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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Burgin -v- Minister for Planning and Environment [2013] JRC 115 (18 June 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_115.html Cite as: [2013] JRC 115 |
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Planning - reason for dismissal of third party appeal.
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Before : |
J. G. P. Wheeler, Esq., Master of the Royal Court, sitting alone. |
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Between |
Phillip Henry Burgin |
Appellant |
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And |
Minister for Planning and Environment |
Respondent |
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And |
Mr and Mrs David Auffret |
Applicants |
Advocate M. L. Preston for the Appellant.
Mr Duncan Mills appeared for the Respondent.
Advocate M. P. Cushing appeared for the Applicants.
judgment
the master:
1. On 15th November, 2012, the Planning Applications Panel ("the Panel") under delegated powers on behalf of the Minister for Planning and Environment ("the respondent") granted to Mr David Auffret and Mrs Caroline Auffret ("the applicants") permission under the Planning and Building (Jersey) Law 2002 ("the 2002 Law") to demolish the existing dwelling and outbuildings and construct a replacement dwelling and garage at La Hougue Farm, La Route du Petit Port, St Brelade. On 28th November, 2012, Mr Philip Burgin ("the appellant") issued a Notice of Appeal against that decision. That appeal was brought under Article 114 of the 2002 Law. It is, therefore, a third party appeal.
2. The grounds of appeal set out in the Notice of Appeal are as follows:-
"1. The Minister (by the Planning Applications Panel) erred in Law by maintaining that its decision on this application had in fact been made on the 4 October, 2012.
2. In making its decision the Minister (by the Planning Applications Panel) failed to have regard to all material considerations.
3. The Minister's refusal (by the Planning Applications Panel) to take into consideration representations made in a letter from the Appellant's advocates dated 13 November, 2012, or the accompanying photomontages of the proposed new building, notwithstanding that these were presented to the Panel prior to it making its decision on the 15 November, 2012, denied the Appellant a fair hearing and was contrary to natural justice.
4. The Minister's refusal (by the Planning Applications Panel) to hear representations from the Appellant's advocate at the Panel meeting on the 15 November, 2012, at which it made its decision denied the Appellant a fair hearing and was contrary to natural justice.
5. The Minister (by the Planning Applications Panel) failed to give any or any proper consideration to the mass, scale and siting of the proposed new building or to its impact on the Appellant's property, either at its meeting on 4 October, 2012, or at its meeting on 15 November 2012.
6. The Minister (by the Planning Applications Panel) failed to give any or any proper consideration to any steps which might have been undertaken by the applicants to mitigate the prejudice to the Appellant's property as set out in the Appellant's advocate's letter of 13 November, 2012.
7. The decision was unreasonable in all the circumstances of this case."
3. The Notice of Appeal was served on the respondent on 30th November, 2012. On 15th January, 2013, there was filed, on behalf of the respondent, an affidavit sworn by Mr A J Townsend, Principal Planner of Planning and Building Services, sworn by him on 11th January. On 29th January an affidavit sworn that day by Mr David Auffret, on behalf of the applicants, was also filed.
4. Having considered the Notice of Appeal and the affidavit filed in response, I indicated to the parties by Act of Court dated 30th January that I was minded to decide that the above appeal be heard by way of oral hearing before the Royal Court under the modified procedure. This was because the Notice of Appeal stated that the appellant required an oral hearing. By that Act the applicants were also formally joined to the appeal as they had indicated that they wished to be heard.
5. On 7th February, 2013, the appellant filed and served an affidavit sworn by him on that day. An affidavit in response on behalf of the Minister sworn by Mr Townsend on 22nd February was subsequently filed on 25th February.
6. In the meantime, all three parties had agreed that the appeal could be dealt with on the papers by me. I confirmed that I was happy to proceed on that basis by letter dated 1st March and I proposed directions and a timetable for written submissions. On 15th March a second affidavit sworn by Mr Auffret on behalf of the applicants was filed.
7. The Planning Permit issued on 15th November, 2012, sets out the following reasons for the granting of the application:-
"The approved scheme is for the demolition of the existing house on the site and the construction of a replacement house within the garden area to the north. The site is located within the Built-Up Area wherein, under the provisions of Policy H 6 of the 2011 Island Plan, there is a presumption in favour of the development of new dwellings.
