States Meeting Transcript - 12th December 2012

STATES OF JERSEY

OFFICIAL REPORT

WEDNESDAY, 12th DECEMBER 2012

PUBLIC BUSINESS – resumption ...............................................................3

1. Plémont Holiday Village - acquisition by the public and sale to the National Trust for Jersey (P.90/2012) - second amendment (P.90/2012 Amd.(2)) - resumption............3

1. Senator I.J. Gorst :........................................................................3

1.1.1 Deputy G.P. Southern of St. Helier:......................................................5

2. Plémont Holiday Village - acquisition by the public and sale to the National Trust for Jersey (P.90/2012) - amendment (P.90/2012 Amd.) ......................................7

1. Deputy G.C.L. Baudains of St. Clement : ................................................8
2. Connétable D.W. Mezbourian of St. Lawrence:........................................10 Mr. H. Sharp Q.C., H.M. Solicitor General:..................................................10 Deputy M. Tadier of St. Brelade:.............................................................12 Deputy J.A.N. Le Fondré of St. Lawrence : ...................................................12 Deputy J.A. Martin:..........................................................................13
3. Senator P.M. Bailhache : ................................................................14 Deputy J.H. Young of St. Brelade:............................................................16 The Solicitor General:........................................................................16 Deputy S.Power:.............................................................................17 The Connétable of Grouville :.................................................................17
4. Deputy R.G. Le Hérissier of St. Saviour:...............................................18 The Solicitor General:........................................................................19 Deputy M.R. Higgins of St. Helier:...........................................................19

5. Connétable J. Gallichan of St. Mary : ...................................................20
6. Senator P.F.C. Ozouf :..................................................................21
7. Deputy J.A. Martin:....................................................................24
8. Deputy J.H. Young:....................................................................26
9. Deputy G.P. Southern :..................................................................26
10. Deputy J.M. Le Bailly of St. Mary : ..................................................27
11. Deputy M. Tadier :...................................................................28
12. Connétable S.W. Rennard of St. Saviour:............................................29 Deputy T.A. Vallois:..........................................................................30 The Solicitor General:........................................................................30 Senator P.F.C. Ozouf :........................................................................30
13. Deputy J.A.N. Le Fondré: ...........................................................31
14. Deputy A.K.F. Green:...............................................................34
15. Connétable L. Norman of St. Clement:..............................................34
16. Senator I.J. Gorst :...................................................................34
17. Deputy G.C.L. Baudains: ............................................................35

3. Plémont Holiday Village – acquisition by the public and sale to the National Trust for Jersey (P.90/2012) – third amendment - proposal under Standing Order 26(7) for matter to be considered at present meeting ............................................37

1.3.1 Senator I.J. Gorst (The Chief Minister):................................................37

4. Plémont Holiday Village – acquisition by the public and sale to the National Trust for Jersey (P.90/2012) – third amendment (P.90/2012 Amd.(3))...........................39

1. Senator I.J. Gorst (The Chief Minister):................................................39
2. Deputy G.P. Southern :..................................................................39
3. Deputy G.C.L. Baudains:...............................................................39
4. Senator L.J. Farnham :..................................................................40
5. Deputy J.M. Maçon of St. Saviour:.....................................................40
6. Deputy J.G. Reed of St. Ouen:..........................................................40
7. Deputy J.A.N. Le Fondré:..............................................................40

8. Deputy J.H. Young:....................................................................40
9. Deputy M. Tadier :......................................................................41
10. The Connétable of St. John : .........................................................41
11. Senator F. du H. Le Gresley:........................................................41
12. Senator P.F.C. Ozouf : ...............................................................42
13. The Connétable of St. Mary : ........................................................42
14. Senator I.J. Gorst : ...................................................................42

LUNCHEON ADJOURNMENT PROPOSED..................................................44 LUNCHEON ADJOURNMENT................................................................44

5. Plémont Holiday Village – acquisition by the public and sale to the National Trust for Jersey (P.90/2012) - as amended........................................................44

1. Deputy E.J. Noel of St. Lawrence:......................................................44
2. Connétable A.S. Crowcroft of St. Helier:...............................................47
3. Deputy A.E. Pryke of Trinity :..........................................................49
4. Connétable M.P.S. Le Troquer of St. Martin:...........................................50
5. The Connétable of St. John:............................................................54
6. Deputy S.G. Luce of St. Martin : ........................................................55
7. Deputy R.G. Bryans of St. Helier:......................................................58
8. Senator S.C. Ferguson:.................................................................59
9. Deputy R.C. Duhamel of St. Saviour:..................................................61
10. Deputy S. Pinel of St. Clement:......................................................63
11. Deputy J.P.G. Baker of St. Helier:...................................................63
12. Deputy G.P. Southern : ..............................................................65
13. Senator L.J. Farnham : ...............................................................68
14. The Connétable of Grouville :........................................................69
15. The Connétable of St. Lawrence:....................................................70
16. The Connétable of St. Mary : ........................................................71
17. Deputy J.A. Martin: .................................................................74
18. Deputy M. Tadier :...................................................................77

ADJOURNMENT................................................................................82

[9:30]

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

PUBLIC BUSINESS – resumption

1. Plémont Holiday Village - acquisition by the public and sale to the National Trust for Jersey (P.90/2012) - second amendment (P.90/2012 Amd.(2)) - resumption

The Bailiff :

Now, the Chief Minister has lodged a third amendment to the Plémont Holiday Village proposition which I trust is on Members' desks. So we now return to the debate on Deputy Southern 's amendment. Chief Minister?

1. Senator I.J. Gorst :

Perhaps I could start by adding my thanks to those of other Members yesterday for the great work that the National Trust for Jersey has undertaken [Approbation] in endeavouring to ensure that one, if not our unique, north coast and in particular the Plémont Headland, is saved for future generations. But I should not simply thank the National Trust as a body. I would like to personally thank each individual who has either pledged their financial support or who has already given money to the National Trust campaign, [Approbation] I know in some cases in the sums of tens of thousands of pounds, and I am very grateful to them for their dedication to this cause. I think I can safely say that without that selfless dedication of those individuals, without those pledges, without that money given, we would not be here today debating the future of the Plémont Headland. One thing I have been certain of from the outset of this course of action is that it is too important a part of our natural environment to simply be left to the decision around a planning application. Yesterday, I asked the States to rise early so that I could hold further talks with the National Trust and that is what I did. Perhaps I should remind Members of what I said in the amendment to the amendment yesterday. The National Trust's initial offer of £2 million was based on a pound for pound approach based on their independent valuation, a model, as we have heard, which has been successfully used in the past, for example, when it came to repairing La Rocco Tower and others which were cited yesterday. Unfortunately, it seems to me that this amendment is about the transfer of risk not the sharing of risk, which is what the original proposition sought and seeks to do. Some Members would like to make the decision to save Plémont but to simply ask the National Trust to pay for it. I do not think that that is appropriate. Yesterday, the National Trust's financial position was made clear in the opening amendment debate and I can confirm this morning that that position has not changed. They are not in a financial position to be able to take such a loan. We heard yesterday that they are already in a difficult revenue position. They also confirmed from their own perspective that fundraisers and charitable organisations find it incredibly difficult to raise money to pay off loans and while that may seem strange to some Members, and comments were made yesterday when I made that point, they reiterated that to me and I believe that they are the experts in raising charitable donations and running a charity and we have to accept their position in this regard. So if we were to loan them the money, they would be left in that very difficult position of finding it difficult to raise money to pay off that loan, so much so that they stated during our talks last night that they would rather be asked to contribute a potentially larger amount now than to take a loan. Therefore I am pleased to say, as Members will see from the amendment which was placed on Members' desks and I will be asking Members to consider later in this debate, that they have agreed to pay 50 per cent of any consideration up to the value of £3 million. Alongside that, they will still raise the required just over £1 million for the demolition, removal and restoration of the headland so I do not think that any Member can doubt the National Trust's commitment and the individuals who have already pledged monies' commitment to this project. They are quite willing and have shown themselves to be prepared to share the risk with the

