Judicial Review - reasons.
[2021]JRC173
Royal Court
(Samedi)
15 June 2021
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Before :
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Sir Michael Birt, Commissioner, sitting
alone.
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Between
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Karl Reginald Sutton
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Applicant
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And
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The Connétable of St Brelade
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Respondent
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And
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The Shell House Limited
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Intervenor
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Advocate H. Sharp QC for the Applicant
Advocate C. B. Austin for the Respondent
Advocate P. G. Nicholls for the Intervenor.
judgment
the commissioner:
1.
The
Applicant has been given leave to seek judicial review of certain decisions of
the Connétable of St Brelade taken in respect
of the car park near La Pulente slipway (the
“the Car Park”) and the Applicant’s ability to carry on his
business of providing food and drink from a kiosk situated either on the Car
Park or on the adjoining parish road leading to the slipway which gives on to
the beach (“the slip road”).
2.
On 15th
April, I sat to hear an application by the Applicant for certain mandatory
interim relief. Following the
hearing, I refused to grant the requested interim relief on 19th
April. What follows constitutes my
reasons for that decision. The
application raised issues as to the necessary connection between the interim
relief sought and the substantive decision being challenged as well as the
requirements for interim mandatory relief.
General background
3.
I have
been provided with affidavits from the Applicant and the Connétable and
one affidavit from Stephanie Steedman of KE Planning Limited on behalf of the
Intervenor. I also heard oral
evidence from Mr Frank Laine, the owner of the Intervenor. The affidavits exhibited a large number
of documents such as contemporary emails and I was referred to a number of them
during the course of submissions. I
have considered each of the documents to which I was specifically referred, but
what follows is a fairly high level summary of the background and refers only
to those documents which I consider essential for the narrative.
4.
The
Intervenor is the owner of a site referred to as the Public Toilets, La Pulente (“the Site”). The Site consists of a fairly small area
of land or dunes lying between the Car Park (to the east) and the beach (to the
west) and includes a building consisting of public toilets (“the
Building”). The Car Park in turn
lies to the west of the slip road which leads from the main road, La Route de
la Pulente to the slipway which in turn leads to the
beach.
5.
The
Intervenor acquired the Site from the Public of the Island by contract passed
before the Royal Court on 18th July 2014. It was anticipated at the time that the
Intervenor would seek planning permission to extend and convert the Building
into a café or restaurant as that is specifically referred to in the
contract. The States were clearly
concerned to ensure that public toilets continued to be provided because Clause
1 of the contract states that if the Intervenor did not receive planning
permission to convert the Building into a café or restaurant, the
Building could only be used for the provision of public toilet facilities as at
present. Clause 2 provided that if the
Intervenor did receive such planning permission, it would nevertheless be
obliged to provide alternative public toilet facilities in the Building or
within any extension to the Building.
6.
Clause 3
of the contract provided that the Public could continue to make use of the pump
room, which forms part of the Building, in order to house switch gear for the
pumping station which is situated on land retained by the Public and lying
immediately to the north-east of the Site.
That pumping station apparently pumps sewerage from adjoining properties
back up the hill. Clause 3 also
provided that that right should continue until such time as an alternative pump
room for the switch gear was provided by the Intervenor.
7.
At that
time, the Car Park was owned by the Public. However, by contract passed before the
Royal Court on 19th February 2016, the Public transferred the Car
Park to the Parish of St Brelade (“the
Parish”).
8.
On 28th
January 2016, the Intervenor was granted planning permission for the alteration
and extension of the Building to create a new café. The permission acknowledged that the
Site was situated in the Coastal National Park, which required a high level of
protection from development, but the relevant planning policy allows for new
tourism development in the Coastal National Park as an exception to the
presumption against development and the Planning Applications Committee
considered that the application was justified on this ground. The permission contained a condition
that development should commence within five years, i.e. before 28th
January 2021. It appears from the
papers that permission had also been granted in 2007 for conversion of the
Building into a café but this had lapsed in 2012 as the permission had
not been implemented.
9.
On 1st
October 2016, the then Connétable of the Parish granted a permit for one
year to the Applicant under Article 2(3) of the Road Traffic (Public Parking
Places) (Jersey) Order 2006 (“the 2006 Order”). This permit allowed the Applicant to
park his mobile kiosk on an agreed part of the Car Park for the purposes of
serving food and drink to customers.
The kiosk is known as ‘The Hideout’.
10. A similar permit (“a Parking Place
permit”) was granted to the Applicant on 1st October 2017,
this time for three years expiring on 30th September 2020. Both permits were granted subject to a
condition that the permit would be revoked once the development of the Building
was complete. Thus Clause 3 of the
2017 permit was in the following terms:
“It is understood that once
the development of the La Pulente toilets is complete
the mobile kiosk and other appurtenances will be required to vacate the car
park within 28 days and the permit will be revoked.”
11. The evidence before the Court from the
Applicant is that the Hideout is extremely popular and well supported.
12. It appears that the Intervenor did little to
progress the permitted development of the Site until August 2020 at which point
it was acquired by Mr Frank Laine, a person with considerable experience of
development. He has apparently
agreed that, once developed, the café will be run by Nude Food, in which
he also has an interest.
13. The Applicant had been in touch with the
Connétable in June 2020 indicating that he would like to renew the
permit for the Car Park and that the Connétable had said he was unable
to give a response at that stage.
It appears that Mr Laine contacted the Connétable in late August
2020. He told the Connétable
that he had acquired the Intervenor and that he intended to proceed with the
development of the Building. As a
result, the Connétable indicated by email of 24th August to
Mr Laine that he was proposing that the permit for the Applicant in respect of
the Car Park would cease on its expiry.
Coincidentally, the Applicant had emailed the Connétable on 23rd
August asking for a meeting, as he had met Mr Laine who had asked the Applicant
when he would be leaving. On 28th
August, the Connétable wrote to the Applicant indicating that he was
unable to renew the Parking Place permit for the Hideout. He said that this was necessary in order
to enable the development of the Building and that the Parish would be coming
to an arrangement with the developer for temporary use of the Car Park whilst
this took place and the necessary alterations to the pumping station were made.
