Jersey Unreported Judgments

Planning - third party appeal by the appellant against the decision of the Minister.

[2013]JRC045

Royal Court

(Samedi)

27 February 2013

Before     :

J. A. Clyde-Smith, Commissioner, and Jurats Morgan and Fisher.

 

Mr Peter Gallaher (Architect) for the Appellant.

Mr D. Mills for the Respondent.

The Applicant appeared in person.

judgment

the commissioner:

1.        This is a third party appeal under the modified procedure brought by the appellant under Article 114 of the Planning and Building (Jersey) Law 2002 ("the Planning Law") against the decision of the respondent ("the Minister") to grant planning permission for the construction of a single storey extension to the rear of the property known as Santa Maria, La Rue de Patier in the Parish of St Saviour ("Santa Maria"). 

2.        Santa Maria sits to the northern side of St Saviour's Primary School within a large and well established residential built-up area.  It comprises a one and a half storey detached dwelling with a garden to the rear (north).  It has a separate detached garage accessed from Sunshine Avenue to the west. 

3.        The majority of dwellings in the area were constructed in the 20^th century.  There are a variety of sizes and designs, including single, one and a half storey and two storey buildings.  The appellant's property ("Sunnydown") situated immediately to the east of Santa Maria comprises two storeys.  It extends right up to the boundary with Santa Maria.  Its main roof is pitched, but that closest to Santa Maria is flat.  Sunnydown has also been extended at ground floor level to the rear, also with a flat roof.  Given its width, depth and the detached garage access from Sunshine Avenue, Santa Maria's overall plot is slightly larger than many in the immediate vicinity, and it sits at a lower level than that of Sunnydown. 

4.        The boundary between the two buildings is formed by a rendered block wall, which belongs to the appellant and which has open "California" blocks on top.  There were originally two rows of California blocks, but as will be seen later, the appellant removed the top row of blocks due to structural concerns with the wall.  According to the first affidavit of Mr Andrew John Townsend, principal planner of Planning and Building Services, the boundary wall measures 2.06m on the applicant's side, of which 0.31m is the California block and mortar. 

5.        The applicant is a keen snooker player and wishes to construct this extension to Santa Maria to house a full length snooker table.  He originally applied for planning consent in 2011 and the plan was for the extension to be built on the eastern side of his garden (i.e. against the appellant's boundary) with the eastern gable of his house being extended out at ground floor level into the garden some 0.7m from the appellant's boundary wall.  The proposed extension had a flat roof and only three high level windows towards the applicant's garden, resulting in a large proportion of rendered block-work.  With one row of the California blocks removed from the boundary wall, it would have sat some 0.91m above the boundary wall. 

6.        The appellant objected to the application (which we will refer to as "the first application").  She had been housebound since 2006 and she described her garden as a sanctuary.  The boundary wall being to the west was where she got her afternoon and evening sun.  She was concerned about the loss of light and that she would have to look at a substantial concrete roofed building which was very close.  The proposed building was too high, too large and totally out of character for a highly built-up area. 

7.        The first application was refused on 21^st June, 2011, by the Planning Department under delegated authority from the Minister on the following grounds:-

"The proposed extension by virtue of its design, scale and location would introduce an incongruous feature, which would be unduly large and intrusive, thereby causing harm to the character of the existing building "Santa Maria" and to the residential area in which it is located and be contrary to Policies G2, G3 and H8 of the Jersey Island Plan 2002 and Policies GD1, GD7, H6 and BE6 of the Draft Jersey Island Plan 2011".  

8.        The applicant's agent thereafter exercised the right to request a reconsideration of the application by the Planning Applications Panel ("the Panel") by email dated 15^th August, 2011.  He stated that the proposed extension had been specifically designed to have no impact upon the surrounding residential area by the inclusion of a flat roof, which was only fractionally higher than the garden boundary wall, which had been reduced in height by the appellant removing one course of the Californian blocks.  The design statement, which accompanied the application, stated that the extension was intended to be a snooker room and therefore needed to be of the floor area that had been proposed.  The agent pointed out that Sunnydown had a ground floor flat roof extension (albeit smaller) and further had a two-storey flat roof extension immediately alongside Santa Maria. 

9.        The refusal was upheld by the Panel at a public hearing by two votes to one on the following grounds:-

"1.       The proposed extension by virtue of its design, scale and location would introduce an incongruous feature, which would be unduly large and intrusive, thereby causing harm to the character of the existing building 'Santa Maria' and to the residential area in which it is located and be contrary to Policies G2, G3 and H8 of the Jersey Island Plan 2002 and Policies GD1, GD7, H6 and BE6 of the Jersey Island Plan 2011.

