Ex gratia payment: Mr. D. Turner.

STATES OF JERSEY

r

EX GRATIA PAYMENT: MR. D. TURNER

Lodged au Greffe on 1st May 2012 by Deputy M.R. Higgins of St. Helier

STATES GREFFE

2012   Price code: E  P.46

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to request the Minister for Planning and Environment to make an ex gratia payment  of  circa  £7,757  to  the  Turner  Family  (Mr. David Turner)  as compensation for costs incurred in  both  gathering  evidence to enable the Department to prosecute an establishment that persisted in breaking many of their operating conditions and the legal costs incurred in an attempt to ensure that the Department took appropriate enforcement action in relation to the operation of the premises and to alleviate the problems experienced by the family.

DEPUTY M.R. HIGGINS OF ST. HELIER

REPORT

Abraham  Lincoln  in  his  Gettysburg  address  used  a  statement  which  has  become synonymous with what good government is supposed to be all about. He talked about "government of the people, by the people, for the people".

This Proposition deals with a failure of the authorities of this Island, and in particular the Planning Department, to work for the people by carrying out their duties in an efficient and diligent manner, and which has resulted in an individual family incurring expenses of £7,700.00 to gather evidence and seek to alleviate problems affecting not only themselves, but also their neighbours, which should have been dealt with by public servants.

This Proposition should not be seen as a criticism of the Council of Ministers as a whole, it is not; but it is of one particular department which has failed to carry out its functions to the detriment of the people they are supposed to protect and serve. I hope, therefore, that other Ministers will not feel the need to rally around the Department and its Minister in a show of collective responsibility or solidarity, as to do so would be to condone incompetence and inefficiency.

Nor is this proposition a criticism of former Deputy C.H. Egré of St. Peter , who served as the Assistant Minister for Planning in the Department under Senator F.E. Cohen and was responsible for taking action to correct the failings identified in the full account below.

My  original  Proposition  also  contained  no  criticism  of  the  current  Minister  for Planning and Environment, Deputy R.C. Duhamel of St. Saviour , because he had agreed to fully compensate Mr. Turner and his family (for the cost of equipment and legal costs) as soon as the court case against the restaurant owners for breach of an Enforcement Notice was concluded. Unfortunately, in this Proposition I can no longer do so for the following reasons: firstly, he has reneged on the agreement to fully compensate Mr. Turner; secondly, because he issued a Comment Paper to my original Proposition opposing full compensation rather than the Amendment to it supporting the payment, which the Department told me was their intention; thirdly, because he did not have the courtesy to inform me of what he was doing (I was in the UK and returned within days of the proposed debate and could not produce a report in the time available), which meant that the Proposition had to be re-lodged; and fourthly because I strongly believe in integrity and if one gives their word they should keep it.

I apologize in advance to my colleagues for the length of this report, but I want you and the public to have the full facts so that we can all learn from this appalling saga and strengthen our public service. If the States is to regain the trust of the people of this Island then it needs to admit its failing when the public sector gets it wrong, rather than sweeping it under the carpet, and then it must rectify the faults and compensate where necessary.

Financial and manpower implications

The cost of the proposed ex gratia payment is £7,757, which will need to be paid from the  existing  budget  of  the  Planning  and  Environment  Department.  There  are  no manpower implications.

Chronology and comments

2000

1. Two decades ago the premises that have been the subject of the dispute which has lead to this Proposition were used as a retail shop, selling amongst other things antiques and pets.
2. On 5th May 2000, the Planning and Environment Committee approved an application for the change of use of the ground floor from retail to restaurant (reference  10065/1).  This  permission  was  subject  to only  one  relevant condition, that being:

"that the opening hours of the restaurant hereby approved shall be 12 midday  to  12 midnight  on  any  day  and  no  customers  shall  be present on the premises outside of these hours".

3. Although many residents objected to the change of use to a restaurant at that time, their objections were dismissed by the Planning Department and an Indian restaurant, which incorporated a takeaway operation, called the Taste of India, commenced operations in June 2000, following the granting of a Third Category Alcohol Licence by the Licensing Assembly of the Royal Court.
4. Residents then endured 9 years of constant smells, parking problems, noise, anti-social behaviour, rubbish and parking problems which seriously affected the quality of their lives and caused many individual residents real distress and strain.

2009

5. Around July 2009 the Taste of India owners ceased trading and the residents regained the quality of life they had lost almost a decade earlier with the complete cessation of most of the anti-social activities listed in paragraph 4.
6. In late 2009, the lease to the property was transferred to new owners, who also planned to open an Indian restaurant on the site, which they called the Bay Leaf. The residents quite naturally were aghast and feared that the tranquillity they had enjoyed for approximately 6 months would end and there would be a return to the anti-social activities that had been associated with the previous restaurant.
7. A public meeting of the First Tower Community Association was held, and those  present  unanimously  objected  to a  new  restaurant  and  takeaway operation on the site.

27th January 2010

8. On  27th  January  2010  a   St. Helier  Parish  Assembly  was  held  and  an application for Third Category Alcohol Licence for the Bay Leaf restaurant was heard. The application was rejected by 32 votes to 2, with the 4 District Deputies – Fox, Green, Hilton, and Higgins – and many residents speaking against.

15th February 2010

9. On 15th February 2010 the matter was considered by the Licensing Assembly of  the  Royal  Court:  the   Bailiff  M.C. St. J. Birt  and  Jurats  de Veulle, Le Breton,  Clapham,  Le Cornu  and  Marett-Crosby  presiding.  Advocate

A. Begg acting for the applicant.

The residents had great hopes that the Assembly would come to their aid and prevent a return to their experiences under the Taste of India and deterioration in  their  quality  of  life.  Unfortunately,  neither  they  nor  their  political representatives  realised  how  restrictive  were  the  Licensing  Assembly's procedures or how limited were its powers under the licensing laws.

At this sitting the Assembly took evidence and representations from –

1. The Residents and Deputies

The residents' main objections were based on the constant smells, noise, anti-social behaviour, rubbish and parking problems they had experienced  over  9 years  from  the  previous  Indian  restaurant  and takeaway – the Taste of India – and their fears that the new business would lead to a resumption of these activities after 6 months of peace and  quiet  after  the  previous  business  closed  down  and  the  new business was fitting out the premises. In particular they complained of –

Smell

Since  becoming  a  restaurant,  strong  odours  from  cooking  had pervaded  the  area.  This  was  particularly  acute  for  those  in  the immediate vicinity who felt unable to open their windows for the smell. The extraction equipment was not effective and was located on a flat roof lower than most of the surrounding buildings which made it difficult for the pungent cooking odours to escape.

Noise and disturbance

The noise and disturbance came from 2 sources: customers of the restaurant's takeaway service and the extraction fan. A significant minority of the restaurant's takeaway customers emerged from nearby public houses the worse for drink and went to buy takeaway food at the  premises.  Having  purchased  their  food  they  then  tended  to congregate in the area eating it. They were often noisy, aggressive and threatening. They frequently vomited and urinated in the doorways of

neighbouring houses, and responded aggressively and threateningly if any protests were made by house-owners. They left rubbish in the area which had to be constantly cleared up next morning, and tended to shout and talk loudly making it difficult for residents to sleep.

The extractor noise was particularly acute for Mr. and Mrs. Turner, whose balcony is immediately adjacent to the extraction unit on the flat roof of the restaurant (see pictures in Appendix 2).

Illegal and inconsiderate Parking

There have been considerable problems with parking in Paris Lane and in the cul-de-sac which runs off Paris Lane behind the restaurant and in which garage parking for a number of the residents is situated.

Paris Lane runs between the Inner Road and Victoria Avenue. There is a "No Entry" sign at the Victoria Avenue end, and there is a sign at ground level on the Inner Road end indicating "No Entry save for access to premises and cycles". It appears that that these notices are routinely ignored (see Appendix 1).

Customers of the restaurant regularly parked in Paris Lane and the cul-de-sac,  thereby  making  it  very  difficult, if not  impossible,  for residents to gain access to their garages or parking spaces. On one occasion a customer of the restaurant had refused to move in order to make way for an ambulance.

2. Advocate Begg, who represented Mr. Kahn, the owner of the Bay Leaf Restaurant.

Advocate Begg submitted:

1. that the objections of the residents were to the presence of a restaurant  and  argued  that  this  was  not  a  matter  for  the Licensing  Assembly  but  was  a  planning  matter  for  the Minister for Planning and Environment;
2. that if his client was not granted a Third Category licence the premises could still operate as a restaurant with a takeaway business anyway under the Places of Refreshment (Jersey) Law  1967,  and  that  without  the  sale  of  alcohol  to  their restaurant customers, his clients would have to place a greater emphasis  on  takeaways,  thus  exacerbating  some  of  the problems described by the residents.

Advocate Begg acknowledged:

3. that the noise and disturbance [in the past] had been caused by people eating  takeaways  in the  vicinity  of  the  restaurant  late  at  night, sometimes under the influence of drink, and that in order to deal with these  problems  the  applicant  proposed  that  its  takeaway  business should be strictly limited; and in particular that:

1. no orders would be taken in person, [as] customers would have to telephone their orders;
2. no  customer  would  be  able  to  pick  up  any  food  at  the restaurant, service would be by delivery only;
3. vans would deliver food from the restaurant to the address given by the customer; and
4. that because of (a) to (c), customers would not be loitering in the area eating their food and generally making a disturbance.