14. On 9th September, a number of
parishioners led by Senator Pallett issued a requette
calling for a Parish Assembly to be held.
The requette proposed that the
Connétable be instructed to renew the permit to the Applicant for the
Car Park and that if for any reason the Applicant had subsequently to move so
as to enable works connected with the development of the Building to take
place, a nearby alternative site on parish land be provided for the Applicant. It was further proposed that the
Connétable be instructed not to enter into any lease with a third party
for the Car Park or the slipway without prior approval of a Parish
Assembly. The Parish Assembly was
fixed for 23rd September.
A few days earlier, on 20th September, the Connétable
had asked Mr Laine for a timeline of the development. He also indicated that he proposed to
offer the Applicant a place on the slip road but did not intend to grant it for
twelve months.
15. At the Parish Assembly on 23rd
September, Miss Steedman of KE Planning, the planning consultant to the
Intervenor, informed the Assembly that advice had been received that it would
not be safe for the Hideout to operate in the Car Park during the
development. There was a discussion
about relocating the Hideout from the Car Park to the slip road. Eventually a vote was taken to the
effect that the Hideout be permitted to remain in the Car Park until such time
as permission came through for it to move to the proposed position on the slip
road.
16. The Connétable explains in his affidavit
that after the meeting, it came to his attention that the contract whereby the
Parish had acquired the Car Park contained a clause that the Car Park should be
maintained as an area for the parking of vehicles and that accordingly the previously
issued Parking Place permits for the Hideout had been issued in breach of that
contract. On becoming aware of
this, he felt that the matter should be put again to a Parish Assembly and this
meeting was held on 27th October 2020. The motion put to the Assembly was in
the following terms:
“To consider, and if thought
appropriate, to issue a temporary permit to Mr Karl Sutton to operate a kiosk
on an agreed position on the La Pulente slipway
approach road under the Customary Law (Choses Publiques)
(Jersey) Law 1993 and to agree to a lease to Shell House Limited for the
temporary use of the car parking area at the top of La Pulente
slip approach road for a compound to enable the development of the toilet block
site under the Road Traffic (Public Parking Places) (Jersey) Order 2006.”
17. There was a discussion at the Parish Assembly
and Miss Steedman, on behalf of the Applicant, repeated that use of the Car
Park was needed by the builders in order to carry out the development. It would accordingly be closed to the
public during the construction period and this was expected to last
approximately six months until the end of April 2021. It was explained that during this time
the Hideout kiosk would be relocated to the road leading to the slipway, i.e.
the slip road. The matter was put
to the vote and passed by 14 votes in favour with no votes against.
18. Prior to the Parish Assembly, the
Connétable had written to the Applicant on 6th October 2020
indicating that he had been informed that the development of the toilet block
structure was about to proceed and that the developers planned to erect
hoarding on the Car Park, which meant that the location of the Hideout would be
compromised. He therefore wrote to
say that the kiosk should be moved to the agreed slip road position. He said that the Parish would consider
issuing a permit (a “Choses Publiques
permit”) under the Customary Law (Choses Publiques)
(Jersey) Law 1993 (“the Choses Publiques
Law”) until 31st December 2020. A new application would be required under
the Law for the Applicant to trade there in 2021 and this would expire on 31st
December 2021, or such earlier time as the development of the Building was
signed off by the Planning Department and trading began, whichever was the
sooner. It would appear that the
Applicant moved his business to the slip road in the course of November 2020
but there does not appear to have been a formal permit under the the Choses Publiques Law. Permits under the Choses Publiques Law only last from year to year, ending on 31st
December, and accordingly it was necessary for the Connétable to
consider a Choses Publiques permit for 2021 in
respect of the slip road. There
were various exchanges between the Connétable and the Applicant as to
the amount to be charged for such permit but on 23rd December 2020,
the Connétable emailed the Applicant indicating that the permit would
only last until 1st June 2021.
The Applicant immediately responded asking why there should be an end
date of 1st June 2021 when the development had not even started and
the understanding had always been that he could trade until the new restaurant
was finished. He saw no prospect of
the development being completed in less than a year.
19. The Connétable subsequently issued a Choses
Publiques permit in respect of the slip road to
the Applicant on 30th December 2020. The permit was expressed to expire on 1st
June 2021 and was subject to the equivalent condition as in the Parking Place
permits namely:
“4(a) Once the development of the La Pulente toilets is complete and the new café is open
for trading or the 1 June 2021 whichever is the sooner then
the mobile kiosk and other appurtenances will be required to vacate the slipway
/ approach road with immediate effect and this permit will be revoked.”
20. On 6th January 2021, the
Connétable emailed Mr Laine to say that Senator Pallett had contacted
him regarding inactivity on the Site and asking Mr Laine for a timeline on when
the development would progress. He
wrote again on 16th February 2021 to Mr Laine asking what the
timescale was for the completion of the development works. He does not appear to have had a reply
to either inquiry.
21. On 11th January 2021, Advocate Sharp
wrote to the Connétable on behalf of the Applicant reciting some of the
history and contending that there had been unfairness in the process. He raised two matters in connection with
the Choses Publiques permit issued on 30th
December, namely its fixed termination date of 1st June and the fee
which had been charged. In relation
to the former, he requested that the permit continue until 31st December
2021 but subject to the condition that the Applicant vacate earlier if the
development of the Site was finished and the café opened.
22. Advocate Austin replied on behalf of the
Connétable on 29th January. A reduction in the fee was agreed with
the consequence that that matter is no longer in issue. However, he said that the Parish
maintained the reasonableness of inserting the termination date of 1st
June 2021 as that was the completion date for the development which had been
notified to the Parish by the Intervenor.
23. Following further exchanges, Advocate Sharp
wrote to Advocate Austin on 17th February attaching photographs
taken the day before which, he said, indicated that work on the development of
the Site had not started. He
pointed out that, given the six months estimate given to the Parish Assembly,
this meant that work could not possibly be completed by 1st
June. He therefore asked for
confirmation by return that the Connétable would vary the length of the Choses
Publiques permit in respect of the slip road so
that it would continue until the development was completed. No such confirmation having been
received, the Applicant issued his application for leave to apply for judicial
review and leave was granted by the Bailiff on 25th February.
