Planning - Magistrate's Court Appeal.
[2013]JRC121
Royal Court
(Samedi)
21 June 2013
|
Before :
|
W. J. Bailhache, Q.C., Deputy Bailiff, sitting
alone.
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Kanetech Limited
-v-
The Attorney General
Appeal by way of case
stated purusuant to Article 21(1) of the Magistrate’s
Court (Miscellaneous Provisions)(Jersey) Law 1949.
Mr Martin Kane in person as Director of the
Appellant.
M. T. Jowitt, Esq.,
Crown Advocate.
JUDGMENT
THE DEPUTY BAILIFF:
1.
The
Appellant appeals by way of case stated pursuant to Article 21(1) of the Magistrate’s
Court (Miscellaneous Provisions)(Jersey) Law 1949 (“the 1949
Law”) on a question of law. I
will come to the formulation of the question later in this judgment.
The Charges
2.
The
Appellant has been charged with 16 offences in respect of building work
conducted at different addresses in the Island between 19th August
2010 and 30th June 2011.
Apart from the address at which the work was carried out, the substance
of each charge is the same. Charge
one reads as follows:-
“(1) The said Kanetech
Limited, represented by Martin Kane, with having on a date unknown between 19th
August 2010 and 30th June 2011, at the premises known as 10 Sagamor, Les Amelots, in the
Parish of St Saviour, acted in contravention of paragraph (1) of Article 33 of
the Planning and Building (Jersey) Law 2002 by carrying out, or permitting or
causing to be carried out, prescribed building work to which the Building
Bye-Laws (Jersey) 2007 apply without having applied for a building permit as
required by Bye-Law 10 of the said Bye-Laws.”
The Statutory Regime
3.
Article 33
of the Planning and Building (Jersey) Law 2002 (“the Planning
Law”) provides:-
“(1) A person who undertakes prescribed building
work except with, and in accordance with, permission to do so granted by the
Minister in accordance with the Building Bye-Laws shall be guilty of an offence
and liable to a fine.
(2) A
person shall be guilty of an offence under paragraph (1) if when undertaking
prescribed building work the person contravenes –
(a) a
condition subject to which building permission to undertake that building work
was granted; or
(b) an
applicable provision of the building Bye-Laws.”
4.
Article 10
of the Building Bye-Laws (Jersey) 2007 (“the Bye-Laws”)
provides as follows:
“(1) Except as provided by Bye-Laws 14 and 15, a person
who proposes –
To carry out building work;
…
must apply to the Minister for a
building permit.
(2) The
application must be made in accordance with Article 34 of the Law.”
5.
So there
we have it. The question for the
trial court will be whether, on the evidence, the Appellant contravened Article
33(1) of the Planning Law by permitting or causing to be carried out prescribed
building work to which the Building Bye-Laws applied without having applied for
a building permit. The question for
me is the preliminary question which is set out at paragraph 17 below.
6.
I pause
here to say that Advocate Jowitt, on behalf of the HM Attorney General, quite
rightly conceded immediately that the charges had been wrongly framed. The offence is complete when the
relevant building work is carried out without a permit having been
obtained. The Crown must show not
that the work was carried out without an application for a permit having been
submitted, but that the work was carried out without a permit having been
issued.
7.
Before the
Magistrate – at that time the Assistant Magistrate – a preliminary
point was taken as to whether the Appellant fell within the definition of “a
person who undertakes prescribed building works”. The Magistrate found that it did, hence
this appeal by way of case stated.
The Magistrate proceeded on the basis of what was said to be a largely
agreed set of facts – although it was indicated one does not know at the
present time whether these are all the material facts – and necessarily
on this case stated appeal, I now do the same although the facts at trial will
be those in respect of which evidence is adduced and accepted, or admissions
made.
The Facts
8.
In recent
years, the States of Jersey has run an Energy Efficiency Service (EES) through
the Eco-Active unit in the Planning and Environment Department. A scheme known as the Home Energy Scheme
was developed upon the basis that government money would be provided to
eligible members of the public, especially those on low income or in receipt of
heating allowances, to enable them to improve the energy efficiency of their
homes. One aspect of the scheme was
to replace old inefficient heating boilers with new more efficient
boilers.