Advocate Begg on the issue of parking:

4. Advocate Begg argued that there was parking nearby along the Inner Road by the Earl Gray Public House and opposite First Tower School until this was contradicted by the Deputies, who in their evidence pointed out that there was not, and that this part of St. Aubin's Road was a dangerous choke-point for traffic approaching the traffic lights near First Tower. [The only parking available is in the laybys along Victoria Avenue and the multi-storey car park on the road leading to the Bellozanne incinerator.]
5. He also stated that:

1. customers would be told not to park in Paris Lane;
2. a member of staff would be placed at the front door of the premises to ensure that drivers did not park outside the restaurant; and
3. the removal of the possibility of customers picking up takeaway food from  the  restaurant  would  drastically reduce the  parking  problem, which had largely been caused by customers wishing to park simply for a few minutes whilst they took delivery of their food.

3. The Connétable of St. Helier :

The Connétable :

1. confirmed the he was aware of, and was sympathetic to, the issues raised by the residents;
2. stated  that  he  believed  that  much  of  the  illegal  parking previously  experienced  by  residents  was  caused  by  the takeaway business; and
3. urged that, if the Assembly felt that it had no alternative but to grant a licence it should impose strong conditions to alleviate the concerns of the residents so far as possible.

9.3  In its decision the Licensing Assembly stated:

1. that the views of the three objectors (residents) who addressed the  court  were  representative  of  the  views  of  many  other residents of the area;
2. that they sympathised with the residents;
3. that much of the problem of the noise, disturbance and anti- social  conduct  by  customers  is  due  to  the  existence  of  a takeaway business
4. that  they  had  limited  powers  in  the  matter  before  them, i.e. "the sole issue for us is whether a liquor licence should be granted for the business";
5. that whether the premises should be used as a restaurant is a planning issue and not a matter for the court as it was not part of its remit;
6. that its present use as a restaurant was permitted by virtue of the planning decision reached some 10 years ago;
7. that if they refused the applicant a liquor licence the premises could quite properly be run as a restaurant in accordance with the Places of Refreshment (Jersey) Law 1967;
8. that if they had granted a 3rd Category Licence they would have considered imposing a number of conditions with a view to alleviating the problems suffered by the residents.

9.5  In the event, the Licensing Assembly rejected the application for a 3rd Category Licence because there was uncertainty as to the form of extraction equipment and that the Assembly required to be satisfied that  the  applicant  had  taken  all  reasonable  steps  open  to  him  to minimise the level of odour and noise.

19th February 2010

10. Following  the  Licensing  Assembly's  refusal  to  approve  the  3rd  Category Alcohol Licence until the extractor fan was approved by the Minister for Planning and Environment, the Bay Leaf Restaurant applied for retrospective planning permission to install an extractor fan on the roof of the restaurant.

22nd February 2010

11. Advocate  Dorey  wrote  on  behalf  of  her  clients  Mr. &  Mrs. Turner  to Le Gallais Estates, the managing agents for the Anderson family, who owned Brixton  House,  the  premises  occupied  by  the  Bay  Leaf  Restaurant.  The correspondence related to Magnolia Cottage which abutted the restaurant and their property; problems they had faced in the past with the Taste of India

restaurant and some parking problems they were beginning to have with the new restaurant.

In particular she addressed:

1. nuisance,  by  way  of  excessive  noise,  particularly  late  in the evening/early in the morning, pointing out that Mr. & Mrs. Turner are elderly and Mrs. Turner has a heart condition;
2. car parking in the cul-de-sac behind the restaurant which made it impossible for them to come and go to their property and forced them on occasion to have to park their own car elsewhere. This she pointed out was an infringement of their right of way to the rear of their property, garage and parking area.

The purpose of the letter was merely to draw these matters to their attention and in order that they could, similarly, draw them to the attention of any potential tenants of the cottage.

3rd March 2010

12. A  second   St. Helier  Parish  Assembly  took  place  on  3rd  March  2010  to consider a further application for a Third Category Alcohol Licence by the Bay Leaf Restaurant. It was again rejected by the Assembly, the vote being 8 in favour and 26 against.

7th May 2010

13. A  Planning  Officer  reviewed  the  application  for  a  retrospective  planning permission for an extractor fan on the roof of the Bay Leaf Restaurant and recommended approving it. He noted:

1. that the Parish had received considerable representation against the application due to its size, visual impact and anticipated extract smells and that whilst it was outside the scope of the Roads Committee the Parish  could  not  support  an  application  which  has  a  detrimental impact on the quality of life of the St. Helier residents;
2. that the restaurant possessed a valid planning permission granted in 2000 which represented a legitimate "fall back" position, i.e. so that if the  remodelled  extraction  unit  was  found  to be  unacceptable  the existing unit could be put back under the May 2000 permission;
3. that the assessment, therefore, related solely to the revised extraction system;
4. that a key consideration is whether the amenities of the neighbours (primarily in relation to odours) will be unreasonably harmed by the operation of the new extraction system;

5. that  the  Island  Plan  contains  no  specific  policy  to cover  the installation of the extraction equipment but that Policy G2 contains the  requirements  that  applicants  need  to demonstrate  that  the development:

(ii)  will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations;

(x)  will not have an unreasonable impact on public health, safety and the environment by virtue of [selected extracts] noise, vibration and odour;

6. that the extraction system is relatively substantial – appearing as an incongruous element of "engineering" on the flat roof to the rear of the building. The design is purely utilitarian and no other case has been made for its form. The current application does not propose a particularly aesthetically attractive solution, [but] it is not materially different (in terms of its visual impact) than the original system;
7. that Health and Social Services (Health Protection) advised that if permission was to be forthcoming, additional conditions about hours of trading and use of the rear yard should be considered. [The officer concluded, however, that given the scope of this application relates solely to the extraction unit, these additional conditions would go beyond the scope of this application and therefore would be difficult to justify];
8. taking  account  of  this  advice,  and  bearing  in mind  the  fall-back position, the Officer concluded that the impacts on amenities of the neighbours are not considered to be unreasonable.

14. The Officer recommended the application for approval, subject to conditions which didn't include anything about screening the unit, the hours of operation or the rear yard.

20th May 2010

15. The Planning Applications Panel met to consider the grant of a retrospective planning application for the extractor fan on the flat roof of the restaurant.

25th May 2010

16. On  25th  May  2010,  the  Planning  and  Environment  Department  issued retrospective planning permission to the Bay Leaf Restaurant [Application Number R.(2010) 0192 for the installation of an extractor fan on roof.

There were 3 conditions attached to the permit, two were concerned with minimising cooking odours, and the third to do with screening the extractor fan. The conditions were:

1. Unless otherwise agreed in writing by the Minister for Planning and Environment,  all  cooking  odours  shall  be  vented  through  the extraction system hereby approved, which shall consist of one canopy filter, 3 pre-filters and 3 active carbon block filters, as specified in the letter from the agent of 22nd March 2010.
2. Prior to first use of the extraction system hereby approved, a Schedule of Maintenance and Servicing shall be submitted to and approved in writing by the Minister for Planning and Environment, with the scope of  work  to be  first  agreed  by  the  Health  and  Social  Services (Environmental  Health),  to  ensure  the  efficient  operation  of  the extraction  system,  with  the  agreed  Schedule  of  Maintenance  and Servicing to be thereafter fully implemented in perpetuity.
3. Prior  to  the  first  use  of  the  extraction  system,  details  shall  be submitted to and approved in writing by the Minister for Planning and Environment to show a vertical screen to the top of the flat roof, to reduce views of the structure from Paris Lane, to be thereafter implemented within 30 days, and maintained in perpetuity.

17. The condition contained in paragraph 16.3 was stated by one member of the Planning Applications Panel to have been included to screen this unsightly unit from the restaurant's residential neighbours. Whether or not this is correct gives rise to a number of questions:

1. If this was for the benefit of the neighbours, the condition on the permit was badly drafted by the Department because it only states that a vertical screen is required to reduce the views of the unit from Paris Lane,  which  is  to the  west  of  the  unit.  There  is nothing  about screening it from the neighbours to the east who in fact have the best view of the extraction unit, as can be seen in the photographs of the unit from their balcony (see Appendix 2).
2. Again, if it was to be screened from the neighbours, why was the fact it only screens the unit from view to the west and not the east picked up by the Officer evaluating the details which the applicant had to submit in writing and have approved prior to its first use or by the Officer  who  examined  the  unit  structure  and  screening  after construction (if indeed it was inspected) to ensure that it conformed with the submitted plans in all respects.
3. If the condition was not to screen it from the neighbours, this was a serious omission on the part of the Department, as it shows a total disregard of the neighbours' views and interests and would seem to be a direct contravention of Policy G2(i) of the Island Plan which is stated in paragraph 13.5 above.
4. What  other  justification  could  there  have  been  for  the  screening condition?