Under Policy GD 2, there is a general policy presumption in favour of retaining existing buildings where possible. However, in this instance, the applicants have made a compelling case for the demolition of the existing building which highlights its shortcomings and failings. It is stated that the accommodation is poorly configured and does not lend itself to modern standards of living. The building is likely to be lacking in foundations and, according to the agent, the existing building fabric would be able to provide acceptable standards of amenity, insulation or ventilation. Major elements of the building would be likely to require replacement in any event and the building fabric would be might not be able to withstand any major structural alterations without a significant degree of demolition. In the circumstances, therefore, its demolition and replacement is considered to be acceptable.
This is a reasonably large site which, it is felt, can comfortably accommodate a new dwelling of the size approved. There is no defining or prevailing style of building within the immediate area and the Panel is satisfied with the design and appearance of the new house.
The objections raised by the nearby neighbour to the east of the application site (at the property known as 'White Horses') have been noted and taken into account. It is acknowledged that the new building would be more prominent, from the neighbour's perspective, than the existing building. The issue therefore is whether or not the impact of the new building would be unreasonable to the point where permission could be refused for this reason.
The distance between the properties is around 15m at their closest point at the southern end of each; the properties are not parallel and this distance increases towards the northern end of each. The proposed house is around 1.4 higher in total than White Doves. The private lane serving the estate lies at a slightly lower level between the properties.
The Panel is satisfied that the new building would not overbear upon the neighbour given the distance between them, and there are only two small bathroom windows at first floor facing towards the neighbour, so overlooking would not be an issue. There would evidently be some overshadowing of the neighbour's garden at certain times (late afternoon towards sunset at certain times of the year) but, the Panel do not accept that that this would be so bad as to warrant refusal on these grounds.
From the neighbour's perspective, the primary effect of the relocation of the building is to make it more prominent and there might also be some loss of distant sea views. However, these are not grounds for refusal in themselves. Balanced against the fact that this is a Built Up Area site, where development is to be permitted, the Panel's view is that the impact of the new house on its neighbours is not unreasonable.
Having regard to all the relevant factors, it is considered that the proposal will not unreasonably affect the amenity of neighbouring properties and the grant of planning permission is considered to be reasonable."
8. La Hougue Farm forms part of a cluster of residential properties on the south side of La Route du Petit Port. The house sits along the southern boundary of its plot, adjacent to a shared driveway with a spacious garden area alongside to the north. There are other residential properties to the south, west and a larger group to the east. The appellant's property lies immediately to the east on the other side of the road.
9. In his affidavit sworn on 11th January, 2013, Mr Townsend, on behalf of the respondent, sets out the background and history of the application under appeal. The application was advertised in the normal way and consultations sent out to the relevant authorities. In addition one letter of objection was received from the appellant. This raised concerns with regard to the impact of the proposed new dwelling on the amenities of the appellant's property due to its scale and position. That letter also raised concerns about potential overlooking, overbearing and loss of light and Island Plan Policy GD2.
10. In paragraphs 9-13 of his affidavit Mr Townsend identifies the relevant parts of the Island Plan in relation this application. Policy SP1 sets out the strategy which seeks to focus new development into existing Built-up Area locations. Policy H6 embodies this strategy in stating that there is a general presumption in favour of the construction of new dwellings within the Built-up Area. Policy H6 provides as follows:-
"Policy H 6
Housing development within the Built-up Area
Proposals for new dwellings, extensions or alterations to existing dwellings, or changes of use to residential, will be permitted within the boundary of the Built-up Area, as defined on the Island Proposals Map, 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.
Such supplementary planning guidance will also include consideration as to whether there should be any further increase in internal space standards and any further improvements in standards for internal noise and sound insulation of and between units of accommodation."
11. Policy GD2 (Demolition and Replacement of Buildings) requires an applicant to demonstrate why it is not appropriate for a building to be retained, improved and refurbished and why therefore it is more suitable to be demolished and a new building constructed in its place. The full text of that Policy provides:-
"Policy GD 2
Demolition and replacement of buildings
The demolition of a building or part of a building will not be permitted unless the proposed development:
1. involves the demolition of a building or part of a building that it is not appropriate in sustainability terms to repair or refurbish; and
2. makes adequate provision for the management of waste material arising from demolition in accord with policy WM1 'Waste Minimisation and New Development'; and
The demolition of a building or part of a building will also not be permitted where the proposed development:
3. would have an unacceptable impact on a Listed building or place in accord with Policy HE 1 'Protecting Listed buildings and places' and Policy HE 4 'Demolition in Conservation Areas' or protected species and their habitats, in accord with Policy NE 2 'Species protection';
4. would have an unacceptable impact on the character and amenity of the area;
The replacement of a building or part of a building will not be permitted unless the proposed development:
5. enhances the appearance of the site and its surroundings;
6. replaces a building that is not appropriate to repair or refurbish."
