Ex gratia compensation payment: Mr. and Mrs. R. Pinel (P.29/2009) – comments

STATES OF JERSEY

EX GRATIA COMPENSATION PAYMENT: MR. AND MRS. R. PINEL (P.29/2009) – COMMENTS

Presented to the States on 30th March 2009 by the Minister for Planning and Environment

STATES GREFFE

COMMENTS

Background

1. Reg's Skips is a skip-emptying and sorting business operated by Reg and Rita Pinel. It wasstartedin September2000.
2. From  2000 to 2004  the company operated from  Home Farm  and La Prairie,  St. Peter.  Planning permission wasnot in placetooperate from those properties and the company was under investigation by the Planningand Building ServicesEnforcementTeam.
3. In May 2004, the company applied to use a storage shed atTheHomestead, St.  John, but this was refused on the grounds that the use would be a badneighbour in close proximity toresidentialproperty.
4. Followingdiscussions with the Planning service, and theformer Planning andEnvironmentCommittee, the company applied tomove to a vacant shed and disused silage clamp at HeatherbraeFarm, St.  John (ownedbyMr.C. Taylor ). Permissionwas duly granted inMay2005, subject to several conditions, one of which stated "The use of this site shall operate in the same way as the current site [La Prairie] as a skip sorting yard only and for no other purpose." The purposeof this condition was to limit the extentof operations, bearing inmind the potential fornuisance.

First complaints

5. After the company had been inoperation for several monthsatHeatherbrae,the Planning service started to receive complaints from a near neighbour. The service investigated throughout 2006 and tried to persuade the Pinels to moderate its operations, but to no avail. It was clear that the company had expanded both in size and in its intensity ofoperations.Mechanical sorting (the lifting ofmaterial with a mechanical arm from one skip and dropping it into another) and vehicularmovements were the main concerns.
6. In 2006, theCompany were also advised bytheEnvironment Division that an application for a waste management licence under the WasteManagementLawwas also required. Whilst the company was keen to comply with this requirement,until the legal situation wasresolved the waste licence wasnotpursued. This was a sensible course of action, as a waste licence is only required if the companywasgoingto remain at the site andoperate. Clearly, this wasin doubt due to the legal action.
7. Having made little progresson the planning issues, the Minister decided to serve anenforcementnotice on 10th January 2007, citing the planning condition quoted above. The notice was appealed by the companyinFebruary2007and,on legal advice, the Minister withdrew (it wasfelt that the condition was not sufficiently precise tobeenforced in Court).
8. Also in January 2007, the company applied to roof over the former silage clampatHeatherbrae,inan effort to minimisedisturbance.Advice to the applicant was that this proposal shouldbe acoustically modelled  to  the  satisfaction  of Health  Protection,  before  they  proceeded with  an  application.  Both Heatherbrae and the objector provided conflicting expert opinion on the noise levels likely tobe emitted from a covered structure. Heath Protection concluded Even with the noise reductions calculated,impact noises wouldbe likely to cause a nuisancetothe occupiers of residential premises inthe area. The proposed  works  will  reduce  noise levels  but  not enough to abate the nuisance caused by the  skip business.' The PlanningDepartment report concluded that it was not considered by this Department that it was proven that the roofing over the yard would eliminate the noise to the extent that a noisenuisance would no longerexist'. The (Assistant) Minister refused this application. Thecomplaintscontinued.

Legal Action

9. Matters continued to deteriorate and, at this point, the closest neighbours decided to take matters into their ownhands.Theyissuedanultimatum to the Pinels to reduce the nuisance.When this was ignored, the

neighbours took their own legal action. This culminated in an action of voisinage' which the plaintiffs finally

won in the Royal Court in December 2007. The result of the decision was that Reg's Skips were ordered to vacate the site.

10. A subsequentappeal against the vacation order failed, although the companywas granted additional time by the Court in which to comply.

Costs

11. The costsofthese proceedings wereheardunder a separatehearing.Followingsubmissions, the Bailiff ruled that Reg's Skips shouldpay the costs of the action, but the companyshouldbe entitled to recover 25% ofthosecosts from the Minister for Planning and Environment.
12. The Minister appealed this decision and the Court ofAppealupheld the Minister'sposition in November 2008. The AppealCourt held that –

• the former Planning and Environment Committee had not encouraged' Reg's Skips to occupy the site;

• the Minister had not been a party to the voisinage action and so should not have been ordered to pay any of its costs; and

• there is no duty of care' on the Minister to ensure that successful applicants for planning permission do not breach any obligation de voisinage towards neighbouring properties.

A l l o f the costs therefore fell to be paid by Reg's Skips Limited.

Claims made in P.29/2009

13. There are a number of errors within the proposition whichareinneedof correction.

• The proposition states that Reg's Skips were operating lawfully from the St.  Peter site. This is not correct. Empty skips could be stored on that site (and had been for several decades), but there was

no consent to sort material from those skips on that site. The very reason that Reg's Skips was seeking another site from which to operate was due to that fact that they were not authorised at La Prairie. Mr.   Taylor (owner of Heatherbrae) was not instructed by the Planning service to omit the name Reg's Skips' from the application. Indeed, the service included the company name in the advert

which it published in the JEP on 22nd March 2005. Planning and Building Services would not try to disguise such an application as it has a duty to consult and make it clear to the public the details of planning applications received. The  proposition  states  that  the  Planning  Department  is  obliged  to  seek  the  consent  of  the Environmental Health Department (Health Protection) prior to granting consent for a change of

use to commercial'. This is not correct. There is no such requirement. The Planning service does, of course, consult with Health Protection on such applications which it did do in this case. There was no attempt to to bypass Environmental Health'. The service's record clearly shows that the Health Protection was consulted (by letter with a copy of the plans) on 14th March 2005. Their letter of response was received on 7th April 2005.

Opinion

14. There will undoubtedlybesomesympathy that a smalllocalcompany has been forced tomove from a site for whichithad previously obtained planning permission.However, it would bewrong to paint the companyas an innocent bystanderin this matter.
15. The company expanded considerably at HeatherbraeFarm and the operations were clearly causing harm to the neighbour.There was anynumberofpointsatwhich the company,when asked to,couldhave

adjusted its operations to moderate this impact on the neighbours. This might have avoided the need for the

neighbour to resort to legal action.

Update

16. The Minister hasnowfound that Reg'sSkips,incomplying with theCourtOrder to vacate Heatherbrae Farm, is now occupyingMcQuaig'sQuarryin St. John. There is no planning permission for the sorting of skips on this site and several complaints have been received.The Planning Service'sEnforcement Team are once again involved and in ordertoavoid further formal action, are trying to obtain from Reg'sSkips a retrospective planning application. If approved, the company will also require a wastemanagement licence. Therequests to date, have notresulted in a planning application beingsubmittedand further action will therefore need to betaken.

______________________________________________________________________ Re-issue Note

This item is re-issued because the Minister has revised the text of his comments.