2.        The proposed extension would result in unacceptable visual impact and loss of amenity to the neighbouring property to the east of the proposed site and as such would be contrary to Policies GD1, BE6 and H6 of the Jersey Island Plan 2011."

10.      Following the refusal, the applicant's agent sent the Planning Department by email an amended plan showing the extension reduced in height by some 600mm (approximately 2 ft).  The windows had also been amended to match the existing windows at Santa Maria to address the design criticisms on the first application.  The initial reaction of the Planning Department was to note the benefit of these changes, but pointing out that the size of the extension remained an issue.  The applicant's agent took the matter up directly with Mr Peter Le Gresley, Director of Planning, stating that the only issue the Planning Applications Panel had for the scheme was its potential impact on the neighbour and the new proposals have a zero impact on the neighbour.  Mr Le Gresley had apparently advised the applicant's agent following the public hearing that if the height could be lowered by 500mm then he couldn't see any problems with the applicant gaining permission.  Mr Le Gresley sent an internal email on 1^st February, 2012, to Mr Timothy Furmidge, a Planning Officer:-

"Tim

Got this one from Jason Dodd.  It seems that you are holding out for a reduction in the footprint of the extension.  Given that the purpose of the extension is to house a full-size snooker table, surely the 2 ft reduction in height is sufficient to appease the concerns of the neighbour and of Panel members.  I don't recall any concern about footprint.  Can we get this one off the books please.

Thanks Peter"

11.      There was a handwritten file note from Mr Furmidge as follows:-

"Discussed the issues with Peter Le Gresley about size, 7.5m length etc, he considered that the Panel were considering approving the extension at the 6th Oct 2011 Panel - Were refused due to impact to neighbour.  Although large he considered it was not significant enough to refuse - He advised to contact Mr Dodd and say it was acceptable to re-submit the application for this extension as revised."

12.      The application, which is the subject of this appeal, was received by the Planning Department on 21^st February, 2012, ("the second application").  The plans showed the extension as before measuring 7.5m north to south and 5.6m east to west and set 700mm off the boundary with the appellant at its north eastern corner.  The floor area of the extension was not altered as the purpose of the proposal continued to be the housing of a full-size snooker table.  However, the floor level had been lowered, with the size of the east elevation facing towards the appellant's property being reduced by some 21%.  The plans in error continued to show two courses of Californian blocks with the roof of the proposed extension level with the top of the second row.  The design of the extension had also been improved by the inclusion of full-sized windows to the west (towards the applicant's garden) in keeping with the style of the main house and significantly reducing the proportion of block-work. 

13.      The appellant again objected to the second application on the same grounds as before and noting the inaccurate portrayal of the boundary wall.  Revised plans were therefore submitted, showing only one course of Californian blocks with the flat roof of the proposed extension now being shown as higher than the existing boundary wall to the extent of one course of Californian blocks that had been removed.  

14.      Mr Furmidge produced a report dated 17^th April, 2012, recommending approval, in which he said this:-

"However, having taken a visit to the site, it is considered that the proposed extension would not overlook or cause loss of privacy to neighbouring dwellings, in particular to the east and it would not significantly reduce natural daylight or have a significant impact in visual terms to the east neighbouring.  This is due to the extension and site's rear garden being lower than the neighbouring properties plot; the building would be partially sunken into the garden and would be no higher than 2.4m above ground level; only 250 mm of the roof and top of the extension would be seen above the lowered boundary wall from the eastern neighbouring rear garden; and that it would be flat roofed; no windows would over look any neighbouring property.  It is considered that there would be little reduction in natural daylight received in the rear garden during the evening from the west and little to none during the rest of the day. 

The use of the proposed structure would be incidental to the existing domestic use of the site and for no commercial reasons, and would be masonry built to Building Bye-law standards, this would ensure that there should be no significant noise emanating from the structure than is already present on site.  Furthermore, the structure would be required by Building Bye-Laws to be sound and not cause any subsidence to the property or to other neighbouring properties.  ....

It is considered that the proposal, although large in size and mass, however, has been reduced in height and normal domestic windows would be inserted into the western elevation, would not be detrimental to the existing design of the chalet house, which contains many flat roofs and would have no significant impact to the site and garden in general.  The proposal would not be seen from the street-scene .....

The proposal is therefore considered to comply with Policies GD1, GD7 and BE6 of the Jersey Island Plan 2011 and is recommended for approval."