States and with the taxpayer at large and I thank them for that. [Approbation] I believe that it also shows that the National Trust have understood the difficult decision that Members are being asked to make. They were quite clear that they cannot provide a commitment to deal with a loan for the full amount. As was said yesterday, in their view, it would risk the National Trust for Jersey's future and that is something quite rightly they are not prepared to do. Finally, they also confirmed to me that they had indeed tried to contact the mover of this amendment but without success and therefore I ask Members to reject this amendment.

Senator S.C. Ferguson:

Just a point of clarification. In the amendment that the Chief Minister has brought to the proposition, he talks about 50 per cent of any consideration paid to the owners up to a maximum of £3 million. The way he explained it in his speech did not quite sound like that so I wonder if he would mind explaining it again, please?

Senator I.J. Gorst :

I am sorry if I was not clear. I am sure Members will appreciate that I am still not quite in top form but having said that, I think the amendment makes it quite clear. It is 50 per cent of any consideration paid to the owners up to a maximum of £3 million.

The Bailiff :

I think the question, Chief Minister, was is that £3 million or £6 million? In other words, is it £6 million total consideration of which the National Trust will pay £3 million or

Senator I.J. Gorst :

That is quite correct, Sir, yes. [9:45]

Senator S.C. Ferguson:

However, the Minister also talked about the raising £1 million to clear the site and I was not sure whether that was being deducted from their £3 million or added to it?

The Bailiff :

He said that was additional.

Deputy J.A. Martin of St. Helier :

Can I ask for a point of clarification?

The Bailiff :

Yes, do you want to raise a point of clarification? Deputy J.A. Martin:

Yes, the Chief Minister has just made a speech on this amendment and keeps referring to amendment that is lodged and we have not decided it is blind to me as far as I know it is, we have not agreed to take this amendment so every other speech you know, I wanted to remind you that you need to read out Standing Order 26(7) [Laughter] because at least we know where we are because people are just going to start referring to it.

The Bailiff :

It is always very helpful to have the assistance of Ministers.  [Laughter] Now, Senator Ferguson, have you made your speech?

Senator S.C. Ferguson:

It was a point of clarification, Sir.

The Bailiff :

Does any other Member wish to speak? Very well, I call upon Deputy Southern to reply.

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

What a very interesting day we had yesterday and what a very interesting morning we have got now. Before I start, can I say that I am completely unaware of any attempts to contact me by phone or by email, either in the last 24 hours, 48 hours or in the last fortnight since I have lodged and made public what I saw as a compromise motion? On a point unless it was, of course, the 3 numbers I did not recognise in my phone last night but by the time I got to those at 10.00 p.m., I did not think it was worth ringing back.

Deputy R.G. Le Hérissier:

On a point of clarification, did the proposer himself contact the National Trust? Deputy G.P. Southern :

No, I have not. There has been no communication between me and the National Trust whatsoever over this issue. There was, it seems, limited communication between the Chief Minister until last night and the National Trust in recent times. However, let us get to the business. My proposition says and I will just take you Members through the relevant bits: "To request the Chief Minister and the Minister for Treasury and Resources to enter into negotiations with the National Trust for Jersey in an attempt to reach agreement such that the remainder of the consideration being made subject to a loan by the States to the Trust that would be repayable over a period of 10 years and in the meantime to take no steps to  initiate the acquisition process until an agreement with the National Trust on the terms set out above has been reached." So it is a clear loan I wish to extend to them. Why do I wish to do that? Because overwhelmingly, I believe, the Island is split between those who see Plémont as the priority at the moment or an important priority at the moment on which the States should be spending money and those who say of all the things that we have to do, and given all the messages that we have had over recent years, this is not the priority that we should be spending on and there are lots of other things for the benefit of our society that if we are going to spend money, we should be spending on. Not only that but Islanders are suffering in a state of recession and they suggest that this is not the thing we should be spending money on and that is the basic issue. Is this the priority or is it not? Members must make their minds up on that. I know where I stand. I do not believe it is the priority. I believe if we could come to some sort of loan arrangement, we are talking here about a loan to a body that is able to raise £2.9 million now going up to £3 million, £4 million in a very short space of time over this particular issue. It is not saying clean out the coffers. It is not saying there are £5.5 million reserves that have got to be spent. It says fundraise. The body appears to be a very effective mechanism for fundraising. Get on with it, do it, and take this loan. The Chief Minister just spoke at length there as if he were a member of the National Trust and he said their financial position is that they cannot take a loan. They cannot take the risk of that loan. He did not say: "And what is the position of the States of Jersey? Have we decided our spending plans in the Medium-Term Financial Plan?" Yes, we have. Was this a priority in that plan? It was not. Do we have funds, money that we can dedicate to this? I was looking to be hearing from the Minister for Treasury and Resources and unfortunately he missed the bell but let us have a look where he talks about where we might get these funds from. There are 7 items in his Appendix 2 of his comments and he starts with infrastructure investment. "The