1st June 2010

18. On 1st June 2010 the Third Category Alcohol Licence was again considered at an Extraordinary Licensing Assembly of the Royal Court, with the Deputy Bailiff William Bailhache and Jurats de Veulle, Clapham, Le Cornu, Marett- Crosby and Nicolle presiding. Advocate A.P. Begg for the Applicant.

1. The 3rd  Category  Licence  was  granted  subject  to the  following conditions:

1. The filters installed within the cooking extraction system must be subject to the manufacturer's required routine maintenance and  replacement  schedule.  This  must  be  undertaken  by contract by an authorised contractor approved by the Health Protection Department.
2. The doors to the rear of the premises must remain closed while cooking is in progress.
3. The licence holder is required to keep a record of the regular maintenance of the extractor filters and provide such record for  inspection  by  the  Health  Protection  Department  on request.
4. The permitted  opening  times  shall  be  between  9 a.m.  and 11 p.m., such that all customers must be off the premises by 11 p.m.
5. Background music only can be played.
6. If any door staff are employed, they must be members of the Jersey Door Registration Scheme.
7. That the number of persons permitted to be on the premises shall at no time exceed 55, excluding members of staff.

2. The Licensing Assembly:

1. reiterated the sympathy that had been expressed by the First Licensing Assembly on 15th February 2010 for the impact upon the quality of life of the residents stemming from the decision of the Planning Committee of the day to allow a change of use to a restaurant 10 years ago, and then added its own;
2. explained the legal powers of the Assembly under the Law and  how  because  of  the  decisions  of  the  former  Planning Committee and the Places of Refreshment (Jersey) Law 1967 its ability to alleviate the residents' concerns about the smell, parking and anti-social behaviour was limited;

3. stated further that as the Planning Authorities were not before them, it would not to be appropriate to make a comment about the propriety of that decision, but that" at first glance it may appear a surprising one";
4. repeated  that  the  Licensing  Assembly  is not  the  Planning Authority and that it is not for the Licensing Assembly to attempt to put on conditions which could have been imposed by  the  Planning  Committee  of  the  day,  or  might  yet  be required by the Planning Minister.

3. Although the residents were naturally disappointed that the Assembly took  no  action  to ban  or  condition  the  home  delivery/takeaway operation  with  its  attendant  impact  on  parking  and  anti-social behaviour, the following comments made in the Assembly's written decision are highly relevant to the subsequent actions of the Police and Planning Department, both of which have failed the residents:

1. "those using the takeaway service would not be entitled to consume alcohol as they would not be having a meal";
2. "as far as the applicant is concerned [a delivery or takeaway] service  was  in  his  view  essential  to the  viability  of  the restaurant. We were told that it was expected that 50% of the turnover  might  come  from  the  takeaway  service  and  50% from the restaurant itself"
3. ". . . we can certainly see if the turnover at the restaurant is such that the majority is a takeaway trade rather than a sit down restaurant trade, there may well be a case for asserting  that  a  different  use  class  would  apply  to  the premises in question, and adequate objection be made to the planning authorities".

[It was interesting to note that the Bailiff , during the first Licensing Assembly on 15th February 2010, suggested that a company whose takeaway activities did not exceed 50% could also  be  considered  more  than  "ancillary"  to  its  sit-down restaurant  service  and  lead,  depending  upon  the circumstances,  to  a  requirement  for  an  application  to  the Planning Department for a change of use.]

5th June 2010

19. A meeting was held at the Bay Leaf Restaurant between the owner Mr. Kahn, the residents and Deputy Green, at which issues were discussed and action points were agreed.

6th June 2010

20. The residents followed up their meeting with Mr. Kahn, the owner of the Bay Leaf Restaurant.

1. The letter ref: Bayleaves Indian Restaurant meeting between First Tower residents and Mr. Khan on 5th June 2010 stated:

Thank you for meeting us, we understand you have other pressures at the moment so appreciate you taking the time yesterday.

We said we would put together an action list for you, containing all the points we discussed and agreed, as follows:

2. Fan

* You will complete the screening to cover the easterly aspect of the fan from view on Monday next.

* You agreed to instruct your staff to keep the fan at a low level to eliminate noise – we have asked for it to be run at 140; we had hoped this would be done immediately but last night the fan was run on the highest and loudest setting. I understand Mr. Turner rang you and it was lowered – but only for a few minutes, subsequently it was turned up again. This is unacceptable and upsetting for the older residents.

* Apparently when the fan is turned up residents are experiencing a smell, not of food but of burning metal. Perhaps you should check it out.

3. Noise

* Late night noise – we asked for a notice on the door/wall to request restaurant customers to leave quietly and not to congregate outside.

* You agreed to speak to the staff in the cottage to put an end to the late night noise we have experienced already.

* Staff are going to the garage to collect stock and slamming the door. You agreed to tell them to close the door quietly.

* Last  night  the  delivery  drivers  were  talking  loudly  outside  the restaurant. Could you inform them that this is a heavily populated residential area and high levels of noise are not acceptable.

4. Parking

* No parking in Paris Lane at any time. You agreed to put notices up to that effect on your emergency exit, and could you ask your staff to instruct anyone who does leave a car there to move it immediately please as there is adequate parking on Tower Road car park;

* Parking only in designated spaces in the cul-de-sac of Paris Lane at the back of the restaurant; it will never be acceptable to leave a car parked there even for a few minutes as the garages are in constant use;

* We will put a chain across the entrance to the cul-de-sac: we need a little more discussion to decide whether it is to have a lock and key or if a chain will be deterrent enough:

5. Misc

* Another box for cigarette ends should be put next to the emergency exit at the rear of the restaurant to stop customers throwing them on the ground.

We would be grateful if you would address these points immediately as we feel strongly that our quality of life is being eroded by the presence of the restaurant and its associated problems.

(See Advocate Begg's response from Mr. Kahn at paragraph 31.)

6th June 2010

21. The residents wrote to Le Gallais Estates, the managing agent for the owners of Brixton House, the Anderson Family, who lease the premises to the Bay Leaf Restaurant, and asked them to pass on the letter to the owners.

The letter itself:

1. discussed some of the problems the residents had experienced when the building was occupied by the Taste of India;
2. stated that when the Taste of India's lease came to an end they felt that they could reclaim their lives, open their windows, sit on their balconies, move cars in and out of their garages, and live without the fear of abuse from takeaway customers parking illegally or eating (and worse) on their doorsteps;
3. reminded them that when the lease ended a number of residents had asked the owners not to put another restaurant in the property but to turn it into a private residence because the site was unsuitable for a restaurant and because of the effect it was having on the residents quality of life and value of their properties, which had been devalued over the years because of the presence of the takeaway/restaurant and its associated problems, but that they and the landlords had ignored their request and all the old problems were re-emerging together with some new ones;
4. explained  that  although  they  had  met  Mr. Kahn,  and  he  had undertaken to resolve some of the issues immediately, "last night was no better, and as he has a number of interests in Jersey he is not here to police the problems. We have no faith in either his authority over the staff or his availability when problems occur". [They enclosed a copy of the letter to Mr. Kahn (stated in full in paragraph 20 above];

5. expressed concerns about the tenants of Magnolia Cottage (the cottage immediately adjacent to the restaurant) which according to Mr. Kahn was now occupied by four of his staff, stating in particular that they were concerned about their security as more than 4 people were seen coming and going regularly from the property at all times of the day and night and that the police had called at the cottage on at least 3 occasions in the few weeks and have asked questions of some of the residents as to the whereabouts of the tenants;
6. pointed out that some of the elderly residents were at breaking point over the recurrence of the problems;
7. asked the Anderson family to come to First Tower and meet with the residents  and  inspect  the  immediate  area  and  tell  them  honestly whether they could endure the conditions they had imposed on them.

22. Although the e-mailed letter was acknowledged by Le Gallais Estates on 7th June 2010 no reply was received from the owners. The residents chased up a reply on 16th August 2010 on which date Le Gallais Estates acknowledged that the original letter had been received by the owners. In the event, the residents  did  not  receive  a  response  to their  letter  from  the  owners  but Advocate Begg, acting for the restaurant owners, did respond to their letter to the owners in his correspondence of 20th August 2010 (see paragraph 31). One wonders how he obtained a copy of it?

11th June 2010

23. Deputy  Jacqueline  Hilton  sent  an  e-mail  to Senator  Freddie  Cohen,  the Minister for Planning and Environment, on 11th June 2010 concerning the Bay Leaf Restaurant.#

23.1  It read as follows:

We had a discussion about the above on Tuesday when I asked you about the process to follow in light of the remarks made by the DB when he gave permission for a 3rd Cat. Licence during the Licensing Assembly last week.

Just to remind you, It came out in submissions during the hearing that 50%  of  the  business  would  now  be  home  delivery/takeaway  as opposed to the sit-down restaurant a permit was originally granted for.

We  are  still  waiting  for  the  judgement  but  I  would  like  some clarification as to the process you intend to adopt in order this matter can be addressed. I do not need to remind you the lives of residents have deteriorated substantially since the restaurant started trading last week with all manner of people leaving vehicles where they should not, loud noise and the incessant noise from the extractor fan.

I  am  aware  the  restaurant  will  always  need  the  extractor  fan  but coupled  with  the  other  problems  encountered  it  just  makes  life intolerable for them.

