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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Guest -v- Minister for Planning and Environment [2017] JRC 069 (10 May 2017) URL: http://www.bailii.org/je/cases/UR/2017/2017_069.html Cite as: [2017] JRC 69, [2017] JRC 069 |
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Planning - application for extension of time to appeal against decision of the Minister.
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
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Between |
Royston Guest Jane Guest |
Third Party Appellants |
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And |
The Minister for Planning and Environment |
Respondent |
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Advocate R. J. McNulty for the Third Party Appellants.
Advocate D. J. Mills for the Respondent.
In attendance Mr Ellis A. J. Philp (The Applicant).
CONTENTS OF THE JUDGMENT
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Paras |
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1. |
Introduction |
1 |
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2. |
Background |
2-23 |
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3. |
The Issues |
24 |
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4. |
Issue 1 |
25-40 |
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5. |
Issue 2 |
41-61 |
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6. |
Issue 3 |
62-79 |
judgment
the master:
1. This judgment represents my decision in respect of an application for an extension of time by Mr Royston Guest and Mrs Jane Guest ("Mr & Mrs Guest") to challenge by third party appeal, a decision of the Minister for Planning and Environment (the "Minister") to grant planning permission. The appeal filed by Mr & Mrs Guest was filed one day too late.
2. Mr & Mrs Guest own a property known as 'Le Bourg Farm'. Le Bourg Farm is a grade 4 listed building as a result of a notification issued by the Minister on 27th April, 2016.
3. A grade 4 listing is the lowest grade. The guidance issued by the Minister defines a grade 4 building as a "buildings and places of special public and heritage interest to Jersey being good example of a particular historical period, architectural style or building type, but defined particularly for the exterior characteristics and contribution to townscape, landscape or group value".
4. Le Bourg Farm was described as a farm house of "18/19th Century Origin retaining historic character and some original features". The listing of Le Bourg Farm did not apply to carrying on any alterations to the interior of the property.
5. Adjacent to Le Bourg Farm is La Maison du Bourg owned by Mr and Mrs Philp. On 23rd November, 2016, Mr and Mrs Philp applied for planning permission to develop La Maison du Bourg. The proposed development comprised a single storey extension to the south elevation and a stand-alone double garage also to the south of the property. La Maison du Bourg adjoins Le Bourg Farm on its east side.
6. On 4th January, 2017, Mr Guest by email objected to the proposed development. His email states as follows:-
"Le Bourg is an 18th century Farm House with a rich history dating back. It is classified as a listed building/building of historical interest. Le Maison du Bourg is the adjoining property and therefore should carry the same status as Le Bourg.
2. The proposed alterations fundamentally change the design of the area and affect the natural layout and beauty of this discreet enclave. Le Maison du Bourg is a beautiful 3 bedroom property in keeping with the design of the area and in my opinion its heritage and history should be respected without the proposed fundamental structural changes to the design and layout.
3. Of particular concern is the proposed new garage which will actually breach the current fence and tree line. When we bought Le Bourg Farm the access rights and what could and could not be done with the approach and parking areas arc explicit. The proposed garage contravenes these rights and should be rejected outright. It will be an eye saw to the area and Spoil the natural beauty as well as affecting access rights to our property and maintaining an appropriate turning circle. There are minimum Of 3 cars parked on this at all times - sometimes 4 (see attached picture) So the proposed design is fundamentally flawed in how it will work on a daily basis.
4. There were strict design laws put on the build of the property in front of both Le Bourg and Le Maison including the property being sunk down into ground and a grass roof. None of these design considerations have been considered on this proposed extensions and scope of work. The proposed alterations will sit above the fence line of our property as you look out from our patio and this is not acceptable.
For all the above reasons I request the planning application is rejected. Should I need to consult my lawyer with regard to this application to defend our rights as adjoining property owner then I prepared to follow this course of action."
7. Planning permission was granted on 27th January, 2017.
8. It was not in dispute that, as Mr Guest had objected to the proposed development on 4th January, 2017, Mr Guest is a third party appellant as defined in Article 108(4) of the Planning and Building (Jersey) Law 2002 (the "Planning Law"), because he had an interest in and resides in land which was within fifty metres of La Maison du Bourg and prior to planning permission being granted he had made a written representation in relation to the application for planning permission. Although Mrs Guest had not made such an objection both counsel agreed this did not matter because Mr Guest did have standing to bring a third party appeal.
9. Mr Guest became aware of the decision of the Minister on 30th January, 2017.
10. On 9th February, 2017, Mr and Mrs Guest instructed Collas Crill to file an appeal against the Minister's decision.
11. On 10th February, 2017, Mr and Mrs Guest were informed in writing by Collas Crill that the Notice of Appeal needed to be filed by 24th February, 2017. I have not been provided with the advice as Mr Guest has asserted a claim to privilege.
12. Mr and Mrs Guest concede that this advice was in error because any appeal should have been filed by 23rd February, 2017, because of the requirements of Article 112(3) of the Planning Law. Article 112(3) in so far as material provides as follows:-
13. Mr and Mrs Guest's appeal was an appeal under Article 108 of the Planning Law so the period of 28 days started to run on 27th January, 2017, when the Minister made his decision. Article 112(3) is clear that the first day of the 28 days period is the date of the decision itself.
14. According to Mr Guest Collas Crill also suggested that Mr and Mrs Guest instructed a planning consultant to provide an expert view on the grounds of appeal.
15. Mr Guest in his affidavit filed in support of the present application deposed that on 16th February, 2017, he received an email from Collas Crill seeking confirmation as to how Mr and Mrs Guest wished to take matters forward, following on from Collas Crill's letter of 10th February, 2017. Mr Guest stated this email surprised him a little because it was his understanding that "following Collas Crill's letter to me on 10th February, 2017, that they would then proceed to prepare the notice of appeal and the grounds of appeal instruct the planning consultant Gaby Deane within good time for the deadline for otherwise filing any appeal to the Planning Decision Notice".
16. Mr Guest then deposed that he called Advocate Gilbert at Collas Crill on 17th February, 2017, in response to which Advocate Gilbert suggested that a call should take place on Monday 20th February, 2017, as she was in Court on 17th February, 2017.
17. In response to this suggestion Mr Guest deposed that he was out of the Island on 20th February, 2017, and therefore proposed a call with Advocate Gilbert on 22nd February, 2017, when they spoke in relation to the appeal. He specifically stated at paragraph 18 of his affidavit "nobody from Collas Crill wished to speak with me sooner. Given the deadline for filing the notice of the grounds of appeal, I had assumed (wrongly it would now seem) that Collas Crill would have been taking all steps necessary to protect our interests in respect of any appeal, including seeking assistance from Gaby Deane within a reasonable period of time as suggested on 10th February, 2017".
18. The planning consultant was instructed on 22nd February, 2017, and Mr and Mrs Guest received her preliminary advice on 23rd February, 2017, with the notice of appeal being filed on 24th February, 2017.
19. By an email dated 24th February, 2017, Mr Nathan Wilczynski the Manager of Appeals and Tribunals Service, emailed Advocate Gilbert and stated as follows:-
"I have just received a planning appeal for La Maison du Bourg and unfortunately the appeal has not been submitted in time.
The decision notice is dated 27th January, 2017, and you have 28 days to make an appeal day one being the decision date. So the 28 day deadline was 23rd February, 2017, your appeal was received today on day 29. I have no grace to extend the deadline so the appeal will be lodged as invalid and subsequently rejected.
I have contacted you by email to make you aware of the decision as the post for today has already gone and I am out of the office all day Monday so you will not receive the official letter until Wednesday."
20. On 3rd March, 2017, Mr Guest emailed Mr Wilczynski having been informed that his appeal had been filed 24 hours too late.
21. He asked "I am appealing to you for the decline to be reviewed and the case to be allowed to proceed in alignment with the appeal process".
22. The same day Mr Wilczynski replied stating "I understand your frustration but I am afraid the appeal was received on day 29. Unfortunately there are no powers within the law for me to extend the 28 day deadline hence the reason why my hands are tied."
23. On 9th March, 2017, following further correspondence from Mr Guest which had been referred to Advocate Paul Matthews the Judicial Greffier, Advocate Matthews replied setting out the relevant legal tests for an extension of time to be granted. As a result of this email an application was issued for an extension of time which has come before me for determination. In determining whether or not to grant an extension of time, as an officer of the Royal Court, I am discharging the judicial functions vested in the Judicial Greffier.
24. By reference to the skeleton arguments filed on behalf of Mr and Mrs Guest and the Minister, three issues arose for determination:-
(i) Whether or not the Judicial Greffier has power to extend time at all, notwithstanding the express time limits contained in Article 112(3) of the Planning Law set out above;
(ii) If the Judicial Greffier does have power to extend time, whether the appeal involves determination of a "civil right" for the purposes of Article 6 of the European Convention on Human Rights; and
(iii) If the Judicial Greffier does have a power to extend time and if the appeal involves determination of a civil right, how the power should be exercised. I will deal with each of these issues in turn.
