1999/71 - Taunton v IDC [1999] UR 71 (22 April 1999)

THE DEPUTY BAILIFF: Mr Mervyn George de Salis Taunton and his wife are the applicants in this appeal against a decision of the Planning & Environment Committee. Mr and Mrs Taunton live at a property called "La Maison du Coin", Le Couvent, St Lawrence. The Court visited the property. The property has been in the Taunton family from the sixteenth century. Mr Taunton is well known in the island and was in private practice in the firm of Knatchbull and Taunton in St Helier where his wife worked with him until they retired in 1987. Mr Taunton inherited the property from his mother in 1958. At that time the house had been let on a full repairing lease for over 25 years. It was apparently in a most neglected and dilapidated state. Mr and Mrs Taunton have carried out over the years comprehensive conversions to the house and when we visited it as part of this hearing we have to say that we found a delightfully secluded property standing in its own gardens of approximately four and a half vergées. From the property you can see distant agricultural land but there is certainly no agricultural land that affects this particular property.

In 1996, having devoted much time and effort to the property and established a beautiful home for themselves, Mr and Mrs Taunton fell to thinking about the autumn of their lives. They felt that they would need a housekeeper to look after them. They appreciated that a suitable housekeeper was likely to be married and that her husband would follow his own occupation. The appellants appreciated that the housekeeper and her husband might, from time to time, wish to have friends or family to visit them in their quarters. They proposed an extension to the existing property.

There was an ancillary reason for the extension in that "La Maison du Coin" is relatively isolated. There is one neighbouring property below it but in all it stands away from any other properties and the drive is some 100 yards from the quiet main road. In 1996, Mr and Mrs Taunton suffered a burglary and it was necessary for Mr Taunton to give evidence at the Assize trial that followed the arrest of the burglars. At the time, he described the experience as a violation of his personal life. That burglary, as well as declining years, forcefully brought home to Mr and Mrs Taunton how isolated the property is.

We need now to consider the evidence that we heard in Court. We have to say both sides are virtually agreed on the facts of this case but where there is a slight discrepancy of opinion, we prefer the evidence of Mr Renouf, (the architect retained by Mr Taunton) and the evidence of Mr and Mrs Taunton to the evidence given to us by the Officers of the Committee. We must say immediately that we reached that decision not in any way to criticise the dedicated Officers who gave evidence before us. Inevitably, after a period of time, there is bound to be some little confusion, here and there, on the actual facts leading up to the Committees refusal. Officers of Committees spend an enormous amount of time considering many applications. The appellants and their witness we felt were more likely to have a detailed and accurate memory of the event than the Officers who had to dredge these happenings from a mass of other detailed applications.

"La Maison du Coin" is situated in an area known as the sensitive landscape area of the agricultural priority zone of the Island Plan. We shall have more to say on that matter later in this judgment.

The first witness that we heard was Mr Adrian Graham de Jersey Renouf who has been an architectural designer since 1984 and was for a time employed by a well known firm of architects. He now works on his own account. In his working day he has considerable contact with the Officers of the Planning Department. Since the Island Plan came into being, the planners had allowed an extension to the west of the property to create a drawing room, an en-suite extension at the rear of the property and a double garage. The quite large extension to the west of the property had initially been rejected on the grounds of mass and style but after liaising with Richard Williamson, a senior planner, a different scheme was prepared and after further discussions the plan was approved. The present application was suggested to Mr Renouf in late 1996. The Tauntons asked Mr Renouf for his views on a separate bungalow on the large lawn between the house and the main road for the proposed staff accommodation. He said that it was likely to be refused on the grounds that it would be a building standing alone. He said that perhaps the concept would be acceptable if it were linked to the main house with access. From his experience that proposal had worked with other properties. He therefore contacted Mr Williamson and arranged a site visit. From Mr Renoufs experience, if a planning officer recommended a proposal it was unusual for it to be refused by the Committee. It was probably in the second week of January, 1997, that Mr Renouf and Mr and Mrs Taunton met with Mr Williamson on site. Mr Williamson said that he felt that a separate unit separately built would not be acceptable to the Committee and that, of course, came as no surprise to Mr Renouf. Mr Williamson prepared a rough sketch on site. Mr Williamson was of the impression that he had discussed and drawn this sketch only in the presence of Mr Renouf. We are agreed that Mr and Mrs Taunton were there at the time, particularly as Mr Taunton told us that he does a little drawing himself and he was impressed by the way Mr Williamson was able to hold the sketch pad in one hand while he made the drawing with the other. The proposal was that there would be a linking bridge from the main house across to the extension and an archway underneath would give access to and egress from the garages at the rear of the property. As far as possible this extension would conform in style to the extension to the west of the property. Mr Williamson was made aware of the purpose of the extension but he was not phased by it. He said that he felt that there would be no problem and he was able to give it his encouragement. There was also a discussion as to the finish to the extension because the cost of completing the extension in granite could have been prohibitive. Mr Renouf and Mr Williamson talked the matter through and it was decided that it could be made in rendered blockwork. This was the medium that the Committee had approved for the extension to the rear of the property.

