Jersey Unreported Judgments

 2001/161A

ROYAL COURT

(Samedi Division)

 

26^th July 2001

 

 

The Attorney General

-v-

Janvrin Holdings, Ltd.

 

Sentencing by the Inferior Number of the Royal Court, following conviction on 14^th June 2001 on a not guilty plea to:

 

1 count of:

developing property without Planning and Environment Committee consent, contrary to Article 8 of the Island Planning (Jersey) Law 1964.

 

 

Details of Offence:

The Defendant company owned a property known as Janvrin's Farm, Portelet.  The company was purchased by one David Sheppard on 1^st March 2000.  He was aware at the time of purchase that the Planning and Environment Committee were considering placing the property, or parts of it, on the register of Buildings of Architectural and Historical importance.  The company took legal advice, which was to the effect that demolition was not "development" within the meaning of the 1964 Law, thus not requiring the Committee's consent, and on 11^th March 2000 the company demolished the property. 

 

Details of Mitigation:

At the time the property was demolished, it was not actually listed.  Having taken legal advice, the company believed that it was entitled to do what it did.  As a result of the demolition, any development of the property was likely to involve a significant loss to the company, rather than achieve a profit. 

 

Previous Convictions:

None.

 

Conclusions:

Count 1:

£225,000 fine; £30,000 costs.

 

 

Sentence and Observations of Court:

Count 1:

£150,000 fine; to pay 50% of prosecution costs up to a maximum of £15,000.

This was a deliberate and cynical act of destruction.  Court took pragmatic view as to likelihood of profit being made

 

A.R. Binnington, Esq., Crown Advocate.

Advocate M.M.G. Voisin for the Defendant Company.

 

 

JUDGMENT

 

 

THE BAILIFF:

1.        The demolition of Janvrin's Farm was a deliberate and cynical act of destruction, calculated to avoid the proposed placing of the property on the Register of Buildings of Local Interest.  Notwithstanding receipt of a letter from an official in the Planning Department seeking to gain access to the property, for the purpose of further inquiries, the Defendant company did not inform the department of its intention to demolish and acted with great speed to thwart the process.  Notwithstanding the explanation given in evidence by Mr. Sheppard, the purpose, in our judgment, was to increase the commercial value of the site for the benefit of the Defendant company's principal, i.e. Mr. Sheppard.  The effect of the Defendant company's actions has been to deprive the community of a building of some historic interest.  The actions of the Defendant company caused widespread public outrage, but we put that entirely out of mind. 

2.        The Defendant company falls to be sentenced for an infraction of Article 8 of the Island Planning Law by commencing a development of the property by causing or permitting the demolition of the buildings on the site.  The factors which we have just mentioned are aggravating features of the offence. 

3.        On the other hand, this is not a case where the Defendant company acted without taking legal advice.  The defendant company was advised that the proposed demolition did not require development permission.  We have found that that advice was wrong but so far as the Defendant company is concerned it is a mitigating factor. 

4.        We think that the Crown Advocate was right to conclude that account should be taken in the penalty to be imposed of the profit likely to result from the commission of the offence.  It is axiomatic that offenders should not be permitted to profit from their offending. 

5.        Counsel for the Defendant company argued that there will be no profit and submitted that the property has, indeed diminished  in value as the result of the demolition.  He initially submitted that no development at all might be permitted by the Planning and Environment Committee.  In support of that submission counsel referred to a valuation from Broadland Estates Ltd which suggested that the property was blighted by the uncertainty of whether the Committee would allow any development.  That uncertainty has been removed by an affidavit from a senior official in the Planning Department which has been made available to us following the adjournment. That affidavit makes it clear that the committee will allow re-development and would be minded to approve such re-development within the footprint of the demolished buildings.  The present indication is that the Committee would permit the construction of two residential units, notwithstanding that the site is in the Green Zone.