15.      The second application was approved on 18^th April, 2012, for the following reasons:-

"The proposed development is considered to be acceptable having considered all of the material considerations raised.  In particular, the development has been assessed against Policy GD1 of the 2011 Island Plan, which outlines the material considerations against which all development proposals will be tested, including the need for the highest standard of design and construction and also states the applicant is required to demonstrate that the development will not have an unreasonable impact on the surrounding area, neighbours or built features.  In addition, the concerns raised to the scheme, on the grounds of visual impact, loss of daylight, over-large proposal which is out of character with existing building, impact from noise, and impact to the fabric of the neighbouring property have been assessed.  However, the revised proposal has been reduced in height and domestic double glazed windows have been included within the design has addressed any visual, daylight and design impact issues.  Also the use would only be incidental to the existing domestic use on site, therefore noise emissions would be no more than what is existing on site.  Furthermore all structural alterations will have to comply with the requirements of Building Bye-Laws.  It is therefore considered that any impact on the neighbouring properties will be in accordance with Policy GD1 of the Jersey Island Plan 2011."

Policies

16.      Santa Maria lies within the built-up area in respect of which Policy H6 provides:-

"that proposals for new dwellings, extensions or alterations to existing dwellings .... will be permitted  ... provided that the proposal is in accordance with the required standards for housing, as established and adopted by the Minister for Planning and Environment through supplementary planning guidance."

17.      Although the building of this extension is therefore supported by Policy H6, the specific nature context and impact of the proposal must still be assessed.  Policy GD1 (General Development Considerations) sets out a number of criteria to be addressed, which includes at paragraph 3 a requirement that the development does not "seriously" harm the amenities of neighbouring uses and should, in particular, not "unreasonably" affect the level of privacy or the level of light enjoyed by neighbouring properties nor affect the health, safety and environment of neighbours by virtue of emissions, including light, noise, vibration, dust, odour. 

18.      Policy BE6 (Building Alterations and Extensions) states that development proposals to alter or extend existing buildings "will" be approved where they:-

"1.      Respect or complement the design, detailing and materials of the existing building;

2.        Are sympathetic to the form, scale, mass and proportions of the existing building;

3.        Complement the design of adjoining buildings and the quality of the surrounding area; and

4.        Respect the space between buildings where it contributes to the character of the building group or surrounding area."

Grounds of appeal

19.      The appellant appealed on the grounds that the Minister's decision to grant permission failed to take into account all material considerations, was contrary to the policies of the Island Plan 2011 and was unreasonable having regard to all the circumstances, as particularised in her Notice of Appeal which ran to some 22 paragraphs. 

20.      The affidavit of Mr Townsend setting out the statement of the decision from which the appeal is brought and the facts material to the decision, the reasons for it and exhibiting all documentary evidence relating thereto was filed by him on 4^th July, 2012, in compliance with Rule 15/3(1) of the Royal Court Rules 2004. 

21.      The appellant filed her affidavit (running to some 111 paragraphs) on 26^th September, 2012.  A further set of lengthy affidavits were filed by Mr Townsend and the appellant respectively. 

22.      At the hearing, Mr Peter Gallaher, architect, who represented the appellant, helpfully reduced the appellant's contentions to the following main issues which are in summary:-

(i)        The Planning Policies have not been consistently applied.  Apart from the height, the proposed extension was the same size, mass and footprint.  Nothing had really changed.  It was still an incongruous feature, which would be unduly large and intrusive as stated in the reasons for refusal of the first application.  The Panel, according to the minutes of a public meeting on 6^th October, 2011, had agreed that the scheme would introduce an unsympathetically designed and unduly large extension to the site, with a consequential negative impact on the neighbouring property, namely Sunnydown. 

Furthermore, the design, far from being high quality as required by Policy GD1, was actually detrimental with no respect for the existing property Santa Maria. 

(ii)       The amended plan showing the correct height of the boundary wall was submitted to the Planning Department on 17^th April, 2012.  It was not re-advertised and approval was given within 24 hours. 

(iii)      The email exchange within the Planning Department showed that Mr Le Gresley had pre-determined the decision and had put improper pressure upon his officers in the Planning Department to approve the application.  That approval was given against the views of the Panel and advice given by the Planning Department to the Panel on the first application.  Mr Le Gresley should have had the matter referred back up either to the Panel or to the Minister.  Mr Gallaher referred us to "Probity in Planning" a publication by the Local Government Association, which says at paragraph 6.12:-

"6.12   Any local code or guidance of planning good practice should also address the following more specific issues about lobbying:

given that the point at which a decision on a planning application is made cannot occur before the planning committee meeting, when all available information is to hand and has been duly considered, no political group meeting should be used to decide how councillors should vote.  The use of political whips to seek to influence the outcome of a planning application is likely to be regarded as maladministration;

with the exception in some circumstances of ward councillors whose position has already been covered in the preceding paragraphs, planning committee councillors should in general avoid organising support for or against a planning application, and avoid lobbying other councillors.  Such actions can easily be misunderstood by parties to the application and to the general public.

