Drainage Law - service of notices on owners

STATES OF JERSEY

DRAINAGE LAW: SERVICE OF NOTICES ON OWNERS

Lodged au Greffe on 9th April 2008 by Senator B.E. Shenton

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to r eq uest the Minister for Transport and Technical Services to rescind his Ministerial Decision made on

27th November 2007 in which he agreed to vary the policy on the service of notices under the Drainage (Jersey) Law 2005 and agreed that he would, from the date of the Ministerial Decision, consider serving a Notice on third party landowners for the benefit of private developers to enable those developers to lay sewers across the third party land if there was a demonstrable public gain, namely where a developer was able and willing to fund the connection of other surrounding properties to the public sewer network.

SENATOR B.E. SHENTON

REPORT

This  proposition  is  brought,  in  part,  in  order  to  ascertain  whether  Ministerial  Government  has  the necessary procedures in place to allow the public a fair, and inexpensive, appeal against a Ministerial Decision that adversely affects them. It also asks questions with regard to the information available to the public to back up the decision. In this case the information available to the public on the relevant website was somewhat different and less illuminating, to that available to me as a politician. Indeed, because the back-up papers were marked confidential I had to get permission from the Minister for Transport and Technical Services to publish them – a permission which could have been withheld.

The proposition is brought in the interests of democracy and healthy debate. Members won't have to take sides. The issues raised can be examined by the Privileges and Procedures Committee and used to update or change the system as necessary. The public can learn about the powers vested to a Minister through the Ministerial process. The vote, however, will be on whether private property developers should have the principles of the Drainage Law extended to their own benefit. Deputy de Faye and I have differing views on this, and I would like the Assembly to decide.

A fundamental issue is whether it can properly be said to be for the public benefit for the Minister to exercise these powers under the Drainage Law in circumstances where the neighbouring landowners are perfectly happy with their current drainage arrangements and those drainage arrangements are perfectly adequate for their current properties. Furthermore, the questions of future maintenance and the States liability to pay compensation following legal claims under the Drainage Law have not been answered.

_______________________________________________________________

How would you feel if a Minister passed a Ministerial Decision that allowed a private property developer to lay pipes through your land without your permission?

How would you feel if the Ministerial Decision was structured in such a way that you would receive no payment for going through your land and no compensation for inconvenience caused?

How would you feel if you and your neighbours were not consulted in any way about this and only found out through a third party?

How would you feel if you found out that you had no right of appeal as you only found out about it after the appeal date had passed?

How would you feel if the property developer stood to make a significant sum by obliterating your view and reducing the value of not only your own property, but also that of your neighbours?

Pretty fed up – I would think. _______________________________________________________________

The saga began last year when I was contacted by residents of [Road name] objecting to the demolition and re- building of [Property A]. [Property A] was purchased by property developer [Mr. X].

The proposed development was opposed on the following grounds –

1. The site is in the CountrysideZone and we believe that a developmentof this size is contrary tothe approved Island Plan policy;
2. The developmentis far too large and will involve a congested form of developmenton a restricted site and detract from theexistingopen character and appearance of the site andsurroundingarea;
3. We understand that part of[Roadname] is designated a Low DensityAreaand therefore the proposal

would be inappropriate and detrimental to the neighbourhood;