6.        We have considered, very carefully, the submissions made to us by defence counsel in relation to the evidence of the estate agents, architect and accountant on the costs of re-development of the site and possible financial returns.  These calculations are all based upon the premise that the development which is ultimately permitted will be on the lines of the indication from Mr. Webster of the Planning Department in his letter of the 19^th July, 2001.  

7.        We take a pragmatic approach.  The fact of the matter is that the Defendant company through its principal, Mr. Sheppard, purchased Janvrin's Farm for £500,000 in the knowledge that it was in the Green Zone and that re-development would involve intensive discussions with the Planning authority.  Notwithstanding that background, the Defendant company, the principal of which  is an experienced property developer, took the decision to demolish the property.  We do not believe that this would have happened if the Defendant company had not anticipated an ability to make a reasonable profit. 

8.        Our conclusion is, that at the end of the day, there is likely to be available to the Defendant company an illicit profit which would not have been available if it had not engaged in the unlawful act of demolishing the buildings without the permission of the Planning and Environment Committee. We do not attempt to quantify that likely profit, although we think on the evidence now available to us that it is likely to be less substantial than that clearly assumed by the Crown Advocate in his conclusions.  We adopt the approach recommended by this Court in AG-v-Muren & Peters (16^th August 2000) Jersey Unreported and we have taken into account, as an aggravating feature of the offence, the likely illicit profit in determining the sentence to be imposed. 

9.        Counsel for the Defendant company made some play of the fact that it did not demolish a listed building.  That is quite true but as we have said the defendant company did demolish an historic building, which it knew was being considered for inclusion in the non-statutory register of buildings of local interest.  Inclusion in such a register would, at the very least, have prevented demolition and hindered development. 

10.      Defence counsel also submitted that the Defendant company was not in a position to pay a large fine and produced accounts for the company in support of that submission.  Those accounts indicated, so far as the first set of accounts was concerned, that there was a substantial creditor to whom the company owed over £350,000.  We were told that when the Defendant company was acquired by Mr. Sheppard, he also acquired the benefit of the loan account.  We were not impressed by that argument.  The Defendant company is the alter ego of its beneficial owner, Mr. Sheppard.  The Defendant company owns a site of considerable value and is well able to pay the fine which we are about to impose. 

11.      We take account of all the matters ably put before us by counsel for the Defendant company.  We think that, nevertheless, a substantial fine must be imposed, both to punish the Defendant company for its offence and to deter others, who might be tempted by the prospect of commercial gain, unlawfully to demolish historic buildings.  We accordingly order the Defendant company to pay a fine in respect of the offence of which it has been convicted of £150,000.  We will, as requested by counsel, allow the Defendant company four months to pay the fine, so that the appeal to the Court of Appeal against conviction and, if necessary, sentence can be heard and determined.  We order, however, that the obligation to pay £150,000 to the Crown, arising from this judgment, be registered in the Public Registry as an hypothèque upon the immovable property of the Defendant company.

12.      I turn to the question of costs.  The Defendant company was discharged from the prosecution on Charge 2 on the billet.  I make no order in favour of the Defendant company in that respect, but I take account of its acquittal on that second charge, in ordering the Defendant company to pay 50% of the costs of the prosecution, not exceeding the sum of £15,000. 

  

 

Authorities

AG-v-Muren & Peters (16^th August 2000) Jersey Unreported [2000/166]

M & G Contractors, Ltd (1986) 8 Cr.App.R (s) 474.

R-v-McCarthy & Stone (Developments) Ltd (12^th March 1998) Current Law Year Book: p.1479.

R-v-Browning (1995) 1 PLR 61.

R-v-Seymour (1987) 9 Cr.App.R. (s) 395.

R-v-Simpson (1992) 14 Cr.App. R (s) 602.

R-v-J.O.Sims, Ltd (1992) 14 Cr.App.R. (s) 213.

R-v-Duckworth (1994) 16 Cr.App.R (s) 529.