24. Advocate Sharp wrote to Advocate Austin on 26th
February informing him of this fact and that the papers were about to be
served. He repeated the assertion
that the Hideout had been removed from the Car Park for no good reason as no
building work had been undertaken over the winter months and the promised
completion date of the end of April 2021 could not possibly be met. He therefore formally asked the Connétable
to take a decision urgently to rectify the position by (a) opening the Car Park
back up to the public forthwith and (b) granting the Applicant a new permit for
the Hideout to occupy the Car Park as before with suitable conditions in the
event that any development in fact took place.
25. When the Applicant received the Connétable’s affidavit in these proceedings of
24th March 2021, he discovered that there was still no written lease
of the Car Park to the Intervenor.
In his third affidavit, the Connétable explained that, although a
draft lease had been provided to him by the Parish’s lawyers on 23rd
October 2020, it was intended that the lease have a report on the condition of
the Car Park annexed to it. This
report was commissioned on 30th November 2020 but was not received
until 6th January 2021. The
draft lease was forwarded to the Intervenor’s lawyers on 17th
February and they responded with comments on 9th March. By then, the Applicant had obtained
leave to bring his judicial review proceedings and accordingly the
Connétable took the view that it would not be appropriate to proceed
with the lease pending the judicial review hearing. However, the Intervenor has in practice
been in exclusive possession of the Car Park since the hoarding was erected, which
I understand to have been in about November 2020.
The course of these proceedings
26. The course of the proceedings has been somewhat
irregular and I therefore need to summarise what has occurred.
27. Under the heading of the ‘Decision…
in respect of which relief is sought’, the application for leave to
seek judicial review, which was granted by the Bailiff, listed only the
decision of the Connétable to issue the Choses Publiques
permit in respect of the slip road on 30th December 2020. The challenge was to the ‘conditions
attached to the permit’ and analysis of the accompanying ‘grounds
of the judicial review’ showed that the complaint was in relation to
the termination of the permit on 1st June 2021. This was of course consistent with the
various exchanges of correspondence shortly before the issue of the
application, which I have referred to above.
28. The relief sought in the application was
essentially that the Court should grant an order of mandamus directing the
Connétable to issue a new Choses Publiques
permit in respect of the slip road to end on 31st December 2021
subject to earlier termination 28 days after the completion of the development
of the Site or the opening of the café; alternatively that the decision
of the Connétable to issue the Choses Publiques
permit be quashed and he be required to take the decision afresh.
29. In terms of interim relief, the application
requested that a stay be granted at the first directions hearing so as to
prevent the Choses Publiques permit from
expiring on 1st June 2021 until the judicial review proceedings were
concluded.
30. I should add that paragraph 4 of the relief
sought included a request that, as part of the relief following the final
hearing, the Connétable be ordered to consider cancelling the lease of
the Car Park to the Intervenor and relocating the Hideout back to the Car Park
on the basis that no building work had taken place over the winter months. For the reasons mentioned below, I do
not consider that this prayer for relief was properly included in the
application, which related only to the Choses Publiques
permit in respect of the slip road.
31. When granting leave to the Applicant to seek
judicial review of the Connétable’s
decision of 30th December 2020, the Bailiff specifically ordered
that, within seven days of service on the Connétable, the parties should
fix a date for a directions hearing to take place within 28 days of service and
at that directions hearing the Court would consider the Applicant’s
interim request that the current expiry date of the permit of 1st June
2021 should be stayed pending the outcome of the judicial review proceedings. That directions hearing was fixed for 1st
April.
32. On 29th March 2021, Advocate Sharp
purported to issue a summons – which was not signed by the Judicial
Secretary nor was it issued 4 clear days before the hearing - which sought
three orders in addition to the interim relief staying the termination date of
1st June 2021. They
were:
(i)
that the
Applicant should have permission to cross-examine the Connétable at the
final hearing on the contents of his affidavit, which had been sworn on 24th
March;
(ii) that the Applicant be granted leave to amend
the notice of application for leave to apply for judicial review and leave to
advance the additional grounds for judicial review in the addendum in
accordance with the drafts attached to the summons; and
(iii) that the Court should grant interim relief by:
(a) ordering the Connétable to return the
Car Park to its normal use and requiring the Intervenor to vacate the Car Park
until the final hearing of the application for judicial review; and
(b) ordering the Connétable to grant the
Applicant a permit to operate the Hideout from the Car Park until the final
hearing of the case or until further order.
The amended notice of application for leave
to apply for judicial review simply moved paragraph 4 of the original
application to paragraph 1A so as to become a request for interim relief rather
than, as previously, an application for an order at the final hearing of the
proceedings.
33. At the hearing on 1st April, I dealt
with various matters of a procedural nature. Thus the final hearing date was fixed
for 22nd July 2021 and directions were given for preparation in
relation to that hearing.
Furthermore, I granted the Applicant permission to cross-examine the
Connétable at the final hearing.
It also emerged that the Connétable had agreed to extend the Choses
Publiques permit until 31st August
2021 on the basis that this was the revised anticipated completion date which
the Intervenor had advised to him.
As this was after the final hearing date of 22nd July, the
Applicant agreed that he did not need to proceed with the interim relief
seeking to extend the expiry date to 31st December 2021 and this
could be dealt with at the final hearing.
34. However, I raised with Advocate Sharp an issue
which caused me some difficulty in relation to the interim relief which he was
now seeking. The only decision
which he was challenging in the judicial review proceedings was the decision of
the Connétable to limit the Choses Publiques
permit to 1stJune 2021.
There was no challenge to any other decision of the
Connétable. Yet, as interim
relief in relation to that application, the Applicant was now seeking a
mandatory order that the Connétable take two completely different
decisions, namely:
(i)
that he
should cancel any lease of the Car Park to the Intervenor and
(ii) that he should grant a permit under the 2006
Order to the Applicant in respect of the Car Park.