12. Paragraphs 19-24 of Mr Townsend's affidavit set out how the application was considered. On receipt of the formal application it was assessed by a planning officer who made a site visit and considered consultation responses and objections from the appellant. As a result a report was produced by the Planning Department in June 2012 with a recommendation for refusal which was given on 19th June.
13. The applicants' architects filed a request for reconsideration on 10th August, 2012. On 21st August, the appellant provided a further letter of objection reiterating what he had said earlier. A report was produced for the Panel which visited the site on 2nd October before considering the application at a public meeting on 4th October. At that meeting the applicants' architect was heard. The appellant did not attend nor was he represented.
14. At that meeting the panel decided that planning permission should be granted. In accordance with the normal procedure (as the decision was contrary to the recommendation of refusal made by the Planning Department) the decision was referred to the Minister who, having considered the matter, decided that he did not wish to intervene. The matter was therefore referred back to the panel to confirm its decision which it did at a public meeting on 15th November, 2012.
15. At that meeting the appellant's advocate asked to make representations but he was advised that he could not do so as the panel had already considered the merits of the application on 4th October and it was not now open to reconsideration or to allow further representations. In this regard reference was made to the Planning Applications Panel's Members Code Conduct dated January 2012 and Planning Guidance Practice Note 6 - Conduct of Public Meetings before the Planning Applications Panel. The Panel then went on to confirm its decision and a Planning Permit was issued on 15th November, 2012.
16. Paragraphs 25-34 of Mr Townsend's affidavit set out the respondent's comments on the grounds set out in the appellant's Notice of Appeal. In summary the respondent says:-
(i) On 4th October, 2012, the panel considered in detail the application (including making a site visit and review of all material papers including the appellant's objections) and was minded to grant planning permission. As that decision was contrary to the recommendation of the Planning Department it was referred to the Minister (as was the usual practice) who decided he did not wish to intervene.
(ii) The panel acted entirely in accordance with normal procedures in coming to its decision and the public meeting on 15th November was to confirm that decision. The merits had been considered in full on 4th October and it was not open to them to be reconsidered again on 15th November.
(iii) The respondent takes issue with the contentions put forward that the Minister failed to have regard to all material considerations. It is quite clear that in coming to a decision all relevant material was considered including drawings, consultation responses and the appellant's objections. In addition, the panel had made a site visit before coming to its conclusions.
(iv) The respondent refutes the contention that the refusal of the panel on 15th November to allow further representations was in breach of natural justice or denied the appellant a fair hearing.
(v) In all its deliberations and consideration the panel had full regard to the impact on the appellant's property of the proposals which received consent.
17. In support of his appeal, the appellant swore an affidavit on 7th February, 2013. This sets out the relevant factual background including the purchase of his property White Horses in October 2011. He mentions brief contacts and discussions with the applicants about their plans for development at La Hougue Farm. He denies, however, that he was told by the applicants (as they claim) that they intended to demolish the existing house and build a new one closer to the appellant's property.
18. The appellant also says that, after taking advice from his architect, a letter of objection was sent to the Planning Department on 19th April, 2012, in relation to the application by the applicants for development. A further letter of objection was also sent on 21st August, 2012, prior to the consideration of the application by the panel on 4th October, 2012. The appellant was unavailable to attend the hearing on that date.
19. After that hearing, the appellant took legal advice for the first time. His lawyers were subsequently advised of the panel's decision and the fact that the Minister did not wish to intervene in that decision. The appellant then decided through his lawyers to make further representations and his lawyers sent a letter dated 13th November, 2012. At the meeting on 15th November, 2012, when the panel confirmed its decision it declined to consider or hear further representations on behalf of the appellant.
20. The appellant's objections to the proposed development at La Hougue Farm were as follows:-
(i) the proposed replacement building was substantially larger than the existing building;
(ii) the proposed location of the replacement dwelling was immediately opposite the front of the applicant's property, directly across the narrow private road, and was therefore significantly closer to his own property;
(iii) in consequence of the proposed relocation and substantial increase in size of the replacement dwelling the appellant would be severely prejudiced by reason of an unacceptable level of overbearing, overlooking, loss of light and general enjoyment of his property.