9.
The
procedure that was adopted was that local contractors would apply to the EES
for approval to install boilers under the scheme. The requirements for contractors were
set out in a document provided by EES entitled “Schedule of Works”. Contractors had to agree to the terms
set out in the Schedule of Works in order to be eligible to be assigned
specific work by EES, for which they would be paid by EES. The contractual relationship was between
EES and the contractor, and the Schedule of Works was in essence the
contract. Clause 3.2.4.9 of the
Schedule of Works stated that:-
“Building control notification and submittal,
where required, shall be the responsibility of the contractor prior to
installation of the works commencing…”
This was one provision in a document which
with its appendices ran to some 66 pages.
10. Members of the public were entitled to apply to
EES to take part in the scheme.
Once the applicant was deemed to be eligible, EES would contact one of
its approved contractors retaining that contractor to carry out the work and
install the boiler. When the work
was complete the contractor would send an invoice to EES and be paid from EES
funds. The householder was not
obliged to pay anything or deal directly with the contractor other than allow
access to the premises and to confirm that the work had been completed.
11. The business of the Appellant includes the
installation of domestic heating boilers and the Appellant was one of the
contractors which applied to EES to be included as an approved contractor to
carry out the installation of boilers under the home energy scheme. The company was approved by EES and it
carried out the work in question on the 16 properties mentioned in the
charges.
12. Application for building permission is required
for the installation of heating boilers under the relevant legislation. Accordingly Bye-Law 10 of the Building
Bye-Laws applies. There is an exemption
for Bye-Law 10 provided in Bye-Law 15 for companies registered as members of Offtec (a trade association for heating engineers and
technicians). Such members benefit
from an exemption to the Bye-Law so that boiler installations carried out by
them do not require building permission.
It would seem by implication to be the case that the reason for control
over this particular building work (boiler installation) must be to ensure the
delivery of one or more of the objectives set out in Article 31(2) of the
Planning Law, such as securing the health, safety and welfare of people in or
about buildings, or to prevent the waste, undue consumption or misuse of fuel
and energy in or about buildings, etc.
By virtue of the exemption for members of Offtec,
it is clear that the Planning and Environment Department does not consider that
this building work is work that requires the department’s specific
attention as long as it is carried out by competent persons.
13. In this case the Minister, through EES, has
approved the Appellant as a contractor fit to install domestic heating
boilers. One would have thought
that before approving any company as an approved contractor, due enquiry would
be made as to the skill and competence of the persons to be approved. My starting assumption would have been
that by approving the Appellant as an approved contractor to carry out work
under the home energy scheme, EES in fact had expressed themselves satisfied
with the competence of the Appellant.
Given that EES is, or seems to be on the information currently available
to me, the employer for the purposes of this contract, one would also have
thought that, as employer, EES were satisfied that the Appellant was fit to
carry out the work in question.
This is doubly so, given that the work was to be carried out in the
homes of members of the public, who no doubt relied upon EES to ensure that
they only permitted competent contractors to carry out the work.
14. In those circumstances, it does seem quite
extraordinary that an application for building permission should be needed from
a firm such as the Appellant, which had not only been pre-authorised by the
Minister (through EES) to carry out work of this kind, but specifically
contracted by the Minister (through EES) to the particular pieces of work in
question. I also note that
paragraph 4 of the Schedule of Works contains a pricing schedule, from which it
is clear that a specific hourly rate is attributable to work done in a number
of particular specialisms. It seems
hard to understand why an approved contractor which is a member of Offtec needs no permission to carry out building works for
EES, but an approved contractor which is not a member of Offtec
is paid the same rate for the job but has to pay a fee for the submission of a
building application, and obtain a permit, thus reducing his profit as compared
with his Offtec competitor.
15. I have also noted that paragraph 1.4 sets out
the process of the home energy scheme.