35. I did not see how interim relief of this nature
could be granted in judicial review proceedings which were challenging only the
decision of the Connétable in relation to the Choses Publiques permit concerning the slip road. There was at this stage no application
to judicially review the Connétable’s
decision to grant a lease of the Car Park to the Intervenor or his decision not
to renew the Parking Place permit for the Applicant in relation to the Car
Park. So how could I make an order
directing the Connétable to grant a Parking Place permit in relation to
the Car Park when there was no challenge to the decision of the
Connétable not to renew the Parking Place permit but instead to grant a Choses
Publiques permit for the slip road? It is of course the case that two
completely different pieces of legislation are involved. The 2006 Order governs the use of car
parks whereas it is the Choses Publiques Law
which governs the use of parish roads.
36. I therefore adjourned the application for
interim relief to 15th April and directed that the Applicant should file
proposed amended grounds for his application for judicial review and that
supplemental skeletons and affidavit evidence also be filed. I said that I
would consider his application to amend on 15th April.
37. Pursuant to that order, the Applicant filed an
amended notice for application for leave to apply for judicial review. This now sought to challenge six
decisions of the Connétable (rather than just one), including the
decision of 30th December 2020 which had originally been
challenged. The six decisions were:
Decision 1:
The decision of the Connétable taken
on receipt of the Applicant’s letter of 26th February 2021
whereby the Connétable refused to re-open the Car Park to the public and
to grant the Applicant a new permit under the 2006 Order so that the Hideout
could operate from the Car Park.
Although that refusal had not been directly communicated to the
Applicant, it was self-evident, it was submitted, from the Connétable’s
conduct in the legal proceedings since then that he had refused the request
made in the letter of 26th February.
Decision 2:
Further and alternatively the decision of
the Connétable on receipt of the Applicant’s letter of 26th
February whereby he failed/refused to reconsider (a) his previous decision of
28th August 2020 when he first refused to grant the Applicant a new
permit under the 2006 Order in respect of the Car Park and/or (b) the Parish
Assembly decision of 27th October (together “the previous
decisions”). It was said that
a fresh decision ought to have been taken on receipt of the 26th February
2021 letter given the material change of circumstances.
Decision 3
The decision of the Connétable on or
around 30th December 2020 when he failed/refused to reconsider the
previous decisions. A fresh
decision ought to have been taken at this time given the material change of
circumstances.
Decision 4
The decision of the Connétable to
proceed with the 27th October 2020 Parish Assembly and to seek
decisions from the Parish Assembly that the Intervenor be permitted to occupy
the Car Park by lease and that the Hideout be moved to the slip road.
Decision 5
The 28th August 2020 decision
not to grant the Applicant a new Parking Place permit for the Car Park.
Decision 6
The decision originally challenged, namely
the decision of the Connétable in respect of the conditions attached to
the Choses Publiques permit in respect of the
slip road issued on 30th December 2020.
38. The amended notice of application also varied
the interim relief sought by including at paragraph 1A interim relief which had
been foreshadowed as final relief at paragraph 4 of the original application
for leave and as interim relief in the summons referred to at para 32 above,
namely that:
(a) the Connétable shall return the Car Park
to its normal use forthwith;
(b) the Intervenor be required to vacate the Car
Park forthwith; and
(c) the Hideout be permitted to operate from the
Car Park with an appropriate permit under the 2006 Order until the final
hearing of the case or until further order.
39. At the resumed hearing on 15th
April, as well as the Applicant applying for leave to seek judicial review of
the additional five decisions, the Intervenor also applied to intervene in the
proceedings.
40. At the hearing, I granted leave to the
Applicant to seek judicial review of Decisions 1, 2 and 3 (in addition to
Decision 6 for which leave had been granted by the Bailiff), but refused leave
in respect of Decisions 4 and 5 on the grounds that (i)
the application was out of time as being more than three months after the
relevant decision and (ii) the matters relevant to those decisions would also
be relevant to the challenge to Decisions 2 and 3 and could therefore be
addressed in relation to the challenge to those Decisions. I granted leave to the Intervenor to
intervene on the basis that its economic interests were clearly liable to be
affected by any decision which I might make in relation to the interim relief
sought by the Applicant.
41. That left for decision the application for
interim relief which I have summarised at paragraph 38 above. Now that, following the grant of leave
to amend referred to above, the Applicant was seeking to judicially review
Decisions 1 – 3, the Court had jurisdiction (unlike on 1st
April) to consider the interim relief applied for in relation to the Car Park
and the Applicant’s ability to trade from the Car Park.
Principles for interim relief in judicial review
proceedings
42. There is no dispute between the parties as to
the principles governing the grant of interim relief in public law cases. These were considered in some depth in
the judgment of Lord Walker in the Privy Council in the case of BACONGO v Department of the Environment of Belize
[2003] 1 WLR 2839 at paragraphs 35 – 47.
43. At the risk of over-simplification, I would
summarise the position as follows:
(i)
Because
the range of public law cases is so wide, the Court has a wide discretion to
take the course which seems most likely to produce a just result (or to put the
matter less ambitiously, to minimise the risk of an unjust result) (para 39 of BACONGO).
(ii) An application for an interim injunction is to
be assessed on the basis of the well-known principles laid down in American Cyanamid Co v Ethicon Limited [1975] AC
396, but with modifications appropriate for public law cases (para 35 of BACONGO). Given the public law element (where an
award of damages is often not available), this is likely to mean particular
concentration on two aspects of the American Cyanamid test, namely
whether there is a serious issue to be tried and the balance of
convenience.
(iii) An undertaking in damages is not invariably
required in public law cases (para 39 of BACONGO), but should normally
be required in such cases if the commercial interests of a third party are
engaged (para 38 of BACONGO).
(iv) The strength of the case is an important factor
when the grant of an interim injunction would cause significant financial loss
and no undertaking in damages has been offered (para 40 of BACONGO).
(v) It is well-established in private law cases
that, where an interim mandatory injunction (as opposed to a prohibitory injunction) is applied for, the Court will need
to have a high degree of assurance before granting such an injunction that the
trial court will in due course affirm that the order was rightly made. There is therefore a high burden on
persons seeking an interim mandatory injunction (see Publicis
Graphics Group Holdings SA v Assad [2011] JRC 089 at paras 12 –
14 and the cases cited there). In
my judgment, this requirement is equally applicable in public law cases.