(iv) the appellant also brings his appeal on the grounds that the procedure adopted by the respondent was unfair and unreasonable in that the respondent failed, refused or neglected to take into account submissions and representations made by the appellant prior to the decision by the panel made on 15th November, 2012. In particular:-
(a) the letter dated 13th November, 2012, from the appellant's lawyers was not provided to the panel prior to its decision on 15th November, 2012;
(b) on 15th November, 2012, the Panel declined to consider the letter and the photomontages accompanying it or to adjourn its hearing pending consideration thereof;
(c) the respondent and/or the panel failed to require the applicants to erect scaffolding profiles of the proposed replacement dwelling in order the ascertain the true impact on the appellant's property.
(d) the appellant also contends that as no reference is made to the said letter of 13th November, 2012, in the original affidavit sworn on behalf of the respondent for this appeal, this clearly confirms that it was not taken into account when the panel made its decision on 15th November, 2012.
21. The appellant accepted that the legal test to be applied in determining planning appeals was well established and is set out in the case of Token Limited-v-Planning and Environment [2001] JLR 698. At paragraph 9 of his judgment the learned Bailiff put the test in this way:-
22. It was the appellant's case that the decision to grant permission was unreasonable in all the circumstances of this case on the grounds set out in the Notice of Appeal. The appellant contended that the decision was so wrong that it was unreasonable.
23. The appellant referred to the hearing of the panel on 4th October, 2012, which he had been unable to attend. At that meeting the panel heard from the applicant's architects. The application was recommended for refusal by a planning officer as lacking design quality and thus being harmful to the residential character and amenity of the area.
24. The planning officer's report referred to the appellant's objections and the impact on his property but then drew a general conclusion that the impact of the new house on its neighbours was not unreasonable. The appellant contends that the impact on the neighbours generally was not unreasonable but the impact on himself was unreasonable because his property was closest to and directly opposite the proposed replacement building.
25. The appellant said that not surprisingly the panel concentrated on design issues rather than the appellant's objections when coming to its decision. Because that decision was contrary to the recommendation of the Planning Department it was referred to the Minister who decided he did not wish to intervene. Because the matter had been referred to the Minister, the appellant contends that the decision of the panel on 4th October, 2012, was not a final decision. When the matter was referred to the Minister it would have been open to him to take further representations into account. The panel would, in the view of the appellant, have been able similarly to take representations into account after its decision on 4th October, 2012.
26. The appellant referred to Article 9A(7) of the 2002 Law which provides that, except to the extent that the Minister directs otherwise, a panel may determine its own procedures. The Supplementary Planning Guidance (Practice Note 6) issued by the Minister does provide that where the panel wishes to overturn a departmental recommendation the decision will be deferred and brought back at a subsequent meeting for confirmation. The appellant accepted that this guidance prohibits further representations at the subsequent meeting. He contended however, that this is guidance only which does not have the force of law. The panel may determine its own procedures but must retain discretion as to whether to admit further representations. The appellant argued that in the present case, in refusing to hear the additional representations, the panel failed even to consider whether it had a discretion to admit them.
27. The appellant also said that the guidance referred to, whilst seeking to prohibit additional representations at the subsequent meeting to confirm the panel's previous decision, does not prohibit the submission of additional submissions prior to that subsequent meeting. In this case the letter of 13th November and accompanying photomontage were submitted with a request that they be provided to the panel. Those representations were not taken into account by the panel at the meeting on 15th November nor were they provided to the panel. This was because the officer to whom the letter had been addressed failed to provide it to the panel. The panel did not, therefore, have an opportunity to consider whether it had any discretion to take into account the further written representations or oral representations requested to be made.
28. In his written submissions, the appellant referred to the English cases of R-v-Secretary of State for the Environment ex parte Brent London Borough Council and Ors [1983] 3 All ER 321 and Oxygen Co Limited-v-Minister of Technology [1970] 3 All ER 165 in support of his contention that a decision-making body exercising public functions must not fetter its discretion by refusing to hear representations prior to exercising that discretion. He also cited de Smith Woolf and Jowell Judicial Review of Administrative Action (5th Edition) at Chapter 11, paragraph 11-001 in support of that submission.
29. Applying those principles to the present case meant that the panel should have been prepared to consider the appellant's submissions contained in the letter of 13th November, 2012, sent to it. The appellant argued that the panel had stated, on 4th October, 2012, the decision it intended to make, having already considered the written representations made by the appellant. It had not yet, however, made a final decision. The panel should have been prepared to consider whether the appellant had anything new to say but it declined to consider the further written representations made. In so doing the panel preferred strict adherence to its guidance notes above the requirement of fairness to the appellant in the appeal.