Currency Fund is available for infrastructure investments but will require repayment and a financial return which is not available with the existing revenue expenditure budgets." That does not count. "Reprioritisation of capital programme. The 2013 capital programme has only just been approved by the States and it is not therefore deemed appropriate to vary this approval." We have made those decisions on capital. "Unspent capital balances, £79.1 million." Surely we can have a bit of that. "Departments have indicated that there will only be a minor proportion of these balances that may not be required. M.T.F.P. decision made. Use of receipts from asset disposals." This is the one. At any stage it is suggesting we might be able to spend money where we choose as long as we divest ourselves of an asset somewhere along the line. Oh, if only they had suggested that when we were discussing the Medium-Term Financial Plan, there might have been some very different amendments there. "Total portfolio of £2.9 billion. However, opportunities to rationalise these assets have been considered and the disposal receipts for immediate opportunities have already been included in the Medium-Term Financial Plan and the Long-Term Capital Plan." No funding there either. "Additional returns from strategic investments." For example: "The States of Jersey Development Company holds cash balances of circa £6 million but is not in a position to return this presently in the form of increased dividends because the cash is needed to bring forward investments in sites such as the old J.C.G. (Jersey College for Girls) site." No funds there then either. Stabilisation Fund: this is joyful, this is. There is a defined purpose for the Stabilisation Fund and this is not it. Any proposal to use the stabilisation reserve to fund Plémont or any other such investment would require both an expenditure approval and a change of purpose for the fund. In any event, there is only £1 million available. While we might bemoan the fact that the National Trust is not in a position to deliver Plémont, neither are we. That is the reality. I think it was Senator Bailhache yesterday who was saying we must pay attention to the facts. The facts are we have spent our money. We have allocated our resources. We have done it all. On that list, unfortunately or fortunately, Plémont was not included. We should not be going back and saying: "Here is another thought, let us do this." We have not got the funding to do it. We have not got the mandate, I think, to do it. It matters not to me whether that is £3 million or £6 million or £8 million or £14 million. The reality is we should not be spending this money. We could be negotiating some sort of loan in order to deliver Plémont if that is what Members wish and if that is seen as the priority, then that decision is to be made. That does not exclude the possibility of 99-year leases on National Trust properties. There are more ways of raising funds than have been discussed in this debate so far. I suppose I do not really want to remind people of what we discussed yesterday because I think this might be the last time I ever come to this House with what I see as a compromise proposal. I may as well in future carry on being hung for a sheep as a lamb, I think, given the way in which this attempted compromise was dealt with yesterday but we come back to the basic issue. I have tried to find a compromise position to enable us to deliver Plémont and not spend. Members must make their minds up on that if that is what they wish to do to attempt. But the issue comes down to as Deputy Tadier said yesterday, this is politics and, in fact, it was Deputy Tadier who persuaded me to lodge this compromise because he saw, and I think some people in the Chamber also saw, that there was a danger that those people who wished to save Plémont would have this proposition defeated and he was looking for a softer compromise way in which we might be able to save Plémont and keep to our fiscal targets and strategies and not go

back and revisit decisions that we have already made and there we have it, I think. The decision is: is Plémont a priority?  Is this a possible way of delivering it or not? If you think that something can be worked out, then vote for this amendment. If you wish to hang your hats on the priority of Plémont and go to the main debate, then obviously vote against it but do not pretend that there is any easy decision to be made today because there is not. The reality is, and I am sure the Minister for Treasury and Resources will back it up, that we have decided our priorities in the Medium-Term Financial Plan and the Long-Term Capital Plan. We have allocated those. Plémont was not on there. If you wish to change your mind and say to that half of the population out there that is saying: "Do not dare spend on this" because there are other priorities and there are other spending that if you are going to you should be making far in advance of this particular issue. However, if it is your priority, then go to that vote. I maintain the proposition and call for the appel.

The Bailiff :

Very well. The matter before the Assembly is the second amendment lodged by Deputy Southern . The appel has been called for. I invite Members to return to their seats and the Greffier will open the voting.

[10:00]

2. Plémont Holiday Village - acquisition by the public and sale to the National Trust for Jersey (P.90/2012) - amendment (P.90/2012 Amd.)

The Bailiff :

Very well. Then we come next to the amendment lodged by Deputy Baudains and I will ask the Greffier to read the amendment.

The Deputy Greffier of the States:

1. Page 2, paragraph (a) - After the words "Appendix 1 to the Report" insert the words "provided that the cost of the acquisition does not exceed £8 million." 2. Page 2, paragraph (b) - For the words "at a fair and proper price to be agreed by the Minister for Treasury and Resources" substitute the words "for a sum not exceeding £8 million." 3. Page 2, paragraph (c) Delete paragraph (c) and renumber remaining paragraphs accordingly.

1. Deputy G.C.L. Baudains of St. Clement :

We have had an interesting debate so far and one wonders where one should start on this. I must say if I could go back to the opening speech on the main proposition yesterday, I was disappointed by that opening speech and I was hoping for more factual information than I received. I seem to recall a certain vagueness and innuendo but a lack of facts. But at least the rapporteur, in my view, clarified the likely cost of the purchase of Plémont because it is no longer the £7.8 million in the proposition. It is around £4 million, roughly the same as the Minister for Treasury and Resources asserts in his comments to the proposition. Senator Ozouf , the Minister for Treasury and Resources, believes it could be between £3.5 million and £5.5 million but I notice Senator Bailhache went a little further. If I remember correctly, he said it could perhaps be £6 million or thereabouts and he went a little further, for which I am grateful, when he admitted that the cost of compulsory purchase was probably unknown. Well, I think I can help both the rapporteur and the Minister for Treasury and Resources. I recall the figure that Senator Bailhache referred to as "laughable". In my view, it so happens that that figure is fairly accurate. I believe it is the Senator's estimate that is laughable, which leaves me wondering what is going on here. Is it perhaps a plan to get the proposition through the States and then years down the road after all the legal battles have finished, we end up probably paying a whole lot more than we had anticipated by which time people just shrug their shoulders and say: "Oh, well, we made a mistake all that time back." I wonder how the estimate that we were given was arrived at. I have my own calculations which I would point out are not the developer's and I do have a limited experience in this area. The site has planning permission for 28 homes. They are going to sell for just under £1 million each. It is a prime position; they are 4 and 5-bedroom houses so the site value alone for each house is going to be in the order of £250,000, maybe a shade more, meaning that just the area that the houses sit on is worth twice Senator Bailhache 's estimate. These houses are going to cost around £300,000 to build, meaning that the profit per house will be somewhere under £500,000. That is giving us £12 million to £13 million total. Add to that the land value and we are heading towards £20 million. Demolishing the hotel, which has been scheduled to cost millions of pounds, will not cost as much as some people might think because a plant will be on site and aggregate can be recycled for the building of the new houses once the process of building starts. Demolishing the existing structures without building will be expensive. You have already got the equipment on site, you are going to reuse the materials. The concrete will be used for aggregate; much cheaper. So then we add in the legal fees to the compulsory purchase and then I ask myself what will the cost be? Whatever it is, it will not be £4 million. It will be more than 3 times that. That is why, as Members can see from the report accompanying my amendment, I was flabbergasted when I first read Projet 90/2012. I never imagined that the Council of Ministers could bring a proposition to this Assembly asking to commit to purchase something running into millions of pounds, not only not knowing the price but compounding that by offering what is essentially an open cheque. I have to say that if a Back-Bencher had done this, I am sure the Council of Ministers would tear them apart. [Approbation] I am also rather surprised to see that the proposition is endorsed by the Minister for Treasury and Resources. He has always kept a tight hold on the public purse for which I am grateful, yet here he is happily agreeing to spend an unknown amount of millions at a time when the world economy, including our own, is in dangerous territory. I can only assume the Minister for Treasury and Resources has been pressured and if that is so, I am afraid I am not impressed. At this point, I would like to make it clear what my amendment is not about. It is not