In the case of houses built before 1996, it stipulates 16 steps which
need to be followed. Clause 6
requires that the contractor “gets
permission for work signed by the applicant if owner occupier”. Paragraph 9 says that EES “obtains permissions for work signed
by landlords as applicable”.
Clause 11 provides that the contractor “can proceed with work subject to relevant permissions being in
place and the contractor returning the signed the [sic] JCT contract”. It does not seem to me to be reasonable
to construe “subject to relevant
permissions being in place” as a reference to anything other than the
permissions signed by the applicant or by the landlords as applicable, and it
is therefore of interest that the process of the scheme does not contemplate
the application for building Bye-Law permission as described in this
paragraph.
16. The procedure adopted in this case is curious
in the sense that the facts have not yet been found. I am asked to make a finding now on a
point of law on an assumed set of facts.
The law should generally not be assessed in a vacuum. Context is everything. On the facts that
have been presented to me so far as set out above, it would seem surprising
that the defendant has been charged at all, and, if on these facts the matter
goes to trial, and the prosecution is not stayed on the ground of abuse of
process, one would on conviction expect a nominal penalty to be imposed for any
breach which was found to be established; accordingly I would expect the
prosecution to revisit the public interest in bringing these charges. However, I do not know whether I have
been given all the relevant facts and there may be other matters, not before
me, which would have an impact either on the prosecutor’s decision to
proceed, on any plea of abuse of process or on the penalty which might be
imposed. The Magistrate, in her
very helpful summary of the case for the purposes of this appeal, rightly said
that it was unusual and generally not desirable for the Magistrate to state a
case on an interlocutory matter.
This is especially so given that the Appellant has apparently indicated
to the Magistrate that, even if the appeal failed, there would be other matters
which the Appellant would want to raise at trial. The drawback of this procedure is
therefore that the Appellant might conceivably face three if not four court
hearings to adjudicate upon its guilt or innocence in respect of the charges
laid.
The Question of Law
17. The prosecution contended before the Magistrate
that the “person” referred to in Article 33 includes
contractors such as the Appellant who actually carried out the building
work. The Appellant contended that
the person who undertakes the prescribed building work could not on these facts
include the Appellant – it was either the householder who applied to EES
for the work to be done, or it was EES itself who was the person who proposed
to carry out the building work. In
the circumstances the question put by way of case stated was whether a
contractor, in this case the Appellant, could be criminally liable under
Article 33 of the Planning and Building (Jersey) Law 2002 on the basis
of the facts set out in the statement of case by the Magistrate.
The Arguments
18. The Appellant in this case was represented by
Mr Martin Kane who is a co-director. He was understandably concerned about the
factual position which I have described above, and, as is not unusual with
those who have a personal interest in the litigation, I hope it is not unfair
to say that he shows both a mastery of the relevant material before the Court
and a lack of legal focus as to what precisely the appeal was about. On the latter point, he said that there
were facts which were relevant to the Magistrate’s decision but were not
put before the Magistrate. As I had indicated earlier, that may be so, but as
an Appellate Court exercising the case stated jurisdiction, any other facts
which might be relevant are outside the scope of this appeal. It will be a
matter for Mr Kane to raise them if the prosecution is renewed before the
Magistrate, whether in the context of an application to stay the proceedings on
the grounds of abuse of process or otherwise.
19. Accordingly, when Mr Kane submitted that there
were three essential questions, namely why the appellant had been prosecuted,
why had the prosecution continued, and who was responsible for taking these
positions, he was going onto territory which was not the subject of the case
stated appeal.
20. Equally, his submission that the Planning and
Environment Department committed the offence and was the correct defendant was
also off target for the purposes of this appeal. The correct issue identified
for determination on this case stated appeal is not whether there are other
potential defendants who have committed offences but whether the language of
Article 33 of the Planning Law includes contractors such as the Appellant in
circumstances where the facts are as they have been agreed to be for the
purposes of this case.