30. The appellant's written submissions also considered the provisions of the Island Plan relevant to the application under appeal. Those submissions addressed in some detail the provisions of Policy GD1 (General development considerations). The appellant said that the panel failed to give any or any proper consideration to the mass, scale and siting of the proposed new building or its impact on the appellant's property. Policy GD1 required, inter alia, that the proposed development did not unreasonably affect the appellant's amenities. What is or is not reasonable depends on all the circumstances of a case. In this particular application it was unreasonable to allow the relocation of the replacement building so that it was opposite the appellant's house. A reasonable solution would have been to re-build the new house on the site of the existing house.
31. The appellant said that although the location was in the Built-up Area there was no question here of providing new housing. Rather, there was merely the replacement of one house by another. It was the appellant's contention that the loss of amenities suffered by him by the relocating of the house outweighed any short term inconvenience to the applicants if the new house were to be built on the existing location. The appellant would not have objected to such a proposal.
32. The appellant also referred to two recent decisions of the Royal Court on Planning Appeals namely, McCarthy-v-Minister for Planning and Environment [2007] JRC 063 and Fern-v-Minister for Planning and Environment [2012] JRC 034 to support his argument that a wide duty of consultation with interested bodies and persons had been imposed by the 2002 Law. The appellant said that an applicant for a planning permit had an obligation to take into account his neighbour's objections and to mitigate the effect of proposed new developments as far as possible. In relation to the application under appeal those matters could have been addressed very easily by modifying or adjusting both the site location and the size of the proposed new house.
33. The appellant therefore requested that either his appeal be allowed so as to overturn the Minister's decision to approve the application or, alternatively, that the matter be referred back to the Minister so that he might order the erection of scaffolding profiles to establish the full extent of mass and scale of the proposed replacement dwelling. At the same time he would also be able to take into account the appellant's further representations set out in the letter dated 13th November, 2012, from his lawyers.
34. In his submissions, the respondent referred to the application under appeal and said that the site was in the Built-up area. The application had been the subject of a comprehensive assessment and full consultation. In the written decision the reasons for granting the application were fully explained.
35. The application was for a replacement dwelling. Pursuant to Policy H6 the applicants had a reasonable expectation that they could build. The appellant had a reasonable expectation that his amenities would not be unreasonably harmed. The test in Policy GD2 was that a proposal must not seriously harm the amenities of neighbouring uses or unreasonably affect such properties.
36. The respondent pointed out that although a planning officer had recommended refusal of the application this was for design reasons. In considering this, it was the officer's view that the effect on the amenities of the appellant was not such as to merit refusal on that by reference to Policy GD2.
37. The respondent also addressed the question of alleged procedural irregularities. The position concerning a procedural irregularity was summarised in the decision of the Royal Court in Ferguson-v-Minister for Planning and Environment [2013] JRC 022. Having considered in detail these matters, the learned Commissioner J. A. Clyde-Smith summed up the position in paragraph 65 of his judgment in the following way:-
38. The respondent said that the proceedings in this case were sufficient and satisfactory. The appellant had been consulted and his representations were before the panel. At the meeting held on 4th October, 2012, the panel was minded to approve the application. This decision crystallised when the Minister then declined to call in the decision. This was communicated to the lawyers representing the appellant on 15th October. The purpose of the subsequent panel meeting held on 15th November was to ensure compliance with Article 9A of the 2002 Law.
39. The respondent said that the reasons given for the decision leave no doubt that the appellant's representations had been taken into account. The application was subject to a great deal of consultation and the panel had also visited the site. The respondent contended that, in all the circumstances, the appeal should be dismissed.
40. The respondent went on to refer to the legal test to be applied on appeals. This was well-established. By way of example he referred to the case of Dixon-v-Minister for Planning and Environment [2012] JRC 237A and in particular, paragraphs 14-17 of the learned Deputy Bailiff's judgment which provide as follows:-
The respondent said that the Royal Court was not the planning authority. It had to decide whether a decision was unreasonable having regard to all the circumstances of the case. The question was not whether the Royal Court would have made the same decision as the respondent but whether, allowing respondent a margin of appreciation, it had reached a decision which the Court thought was so wrong as to be unreasonable.
41. It was the respondent's case that, with reference to the appellant, the consultation on the application had been fair. The position regarding consultation is set out in the Ferguson case which provides at paragraphs 56-60 of the learned Deputy Bailiff's judgment as follows:-
42. The respondent's position was that whilst Courts are prepared to review the conduct of a consultation, the decision-maker has a broad discretion as to how to conduct that consultation. The respondent referred to the case of Re (on the application of Greenpeace Limited)-v-Secretary of State for Trade Industry [2007] EWHC 311. Relying on that case the respondent submitted that there was a high threshold which had to be met to allow judicial interference. This meant that Courts would only interfere if something had gone clearly and radically wrong. In this Appeal, the respondent argued that nothing could be said to have gone wrong at all let alone anything going clearly and radically wrong.