about whether we agree or not to purchase Plémont. That is for the main debate. My amendment is purely about whether or not it is appropriate for us, as custodians of the public purse, to commit to buying something at an unknown price. We are not talking here about a few hundred pounds or even a few thousand pounds. We are talking several millions and in that event we really need to be, in my view, more responsible. I spoke of open cheques and unknown prices so I think it is appropriate that I explain briefly how compulsory purchase works. We did touch on it yesterday. I certainly did not realise the full implications until the Greffier pointed them out to me for which I am grateful and I have to say I think it is only right that the amount of work that the Greffier does for Members often goes unrecognised and too often taken for granted. I am very grateful. [Approbation] First of all, compulsory purchase would only apply if we were unable to negotiate a price with the owner, which is obvious. The main proposition talks about £7.8 million being the upper end of valuation on page 9 so presumably we would be prepared to pay up to that and compulsory purchase would therefore only be used if the owner believed his property was worth more in which case we would start the process. First of all you serve a first notice on the owner. Then he has 28 days to say what price he is prepared to accept. If we agree, then the process is put on hold and the contract is passed in the usual way. However, if the owner does not reply or names a price we are not prepared to pay, we serve a second notice which sets out the price that we would prefer to pay and gives the owner 8 days' notice that if the offer is not accepted the States will apply for an order to the court to acquire the land by compulsory purchase. At this point, the owner could concede and accept the offer but that does not usually happen. Let us face it. An owner is not going to go to the expense, delay and hassle of compulsory purchase without good reason to believe that his land is worth more than is being offered. After 8 days if the owner has not accepted our offer, we serve a third notice giving the court date for application to acquire the land. We then apply to the court to acquire the land that in turn makes an order declaring it public land and from that moment onward, the process is out of our hands. On that same day, we have to pay 75 per cent of an offer price to the owner and the court establishes a board of arbitrators - independent valuers- who then make a determination of the land value. [Interruption] No, I think the Senator will have time to answer later. If it determines the land is worth more than the 75 per cent deposit made by the States, we are legally obliged to pay the owner whatever the board determines the land is worth plus interest. I cannot overemphasise how important this is because once the compulsory purchase process is started, we cannot pull out. If the valuation ends up more than we would have hoped, I am afraid that is tough. We are legally obliged to pay whatever price the board arrives at because the land is already ours. The court gives us the land and then we pay the price afterwards. So what could happen? Unable to agree a price with the landowner, we invoke compulsory purchase. We tell him we want to acquire the land and ask what he will accept and he says £14 million perhaps, as he has already. We refuse, we offer £7.8 million to £8 million as we have suggested. He does not accept so we go through the process. Having made the application, the court transfers ownership of the land as I have said, sets up the board, and we make the advance payment of £6 million, that is 75 per cent of the £8 million that we were originally suggesting. The board then determines the value. We do not know what this will be but, as I said, we are bound in law to pay it. If, for argument's sake, the board arrives at a figure of £5 million, we lost £1 million because the owner is not obliged to make any refund or if the valuation is, say, £8 million, the States must pay the owner the extra £2 million plus interest. If it is, say, £14 million or £16 million, the States must pay the owner the extra £8 million or £10 million plus interest. I hope Members now appreciate the risks involved with compulsory purchase. As I said, the owner is not going to risk considerable delay, hassle and expense of the compulsory purchase process unless he truly believes his land will be valued a fair bit above the States offer. Unfortunately, as is usual with many decisions that come before this Assembly, it is not straightforward. If it were, it probably would not be coming to us in the first place. The conundrum is this. Without compulsory purchase, there is a risk an unwilling vendor would simply name an unrealistic price and we would never reach an

agreement. I appreciate that but, on the other hand, the process means that we are obliged to pay, as I have said, whatever price the arbiters come up with. Frankly, there has been misleading information over the value of the land. The National Trust and Senator Bailhache have suggested that it is only worth perhaps £3 million or £4 million. If, in fact, that is correct, I am quite sure the owner would be quite willing to accept an offer of up to £8 million and the question of compulsory purchase would not arise. I can only assume that by insisting compulsory purchase is necessary, somebody is playing games here because on the one hand suggesting that the value is £3 million to £4 million while knowing that in reality compulsory purchase is necessary because the cost will be nearer the owner's valuation or even more, I am struggling to understand what is happening here. Of course, those of us who have been around a while will recall the disastrous compulsory purchase of Lesquende. How long did that take to complete? I do not remember, was it 15 or 20 years? Something like that. I believe that if Plémont went to compulsory purchase, it may not take that long but it will certainly take years and cost a fortune in legal fees. Do we really want to go there again? The first legal argument over Plémont would be whether compulsory purchase was a legal vehicle to use in the first place, never mind a moral one. The truth is, as Senator Bailhache said yesterday quite correctly, the opportunity to purchase the site really has gone. We should have done that, in my view, some time ago. The ideal time, in my view, would have been immediately after the owner had made a planning application when there was uncertainty whether he would get a planning consent or not and say: "Look, we are going to offer you this amount." It was not done. So I urge Members to abandon the idea of compulsory purchase unless, of course, you are willing to pay £14 million or more plus legal fees of both sides. Another advantage of my amendment is that it sets a maximum price. By doing so, it sends a signal to the owner, that is the maximum we are prepared to pay and if he is minded to sell, he knows he has to deal at or below that price. On the other hand, if he is an unwilling seller and we invoke compulsory purchase, all I can say is hang on to your hats when you hear the board's valuation. It could be as high as £16 million. I assure Members you can forget that figure of £4 million which I have to say is an insult to our

intelligence. If you think compulsory purchase is too risky, and let us not forget it is only for one- third of the site because if we do not purchase we get two-thirds of it for free anyway, then please support my amendment. I propose the amendment.

[10:15]

The Bailiff :

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

2. Connétable D.W. Mezbourian of St. Lawrence :

We have just heard Deputy Baudains say that the first legal argument would be is compulsory purchase a legal vehicle to use' and I wonder if I am able to ask the Solicitor General to advise the Assembly on the comments on page 10 of the actual proposition. I know we are debating an amendment but it is in connection with what Deputy Baudains said. The comments on page 10 of the proposition are and it is towards the bottom of the page: "The Law Officers of the Crown have confirmed that compulsory purchase is open to the States in this case." I will just repeat what Deputy Baudains said in his argument for his amendment: that the first legal argument would be is compulsory purchase a legal vehicle to use and I think it is very important that the Assembly is advised by the Solicitor General on this matter.

