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STATES OF JERSEY
DRAFT PLANNING AND BUILDING (AMENDMENT NO. 8) (JERSEY) LAW 202- (P.76/2021): COMMENTS
Presented to the States on 20th April 2022
by the Environment, Housing and Infrastructure Scrutiny Panel
STATES GREFFE
2021 P.76 Com.
COMMENTS
Introduction / Background
The Draft Planning and Building (Amendment No. 8) (Jersey) Law 202- [P.76/2021] (hereafter the "draft Law") was lodged in the States on 2nd August 2021 by the Minister for the Environment and proposes to amend the Planning and Building (Jersey) Law 2002. Primarily, the proposed amendments to the Law are intended to ensure it appropriately reflects current practice; to create Conservation Areas; and to introduce additional controls to enhance the protection of the Island's trees. The draft Law was debated and adopted, in first reading, on 5th October 2021. However, owing to various concerns was referred to the Environment, Housing and Infrastructure Scrutiny Panel (hereafter "the Panel") for further review under Standing Order 72.
The Panel received a written submission from Jersey Construction Council on 7th September 2021 outlining several concerns relating to a lack of detail within the proposition; uncertainty over resourcing; and cited that there had been no consultation with industry on the draft Law.1 A meeting was also held with representatives from Jersey Construction Council on 23rd September 2021 to understand these concerns in further depth. Subsequently, the Panel wrote to the Minister for the Environment with a number of questions related to the concerns raised and to which the Minister responded on 12th November 2021. Several other submissions were received from the Jersey Farmers' Union, the Royal Jersey Agricultural and Horticultural Society and Antony Gibb Ltd / National Trust for Jersey, all of which are available to view online on the States Assembly website. The Panel also questioned the Minister for the Environment on the draft Law at the public quarterly hearing held on 7th December 2021.
The Panel was briefed on the draft Law by Government Officials on 21st September 2021. Officers informed the Panel that P.76/2021 encompassed three major changes including: expansion of the definition of developments to include works to trees; the creation of Conservation Areas; and to expand who could determine public inquiries. In addition, P.76/2021 also brought several minor changes.
Major Changes
Expanding the definition of development to include works to trees
The Panel was informed2 that currently trees were only protected through the List of Protected Trees which was not a preservation Order. It was explained that P.76/2021 sought to bring an enabling power to include developments to require planning permission in respect of works to trees that was similar to the planning permission that was required for hedgerows. It was noted that maintenance of trees would be permitted through an Order and that the Order had not yet been drafted at the time of the Panel's briefing in September 2021. It was highlighted that the intention was to protect the most special trees and not to hinder the management of trees or agricultural land. The Panel was informed that the Tree Strategy (under development at the time) would define which trees required merit to be protected.
1 Written Submission – Jersey Construction Council – 7 September 2021 2 Panel Briefing Minutes – 21st September 2021
The Panel questioned whether the protection of trees would include those within domestic curtilage on residential properties. It was confirmed that it would, however, rights would be defined for domestic curtilage to provide the appropriate allowances to residential properties. It was noted that work was still needed to define the process and the criteria regarding the protection of trees within domestic curtilage on residential properties.
The Panel raised concern regarding the ability for farmers to manage large areas of land and questioned how this aspect of P.76/2021 would impact their ability to do so. In particular, the Panel questioned what impact the changes would have on an individual's ability to fell or cut back trees on their property. It was highlighted that felling trees within a hedgerow or on boundaries currently required planning permission. However, felling a tree on privately owned land did not require planning permission. The Panel was informed that the parameters for what would be allowed (perhaps if the tree was diseased or unsafe), or the restrictions regarding trees within boundaries had not yet been defined.
The Panel was informed that it was the Minster for the Environment's intention to provide legislative protection for trees. It was noted that the Climate Change Emergency Fund would be utilised to protect Jersey's natural capital and that through the Tree Strategy and Orders for greater protection of trees the Island's special trees would be protected. It was explained that Jersey's tree stock was young, in the main, and not very varied. It was noted that the younger trees may not require the same level of protection. The Panel raised concern as to why the younger trees would not be protected, considering they would have many years of growth ahead of them in comparison to older trees.