44. In the present case, no undertaking in damages
has been offered by the Applicant and what is sought at this stage is a
mandatory order; in other words an order that the Connétable do certain
things such as requiring the Intervenor to vacate the Car Park and granting a
Parking Place permit under the 2006 Order to the Applicant to trade from the
Car Park. It follows that, in order
to succeed, the Applicant will need to show a strong prima facie case.
The present position re the development
45. The papers before the Court for the hearing on
1st April did not contain much information about the present state of the
development, which was and remains a significant factor to be considered when
deciding whether to grant the interim relief sought. The Connétable’s
affidavit merely exhibited a letter dated 19th March 2021 from Ms
Steedman of KE Planning to the Connétable’s
advocates. It stated that the
suggestion that the Intervenor was not actively progressing the development or
had no real intention of developing the Site was false; the relevant pre-conditions
(mostly environmental) of the planning permission had been discharged (i.e.
fulfilled) and work had already started.
She said that the Intervenor had already invested significant sums in
the development and was about to spend considerably more in connection with
piling required on Site. A number
of piles had already been driven, contractors had been engaged, orders placed
and off site fabrication of specialist fixtures was underway in respect of the
development works generally.
46. When adjourning the hearing on 1st
April, I indicated that I would be assisted by more detailed information about
the present state of the development.
This was provided in the form of an affidavit from Ms Steedman on behalf
of the Intervenor. She asserted
that the Intervenor had been actively engaged in progressing the development
since Mr Laine had acquired the Intervenor in August 2020 and it was hoped to
complete the work by the end of September with a view to the café
opening on 1st October 2021.
The Intervenor had originally wanted to have the café operational
by the early summer but this had had to be moved back due to engineering
difficulties.
47. She explained that the Intervenor had engaged a
number of professionals to carry out the development, including the main
contractor, architects, engineering contractors, piling and groundwork
contractors, health and safety advisers, asbestos consultant and ecological
consultant, as well as KE Planning itself.
She said that there had been real progress since August 2020 although
much of it might not seem obvious in terms of physical development of the Site
as much preparatory work had to be done.
However, piling had begun.
58 piles were required. The
original probe had suggested that 10 metre piles would be sufficient, but it
was discovered that these were not deep enough and the piles had to be 27
metres in order to hit the bedrock of granite. As a result, the piling had taken longer
than expected. Before the piles
could be completed in terms of the concrete foundation, they had to be
tested. This required a special
piece of equipment which was only in Jersey for a short time. The test was
scheduled for 22nd April.
48. Two other significant matters had arisen. The first related to the switch gear and
pumping station located in the middle of the Building. The Health and Safety Inspectorate and
States’ insurers had recently advised that this could not be in a
privately owned development. As a
result, it had become necessary to move the switch gear on to adjoining
land. This had caused delay
requiring the involvement of the Planning Department.
49. The second issue related to a change in the
bye-law which means that the Site drainage is not permitted to flow into the
drainage tank belonging to the Parish.
As a result, the Intervenor is having to build its own drainage tank at
its own cost on site.
50. She explained that significant financial
commitments had been made by the Intervenor. All of the glazing units for the
café had been ordered. Hundreds
of thousands of pounds had been spent on the Site in terms of purchasing the
Intervenor, and she estimated that at least a further £600,000 was
earmarked for the development, with up to about a third of that having already
been spent. She emphasised that the
use of the Car Park was absolutely essential to the carrying out of the
development in terms of health and safety and also as somewhere for the plant
and machinery to be stored and to gain access.
51. At my request, Mr Laine attended at short
notice to give evidence on 15th April. He was fairly vague in relation to a
number of matters, although it is fair to note that he had no warning that he
would be asked to give evidence or to attend the hearing. He confirmed that it was necessary to
test two of the piles and this was to take place shortly. However, he had taken a commercial view
and said that piling was continuing as he spoke. He was taking the view that the testing
of the two test piles would be satisfactory. He hoped that the piling would be
complete by the end of April or early May.
He confirmed that delay had been caused by the switch gear issue and
that was out of the Intervenor’s hands to a certain extent. The new housing for the switch gear had
been ordered and had to be specifically made. It was due to arrive in the island the
week after the hearing. Work by the
JEC had then to be undertaken. The
problem with the switch gear was restricting the work that could be done in that
area of the Building but there was other work that could be done. Thus, once the piles were completed, the
reinforcement for the floors, the materials for which were coming from the UK
in the next two to three weeks, could be undertaken. The work of creating suspended concrete
floors out over the dunes could be carried out. Thus, anything which was an extension of
rather than works to the Building itself could be progressed pending resolution
of the switch gear issue. He was of the view that, provided everything went to
plan, the development should be finished in September 2021.
52. Mr Laine was closely questioned by Advocate
Sharp about the information which had been given to the Parish Assembly in
October 2020 and it is fair to say that Mr Laine’s responses were
singularly unconvincing. He was
unable to give a satisfactory explanation as to how it was that the Assembly
had been told that the work should be completed within six months by the end of
April 2021 when the bye-law application had not even been submitted at that
stage. He accepted that he was
present when Ms Steedman gave this information to the Assembly and did not
correct it.
The Applicant’s submissions
53. Advocate Sharp made detailed and forceful
submissions on behalf of the Applicant.
I do not propose to repeat them all but I would summarise those
submissions which I consider most relevant to the present application as
follows:
(i)
The
Connétable took the decision not to renew the Parking Place permit
following its expiry on 1st October 2020 without giving the
Applicant any opportunity to make submissions prior to his decision. On the contrary, the Connétable
had informed Mr Laine in an email of 24th August that he would not
be renewing the permit before he informed the Applicant of that fact. There was therefore a strong prima
facie case that the decision not to renew the permit was taken in a
procedurally unfair manner.