In about May 1997, Mr Williamson transferred to other duties within the Planning and Building Services Department and his replacement as Senior Planner was Mr Peter Le Gresley. Mr Le Gresley found the proposals acceptable. On the 29 May 1997, after discussions with Mr Renouf, he wrote a letter:-

Dear Adrian,

Further to your request for advice in relation to an extension for staff accommodation to the above property, I confirm that I have now taken the opportunity to visit the site and would make the following comments.

La Maison du Coin itself appears to have been an attractive property which has undergone some degree of alteration in the past. Notwithstanding this, the house retains elements of its former character and it is my view that any additional development should not cause any further damage to its integrity.

From the draft plans which you have submitted, it appears to me that this form of extension could be an attractive addition to the property. However, the detailed design and material will be critical to the overall success of the scheme. The Planning and Environment Committee is likely, therefore, to insist on the use of granite and slate to match the traditional qualities of the main house. In addition, I would also expect to see only two dormers on the eastern elevation and these to be of smaller proportions than shown on drawing No. 772/2. The roof overhang should also be reduced to match the existing building.

Clearly, the Committee will require the new staff unit to be fully linked to the main house and would not allow the formation of a separate unit of accommodation in this area of Sensitive Landscape area of Agricultural Priority Zone.

Finally, in order to reduce the amount of excavation to the east, I would suggest that the east wall of the unit is used to retain the land above, and that the living room be single (south) aspect only. The area of excavated land could also be reduced to the north.

I trust that these comments are of some assistance.

Yours sincerely,

P A Le Gresley,

Senior Planner".

At the foot of the letter, Mr Renouf made what is in terms a diary sheet. It states that he spoke to Mr Le Gresley at about 9.30 am on 30 May and certain points were agreed. There would be a finish in rendered blockwork and not granite. There would be two dormers and the "cheeks" would be kept to the minimum size possible. Glazed cheeks were considered and agreed.

The planners would consider ways of reducing excavation but Mr Renouf was not keen on the idea of the ground level being retained by the external wall of the building. That was to resolve itself in due course. Finally there is this cryptic note: "Peter confirmed support for application and suggested development application." Encouraged by all this, Mr Renouf put in for full development permission.

Enclosed with it were floor plans and a site plan with sections and elevations. The development is defined as being an extension to the east gable comprising an en-suite bathroom and a one bedroom housekeepers cottage. The use was for domestic purposes only. There was immediately a snag. Mr Le Gresley telephoned some ten days later to say that he regretted that he would have to reject the plan because there was no mains sewer available. The property is served by a septic tank and soakaway and Mr Le Gresley confirmed that the Assistant Director of Building Control, Mr Roscouet, considered the new accommodation solely for the purposes of the building by-laws as a new unit. Because of the building by-laws the new development could not be connected to the septic tank even though it had never had to be emptied. Apparently the only option left open was for Mr and Mrs Taunton to install a tight tank. Mr Renouf sought the advice of his clients. On the 27th August he wrote a letter enclosing Mr Le Gresley’ letter and saying this: "I am not sure how to proceed from here as it appears that unless we accept the by-law demand for a separate tight tank, the P&E Committee will reject the application." At the same time, the drawings had to be slightly altered to cover the question of the number of dormers.