The Panel asked whether consideration had been given to applying the works to trees aspect of P.76/2021 only to areas that were built up, and not to Jersey's green areas. It was explained that it would be difficult to draft Regulations accordingly (to Zones or tied to the Island Plan) and instead the regulations would be based on tree environments such as coastal areas and domestic curtilage areas.
The Panel emphasised that the tree management process should be cost effective for the community and should involve the least level of bureaucracy. The Panel also highlighted that when trees were unsafe, landowners should have the ability to fell the trees easily.
A submission made to the Panel by the Royal Jersey Agricultural and Horticultural Society (RJA&HS) stressed its concerns regarding expanding the definition of "development" to include work to trees and that there is "enormous potential for unintended consequences to have a detrimental effect on the Island tree stock without clarity as to how this is to be implemented."
The need for clear guidance was also stressed by the RJA&HS, as well as the outcome of the tree strategy which was currently still under development at the time of their submission in November 2021.[3]
Similarly, the Jersey Farmers' Union (JFU) also commented in a submission to the Panel that the lack of detail within the draft Law made it difficult to comment on and there was concern that the more important detail would be implemented by Ministerial Order and not subject to the usual scrutiny by the States Assembly. The JFU also raised concerns in relation to the articles of the Law pertaining to the pruning, lopping and felling of trees and it was JFU's hope that there would be exemptions to the Law such as the pruning of vines or other fruit trees. In addition, exemptions made regarding the Branchâge and the lopping of branches around field margins.4
In the public quarterly hearing held on 7th December 2021, the Panel questioned the Minister for the Environment on whether such exemptions were being considered. The response was as follows:
Head of Regulatory Improvement:
In relation to the orders, which is the control over works to trees, that is where the detail sits. Similarly, to our other orders such as the general development order, most of our orders allow for an element of permitted development, which is, essentially, exemptions, as you suggest. All of our orders propose a range of permitted development, things you can do without applying for permission. The Minister automatically grants by order. Those things have been determined by not only the sort of input we have had from the public on the tree strategy but we also have consultants from the U.K. who are doing a legislative comparative analysis across all of different legislations around treesWe are looking at a list of exemptions, if you will, so permitted development rights that would be aligned with our own legal constructs. We are also looking at, potentially, there are options around a competent person scheme or a notification scheme. M.S.I. (multiscale segment integration) are sort of schemes that exist in other jurisdictions that might be more appropriate than applications. We will still have applications for the very significant and the very outlying requirements. We would still need a mechanism by which someone could apply if they fell outside the exemptions or they fell outside the notification schemes. But the idea with that, that would be in the very minor elements.5
The Panel understands that the adoption of Amendment No. 8 to the Planning and Building (Jersey) Law 2002 would bring trees into the definition of development' and would therefore be subject to the penalties for offences which are currently provided for under that law6. For example:
Article 7. Land not to be developed without permission
- A person who develops land except with, and in accordance with, planning permission shall be guilty of an offence and liable to a fine.
- A person shall be guilty of an offence under paragraph (1) if when undertaking development the person contravenes any condition subject to which planning permission for the development was granted.
- In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to any
4 Written Submission – Jersey Farmers' Union – 15 November 2021
6 Planning and Building (Jersey) Law 2002
financial benefit which has accrued or appears likely to accrue or could have accrued to the person in consequence of the offence.
- A person may be convicted of an offence under this Article despite the fact that –
- an enforcement notice or a condition notice has been served in respect of the breach of development controls; and
- every step required by the notice to be taken has been taken.
Article 10. False information, etc. in application for planning permission
(1) If when making an application for planning permission a person knowingly or recklessly makes a false or misleading statement or representation or a statement or representation with a material omission the person shall be guilty of an offence and liable to imprisonment for a term of 2 years and a fine.
(6) A person who –
- fails to comply with a notice served on the person in accordance with paragraph (2)(b); or
- uses land in contravention of the notice,
shall be guilty of an offence and liable to a fine of level 3 on the standard scale.