4. The design and sizeof the proposed building will beoverpoweringand totally outof character in this area and will be a dominant feature situated as itison the hilltop overlooking [Villagename']sharbour, clearly visible from thereandtheapproachroadsto[Villagename].Itisconsiderablylarger than the existing property it will replace;
5. The site is verysmalland will bealmost entirely takenupby the houseand its associated decking and swimming pool and is a grossly insensitiveover-developmentofthe site;
6. We are greatly concernedabout the effect the demolition and rebuilding of[Property A] will have on a narrow accessroad,whichhas already proved to beextremelyvulnerable,andcouldbe liable to further collapse by the use, over a considerable period oftime,ofheavyvehiclesandplantwhich would have to be used for the purpose of the demolition andrebuild, the weight of whichcould greatly exceed the weightlimitwhichtheroadcan take. The access road to the estate isnow limited to 10 tons due to previous subsidence.Thisagain would limit the size ofvehiclesaccessing the site.We believe concrete lorries weigh in excess of20tons;
7. The design for "[Property A]" is steel-framed and will therefore require heavy lifting cranes, the weight of whichwe believe will exceed the 10 ton limit;
8. The site does not have sufficient parking for the large number of tradesmen's vehicles inevitably required for developments of this scale, and there is nowhere in the vicinity to accommodate them;
9. Tied tanks dealing with the foul sewerage and swimming pool backwash for a five-bedroomed, five-bathroomed house will require emptying on a weekly basis, which would put yet more pressure on the access road;
10. The owner of the property does not have a right of way along the access road beyond his boundary. There is insufficient space for these vehicles to turn on the property and they would therefore have to use roadway over which he has no right of access in order to be able to exit the estate;
11. The property directly below [Property A] – originally called "[Property B]" on [Name] Hill has been demolished blockbyblockdue to subsidence,whichwe believe was caused by the excavation of the site and the removalof vegetation and trees on the hillside. We believe that more trees have been removed directly in front of[Property A],which will further aggravate the problem;
12. The plans are somewhat misleading, in that the photographs produced takingin the view across [Village name] weretakenprior to theremovalof the trees asmentionedabove.Inactualfacttheproperty is now fully visible from all parts of[Villagename]. We enclose "before" and "after" photographs to illustrate this point;
13. If these plansareapprovedwe believe a precedentwouldbe set for future development, thus completely changing thecharacterofthequiet estate.

The lack of mains drains (point number 9) was, in my opinion, the main stumbling block. Without mains drains it would be difficult, I believe, to pass a property of this size.

In order to overcome this, the developer persuaded the Minister for Transport and Technical Services to pass the following Ministerial Decision –

Drainage Law Policy in Respect of Private Developments – Additional Information (MD-T-2007-0092) Introduction A  decision  made  (23/11/2007)  regarding:  Drainage  Law  Policy  in  Respect  of  Private Developments – Additional Information

The above is the total information available on the website for view by the public at: http://www.gov.je/StatesGreffe/MinisterialDecision/TransportTechnicalServices/2007/drainagelawpolicy.htm When I requested the back-up papers to the Ministerial Decision I received the following additional papers.

TRANSPORT AND TECHNICAL SERVICES

DRAINAGE LAW POLICY IN RESEPCT OF PRIVATE DEVELOPMENTS -  ADDITIONAL INFORMATION

Exempt Code 3.2.1 (a) (i)

Purpose of the Report

To determine a departmental policy in respect of serving a legal Notice under the Drainage (Jersey) Law 2005 on behalf of a private developer.

Background

The  Minister  recently  considered  a  Ministerial  Report  recommending  that  the  Department  maintain  a  long standing policy whereby the Minister will not serve a Notice for the laying of Public sewers under the Drainage (Jersey) Law 2005 on third party land owners, for the benefit of developers.

The issue has arisen as a result of a specific request by the developer of the property [Property A], [Road name], [Parish name], to refer to the Minister for a re-consideration of this policy, following the application of the policy in respect of [Property  A] by Departmental Officers.

The Minister rejected the recommendation of the original report (MD-T-2007-0092) on the basis that; Planning constraints that require tight tanks are onerous and, where achievable, the Transport and Technical Services Department should encourage the installation of mains drainage'. The Minister also requested further information on the specifics of the [Property  A] development.

Discussion

At [Property  A], [Road name], [Parish name], the developer, [Mr.  X], has applied to demolish the existing hous and build a new five-bedroom dwelling.

This re-development falls under Island Plan Policy NR2 which states that New development proposals that rely on septic tanks, soakaways or private sewage treatment plants as a means of waste disposal will not normally be permitted'.

Therefore, [Mr. X] has the option of connecting privately to the Public sewer network on the main hill to the south, or installing a tight tank'.

[Mr.  X] has a workable solution for the use of a tight tank but has been investigating the possibility of making a private connection to the Public sewer network. To achieve this connection, [Mr.  X] has to install a small package pumping station on his property and lay a rising main southwards along the estate road.

This road is owned by the individual property owners on the estate who each own the section of road in front of their property. For [Mr.  X] to lay a rising main along this road, he will need to reach agreement with four property owners for permission to lay the rising main in their part of the estate road. From information recently received from the developers' agents, [XYZ] Architects, it is understood that two of these landowners are refusing to give this permission.