Mr. H. Sharp Q.C., H.M. Solicitor General:

While dealing with that question which arises from the comments in the proposition, can I also at the same time because it is related, deal with the comments in this Love Plémont but Don't Buy It handbook, the second and third page which seem to me to contain an assertion that the use of the compulsory purchase powers would be ultra vires on the facts of this case, so I would like to deal with them together because it is effectively the same issue. The position is this. It is, in short, open to the States to use their powers of compulsory purchase in this case. I firmly reject the suggestion and frankly do not see the merit in the arguments advanced in the Love Plémont booklet that in so acting the States would be ultra vires and I say that for these reasons. The key issue here is whether or not the States decision is in the public interest and it is for you, the States Members, to decide what is in the public interest and the courts, both the High Court, the Supreme Court in England and, indeed, the European Court, respect the fact that it is you who decides what is in the public interest and they will not interfere with your view as to what is in the public interest unless it is manifestly without reasonable foundation. So you have to look at the context of this case. Article 119 of the Planning Law permits the States to acquire the land if the purpose of the acquisition is one of the purposes set out in Article 2 of the law. Those purposes include the improvement of Jersey's natural beauty and in particular, to ensure that the coast of Jersey is kept in its natural state. I invite Members to look very carefully at that picture on the wall. I have to say as a lawyer, if I was asked to argue whether or not that picture or the realisation of it was in the public interest or whether that was well within the margin of appreciation that is afforded to you in deciding what is in the public interest, I would feel on very firm ground indeed. I remind myself that the Inspector for the purposes of the planning application described this area as one of the most isolated and sensitive areas in the Green Zone and, indeed, the European Court of Human Rights recognises that environmental aims or protection of the environment falls well within the sort of categories of public interest that the States can look to and take action about. So the first and primary key issue is what is in the public interest. If the States decide to do this, then, as I say, as a lawyer, I would feel on very firm ground that the courts would respect your decision. The other thing to bear in mind, I suppose, is that the action to be taken must be proportionate. That is to say, a fair balance must be struck between the interests of the general community and the requirements of the protection of the individual's rights, that is to say the landowner in this case. It is important to note that we are not talking about the removal of someone from his or her home. What we are talking about is a commercial landowner who is seeking to develop the land for profit and the community's interest, if you feel it is so, in returning that land to its natural state so as to enhance the northern coast can, in my view, be properly balanced against the developer's interest by the payment of compensation which ultimately the landowner's right to is properly protected by the statutory procedure which requires that an independent board will assess the right level of compensation if there cannot be agreement. Therefore I do not, I am afraid, accept what is written in this booklet which is rather short on legal analysis and indeed authority. I do not accept at all that if you were to act and use your compulsory powers, you would be acting ultra vires. That is not to say that someone will not be paid to stand up and say these things in a courtroom. I have no

control over that. All I can say is that I do not see the merit in what is being said. The Bailiff :

Were you rising to speak?

The Connétable of St. Lawrence :

No, Sir, I wanted clarification and I thank the Solicitor General.

Deputy M.R. Higgins:

Sorry, it is not a speech, Sir, it is about the Solicitor General's speech. I believe that he crossed the boundary between legal advice and making a pitch on this particular proposal. The question that was asked was about the legal process of compulsory purchase. I was going to ask a follow-up question to ask that very question. He volunteered the information, he came forward with that as the first one rather than the compulsory purchase. I believe he has put the case for Law Officers not being present in the States.

Senator L.J. Farnham : I would like clear advice. The Bailiff :

Deputy Higgins, I have to say from the Chair that I cannot accept that. The question from the Connétable of St. Lawrence was whether the compulsory purchase, if used, could be challenged and the Solicitor General answered that very point.

Deputy M. Tadier of St. Brelade :

Can I ask a question? The Solicitor General said that obviously there is an area of subjectivity and it could be challenged, for example, and upheld I think is where we are going, if a decision were manifestly unfair. So, for example, if the States decided in the public interest to buy all the property in Jersey and then return it to, I do not know, redistribute it in that way, that could possibly be challenged. Does the Solicitor General agree that a different lawyer acting for the client could make a case that subjectively speaking, this sets a dangerous precedent because any property on the north coast, which I think is what the developer was saying yesterday, could therefore be compulsorily purchased and that would also be a test case for public interest versus the human rights of the individual property owner which is a qualified right as well?

The Solicitor General:

Human rights principles are applied to the facts of the particular case before the court and each case will be considered in its own facts and I repeat that the courts will show great respect to what this Assembly thinks is in the public interest and it seems me another lawyer challenging whatever decision is taken, if there is a decision taken, would have to show that your expressed view was manifestly without foundation or somehow irrational or well beyond the wide margin of appreciation that is afforded to this States Assembly and other Parliaments around the world.

Connétable P.J. Rondel of St. John :

Could I ask a question of the Solicitor General please? You have given us, I believe it is your opinion, is it not Solicitor General? It is not it is an opinion of where we would be. It is not hard and fast.

The Solicitor General:

I think I have said 2 things. Firstly, I have offered you my view of how I would feel if I were presenting the position in a courtroom if you took a decision to exercise a compulsory purchase power and I have expressed a view as to where I see the legal merits of the case. That is my view, that is right, but what is not my view and what is simply a matter of law which is not subject to debate is that there is a wide margin of appreciation that the courts will afford the States when it comes to consider what you think is in the public interest. The court is not going to rush in to substitute its own view unless, as I say, something has gone manifestly wrong. That is not my view; that is settled law.

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

Can I also ask a question of the Solicitor General? It is really just to, I think, reiterate or possibly pick up on his comments that he made to Members, I believe on Monday, which is in relation to the process of compulsory purchase. That if an amount has been agreed upon as a result of the board process, that after that it is the only could he clarify on the process that happens that it can basically only go to judicial review? Given the comment that was made earlier, can I also thank him for bringing to my attention a clarification on a matter of what I would consider legality and the fact it was erroneous in the stuff that was circulated to Members. I think it was right for him to bring it to our attention.

The Solicitor General:

I am sorry, can I just seek clarification? Am I being invited now to describe the appeal or legal procedure that may follow? Can I just seek clarification on that?

Deputy J.A.N. Le Fondré:

I think it was the points on which an appeal could arise and if it helps I believe The Bailiff :

The question, Deputy , is if the States do not like the sum awarded by the arbitrators, is there anything they can do about it?

Deputy J.A.N. Le Fondré:

I think it was if the other party did not like yes, if any party did not like the sum. The Bailiff :

Or if the other party, alright.

The Solicitor General:

Yes, there is a very limited right of appeal. It is a statutory right of appeal to the Royal Court but it is not a new hearing. You do not get to revisit the evidence. The Royal Court will not intervene if, for example, a figure of £4 million is agreed by the board and you think it should have been £4.3 million or it should have been £3.8 million. The Royal Court is only going to intervene if something has gone badly wrong, for example, that the board reached a view that there was simply no evidence to reach the decision that the board, in fact, reached. So it is a very limited right of appeal and it is a final appeal because in the statutory process, the law is clear that once the Royal Court has heard that appeal, there is no further appeal to the Court of Appeal or the Privy Council. I should apologise to States Members. When I spoke at Monday's meeting, I did mention the possibility of judicial review and while that is, in theory, still a prospect, I have thought about it some more and it seems to me that, in fact, there really would not be a judicial review because the Royal Court would refuse such an application because of the existence of the statutory right of appeal and where there is a statutory right of appeal, the courts tend to tell the litigants that they must use that appeal. So although in principle it is possible, in reality it is not going to happen. You will have to go through the statutory appeal mechanism. As I say, it is a very limited appeal mechanism and it is final. You do not go further up to the Court of Appeal and Privy Council.