Article 44. Offence when enforcement notice is not complied with
(1) The owner of land to which an enforcement notice relates who –
- fails to take a step within the period specified in the notice to take that step; or
- carries on an activity after the period specified in the notice to cease the activity, shall be guilty of an offence and liable to a fine.
(7) In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to any financial benefit that has accrued or appears likely to accrue or could have accrued to the person in consequence of the offence.
Creation of Conservation Areas
The Panel was informed[4] that there was currently no provision for the creation of Conservation Areas and therefore the draft Law sought to bring enabling powers to create Conservation Areas. It was noted that offences would be created by Regulations and the detailed process by Orders, however, both the Regulations and the Order were yet to be drafted. It was explained that it was more difficult to draft a detailed process in statute and thus an Order would be used instead.
The Panel requested clarity regarding the scope of a conservation area. It was explained that a conservation area would be created where architectural and cultural preservation was required in a built-up area. It was noted that not all buildings would merit individual listing for architectural and cultural value within an area, however, to protect a setting (an entire area) an entire street may be designated as a conservation area to protect the whole architectural heritage of that area.
The Panel raised concern in relation to not having the Orders drafted in advance as it was evidently unclear as to what the Orders would specify. It was explained that the Orders could only be developed once the principles of the draft Law were agreed. It was
noted that the Orders would be signed by the Minister for the Environment, however, the States Assembly would not be required to approve the Order before it would come into effect. It was noted that the wording of the Orders would specify when the Orders would come into effect and that a mechanism by which the States Assembly could challenge the Orders would be available. It was noted that prior to any Order being made, stakeholder consultation would be undertaken.
The Panel raised concern in the briefing that consultation with farming stakeholders on the Conservation Areas had not taken place. It was noted that the Conservation Areas were a longstanding intention of the States Assembly, so had been actioned accordingly.
Article 56a of the draft law grants powers to the Chief Officer to designate "relatively broad geographical areas as conservation areas." The Panel asked what responsibility the Chief Officer had in relation to the Creation of Conservation Areas. It was explained that the Chief Officer was designated as responsible as the Minister for the Environment's powers were limited. It was noted that the Minister's authority was moved away from the Planning Law so that the Minister would only handle appeals.8
In the debate on the principles of the draft Law, some concern was expressed that there would be a dilution of power afforded to the Minister, in exchange for greater power afforded to the Chief Officer. In response to this, the Minister stated the following:
Deputy J.H. Young:
"Why are we giving powers to the chief officer to designate conservation areas?" I was told that: "You are conflicted. If you are dealing with appeals, you are going to affect ... once you set a conservation area, obviously you are going to have conflicts so it has to be the chief officer" but of course we have got a situation under the target operating model that the chief officer ... there are discussions about which post should it be, so I think what we have got is the best we can achieve at the moment, but I am pleased. I think it is right that the rules within that conservation area will be decided by the Minister through what is put in here, but it has reminded me, one of the arguments that came to me: "Why was it the chief officer?" and what was said to me was the chief officer would be required to act only on the evidence coming to them from the expert advisers, that it would not be a question of the chief officer saying: "Oh, I like this. I will do that." There has got to be an evidence based process and there has obviously got to be consultation and engagement and obviously the chief officer there would be acting in an administrative capacity.9
In the public quarterly hearing held on 7th December 2021, the Panel questioned the Minister further on the roles and powers of the Minister and the Chief Officer, particularly in regard to the designation of Conservation Areas. The Minister responded as follows:
The Minister for the Environment
when it comes to conservation areas I think there should be a ministerial function. I have asked for advice on a further amendment to put those powers
8 Panel Briefing Minutes – 21st September 2021
9 States of Jersey Hansard of States Debate – Tuesday 5th October 2021
to the Minister. You have not received that draft amendment, if the legal advice allows me to do it, which is another reason why I have extended the [States debate] date, Chair, to allow more time for your review. I am sorry in noting that in public but I think the public probably needs to know that I am delaying that down to allow more time to answer this and other questions because there are other matters in there that do require answers as well. We have got work in progress to answer them, Chair, and I am very confident by the time we get to the new date we will be able to answer them properly for you.[5]
The Panel notes that the Minister for the Environment has proposed an amendment to P.76/2021 which, if adopted, would give powers to the Minister (instead of the Chief Officer) to designate Conservation Areas by Order.[6] The Panel welcomes and supports the Minister's proposed amendment.