councillors should not put improper pressure on officers for a particular recommendation, and, as required by the code, should not do anything which compromises, or is likely to compromise, the officers' impartiality.  Officers acting under the council's delegation scheme to determine an application or making recommendations for decision by committee, are required to be impartial.  It is therefore important, as reflected in the code, for councillors to refrain from seeking to influence the outcome of the officer's decision or recommendation;"

(iv)      The information provided by the applicant was misleading or insufficient to enable a proper decision to be made.  Practice Note 11 issued by the Planning Department states at paragraph 1 the basic requirements for any planning application, which must include sufficient and accurate plans, drawings and information to enable the application to be easily understood and determined.  This will include a site plan, floor plans, elevations and often cross sections.  Contrary to paragraph 20 (the Planning Application Checklist), no design statement had been included (although one had been submitted for the first application).  Contrary to paragraph 5 (Elevations and Photographs), external features were missing such as one rainwater pipe and gutter.  One of the kitchen windows as drawn would not open.  There was nothing to show the adjacent buildings at all.  That was essential.  The height of the proposed extension was not shown, which was a significant omission. 

(v)       The proposed extension could not be regarded as ancillary to Santa Maria as the size of the extension goes beyond what is generally considered to be normal for ordinary enjoyment.  It could be used for friendly tournaments causing a higher volume of traffic and parking problems in the area.  It covered a huge area of garden, which would now be lost. 

Legal test

23.      The legal test to be applied is settled and is that set out in Island Development Committee-v-Fairview Farm Limited [1996] JLR 306 as elaborated in Token Limited-v-Planning and Environment Committee [2001] JLR 698 as follows:-

"The test to be applied by this court in determining appeals under the Island Planning (Jersey) Law 1964 was settled by the Court of Appeal in Island Dev. Cttee. v. Fairview Farm Ltd. (2).  Le Quesne, JA stated (1996) JLR at 317:-

"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 ... ... The duty of the court on an appeal under art. 21 is not merely to consider whether by 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."

"The Solicitor General submitted that the decision in Fairview Farm did not entitle the Court to find that the Committee's decision was reasonable but quash it because the Court had reached an equally reasonable but different decision.  We agree.  The Court might think that a Committee's decision is mistaken, but that does not of itself entitle the Court to substitute its own decision.  The Court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene.  There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken.  To put it another way, there is a margin of appreciation before a decision which the Court thinks to be mistaken becomes so wrong that it is, in the view of the court, unreasonable."

Decision

24.      The appellant has put an enormous amount of time and effort into this appeal.  Her garden is her sanctuary and we appreciate how strongly she feels about her neighbour's proposals, but applying the Token test, we could find nothing unreasonable in the Minister's decision (made under delegated authority) for the reasons set out in Mr Townsend's two affidavits and made by Mr Mills at the hearing.  We are not going to deal in this judgment with every point that she has raised but will limit ourselves to the key issues identified by Mr Gallaher on her behalf. 

25.      Being situated in the built-up area, and pursuant to Policy H6, the applicant has a reasonable expectation that he can extend his property for ancillary domestic purposes and the appellant has a reasonable expectation that her amenities will not be unreasonably harmed.  The test in Policy GD2 is that a proposal must not seriously harm the amenities of the neighbouring uses nor unreasonably affect such properties.  It is not realistic to expect that development will be denied planning permission where its impact is modest, particularly in a built-up area such as this, where properties are relatively close together.  There are two points to be made here:-

(i)        Sunnydown sits above Santa Maria.  Sunnydown's ground floor extension (with a flat roof) extends out to a patio which itself is higher than the level of the garden.  

(ii)       The proposed extension has now been lowered by some 2 ft so that it is one course of Californian blocks above the lowered boundary wall, and would be exactly the same height of the original boundary wall.  The finished height relative to Sunnydown is no higher than a standard fence.  Hedges, which are common between properties of this kind, are often taller.  There is therefore no greater impact created by this extension than a normal garden wall, fence or hedge.  It is a matter for the appellant whether she wishes to reinstate her boundary wall to its original height, but we agree with Mr Townsend that the extension will not have a significant effect upon the amount of light in the appellant's property.  As Mr Townsend points out, under the Planning and Building (General Development)(Jersey) Order 2011 (Permitted Development), extensions up to 30 square metres with a flat roof of 2.75m in height or a pitched roof up to 3.5m in height can be constructed without planning permission, provided they are 1 metre from the boundary.  Such an extension or outbuilding could exceed 7.5m in length. 

26.      We see no lack of consistency in the decisions made by the Minister in the first and second applications.  It is clear from the Planning Department's report of 17^th April, 2012, in relation to the second application that the Planning Department looked carefully at the first application and concluded that the proposed extension under the revised plan, although still large in size and mass, would not now seriously harm the amenities of neighbouring uses. 

27.      We find no impropriety on the part of the Planning Department.  The extract from the publication "Probity in Planning" sets out guidance for councillors in England elected by the public and officers employed by the council and their relationship with each other and the public.  As made clear, such councillors should not put improper pressure upon officers for a particular recommendation or seek to influence the outcome.  There is no question of our elected States Members having had any such role in this matter.  We see nothing wrong in the practice of applicants seeking advice from the Planning Department as the applicant's agent did here from Mr Le Gresley and we note from paragraph 7.1 of Probity in Planning that in England the giving of such advice is actively encouraged.  The other communications are within the Planning Department itself, where no issue of transparency arises.  Mr Le Gresley, as the director, must be able to discuss applications internally with his own planning officers.  On this occasion, he was able to be of particular assistance because he had attended the site meeting with the Panel and the subsequent public meeting.  We see nothing improper in these internal communications. 

28.      It was not incumbent upon Mr Le Gresley to have the application referred up to the Minister or to the Panel.  The Minister's scheme of delegation enables planning officers to determine planning applications where there are up to three objections (in this case the appellant's was the only objection).  The Panel had only become involved in the first application at the request of the applicant's agent for the refusal of the planning officers to be reconsidered; in effect, by way of appeal.  Mr Mills informed us that the Planning Department deals within the region of 2,000 planning applications per annum, the vast majority of which are dealt with by the planning officers under this delegated authority.  The second application was a new application and we accept it was properly dealt with by the planning officers under the current scheme of delegation. 

29.      We agree with Mr Townsend that the quality of information submitted with the second application (which was consistent with the quality provided in the first application) was adequate for a minor application such as this.  It is true that paragraph 20 of the Practice Note 11 (Planning Application Checklist) appears to indicate that a design statement is required for house extensions.  However paragraph 10 of the Practice Note proper stipulates that such statements are only required for all applications for works to listed buildings, for all applications in the zone of outstanding character and where any building is over 100 sq metres or more than 5 storeys. 

30.      The suggestion that the decision was rushed through within 24 hours of the receipt of the revised plans on the 17^th April, 2012, ignores the fact that the original plans had been lodged on 21st February, 2012.  The amendment had been requested by the Planning Department simply to address the complaint of the appellant that the height of the existing boundary wall had been incorrectly shown.  It is quite unreasonable to suggest that such a minor change made at the request of the appellant should require the Minister to re-advertise the application.  We accept that it was not rushed through. 

31.      We do not agree that the size of the extension goes beyond what is generally considered normal for ordinary enjoyment.  It is clearly ancillary to Santa Maria and furthermore condition 2 to the permit expressly prevents the extension being used other than for purposes incidental to the enjoyment of Santa Maria and is not to be used for any separate residential, business, commercial or industrial purpose whatsoever. 

32.      The appellant had filed a report from Gallaher Architects dated September 2012 which questioned the roof make-up of the proposed extension, suggesting that the extension would need to be taller than actually shown.  Furthermore, it was argued that there would be no control over the finished height of the extension.  Without going into the detailed technical points made in response by Mr Townsend in his second affidavit, we accept his recommendation that in order to avoid any doubt in relation to this issue, a condition should be added to the permit referring to the relevant drawing and confirming that the extension cannot be built any higher than shown.  We invite the Minister to prepare the appropriate wording and file it with the Court and with the parties in advance of the handing down of this judgment, so that it can be approved. 

33.      This being an appeal under the modified procedure, we do not think it is proportionate for the Court in this judgment to deal with all of the other points raised by the appellant as it has addressed the key issues identified on her behalf at the hearing, but the Court can confirm that it has considered all of those points and none of them renders the decision of the Minister unreasonable. 

34.      Subject to our approving the terms of the proposed condition, the appeal is therefore dismissed.  

Authorities

Planning and Building (Jersey) Law 2002.

Island Plan 2011.

Royal Court Rules 2004.

Island Development Committee-v-Fairview Farm Limited [1996] JLR 306.

Token Limited-v-Planning and Environment Committee [2001] JLR 698.

Planning and Building (General Development)(Jersey) Order 2011 (Permitted Development).