It has been confirmed that both of the properties that are refusing permission are themselves connected to the Public sewer network via a private sewer that connects both properties as well as three others on the estate. In addition, [XYZ] Architects have also stated that the two properties, as well as one of the other three properties, are also refusing to allow [Property  A] any connection on to this private drainage system.

According to [Mr.  Y] of [XYZ] Architects, the reasons for refusal are:

that it would gain our client planning permission to build a four bed house in replacement of a three bed house', and

that they (the landowner) have had problems connecting to foul drainage in the past and did not see why they should be helpful to our Client in this instance'.

[Mr.  Y (Architect)] has stated that his client wishes to lay a gravity sewer northwards, at his own expense, from his new pumping station to provide a connection to the six other properties in the estate that are not currently connected to the Public sewer network. However, it is unclear as to how many of these properties would wish to avail themselves of this opportunity, although it is believed that at least one property will.

The issues outlined above are not uncommon, and usually they are resolved by some form of financial recompense being made to the landowners by the developer. However, it is not clear whether on this occasion an offer of financial recompense has been made, or whether it would be accepted even if offered.

In the past, developers have approached the Department to request that the Minister/Committee use his/its powers under the Drainage Law (and before that the Sewerage Law) to serve a Notice on the adjacent landowners so that the developer can lay his sewers. The effect of the Minister serving Notice would be that the sewer would be Public, adjacent landowners could not object to its laying, and they would only receive compensation if:

a person has an interest in land that is reduced in value in consequence of the exercise' or

a person sustains damage by being disturbed in the enjoyment of any right in land in consequence of the exercise'.

More often than not, it would transpire that these requests by the developer are made because the developer is unwilling to pay any (or insufficient) compensation to adjacent landowners, and therefore wishes to use the Drainage Law to obviate the need to make a financial settlement, or he has identified that laying a sewer across adjacent land would be less costly for him than some other workable solution.

In either case, the developer is attempting to use Public powers under the Drainage Law to effect a financial saving for himself, to the detriment of adjacent landowners, such that the developer is the sole beneficiary.

A recent example of this was the Jambart Lane Housing development in St.  Clement. In this particular case, the developer had a workable, although expensive, solution for foul sewage disposal in the form of a pumping station. There was an alternative, cheaper solution in the form of a gravity connection at the south end of the site, but this relied on the agreement of one elderly householder whose gardens the sewer had to cross, and the owners of a small private road.

After an initial contact with the landowners that failed to reach any agreement, the developer approached the department to serve Notice on their behalf. When this was refused, the developer approached the landowners again and ultimately reached agreement to lay the private sewer. However, this was not without some distress to the elderly gentleman who was told by the developer during initial negotiations, totally incorrectly, that he would be served with a Notice if he didn't agree to the sewer being laid in his garden.

For this reason, Committees under the previous form of government have maintained a policy whereby it will not serve a Notice on adjacent landowners for the benefit of developers unless there is benefit in the proposed sewer system being Public and it can be demonstrated by the Developer that adjacent landowners are in agreement for the work to be carried out on their land.

However, given that in the case of [Property  A], the developer is prepared to provide connections for six further properties, there would appear to be a Public gain if the Minister used powers under the Drainage (Jersey) Law 2005 to allow [Property  A] to be connected, although this would have to be on the condition that connections to the boundary of the six other properties on the estate is made at the time.

The Minister's comments on the previous report stated that the Minister may wish to review the policy of not serving Notice on adjacent landowners on behalf of private developers. To prevent the Law being used to allow the developer to circumvent paying compensation to adjacent landowners for the developers' sole benefit, and to avoid the type of distressful situation that occurred at Jambart Lane, with the associated negative media coverage that would likely follow, it is strongly recommended that this policy, applied as a general principle, should not be changed.

However, there may well be instances, such as in the case of [Property  A] above, where there would be a Public benefit in surrounding houses being connected.

Therefore, it is recommended that the existing policy of not serving Notice on behalf of developers be maintained in instances where the developer is the sole beneficiary.