In a written submission, Jersey Construction Council raised concern that "the implications of the Conservation Area Change are extensive, and as drafted will result in considerable additional resource burden for the Government's IHE Department, if required to implement them.[7]"
A joint submission received from Antony Gibb Historic Buildings Consultants and the National Trust for Jersey, welcomed the introduction of Conservation Areas and asserts that there is local expertise on Island to carry out the work involved:
"The National Trust for Jersey, Société Jersiaise and Save Jersey's Heritage have all confirmed that we have the expertise on island to assess, characterise and set the boundaries of CAsIn terms of pressure on IHE [Infrastructure Housing and Environment] (Planning), therefore, the initial phase of designation would place minimal burden on government resources, would provide local employment and community engagement.[8]"
Concerns were raised by the JFU regarding the introduction of Conservation Areas. Primarily that there should be no significant loss of land to the farming industry. It was noted that emphasis appeared to be on sites of historical or archaeological significance and that small adjustments to agricultural practice might be necessary and could be managed. However, the JFU stressed the importance of not having large areas of land removed from food production.[9]
In the public quarterly hearing held on 7th December 2021, the Panel questioned the Minister for the Environment on what assurances he could provide that the designation of Conservation Areas will not inadvertently create a loss of land currently used for agricultural purposes or food production. The following response was provided:
Head of Place and Spatial Planning:
the designation of conservation areas would generally reflect areas of special historic interest and character and would not necessarily embrace agricultural land in terms of, as the Minister suggested, it tends to be related to areas of the built environment. Having said that, it would include areas between buildings. It is not just about the specific buildings themselves, it is about the spaces and public realm between buildings that can help confer that particularly character on an area. Even if it did involve any open space or agricultural land, I would not necessarily see that causing any issues around the continued use of that agricultural land or any issues associated with it remaining in productive agricultural use
we are working to develop the criteria that will be used to identify and define conservation areas. But I think, as the Minister said, successive Island plans have sought to identify those areas that might be the subject of conservation area designation. You can probably think of parts of the Island that might fall into that category, so where they have a distinct architectural or historic character, places like St. Aubin, Gorey, some of the parish centres, thinking about Grouville Church and the area around the church. It will be related to historic buildings and their settings but it may embrace some areas of agricultural land or public open space that helps give that area its character. I hope that gives you a sort of flavour of the type of places that might be under consideration, Constable.15
Expanding who can determine public inquiries
It was noted that the current position was for the Minister to determine the outcome of applications subject to public inquiries. It was explained that the change brought by the draft Law would enable the Minister for the Environment to determine applications alone, or to call a Panel to assist in the decision-making process.
The Panel questioned16 whether the option to call a Panel should be the default. It was explained that the intention to allow either the Minister or a Panel to determine the application would provide a more robust and flexible system, in case of conflicted Panel members. In such circumstances, the Minister for the Environment would still be able to make the decision alone.
The Panel raised concern in the briefing regarding the accountability of the decisions made to determine the public inquiries. The Panel asked who would be accountable for the decision made if a Panel were to make the decision instead of the Minister for the Environment alone. It was explained that no responsibility existed beyond determination. It was noted that legal advice would need to be sought for accountability beyond the determination of the work.
Deputy J. Maçon lodged a proposed amendment to Article 6 of the draft Law on 3rd November 2021 which seeks to increase the options for membership of the Determining Panel in the event of a conflict of interest arising between the Minister, the Assistant Minister and the Chair of the Planning Committee. In his comments in support of the Deputy 's proposed amendment the Minister for the Environment acknowledges that:
16 Panel Briefing Minutes – 21st September 2021
"the proposition, if unamended, is restrictive in that it limits the ability of the Minister to utilise a determining panel' in a scenario where the determining panel's membership - currently defined in the unamended Proposition as the Minister, their Assistant Minister and the Chair of Planning Committee – has an actual or perceived conflict of interest.[10]"
Minor changes
The draft Law also provides for several minor changes which were outlined to the Panel, in the briefing[11], as follows:
• The change to the byelaws for in-building infrastructure would introduce the ability to make byelaws for installations of in-building infrastructure and equipment for high-speed data communication networks and electric car charging points.