(ii) Despite pressing the Intervenor on a number of
occasions (including very shortly before the Parish Assembly on 27th
October) for a timeline for the development, the Intervenor had never given the
Connétable satisfactory information other than a passing reference on 24th
August from Mr Laine that the middle of October would be critical for the works
with trial holes for the engineers in preparation for the contractors being on
site in early November.
(iii) On 9th September, the
Connétable was sent a chain of emails which showed that the Planning
Department had confirmed to the Intervenor that if certain railings and a
concrete path were removed prior to 28th January 2021, and certain
other pre-conditions of the planning permission were discharged (i.e.
fulfilled), then this would be regarded as the commencement of the development,
with the consequence that the planning permission would not lapse because of
the condition on the permission that development must start by 28th January
2021. Advocate Sharp submitted that
this meant that the Connétable knew, or at the least should have
realised, that there was no intention on the part of the Intervenor to start
building work before 28th January 2021; otherwise why would it be
necessary to obtain this confirmation from the Planning Department?
(iv) At the Parish Assembly on 27th October,
Ms Steedman, on behalf of the Intervenor, said that the Car Park was necessary
in order to carry out the development so that it would be closed during the
construction period. She went on to
say that the construction period was expected to last approximately six months
until the end of April 2021. The
clear implication from this therefore was that the building works were about to
begin in order that the development could be completed by the end of
April. Mr Laine was present at the
Assembly and did nothing to contradict this statement by Ms Steedman. Advocate Sharp submitted that the
statement was wholly inaccurate and this must have been known to Ms Steedman
and Mr Laine at the time. They knew
that the application for building bye-law permission had not even been
submitted at that point; it was not in fact submitted until 25th November
and bye-law permission was only granted on 26th February 2021. Building works could not therefore have
realistically been expected to commence in November and the Parish Assembly had
been seriously misled. He submitted
that, if they had known the true position, then given the sentiments expressed
at the first Parish Assembly, the Assembly would almost certainly have passed a
resolution requiring that the Applicant be permitted to remain trading from the
Car Park, certainly until building work actually commenced and possibly until
the following winter season so as to avoid the Car Park being out of action
during the summer season. Advocate
Sharp submitted that the natural meaning of the minute was that the
Connétable also confirmed the timescale indicated by the Intervenor even
though he had received no corroborating evidence from the Intervenor and had
seen the chain of emails referred to at (iii) above.
(v) In relation to the Choses Publiques permit issued on 30th December, the Connétable had
behaved in a procedurally unfair manner.
He had refused to meet with the Applicant to discuss the proposed fee
level in an email dated 22nd December and had then the following day
sent an email which, for the first time, indicated that the proposed permit in
relation to the slip road would terminate on 1st June 2021. The Applicant protested by return email
the same day but no meeting or further submissions occurred before the
Connétable issued the permit on 30th December with an expiry
date of 1st June 2021.
(vi) Furthermore, given that the Applicant had said
in his email of 23rd December that work on the development had not
begun and the Connétable knew that no lease was yet in place with the
Intervenor, there had been a material change of circumstances which, submitted
Advocate Sharp, required the Connétable to revisit the decision of 28th
August 2020 not to grant a permit under the 2006 Order to allow the Applicant
to continue trading from the Car Park.
(vii) Following the letter from Advocate Sharp dated
26th February 2021, with its attached photographs showing that no
work had been undertaken, the Connétable was aware, if he had not been
aware earlier, that the Intervenor had not commenced building work on the
development as had been asserted to the Parish Assembly on 27th
October. The Connétable
should therefore, as requested in the letter, have revisited his previous
decisions and should have reopened the Car Park and granted the Applicant a new
Parking Place permit to allow him to trade from the Car Park. The Connétable’s
failure to do so was irrational.
(viii) In essence, the Intervenor had misled the
Parish Assembly in October and in reality there had been no good reason for the
Applicant to have been moved from the Car Park to the slip road. Given the false information provided by
the Intervenor, the Applicant had a very strong prima facie case for
arguing that any one or more of Decisions 1, 2 or 3 (as well as Decision 6)
would be quashed at the forthcoming judicial review hearing in July. In those circumstances, the threshold
for granting interim mandatory relief, even in the absence of an undertaking in
damages, was met and the question was then as to the balance of convenience.
(ix) Turning to the balance of convenience, Advocate
Sharp submitted that the Applicant has suffered a grave injustice as a result
of the Parish Assembly being misled by the Intervenor and that granting of the
interim relief sought was necessary to help remedy that injustice. The Applicant was having to trade from
the slip road which was not nearly as satisfactory as the Car Park, both in
terms of location (it is further from the main road) and in terms of the
ability to place tables and chairs.
Furthermore, the blocking off of the Car Park meant there was very
little parking for customers. The
Applicant would therefore suffer a loss over the summer season albeit that,
because of the effect the pandemic had had previously, it was difficult to
produce figures. The closing of the
Car Park during the summer season would also cause inconvenience to the public
who wished to visit the beach or the Hideout.
(x) Conversely, any damage suffered by the
Intervenor would be its own fault for having misled the Parish Assembly. The clear intention at the time was that
all the development work should be undertaken over the winter. However, because of the delays on the
part of the Intervenor, the work was now to be carried out over the summer,
thereby prejudicing the public as well as customers of the Hideout because of
the closure of the Car Park. Furthermore,
no weight should be placed on the Intervenor’s assertions that the work
would be completed by September/October 2021. It had not been truthful at the Parish
Assembly and had given various projections (e.g. end of April, 1 June, 31
August) all of which had proved to be wrong and had had to be amended. It would cause no injustice to the
Intervenor to force it to cease work at present and to recommence the work in
October 2021 with a view to completing the development during the winter season
as originally envisaged.
Ultimately, the balance of convenience pointed in favour of remedying
the injustice which had been done to the Applicant.
54. I have carefully considered Advocate
Sharp’s submissions which were put most persuasively. However, for the reasons which follow, I
do not consider it would be right to grant the interim relief sought. I propose to consider the matter under
the two headings of the strength of the substantive case and the balance of convenience.