21. It was contended by the Appellant that for the
purposes of Article 33 the only people who undertake prescribed building
work are those who propose it. In effect, this is a cross-reference to Article
10 of the Bye-Laws. The Appellant
contended that the home owner had not proposed the work, but the Minister had
proposed it. In effect the Minister
was the main contractor, and the Appellant was the sub-contractor. If the Court accepted the submission
that the person who undertook the work was the person who proposed it, that
would allow the Court to narrow the prosecution down to the person who ought to
be prosecuted. On the facts of this
case, Mr Kane submitted that if one asked the home owner who had proposed the
works, the home owner would certainly not say that the Appellant had done so.
22. In a nutshell, it was submitted that the
Planning and Environment Department, therefore the Minister, have
responsibility for the works in this case because they have retained the
Appellant to carry out the work and indeed are paying for it. The Department
was seeking to pass on its responsibility for obtaining building permission,
and that is not delegable. It was contended that the Department are well aware
of their own failures.
23. At one point it was contended that this was a
malicious prosecution. Mr Kane submitted that the question of abuse of process
was raised with the Magistrate in this connection as well – to that all I
can say is that the appeal by way of case stated does not refer to any decision
on the part of the Magistrate not to stay the prosecution on the grounds of
abuse of process, and I have not found in the transcripts the relevant
reference to which Mr Kane has referred. The extract from the transcripts which
does contain a reference to abuse of process does not show in my view that this
point has been raised and decided in the Magistrate’s Court. However, for the reasons I have
already given, I do not think that this is relevant to the point of law raised
by the present appeal although it may be relevant in relation to arguments to
be heard in the Magistrate’s Court later.
24. Mr Kane added that the word “undertakes”
in Article 33 could not refer to the contractor such as the Appellant because
the Appellant could not legally apply for building permission in the first
place.
25. In his address, Crown Advocate Jowitt conceded,
as indicated above, that the charges had been incorrectly worded, and that if
the matter was to proceed, an amendment of those charges would be necessary. As
to whether the prosecution was a malicious prosecution, he submitted that that
was a question which would have to be raised by the Appellant with the
Magistrate in due course. He pointed out that EES had invited people to tender
for the right to install boilers, and that the Appellant had tendered and had
in fact received some £70,000 of public money. He contended that the
Appellant was reminded by letter of the need to obtain a building permit, but
it was not prepared to do so. In his submission the Magistrate had concluded
that any number of people could be responsible under Article 33. The Bye-Laws,
he said, did not create a criminal offence. The offence was created by Article
33 and he pointed out that Article 33 was adopted by the States some five years
before the Bye-Laws were actually enacted.
26. It was submitted by the Crown that “undertakes”
is to be given its ordinary English meaning. It was apparent, Crown
Advocate Jowitt submitted, that in the world of building and construction, a
good deal of work will be done by corporate bodies, and the 2002 Law cannot
have sought to exclude liability on the part of corporate entities. Furthermore
the Interpretation (Jersey) Law 1954 made it plain that
“person” includes a body corporate.
27. It was submitted that Bye-Laws are technical
pieces of subordinate legislation. A professional is expected to have knowledge
of them and so compliance is best expected from professionals rather than land
owners.
28. As to Article 10 of the Bye-Laws, it was
submitted that the phrase “proposes to carry out”
is not a defined phrase but in common English to propose to do something meant that
one had it as one’s plan or intention to do that thing. It was contended
that there was no reason why the phrase in question should not include the
actor himself – thus a person proposing to install a gas boiler would
include in ordinary language the land owner who procures that it is installed,
the person who makes the contract for its installation, and the installer
himself.
Decision
29. The Magistrate decided that the offence under
Article 33 is to undertake building work other than in accordance with building
permission. She considered that Bye-Law 10 set out the circumstances in which
building permission was required, and described, in terms which could apply to
a number of persons, who should apply for building permission. She considered
that a person who proposed to carry out the work and the person who actually
undertook the work may be and often are the same person, but that this was not
necessarily so. By necessary implication, she therefore decided that more than
one person might be guilty of the offence of undertaking work without building
permission under that Article of the Planning Law.
30. In the Magistrate’s view the offence
under Article 33 did not require that the prosecution prove a failure on the
part of the defendant to apply for the relevant building permission.