• The change for control of caravans by Order would provide control of caravans by Order thereby reducing the need for Islanders and tourists to make an application to store or use their caravans. It was noted that the Order was yet to be drafted at the time of the Panel's briefing.
• The change to the aspect of appeal inspectors as contractors would remove the requirement for appeals inspectors to be States Employees and would retain inspectors as contractors. It was noted that all other requirements of appointment would remain unchanged.
• The change to the right of appeal for Parishes and Government of Jersey would clarify that a third-party appeal could be brought by a person, a Parish, or a department of the Government of Jersey instead of a person other than the applicant as specified in the current Law. It was noted that all other tests for
appeals would remain unchanged.
• The change to the aspect of time limits to bring an appeal would introduce specific provision to appeal to the Judicial Greffier for an extension of time to bring an appeal beyond 28 days currently under the Law.
• The change to the appeal to the Royal Court would introduce the right to appeal the provision for the extension of time to bring an appeal beyond 28 days as brought by the of the Judicial Greffier through the Royal Court.
• The change to appeal procedures would permit the inspectors to modify the procedures from hearings to written representations with the consent of the appeal parties instead of the current position whereby inspectors could modify the procedures only by changing written representation appeals to hearings.
In respect of the changes regarding appeal procedures, the Panel asked in the briefing for an example of when that would be used. It was explained that parties may be content for the procedure to take place under written representation, however, currently the Law only allowed for representation through hearings. Therefore, if all parties consented, this change would enable the use of written representation as well.
Several current practice changes were also outlined to the Panel in the briefing, as follows:
• The change to publication of applications would allow the Chief Officer to reject the application if applications were not publicised in accordance with the Law and thereby would conclude the process.
• The change to non-determination to allow representations would confirm the current practice of non-determination within a time limit to allow representations to be made. Time limits would be determined by an Order which was yet to be drafted at the time of the briefing. It was noted that this change was to provide further clarity for the public.
• The change to conditions to include biodiversity would allow for the inclusion of conditions to enhance biodiversity. It was noted that this was already taking place in practise, however, the change would demonstrate it within the Law.
• The change to conditions to include commencement would include the time in which a development would need to be commenced (three years). It was noted that this was already taking place in practise, however, the change would allow for it to be included in the Law. It was explained it would inhibit the potential of land banking.
• The change to commencement of development would include a definition of the commencement of a development. It was noted that the process definition was already available on the planning website, however, the change would be confirmed within Law.
• The change to requirement for site of special interest (SSI) applications would remove the judgement of adverse impact as currently outlined in the Law and would require application for any change that impacted an SSI. It was noted that no significant changes were envisaged by the change being brought. However, the penalty for false or misleading information when submitting such an application, to align with the practice for planning permission, was also being included. It was noted that the aspect in respect of false information would be applied throughout the Law.
• The change to restricted activities would provide for the inclusion of or similar implement' for the avoidance of doubt. Currently, restricted activities on SSIs included probes into the ground. The Panel discussed whether restrictions were already in place for the use of metal detectors.
• The change to the right to appeal against reserved matters would rectify a drafting error from the 2017 amendment whereby a right of appeal existed against all other types of decisions within the Law except for reserved matters. The change would provide for the inclusion of this provision.
• The change to nomination of inspector would remove the link between the appointment of the inspector and the receipt of the appeal. Currently, the Law required the Judicial Greffier to appoint an inspector upon the receipt of the appeal, however, in practice, inspectors were booked a year in advance.
• The change to Minister's decision on appeal would include that the Minister's decision of the appeal was the date of the decision. Currently, when the Minister decided on an appeal, the decision to uphold or dismiss the appeal, resulted in uncertainty over the decision date. That had implications for the date of commencement of development or a re-submission for no fee. It was explained that uncertainty existed regarding the decision date in respect of the implications on the commencement of the development date and that the change would provide the clarification that the date of the Minister deciding the appeal would become the determination date that implicated what would follow.
Regarding the changes that would enable the Minister to reject applications that had not been made in accordance with the Law, the Panel highlighted that could be a result of genuine applicant error. It was explained that where a genuine error had been made, the current provision, which allowed applicants to readvertise (a second advertising attempt) would be allowed.
The Panel asked where applicants lived in remote areas, whether neighbours should be notified of the application and asked whether that had been considered. It was explained that a future intention was to consider neighbour consultation. It was noted that other jurisdictions had provisions in place whereby councils held a database and would send letters out to neighbouring properties to notify them of the application. However, it was highlighted that such a change would require a substantive legislation change.
With regards to the commencement of a development, the Panel asked whether a time limit existed for when the development was required to be completed. It was explained that no time limit existed, however, a genuine commencement during the three-year commencement period was required.[12]
Stakeholder consultation and further evidence gathering
The Minister for the Environment wrote to the Panel on 6th December 2021 to explain that having reviewed progress thus far, a decision was taken to defer the States' debate on the draft Law, in second reading, until the last States' sitting in April 2022.
In March 2022, the Minister for the Environment provided the panel with the following documentation:
• Law drafting instructions pertaining to the consequential amendments to the draft Orders under the Planning and Building (Jersey) Law 2002
• Conservation Area framework and drafting instructions
• ARUP review of tree protection legislation.
The Panel also notes that stakeholders were consulted in March-April 2022 on the tree protection legislation review undertaken by Arup. The Panel further notes that the consultation ended on 11th April and that it was the intention of the Minister for the Environment to share the consultation summary outcome with the Panel ahead of the States' debate. The consultation summary and full redacted responses were provided to the Panel at the time of presentation of this comments paper and therefore, regretfully, there has not been sufficient time for the Panel to consider this information prior to presentation. The Panel notes that it is the Minister's intention to publish a summary of the consultation responses the week commencing 2nd May 2022.
On 8th April, the RJA&HS provided the Panel with a copy of their submission to the Government of Jersey consultation, which stated the following:
- We have some comments regarding the Arup report on "Species and habitat Protection Project – Review of tree protection legislation", dated 4th December 2021.
- The recommendation that Jersey introduces a blanket level of protection for all trees' is only shared by two of the jurisdictions examined (Isle of Man & Alderney).
- Blanket protection is deemed unnecessary in England, Scotland, Guernsey, France, Germany & Poland.
- There is no justification given for this recommendation and no supporting evidence provided.
- Without publication of proposed regulations and exemptions it is impossible to make informed comment of likely effect, however, it is likely to add bureaucracy, delay and cost to the management of trees.
- It is highly possible that, as a result, the proposal will have unintended consequences. For example, acting as a disincentive to landowners to further plant trees, a wholly undesirable outcome.
- The requirement of only States of Jersey approved contractors being able to undertake works will also add cost.20
Conclusion
Cognisant that the nature of the proposition is that of enabling legislation, and having reviewed all the evidence presented, the Panel concludes that the adoption of the draft Law will enable both appropriate and necessary powers to enforce greater preservation of the Island's trees, as well as areas of archaeological and/or cultural importance.
As is often the case with enabling legislation, the important detail on the implementation of the Law is subsequently made by Order or Regulations. In this instance, the Panel considers that this detail is crucial in being able to understand any potential impact and allay any stakeholder concerns. The Panel thanks the Minister for the Environment for his decision to defer the States' debate in second reading until further supporting documentation could be made available to the Panel. This has undoubtedly aided the scrutiny process, although, the Panel is aware that there is still much uncertainty for certain stakeholders until such time as the Orders are made and any potential impact is known. Given that the Orders will be made in the next political term, the Panel will be recommending in its Legacy Report that its successor panel keeps a watching brief on the implementation of the draft Law and that scrutiny of the Orders be undertaken where any valid stakeholder concerns may arise.
20 Written Submission – Royal Jersey Agricultural and Horticultural Society – 8th April 2022