I look forward to hearing from you.

It is believed that Deputy Hilton did not receive a reply to this email from either the Minister or Officers of his department.

15th June 2010

24. On 15th June 2010 the residents wrote to the Bailiff . In their letter they:

1. expressed concern about evidence that was submitted by a witness for the applicant to the Licensing Assembly on 1st June 2010.

This evidence was given by a Mrs. Lorraine Hill, who stated: that she had no concerns over noise or congestion but who had in fact signed the  original  petition  that  was  presented  to  the  Town   Hall  which complained about these very issues; and who had stated that she had lived in the cottage for 2 years when in fact it was 1 year during most of which time the previous restaurant was closed.

2. questioned whether Mrs. Hill's evidence should have been heard by the Licensing Assembly as she had not spoken at the St. Helier Parish Assembly that had considered the 3rd Party Licensing Application.

What concerned the residents was that Mrs. Hill had been opposed to a new restaurant/takeaway being reopened, had signed the petition, complained to Le Gallais Estates, been re-housed by them and the cottage she lived in was taken over by the Bay Leaf restaurant, and then  without  telling  the  residents  she  was  now  supporting  the applicant. She came into the hearing late, sat down apart from the rest of  the  residents,  maintained  no  eye  contact  whatsoever  with  her former neighbours and then left immediately after giving her evidence in support of the restaurant.

Although they did not express this fact in their letter the residents also felt that the Licensing Assembly procedure is flawed in that there is no right of cross-examination of witness statements or any mechanism to challenge evidence which they felt was blatantly untrue. If there were  the  Assembly  would  be  better  able  to  judge  the  quality  of evidence and motivation of the witnesses.

3. informed the Bailiff that their worst nightmares had been realised and that whilst they thought the last restaurant owners were bad they were angels compared to the current owners and staff. They said that the restaurant had only been open 11 days but that it had been hell.

They gave the following examples:

1. "we are subjected to a noise (from the ventilation unit) so loud we have to shout to be heard above it, and the smells of Indian food increase as time goes on";

2. "This in its self is bad enough, but the owners have also taken over the cottage where 4 of their staff live, we experience screaming and shouting, loud mobile phone use, cars in and out until the early hours, in addition blocking of our access to our property. To add insult to injury these people just drop their cigarette ends outside our doors and on our drive as well as regularly spitting. It's disgusting! No-one should have to live like this".
3. "We have called the Police (once at 01.00hrs) and they have visited the cottage on several other occasions".

4. informed the Bailiff that in order to sort some of these issues out they (along with District Deputies) met with Mr. Kahn and expressed their concerns, in what they thought was a constructive meeting which came to an understanding on a number of issues (a copy of them was attached to the letter) but that not one of these agreed terms had been complied  with  and  that  on  the  very  first  evening  everything  was forgotten;
5. pointed out the stress of living in this unhealthy and unacceptable environment, which was affecting the residents' mental and physical health;
6. stated that apart from the District Deputies no one listens to or takes their complaints seriously, stating further that they had made a formal complaint to Health and Protection under statutory nuisance but that they had been slow to act and had wanted to fit a totally inadequate manual, as opposed to automatic, noise monitor that someone had to get up and switch on every time there was a problem;
7. stated that they awaited the [final] judgment and in particular the guidance on the proposed takeaways and home delivery pointing out that this side of the business was already being operated and since starting the traffic down Paris Lane was at times either like a race track or blocked with customers and staff parking on the pavements;
8. urged the Bailiff to help them [The residents also copied this letter to the Ministers of Planning and Environment, Economic Development, Health  and  Social  Security,  the  Constable  of   St. Helier ,  and  the District Deputies].

17th June 2010

25. On 17th June 2010 the residents received a letter from the Bailiff 's Chief Officer who thanked them for their letter and said he had been asked to respond by the Deputy Bailiff .

In this letter he said:

1. I  am asked  to say  that  the  Licensing  Assembly  has  power  under Article 6(4) of the Licensing (Jersey) Law 1974, in its discretion, to permit any person who has given at least seven days written notice to the Greffier, to address the Assembly. On this occasion, Mrs. Lorraine Hill  had  given  such  notice  and  the  Assembly  considered  it  was appropriate to hear from her. The Assembly was aware from what was said before it that it had been asserted that Mrs. Hill had signed the petition which is mentioned in your letter.
2. The reasons for the Licensing Assembly's decision were given on 17th June. I am asked to say that the matters which you raised in your letter are not matters for the Licensing Assembly, and you would be right to address your attention to the Minister for Health and Social Services  and/or  the  Minister  for  Planning  and  Environment.  It  is obviously  open  to you to take  such  other  political  steps  with the Constable and District Deputies as you think fit.

1st July 2010

26. A meeting with Planning Officers took place at St. Helier Town Hall on 1st July 2010 to discuss the Bay Leaf situation. It was attended by 2 officers from the  Planning  and  Environment  Department  (the  Chief  Executive  and  an Enforcement Officer), residents and Deputy Higgins. Deputy Higgins outlined the problems that were occurring in and around the restaurant and express his fears that it was having a detrimental effect on elderly and unwell residents. He expressed the view that if a seriously ill resident died it would be directly attributable to the stress induced and the failure of the Planning Department to take any action. The Enforcement Officer's letter dated 7th July 2010 refers to this meeting [see paragraph 30].

4th July 2010

27. On 4th July 2010, the Enforcement Officer, for Planning and Environment wrote to Mr. Miah, the manager of the Bay Leaf Restaurant. His letter is set out in full below with the text broken down into numbered paragraphs and certain statements highlighted in red ink.

1. "Dear Mr. Miah

Re: Operational conditions of permit Bayleaf (Brixton House), La Grande Route de St. Aubin, First Tower, St. Helier , JE2 3LL

I write in connection with the above matter and the ongoing concerns regarding the operation of the restaurant and takeaway business at the premises  and  the  inconvenience  and  impact  it  is  having  on  local residents.

2. The intention of my letter is not only to remind you of the conditions of your permit and Places of Refreshment Licence but to appeal to your good nature in order to allay the concerns of local residents who fear a degradation of the area arising from the operation of the home delivery service part of the business.

3. I would like to emphasise that the Planning Department is not here to harass  you  in conducting  your  business,  far  from  it. We  seek  to balance your success with the needs of residents in the immediate area. Occasionally, itis difficult to achieve a balance whilst trying to please all parties and sometimes it takes a display of good will to soften the minds of the intransigent.
4. I am therefore seeking your good will in order that I don't need to keep returning to you with the same problems in the future. I would invite  you  therefore  to adhere  to the  conditions  of  both  your Operational Permit and the Places of Refreshment Licence and invite [you] to make that move to display your concern to the local residents.
5. For clarification the conditions of concern include:
   1. The proprietor/manager is responsible for the collection and disposal of all litter within the immediate surrounding area of the premises.
   2. The permitted times of opening shall be between 9 a.m. and 11 p.m. With no cooking beyond this time.
   3. The doors to the rear of the premises to remain closed whilst cooking is in progress.
   4. A walk in takeaway service' will not be permitted at any time from the premises, although a home delivery service will be permitted for telephone/email/internet orders.
   5. No home delivery vehicles are to be parked at the rear of the premises or in Paris Lane.

7. These conditions are quite clear and require no further explanation by me. I trust that you are honouring them, though I am informed that with regard to the vehicles parking at the rear of the restaurant and in Paris  Lane  that  this  remains  problematic,  as  does  the  open  doors which allow noise from the restaurant to cause disturbance to local residents.
8. I would ask that if you have not already instructed your drivers not to leave their vehicles in this area then please do so immediately. I am confident that during the hours of the home delivery service your drivers can find alternative and legal parking within the near area, rather than cause obstruction in Paris Lane and to the rear of the restaurant.
9. I would add that, I appreciate that actually managing your drivers every second of the day is almost impossible. Therefore, can I suggest with your agreement of course that you put a chain or other temporary barrier across access point to prevent your drivers from transgressing? The chain does not need to be locked, but it would serve as a reminder

to them not to deposit their vehicles there even for only a second. Disturbingly, I am informed that some residents have had to park elsewhere when unable to gain access to their own garage. This is unacceptable.

9. On the matter of the noise and smells, I would remind you to keep the doors closed. I appreciate that the heat experienced by your staff in the kitchen is of a concern to you. However, the noise and smells that escape the restaurant when the doors are open cause great disturbance and stress to nearby residents.
10. The conditions of the permit are what they are and if they are not being complied with then enforcement action might be the only route to take. I wish to avoid that option and want to work with you, not against you, so I appeal to your good will and support on this matter.
11. On the matter of the extractor unit on the roof of the kitchen, I would ask if it were possible to put a screen on the side of the unit facing the garages, much as you have done on the Paris Lane side. This would go a long way to showing the residents that you are willing to  compromise  with  their  needs  and  are  considerate  of  their concerns. The image of the unit from the garage side appears unsightly to some residents and again underpins their concerns of a degradation of the area in which they reside.
12. I am also advised that people have been seen purchasing and drinking alcohol outside of your licensing hours. I must inform you that I am liaising with the States of Jersey Police Licensing Unit to clarify your permitted hours and on this matter I will get back to you. However, you should know exactly what your licensing hours are and when you are forbidden from selling alcohol and I would suggest that you do not want  this  department  with  the  police  and  other  departments  to consistently visit this subject.
13. In conclusion, I am appealing to you to show some goodwill to the people who reside in the area who feel that their rights are being eroded by the alleged bad practices' of the staff at your restaurant.
14. I think it is in all of our interests that we try to find solutions to the concerns these people harbour. To do that we need to show good will. By doing so it keeps the various interested States Departments at bay.
15. I would suggest that the last thing you need whilst trying to build your business  is the  constant  interference  from  the  Police,  Planning Department, Regulations and Undertakings, Environmental Health et al who might continue to have concerns regarding your compliance with the various laws.