43. The respondent went on to consider the panel's actions in dealing with the application under appeal. The respondent submitted that the merits of the application had been considered in full and taking into account the factors raised in the appellant's two letters of objection. All these matters had been considered at the panel meeting held on 4th October, 2012. The purpose of the matter being referred back to a panel meeting on 15th November was not to consider these matters afresh, nor to invite further representations. The Minister, having decided not to intervene, had merely referred the matter back to the panel for it to confirm its decision. It was on this basis that the panel was not given the further letter sent by his lawyers on behalf of the appellant on 13th November.
44. The respondent urged that it would be wrong to criticise the panel for acting in accordance with the Supplementary Planning Guidance Practice Note 6 (Conduct of Public Meetings of the Planning Applications Panel). In this case the appellant had exercised his rights to make representations and did so twice, once prior to the refusal of the initial application and then again when the request for reconsideration was submitted. Those written representations were fully taken into account by the panel in considering its decision. The respondent also pointed out that the appellant could have arranged for an agent to speak on his behalf at the panel meeting on 4th October as the appellant was not able to attend on that date. He chose, however, not to do so.
45. The Minister's decision not to recall the decision of the panel arose at a briefing meeting between the Minister and his officers. At such meetings the Minister merely decides whether he wishes to deal with the application or allow the panel to confirm its decision. He decided on the latter and the appellant's lawyer was advised of this on 15th October. The respondent argued that the non-intervention of the Minister essentially crystallised the panel's original decision.
46. The respondent said that meeting to confirm the decision of the panel held on 15th November was not an opportunity for parties to make again representations already put before the panel. The confirmation of the decision also led to the issue of the written planning permission with conditions attached and reasons being given for its decision. This was to ensure compliance with Article 9A of the 2002 Law. The respondent emphasised that the confirmation was the decision of the panel itself not of an officer of the department.
47. The respondent emphasised that in coming to its decision the panel had given consideration to the question of relocating the new building to a different position on the applicant's site. In considering this question it had taken fully into account the appellant's letters but it declined to order relocation. The respondent pointed out that the role of the Minister is to assess an application on planning principles in accordance with the Island Plan for the public good. (See Ferrara-v-Minister for Planning and Environment [2010] JRC 108 at paragraph 12). It is not the function of the Minister to attempt to mediate between two neighbours.
48. The respondent concluded his submissions by saying that proper procedures had been followed. The two written sets of objections from the appellant had been carefully considered. The appellant had also had the opportunity to attend or be represented before the panel at its meeting on 4th October but had chosen not to do so. In coming to its decision the panel had given full consideration to all relevant matters and had had the benefit of plans, a model, a site visit and written submissions with supporting documentation. The decision was made with all sufficient material for it to approve the application. Furthermore, the respondent said that there were not any flaws in the procedures adopted by the panel and it would have been wrong for it, when confirming the decision in November 2012, to have allowed the decision to be delayed further or reconsidered again.
49. Written submissions were also filed on behalf of the applicants. Those submissions set out the background facts and a procedural history of the application and the case generally. They went on to address the processing of the application, the decision taken by the panel on 4th October, 2012, and its subsequent confirmation on 15th November, 2012. The submissions also considered the events whereby the lawyer of the appellant was not allowed to address the panel on 15th November as the time for such submissions had passed.
50. The applicants accepted that the legal test to be applied on this appeal was that set out in Token-v-Planning and Environment Committee [2001] JLR 698 which case also considered the decision in Island Development Committee-v-Fairview Farm Limited [1996] JLR 306.
51. In summary, the grounds of appeal put forward by the appellant were two-fold:-
(i) the decision-making process was unfair;
(ii) the decision made was unreasonable because it did not properly take into account the impact of the new house on the appellant's property.
In the view of the applicants both complaints were baseless.
52. The alleged procedural failings arose when the panel refused to hear the appellant's lawyer at its meeting on 15th November or otherwise to take into account the letters and additional materials submitted on the 13th November, 2012. The appellant argued that by failing to consider whether it had discretion to do this, the panel had "shut its ears" to representations the appellant wish to make. Furthermore, for reasons which the applicants say are not entirely clear, the appellant argues that this case can be distinguished from the Ferguson case. This was because the panel had refused to consider the appellant's new representations. In his own submissions, the appellant relied in support of this contention the case of R-v-Secretary of State for the Environment [ex parte Brent LBC] [1983] 3 All ER 321.
53. The applicants said that the contentions put forward in support of the appeal were misguided and overlook the factual position. There was no basis on which to distinguish the principles set out in the Ferguson case. That case lays down a principle of general application in planning cases where a procedural irregularity is alleged.
54. The applicants contend that there is no reason why the same test should not apply here. The Brent case deals with totally different factual and legal contexts and is therefore of no assistance. The key question to answer is a simple one. Did the appellant have "a fair crack of the whip" in being permitted to make representations? The applicants say it is plain that he did.
55. The applicants also referred to the affidavit sworn by the appellant which sets out in some detail his involvement in the application under appeal. This shows that he had an opportunity to address the panel on 4th October, 2012, and adduce photomontages or other evidence of that time if he so wished. He chose not to do so nor did he instruct anyone to attend the meeting on his behalf. Those failures cannot be laid at the door of the respondent.
56. It was only after the panel had decided to approve the application that the appellant had taken legal advice and then sought to make further representations. The panel had declined to receive those as the time for making representations had already passed. The purpose of the meeting on 15th November, 2012, was merely to confirm the panel's earlier decision.
57. What had transpired made it clear that the panel had not "shut its ears" to the appellant. The latter had an opportunity but chose not to attend the panel meeting on 4th October and so he missed his chance to address it. What he tried to do on 15th November, 2012, was to have a further opportunity to make representations. This was not something which was provided for in the planning process. It was not the fault of anyone other than the appellant and his advisers that he did not exercise his rights to address the meeting on 4th October. Having failed to do so, it was quite wrong to expect the panel to deviate from its published procedures and no reason had been provided which would justify such an exceptional step. Furthermore, had that been allowed there would not have been any opportunity for the applicants or the Minister to reply to any submissions made.
58. All in all, it was correct that the appellant had not been afforded an exceptional additional opportunity to be heard on 15th November. On the facts of this particular case, there was no basis, therefore, to find any defect in the procedures adopted by the panel. The appellant had not been prejudiced by the procedures which had been followed.
59. The applicants went on to consider the substantive objections to the granting of permission which had been raised by the appellant. With regard to the argument that the Minister had failed to give consideration to the mass, scale and siting of the proposed new building and the impact on the appellant's property, the applicants disputed this. They also took issue with the suggestion that the panel had failed to take account of the criteria set out in Policy GD1 on this matter.
60. The applicants said that the reasons provided by the panel in granting consent showed careful consideration of the objections of the appellant but the panel had concluded that they were not such as to warrant refusal of the application. What is shown is that the panel did not ignore the objections but rather reached a different decision to that urged by the appellant. In doing so, the panel provided cogent reasons for the decision reached.
61. Furthermore, it was clear that the panel had considered the criteria set out in Policy GD1. The consent for the new house did not, in the view of the panel, seriously harm the amenities or unreasonably affect the level of privacy of the appellant. The panel had rightly concluded that minimal interference with the appellant's privacy (the new house had only two small opaque bathroom windows at first floor level overlooking the appellant's property) did not justify refusing the application. Moreover, only a moderate level of overshadowing which was not substantially different from that caused by an existing hedge would also not justify refusal.
62. The applicants saw no merit in the arguments of the appellant that his objections had been disregarded because the application site was in the Built-up Area. The evidence was clearly to the contrary and it was unsustainable to suggest that in considering the application the panel should take no account of the context of the relevant properties, the character of the area where they were located and its designation for planning purposes.
63. The applicants also rejected the argument that the panel should have taken upon itself the task of relocating the new house to where the existing property of the applicants was built. This was not the role of a planning authority. Under the 2002 Law the Minister is required to consult with interested parties. This is exactly what he did through the panel. It would have been totally incorrect to go beyond that obligation of consultation and seek to alter the scheme proposed by the applicants as a consequence.
64. In all the circumstance, therefore, the applicants urged that the consent granted by the panel was neither mistaken nor unreasonable. They requested, therefore, that the appeal be dismissed and the decision to grant consent be upheld.