However, where a developer is able to connect other surrounding properties, is prepared to fund the cost of so doing, and can therefore demonstrate that there will be a Public gain, consideration should be given to serving a Notice on his behalf, although it is also recommended that approval in these instances be at the discretion of the Minister.

Conclusion

Following rejection of the recommendations of a previous report, the Minister requested further information on the proposed development at [Property  A], [Road name], [Parish name], where a developer has made a request that the Minister serve a legal Notice on adjacent landowners under the Drainage (Jersey) Law 2005 to enable the developer to connect his development to the main sewer network.

Two properties on the estate, which are already connected to the Public system, are refusing permission for [Property  A] to cross their land to connect.

The developer is prepared to fund the cost of providing foul sewer connections for six other properties on the estate that are not currently connected to the Public foul sewer network.

There is considered to be a Public gain if the Minister served a Notice in this particular case. It is also considered that the Minister should have discretion in future cases of a similar nature, i.e., where the developer is prepared to connect other properties.

However, it is considered that the existing policy of not serving Notice for the benefit of a developer who will be the sole beneficiary should remain in place.

Recommendation

The  Minister  is  recommended  to  serve  a  Notice  on  adjacent  landowners  on  behalf  of  the  developer  of [Property  A],  as  there  is  a  demonstrable  Public  gain,  on  condition  that  the  developer  provides  foul  sewer connections to the boundary for the six other unconnected properties on the Estate.

The Minister is further recommended to reconfirm the current policy of not using its' powers under the Drainage Law (2005) to serve notice on third party land owners for the benefit of developers or private individuals, where the developer or private individual is the sole beneficiary, but where there is a demonstrable Public gain in terms of additional properties being connected, the decision on whether to serve Notice should be at the Ministers discretion.

Reason(s) for Decision

The developer of [Property  A] is providing a demonstrable public gain by offering to connect a further six properties to the foul sewer Public network.

Changing the existing policy of not serving notice on behalf of developers where the developer is the sole beneficiary,  would  allow  developers  to  circumvent  their  moral  obligation  to  pay  compensation  to  adjacent

landowners for the use of their land. Action Required

The Manager, Engineering Design and Technical Records to write to [Mr.  Y (Architect)] confirming that the Minister  will  serve  a  Notice  on  the  relevant  landowners  under  the  Drainage  (Jersey)  Law  2005,  to  allow [Property  A] to connect to the Public foul sewer network, on condition that the developer provides foul sewer connections to the remaining six other unconnected properties on the Estate.

1 November 2007 _______________________________________________________________

The following letter from one of the nearby property owners succinctly outlines the objections to the passing of this Ministerial Decision;

_______________________________________________________________

[Property A], [Road name], St. Brelade Application Reference P2007/[xxxx]

• The act of serving Notice under Article  10 has predominantly been when constructing foul sewer extensions across fields in the country Parishes.

• Powers under the Drainage Law have never been invoked for the benefit of just one property owner.

• Amendment to the policy under MD-T-2007-0092 was at the specific request of the developer.

Your decision to invoke Article  10 was made on the basis of a report prepared by [Manager, Engineering Design and Technical Records], which relied heavily on information supplied by [XYZ] Architects acting on behalf of their client, the developer. The information supplied by [XYZ] Architects is biased and inaccurate.

Contrary to the report, [Mr.  X] does not have a workable solution for the use of a tight tank. His proposed design does not allow enough turn round space for tankers to access and leave his property without trespass. He has no right of way beyond his boundary. Neither does he have Planning permission.

Could you please answer the following:

• Why was a decision made based solely upon information from the property owner;

• According to the report, "it is unclear as to how many of these properties would wish to avail themselves of this opportunity". Why did you not ask?

• The report says "it is not clear whether on this occasion an offer of financial recompense has been made." Why did you not ask?

• The report makes it clear that the law is not intended to be used by a developer who is unwilling to pay any compensation to adjacent landowners and wishes to obviate the need to do so, or finds

this means to be less costly than some other workable solution. It clearly says that in either case, the developer is attempting to use Public powers under the Drainage Law to effect a financial saving.  How can it be acceptable for a developer to circumvent his moral obligation to pay compensation to adjacent landowners because of a possible future public benefit? Why was [Mr.  X] not obliged to at least try to reach some settlement with his neighbours? How  often,  and  under  what  circumstances,  has  this  law  been  invoked  prior  to  planning permission being obtained? How often, and under what circumstances, has this law been invoked when the developer does not have another workable solution to his drainage problems?