16. By taking some positive and obvious steps to show your willingness to comply and your consideration and concern for how certain people feel you will achieve some harmony and greater acceptance. After all such a situation can only improve business.
17. I will obviously be kept up to date with how things are developing in the future and no doubt I will learn if any breaches of the law are being committed. If so I will have to re-visit these problems and possibly implement enforcement proceedings, I hope not.
18. For  your  information  I  will  be  copying  this  letter  to Mr. Sayad Hussain,  The States  Police  Licensing  Unit,  and  Economic Development regarding your Places of Refreshment Licence' and Environmental Health for their records.
19. If you have any problems with the matters discussed above please feel free to contact me to discuss further. Thank you in advance for your good will and cooperation in this case.

28. In his letter to Mr. Turner on 7th July 2010, set out in full in paragraph 30 below, the Enforcement Officer wrote in paragraph 30.4 that:

"I will write to Mr. Kahn and Mr. Miah in the first instance to remind them of their obligations in terms of the original planning permit. Before  that  I  need  to  research  the  original  permit  conditions  to confirm what is enforceable and what is not or which if any of the above 6 concerns were not addressed in the original permit"

An examination of the letter above shows that the Enforcement Officer did no such thing. The letter is not only inaccurate as it contains conditions that do not exist and which, therefore, would be unenforceable it also shows a lack of competence  and  genuine  concern  for  the  plight  of  the  residents.  The conditions did not exist because no Places of Refreshment conditions were in place because the restaurant had received a 3rd Category Liquor Licence from the Licensing Assembly and therefore had no need of a licence from the Economic  Development  Department.  Nor  did  the  Licensing  Assembly judgment state, as he states in paragraphs 27.5.4 and 27.5.5 that a walk-in takeaway will not be permitted or that home delivery vehicles could be parked at the back of the premises for which there were two parking spaces.

29. It is also noted that in paragraph 27.11 he asks Mr. Miah on the matter of the extractor unit:

"if it were possible to put a screen on the side of the unit facing the garages, much as you have done on the Paris Lane side. This would go  a  long  way  to  showing  the  residents  that  you  are  willing  to compromise with their needs and are considerate of their concerns. The image of the unit from the garage side appears unsightly to some residents and again underpins their concerns of a degradation of the area in which they reside".

This  again  reinforces  the  failure  of  the  Planning  Department  to  properly condition  the  screening  of  the  fan  in  their  25th  May  2010  permit (paragraph 16  above)  and  also  shows  the  Enforcement  Officer's  lack  of appreciation of the site and the problem. The area he is asking to be screened from,  i.e.  the  garages,  have  no  residential  windows  facing  the  fan  and therefore is not visible to residents but to the east of the fan is the balcony of the Turner residence which has a direct view of the unit as can be seen in the photograph in Appendix 2. There was also no follow-up on the screening, as the view seen in the photograph remains the same to this day.

7th July 2010

30. On 7th July 2010 a letter was sent by the Planning Department Enforcement Officer to Mr. D Turner, Jnr. This letter is set out below with the text broken down into numbered paragraphs and certain statements highlighted in red ink.

1. "I write in connection with the above matter. Firstly, I would like to express my gratitude for attending the meeting at the Town Hall on Thursday  1st  July  2010.  It  was  very  beneficial  to gain  your perspective  of  the  various  problems  you  and  your  family  are experiencing from the operation of the restaurant.
   2. Secondly, the purpose of my writing to you isto explain what I can do as an enforcement officer to try and help you with those problems and to explain what if anything appears to be outside of my remit of operation.
   3. As I see it the main contentions are:

1. Take away service and traffic resulting.
2. Access  Issues,  Mr. Turner  sometimes  has  to park  at  Bellozanne because he cannot gain access to his garage.
3. Hours of operation of existing use.
4. Noise caused by open doors, staff behaviour. Open doors are a breach of permit condition.
5. Smells emanating from restaurant and extractor fan.
6. Licensing Issues regarding after hours serving.

4. I will write to Mr. Kahn and Mr. Miah in the first instance to remind them of their obligations in terms of the original planning permit. Before  that  I  need  to research  the  original  permit  conditions  to confirm what is enforceable and what is not or which if any of the above 6 concerns were not addressed in the original permit.
5. I will also be asking Mr. Khan and Miah to put a chain across the entrance  to the  garages  during  operational hours  so  as to prevent access by unauthorised drivers He might choose not to do this, after

all I cannot force this point; but I will try and convince him that it is in his interests to show some good will. I can't imagine that he will relish Planning, Environment and the Police constantly on his back fighting these issues. A chain would not prevent legitimate access and egress by residents, but with the correct management of Mr. Miah to his drivers would go some way to ensuring that the route remains unblocked by parked vehicles.

6. There are other methods that I would rather not discuss with you that I might be able to use to force compliance with the conditions, the above is merely a starter in the hope that some good will is expressed.
7. I will keep you updated with developments. In the meantime if I can be of any further assistance to you please do not hesitate to contact me".

20th August 2010

31. On 20th August 2010 Advocate Begg wrote to the residents of First Tower in response to their letter of 6th June 2010 which had been sent to the Anderson family, via Le Gallais Estates.

His letter is set out below in full, with numbered paragraphs and certain elements highlighted in red ink.

1. I refer to your email of 15th June to . . . of Le Gallais Estates chasing up a reply to your letters to them of 6th June, one to the Anderson family, c/o F. Le Gallais & Sons, and one to Mr. Khan of Bay leaf Restaurant.
2. As Mr. Khan of my client company has repeatedly said, he is anxious to demonstrate  that,  given  the  chance,  he,  as  a  professional restaurateur, will run an orderly premises and do his best to ensure that  it proves  itself  to be  an  asset,  and  not  a  detriment,  to the community. Notwithstanding the vociferous and repeated objections of you, and the other persons on behalf of whom your letters of 6th June were written, as well as the Deputies to whom your letter to . . . was  circulated,  Bayleaves  Restaurant  Limited  was,  of  course, ultimately successful in its retrospective Planning application and a Liquor Licence application.
3. It  would  appear,  however,  that,  having  "run  the  gauntlet"  of  two Parish Assemblies, two Licensing Assemblies and a public Planning Panel hearing, you and the other local residents remain unsatisfied and are determined "draw blood" by pursuing your objections still further.
4. Indeed, I understand from Mr. Khan that, at his meeting with you/the Deputies on 5th June (to which you refer in your letter to him of 6th June), there was talk of (or, as Mr. Turner might put it, a threat to) pursue an Appeal against the Planning Panel decision. As I observed at the Licensing Assembly, I would have been very surprised if such an  Appeal,  if  pursued,  had  been  successful,  having  regard  to  the

limited grounds upon which it could be made (i.e. that no reasonable Panel could have come to that conclusion).

5. As you will be aware, even if the Appeal had been successful, the consequence  would  have  been  that,  although  the  retrospective Planning  application  would  fail,  as  the  Chairman  of  the  Panel explained at the Panel hearing, my client company would be perfectly at liberty to put back the ducts in their original position (as per the original Planning Permit, issued ten years ago) and there would thenbe absolutely nothing that you or the other residents could have doneabout it.
6. The points which you set out in your letters of 6th June substantially repeat the issues which have been raised (frankly) ad nauseam (by you,  the  objectors  on  behalf  of  whom  you  have  written  and  the Deputies whom you have copied in on your e-mail and letter under reply) at the two Parish Assemblies, two Licensing Assemblies and the Public Planning Panel hearing to which I have already referred – not  forgetting,  of  course,  the  written  objections  lodged  to  the Retrospective Planning application itself.
7. Whilst  willing  to  engage  in  reasonable  dialogue  with  a  view  to appeasing the reasonable concerns of local residents as far as possible, my client company, understandably, I think, is reluctant to become embroiled  in  never-ending  correspondence  with  you  and  those  on whose behalf you write. In particular, you can't reasonably expect to be able "write a wish list" and expect my client to satisfy every single item  without  demur!  Accordingly,  whilst  I  am  instructed,  on  this occasion, to reply to (both) your letters, the hope and intention is that this letter will be comprehensive and conclusive and will be the end of the matter as far as my client company is concerned: as I have said, it has  its  Planning  Permit,  it has  a  Liquor  Licence  and  is entitled, therefore, to run its restaurant business.
8. There will inevitably be a period of settling down as things fall into place. To take but one example, there needs to be a certain amount of experimentation  with  the  fan  to  balance  the  respective  levels  of noise/odour. As I am sure you will appreciate, as the speed of the fan is increased, thus drawing odours through the filtration system and neutralising them as far as possible, the noise inevitably increases.
9. I  also  think  you  need  to bear in  mind that  we  are  going  from  a situation where you've had the restaurant empty for nine months to a situation where a fully-fledged restaurant business is up and running – so there is bound to be more activity than that to which you have recently been used.
10. Whilst, as you will be aware from extracts of the reports read out at the Parish Assembly, the Licensing Assembly and the Planning Panel hearing,  everything  which  it  is  reasonably  possible  to  do,  at reasonable expense, has been done to minimise levels of odour and noise, it is impossible to eliminate either totally; and it can safely be

assumed that the possibility of their being some noise and some smell generated by an Indian restaurant would have been considered when Planning  originally  considered,  and  granted,  a  Permit –  some  ten years ago.