Deputy J.A. Martin:

I did have a point of clarification from the Solicitor General. When answering the first question, he stood here as a lawyer and looking at that picture he could in law say that they are protecting Jersey's coastline but would he not agree, looking at this picture, and it is a picture we do not have the developer's picture, the houses are that far back we could still be looking at the protection of Jersey's coastline. I am only putting would another lawyer for the developer not put that because either development protects. You get the same picture. I am just asking if the other case, that would not pass the public interest test.

[10:30]

The Solicitor General:

Yes, thank you for that question. That was raised with me yesterday morning and I gave it some thought overnight. I think, if I may, I would like to start with what the Inspector said for the purposes of the planning application. The Planning Inspector noted that the locality is not just in the green zone but is in one of the zone's most isolated and sensitive areas. He then said this: "I have reached an overall finely-balanced conclusion only after considerable thought. Taking everything together into account, my advice to the Minister is that, as enabling development to remove the existing complex and repair the escarpment landscape, the present proposals just overcome the objections and could, in principle, be adjusted." So while I recognise, of course, that the proposed development if it took place would be an improvement, it is right to say that on the basis of the inspector's conclusions it may be something of an improvement but you are still, on one view, swapping what is there for a housing development in a very sensitive area. If I may say, the inspector's conclusions are not full of enthusiasm for what is proposed to replace the existing structure and so, in my view, you are still within that broad band of what is in the public interest. Indeed, there is European case law which I looked at yesterday that stated that the availability of an alternative means of achieving the aim does not of itself render the act of compulsory purchase unjustified, so long as the method chosen remains within the States margin of appreciation. In my view, you are still within the margin of appreciation.

3. Senator P.M. Bailhache :

I am very grateful to the Solicitor General for that very clear explanation of the principles governing compulsory purchase and I think that we may have to come back to him because Deputy Baudains has turned himself into an expert on the compulsory purchase procedure, but I am afraid that he needs further instruction and I will come to that later on. When this amendment was lodged, some Members may have been attracted by the notion that a cap should be put on the purchase price of Plémont. What Deputy Baudains said in his report was: "It is clear that should the States decide it wishes to purchase the site, there must be a limit to the amount of taxpayers' money used. Such a limit would not only be a protection of our finances in these turbulent financial times, but would indicate to the owner that this would not be the usual name your price and we will pay it' that has been the byword for States purchases for so many years." Deputy Baudains named the limit as £8 million. But his amendment also removes the ability to proceed to compulsory purchase. Life has moved on since Deputy Baudains' amendment was lodged and, because Deputy Baudains is usually a practical and pragmatic Member of the States, I am surprised that he has not withdrawn his amendment. If the States adopt the Chief Minister's proposition, there will be a negotiation with the owner. We have told the owner what we think is a fair price. We have put into the public domain the valuation figure of £4 million. What we have not said is what our negotiating limit is and to disclose your negotiating limit to the other party is just not sensible. If you are negotiating to buy a house, you make an offer that you hope will be accepted. From the owner's perspective, he will want to force you to increase your offer, but he does not know how far you will go before you walk away. If the owner knows your limit, he will compel you to go to that limit. Why should the States pay £8 million to the owner when we have been advised professionally that a fair value is £4 million? To tell the owner what your negotiating limit is is rather like poker players dealing out the cards, one player then showing the other player his cards and then saying: "Oh, what are we going to bid? Let us play." It is just not a sensible procedure. Deputy Baudains suggested that our limit in negotiation was £7.8 million; that is just

not right and that is not in the Chief Minister's report and it is not what I said when I opened this debate. £7.8 million was the upper limit of the valuation that the Chief Minister had at that stage received; it has got nothing to do with what the negotiators might be prepared to negotiate. That is why compulsory purchase and the authority to move to compulsory purchase is vital. Between reasonable people prepared to negotiate a sensible outcome it is usually possible to reach agreement. Attitudes may change if the Chief Minister's proposition is adopted but I must say that at the moment the prospects for a negotiated settlement do not seem right. I have done my best to engage with the owner and, as I said in opening, I have written to the owner on 3 occasions. The

last letter that I received from the owner indicated that he wanted to wait and see what the outcome of the planning inquiry was. Well, we now know the outcome of the planning inquiry, we know the Minister's decision on the planning application, but the owner at the moment is not prepared to negotiate. The owner's agent has not given much cause for hope either. He has, as I have said, misrepresented a large number of crucial facts; he has consistently talked about a figure of £14 million; at one stage saying it was worth £14 million with or without planning permission, which seems to me an extraordinary proposition, and, more recently, has talked about £16 million. I suggested at the public meeting on 5th January that that figure was in the realms of fantasy, and I maintain that view on the basis of the professional advice that the Chief Minister has received. £14 million - and it is important to nail this so that Members understand how the owner has arrived at that figure - was a figure based upon the price paid by the States for the Bel Tabarin site. A price of £800,000 was divided by the number of square metres to arrive at a price per square metre, and that figure was then multiplied by the number of square metres at Plémont. No professional valuer of any competence would adopt that approach. The valuer instructed by the Property Services Department told us on Monday that he would not adopt that approach. The value of land depends upon what you are permitted to do with it. If you can build 28 houses, it is generally worth less than if you can build 36 houses or more than 100 houses. The owner's agent then changed tack and, indeed, adopted a very similar approach to the one that Deputy Baudains adopted in his address this morning, and gave another justification for the figure of £14 million. He said that the houses would sell for an average of £900,000, Deputy Baudains has increased that to £1 million, and that the site value for each was £300,000, Deputy Baudains brings that down to £250,000. But whether Deputy Baudains is right or whether the owner's agent is right, that seems to me to be a spectacular own goal. I do not accept these figures, but 28 times £300,000 is £8.4 million. If you deduct £1.1 million for removing the ruins with the asbestos and another £1 million for the planning obligations that the Minister has imposed, you arrive at £6.3 million which is, ironically, quite close to the valuation which the owner denies having received. What the owner's agent has done, and what Deputy Baudains has done too, is to add in the developer's profit, another £8 million, to the value of the land. But developer's profit has got nothing to do with the value of the land, either in law or in practice or in logic. Developer's profit is something that the developer receives in exchange for all the risks associated with the development that he undertakes: the risk that the site conditions will be different or that building costs will increase or that the houses will not sell; a material consideration at the moment bearing in mind the number of houses of this kind which are on the market at the present. Suppose that Plémont Estates Limited wanted to sell the land to Dandara - and rumour has it that the land is being marketed at the moment - do Members think that Plémont Estates would be able to extract a price for the land that would include the developer's profit? Of course not. Dandara, or any other purchaser, would want that for themselves in exchange for all the risks associated with the development. We are concerned, and any board of arbitrators would be concerned, with the value of the land and not with the developer's profit, which has nothing to do with the land value. That is the advice, very clearly, of our professional valuer and, if I may say so, it is obviously right. Nobody likes compulsory purchase and a number of Members have told me that they are unhappy about the prospect of moving to compulsory purchase, and it is true that in Jersey it is rarely used here. It is very frequently used in the United Kingdom. I must say that I find compulsory purchase less offensive in this context than in the context of a kind of case where a land owner has a garden and the highway authority wants to widen the road for reasons of safety and it is necessary to take away a

part of that front garden. That, I think, is offensive and that is something that needs to be .. Deputy Vallois is looking very puzzled, but it seems to me that it is offensive, perhaps it does not for her, but it is offensive and it is something that an Assembly would have to think about very carefully.

[10:45]

But this situation is different: the power to acquire land by compulsory purchase under the Planning and Building Law was put in for precisely this contingency. The contingency is that there is a wish to acquire a headland of incredible beauty in order to keep the coast of the Island in its natural state, and I quote from the law; and there is a risk that the owner will hold the States over a barrel and not be reasonable when it comes to agreeing a fair price. How great is that risk? On present evidence, it seems to me quite high. I have been, frankly, taken aback at the vehemence which the owner has demonstrated in promoting his opposition: full-page advertisements in the Jersey Evening Post, inviting Members to go to the public meeting to oppose the Chief Minister's proposition when it was to be explained, numbers of staff at that meeting handing out leaflets. It is almost as if the owner is determined, come hell or high water, to build on the headland at Plémont. The owner's agent was quoted last week on Friday as saying that his client was immensely frustrated, and on

Saturday he was quoted as saying that he is not going to accept, 4, 5, 6, 7 or £8 million. That is why it is necessary, if the Assembly wishes to acquire Plémont, to authorise compulsory purchase powers. Without them, the wish of the States to acquire at a reasonable price will be thwarted. This seems to me to be a one-off situation. Occasions like this happen very rarely; it is a once-in- several-lifetimes opportunity to buy the headland and compulsory purchase is, regrettably, the only way in which the owner will be brought to the negotiating table. If this amendment is accepted, there seems to me to be 2 possible outcomes: one is that the housing development at Plémont will take place and this unspoilt part of our north coast will be destroyed for ever; the other is that the States will be driven to pay far more for Plémont than it is, in fact, worth. Neither outcome is satisfactory. The owners bought this land in the Green Zone as a speculative investment; they hope to get development permission to build a larger number of houses. When you speculate, you win some and you lose some. I do not see it as part of our function as a States Assembly to ensure that this speculative investment pays off or, as Deputy Baudains very accurately put it in his report, that the speculator can name his price and we pay it. If Members want to acquire Plémont at a reasonable cost, this amendment should be rejected. [Approbation]

Deputy J.H. Young of St. Brelade :

Sir, could I ask for clarification from the Solicitor General on a point that the last speaker made? The last speaker said that developer's profit would not be allowed within a compulsory purchase and I would like to know if the Solicitor General could advise whether there is a risk that the developer will contest that a profit that he is deprived of and not made should be paid for in a compulsory purchase price. Could he clear that point up, please?

The Solicitor General:

Yes. The developer's hope to make a profit is not a relevant consideration. The land is to be valued on the basis of a hypothetical open-market sale by a willing seller on the date of vesting and the value of the land is assessed only by reference to all its attributes, including, of course, any planning permission that attaches to it. But I repeat: a developer's hope of profits is not relevant.

Deputy S. Power of St. Brelade :

This is a question for ..

The Bailiff :

No, I thought I had seen you indicating you wished to speak.

Deputy S. Power:

No, Sir, I wanted to ask a question before Senator Bailhache spoke, but you did not see my light. The Bailiff :

Oh, I see. So you want to ask a question of the Solicitor General?

Deputy S. Power: Yes, please.

The Bailiff :

Very well. Deputy S. Power:

It is for clarification from the Solicitor General. The Solicitor General quoted the Planning Law, Article 2, where it says: "The purpose of the law is to preserve, protect and improve Jersey's natural beauty, natural resources and general amenities, its characters and its physical and natural environments." In the proposition as it stands, one of the conditions that the proposition makes states that: "The basis of the application for compulsory purchase would be made under Article 2(2)(d), ensuring that he coast of Jersey is kept in its natural state." The issue I have and the clarification I need from the Solicitor General is this: that the definition of "coast" under Jersey Planning Law is not defined. The site, as such, is defined as "interior agricultural land" and, as such, is included in the countryside character appraisal. The Solicitor General will be aware that none of the site borders the sea and the site as it stands is not in its natural state.

The Bailiff :

Are you coming to your question, Deputy ? Deputy S. Power:

Yes, Sir, I am. I am trying to put my question in context, Sir, and it is legal stuff that I am not brilliant at. The inspector's report also found in his paragraph 191 that the site occupies former agricultural land rather than the natural uncultivated escarpment. So my question to the Solicitor General: would he not agree that if this were to go to a court of law, in Jersey or elsewhere, that this would be a serious point in terms of the interpretation of Jersey's Planning Law?

Connétable D.J. Murphy of Grouville :

Sir, can I just add on to that?

The Bailiff :

No. Let just have the question and answer first, please, Connétable . The Solicitor General:

The question that has just been put to me is in fact a recital of arguments that can be found at page 4 of the Love Plémont guide, and it is really towards the bottom of those legal arguments. I have to respectfully disagree with what has just been said. Article 2 is quite clear that the purpose of the Planning Law is to conserve, protect and improve Jersey's natural beauty. Again, I would express this view as a lawyer if I was asked to make the point in court, but if one looks at that picture, it is very difficult to suggest that if that was achieved you would not be improving Jersey's natural beauty. I regard the argument about the coast to be highly technical and not, in my view as a lawyer, of merit. If one again looks at the picture, it is very difficult to say that you are not considering the coast or the coastline. But if I am somehow wrong about that, then I have no doubt at all that the overarching purpose of Article 2 renders this argument otiose.

The Connétable of Grouville :

This is following on for the Solicitor General. This land at the moment has a hotel user or a commercial user on it, I believe, even though planning permission has been given for development. Therefore, one would assume that with a commercial user there, the arbitrations will surely take into account the fact it is there to be used for profit, therefore, I would just say to you that the use of the land is for profit, whether it be for development or, in fact, for the original use, which was, of course, hoteling.

The Solicitor General:

If I have misunderstood the question, please tell me, but the fact remains that when the board come to assess the value of this land, they will look at the land and decide hypothetically if there was a

willing seller, what would that willing seller get for it on the open market, having regard to all the attributes of the land. I quite accept that if it has got planning permission, that may be a factor in the price, but the sort of hopes and aspirations of profits at the end of the day are far removed from what is relevant to the market value.

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

I again have been very seduced by Deputy Baudains' proposition in the sense, some of us were certainly initially seduced by Deputy Southern 's, and it follows on the lines that this is perhaps a way of rescuing us from ourselves, it now seems. I think one of the big issues that has arisen - and it was manifest in Senator Bailhache 's speech, maybe unconsciously - is people are asking the question: "Have we exhausted all possibilities?" I was very surprised at the hard line Senator Bailhache took; it may well have been a reflection of his exasperation with the process to date, but I am not sure a letter unanswered from Senator Bailhache to the developer - admittedly preceded perhaps by others - amounts to an exhaustive look at all the procedures. I am very surprised to hear that from the highly-esteemed Senator because when he was in the judiciary, of course, he was very identified with the introduction of mediation as an alternative, the kind of conflict resolution and confrontational styles that we sometimes get when cases escalate that far, and I will be asking the Solicitor General about this issue. I would have thought that is an area where we need to be totally assured that all options have been fully explored, putting aside the inevitable emotion you get, putting aside all the theatrics you get around these issues and all the postures that people adopt at various stages and which can sometimes be dealt with and sometimes cannot be because they lead to intransigence. I would have thought we need much more reassurance in that area. The other issue that has worried me, and I think it was mentioned by Deputy Baudains is - as somebody who wants this to go ahead but quite frankly is struggling, as I have said a few times - this issue of where the Minister for Treasury and Resources is. Some of us have been reluctant conscripts in his call for cutbacks and austerity and we have been, perhaps reluctantly, carried along in the vanguard of his campaign, but here he is saying that: "If the House instructs me, I will have to find the money." To the public, this is unbelievable, the cognitive dissonance that they are experiencing around this. Are we or are we not in a cut-back era, in an era of austerity? I think reasonable people will say, other than the people who are absolutely intransigent on either side of the argument, people who are looking for compromises and that is what I think we have been trying to but it is very difficult in a room with 51 people in a very public setting to deal with all the nuances of compromises, and seeking compromise. They are saying: "Well, what other financial models are there?" I thought, for example, Senator Bailhache made an excellent speech in terms of pound-for-pound funding. Unfortunately, that was not the proposition in front of us, but he did make quite a good case for that. It just happens that we are not looking at that. But that again would have been agreeable and, of course, in a sense, it is reflected in the Chief Minister's very last-minute amendment to an amendment. I think people want to see that and, as I said at the very early stage, that is what has been missing: a review of the different financial options. I cannot believe, unless he is doing it through gritted teeth - which I suspect he is - that the Minister for Treasury and Resources is happy with a proposition which focuses simply on one approach, and it

is essentially the nuclear option. [11:00]

I would have thought he would have wanted a more graduated approach, he would have wanted the options his civil servants would have asked for the options to be laid out so that we could have discussed them, or Scrutiny could have examined them, or whatever, rather than saying: "Look, we have reached this point, we have got to go for the nuclear option, we obviously hope we will never [as was the case with nuclear options] have to exercise it, but it will concentrate the mind." I do find that incredibly worrying. So to sum up, I would have wanted - and this is where I have a lot of sympathy with Deputy Baudains- a proper review of the financial options; I would have wanted evidence that there was a real dedication to something like mediation, and we know by its very nature it is an up and down process, that is the way these things work. Thirdly, why I was seduced, although I understand there are technical objections, and I will wait to hear from another speaker on this, the public is absolutely horrified at the open-ended nature of the obligation into which we may well be entering. A lot of people want this to work, but they are very horrified. On that basis, I wonder if I could ask 2 questions of the Solicitor General: if an appellant arguing against compulsory purchase were to say: "There is evidence that not all approaches have been exhaustively dealt with" would they have serious grounds for appeal? Secondly, could an appellant say: "Well, okay, this can be tested on the facts of the case, if I was to bring forward other comparable situations where decisions have gone differently than this decision has gone"?

The Solicitor General:

No. I believe that I may have already answered the first question. The courts are quite clear that so long as the States are acting within their margin of appreciation and what they are doing is proportionate, they do not have to show that they have exhausted all other avenues. In respect of the second question, it really comes back to the same point: unless the appellant can show that these other cases somehow demonstrate that the States decision in this case is manifestly without a reasonable foundation, then other cases, it seems to me, are of little or no relevance.

Deputy M.R. Higgins of St. Helier :

Sir, can I just follow up on that? Could the Solicitor General just explain for us all his versions of proportionality, what he believes the court will take into account in proportionality? Would they not consider, for example, that we have looked at the other alternatives before we take, as has been said, the nuclear option?

The Solicitor General:

I can simply repeat what I hoped I had said a little earlier: that proportionality requires there to be a fair balance to be struck between what is in the interests of the community and what is in the interests of the individual whose rights are being affected. In the context of compulsory purchase, the key factor in striking that balance is normally whether or not a fair price or a reasonable price will be paid in compensation for the interference with the rights. As I say, if there are alternative methods, they may be a factor, but it is not necessary to exhaust all other avenues. On the facts of this case at the moment, as I presently understand it, there is no attempt to negotiate; what there is in this booklet is a series of very bold statements that appear to suggest there is very little room for any compromise at all. So on the face of this document, the Love Plémont document, it is difficult to see, as a lawyer at least, how the States can be criticised for going down this route.

The Bailiff :

Is there a hearing aid or something going off? Is this coming from the gallery? Has somebody got a radio on? If you would not mind turning it off, Madam, because it is interfering with Members here. Very well. Then we come next to .. are you wanting to speak or ask a question?

Deputy J.H. Young:

I would like to speak, Sir.

The Bailiff :

Yes. I will put you on the list, Deputy , but I have seen next the Connétable of St. Mary .

5. Connétable J. Gallichan of St. Mary :

I am glad to be able to get my tuppence worth in early. Firstly, I would like to thank the Solicitor General; he has given, as usual, a very good clarification of the legality of compulsory purchase. He has opened up the issue of defining the public interest, and I think I have got something to say on how I will be weighing-up my interpretation of that, but it is probably better, I think, held off for the main debate. But I have to say that in many respects, like Senator Bailhache , I really deplore the use of compulsory purchase in all but a very narrow group of circumstances and, on the basis of that, Deputy Baudains' amendment to me is very attractive. However, I have got to look behind why I find it attractive, and it is the same thing that I said yesterday, I think: the Chief Minister's original proposition, whether or not we then take the third amendment and look at it slightly differently later on, is a very important decision, it is a very difficult decision for us all to make. On that basis, I must make a comment on something that Senator Bailhache said, that he was astounded by the vehemence of the property owner and almost, I felt, at the audacity to call a meeting and invite States Members to hear what he had to say. I have been lobbied relentlessly, as has I am sure 50 other Members of this Assembly, by members of the National Trust, who are here today. I have received  lots  of cards,  I  have seen every time I  have driven  home enormous hoardings and absolutely, that is perfectly right, I do not have a problem with that at all, but neither do I have a problem with the other side, as it were, giving me their information, some of which has been dealt with already in discussions in legal arguments here today, but unless I had had that given to me, I would not know what I was looking at. I just think it is astounding. I said to the Chief Minister last week: "I am looking forward to your public meeting" and he said: "Oh, are you coming to that?" and I said: "Absolutely. I want to hear both sides of the story." His response to me was: "Well, you are not going to get them from me, I am only going to tell you about my proposition." Fine, absolutely fine, but let us not knock the "greedy developer" for his .. and I am sorry for anybody listening, there were inverted commas around that phrase.  [Laughter] It probably does not come over very well on the audio. But this is a hugely important decision for everybody and let us have everything. I was pretty cheesed off last night to hear about last-minute talks and, you know finding: "Had X spoken to Y?" This is something that is so important. We are grown-ups, we should have been dealing with this weeks ago and we should have had it all in the public domain. I think that is very important. Give me all the information, allow me to decide