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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Richardson v The Minister for the Environment and James 04-Nov-2020 [2020] JRC 232 (04 November 2020) URL: http://www.bailii.org/je/cases/UR/2020/2020_232.html Cite as: [2020] JRC 232 |
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Planning - application to appeal out of time
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
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Between |
Simon John Richardson |
Appellant |
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And |
The Minister for the Environment |
Respondent |
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And |
Michael James |
Applicant |
The Appellant appeared in person
Advocate G. G. P. White for Respondent.
The Applicant appeared in person.
CONTENTS
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Paras |
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1. |
Introduction |
1 |
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2. |
Background |
2-22 |
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3. |
Submissions |
23-43 |
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4. |
Decision |
44-60 |
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5. |
The exercise of discretion |
61-71 |
judgment
the MASTER:
1. This judgment contains my decision in respect of an application by Simon John Richardson ("Mr Richardson") who wishes to appeal a grant of planning permission made to Mr Michael James ("Mr James") by the Minister for the Environment ("The Minister").
2. The planning permission relates to a property known as La Plata, 24 Midvale Road, St Helier ("La Plata"). La Plata is owned by Mr James. Mr Richardson is the owner of the adjourning property at 22 Midvale Road, St Helier ("No.22").
3. On 23rd January, 2020, through his architects, Mr James applied to develop La Plata to create three flats. Previously La Plata was a lodging house. Part of the application involved demolishing two single story flat roof structures at the back of the property, and replacing them with a single story extension, with a reduced footprint. Part of the extension contained a first floor balcony. A smaller second balcony was also proposed for the second floor again at the rear of the property. The railings at the front of La Plata had listed status.
4. On 9th March, 2020, Mr Richardson filed a letter of objection to the application to develop La Plata.
5. His letter stated:-
"I believe that realization of the plans published online would negatively impact my property in the following way:-
· Significant loss of light and overbearing impact to the rear of my property;
· The extensions, elevated terrace, external stairs and balcony would result in a substantial loss of privacy; and
· Would significantly increase potential for noise nuisance.
It is also my view that any further expansion of the neighbouring property would constitute overdevelopment of an already densely populated plot."
6. The letter also asked that Mr Richardson be kept informed of any progression of or amendments to this application.
7. I observe that Mr Richardson appeared to have received assurances from planning officials that he would be kept informed because, in his written submissions in support of his application, he stated:-
"That he had been assured that he would be kept informed of any decisions or developments with respect to the planning application."
8. On 22nd June, 2020, an assessment by an officer for the Minister was published online. The recommendation contained the following:-
"The proposal is considered to be a high quality of design and uses the existing building to form the majority of the three units. The application seeks to remove the unsympathetic extensions to the rear, replaces them with one single storey extension, which is more in keeping and proportionate to the existing building, whilst reducing the overall mass.
The additions and details seek to convert a dated property into 3 contemporary units, whilst restoring the garden to create a pleasant amenity space for all occupants.
The proposed development is not considered to cause unreasonable harm to the amenities of neighbouring users. Whilst one objection has been received with concerns relating to neighbour impact, a privacy screen and opaque balustrading will be conditioned for the second floor balcony to limit the view of nay occupier. On balance given the town location and existing context, the impact is considered acceptable.
The proposed extension is single storey, so does not constitute overbearing of loss of light. The balconies however will have more of an impact, but given they are set back behind the full height of the north-west section of neighbouring building, the impact is considered acceptable.
The surrounding urban context does facilitate existing mutual overlooking and La Plata has first and second floor windows of neighbouring properties overlooking the existing rear outdoor space. On balance, the proposed balconies in their recessed position do not cause any further harm to what already exists."
9. On 24th June, 2020, planning permission was granted to Mr James to develop La Plata. It is not clear who made the decision from the papers provided to me.
10. However, the decision was not published on the Planning Register. Nor, contrary to the assurances given to Mr Richardson, was he notified of the outcome.
11. According to Mr James, development started at La Plata on Monday, 27th July, 2020. including works to the rear of La Plata which were overlooked by No.22. This was after expiry of the 28 day period contained in Article 19(8) of the Planning and Building (Jersey) Law 2002 ("the Planning Law") which prohibits development from starting in the case of third party appeals until 28 days after planning permission is granted.
12. In his written submissions Mr Richardson set out that he had made contact with the planning department on 6th August, 2020, by phone and by email. He further explained that his call was returned on Monday the following week (10th August 2020) leading to a meeting with Mr Le Gresley the director of the Development Control at No.22 on 12th August, 2020. Mr Le Gresley then emailed Mr Richardson on 13th August 2020 setting out the following:-
"As previously stated, the department failed to notify you of the outcome of the above planning application and also failed to publish the decision on the Planning Register in good time. We accept that this was a serious omission which has had the result of leaving you unaware of the decision and unable to appeal the department's approval of the application, which must be made within 28 days of the decision.
I have now visited both your property and the development site. My conclusion on the planning issues is that the matter can be resolved with a modification to the planning approval, to require a privacy screen to be erected at a height of 1.7 metres at first floor level, to block any direct view into your property and rear garden. I acknowledge that you do not agree that this is sufficient.
As discussed, I have asked my staff to prepare the papers for this modification, but not to serve them on the developer until I return from holiday on 25th August, 2020.
In the case of an appeal against the department's approval, you may wish to explore with the Judicial Greffier whether it is still possible to appeal at this late stage, given that it was the department's omission which led to you missing the deadline. I cannot say what the Greffier's response will be, other than it will be completely independent from the department. If the Greffier considers that it is appropriate to hear the appeal 'out of time', the department would not oppose the point. This is slightly unchartered territory for us, because other previous requests to appeal 'out of time' have been when the appellant was at fault, not the department."
13. Mr Le Gresley therefore modified the planning decision by issue of a modified decision on 25th August 2020. The reasons for his decision contained the following:-
"The Department's failure to notify the objector (Mr S. Richardson) of the decision to approve planning application P/2020/0083 resulting in the objector missing the appeal deadline, along with the failure to publish the decision on the Planning Register in good time, has been recognised by the Director of Planning as a significant omission within the planning process.
However, it has been concluded that the planning issues raised can be resolved with a modification to the planning approval, to require a privacy screen to be erected to a height of 1.7m to the south-east end of the first floor balcony and part of the access stair, to block any direct view into the adjoining property to the south-east.
The applicant has agreed to the additional privacy screens and the applicant's architect has amended the drawings to reflect the changes required. An anomaly in Condition 5 will also be corrected within this modification process.
Under Article 27 of the Planning and Building (Jersey) Law 2002, the applicant will be compensated for the cost of the additional privacy screen required. However, the agent has agreed to charge no fee for the amended drawings."
14. Condition 5 of the modified decision notice therefore stated as follows:-
"No part of the development hereby approved shall be occupied until the balcony and part of the access stair on the North East elevation at the first floor level, is fitted with an obscured privacy screen along the South-East side, to a height of 1700mm above finished floor level. Once constructed, the screen shall be maintained as such thereafter."
15. The original decision did not contain any conditions in respect of the balcony at the first floor level. It did require a privacy screen at the second floor. The modified decision also contained certain minor modifications in respect of the second floor privacy screen. The modified decision notice is dated 1st September 2020 which is when it was published on the Planning Register. The original planning decision was published on the Planning Register on 11th August 2020.
16. On 21st August 2020, Mr Richardson filed a notice of appeal seeking to appeal the grant of planning permission on 24th June 2020 out of time. This notice of appeal was passed to me to deal with because I had dealt with a similar application in Guest v Minister for Planning & Environment [2017] JRC 069. However, I was not working until 1st September 2020 due to being on leave.
17. On 2nd September 2020, I emailed the Law Officers' Department asking for confirmation of the Minister's position in relation to Mr Richardson's appeal. This was because Mr Richardson had indicated that the Minister did not intend to oppose his application to appeal out of time. I also asked for contact details of Mr James so I could inform him of Mr Richardson's application and allow him the opportunity to indicate whether or not he objected to Mr Richardson appealing out of time.
18. On 9th September 2020 I was provided with Mr James' details. I therefore emailed Mr James on 10th September 2020. He replied on 16th September 2020 objecting to Mr Richardson being allowed to appeal out of time.
19. By an Act of Court dated 28th September 2020, I therefore issued directions for the filing of submissions by Mr Richardson and Mr James for which I am grateful.
20. In doing so I drew the attention of Mr Richardson and Mr James to my decision in Guest. In Guest I firstly ruled that the Judicial Greffier had power to extend time notwithstanding the express time for third party appeals contained in Article 112(3) of the Planning Law.
21. In Guest I also set out two further questions on the assumption that I did possess power on behalf of the Judicial Greffier to extend time. Those questions were as follows:-
(i) Whether the appeal involved determination of a civil right for the purposes of Article 6 of the European Convention on Human Rights; and
(ii) If the appeal did involve determination of a civil right, how the power should be exercised.
22. Finally, I should add that it was common ground that Mr Richardson was a third party appellant as defined in Article 108(4) of the Planning Law because he had made a written representation as referred to above and because his property was within 50 metres of La Plata because it was the adjoining property.
23. Mr Richardson made the following submissions. The sole reason for the application being made out of time was the fault of the planning department which was admitted. Exceptional circumstances therefore clearly existed because Mr Richardson was blameless for being unaware that time was running.
24. In his written submissions Mr Richardson summarised his objections to the property as follows:-
"-� the first floor balcony extends 3.4 metres beyond the existing east facing wall adjoining my property;
-� the proposed first floor balcony would sit at a height of c.10-12 ft. above our garden and be an unreasonable invasion of privacy;
-� the proposed first floor balcony would provide a direct view into my daughter's bedroom (screening would not entirely prevent individuals from looking into the room, and, whilst I understand that complete privacy cannot be achieved in all areas of my property, I believe that the particular opportunity this element of the plan provides does constitute a serious violation of intimate privacy; in any case, a screen would have an impact on our existing, non-intrusive view of the surrounding area) - 2020-10-02 Approved Plans [TAB4/16] (numbered on page as 15);
-� the balconies significantly increase potential for noise nuisance (as a small party could be easily held on 19.2m2 balcony);
-� a 19.2m2 balcony on the first floor is not in keeping with a Victorian terrace house and is, in fact, larger than any existing or proposed room within the property (to my knowledge, it is considerably larger than any balcony in the area);
-� the balcony on the second floor would be a further invasion of my family's privacy and have a negative impact what little sunlight we currently have in our small garden."
25. He emphasised in particular that the first-floor balcony extended far beyond his building.
26. He also contended that all the occupiers of numbers 20 to 26 had enjoyed privacy in their gardens prior to the grant of planning permission for La Plata.
27. He emphasised that La Plata was a listed building. He therefore argued that the assessment by the Historical Environment Team did not consider the rear of the property.
28. Finally, he argued that the strength of his case was irrelevant to the question of whether or not he should be permitted to appeal out of time.
29. Mr James in response made the following observations.
30. He put Mr Richardson to proof as to whether or not Mr Richardson had acted timeously in bringing his application out of time. This was because Mr James was not aware of when Mr Richardson had first approached the Judicial Greffier and the chronology referred to above, leading to my communication to him of 10th September 2020.
31. In relation to Mr Richardson's objection filed on 9th March 2020, his response was that given the proximity and the nature of the surrounding buildings, all properties in the area suffer a degree of being overlooked in a densely populated area.
32. He also emphasised that Mr Richardson's objections had been dealt with by the planning officer and in the planning permission.
33. He contended that the work started at the property on Monday, 27th July 2020 and therefore queried why Mr Richardson did not contact the planning department until the following week.
34. He also emphasised paragraph 51 of the decision in Herold v Minister for Planning and Environment [2014] JRC 020 which I had applied in Guest.
35. In this case he argued there was no economic loss suffered by Mr Richardson attributable to the grant of planning permission. He emphasised that Mr Richardson did not live in the Green Zone and was not losing any view leading to any loss in value to No.22.
36. He also contended that the key question I had to consider was the one I formulated in Guest, namely whether Mr Richardson's right to enjoy No.22 had been affected by the grant of planning permission.
37. Mr James emphasised that there was no evidence before me to show that the grant of permission would affect Mr Richardson's property rights to an unreasonable level which was the threshold set out in Policy GD1 of the revised Island Plan 2011.
38. This led Mr James to contend that whatever prejudice Mr Richardson was claiming to suffer was either already present, did not exist, or, if it did exist, was not unreasonable in a planning context.
39. To the extent it was necessary for a discretion to be exercised, Mr James emphasised the strictness of the approach of the English Courts where the courts had rejected applications for an extension of time on the basis that the circumstances were not exceptional (summarised in Gupta v General Medical Council [2020] EWHC 38 (admin) at paragraphs 46 and 47).
40. Finally, he emphasised that the fact that Mr Richardson was a litigant in person did not assist him citing Barton v Wright Hassell IIP [2018] WLR 2043 (applied in Powell v Chambers [2018] JRC 169 at paragraphs 85 and 86).
41. He also contended that if the extension of time was granted, this would cause significant prejudice to Mr James because the economic loss of any grant of permission outweighed any prejudice which might be caused to the appellant.
42. In respect of specific issues of prejudice Mr James observed as follows:-
(i) There was no evidence that the balconies had any overbearing impact on the property. It was pertinent that no other neighbours had objected to these balconies.
(ii) The balcony only extended 90 centimetres past the end of the existing rear wall of No.22.
(iii) At the time the application there were first floor windows at the rear of La Plata overlooking the rear of No.22. There were also windows in other properties that looked directly into Mr Richardson's garden. There was therefore no material impact on the level of privacy experienced by Mr Richardson.
(iv) The modification requiring obscured glass privacy shielded the bedroom on the first floor to the rear of No.22.
(v) He disputed that the balconies significantly increased the potential for noise nuisance in a built up area.
(vi) The Historical Environment Team did not have any objection to the balconies.
(vii) The smaller balcony on the second floor was set back and would have very little detrimental effect on the privacy of No.22.
(viii) The fact that No.22 was a listed building was irrelevant.
43. Finally, both parties provided me with various photographs which I have considered in reaching my decision.
44. The starting point for my decision is Herold and the second and third questions formulated by Sir Michael Birt at paragraph 51 which I applied in Guest as follows:-
45. In Guest at paragraph 46 in deciding whether a planning application affects a civil right to use property I stated as follows:-
46. I then continued at paragraphs 47 and 48 as follows:-
47. The question in the present case is therefore whether the granting of planning permission in favour of Mr James directly affects Mr Richardson's right to use, enjoy and own No.22.
48. Insofar as Mr Richardson complains about loss of privacy this was considered in Winchester v Minister for Planning and Environment [2014] JRC 118 where at paragraph 29 Commissioner Clyde-Smith stated as follows:-
49. La Plata is right in the heart of St Helier. It is therefore very much subject to paragraph 3 of Policy GD1 of the Island Plan 2011 as revised which sets out relevant general development considerations. Paragraph 3 states:-
"That any development proposals be permitted unless the proposed development "does not reasonably harm the amenities and neighbouring views including the living conditions for nearby residents in particular
a) not unreasonably affect the level of privacy to buildings and land that owners and occupiers might expect to enjoy.""
50. It is not therefore every interference with privacy in a built-up area that will lead to loss of a civil right because the Island Plan itself contemplates that there will be a degree of interference with privacy in respect of adjourning properties. Rather what is required is a level of unreasonableness before a modification to privacy enjoyed by owners of property will lead to planning permission being refused for an adjourning property.
51. In the present case, prior to the development, the windows on the first floor to the rear of the Property did overlook No.22. However, they were much smaller in scale than a 19 square metre balcony and were 2.4 metres further back than the balustrade of the proposed first floor balcony. While I cannot determine whether No.22 was already overlooked through these windows, any invasion of privacy of Mr. Richardson was much more limited in scope. The same applies to any view of the rear courtyard of No.22 from windows in the properties across the road (if one exists at all) which are much further away than a view from the proposed balcony.
52. The original planning permission did not provide for any privacy screens in respect of the balcony to the rear of La Plata. This balcony is the closest to No.22. This is because the only modification was in respect of the second-floor balcony and did not consider the impact of the first floor balcony, which is much larger in scale and closer to the garden of No.22. The original decision had not therefore considered the question of privacy being disturbed from the first-floor balcony.
53. However, the original decision was modified by the modification to the planning permission dated 1st September, 2020, requiring a privacy screen to a height of 1.7 metres between La Plata and No. 2. Although the privacy screen does not prevent anyone standing at the end of the balcony looking into the rear of No.22, such a screen does restrict any view from rooms inside La Plata with windows looking onto the balcony.
54. As I noted in Guest at paragraph 15, there appears from the Island Plan to be a distinction between owners and occupiers of properties in a built-up area and owners and occupiers of property in the Green Zone. It is not therefore every modification of privacy by the grant of planning permission in a built-up area that will lead to a civic right being infringed. It all depends on the degree to which a neighbour's privacy may have been affected. In that regard it should be remembered that anyone with property within 50 metres of the land where planning permission is sought has a right to appeal if they make representation. If an owner of a property at the limit of that distance, say 49 metres, felt that their privacy had been infringed, there would have to be a substantial infringement for their enjoyment of the property to be affected and therefore a civic right engaged. A minor modification to privacy rights would not affect that enjoyment.
55. In the case of Mr Richardson, the position is different. His property is immediately alongside and adjourns La Plata. At present the only view from La Plata into the rear of Mr Richardson's property is from two single windows, one of which is on the far side of La Plata and the other which is set back. By contrast, the prposed first-floor balcony extends out 90 centimetres beyond the rear wall of Mr Richardson's property and 2.4 metres from the closest original windows. The permission granted for the front of the balcony is also for plain glass only rather than any form of privacy glass and the front is only 110 centimetres in height.
56. Although Mr James was of the view that the privacy glass required by the modified planning permission would restrict any view at all into the rear of No.22, I am not able to reach a conclusion whether that submission is correct and it is not appropriate for me to do so. Partly, I do not have the evidence to do so; partly I would be usurping the functions of the inspector and the Minister were I to reach such a conclusion. Such a conclusion might require a site visit as well as detailed drawings showing lines of sight from the proposed balcony to the rear of Mr Richardson's property as well as an analysis of views into No.22 from other neighbouring properties. It is at least arguable that the privacy glass does not address Mr Richardson's concerns. It is also arguable that his enjoyment of part of his property has been affected because the courtyard to the rear of No.22 is overlooked in a material way by a balcony when there was previously no such balcony and otherwise the rear courtyard was a private area. I therefore consider that Mr Richardson's civic right is engaged.
57. In respect of his other concerns, namely the fact that persons on the balcony can look into the bedroom window on the first floor to the rear of Mr Richardson's property, this is less of an issue of concern. This is because of the modified decision which requires frosted glass and a privacy screen. It would only be by standing next to the frosted glass to look over it deliberately could an individual partially see through the window. Anyone inside La Plata or on the balcony, because of the privacy screen or where they were standing could not otherwise see through the window. The window is also visible from other houses albeit they are further away. I do not therefore consider that the creation of the balcony with privacy glass amounts to an unreasonable invasion of privacy in respect of the first-floor bedroom window given the very limited way in which someone could gain partial site through the first-floor window. Had this been the only complaint, I would have concluded that a civic right was not engaged.
58. It is also right to record that Mr James had no difficulty with the privacy glass being higher, say 1.9 metres which would address the very limited concern about the bedroom window. Obviously, such an increase in height would require the approval of the Minister but I record this offer because it was made expressly by Mr James during the hearing.
59. In respect of the balcony on the second floor, this is a finely balanced issue. This balcony is much smaller in scale and contains obscure glass on the front and the sides. However, individuals standing on the balcony may also be able to look into the rear of No.22 and so it is at least arguable that Mr. Richardson's privacy has been infringed to an unreasonable degree from that enjoyed at present. As with the first-floor balcony, more analysis is required.
60. I have referred to the balconies because Mr Richardson in argument confirmed that his main concern was the view from the balconies. He was not otherwise opposed to the principle of the development of La Plata. In light of this confirmation, his other grounds of concern fall away. The listed status of the railings of the front of La Plata is also not relevant to Mr Richardson's concerns about the balconies, because they are to the rear of La Plata.
61. Having determined that Mr Richardson's civic rights have been affected by the grant of planning permission in respect of his enjoyment of No.22, I now have to consider whether there are exceptional circumstances that exist to justify time being extended.
62. In this case, Mr Richardson was blameless because he had received assurance from the planning department on behalf of the Minister that they would let Mr Richardson know when the decision was made and they did not do so. They also did not publish the decision. The question for me to evaluate is whether Mr Richardson acted timeously once he became aware that planning permission had been granted. In Herold, Sir Michael Birt at paragraph 60(i) in respect of what is meant by timeously stated:-
63. Mr James explained that the development works started on 27th July 2020. Mr Richardson said he did not appreciate until 5th August 2020, when diggers attended to carry out excavation works on site, that what was occurring was development works and therefore that planning permission must have been granted. He then immediately contacted the planning department the next day. Initially he was told by a planning officer that nothing could be done. It was therefore only on 13th August 2020, that he was made aware that it was possible to appeal out of time by Mr Le Gresley. The notice of appeal as set out above was then filed on 21st August 2020. The notice of appeal was therefore filed within 25 days of works commencing at La Plata (the position most favourable to Mr. James) and within 8 days of Mr Richardson becoming aware that he had a right of appeal. For the sake of completeness, I should add that the notice of appeal was filed within 10 days of the original planning decision being published.
64. I do not therefore consider this is a case of Mr Richardson leaving matters to the last minute. The fact that the recommendation of the planning officer was published is not relevant to the exercise of discretion. A recommendation is just that; it does not mean that planning permission will be granted. The 28-day time limit only starts to run from the grant of planning permission not from any recommendation. Nor does a recommendation give any indication as to when a decision might be made and published.
65. Mr James emphasised the prejudice that would be caused to him by allowing an appeal out of time because he had waited for the 28-day requirement and had then committed to the cost of borrowing in order to fund the development. He candidly explained that the borrowing he incurred to both acquire the property and the development costs had to be repaid by July 2021. An appeal would therefore cause him significant pressure for what was already a tight timetable. This is because the effect of any appeal would mean he would have to stop development pursuant to Article 117(2) of the Planning Law. As against these concerns, some of the financial difficulties Mr James faces are due to the length of time it took to obtain planning permission following his acquisition of La Plata. Any appeal would add to those difficulties rather than being the sole cause of them.
66. In Mr James case, the application of Article 117(2) is particularly harsh when Mr Richardson's objections are in substance to the permission granted in respect of the balconies rather than the development as a whole. However, Article 117(2) applies to all third party appeals even if the focus is on a particular aspect of a planning decision.
67. This case is further complicated because both Mr Richardson and Mr James are in the present situation through no fault of their own. Mr Richardson was awaiting the notification from the planning department not knowing that permission had been granted. Mr James awaited 28 days before committing to the development because the planning law required him to do so. He was also not aware that Mr Richardson had not been notified or that an assurance had been given that Mr Richardson would be notified.
68. In relation to the discretion I have to exercise, the focus of that discretion by reference to Herold and the English authorities referred to in that case and in Gupta at paragraphs 46 and 47 appears to be the reasons why the appeal was not brought in time. That is the primary focus of the exercise of discretion rather than weighing in the balance the competing prejudices Mr Richardson and Mr James would suffer depending on my decision.
69. The conclusion I have reached therefore is that Mr Richardson has made an appeal out of time due to exceptional circumstances because he is not to blame for the planning department's failure to publish its original planning decision and to notify him of the same as the planning department had stated it would.
70. It has not been easy to reach this decision and I have every sympathy for Mr James. I therefore hope that the Minister and if necessary with input from the Attorney General to whom I am sending a copy of this judgment can find a way to allow Mr James to continue with any part of his development unaffected by Mr Richardson's appeal, if Mr James elects to do so. Whether this is by grant of a further planning permission or by some form of waiver of the requirement contained in Article 117(2) based on the facts of this case is a matter for the Minister and the Attorney General but I hope the position can be looked at sympathetically.
71. Finally, I cannot leave this case without observing that the problem the parties have faced has arisen due to the time limit being within 28 days of the date of the decision without any express requirement to notify anyone (even an applicant) that a decision has been made. If the practice of the planning department for the Minister is to provide notification to anyone who files objections to the grant of planning permission so that rights of appeal can be exercised, then perhaps consideration should be given to amending the time limits contained in Article 112 of the Planning Law to reflect the practice of the Minister. I observe that for appeals to the Royal Court on points of law, Article 116(3) contains an obligation on the Minister to give notice in writing of the determination "as soon as practicable" after it is made. Yet there is no equivalent provision for the grant of planning permission. In making these observations, I accept that decisions are for the most part published online but that still leaves it to an interested party to find out what has happened rather than the decision maker being required to inform affected parties of a decision.
