Planning – application for extension of time to appeal against
decision of the Minister.
[2017]JRC069
Royal Court
(Samedi)
10 May 2017
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Before :
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Advocate Matthew John Thompson, Master of
the Royal Court
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Between
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Royston Guest
Jane Guest
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Third Party Appellants
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And
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The Minister for Planning and Environment
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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.
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Introduction
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1
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2.
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Background
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2-23
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3.
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The Issues
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24
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4.
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Issue 1
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25-40
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5.
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Issue 2
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41-61
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6.
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Issue 3
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62-79
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judgment
the master:
Introduction
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.
Background
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:-
“The notice of appeal must be
received by the Greffier no later than the end of the period of 28 days beginning
–
In the case of an appeal under
Article 108, with the date of the decision against which the appeal is
made.” (emphasis added).
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.
The issues
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.
Issue 1
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:-
“In my judgment, this Court
should adopt the principles established in Mucelli
and Pomiechowski. I would summarise the position as
follows:-
(i) Subject
to (ii), where a statute provides a fixed time limit for an appeal, the Court
has no discretion under RCR 1/5 or under its inherent jurisdiction to extend
that period. It has no jurisdiction
to hear an appeal brought out of time. If the States wishes to confer a
discretion on the Court to extend the time limit, it may of course do so by
specifically conferring such a power in the relevant statute; but if it does
not do so, that is the end of the matter.”
30. However, the Royal Court also determined that
there was an exception to this clear principle. Paragraph 51 therefore continued as
follows:
“(ii) However, where an appeal involves the
determination of a ‘civil right’ for the purposes of Article 6 ECHR
(but not otherwise) the Court may read down the provisions of the statute in
accordance with Article 4(1) of the Human Rights (Jersey) Law 2000 so as to
give effect to the statute in a way which is compatible with Convention
rights. This involves asserting a
discretion to extend the time limit in the case before it if it concludes that
application of the time limit to the particular facts would ‘impair the
very essence’ of the right of access to the Court for the appeal.
(iii) Such a discretion can only arise in
exceptional circumstances and where the appellant personally has done all he
can to bring the appeal timeously (i.e. within the prescribed time limit). Adesina
indicates how difficult it may be for an appellant to convince the court that
his circumstances are exceptional and emphasises that the scope for departure
from the time limit is extremely narrow.”
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.
Issue 2
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:-
“The result of the
proceedings must be directly decisive for the right in question. Consequently, a tenuous connection or
remote consequence are not enough to bring Article 6 into play”.
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 W.L.R. 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:-
“69 I accept that these
submissions by Mr Katkowski are correct. In my view,
the link between Friends Provident's objections to
the planning application and the consequences of the outcome of those
objections for Friends Provident's right of property
in Castle Mall (see above) is as close as that in Mrs Ortenberg's
case, if not closer. Furthermore, in my opinion, the council's decision-making
in relation to Friends Provident's objection will,
for the reasons given, directly affect Friends Provident's
right to use, enjoy and own Castle Mall. Furthermore, as I have already
indicated, in the light of the decision of the House of Lords in R (Alconbury Developments Ltd) v Secretary of State for the
Environment, Transport and the Regions [2001] 2 WLR 1389, I am of the view that
there is no reason in principle, in an appropriate case, why the scope of
article 6 should not extend to the administrative decision-making process
relating to a third party's objection to the grant of planning permission,
provided it directly affects that third party's civil rights. I am satisfied
that this is such an appropriate case. As previously stated, the relevant
“civil” right is Friends Provident's
right of property in Castle Mall, i e its right to
use, enjoy and own Castle Mall. For the reasons already given, it is clear that
Friends Provident's right of property in Castle Mall
will be directly affected by the decision-making process relating to Friends Provident's objections to Lend Lease's planning
application. Accordingly, I am satisfied that, in the circumstances of this
case (and I stress that I am concerned only with the facts and circumstances of
this particular case), article 6 is engaged and I reject the submissions of Mr Straker and Mr Pugh-Smith to the contrary.”
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:-
“20. Insofar as the appellant complains about loss of
light and privacy this was considered in Winchester v The Minister for Planning
and Environment [2014] JRC 118. At
paragraph 29 Commissioner Clyde-Smith stated as follows:-
“29. As to the loss of light and privacy, it is clear
that the new building will harm the amenities of No 9 but the issue is whether,
in the context of the Built-up Area, that harm is “serious”. We have considerable sympathy for Mr
Winchester and his family in that being on the very western end of the close,
they have enjoyed almost complete privacy and uninterrupted light. The problem is that their property is in
the Built-up Area and they have to accept the potential loss of light and
privacy that goes with any property in the Built-up Area. Whether or not the harm here is serious
is finely balanced – hence the split decision of the Panel, but in the
end, the majority concluded that it was not serious and in our view, that
decision was neither mistaken nor unreasonable.”
21. Insofar
as the appellant complained about a view being affected, thus causing a serious
harm to the amenity of the appellants property, in Dunn v The Minister for
Planning and Environment [2009] JRC 237 at paragraph 10 Sir Philip Bailhache,
sitting as a Commissioner, stated:-
“The law, however, confers no
legal right, in the absence of a servitude, to a view.”
In the same paragraph he
continued:-
“The loss of a view may be an
element of the loss of amenity to be taken into account in that sense, but it
is not per se a material planning factor.
Put simply, you can buy a room with a view, but you cannot buy a
view.”