Accordingly, it was not relevant as to whether the defendant to a charge under
Article 33 could or could not make application himself for building permission.
The offence was complete when he carried out some work which required building
permission where no such permission had been obtained.
31. I agree with the conclusions of the Magistrate
although, given the nature of the argument before me, I will add a few comments
of my own.
32. The offence is created by Article 33 of the
Planning Law and it is in the terms set out in paragraph 3 above. It is to be noted that the offence is
framed not as “the person who undertakes prescribed building work”
but as “a person who undertakes prescribed building work”. The use of the indefinite article contemplates
by implication that the same building work may in fact be undertaken by more
than one person. Let me assume, for
example, circumstances where the landowner who wants a piece of work done which
requires building permission, instructs his builder; and the builder decides
that some elements of the work need specialist input, and hires a
sub-contractor. On this hypothesis,
each of the landowner, the builder and the sub-contractor is well aware that
the work needs building permission and that no-one has applied for it. It seems
to me that on the ordinary use of language, each one of them has undertaken the
work for the purposes of Article 33 and all or any of them might be prosecuted.
Such a construction also meets the objectives of the legislation, which are to
be found in Article 31(2) of the Planning Law. The Bye-Laws are intended to prescribe
procedures and the functional requirements of buildings in order to achieve a
number of results – for example securing the health, safety and welfare
of people in or about the building in question. It may be necessary to prosecute the
landowner, but it may not be enough to prosecute only him – because it
may be that the builder and/or the sub-contractor in the example given are
known to be cavalier about the requirement to obtain building permission. It would be a perfectly appropriate
prosecutorial decision to bring a prosecution against all of the three
defendants in the hypothetical circumstances which are contemplated.
33. Because the offence is created by the Planning
Law and not by the Bye-Laws, it is unnecessary to spend time analysing what is
meant by “a person who proposes to carry out building work”. There is no dispute in this case that
unless Bye-Law 15 applied, this was work which required a permit. It follows that if the Appellant
undertook the work, whether it was responsible for obtaining the permit or not
and indeed whether it was able in law to obtain the permit or not, it would be
guilty of the offence if no permit had been issued. That the Planning and Environment
Minister, or any of his officials and/or the landowners in question might also
be theoretically at risk of prosecution is neither here nor there. Prosecution decisions are a matter for
the Centenier in the first instance and ultimately the Attorney General and
once the decision to prosecute has been taken, it is then for the Court to deal
with it in accordance with the established law and procedure. If in fact the Appellant were able to establish
that it was not able to apply for a building permission, that could be an
additional reason why the Magistrate might decide to dismiss the case as an
abuse of process or impose a nominal penalty.
34. For these reasons this appeal by case stated is
dismissed and the matter is remitted to the Magistrate.
35. However, in the light of paragraphs 11-16
above, I invite the Attorney General to consider further the question as to
whether it is in the public interest that this prosecution continue given the
probability of an abuse of process claim at some future date if it does.
Other Matters
36. The Appellant asserted in the course of the
appeal that the prosecution was malicious.
This was a serious accusation to make and, as far as I can tell on the
material put before me, there is nothing to justify it. Officials of the Planning and
Environment Department, whether or not working in the ECO Active Unit, are not
the persons taking the prosecution decision. The decision to prosecute is taken by
the Centenier in the first instance, and is subject to review by the Attorney
General or his delegates. The
system is structured so that the prosecutor is independent of the
complainant. The person taking the
prosecution decision does so in accordance with the Code on the Decision to
Prosecute which can be found on the Law Officers’ Department
website. It is obviously not the
case that there will never be circumstances where an individual decision to
prosecute is taken on grounds which are so improper that one could reasonably
contemplate describing it as malicious.
In the present case, as I have indicated above, there seems on the
information available to be every reason why a prosecutor might have decided
that it was inappropriate to prosecute – and a court might well decide at
some future date that the prosecution ought not to proceed. However that is a far cry from ascribing
to the prosecution an intention to act maliciously. A serious allegation such as that should
not be made in the absence of clear evidence and, if there is such evidence in
this case, it cannot be found in the material which has been put before
me.
37. Secondly, it has been suggested that in some
way or other these proceedings constitute an abuse of process which brings the
Court into disrepute by the judiciary allowing the Planning and Environment
Department to instigate criminal proceedings against the Appellant, thus
breaching its human rights with regard to a fair hearing. There is no basis for that allegation,
which ought not to have been made.
It is not the function of the judiciary to “allow” anyone to instigate criminal proceedings. The function of bringing a prosecution
lies with the Centenier in the first instance and with the Attorney General
thereafter. The court’s
control of the criminal process lies in the application of the usual rules,
whether they be to dismiss a prosecution as an abuse of process or to conduct
in accordance with established rules a trial of the matter, and if there is a
finding of guilty, to impose such sentence as the court thinks appropriate. This is the court’s function, and
it should not be criticised for performing that function. The Appellant has decided to appeal the
decisions of the Magistrate in this respect, which it is absolutely entitled to
do. However, the very limited
nature of the present appeal does not seem to have been understood by the
Appellant. This appeal by way of
case stated relates solely to the point of law which arises as to the proper
construction of Article 33 of the Planning Law. It is for the Appellant to raise an
issue of abuse of process, but it has not done so in this case so far, and no
doubt that will be the application which the Appellant will consider next. To criticise the Court for performing
the function which it is charged to perform is wrong, and I do not hesitate to
criticise the Appellant for doing so.
38. Thirdly the approach taken by Mr Kane in his
submissions to us was that the facts of this case drove a conclusion as to how
the Law should be construed. That
is not the right approach to statutory construction. Of course it is true that an absurd
result on the facts will lead any court to considering whether or not the Law
could possibly mean what it is contended to mean by one side or another. Indeed in relation to Article 33, the
hypothetical circumstances set out in paragraph 32 above are such that it would
be absurd if the Article were to be construed in the way in which the Appellant
contends, namely to exonerate the sub-contractor who, in those hypothetical
circumstances, was the specialist, well aware of the need to obtain building
permission, and well aware that nobody had applied for it. Such a conclusion militates strongly
against the construction of the Article for which the Appellant contends. The right approach is to look at the
ordinary meaning of the words used in the statute and if on particular facts
they are capable of leading to an injustice, as the Appellant contends is the
position here, then the criminal law has other procedures which enable the
Court to deal with the matter fairly and justly – such as staying the
prosecution as an abuse of process or alternatively marking its displeasure at
the exercise of prosecutorial discretion by imposing a nominal sanction by way
of sentence.
39. I do not mean to be unduly critical of the
Appellant in this case given that it is not represented by a lawyer but instead
by a director owner who is unfamiliar with court processes. For one reason or another, the Court is
increasingly frequently faced with litigants in person and we cannot expect
such litigants to be familiar with the rules which lawyers learn in the course
of their training or very early on in their careers. The judicial process gives a high degree
of protection to litigants to make assertions of fact or submissions to support
their case with as such assertions or submissions can objectively be justified,
and the Court must adjudicate upon them.
Those who are the subject of what are sometimes wild and unfounded
allegations have only rarely a remedy other than to persuade the Court that the
allegations are indeed unfounded.
However the making of the allegations can of itself cause damage to
reputation, and the Court must not allow its processes to be used
unfairly. It is for these reasons
that where fraud is alleged or some lack of integrity on the part of a person
in the execution of his professional duties, the Court expects there to be some
evidential basis for the assertion to be made, whether at the end of the day
that conclusion is drawn or not.
The Judicial Greffier is well placed to assist a litigant in person to
ensure that assertions involving dishonesty or lack of integrity in the
opposite party or in public officials are not made unless there is some
evidence to support them.
Authorities
Magistrate’s Court
(Miscellaneous Provisions)(Jersey) Law 1949.
Planning and Building (Jersey) Law
2002.
Building Bye-Laws (Jersey) 2007.
Interpretation (Jersey) Law 1954.