• The act of serving Notice has previously been predominantly when constructing foul sewer extensions across fields in the country Parishes. I would assume that disruption would be minimal

under those circumstances. How can you justify the disruption which will inevitably be caused in this particular case? Since these particular circumstances are clearly very different to other instances when Notice has been served, why was there not any consultation with the landowners? Will this proposition proceed if [Mr.  X] fails to gain Planning permission? It is interesting to note the comments about the Jambart Lane Housing development with regard to the distress caused to an elderly neighbour. Why have you not considered the distress your

decision may cause to a number of [Mr. X's] elderly neighbours? Previous Committees have maintained a policy to not serve notice unless there is benefit in the proposed sewer system being Public and the adjacent landowners are in agreement. The grounds

given for your decision – that of public benefit – to change this policy are absurd. The previous policy already insisted on public benefit. Your decision allows developers to invoke this law, without any agreement with landowners and without any compensation. How can you justify that?

[Mr. X] does not have Planning permission to develop"[Property A]" and we believe that permission hinges on a connection to mains drains. The existing property has a perfectly workable drainage system for its size. [Mr. X] does not need mains drains unless he gets permission to develop. By invoking this law prior to his gaining permission to develop, you will inevitably greatly improve his chances of obtaining permission and making a hefty profit. Is that what the law is for? _______________________________________________________________

The papers supporting the Ministerial Decision were marked confidential' and were therefore not for public view. The Minister kindly acceded to the removal of the confidentiality clause on the provision that reference to the identity of the developer and location of the property was removed. I agreed to this request with some reservations given that the Ministerial Decision was passed, according to the supporting papers, to specifically aid this particular property developer.

I have many other documents regarding this development and some planning concerns. However this document is about the Ministerial Decision only. The current procedures for the public to appeal against a Ministerial Decision are not clear and I believe that this MD is a heavy-handed abuse of Government power against the rights of an individual. In my opinion my land is my land.

Furthermore, the action under the Drainage Law may be slightly flawed. As far as I can see there is no statutory appeal mechanism against the service of a drainage notice under Article  10 of the Drainage Law if the Minister serves a notice of the intention to lay public sewers under private land.

However, the landowners can claim compensation from the Minister under Article  38 if"a person that has an interest in the land that is reduced in value in consequence of the exercise by the Minister."

This does not look like a great deal for the States. The Property Developer makes a fortune (probably tax free) and the States picks up the liability. The Minister should not be saying how high' when a property developer says jump'.

Furthermore the Law clearly states:

" T h e powers of the Minister or of an authorized person under this Law shall not be exercised in respect of any Crown land unless the Lieutenant-Governor consents or they are so exercised in a case of emergency."

So the Law is only detrimental to the private property owners of Jersey and it gives the impression that it was passed for the benefit of the States, the Crown, and property developers.

The Drainage Law is attached to the back of this proposition as an Appendix and can also be viewed on the Jersey Legal Information Board website at: http://www.jerseylaw.je/law/display.aspx?url=lawsinforce%2fconsolidated%2f22% 2f22.080_DrainageLaw2005_RevisedEdition_1January2006.htm

No doubt a lawyer would be able to advise whether there could be any judicial review possible. A landowner would be able to apply for a hearing by a Complaints Board but this would not in itself stop the process although the Minister may be willing to defer works pending the conclusion of the hearing if one was granted. The Complaints Board can only request the Minister to reconsider his decision.

Faced with a lack of a straightforward appeal process we are left with this proposition.

This proposition asks the Assembly to decide whether the Ministerial Decision was the right decision –

"T  h e Minister confirmed an amendment to the current policy of not using the Drainage (Jersey) Law 2005

to serve notice on third party landowners for the benefit of private developers, to enable developers to lay sewers  across  third  party  land.  In  future,  the  Minister  will  consider  serving  Notice  if  there  is  a demonstrable Public gain i.e. where a developer is able and willing to fund the connection of other surrounding properties to the Public sewer network."

It is up to Government to decide.

I believe that there are no financial or manpower implications arising from this proposition.

APPENDIX