Mr and Mrs Taunton thought about the matter carefully and Mr Taunton sent his architect a three page letter not only dealing with suggestions as to the dormer windows but also enclosing Mr Tauntons own sketch drawing for what was proposed. At this point Mr and Mrs Taunton apparently were a little aggrieved because the work which had been going so smoothly looked as though it might be to no avail. They continued to negotiate and there were further drawings prepared. They even discussed the question of connecting to the main sewers. The cost proved prohibitive. By October all the amended plans were ready and everyone was satisfied. A tight tank would be constructed. The only change which Mr Renouf was reluctant about, as was Mr Taunton, was building the outside wall against a retaining wall, but everything else was agreed. There were more telephone calls but Mr Renouf described these as being only cosmetic. Mr Renouf told us that negotiations in this way were often similar to a game of chess, but he had little doubt, from his experience, that the Committee would almost without exception follow the recommendation of their officers. Mr Renouf did not disagree with the question that he had discussed with Mr Le Gresley at one time as to whether the property could have the first and second floors linked to the main house with a driveway brought round to the east, but he said that had enormous problems because of the slope down to the property and it was discounted after further discussion. The Tauntons were prepared to lose one dormer window and to have a velux.

The application came before the Sub-Committee. The relevant plans were put in under cover of a letter from Mr Renouf dated 10 October 1997. The letter clearly anticipates a consent because it reads in this way: "further to previous discussions regarding the above, I enclose three copies of each drawing numbered 772/2A and 3A and look forward to receiving the Planning and Environment Committees decision on this application in due course." At the same time, there is a handwritten letter from Mr Taunton setting out precisely and in great detail the background to the application and the reason for the application. That letter had been written at the suggestion of one of the officers.

The Planning Officers met and the necessary form that was to be laid before the sub-committee was completed. The conditions that would be imposed on consent were drafted. There are two standard conditions and then this: "that details, design calculation for the reinforced concrete retaining wall are submitted prior to commencement of work." The form was initially given what is called a "grey" designation which enabled the Director to sign on his own authority to pass the plans but after consideration it was given a "blue" designation which meant that it was necessary to take it before the Sub-Committee. There is little doubt that Mr Renouf, Mr and Mrs Taunton and the officers concerned in the application all believed that the matter would be passed by the Sub-Committee. It was not to be.

The Sub-Committee met. It comprised the officers and three members of the Committee, Deputies Layzell, Crowcroft and Duhamel. The application was refused.

The form before the Committee has a panel marked "final decision if different from Recommendation". In the hand of Mr Le Gresley is written: "Refuse - SLA AP2 contrary to Policy CO7". Initially it must have read "contrary to CO6" but "CO6" is crossed out and "policy" is written above it and "CO7" is added.

Prior to the meeting of the sub committee the planning application was advertised in the "Jersey Evening Post" of Friday, 4 July 1997, with this description:

Mr Le Gresley wrote a note for a letter to be sent to Mr and Mrs Taunton. It reads:

This was later altered to read "The proposed development is contrary to policies CO6 and CO7.........."

That notification of refusal was sent to Mr and Mrs Taunton by formal notice dated the 25 November 1997.

The minute finally approved by the Sub-Committee at its next meeting following the rejection mentions ONLY Policy CO7.

We will consider the evidence of the two Committee Members (Deputy Layzell was not called) who gave evidence before us in the context of the examination of the law that follows.

"The Royal Court is a Court of Appeal under art. 21. As Lord Greene observed in the first of the passages which we have quoted, the power of an appellate body is to override the decision of the inferior body. He contrasted this with a power to see only whether the inferior body had exceeded its powers. The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable. It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view.

In our judgment, therefore, the above statement of the Royal Court in Taylor v Island Dev. Cttee (6) (1969 JJ at 1280, para. (3)) was wrong. The duty of the court on an appeal under art. 21 is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that that decision was, in its view, unreasonable."

Deputy Crowcroft told us that he had sat on the Sub-Committee since shortly after he was elected a Deputy in September 1996.

He told us that the great advantage of the Sub-Committee as opposed to the full Committee was that there were few constraints of time.

Deputy Crowcroft recalled in evidence that the main reason for refusal was that the extension could have been sold off as a separate entity. It had a separate entrance. He was certain that two policies of the Committee - CO6 and CO7 - were applicable and that it was regrettable that an application against policy was encouraged by the officers. He was of the opinion that CO7 had relevance.

He felt that the Sub-Committee on which he served had a holistic view to protect everything within the Sensitive Landscape Area of the Agricultural Priority Zone. Policy CO6 had to be rigorously adhered to and it was when the Sub-Committee were looking at photographs retrieved from an earlier application for La Maison du Coin that the question was raised perhaps by another politician, as to whether the property could be sold on as a separate unit. That was the main reason for the refusal. He felt strongly that exceptions to what was a general policy could lead to problems of precedence for future Committees..

Deputy Duhamel shared that view. He assured the Court that this was a case where the presumption against any new non-agricultural development could not in this case be rebutted. This was entirely due to the creation of a separate unit of dwelling accommodation. He felt that Policy CO6 had to be rigorously applied unless there were exceptional circumstances, otherwise there would be sporadic development

He also felt that Policy CO7 was relevant because the buildings lay in an agricultural priority zone. It would in his view have been a quantum leap to extend the principle of reasonableness to this application.

The power to delegate to a Sub-Committee is made in pursuance of Article 36A of the States of Jersey Law as amended.

The Applications Sub-Committee can make a decision (under Article 6, 10, 19 and 20 of the Island Planning (Jersey) Law, 1964 and Articles 5 and 7 of the Public Health Law and the Building Bye-Laws) on three grounds, the relevant one of which is:

There is no doubt that "La Maison du Coin" lies (as does much of the rest of the Island) in the Sensitive Landscape Area of the Agricultural Priority Zone.

"Policy CO6 - Agricultural land and all other land outside the ‘Green Zone’, the defined ‘Built-Up Area’, the ‘Green Backdrop Zone’ and the ‘Villages’ is designated as an ‘Agricultural Priority Zone’ where:

(a)There will be a presumption against any new non-agricultural development;

(b)Applications for new agricultural buildings and other forms of development which must occur in a rural area will generally be approved subject to considerations of siting and design;

(c)Applications for new dwellings which arise from agricultural need will be considered sympathetically. The Committee will wish to be convinced of the need and will consult the Committee of Agriculture and Fisheries. Special conditions or agreements will be used to ensure that such dwellings are occupied by bona fide members of the agricultural community and remain within the corpus fundi of the farm holding.

2.17Although all land within this zone is predominantly rural, certain parts, especially the prominent ridge lines above the inland valleys, are particularly sensitive to the effects of intrusive development. Even agricultural development can have an adverse effect on the landscape of these areas. While applications for agricultural development will be considered sympathetically throughout the ‘Agricultural Priority Zone’, every effort will be made to minimise these effects.

Policy CO7 - Permission for essential agricultural development within the ‘Sensitive Landscape Area’ of the ‘Agricultural Priority Zone’ will only be given if:

(a)The applicant has no suitable alternative site outside the ‘Sensitive Landscape Area’ which can be used to accommodate necessary buildings;

(b)There are no existing buildings which can be satisfactorily modified or converted to meet the requirement;

(c)There is a convincing demonstration, supported by the Committee of Agriculture and Fisheries, that the proposed development is essential for the economic running of the farm holding.

2.18A landowner or farmer who decides to apply for the construction of a new building in the ‘Sensitive Landscape Area’ will not only have to establish that there is an agricultural need for the building but that there is a need for it on that particular site."

It becomes apparent to us that Policy CO7 is totally irrelevant to this application. CO7 is not as Deputy Crowcroft suggested a "belt and braces" with CO6. It is a policy concerned entirely with essential agricultural development.

The Island Plan talks of "clear guidelines on where and in what form new development is or is not acceptable in the countryside".

If as is clear, the three politicians on the Sub-Committee took into account Policy CO7 then they took into account matters which they ought not properly to have had regard to. This was in no sense essential agricultural development. The Committee concedes as much in its case. "The Committee admits that Policy CO7 has no direct relevance to the instant case. The Committee will not therefore seek to rely upon the terms of Policy CO7 at the hearing of the appeal."

What of Policy CO6? The extension to the west, the addition to the north and the garages were all passed for development by the Committee while Policy CO6 was in force. The presumption is against "any new non agricultural development."

In its statement the Committee readily admits that "it has accepted that extensions to existing dwelling within the Sensitive Landscape Area of the Agricultural Priority Zone to provide additional residential accommodation for a household may be acceptable (subject to matters of size, siting and development").

The Committee contends that Policy CO6 "merely" contains a presumption against any new non-agricultural development. If it were a presumption then it is a rebuttable presumption. Why were the appellants not told of this rebuttable presumption at the outset? As it transpires neither Mr nor Mrs Taunton nor Mr Renouf had any idea that the application would be rejected on grounds which no officer had explained to them at any time.

Mr Renouf wrote of his clients being "grossly misled" by the officers. We appreciate his feelings of disappointment at the refusal but, in our view, the officers were not troubled by this extension. That is perhaps surprising because the politicians were well aware of Policies CO6 and CO7 and clearly felt that this application was bound to be rejected.

Policy CO6 does not in itself prevent the creation of new dwellings but creates a presumption against any new non agricultural development. The policies are clearly not written in tablets of stone. By way of example, Policy CO32 states:-

"7.0CONVERSION FOR RESIDENTIAL USE

7.1Island Plan Policy CO32 sets out the general presumption against conversion of redundant farm buildings to permanent residential use, unless this is essential for agricultural reasons.

7.2The Island Development Committee may, however, be prepared to consider the residential conversion of redundant structures, where in its opinion the buildings are:

(a)situated within an existing settlement or built-up area;

(b)standing as part of a group of other mainly residential buildings, or within a domestic curtilage, adjacent to buildings which have long since ceased to be used for farming."

That perhaps gives an indication of a rebuttable general presumption in the terms of the Island Plan Policy.

In its statement the Committee says that the Applications Sub-Committee considered that the application "did not comply with the terms of the relevant policies as it proposed the creation of a new dwelling within the sensitive landscape area of the Agricultural Priority Zone."

The Committee also pleads that the Application Sub-Committee took into account six criteria, namely whether:-

i.The proposed development is attached to a main dwelling as an extension;

ii.The proposed development is fully integrated with a main dwelling;

iii.The proposed development has its own separate means of access or whether it shares an entrance with a main dwelling;

iv.The proposed development is visually acceptable in terms of size siting and design;

v.The proposed development has acceptable drainage which complies with Policy SE4 of the Island Plan; and

viThe proposed development is capable of independent occupation.

We find the grounds of refusal to be surprising in the light of the careful consultation that went on between the relevant officers of the Committee and the applicants and their adviser.

The fact that the Committees own internal practice and procedures state that the Applications Sub-Committee can make decisions on (inter alia) "all applications which would involve a departure from the Committee’s policy but where, in its opinion, there are good grounds to consider approving the application" leaves us in no doubt that the Sub-Committee had a wide discretion but if those were established criteria we have to ask why they were not put to Mr Renouf at some early stage to enable him to consider, with his clients, the viability of the scheme and whether and how it could be modified.

This decision has in our view been partially based on the wrong policy. CO7 is not applicable. As to CO6, we take the view that the constant encouragement by the officers of the Committee and the fact that no one alerted the appellants to what is said to have been clear criteria, is fatal to the arguments of the Committee. In our view, it is unreasonable to allow substantial earlier development to this property and to refuse the development of this extension solely on the ground that it could be sold separately. Having viewed this property standing in a manorial fashion in its own extensive gardens it seems to us unlikely in the extreme that this linked cottage would or could be sold independently. The concept is not wrong; what is wrong is the concept in this particular situation.

We accordingly allow the appeal and direct the Committee to approve the extension on the plans submitted subject to such conditions as the Committee deems it necessary to impose.

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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1999/71 - Taunton v IDC [1999] UR 71 (22 April 1999) URL: http://www.bailii.org/je/cases/UR/1999/71.html Cite as: [1999] UR 71

Jersey Unreported Judgments