22. In
Almondale v The Minister for Planning and Environment
[2006] JRC 135 Birt, Deputy Bailiff in relation to an amenity stated as
follows:-
“(i)
It is of course correct for the appellant to state that the site has not been
designated as an Important Open Space and does not fall within the Shoreline
Zone. However that does not mean
that the question of sea views and the provision of an open break need be
ignored. In Guillou v Island
Development Committee [1969] JJ 1225 the Court made reference to the definition
in the Shorter Oxford Dictionary of 'amenity' as being "the quality of
being pleasant or agreeable" and further noted that 'pleasant' is defined
as "agreeable to the mind, feelings, or senses." The Court went on to say that amenity
should be interpreted in a wide sense so as to include more than just visual
matters. In the Island Plan itself
amenity is described as "pleasantness of situation, attractive features of
the locality".
23. In
Moody v The Minister for Planning and Environment [2012] JRC 213 Commissioner
Clyde-Smith at paragraph 30 stated as follows:-
“It seems to us inevitable
that any development within the built-up area will harm the amenities of the
neighbours to some extent.”
In the same paragraph he
continued:-
“Owners and occupiers of
properties within the built-up zone cannot reasonably have the same
expectations as to privacy as say those living in the Green Zone. If those expectations are set too high,
then the Spatial Strategy as set out in the 2011 Island Plan in terms of the
Island’s housing needs will be seriously impaired.””
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:-
“As in the National Coastal
National Park, however, the Green Zone is even more of a living landscape,
containing a greater number and variety of buildings and the land uses. Whilst there is a presumption against
new uses of buildings that would detract from its landscape or character, there
may be opportunity to secure the repair and restoration of it through
exceptions where the development of existing buildings or land uses provide
opportunities to repair or reduce their existing harm to landscape
character. Development may also
provide opportunities for public access and enjoyment of the countryside”
52. However, the Island Plan continues at paragraph
2.120 as follows:-
“There is also a need to
provide for the reasonable expectation of residents to improve their homes and
businesses to undertake economic activity and provide employment, having regard
to the capacity of the landscape to accommodate development without serious
harm.”
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:-
“2.123 The acceptability of an extension to a dwelling will be determined
by its scale, design and impact on landscape character.
2.124 Each case should be assessed on its merits and, in
particular, regard had to the sensitivity of the site, relative to the capacity
of the landscape character area to accept change.
2.125 The purpose will be a material consideration and should
not facilitate a significant increase in occupancy. Intensification of domestic use would
place more pressure upon a fragile environment, limited infrastructure and
services and be likely to increase trip generation. The cumulative enlargement of existing
dwellings, and associated increases in resident population and activity, can
undermine an area’s character as much as new homes: a site’s
planning history will, therefore, be a material consideration.”
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:-
“When considering planning
applications in the vicinity of listed buildings, places or areas the need to
conserve the character and setting will be a material consideration.”
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.
Issue 3
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:-
“37.The position is a
fortiori in so far as article 6(1) is directly applicable in Mr Halligen's case. It is clear that the statutory provisions
regarding the permitted periods for appeals may in individual cases impair
"the very essence of the right" of appeal. The previous judicial
expressions of concern are eloquent about the potential and actual unfairness
of the position in which prisoners find themselves in trying to meet the
statutory requirements, with such aid as the prison legal services department
or legal advisers can, under difficult conditions, provide. The problems of
communication from prison with legal advisers in the short permitted periods of
seven and fourteen days are almost bound to lead to problems in individual
cases. It is no satisfactory answer that a person wrongly extradited for want
of an appeal as a result of failings of those assisting him might, perhaps, be
able to obtain some monetary compensation at some later stage. Strict
application of the surrogacy principle would be potentially unjust. I am not
persuaded that the interests of finality and certainty outweigh the interests
of ensuring proper access to justice by appeal in the limited number of
extradition cases where this would otherwise be denied. There would not be "a
reasonable relationship of proportionality between the means employed and the
aim sought to be achieved".
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:-
“…Although that may be
described as marginal, it is unexceptional and there was no good reason why it
could not have been lodged in time. There is no evidence of any exceptional
difficulties encountered by her or her advisers. We were simply told by Mr Pascall that it had taken some time for her to find a
specialist solicitor and to obtain legal aid. In these circumstances, I am not
disposed to remit her case to the Administrative Court for further
consideration as Mr Pascall requests. She gains no
assistance from Pomiechowski's case [2012] 1 WLR 1604
. The strict time limit defeats her.”
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:-
“29 There is another aspect
of the case which seems to me to be significant. Important planning decisions
are not simply of bilateral significance. They affect many interests. In a case
such as the present other interested parties were entitled to assume, without
the need to engage in litigation, that if no valid application was made within
the statutory time limit, the ADPD would be beyond challenge.”
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.
Authorities
Planning and Building (Jersey) Law
2002.
Planning and Building (Amendment
No.6)(Jersey) Law 2002.
Human Rights (Jersey) Law 2000.
European Convention on Human Rights.
Minister
for Planning and Environment v Herold [2014] JRC 020.
R. (Cummins) v
Camden LBC [2001] EWHC 1116.
Carter
v The Minister for Planning and Environment [2013] JRC 227.
R (Friends
Provident Life Office) v Secretary of State for the Environment, Transport and
the Regions and Others [2002] 1 W.L.R. 1450.
St
Ouen v The Minister for Planning and Environment [2014] JRC 043.
Iezzoni v The Minister for Planning and Environment
[2015] JRC 030.
2011 Island Plan.
Pomiechowski
v District Court of Legnica Poland [2012] UKSC 20.
Adesina v Nursing & Midwifery Council [2013] EWCA Civ 818.
Barker v Hambleton
DC [2012] EWCA Civ 610.