11. Turning now to the substance of your two letters, I refer, first, to your letter of 6th June, addressed to the Anderson family (c/o Le Gallais & Sons). Whilst I appreciate that the letter isn't addressed to my client company, it nevertheless refers to matters which concern my client company and on which I therefore consider my client company is entitled to "have a say" – by responding to the points which you raise.
12. The problems which you summarise in the second paragraph of your letter  to  the  Anderson  family  (i.e.  the  problems  which  were encountered with the previous Lessee over late-night noise, cooking odours, illegal parking in Paris Lane/the garage cul-de-sac, litter, and disorderly (and abusive) behaviour) have all been raised at the Parish and Licensing Assemblies and in the objections lodged with Planning in relation to the retrospective Planning application – and, indeed, at the Planning Panel hearing itself.
13. As you and the other residents have been told before (by the Bailiff and Deputy Bailiff and by the Chairman of the Planning Panel), the fact of the matter is that Planning permission was given in (about) 2000 for the premises to be changed from residential to commercial (originally, I believe, to use as an Antiques shop; and thereafter to a restaurant). That was the time for any objections to be made. It is too late, now, all these years later, to object to the building being used as a restaurant.
14. As I said at both the Licensing Assemblies, and as I'm sure would have been taken into account by Planning in its considerations, one only has to look around the immediate vicinity to see how many other restaurants/takeaways  there  are  (Kingfisher,  Lotus  House, Pinocchio's, the Old Bake House, to name but four); and the same is true of any restaurant or takeaway in St. Helier . Restaurants need to be situated somewhere; they need to be housed in a building; and, unless one has a whole block of restaurants in one building, therefore, it is inevitable  that  the  restaurant  is  going  to  be  in  the  vicinity  of residential premises, bearing in mind that, like all animals, humans need to eat! Indeed, in many modern developments (including hotels and blocks of flats: take the Waterfront development, for instance), one finds restaurants incorporated into hotel and flat developments where they are regarded as a positive benefit to the residents and it is considered a selling point by estate agents.
15. Needless to say, the appropriate precautions need to be taken (in terms of minimising noise, smell and antisocial behaviour) but I think it will be apparent from the reports issued by Environmental Health, the permit issued by Planning and judgment of the Licensing Assembly, that each of these bodies, in turn, was satisfied that all reasonable precautions which could have been taken have, indeed, been taken.

16. I am bound to say that it is disappointing that, having had a meeting with Mr. Khan on 5th June and having written to him at some length listing all the things to which you expect him to attend, you should write, the very same day, to the owners of the premises, objecting that matters haven't improved.
17. That said, I'm glad to note your acknowledgment that Mr. Khan is "... not here to police the problems as they arise". That is true: he is not, and was never intended to be, manager of Bay Leaf Restaurant.
18. What he has said all along is that he is a responsible restaurateur and will take reasonable steps to run his premises in an appropriate and considerate  way.  Whilst  he  has  been,  and  will  continue  to be, receptive to the concerns of the residents, as I have said above, itis hardly reasonable to compile long "wish lists" and expect him to remedy the situation instantly.
19. As you heard at the Parish Assemblies and Licensing Assemblies, it is impossible to totally eradicate the smell of cooking: the most one can do isto minimise it. The way to minimise smell (as was explained at the Planning Panel hearing) is to filter the air through a series of charcoal, and other, filters. In order to do that, it is necessary to have a fan; and in order to work, that fan needs to turn for which purpose it needs a motor. Regrettably, to repeat what I have said above, the motion of the fan revolving creates a noise so it is totally unrealistic and unreasonable to complain, on the one hand, of the smell and, on the other hand, of the noise: if the extractor isn't running fast enough, the  fumes  won't  be  "pulled  through"  the  filters  and  thereby minimised!
20. As far as concerns the number of tenants in Magnolia Cottage that, with respect, is nothing at all to do with you or the other residents and certainly nothing to do with Licensing issues or the running of the restaurant business! If you are suggesting that there has been a breach of the Housing Law, you are, of course, free to make the appropriate representations to the Housing Department/Population Office. I do not know  what  you  mean  by  "security  concerns"  but  I  respectfully suggest  that  there's  no  more  need  for  you,  or  any  of  the  other residents, to have security concerns about who occupies Magnolia Cottage  than  there  is  for  you  to have  concerns  about  any  other residential house or apartment in the First Tower area. I fear that your concerns are bordering on the racially prejudiced.
21. Neither is it any business of yours who "belongs" there and who doesn't: subject always to the provisions of the Housing Law, that is a private  matter  for  Bayleaves  Restaurant  Limited  and  its  staff. Bayleaves  Restaurant  Limited  might  just  as  well  say  that  it  has concerns  over  who  lives  at  [the  letter  writers  home]  and  who "belongs" there and who doesn't! I am sure that your reaction would be the same!

22. That said, perhaps  I  should  briefly  explain  the arrangements  with regard to Magnolia Cottage. The restaurant itself comprises a dining area, a kitchen area and cloakrooms. In other words, there aren't any staff changing/relaxing areas to speak of – so there is nowhere for the staff to change (other than in the guest cloakrooms). The advantage of Bayleaves Restaurant Limited renting Magnolia Cottage, as well as renting  the  restaurant  premises,  is that  Magnolia  Cottage  can conveniently be used by members of staff for changing. As you are aware, under the terms of the Liquor Licence, the restaurant has to be closed at 11.00 p.m. which, the Licensing Assembly explained, meant that customers had to be out by 11.00 p.m.: it doesn't mean that the restaurant has to stop functioning by then. Depending on how busy the restaurant has been in anyone evening, clearing up takes place following closure: the whole of the kitchen and the restaurant has to be cleaned in order to maintain high standards of hygiene. Once that has been completed to my client company's exacting standards, the staff are off duty; and they go into Magnolia Cottage to wash, change and relax. I am sure that you can imagine that, when five or six Indian-speaking staff, who have been on duty all evening and who, therefore, have had little opportunity to talk, finally get an opportunity to do so, they naturally want to make the most of it. The situation would be exactly the same if the restaurant itself were situated in the centre  of   St. Helier  and  Magnolia  Cottage  happened  to  be  the residence outside the centre of town where the restaurant staff were "billeted": it is likely in that, in that situation, there would still be noise of excited (foreign) chatter late in the evenings. That is a normal use for residential accommodation – and, providing, of course, the noise  does  not  become  excessive  to as  to become  an  actionable nuisance, I respectfully suggest that you have no cause for complaint.
23. As far as concerns the Police calling at the Cottage "on at least three occasions  in the  last  few  weeks  and  [asking]  questions  of  some residents  as  to the  whereabouts  of  the  tenants",  I  find  this  very bizarre!  The  suggestion  seems  to be  that  employees  of  Bay  Leaf Restaurant Limited are under suspicion by the Police. The fact of the matter is that my client company has no idea why the Police were called. Clearly, they wouldn't have been called by my client Company itself! One can only assume, therefore, that they were called by one of the persons on whose behalf you write – perhaps to complain of noise or perhaps even to intentionally cause inconvenience in the hope that the Police will "put the frighteners on them"?
24. Obviously,  my  client  company  doesn't  have  any  idea  of  what questions were asked of the residents – whether those questions were about their housing status or otherwise. I can assure you, however, that there is no occasion at all for you to be concerned.