(1) Strength
of the substantive case
55. Advocate Sharp submits that the Applicant has a
strong case for judicial review and is likely to succeed on the principal basis
that the decision of the Parish Assembly on 27th October 2020
– and accordingly the Connétable’s
decision – was heavily influenced by the misleading information given to
the Assembly by the Intervenor concerning the anticipated date of completion in
April 2021. However, in my
judgment, a rather closer analysis of the different decisions is required.
56. The original application for judicial review
related only to the Connétable’s
decision to limit the length of the Choses Publiques
permit issued on 30th December 2020 to 1st June
2021. This decision is now referred
to as Decision 6. Similarly, the
original application for interim relief was only for a stay on the expiry date
of that permit until the judicial review hearing.
57. I agree that the Applicant has strong grounds
for challenging the imposition of the 1st June 2021 limitation on
the Choses Publiques permit. The Connétable asserts that it
was reasonable to insert the anticipated completion date for the development as
the termination date for the permit. However, I cannot see that that was
reasonable or necessary. All the
Parking Place permits had contained a condition which made it clear that the
permit would come to an end when the development was complete. I see no reason why the position of the
public and the Intervenor could not be similarly protected by the same
condition as had been in those permits and as was inserted in the Choses Publiques permit.
Thus, even if the Choses Publiques
permit issued on 30th December 2020 were expressed to to take effect until 31st December 2021 (being
the expiry date for all Choses Publiques
permits), the insertion of the relevant condition would ensure that, when the
development was complete, the permit would come to an end. Conversely, the insertion of a fixed
completion date ran the risk that the Applicant would have to vacate the slip
road for no good reason prior to development of the Site being completed.
58. It follows that, if it had still been a live
issue, I would have granted the interim relief originally sought, i.e. a stay
on the expiry date of the Choses Publiques
permit relating to the slip road until the hearing of the judicial review
application itself. However, that
is no longer an issue as the Connétable has extended the Choses Publiques permit for the slip road until 31st
August, which is after the hearing of the judicial review application in
July. Accordingly, I need say no
more about this aspect.
59. In relation to Decisions 1 and 2 (they can be
considered together), Advocate Sharp submits that, in view of the information
provided by the Applicant to the Connétable in the letter of 26th
February 2021 to the effect that no development work had been undertaken, and
knowing as he did that no written lease had yet been entered into with the
Intervenor for the Car Park, the Connétable should have revisited the matter
at that point and should have issued a Parking Place permit to the Applicant to
allow him to operate from the Car Park (rather than the slip road) and should
have opened up the Car Park to the public. He submits that there is a strong
prima facie case in this respect.
60. I accept that the Applicant has an arguable
case. However, the
Connétable had to consider the position as it was at that time (i.e. end
of February 2021) rather than as it would have been in October 2020 if the
Parish Assembly had not been misled.
It is not clear to me at this stage what his state of knowledge was or
what the situation in fact was on the ground (other than the evidence of the
photographs taken by the Applicant).
This is likely to be clarified following cross-examination of the Connetable at the final hearing in July. Accordingly, I find myself unable to
assess the strength of the Applicant’s case for judicial review in
relation to Decisions 1 and 2. Similarly, in relation to Decision 3, whilst the
Applicant has an arguable case, I am unable to assess its strength for similar
reasons, ie as at 30th December 2020, what
was the position in relation to progressing the development and what was the Connetable’s state of knowledge. In the circumstances, I am not able to
find that there is a strong prima facie case sufficient for mandatory interim
relief. However, on the assumption
that there is, I now turn to consider the balance of convenience.
(ii) Balance
of convenience
61. Advocate Sharp submits that the balance of
convenience comes down in favour of the Applicant for the reasons which I have
attempted to summarise above. The
position seems to me to be as follows.
62. If the interim relief is not granted, the
following consequences are likely to arise:
(i)
The
Applicant will have to continue trading from the slip road rather than return
to trade from the Car Park. There
is no evidence before me as to the financial loss which this would cause him,
but I accept that there is likely to be some loss, in that he does not have
room for seating and tables which he previously had for those customers who
wished to use them, the position on the slip road is further from the main road
and not so obvious for any passing trade, and there is limited parking adjacent
to the Hideout in its new position.
(ii) The Car Park will remain unavailable for
members of the public until the development is complete. It will therefore not be available for
the forthcoming summer season.
(iii) The injustice done to the Applicant as a result
of the misleading information given to the Parish Assembly will remain
unremedied in that the Applicant will continue to have to trade from the slip
road rather than from the Car Park.
63. Conversely, if the interim relief as sought is
granted, the following consequences are likely to arise:
(i)
Progress
on the development will stop as it cannot continue without use of the Car Park.
(ii) There will therefore be a considerable delay in
completion of the development, something which has been considered to be in the
public interest both by the Planning Department and by the States in deciding
to sell the Site for development in the first place.
(iii) Stopping a development which is in the course
of progress will undoubtedly cause financial loss to the Intervenor, as will
the delayed opening of the café in order to produce an income
stream. However, as with the
Applicant, I have no evidence of the extent of that loss.
(iv) The public will continue to be unable to use
the public toilet for a prolonged period, namely until completion of the
(delayed) development.
64. In my judgment, the balance of convenience
comes down firmly on the side of not granting the interim relief sought. I would summarise my reasons as follows:
(i)
Rule 16/3
of the Royal Court Rules provides that, when considering whether to grant leave
to apply for judicial review where there has been delay in applying (even if
within the three month period), the Bailiff should refuse leave if he considers
that the grant of relief following a judicial review would be likely to cause
substantial hardship to or substantially prejudice the rights of, any person or
be detrimental to good administration.
Whilst that Rule applies only to questions of whether to grant leave, it
seems to me that the factors mentioned there are also likely to be relevant
when a Court decides whether to grant interim relief. Thus, if the grant of interim relief
would be likely to cause substantial hardship to, or substantially prejudice
the rights of, any person or be detrimental to good administration, that is a
factor for the Court to consider when deciding whether to grant interim relief.
(ii) It is the view of those who have responsibility
for such matters that it is in the public interest for there to be development
of the Site so as to provide a beach café and refurbished public toilets. Thus, the contract of sale of the Site
envisages such a development and planning permission was granted even though
the Site is in the Coastal National Park on the basis of the improved
tourism/recreational facilities that a new beach café would provide. Both the contract and the planning
permission provide that the refurbished toilets following the development must
be available to the public. It
follows, in my view, that there is a perceived benefit to the public in the
development taking place and being completed as soon as reasonably
practicable.
(iii) Granting the interim relief sought would
undoubtedly cause significant delay to the completion of the development as
work cannot continue in the absence of the use of the Car Park by the
Intervenor. In terms of public
benefit, this would therefore delay the provision of the new café and
the refurbished toilet facilities.
It would also mean that the public toilets would continue to be
unavailable for a further period.
The provision of public toilets in the area is a matter of some concern
to the Connétable (see paragraph 12 of his first affidavit) and I
consider that to be an entirely reasonable concern. The nearest available public toilet is
apparently at Le Braye and I accept that delay in the
availability of public toilets at La Pulente for the
benefit of the public is a relevant matter.
(iv) I accept that the Intervenor gave misleading
information to the Parish Assembly in October about its ability to complete the
development by the end of April. I
further accept that this has probably led to the Applicant having to move from
the Car Park to the slip road earlier than would have been the case if a more
accurate forecast of when the work would be undertaken and completed had been
given. However, I have to consider
the position as it is at present, i.e. at 15th April. Whilst the evidence of Miss Steedman and
Mr Laine was not as precise or detailed as I would have wished and whilst I
take note, as Advocate Sharp urges, of the fact that inaccurate information was
given to the Parish Assembly in October, I am nevertheless satisfied from the
evidence before me that the development is now proceeding as fast as possible
and is being carried out. Thus,
piling is taking place, the test piles are to be tested shortly, orders for
windows and materials have been placed and the Intervenor has entered into
contracts with a substantial number of firms who are all working to complete
the development as soon as possible.
The estimate now given is that the development should be complete by the
end of September 2021 although there is a question mark over whether the issue
over the switch gear will cause further delay. Nevertheless, on the basis of the
information currently before me, I am satisfied that this is not an
unreasonable estimate. I am
satisfied that the Intervenor wishes to complete the development as soon as
possible so that it can open the new café and start earning a return on
its investment. Whilst the
photographs taken by the Applicant and attached to the letter of 26th
February 2021 appeared to show little apparent progress, I accept that much
preparatory work has to be done before the actual building work begins. The photographs sent to the
Connétable by a parishioner on 7th April 2021 show a rather
different picture and demonstrate that work has been undertaken and that plant
and machinery are present on the Site.
Ultimately, despite any reservations caused by the events at the Parish
Assembly, I accept the evidence of Miss Steedman and Mr Laine as to the current
state of the development.
(v) Whilst I do not have information about the cost
to the Intervenor of stopping the work on the development at this stage, it is
in my judgment obvious that it is likely to be substantial. In my view, a Court can infer that to
stop any significant development midstream is likely to have material adverse
financial consequences both in terms of interruption of contracts which have
been entered into and delay in deriving any benefit from the development, in
this case the opening of the café.
In my judgment, it is a fairly strong thing to halt a development
mid-stream and a court needs to consider carefully whether the balance of
justice points to such an order before doing so.
(vi) No undertaking in damages has been offered by
the Applicant. As discussed
earlier, this is a relevant factor to weigh in the balance, as it means that
any loss suffered by the Intervenor as a consequence of the interim relief
being granted would not be compensated.
(vii) Turning to the position of the Applicant, it
has always been understood that, once the development is complete and the new
café is open, the permit for the Applicant to operate the Hideout will
terminate. This was so in relation
to the permits to operate from the Car Park and is equally so in relation to
the Choses Publiques permit relating to the
slip road. Thus, the issue before
the Court in July will be whether the decision to move the location of the
Hideout from the Car Park to the slip road for the remaining period until the
new café is opened is liable to be judicially reviewed.
(viii) If the interim relief sought is not granted,
there is no question of the Hideout not being able to trade at all. The Applicant will be able to continue
to operate the Hideout from the slip road which is only a short distance from
the previous location in the Car Park.
As I have already indicated, I consider that there are strong prospects
of the Court in July making an order which permits the Applicant to continue
operating the Hideout on the slip road pursuant to the Choses Publiques permit until completion of the development
without being subject to the risk of any earlier termination date.
(ix) I accept that the location on the slip road is
not quite as good as the Car Park because of the lack of ability to have some
tables and seating and the fact that it is slightly further from the main
road. However, as the Applicant
says in evidence, the Hideout is extremely popular and well supported and I am
not persuaded on the evidence before me that the loss of custom caused by the
move in location is likely to be substantial. There is ample car parking at La Pulente car park which is only a short distance away and it
is not clear to me that loyal customers will be put off by the fact that the
Hideout is now on the slip road rather than in the Car Park. In short, whilst I accept that there may
well be some financial loss, I am unable on the evidence before me to find that
it is likely to be substantial.
(x) Similarly, because of the availability of the
La Pulents car park in close proximity, I do not
consider that there is a significant impact on the public as a result of the
temporary loss of the Car Park during the 2021 summer season.
65. In summary, on the one hand, if I grant the
interim relief, there is likely to be substantial loss to the Intervenor and
prejudice to the public as a result of a material delay in the provision of
public toilet facilities and the new café. Conversely, if I do not grant the interim
relief, the Applicant will be able to continue to operate the Hideout from the
slip road until the new café is open. In the circumstances, I consider that
the balance of convenience comes down firmly in favour of not interrupting the
development which is underway and therefore not granting the interim relief
sought.
66. I therefore dismiss the application for the interim
relief specified in paragraph 38 above.
Authorities
Road Traffic (Public Parking Places)
(Jersey) Order 2006.
Customary Law (Choses Publiques) (Jersey) Law 1993
BACONGO v Department of
the Environment of Belize [2003] 1 WLR 2839
American Cyanamid Co v
Ethicon Limited [1975] AC 396
Publicis
Graphics Group Holdings SA v Assad [2011]
JRC 089