

Could I ask a question of Her Majesty's Attorney General? After this debate we are going to enter into the debate on the North of Town Masterplan. I did inquire of the Minister if any of these in relation to the H3 policy and the H1 policy would transmute into that debate and I was assured by the Minister that was not the case. Is there any risk that what is coming up in the North of Town Masterplan may also have implications for the Assembly?

The Attorney General:

I am sorry, I would have to look at that quite separately, I am not able to advise on that at this point.

Deputy P.V.F. Le Claire:

Can I ask the Attorney does that before we commence the debate on the North of Town Masterplan please?

Deputy G.P. Southern :

The question that I would like to have answered is: is this a fundamental challenge in terms of the right to the enjoyment of property or is it one of equity in that we have one set of policies for H3 sites, with a range of quotas that might be used to build social rental housing - which is the one that makes least profit - compared to the H1 sites where we have got a different quantum of social rental housing that might be requested to be delivered; and is it a question of equality or parity between those 2 or is it simply a fact of having established that there is a need for social rental housing? The Minister says, let us say: "I want a 50/50 split between that and all of the type of affordable housing" whatever that means, and that is the one that produces less profit and less enjoyment for the property owner; and if he were to change that from one site to another would that be the challenge?

The Attorney General:

It is the latter analysis that has formed the basis of the advice I have given the Assembly. This is not a comparison of the interplay between H1 and H3; it is an analysis of the potential consequences of H1 as it relates to specific sites.

Deputy T.M. Pitman:

It is not a question for the Attorney General, I just wanted to raise the possibility of a reference back because it is fine for the Minister to talk about working groups and H1 policy but listening to the Attorney General's advice - and it is very good advice - but it seems ..

The Bailiff :

Deputy , can I ask you to come back to that because there are a number of Members who want to ask questions of the Attorney General so we will get all those dealt with first.

Deputy M.R. Higgins:

Is the Attorney General effectively stating that we need to resolve the question of what is and what is not affordable housing first and arrive at a formal policy rather than leave it to, in one sense, the opinion of the Minister; so we have got a policy to which we are working to and people can test? Is that the starting point?

The Attorney General:

I was not going so far in the advice; I think one of the questions that will need inevitably to be considered is what models fall within the umbrella term of affordable housing. But I do not think I can advise any further than that; clearly there is a whole range of models, some of which will produce a higher financial return to the potential developer than others.

Deputy M.R. Higgins:

Just following through, if I may; if, for example, the States came up with a policy for affordable housing, which was a policy adopted by this Assembly and it was there for everybody to do and the Minister just applied that policy, would that be less susceptible to challenge if it was enacted by this Assembly?

The Attorney General:

The Minister generally should give consent if it is in accordance with the Island Plan. If there is a policy contained within the Island Plan the law provides that generally the Minister will give consent to a development that meets with that policy.

The Deputy of St. Mary :

I think it is 2 questions; one is the Attorney General said that there was a non-negligible risk of a challenge and I would like him to have a stab - maybe it is not possible - saying what likelihood there would be of that challenge succeeding give that Protocol 1 Article 1 says quite specifically, and the inspectors refer to it in there report, makes express provision for States to regulate the use of property in accordance with the general interests.

[15:45]

So I would like the Attorney General to perhaps give a sort of percentage of the chances of success of such a challenge, because on the basis of that provision it seems that if the States decide through the Minister that a certain split is in the Island Plan and can be imposed provided it is reasonable et cetera and justified, then that appears to me to be very hard to challenge. The second question is: if this is not safe with regard to the H1 policy, my mind goes forward to related policies like the developer sites where we are going to be told that it is possible for the Minister to impose on developers or enjoyers of land certain requirements like 12.5 per cent commuted payments rising to 20 per cent. I would like the Attorney General to comment whether in ditching this particular baby we throw out the next one and the one relating to States-owned sites as well?

The Attorney General:

I think I got all of those questions. When lawyers say something might be challenged they are speaking shorthand and they normally mean something might be successfully challenged. So my advice is that there is a non-negligible risk of a successful challenge within the parameters that I have mentioned. I should make it clear that this is not certain black letter legal advice. This is a very tentative assessment and, as I understand it, the proposal to remove these sites is a cautious act designed to ensure that sites are not brought forward to go within this category until one is able to be much more clear as to the parameters within which they can be developed. The other question is if there is a policy adopted as part of the Island Plan then generally speaking - other than in exceptional circumstances - the Minister must give a consent in accordance with that policy. That is a statutory obligation on him and consequently I think it would be very difficult indeed to challenge a permission that is based on the clear words and restrictions and limitations contained within a policy adopted by this Assembly. The third of the babies in the bathwater relates to whether the remainder of policy H1 can continue. My understanding is the remainder of policy H1 applies to sites already established; or alternatively, sites which might potentially be in the ownership of the public. Of course very different considerations apply to sites in the ownership of the public because sites in the ownership of the public are not going to be challenged as to a particular split. So I would not have thought - unless I have misunderstood the position - that H1 of itself does not continue. There is no, to my mind, interrelationship between the advice given in connection with H1 and the legal position in connection with H3.

The Deputy of St. Mary :

Could I ask a question in response to that? I just want the Attorney General to clarify; he said it would be very difficult to challenge a requirement by the Minister, I think, or a policy of the Minister in respect of a certain site if it is based on a policy that is in the plan. What was that exactly in relation to; because what we are talking about would be in the plan in the same way that all 3 would be in the plan, the impositions on developers with regard to commuted payments will be in the plan if we vote them through and so will the H1 splits be in the plan; so I am not quite sure why there is a problem?

The Attorney General:

As I understand it, what would be in the plan if these particular sites remained as part of policy H1 would be that they were for category A housing. There is a range of potential models as to what might constitute category A housing and the potential difficulty - and I do not want to overstate its importance in any way at all - but the potential difficulty to the level of risk that I have set out relates to the split between the various models of category A housing that the Minister might wish to put on any particular site.

Deputy S. Power of St. Brelade :

The Attorney General will remember 5 minutes to-ing and fro-ing last Friday on a scenario I painted to the Attorney General about a social rented housing site and how it could be challenged. Can I just ask the Attorney General this: he has just said that the definition of affordable housing is not clear, per se, and that is why he used the phrase "non-negligible risk" which essentially means it is a double negative, which means there is a risk. So I would put it to the Attorney General that if the Island Plan is not clear or if he is suggesting that the definition of affordable housing is not clear in what we are debating now, this section on housing; then I would suggest the question is this: we have some of the finest legal minds on the Island with some of the finest legal brains here in Jersey in the legal profession; would you not agree that they will find holes in this Island Plan and challenge it in the Royal Court because of the lack of definition, because of the fact that the definition of affordable housing is not clear?

The Attorney General:

I think I have already advised that in my view it would be helpful to have greater clarity with what is meant by affordable housing; because naturally any lack of clarity in any kind of instrument gives rise to the potential for people who feel that they want to do something other than the instrument provides to make an argument in the courts that uncertainty should be resolved in their favour. So I think I am answering yes, roughly, to the general point; but I just do it in that way.

Deputy P.V.F. Le Claire:

It is along that vein; I attended the conference by Hanson Renouf on Thursday last week with Deputy Power and a Q.C. (Queens Counsel) was there, Richard Humphries, who provided us with some information, and that is why the questions I asked in the Assembly on Monday sort of strayed into these areas about judicial challenge and legal challenge in the Royal Court. I would just like to have an understanding, because I think I am going to propose a reference back when I speak; but in this first instance what I would like to know is from these slides if this is the case. The 2002 law requires the Island Plan must be revised within 10 years and my first question is: if we revise this back will that negate that? The second question is – the Minister prepares, must seek representations, the States debate and decide whether to approve, Article 3 and Article 4; not a legislative act of the States, therefore, judicial review is permissible. This is the important second question really; part one of the Island Plan: "A written statement of the Minister's policies in respect of the development and use of land together with a recent justification of each of those policies. Policies may designate land to be used to provide residential accommodation for persons who would otherwise have financial difficulties renting or acquiring residential accommodation in the general market for residential accommodation prevailing in Jersey, Article 4." Part 2 details maps, et cetera. So land may be designated for affordable housing. The provision of affordable housing is clearly a relevant consideration; focus, therefore, likely to be on reasoning and evidence to support. That is the slides from the Q.C.; so what he was saying there, if I can ask the question, is if we do not have clarity and approve this plan today are we not, therefore, failing in our duty to have the Minister's clear written representation and reasoning behind the policy of H1 in any plan that we subsequently approve today?

The Attorney General:

The obligation on the Minister is to present a draft revision to the Island Plan to the States for approval within 10 years; so provided it has been presented to the States for approval - which it has

- within 10 years, I do not think if the 10-year period were to be passed that would necessarily be problematic. I am not sure, with respect to the Deputy , that I fully understood the second part of his question. I apologise for that.

Deputy P.V.F. Le Claire:

I am sorry but I think it is quite important. I will paraphrase what I am concerned about; in the slides that I have - and I can give those to the Attorney General - basically what is written out for me in part one is that the Island Plan requires a written statement of the Minister's policies in respect of the development and use of land; particularly in regard to affordable housing. Unless those policies are clear - and at the moment they are certainly not clear - then we are basically opening up a whole range of approvals and denials in the future, potential challenges on the grounds that the policy we are being asked to approve today is by no means clear.

The Attorney General:

I am grateful to the Deputy for repeating it. It is entirely correct that the Island Plan can include designating land for the use of people who would have financial difficulties in renting or acquiring residential accommodation in the general market; that is Article 4.4 of the law. That is, as I understand it, what the various parts of the draft Island Plan on affordable housing are intended to do. I believe the second part though of the Deputy 's question really is a comment on how much exposure, how much risk is there, and I do not think I can go any further than the answer that I have already given to the Assembly.

Deputy J.A.N. Le Fondré of St. Lawrence :

I am still trying to get my head around some of the comments we had earlier on. I would like to take the Attorney General back to his comments I think in relation to H1 on a potential risk. If I have understood it correctly, part of that risk relates to the proportions allocated to any particular site of affordable housing and the types of affordable housing. Could he just clarify that and then I would like to come back with a second question.

The Attorney General:

I work on the assumption that in connection with any application the Minister will wish to specify a mix, perhaps a very unbalanced mix depending upon his view of what needs are in connection with any particular site. The question that I am considering is whether or not any particular mix is susceptible to challenge; for example, if an individual could show that there is demand for first- time buyer housing, would that individual be in a position to challenge the Minister's preferred risk, which may predominate in favour of social rental housing, for example? That is the risk that I am looking at when I answer this question and that is the risk that I have categorised as more than negligible but perhaps less than substantial.

Deputy J.A.N. Le Fondré:

That is what I had understood. The reason I ask that is the Attorney General then, I believe, commented that he did not think there was too much of an interaction between H1 and H3. But the query I would like to ask is, could I ask the Attorney General's opinion, do you have the Island Plan to hand? On page 255 of H3 and the second paragraph of H3, because is that not a similar problem or is it the fact that it refers to Supplementary Planning Guidance and gives the Minister the power to do that, that then strengthens the ability of the Minister to do that; or does that risk that the Attorney General has opined for H1 similar under that paragraph in H3?

The Attorney General:

I wonder if I may take a few moments just to consider that, if that would be convenient.

The Bailiff :

Very well, then I had seen next Deputy Le Claire to speak in the debate.

Deputy P.V.F. Le Claire:

Sir, I wonder if we could maybe take a 5 or 10 minute break because I would rather not speak before the Attorney General has considered the response and maybe it might be appropriate to take a 5 or 10 minute adjournment.

The Deputy of St. Mary :

I did have another question to the Attorney General, and on a different tack.

The Bailiff :

Deputy Southern had one too, yes.

The Deputy of St. Mary

It is on a different tack but it is relevant to the way this is going now. My understanding was that the 2002 Plan runs out in some meaning of that term; what happens if this new plan as amended does not get approved by the end of this year? Is there some sort of problem or does the other one just roll on?

[16:00]

Deputy G.P. Southern :

The Attorney General has talked about if the developer can prove a demand is the Minister allowed to impose a political direction other than demand on the type of housing that he requires to be brought? The second thing I would like to be clear on is the Attorney General has said that the Minister is unlikely to be challenged if policy contained in the Island Plan is clear. Is he saying that the policy is not clear apart from the absence of a clear definition of what is and is not affordable housing? Are those 2 questions clear?

The Bailiff :

Do you want to answer the questions if you can immediately Mr. Attorney, while they are fresh in everyone's minds? It is really only Deputy Southern 's question I think, because the Deputy of St. Mary withdrew his.

The Attorney General:

In terms of the question or to elaborate slightly on what I mentioned about an individual applicant establishing demand. That is, of course, within the context of an application that is made on a site that is allocated for category A housing, affordable housing. So, it is demand not as such, but demand as between the various types of affordable housing that might be the case. The question that I have been addressing is whether, for example, if the Minister believes that there is demand for a certain type of affordable housing, but the applicant says: "Look, there is also a demand for another type of affordable housing", if the Minister's preferred split is susceptible to a challenge. I do not wish the Assembly to take my advice to be that it definitely would be, even that it is likely to be or anything of that nature. Merely that there is a risk in any particular case that that could happen. It would be a mistake of the Assembly to assume that the advice I have given has disclosed a major difficulty with the ability to defend any kind of decision that the Minister has made. That is not the case. I am giving a very modest assessment of the risk indeed and I would not wish the Assembly to take my advice in any other sense. The second question was, I think, if there is policy set out in express terms within the Island Plan does that make the position better?

The answer is, to my mind, yes it does. If there is an express policy it is part of the Island Plan and the Minister has to give consent that is in accordance with the Island Plan. That seems to me that that inevitably improves the position.

Deputy G.P. Southern :

If I may just follow that up; is the Attorney General suggesting that the policy being brought forward now is insufficiently clear as to open up this risk of challenge as well as the absence of a definition of affordable homes?

The Attorney General:

My comments are restricted, I think, in effect, to the definition of affordable homes. It is the split within the concept of affordable homes that has given me the reason to advise the Assembly in the way that I have.

Deputy P.V.F. Le Claire:

I would like to make not too long a speech and I would like to end up by proposing a reference back to the Minister.

The Bailiff :

Just before we do that, Deputy , you did say you wanted to have the answer to Deputy Le Fondré's question before you spoke.

Deputy P.V.F. Le Claire:

I thought you were not allowing me to .. I would like to understand as much as possible, even listening to it. It is advice we are receiving and putting Her Majesty's Attorney General under a significant degree of pressure. I think he may have the answer now. If he does not, I propose that we could have a short adjournment, so that he can give us it.

The Bailiff :

Mr. Attorney, would you like 5 minutes to consider Deputy Le Fondré's question?

The Attorney General:

I would be very grateful for 5 minutes, Sir.

The Bailiff :

Does everybody agree we should adjourn for 5 minutes?

Deputy P.V.F. Le Claire:

We are not ridiculous. Could I propose we reconvene back here at 4.20 p.m.? How is that, Sir?

The Bailiff :

How long do you need, Mr. Attorney? Shall we say quarter past or when the Attorney General tells us he is ready? Very well, we will adjourn briefly.

SHORT ADJOURNMENT [16:18]

The Bailiff :

Very well, we return to Deputy Le Fondré's question.

The Attorney General:

I am grateful for the short time to be able to reflect on it. The question, as I understand it, is whether the advice that I have given would be the same for policy H3, given that in the third paragraph it is clearly a reference to the Minister limiting the validity of planning consents for sites to which this policy applies by condition, the extent of which will be set in supplementary planning guidance. The difference, to my mind, which would make my advice in connection with H3 different is a question of degree. The H3 policy relates to sites where already only a very limited proportion of that site will be devoted to affordable housing; 12.5 per cent, as I read the policy, moving over a period of a number of years to 20 per cent. It seems to me that a decision by the Minister to put a particular division of affordable homes within a very limited part of a site, up to 20 per cent, is much less susceptible to challenge as an interference than a more general description relating to a whole site. I would not wish to suggest to the Assembly that my view is that there is a hugely material risk in any event, but the risk is very, very much smaller in my opinion in connection with H3, because of the small percentage of the site that is in question.

The Bailiff :

Very well, we return to the debate.

7. Deputy P.V.F. Le Claire:

A week ago last Thursday, I believe, the Minister for Planning and Environment issued a Supplementary Planning Guidance press release on the H3 policy. At the same time the Jersey Evening Post was carrying the banner headline "Housing Crisis" on the front page. It highlighted the independent inspectors' view that we were in danger, as a States Assembly, of collectively failing in tackling the housing crises if we did not adopt a plan that had provision for housing. Moreover, in their second report, which was published in May, on page 6, it highlighted what would be the shortfall in terms of affordable housing if Gield 1219 was removed. In their view, and it is stated quite clearly in their second report in May, that there would be only 50 houses delivered over a 10-year period, which they went on to say was a significantly poor provision in relation to the fact that States Members need to take cognisance of the housing crisis today. Now, when I withdrew my other H1 sites this week, and then I went on to support the Connetable of St. Peter, I was of no doubt whatsoever that if there was a problem with one there would be a problem with all. It is difficult to take on a sliding scale the advice of an Attorney General, no matter how much one tries to take on board everything that is being said. It is difficult to try to weigh that up in establishing: "What does that risk mean?" But it is interesting that the question that has just been answered by the Attorney General in relation to Deputy Le Fondré's point. The Attorney General was able to say: "The risk is very, very much smaller, much less susceptible to challenge, in relation to H3. The risk is very, very much smaller." If it is very, very much smaller, how large was the risk in H1, in relative terms? While I would not want to misinterpret or misquote or mislead the Assembly in my interpretation of what Her Majesty's Attorney General has told us, he did say it was impossible to quantify the level of risk, no guidance is available necessarily. Until all the facts are known, in his view, and on site specific issues and while until it is before a court one cannot know those things. It is also important I think in relation to third party appeals, in relation to what is being built, and those could be open for challenge as well. So, we have got significant concern expressed not only by the Minister himself in proposing this amendment, but also in my view there is something larger than the H3 risk. Therefore, by definition it must be very, very much larger, otherwise H3 could not be very, very much smaller. At the conference, which I mentioned on Thursday, by Hanson Renouf , an eminent Q.C. was present who highlighted some of the duties and obligations the Minister has under the law. I highlighted those and passed them to Her Majesty's Attorney General for his consumption for future consideration. But it does draw out some issues about past challenges, U.K. challenges, in relation to adequate progression of policies in relation to how one is determined whether or not they are economically viable and whether or not the Minister has given more than just token consideration. Therefore, those challenges, in my view, and as was highlighted by the conference, they could be on practically anything that came

forwards. On Monday I asked questions of Her Majesty's Attorney General in relation to the plan. We skirted into areas around these issues. More comments came during the week. On Monday for the first time, although we have been told by the Minister for Planning and Environment that there

is no need to worry about the findings in the second report because there has been an addendum issued by the Island Plan people we can all relax. Well, in the addendum that they issued, they highlight the fact that they considered a statement by the Minister for Treasury and Resources during the States of Jersey Development Company debate on the appointment of Directors. Reviewing the information that they received and confirming with the clerk to what they had reviewed, there was in fact no statement at all. There was not even the full speech of the Minister. Which, if there had been, they might have had cognisance of the fact the Minister spoke about the States being, and I paraphrase this, effectively strapped for cash at the moment, and that the States of Jersey Development Company would, in effect, in the future be operating in a commercial way. The 3 planks in relation to building housing in this plan, the windfall, the States sites, these 2 policies, are what we are being told is the way forwards. I can assure Members sitting on the Planning Applications Panel that we very, very rarely get applicants before us that are asking us to consider issues in relation to the environment. They are practically entirely about building things. So, in my experience, the Island Plan is really there to have cognisance of the issues and the policies around our environment, but they are mainly used in day-to-day practice by people who are developing and building. So, on Monday we saw comments from the Treasury, which the independent inspectors had not had cognisance of. In those comments it highlighted quite specifically that not only if States sites were used for affordable housing, the value of those sites would possibly decrease and also that would then have ongoing impacts upon the States capital programme where these properties were valued to underwrite future capital programmes. I have made the point already that the last time we did any numbers on this plan, that I can ascertain in any real measure, we are looking 2006/2007, updated in 2010 perhaps. But some number that in my view have been based, and also in the proposition quite clearly, upon 150 heads of households - I have already mentioned this before - totally taking into no account the fact of what has been happening in reality and trying to base the ability to deliver on these sites in increased density. But, if we have doubts around what we can increase in density and if we have doubts about what we can ask the developers to give us in relation to affordable housing then I think that that is really a signal for us to be minded to send this back to the Minister in its entirety. We have seen recently the 54th amendment, which came about because of H3. Deputy Power, Deputy Le Fondré and I were concerned, along with the industry, about the provision. So much so, that the Minister agreed to lodge the amendment and to fully consult with the industry. They did that. They were doing that on Friday evening at the Design Awards. That was then subsequently amended, I believe, by Deputy Le Fondré's or the Minister himself under the pressure of Deputy Le Fondré certainly .. that any of those consultations which were going to deliver the 12.5 to 20 per cent would have to come back, once they had been worked through to the States Assembly for approval. So we were

already in that position before today. [16:30]

We were already in that position on Friday. We were told today, on Thursday the Minister had received legal advice and on Friday we saw the Attorney General giving us legal advice and then the Minister giving us advice he had had, and there was some challenge about who was getting which advice and what advice was relevant to whom. I am just concerned that because the States- owned sites themselves are a valuable asset connected with the Future Capital Programme of the Assembly that we need to be cognisant of what we are going to achieve out of this. There is already a whole host of questions around that that I will not bore Members with. Then on Sunday we get an email at 10.22 p.m. on Sunday evening with the Minister setting out where these affordable homes were to be found within the next 10 years. As much as I have been trying to give my all to this, I literally took my first day off in several weeks over the weekend and I did not have time to study this last night.

Senator F.E. Cohen:

It was written in the simplest terms. Thank you.

Deputy P.V.F. Le Claire:

I do appreciate the Minister wrote it in simplest terms, probably for my benefit, but even I get tired and sometimes I cannot even read some of the simplest of emails and I was very tired at the end of last week. As much as Members have been getting emails from me I have not had a chance to continue to evaluate those sites and those areas that the Minister gave us. In fact, I challenge any Member to tell me by standing up immediately after me unless they have them written out, where were they? Where were those houses? How were they going to be delivered? I am sorry, this plan is a year and a half late. I think that is a direct result of the comprehensive spending review cuts the department made. We are yet to see the energy policy or the air quality strategy in similar veins; years and years behind. We have got officers that have been giving their all, that are working outside here in this antechamber and they have been working, I am told .. well, they must have been working as late as me, because I was getting emails back at 2.00 a.m. sometimes. So they have been working .. and on top of the questions I have been asking them they have had to field all of the other questions. I just feel that the department .. and I have evidence that before in my earlier speech from one of the planning officers saying they have not been able to bring up the numbers. My final point is this; I think that the States needs to send the plan back to the Minister. He has carried out his duty in bringing a plan before the demise of 10 years, but in my view, with the greatest of respect to the Minister, who I have a great deal of respect for, I do not have any respect at all, whatsoever, for this plan. I am sorry. That is what it is about. It is not about disrespecting the Minister. It is about recognising the failing of this plan. It has not been worked up adequately. We are literally months away from an election where Members are voting, and I have evidence of that, because of their fear of approving something this side of the elections. We also know, collectively, that the census is 99 per cent complete and that census is going to give us very valuable information about household size, numbers in the population, age, sex, et cetera. All of those are important for helping us understand the position we are in today and the position we are going to be in in a year and a half's time. Like I say, I do have the greatest of respect for Senator Cohen and I also have great respect for Deputy Duhamel. Obviously I have not been very pally with them over the last few weeks, because I have been challenging them. They may not be too happy with me. But I am afraid that is the position I have been taking. I am not unhappy with them. I am just extremely unhappy with this plan. Because I have done the work into what is coming up in terms of numbers and I have got some hardship cases I can share with the public in great detail about the issues facing ordinary people in this Island today. As the independent planning inspectors say, there is no unit of accommodation in Jersey that is affordable to people on average incomes; no unit of accommodation. So, this terminology, affordable housing, needs to be sorted out. In fact at 1.00 p.m. today I received an email from the Jersey Property Holdings Department in response to a question I posed to them this morning. They say: "Dear Deputy , as far as Jersey Property Holding is aware there does not appear to be an agreed and approved definition of the term "affordable housing" in Jersey. The closest you get to it is in the current Island Plan 2002, section 8, Housing  and the  categories of housing, section 8.16. The term  "affordable housing" is generally understood to encompass both low cost market and subsidised housing that is

available to people who cannot afford to occupy homes generally developed for the open market. The extent to which housing is affordable will obviously vary by household, by location, and over time. I am led to believe that the Island Plan inspectors make further reference to it in the Examination in Public under section 37, but I do not have access to this document at present. Please let me know if you would like to have sight thereof. Further work may need to be done to ensure all stakeholders are working towards the same understanding and goals." In response to that concern that I had the officers gave me at 2.38 p.m. today this email: "I am not sure what the officer is referring to, from Property Holdings, with regard section 37 in the inspectors' report." So, they are not able to clarify for me what the other people are not able to tell me because they have not seen it. The Kelvin MacDonald report was used as the key document in developing the affordable housing policy: "The definition of affordable housing is outlined in the draft Supplementary Planning Guidance of Affordable Housing. Definition of affordable housing for the purposes of policy H3." Then they go on to talk about policy H3. But I spoke to them at the beginning of the week and I asked them for the Supplementary Planning Guidance in relation to what was going to happen for affordable housing and they said: "Well, it is not ready yet. We still have to sign it off with the Ministers. It is going to be about 2 weeks away." Which is another week away from now. The last thing, Planning for Homes, which much of this document has been drawn up on, although it recognised that this document was widely taken up by the public who took a great deal of interest in it and great understanding was given by the people who completed this survey. The killer line in it all was when they reassessed all of these numbers they said: "Well, those aspirations and hopes can be dismissed, because these people's hopes and dreams have been dashed by the recession; dealt with." Well, that is not the way we must deal with our housing issues. That is in the report. That is practically verbatim what I have just said. I can certainly, if anybody wants to challenge me, stand up and quote it, because that is nearly exactly what they are saying. I would say this, I have confidence in Jersey. I have confidence that we are going to grow financially and I have confidence in the Ministers in relation to getting that business. What I do not have any confidence in is this Island Plan being able to deliver affordable homes. I would like to refer this back to the Minister to get better information from the census, to get better information from a new Planning for Homes document, which will be circulated ..