Turning, now, to you letter of 6th June to Mr. Khan, I refer to the bullet points and comment on them in order:-

25. Fan

• The screening was attended to shortly after your letter arrived.
• With respect, it is not for you, or the other residents, to dictate at what speed the fan should be run: as Mr. Khan agreed, he would instruct his staff to try to keep the fan running at a low speed in order to reduce (not eliminate) the noise. However, as already highlighted above, if the fan isn't running fast enough, then the smells would be sucked through hard enough in order to be efficiently filtered – and no doubt you and the other residents would then be complaining about cooking odours!  It  must  therefore  be  left  to  my  client  company's  staff  to decide what is the best setting: you may rest assured they will do their absolute  best  to  find  the  right  combination  between  effectively extracting odours and keeping the noise to a minimum.
• The correlation between noise and smell to which you refer here has already been highlighted in the previous bullet point. That said, you are complaining, here, about burning metal. This has been looked into and its thought probably to do with new working parts being added in order to minimise the noise level.
• In  your  letter,  you  ask  for  a  notice  to  be  erected.  In  my  client company's view, setting aside, for now, the cost, such notices could look unsightly and may give customers the impression that their host is dictating to them. As with most of these bullet points, my client company must be left to deal with whatever problems there may be in the way that it considers appropriate. My client company would rather instruct its staff to ask customers to leave quietly (if they are being too noisy) and not to wait outside (if they are congregating outside) rather than putting up notices here, there and everywhere.
• It is regretted if, from time to time, it has been found that the noise has been excessive. As already pointed out above, you can imagine that, when with five or six staff, who have been on duty all evening and haven't, therefore, had much opportunity to talk, finally do come off duty, they want to relax and socialise.
• As all the garage doors are the same all the garage owners will be aware  that  it  is  virtually  impossible  to  close  the  door  without  it making a noise/banging. Obviously, since my client company keeps supplies in the garage, the garage needs to be closed and locked. Whilst staff will continue to do their best to minimise noise, it is difficult – indeed, almost bordering on the impossible to eliminate it.
• My client company is vigilant about reminding its delivery drivers to try and keep the noise level down late at night.

26. Parking

• As Mr. Khan understood, the purpose of putting a notice up on the emergency exit prohibiting parking in Paris Lane was so that, if the emergency exit had to be used, it wasn't obstructed (e.g. by a car). If that  is the case, it  is  an issue to  do  rather  with  safety  than  with ensuring that cars don't obstruct Paris Lane. If otherwise, issue of parking in Paris Lane has been gone over time and time again.

As  the  Parish  Assemblies  and  the  Licensing  Assemblies  were assured, my client company's staff are being vigilant to ensure that nobody parks in Paris Lane for any length of time.

However, as Mrs. Fiander-Hill pointed out to the Licensing Assembly on  1st  June,  in  her  experience,  as  a  former  tenant  of  Magnolia Cottage, the main problem with the obstruction of Paris Lane lies not with  customers  of  the  restaurant  but  with  the  customers  from Checkers and other local residents.

I am not sure that I can accept that the garages are "in constant use" although I concede that they are liable to be used at any time.

• I believe that the requirement is to ensure that there is no obstruction in the cul-de-sac at the back of the restaurant and my client company's delivery drivers have instructions not to park on the right of way (but only in the designated spaces).
• I don't know who "we" is but, if the deeds entitle you to do so, you (whoever "you" is) are obviously entitled to chain off that part of the cul-de-sac over which there is no right of way. However, you are not entitled  to  put  a  chain  across  the  entrance  to  the  cul-de-sac  if  it prevents  access  by  my  client  company  to  its  parking  spaces  and garage. If you erect such a chain, you are warned that an application may be made for an injunction for it to be removed. A chain is just as much (indeed, more of) an obstruction as would be a car, or anything else, left on the right of way. The fact that it can be removed is neither here nor there: a car can equally well be removed.

27. Misc

• There are already two boxes for cigarette ends and the fact that you and the other residents are seeking to dictate how many boxes should be put up, demonstrates how trivial and unreasonable your demands are becoming! My client company must be left to put up however many boxes it feels appropriate: and these are not matters in which you or the residents should properly be interfering.

28. You close your letter by asking Mr. Khan to "address these points immediately as [you] feel strongly that [your] quality of life is being eroded by the presence of the restaurant and its associated problems".

29. With  respect,  I  think  you  will  find  that,  as  a  matter  of  fact,  the problems, such as they have been, are, in fact, a lot less than you had anticipated  and  the  comparatively  trivial  nature  of  the  few  points which you have raised speaks for itself.
30. As  I  have  said  above,  whilst  always  receptive  to comments  and willing  to accommodate  residents'  concerns  and  wishes  as  far  as possible,  my  client  does  not  expect  to  receive  "wish  lists"  nor incessant complaints about comparatively trivial matters.

27th September 2010

32. A meeting was held with at the Planning Department on South Hill on 27th September 2010. In attendance were Planning Officers (the Assistant Director of Development Control and the Acting Principal Planner), residents, Deputies Green, Hilton and Higgins. The purpose of the meeting was to review the situation at the Bay Leaf Restaurant and examine more CCTV film footage. The main details of which are contained in a letter received from Planning on 8th October 2010.

8th October 2010

33. On 8th October 2010 Deputies Higgins and Green received by e-mail a letter from the Acting Principal Planning Officer from the Planning Department regarding the conditions on the Bay Leaf Restaurant by various Authorities and evidence that needs to be gathered to take action to deal with the problems that had been reported to the Department.

The letter which is recorded below in full but with text broken down into numbered paragraphs and some statements highlighted in red ink stated:

1. I write further to our meeting on Monday 27th September to provide you with an update on the discussions that have occurred since the meeting, then to review the present position and responsibilities, and then to consider the next steps'.
2. Given the nature of the issues we have spoken to the agencies that have been involved to date, to ascertain their regulatory scope and understand their ability to actively enforce the various issues which have arisen at the property. For simplicity this has been arranged under Department headings, I can also confirm that the position has also been verified by each Department prior to sending this letter.

Planning

1. Background

4. Back  in May  2000,  the  Planning  and  Environment  Committee approved  application  reference  10065/1  which  granted  planning permission  for  the  change  of  use  of  ground  floor  from  retail  to restaurant. This permission was subject to only one relevant condition, being:

"that the opening hours of the restaurant hereby approved shall  be  12 midday  to  12 midnight  on  any  day  and  no customers shall be present on the premises outside of these hours".

5. The restaurant then operated for a period of some 9/10 years, until the lease changed hands (probably in late 2009) and new operators took the property over.
6. In early 2010 we were made aware of alterations to the extractor fan system, and in February 2010 the operator submitted a retrospective planning application seeking to regularise this work. As the use as a restaurant  has  been  established  by  the  2000  permission,  the  2010 application related solely to the revised extraction arrangements.
7. Planning  permission  was  granted  in May  2010  subject  to  the following conditions:

1. Unless  otherwise  agreed  in writing  by  the  Minister  for Planning and Environment, all cooking odours shall be vented through the extraction system hereby approved, which shall consist of one canopy filter, three pre-filters and three active carbon block filters, as specified in the letter from the agent of 22 March 2010.
2. Prior to first use of the extraction system hereby approved, a Schedule of Maintenance and Servicing shall be submitted to and approved in writing by the Minister for Planning and Environment, with the scope of work to be first agreed by the Health and Social Services (Environmental Health), to ensure the  efficient  operation  of  the  extraction  system,  with  the agreed  Schedule  of  Maintenance  and  Servicing  to be thereafter fully implemented in perpetuity.
3. Prior to the first use of the extraction system, details shall be submitted  to  and  approved  in  writing  by  the  Minister  for Planning and Environment to show a vertical screen to the top of the flat roof, to reduce views of the structure from Paris Lane,  to  be  thereafter  implemented  within  30 days,  and maintained in perpetuity.

8. The conditions  quoted  above  therefore  represent  the  operational matters which the Planning Department are able to control, and as faras we are aware, they are being complied with.
9. It is acknowledged that at the time of the May 2000 permission, the residents did make representations expressing their concerns, and a similar letter was received from the Parish. However, the May 2000 permission was subject to due process and proper consideration by the Committee of that time. The Minister for Planning and Environment has no powers to revoke permission once it has been implemented,

neither  can  conditions  be  retrospectively  added  to  an  established permit. Observation: But what about screening conditions on the new revised extractor system?

2. Current Investigation

10. The additional  planning  matter  for  consideration  is whether  the operations at the premises have gone beyond what can legitimately be considered as a "restaurant" (as per the May 2000 permission) and whether it now represents a "mass take-away food outlet" (as strongly presented by the residents at our meeting).
11. This situation raises the issue of what in planning terms is known as an ancillary' operation. Without relating to the circumstances at the subject site (as we explained at our meeting) itis quite legitimate that a restaurant includes an element of takeaway service, as long as it is ancillary to the primary use. However, at some point, the takeaway use may go beyond what is ancillary, and become a new use in its own right, or a composite restaurant/take-away use.
12. If it can be demonstrated that the take-away element of trade is no longer ancillary, then a "material change of use" may have occurred. It  is important  to emphasise  this  terminology,  because  for  the purposes of being defined as "development" by the Planning Law (and so require an application) the new use must not only be different to the original, but the change must be "material", in other words, significant.
13. As this background shows, the necessary assessment is not black-and- white. There is no defined cut-off point which, if a given percentage of trade is shown to be takeaway, would lead to a firm conclusion that a change of use is material. Every case will be different, depending on the specific operation and the context in which it sits. From our initial discussions  with  the  Law  Officers,  we  are  advised  that  it is notoriously difficult to demonstrate that a material change of use has occurred in cases such as this.
14. Our approach is therefore to deal with this in a phased manner, with an evidence based approach. We have already commenced gathering information as to the nature of the take-away operation, and of course we  have  the  CCTV  information  provided  by  the  neighbours.  The research will need to include detailed information as to the number of traffic movements, and the financial turnover, which can be put down to the take-away business. No single element of evidence will be conclusive to the assessment and a multi-layered approach will have to build a rounded picture.
15. On  completion  of  the  information  gathering  phase,  we  will  be referring the matter to the Law Officers for a legal opinion on the "ancillary" issue. If we end up pursing this route, and requiring an application, itis absolutely essential that the legal implications are

understood,  both  in  relation  to  this  site,  and  other  comparable establishments.