65. The law which I must apply in deciding this appeal is well established. The legal test is set out in Token-v-Planning and Environment Committee [2001] JLR 698. That test was applied by the Royal Court in the case of Burgess-v-Minister for Planning and Environment [2010] JRC 038. In paragraph 12 of that case the learned Bailiff said as follows:-
66. Article 114 of the 2002 Law sets out provisions in relation to third party appeals and is in the following terms:-
67. In applying the law in this appeal I must take full notice of the fact that the right of appeal does not replace the Minister by me. It is not sufficient for me to conclude that the decision of the Minister is wrong in the sense that I would not have reached the same decision. That does not entitle me to allow the appeal. It is only if I consider that the decision is wrong to such an extent that it can be categorised as unreasonable that I, as the Court, am entitled to intervene. (In addition to the authorities mentioned above see also the recent judgment of the learned Bailiff in Fern-v-Minister for Planning and Environment [2012] JRC 034 especially at paragraphs 29 to 31).
68. In Ferguson-v-The Minister for Planning and Environment [2013] JRC 022, the Royal Court (Commissioner J.A. Clyde-Smith presiding) considered in some detail issues of procedural fairness in administrative decisions. Paragraphs 64-67 of the learned Commissioner's judgment in that case says:-
69. In coming to my decision I have considered very carefully the detailed submissions put forward by the parties on all the points in issue on this appeal. I have also reviewed carefully the affidavit evidence put forward in support of their respective positions.
70. The approach which I must adopt in deciding this appeal is set out in paragraph 67 above. Only if the decision is so wrong as to be categorised as unreasonable can I intervene.
71. The grounds of appeal set out in the Notice of Appeal are set out in paragraph 2 above. Essentially, there are two specific issues:-
(i) the appellant contends that the decision-making process was unfair because he was not allowed to address the panel at its meeting on 14th November when it confirmed its decision;
(ii) the decision of the panel was unreasonable because it did not properly take into account the impact of the proposed new house on the appellant's property.
72. I will deal firstly with the issue of whether the decision-making process was unfair. I consider that the Ferguson case referred to above is of particular assistance in its consideration of procedural fairness in administrative appeals. Paragraphs 64-67 of the learned Commissioner Clyde-Smith's judgment (which are set out at paragraph 68 above) provide very helpful guidance.
73. I have also considered carefully the terms of the Planning Applications Panel Members Code of Conduct and Planning Guidance Practice Note 6 - Conduct of Public Meetings before the Planning Applications Panel.
74. The appellant made written representations on the original application (which was refused) and its reconsideration. He was also entitled to attend the meeting of the panel on 4th October, 2012, when the application was considered in detail. The appellant could have appeared himself or appointed a suitable representative to attend that meeting and make oral representations on the application. The appellant chose not to do so (which was, of course, his prerogative).
75. Because the decision of the panel to grant approval was contrary to the recommendation of the Planning Department the matter was referred (as is normal practice) to the Minister for him to decide whether he wished to intervene. As the Minister declined to do so the matter was sent back for the panel to confirm its decision. That was done at a public meeting held on 15th November, 2012. The panel, having regard to its own guidelines, declined to hear further representations from the appellant. This was on the basis that full representations had already been made and consideration had been given to them at its earlier meeting on 4th October and the decision was made at that earlier time.
76. I do not consider that the way the panel conducted itself constituted a procedural irregularity which would justify my being entitled to quash the decision made and allow the appeal. In my opinion, the proceedings followed were in general sufficient and satisfactory. There were not procedural errors or unfairness which rendered the decision of the panel unreasonable. The appellant had been given an opportunity to make written representations which he had done. He could also have attended or been represented at the meeting of the panel on 4th October so that oral representations could have also been made. He chose not to do so. It is also clear, that the representations which were made by him were taken into account by the panel in coming to its conclusions.
77. My conclusion, therefore, is that there was not any procedural irregularity. I do not consider that the stance taken by the panel at the meeting on 14th November was irregular or improper. Nor do I consider that there has been any breach of natural justice. In my view, therefore, the appeal on the alleged ground of procedural irregularity must fail.
78. The appellant also brings his appeal on the basis that the decision of the panel was unreasonable because it did not take properly into account the impact of the proposed new house on the appellant's own property. Having reviewed the affidavits and supporting material, I am satisfied that the panel exercised its functions properly in coming to a decision. It is clear from the planning permit itself that the written representations of the appellant were considered by the panel. I consider the decision was not unreasonable. I would not have made a different decision myself. There is, therefore, in my mind no question of the decision of the panel being so unreasonable under the Token principles as to justify by my quashing it or remitting it to the Minister. I therefore decline to do so and the appeal fails on this basis also.
79. My decision, therefore, is to refuse the appeal which is dismissed. As the appeal was adjudicated by me under the modified procedure on the papers I will make no orders as to costs.