25. In relation to the first issue, Advocate Mills argued that the appropriate procedure would be for Mr Guest to seek judicial review of the decision dismissing Mr Guest's appeal because it was out of time. He therefore argued that the summons should be struck out. To be fair to Advocate Mills this position on behalf of the Minister was advanced with some diffidence and was only advanced as a submission in view of the clear terms of the Planning Law in particular Article 112. This argument requires an analysis of the role of the Judicial Greffier under Article 112 and what steps were taken by Mr Wilczynski in relation to Mr Guest filing a notice of appeal 1 day late.
26. Firstly, as far as the function of the Judicial Greffier is concerned, the projet filed with the States of Jersey in respect of Planning and Building (Amendment No.6)(Jersey) Law 2002 which led to the current version of Article 112 referred to the Judicial Greffier administering the appeals process (see the section headed 'administration of the appeals'). However, it is clear that the Judicial Greffier at least under Article 112(4) possess a discretion to decide what to do where a notice of appeal does not comply with the requirements of Article 112(2). The Judicial Greffier may reject the notice or may invite the appellant to remedy any defect. This is more than an administrative function. By rejecting a notice the Judicial Greffier is dismissing an appeal. The Judicial Greffier in doing so is not acting as a delegate of the Royal Court but under the express authority granted by Article 112. Nevertheless it is a power where an appeal could be dismissed and so has a judicial element to it.
27. In exercising the powers vested in him under Article 112 the Judicial Greffier must have regard to Article 4(1) of the Human Rights (Jersey) Law 2000 (the "Human Rights Law") which provides that "so far as it is possible to do so, principal legislation and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights."
28. Article 4 therefore requires the Judicial Greffier to consider whether the dismissal of any appeal for non-compliance with the time limit in Article 112(3) was compatible with Mr Guest's rights under the European Convention on Human Rights 2000.
29. In the Judicial Greffier's advice to Mr Guest on 9th March, 2017, the Judicial Greffier referred to the case of Minister for Planning and Environment v Herold [2014] JRC 020. The Herold decision concerned a third party appeal brought by Mrs Herold which was served 1 day late where there was also a time limit to appeal fixed by statute albeit of 14 days from notification of the planning decision. The Royal Court held that generally where a statute provided for a fixed time limit for an appeal there was no discretion vested in the Royal Court to extend time. The position was summarised in paragraph 51(i) in Herold as follows:-
30. However, the Royal Court also determined that there was an exception to this clear principle. Paragraph 51 therefore continued as follows:
31. While the time limit on the Planning Law has changed since Herold because it is now 28 days beginning with the date of the decision rather than 14 days from the notification of the decision, I consider that the principles set out in Herold still apply where the Judicial Greffier receives a notice of appeal under the Planning Law that does not meet the time limit contained in the Planning Law. By reference to Article 4 of the Human Rights Law the Judicial Greffier is under a duty to consider whether or not the appeal involves determination of a civil right where an appeal is out of time.
32. However, in this case Mr Wilczynski on behalf of the Judicial Greffier did not consider this question. In his email of 24th February, 2017, he simply stated he had no "grace to extend the deadline"; in his email of 3rd March, 2017, he stated "unfortunately there are no powers within the law for me to extend the 28 day deadline".
33. It is true that the Planning Law does not give any power to the Judicial Greffier to extend time. However, Mr Wilczynski did not take into account the effect of Article 4 of the Human Rights Law and the decision in Herold. In light of Article 4 and Herold, the Judicial Greffier does possess power to extend time provided that a civil right for the purposes of Article 6 of the European Convention on Human Rights is engaged. Even then any discretion can only arise in exceptional circumstances.
34. What should have occurred in the present case is that the Judicial Greffier should have been asked to consider an extension of time, not under the Planning Law, but to consider whether or not the principles in Herold were engaged.
35. To date no such determination has taken place. Furthermore Mr Wilczynski is only a delegate of the Judicial Greffier. I therefore consider that Mr Guest is entitled to ask the Judicial Greffier to consider extending time not under the Planning Law, which does not grant any such right, but by reference to the principles set out in Herold. Whether there are grounds to consider an exercise of the power and if so how it should be exercised are met I consider later in this judgment. As the person with responsibility for the judicial functions of the Judicial Greffier absent a conflict, this decision is the Judicial Greffier's determination of these issues.
36. I do not therefore consider that an application for judicial review is necessary where the delegate of the Judicial Greffier has not in fact considered or been asked to consider whether or not time can be extended under the principles in Herold.
37. Firstly, such an approach would be extremely cumbersome because it could take significantly longer for a judicial review application to be determined than for the Judicial Greffier to decide whether or not time can be extended because of the effect of Article 6 of the European Convention on Human Rights.
38. Secondly, such a conclusion would be inconsistent with the reforms brought in by Amendment No.6 to the Planning Law which were designed to simplify the appeal process leaving the Royal Court the appeal mechanism of last resort on questions of law only and also allowing for full merits appeals to planning inspectors. To require a challenge to an appeal being out of time to have to be determined by way of judicial review to decide whether or not rights under the European Convention on Human Rights are engaged is contrary to the philosophy of the proposed changes.
39. Where I agree with Advocate Mills that the judicial review would be engaged is once the decision has been made by the Judicial Greffier because there is no other mechanism to challenge a decision of the Judicial Greffier not to extend time if that is the Judicial Greffier's decision. This is because, while the Judicial Greffier is exercising a discretion which I consider is judicial in nature, the only right of appeal to the Royal Court is in respect of decisions by the Minister and not in respect of any decision made by the Judicial Greffier. It may be therefore appropriate for this part of the Planning Law to be modified because the remedy of judicial review is complex and does not sit with the intention behind Amendment No.6 to the Planning Law as I have stated above.
40. Accordingly, in respect of Issue 1 I conclude that the Judicial Greffier does have power to extend time provided the criteria in Herold are met. This therefore requires me to consider issue 2 and whether a civic right is engaged under Article 6 of the European Convention on Human Rights.
41. In Herold, the question of whether Article 6 was engaged was considered. However, in that case the Minister ultimately conceded Article 6 was engaged because if the development were to proceed it would be likely to affect the market value of Mrs Herold's property. However, Advocate Benest who appeared for the Minister in Herold emphasised that this would not necessarily be the case with every third party objection to a planning application and stated that "every case would be determined on its individual facts".
42. In Herold, the permission granted related to the development of 17 residential units of accommodation. The proposed development was on the sea front was three stories in height and directly overlooked Mrs Herold's cottage next door. Advocate Benest's concession in Herold was therefore not surprising.
43. Advocate Mills argued in the present case that there was no evidence that a civil right was engaged and that no property right was effected by the extension. In addition any loss of property value had to be significant and evidenced. Following R. (Cummins) v Camden LBC [2001] EWHC 1116 at paragraph 320, insofar as what was objected to was a loss of a view there was no right to a view.
44. He also referred me to a guide issued by the European Court of Human Rights on Article 6. At paragraph 7 this guide states:-
45. A grant of planning permission information does not generally affect private property rights of parties (see Carter v The Minister for Planning and Environment [2013] JRC 227 at paragraphs 19 and 20).
46. The question of whether a planning application affects a civil right to use property was considered in R (Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions and Others [2002] 1 WLR 1450 (the "Friends Provident") decision. The Friends Provident decision was cited in part in Herold where paragraph 68 setting out counsels' submissions in the Friends Provident case was recorded. I regard it as helpful to also set out paragraph 69 of the Friends Provident decision which states as follows:-
47. The question that I consider arises is whether the grant of planning permission in favour of Mr and Mrs Philp directly effects Mr Guest's "right to use, enjoy and own" Le Bourg Farm.
48. It is clear from Herold that not every third party planning appeal will mean that the civic right of the appellant is engaged. In Herold itself it was conceded that Mrs Herold's civic rights were engaged. A case clearly on the other side of the line is St Ouen v The Minister for Planning and Environment [2014] JRC 043 at paragraphs 79 to 81.
49. Insofar as Mr Guest complains that the grant of planning permission will lead to loss of a view, the question of loss of a view has been explored in a number of cases. These were summarised in Iezzoni v The Minister for Planning and Environment [2015] JRC 030 at paragraphs 20 to 23 which provide as follows:-
50. While therefore there is no right to a view, the loss of a view may be an element of loss of amenity. There also appears to be a distinction between owners and occupiers of properties in the built up area and owners and occupiers of property in the Green zone. Le Bourg Farm is of course in the Green zone.
51. Paragraph 2.119 of the 2011 Island Plan (as received) in 2014 in relation to the Green Zone states as follows:-
52. However, the Island Plan continues at paragraph 2.120 as follows:-
53. There is clearly a balancing judgment to be made when considering an approach for planning permission in relation to a property in the Green Zone between these two paragraphs.
54. For extensions in the Green Zone the Island Plan at paragraphs 2.123 to 2.125 states as follows:-
55. The same approach is taken for applications to construct ancillary buildings at paragraph 2.126 where the key test is said to be "...the impact upon landscape character."
56. Le Bourg Farm is also a listed building Policy WE1 of the 2011 Island Plan states "Proposals which do not preserve or enhance the special or particular interest of a listed building or place and their settings will not be approved".
57. Paragraph 3.16 of Part 3 of the 2011 Island Plan specifically states:-
58. Given that Le Bourg Farm is in a Green Zone and the policy set out in the Island Plan for both the Green Zone and listed buildings, I consider that Mr Guest's right to enjoy Le Bourg Farm is affected by the grant of planning permission contrary to presumptions in the Island Plan. While owning a property which is listed or in a Green Zone from one perspective places restrictions and obligations on an owner, there is also enjoyment in living in a Green Zone area and owning a building of historical interest. This right of enjoyment is directly affected by the grant of planning permission in respect of an adjoining property where that planning permission has arguably misapplied the policies contained in the Island Plan.
59. Le Bourg Farm because of the amenity of the location and the setting will be altered by the construction permitted by the grant of planning permission. While Advocate Mills relied on the Cummins decision to argue that a loss of value had to be significant and evidenced (see paragraph 320), the nature of the rights of the claimant's flat were not explained or evidenced in that case. By contrast Mr Guest has acquired a property in a Green Zone area which property is also a listed building. An alteration to the location immediately adjoining a property either through construction of an extension or a garage is a significant change. The extensions envisaged are not minor or consequential as Ms Deane explained in her affidavit. Whether they ultimately affect the value of Le Bourg Farm does not matter; the proposed extensions are significant in the context of a property which is listed and in the Green Zone, thus altering Mr Guest's enjoyment of it.
60. I also consider that the use of the property will be affected by construction of the extension and a garage. While planning permission does not alter property rights, (see Carter at paragraph 19) this does mean that the grant of planning permission might not alter the use of that access right to the detriment of Mr Guest.
61. I am therefore satisfied that a civil right of Mr Guest in relation to Le Bourg Farm is engaged and accordingly there is a discretion to extend time. This therefore requires determination of issue 3, namely how that discretion should be exercised.
62. In relation to issue 3, and the basis on which a discretion granted by Article 6 may be exercised, I am bound by the decision in Herold and the extract I have set out above. I must therefore be satisfied:
(i) That the application of the time limit would impair the very essence of the right of access to the planning inspector for the appeal;
(ii) That there are exceptional circumstances; and
(iii) The appellant personally has done all he can to bring the appeal timeously.
63. Herold followed the decision of Pomiechowski v District Court of Legnica Poland [2012] UKSC 20. Paragraph 39 of the Pomiechowski decision is itself cited in Herold which also emphasises the exceptional circumstances test and the obligation on an appellant to act timeously.
64. It is also pertinent to set out paragraph 37 of the Pomiechowski decision as follows:-
65. Also in Herold Sir Michael Birt referred to in the case of Adesina v Nursing & Midwifery Council [2013] EWCA Civ 818. The second nurse in that case lodged her notice of appeal against the decision of the Nursing & Midwifery Council two days out of time. Paragraph 17 of the judgment states as follows:-
66. Advocate Mills also drew my attention to the case of Barker v Hambleton DC [2012] EWCA Civ 610 where solicitors on the evening of the last day of a challenge to a planning development plan left the appeal papers under the door of the relevant Court office which had closed. The time limit for appealing was six weeks. The Court ruled that the time limit was clear and started the date upon which the relevant local planning authority decided to adopt it development plan. The Court therefore concluded that there had not been impairment of "the very essence" of the right of access to the court because the time limit was clear.
67. Paragraph 29 of the Barker judgment also stated as follows:-
68. In the present case Mr Guest blamed Collas Crill for the incorrect advice which led to the time limit being missed.
69. However the terms of Article 112(3) are clear. The 28 day period begins with the date of the decision. There is therefore no ambiguity in the statute. It appears that Collas Crill misread the Planning Law because they state in their letter of 3rd March, 2017, in the second paragraph as follows:-
"We have received the attached letter from Mr Wilczynski from the Tribunal Service advising us the appeal has been rejected as the 28 day time limited expired on Thursday, 23rd February, 2017 as opposed to Friday, 24th February, 2017. Having reviewed the law again, we note this in fact correct and further there are no grounds upon which to appeal the rejection of the notice of appeal."
70. However, it is right to note that the Planning Department informed Mr Guest by a letter dated 30th January, 2017, that he had a right to appeal "within 28 days of the date of the decision." Under Royal Court Rule 1/3 for reckoning periods of time paragraph 2 provides that "When the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date." In other words the use of the word "within" means that the calculation of 28 days starts on the day after the date of the decision. The advice from the Planning Department is therefore incorrect and should be amended to make it clear that the 28 day time limit starts with the day of the decision. However there was no evidence that either Mr Guest or Collas Crill relied on the notice from the Planning Department and so it does not assist Mr Guest.
71. I also have to consider whether Mr Guest did all he could to progress his appeal. This requires analysis of what happened once Mr Guest became aware that the decision had been made.
72. Firstly, he sought legal advice on 9th February, 2017. This was after some 10 days had passed. While Advocate McNulty argued that lodging an appeal is a serious step involving a commitment of time and cost, and an appellant was therefore justified in thinking about an appeal, given the clear views Mr Guest had expressed in opposition to the application on 4th January, 2017, and given the 28 day time limit, Mr Guest did take his time in deciding whether or not to appeal.
73. Even then, by reference to Mr Guest's affidavit, it appears that Collas Crill were not clear that Mr Guest wished to appeal because they sought clarification from him on 16th February, 2017, whether he wished to progress his appeal. Although Mr Guest now states that he found this enquiry surprising, he could have communicated on 17th February, 2017, a clear instruction to confirm the instructions he deposed he had already given on 9th February, 2017. Yet he did not do so. Instead a further call was arranged. It is not clear to me why a further conversation was required if in fact a decision had already been made. The only conclusion I can draw is that a further conversation was required because Mr Guest had still not committed to an appeal and did not do so until 22nd February, 2017.
74. Furthermore while Advocate Gilbert was not available on Friday, 17th February, 2017, Mr Guest has not explained, although he was out of the Island on 20th February, 2017, why he could not have spoken to Collas Crill by phone on 20th February, 2017, or on 21st February, 2017. All that took place on 22nd February, 2017, was a phone conversation. Mr Guest did not need to be in Jersey to make that call.
75. What this leads to is that Mr Guest did not act timeously from the date he had become aware of the decision of the Planning Department. He took his time to decide to instruct lawyers and ultimately only confirmed his decision to appeal on 22nd February, 2017, 23 days after he received notification of the decision. Had he acted more quickly and in particular once contacted by Collas Crill on 16th February, 2017, there was a much greater chance the relevant time limit would have been met.
76. It may be that Mr Guest was lulled into a false sense of security because of the advice received from Collas Crill. However I am not persuaded this amount to exceptional circumstances. The decisions in the Adesina v Nursing & Midwifery Council and Barker are illustrative. I am unable to differentiate the position of Mr Guest from the position of the individuals in those other cases whose appeals were out of time. Advocate McNulty argued that both Collas Crill as officers of the Court and members of the Viscount's Department were in an analogous position. I do not accept this argument. An adviser is ultimately the agent of a client; while a lawyer owes duties to the Royal Court as an officer of the Court, such obligations do not equate to the public functions of the Viscount's Department whose members are public officials performing a public function. The position of Collas Crill is therefore no different from the advisers in the Barker or the Adesina cases.
77. The test laid down in Herold requires an appellant to do all they can to bring the appeal on time. Mrs Herold did so because she gave instructions to the Viscount's department to effect service. The reason her appeal was out of time was because of the failure of the Viscount to effect service on the last day which could have taken place. Mr Guest is not in the same position because he left the giving of clear instructions to appeal until 22nd February, 2017, having had 23 days to process the appeal. The statute allowed him sufficient time to protect his rights. Accordingly, I am not satisfied that Mr Guest did all he could to bring the appeal within the prescribed time limit.
78. Finally, while I am of the view that Mr Guest's civil rights were engaged, and he had an arguable case on the merits, the existence of this arguable case was also not enough to amount to exceptional circumstances as another basis to extend time. I refer to this because it is not clear whether the exceptional circumstances test encompasses the nature and degree of the right affected or whether it must relate to why the time limit was missed. To the extent that the merits are relevant to the test to be applied in this case they were not enough to persuade me in the round that exceptional circumstances existed to extend time.
79. Accordingly, for all these reasons I refuse to extend time even though there is a power to do so.