16. So, to conclude from a Planning perspective, we will enforce the conditions as set out in section A above, and will continue to progress the first phase of the "ancillary" assessment of the take-away issue, as described in Section B.

Economic Development

17. At the time of the change in the lease (late 2009/early 2010) the new operator approached the Economic Development Minister to secure a "Places of Refreshment" licence.
18. The licence was drafted, and specified conditions which included:

1. The permitted times of opening shall be between 9am & 11 pm. With no cooking beyond this time.
2. The doors to the rear of the premises to remain closed whilst cooking isin progress.
3. No home delivery vehicles to be parked at the rear of the premises or on Paris Lane.

19. However, the Places of Refreshment Licence was never issued, as the operator had also applied to the Bailiff for a "3rd Category Licence" (a Liquor Licence) as administered by the Licensing Assembly. Thus the conditions described above were not finalised and are not in force.

Licensing Assembly

20. The 3rd Category Licence is (effectively) a higher-level licence than the Places of Refreshment Licence, and although the draft Places of Refreshment Licence from the Economic Development Minister was made  available  to the  Licensing  Assembly,  they  issued the  3rd Category Licence with the following conditions:

1. The doors to the rear of the premises must remain closed while cooking isin progress.
2. The licence holder is required to keep a record of the regular maintenance of the extractor filters and provide such record for  inspection  by  the  Health  Protection  Department  on request.
3. The permitted  opening  times  shall  be  between  9 a.m.  and 11 p.m., such that all customers must be off the premises by 11 p.m.
4. Background music only can be played.

5. If any door staff are employed, they be members of the Jersey Door Registration Scheme.
6. That the number of persons permitted to be on the premises shall at no time exceed 55, excluding members of staff.
7. The permitted  opening  times  shall  be  between  9 a.m.  and 11 p.m., such that all customers must be off the premises by 11 p.m.

The enforcement of these conditions is a matter for the Licensing Unit at the States of Jersey Police.

Health Protection

21. Outside  the  Planning  or  Licensing  process,  Health  Protection  is responsible  for  implementing  the  Statutory  Nuisance  Law.  The enforcement  of  a  "Nuisance"  is  a  different  matter  in Law,  to considering  whether  the  noise,  or  smells,  are  inconvenient  or unwelcome, and a higher level of resulting impact would have to be demonstrated.
22. From our meeting with the residents, I understood that they had been in contact  with  the  Health  Protection  team,  who  had  visited  the premises  and  offered  to  install  automated  noise  monitoring equipment. Having discussed this with the Health Protection team, itis my understanding that their offer was not accepted. As such, Health Protection cannot progress their investigation.

Other Parties

23. One of the key issues raised by the residents is the use of Paris Lane and the rear garage area for car parking by the customers of the restaurant (particularly takeaway customers) and by staff, including delivery drivers. Neither the Planning Permit, nor the 3rd Category Licence which is effective at the property include any requirement not to park in these areas, as such, neither the Planning Department, nor the Licensing Unit of the States of Jersey Police can enforce who can/ cannot park in these areas. The agency with responsibility for parking enforcement in relation to Paris Lane is the Parish of St. Helier .
24. It is understood that the rear garage area is private land, and as such its use is a matter for resolution between the private parties involved. From the information provided by the residents, the ultimate owner/ landlord is understood to be the Anderson family. If the contractually agreed private rights of the other users of the garage parking area are being damaged by the restaurant operations, then this should be taken up with the Anderson family directly.

In Conclusion

25. The Planning Department is able to enforce the condition in relation to hours of opening on the original permit, and the conditions on the May  2010  permit  for  the  extraction  system.  The enforcement  of conditions on the 3rd Category Licence are the responsibility of the States of Jersey Police Licensing Unit.
26. Outside the process of the enforcement of the current conditions, the Planning  Department  will  continue  to  progress  the  assessment  of whether a material change of use has occurred, by virtue of the nature of the take-away business, and will provide a further up-date when the necessary legal opinion has been obtained.
27. I  hope  this  letter  is  suitably  comprehensive  however,  if  anything further is required please do not hesitate to contact me directly.

21st October – 24th October 2010

34. Between 21st and 24th October 2010, Mr. & Mrs. David Turner Snr., found the situation around the restaurant to be intolerable and were forced to move out of home and stay at a location in St. Peter .

27th October 2010

35. On 27th October 2010 a meeting was held at St. Helier Town Hall which involved the Connétable of St. Helier , Simon Crowcroft , Planning Officers (the  Assistant  Director  Development  Control  and  the  Acting  Principal Planner),  residents,  Advocate  Dorey  and  the  4 District  Deputies.  At  this meeting, more CCTV evidence of what was going on around the restaurant was shown. It was agreed that all parties would meet 3 weeks later to discuss their findings.

12th November 2010

36. The situation with cars, noise, etc from delivery drivers was very bad and police were contacted. The residents were given an I.log No. 4/949.

16th November 2010

37. A further meeting at St. Helier Town Hall which involved the Connétable , Simon Crowcroft , Planning Officers (the Assistant Director of Development Control and the Acting Principal Planning Officer), residents, Advocate Dorey and  the  4 District  Deputies  took  place.  The Planning  Officers  had  done absolutely nothing, they had no information or findings to discuss whatsoever, and the meeting was given more information by residents and Deputies.

At this meeting the Assistant Director Development Control did not even acknowledge Mr. Turner Snr., and when Mr. Turner Snr. said "I want my home back" he merely shrugged his shoulders and opened his hands. When Mr. Turner Snr said "If you come down on Friday night you would see a fast-

food  restaurant,  a  takeaway  business",  he  received  no  reply.  In  fact,  no Planning Officers ever took up this invitation to come and see for themselves.

It was obvious to everyone present except the Planning Officers that Planning were dragging their feet and not interested in the plight of the residents or trying to resolve the situation.

17th November 2010

38. On  17th  November  2010  Advocate  Caroline  Dorey,  acting  for  Mr.  and Mrs. Turner, wrote to Advocate Andrew Begg who represented Mr. Kahn, the owner of the Bay Leaf Restaurant. She wrote:

1. I write on behalf of certain of the residents in the area of Bayleaves Restaurant  with  regard  to  various  ongoing  problems  which  are causing their lives to be prejudiced. You were aware of the potential concerns  of  the  residents  from  what  was  said  by  them  at  Parish meetings  and  Licensing  Assemblies.  Unfortunately,  their  concerns have been more than realised.
2. The residents do not object to the presence of a restaurant. What is, however, causing considerable difficulty is the takeaway. The manner in which this appears to be run is that delivery drivers drive into Paris Lane and then into the cul-de-sac which runs off Paris Lane, and either leave their cars in the cul-de-sac or park in one of the car parking  spaces  immediately  adjacent  to the  restaurant.  There  are considerable  car  movements  every  evening.  The  vehicles  are frequently driven at an inappropriate speed and certain of the vehicles are  exceedingly  noisy.  At  night  headlights  blaze  out.  One  has  a residential area with cars entering and leaving and revving engines. If the vehicles are left in the cul-de-sac and the drivers are asked to move the residents are often met with abuse. In addition, certain of the residents find the attitude of the delivery drivers threatening.
3. Mr. and  Mrs. Turner,  who  live  at  [address  given]  are  elderly. Mrs. Turner has a heart condition and Mr. Turner is frail. They, in particular,  have  found  the  excessive  noise  and  the  attitude  of  the delivery drivers exceedingly distressful and, indeed, had to vacate their property for five days because of their concerns.
4. I note from the judgement given by the Royal Court on 15 February 2010 that various matters were raised, one of which was car parking. Your response on behalf of Mr. Kahn was that customers would be told not to park in Paris Lane and that the removal of the possibility of customers picking up takeaways would drastically reduce the parking problem, which had largely been caused by customers wishing to park simply  for  a  few  minutes  whilst  they  took  delivery  of  their  food However,  this  problem  has  not  been  removed;  the  actions  of  the delivery drivers causes at least as bad a problem if not worse.

5. The residents  would  be  entitled  to take  proceedings  to seek  an injunction and damages by virtue of the private nuisance that has been caused. In addition, those who have a right of way over the cul-de-sac could take proceedings since the deed provides that they have a right of way at all times and for all purposes over the cul-de-sac.
6. However, from paragraph 10 of the Judgement of the Royal Court on 15 February 2010  it  appears  that  Mr. Kahn  is keen  to meet  the concerns of the neighbours. One possible way of so doing would be to arrange for the delivery drivers for the takeaways to park their cars either  on  Victoria  Avenue  or  in  the  multi-storey  car  parks  in Bellozanne Road, and to collect all deliveries from the front of the premises. There would then be no need for them to use the cul-de-sac at the rear at all.
7. Please confirm that such is agreed and Mr. Kahn will so instruct his staff and delivery drivers.

18th November 2010

39. On 18th November 2010 Advocate Andrew Begg sent an e-mail to Advocate Dorey. It read: