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Cite as: [2010] JRC 108

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[2010]JRC108

royal court

(Samedi Division)

8th June 2010

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Nicolle.

 

Between

Jonathan Ian Ferrara

And Lesley Ann Ferrara

Third Party Appellants

And

Minister for Planning and Environment

Respondent

 

And

Philip Malet de Carteret

Appellant

And

Minister for Planning and Environment

Respondent

Advocate D. P. Le Maistre for the Third Party Appellants.

Advocate D. S. Steenson for the Appellant.

Mr D. Mills for the Minister for Planning and Environment, Respondent.

judgment

the deputy bailiff:

1.        These are conjoined appeals taken under the modified procedure and arising out of the Minister's decision to grant planning permission to Mr Philip Malet de Carteret, subject to conditions.  The planning application was for a retrospective permission to erect a marquee in the walled garden of St Ouen's Manor, La Grande Route de St Ouen, ("the Manor") for events during the period from 1st May to 31st October.  It appears that the application was made by Mr Malet de Carteret following some pressure from the Planning Department to the effect that a formal approval would be necessary, notwithstanding that there has been regular use of the walled garden for marquee events over the years since Mr Malet de Carteret purchased the Manor in 1978 from his brother.  The Court has noted that in his letter of 19th January, 2010, to the Planning and Environment Department, Mr Malet de Carteret indicated that he had reviewed his records and ascertained that in the period 1980 to 1989 there were on average 16 functions annually; in the period 1990 to 1999, on average four functions annually; and in the period 2000 to 2009 there were on average 13 functions annually.  Advocate Steenson said on behalf of Mr Malet de Carteret that the application was submitted by his client without prejudice to any contention that it was unnecessary so to do.  Clearly what was potentially in issue was whether or not the application proposed a material change of use in respect of the walled garden at St Ouen's Manor.  Given that the application was made and that this is an appeal pursuant to a determination of that application, the Court has proceeded upon the basis that an application was necessary.  Indeed, without deciding the issue, the Court is minded to the view that it was necessary. 

2.        The application was determined by the Planning Applications Panel, on behalf of the Minister, on 28th January, 2010.  That determination involved the grant of permission to Mr Malet de Carteret under Article 19 of the Planning and Building (Jersey) Law 2002 ("the Law") for the erection of a marquee for events from May to October.  The permission was subject to seven conditions, of which more detail follows later in this judgment.  The Panel had advice from a number of sources available to it, including a planning report submitted by officials within the Planning and Environment Department, which was itself informed by advice from the Historic Buildings Officer, the Transport and Technical Services Department, the Connétable of the Parish of St Ouen, the Environmental Protection Unit within the Department, Jersey Water and Health Protection.  The Panel also had objections lodged by Mr and Mrs Ferrara, the third party appellants, and responses to those objections by the applicant Mr Malet de Carteret. 

3.        Following the issue of the planning permission, the applicant Mr Malet de Carteret has appealed against the conditions relating to a restriction on termination times for the events which might be held in the walled garden, and against the condition relating to access.  The third party appellants, Mr and Mrs Ferrara, were given leave to amend their notice of appeal, and have appealed against the decision to grant the permission although it became clear at the hearing of the appeal that they did not contend that no permission should have been granted, but rather contended that different conditions should have been attached to the permission, specifically to attach a restriction as to the number of events which might be held at the site during the permit period, secondly, so as to require a time interval between each event held at the site, and thirdly, they sought a clarification as to whether lighting at the site was allowed to remain on until 12:30 am, past the time which the Panel fixed as the termination time for events. 

4.        The application by Mr Malet de Carteret was made in the circumstances we have described above and made it plain that what was proposed in relation to the development of the walled garden was a commercial use.  In 2001/2002, Mr Malet de Carteret had made a substantial investment to create an events venue on that site by demolishing the Victorian greenhouse, creating hard standing for catering marquees, installing electrical facilities and landscaping the area to include a fountain and planting.  He had appointed an agent to manage the events, including the erection of appropriately sized marquees depending upon the number of guests, and liaison with the users in respect of all organisational matters.  Although some events were held at the Manor without charge for the benefit of the relevant charities, the investment was made to provide an annual income from the functions which would make a significant contribution towards the extensive running costs of the Manor.  Mr Malet de Carteret contended that this income was essential to enable him to continue to maintain the fabric of the Manor and its grounds.  The Court was told that although there was an intention to list the Manor as a site of special interest, Mr Malet de Carteret had never received any funding from the States of Jersey, Jersey Heritage or similar bodies, nor was there any proposal for such funding in the future.  In fact we were told that the Manor was listed as a site of special interest in March 2010. 

5.        The third party appellants, Mr & Mrs Ferrara, live at the property La Caumine, Rue du Manoir, St Ouen.  This property was said to be some 20 metres from the walled garden.  The objections which the third party appellants made to the application were that the business, which they asserted had grown considerably, resulted in unreasonable disturbance for them in their occupation of their own property, that disturbance arising from excessive noise, from excessive traffic and from bright floodlights.  They asserted that the excessive noise derived not just from the playing of amplified music at high levels, which had caused them to register complaints with the Environmental Health Department under the Statutory Nuisances (Jersey) Law 1999, but also noise from guests enjoying themselves late at night and through, on occasion, into the early hours of the morning.  They complained that where guests were inebriated, the extent of the disturbance to them in their occupation of their property was significantly increased. 

6.        The Manor is in the Green Zone, is subject to the St Ouen's Bay Planning Framework, and is in a water pollution safeguard area.  At the time of the Panel's consideration of the application, it was a proposed site of special interest, although subsequently it has become actually listed as a site of special interest.  The Planning and Environment Departmental Report indicated that a number of policies were relevant to the application namely policy G2, dealing with general development considerations, policy C5 dealing with development in the Green Zone, general policy SO3, historic buildings SSI policy SO24, transport strategy policy SO42, and foul sewage facilities policy NR2. 

7.        On behalf of the Minister, the Planning Applications Panel granted permission in respect of the application "having taken into account the relevant policies of the 2002 Jersey Island Plan (in particular policies G2, C5 and C7), together with other relevant policies and all other material considerations including the consultations and representations received". 

8.        In order to consider in their proper context the appeals in respect of the conditions imposed or not imposed as the case might be, it is first necessary to look at the grant of permission against planning policies.  There is no doubt that policy C5 is of particular significance insofar as this application is concerned.  It is in its material parts in these terms:-

"The areas designated as Green Zone on the Island proposals map will be given a high level of protection and there will be a general presumption against all forms of new development for whatever purpose. 

The Planning and Environment Committee recognises, however, that within this zone there are many buildings and established uses and that to preclude all forms of development would be unreasonable.  Thus the following types of development may be permitted but only where the scale, location and design would not detract from, or unreasonably harm the visually sensitive character and scenic quality of this zone..."

9.        There then follows in policy C5 a series of exceptions from the general presumption against all forms of new development for whatever purpose in the Green Zone.  For the avoidance of doubt, it is clear that none of the exemptions apply to the present application.  Accordingly the Planning Applications Panel was charged to approach this application against a policy which required a high level of protection and stated that there was a general presumption against all forms of new development for whatever purpose. 

10.      Although the permit granted referred to policies G2 and C7 as also having been taken into consideration, these do not seem to the Court to advance the matter greatly.  Policy G2 is a policy which deals with general development considerations, in other words these apply across the board to any development which is to take place.  Inevitably the policy considerations in policy G2 must be read in conjunction with the specific policy considerations in the other plan policies.  Policy G2 concludes with the words "applications which do not comply with these principles will not normally be permitted".  That puts the policy in its proper context - where other policies envisage that permission might well be granted to a proposed development, the applicants should ensure nonetheless that the general development considerations in policy G2 are met in their application.  It is clear that policy G2 does not override a policy such as C5 which is a specific policy concerning applications for development in the Green Zone. 

11.      Policy C7 requires that the planning policies set out in the St Ouen's Bay Planning Framework should be adopted for the purposes of development control.  In fact, there are no policies within that framework document which specifically deal with marquees.  It appears from what we were told that policy C7 was largely neutral in relation to this particular application. 

12.      It would have been unsurprising, faced with these Planning policies, if the Planning Applications Panel had resolved that it would be inappropriate to grant any permission to Mr Malet de Carteret in relation to this venture, which is, as we have indicated, a commercial development in the Green Zone where the Plan policy required a general presumption against development and in respect of which none of the exceptions would apply.  However, no party before us suggested that the permit ought not to have been granted at all.  The Court has some reservations as to whether the recommendation to the Planning Applications Panel from the Department and indeed the decision of the Planning Applications Panel itself were wrongly influenced more by a desire to mediate between two neighbours than by assessing an application on planning principles for the public good in accordance with the Island Plan, which broadly speaking would be the statutory duty under Article 19 of the 2002 Law, but given that no party has taken the point before us, we do not think it is right to take it of our own initiative.  However, the Court is bound to have regard to the fact that there is a presumption against development in considering whether or not the Planning Applications Panel have acted reasonably in determining what conditions ought to be attached to the permit which has been granted. 

13.      In that connection we remind ourselves of the legal test which we must apply on this appeal.  The question for us is not whether a Court would have made the same decision as was made by the Panel, but whether, allowing the Panel a margin of appreciation, it reached a decision which the Court thinks is so wrong as to become unreasonable. 

The Number and Frequency of Events

14.      The Panel attached the following conditions, relevant to the objections raised by the appellant and the third party appellants:-

"1.       The functions and clearing up process shall terminate at 11:30 pm and the clearing up process shall not recommence until 9 am the next day where necessary.  On six occasions each calendar year the functions and clearing up process may terminate at 12 00 pm and not recommence until 9 am the next morning. 

2.        Taxis shall enter the site by the North West entrance and leave by the southern entrance. 

Coaches shall enter and leave the site by the North West entrance and all cars shall enter and exit the site by the southern entrance.

3.        Commencing 2010, the music level must be limited to 85dB(A) on the dance floor in the event marquee. 

The sound ceiling must be used for any amplified music and the noise limiter set at 85dB(A).  The noise limiter must not be by-passed and all forms of amplified music must be processed through the noise limiter using the sound ceiling.  

...8 (sic)          All lighting associated with the events shall be directed away from the neighbouring property to the north and shall be turned off by 12:30 am". 

15.      It is clear from those conditions that the Panel did not impose any limitation on the number of events which might be held in the events marquee in the walled garden.  Theoretically that would allow events to be held every day during the period 1st May to 31st October.  The third party appellants claimed that it was unreasonable to reach this conclusion, and that the Panel should have imposed both a restriction as to the number of events which could be held during the six month period covered by the permit and a restriction as to a time interval between each event. 

16.      It is impossible to tell from the permit that was issued why the Panel decided not to impose these restrictions.  It is clear from the reasons given in the permit itself that the Panel did consider it was important to safeguard the amenities of the neighbouring residential occupiers.  It is also plain from the minutes of the Panel's meeting on 28th January, 2010, that the question of disturbance to the neighbours was at the forefront of the Panel's consideration of the application.  Nonetheless there is no reasoning from the Panel as to why these conditions were not imposed, and the Court accordingly can only conclude either that the Panel did not address its mind collectively to the subject at all, or if it did that the reasons which it had for its decision were inadequate.  In the absence of reasons, the Court is faced either with quashing the decision made or issuing an order of mandamus requiring that reasons be given - see Caesar Investments Limited-v-Planning & Environment Committee [2003] JLR 566 at paragraph 31, approving an extract from de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed, para 9-055.  In the circumstances that both the appellant and the third party appellants need a swift answer on their appeals, the Court proposes to deal with the issue notwithstanding the absence of reasons from the Panel.  It would have been far more helpful if the Panel had given its reasons and we trust that it will do so in the future.  It is plain from the officer recommendation that the Panel ought to have paid attention to the question as to whether conditions should be attached, because the officer recommendation is one of approval, subject to conditions which would have limited the events in the walled garden to a maximum of 2 per month, with at least 12 days between events.  The Court has noted that in their letter of objection dated 17th July, 2009, the third party appellants proposed that if a permit were to be granted, the condition should be attached limiting evening events in a marquee anywhere at St Ouen's Manor to a maximum of six per calendar year, with a maximum number of one per calendar month, and with at least two weeks between each event.  The condition which the third party appellants put forward was entirely consistent with the general thrust of their objections to the proposed application which was that the consequence of a commercial development of this kind in the countryside would be a serious detrimental effect on the amenities of the area generally and upon them in particular, and if events were to take place they should at least have the opportunity to have a break between events. 

17.      The Court has also noted that Mr Malet de Carteret himself seemed to accept in his letter of 19th January, 2010. that there would be some form of condition restricting the number of events.  Having suggested that there should be no such condition, because the venues operated by Jersey Heritage at Mont Orgueil Castle, Elizabeth Castle and Hamptonne are not subject to any restrictions as to the numbers of events during the year, he concluded:-

"I request that the number of evening functions is limited to an average of one per weekend over the period (i.e. a maximum of 26) with no restrictions on the number of daytime functions"

18.      The Court has also noted that by its letter of 8th September, 2009, the Health Protection Unit in the Public Health Department wrote to the Planning and Environment Department to emphasise that the Health Protection investigation under the Statutory Nuisance (Jersey) Law 1999 had focused on noise that was actionable under that piece of legislation, namely amplified music associated with events held in the walled garden and marquee therein.  It was made plain that it was not a material statutory nuisance consideration to consider transport noise to and from events on the public highway; nor to consider the laughter, singing, raised voices or activities of patrons, guests or third parties as a material consideration under the same piece of legislation.  In the circumstances the Health Protection Unit recommended the conditions which were in fact imposed as Condition 3 on the permit, but they went further by suggesting that it would be inappropriate to leave the situation open-ended, and that it would be appropriate, through planning control, to limit the number of events held per calendar month, and to control the time separation between events, the duration of each event and in particular the closing time; the vehicle access and egress arrangements for those attending events and the permitted length of time any marquee is permitted to remain standing.  The writer of this letter was the Environmental Health Officer who also attended on the Panel, at the time the decision was taken, and it is plain from the minutes of the meeting that there was a general discussion regarding noise tolerance, so one assumes the views contained in his letter were repeated.  It is also to be noted that at its preliminary meeting held in December 2009, the Panel had also received a presentation from Messrs Stein and Farnham and indeed from Mr Ferrara as to the level of disturbance experienced by the third party appellants when events were being held.  In the circumstances there cannot have been any doubt at all about the issues which were raised for consideration.  Yet not only was no condition imposed, but no reasoning was given for the decision which was taken. 

19.      In the circumstances, particularly taking into consideration the fact that there is a presumption against development in the Green Zone, the Court considers that the decision of the Panel not to impose a restriction as to the number and frequency of events was unreasonable. 

20.      The Court was invited by Advocate Steenson, if it took the view that it was unreasonable not to have imposed a condition of this kind, to impose its own condition.  The Court undoubtedly has a power to follow this course under Article 114(8)(b) of the 2002 Law, but we have had some reservations about doing so, conscious of the fact that the Court is not a planning authority.  However, we have noted that the third party appellants would appear to accept from their contentions that there should be a time interval of not less than 12 days between each event, and we note that the recommendation from the Planning Department was that there should be no more than two events per month between 1st May and 31st October with at least 12 days between events.  In the circumstances, the Court is of the view that the Minister's decision to approve the application of Mr Malet de Carteret should be varied by including a condition which restricts the number of events to two per month between 1st May and 31st October, with at least 12 days between events.  We add that we have been advised that Mr Malet de Carteret has already taken two bookings in May and in August which are less than 12 days apart, and given that this is so, and that there is no objection from the third party appellants, the Court considers that these should go ahead, notwithstanding the condition which we direct the Minister to include. 

21.      It would not be right to leave this question of the additional condition which we have directed without saying something about the contention from Mr Malet de Carteret that the application was based upon the need to generate income to keep the Manor, now a Site of Special Interest, in good order and condition.  This was a feature which, Advocate Steenson contended, had to be balanced against the assertion by the third party appellants that they had bought a property in a quiet rural area and potentially had to face events running into the early hours of the morning with a substantial disturbance to their amenity.  Advocate Le Maistre contended that the case of Le Maistre-v-Planning and Environment Committee [2001] JLR 452 in the Royal Court provided good authority for the assertion that even if it were true that Mr Malet de Carteret needed to generate income in order to maintain the Manor, the personal circumstances of an applicant for development permission should rarely carry much weight and never be determinative of an application.  Reliance was placed in particular on paragraph 13 of the judgment of the Royal Court in that case, where the then Bailiff said this:-

"Human beings are mortal and personal circumstances may and frequently do change.  Yet land, once developed, will for practical purposes never be returned to its natural state.  The personal circumstances of an applicant for development permission should not be ignored but they should rarely carry much weight and never be determinative of an application."  

22.      That case concerned an appeal by an appellant who had been refused an application to build a bungalow on a small piece of land in the Agricultural Priority Zone.  One part of the appeal was that the appellant's wife suffered from a progressively debilitating disease, which the Committee, it was contended, should have taken into account.  Although the appeal succeeded on other grounds, the Royal Court was clear that this ground was not a good ground for appeal.

23.      We note that the Royal Court was not referred on that occasion to the English case of R-v-Westminster City Council Ex Parte Monahan and Another [1990] 1 QB 87.  In that case, the English Court of Appeal had before it by way of judicial review a decision of the local planning authority to grant the Royal Opera House, Covent Garden Limited a planning permission and listed building consent to carry out a far reaching development the central objective of which was to extend and improve the Opera House by reconstruction and modernisation to bring it up to international standards.  In order to generate the funds for the development, parts of the site were proposed to be used for the erection of office accommodation.  The applicants contended that the fact that a desirable part of a proposed development would not be financially viable unless permission were given for the other part was not capable of being a material consideration which a planning authority was entitled to take into account. 

24.      The Court of Appeal held that financial considerations could be taken into account.  The lead judgment was given by Kerr  L J, and at page 111 paragraph C he said this:-

"Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world.  It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications.  Where they are shown to exist they may call for compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest.  Virtually all planning decisions involve some kind of balancing exercise.  A commonplace illustration is the problem of having to decide whether or not to accept compromises or sacrifices in granting permission for developments which could, or would in practice, otherwise not be carried out for financial reasons.  Another, no doubt rarer, illustration would be a similar balancing exercise concerning composite or related developments, i.e. related in the sense that they can and should properly be considered in combination, where the realisation of the main objective may depend on the financial implications or consequences of others.  However, provided that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation". 

25.      Of course it does not follow that financial considerations will always provide a justification for decisions which are taken.  Where, for example, a planning permission has been granted for ulterior motives, which may be financially based, these will be impermissible - see Hall & Co Limited-v-Shoreham - by Sea Urban District Council [1964] 1 WLR 240, where a decision to impose a condition on a planning permission, that the developer construct at its own expense an ancillary road to relieve an adjoining highway which was already overloaded and due to be widened by the authority by the use of a strip of land which would otherwise have had to been acquired for the purpose, was held to be invalid.  As was said by Willmer J:-

"The defendants would thus obtain the benefit of having the road constructed for them at the plaintiff's expense, on the plaintiff's land, and without the necessity for paying any compensation in respect thereof". 

26.       Nonetheless, in the Royal Opera House case, the Court of Appeal rejected the view that financial considerations could never be relevant.  Indeed Kerr L J cited with approval a passage from the judgement of Forbes J in Sovmots Investments Limited-v-Secretary of State for the Environment [1977] QB4 11 at page 425 where he said:-

"All that the Court can do is to say that cost can be a relevant consideration and leave it to the Minister to decide whether in any circumstances it is or is not.  Of course it follows that the weight to be given to cost, if it is a relevant factor, is also a matter for the Minister and not one in respect of which any court is entitled to substitute its opinion.  I would conclude that it is impossible to say that costs can never be a relevant consideration either in a planning matter or in a compulsory purchase matter.  It can be in both or either and it will depend in every case on the circumstances of the case.  It is then a matter for the Minister to decide whether or not in any particular instance cost is in fact a relevant consideration". 

27.       In our view, as a matter of law, it was open to the Panel to have regard to a contention by Mr Malet de Carteret that it was necessary for a planning permission to be granted in order to provide an income stream for the achievement of a legitimate planning purpose, namely the maintenance of a building which was about to be listed as a Site of Special Interest, and indeed subsequently has been so listed.  However, it is important to note there is a distinction between this case and Le Maistre-v-Planning and Environment Committee, in that in the latter case, the proposal for a planning permission based on special circumstances peculiar to the applicant was one where there was no planning objective or gain from the grant of permission.  It was not a case where the grant of a permit based on the special circumstances of the applicant would secure a planning advantage which, had those special circumstances not existed, could not have been secured.  In other words, the planning permission, if granted on those grounds, would have secured an advantage to the applicant but would not have secured any planning advantage whatsoever, and in those circumstances could not rightly be treated as being a material consideration which would justify the grant of a permit.  By contrast, if the present application had been validated on the grounds that it was necessary to hold an event every other day in order to generate an income stream to maintain a Site of Special Interest, that could theoretically have been a material planning consideration which would have to go into the balance with all other material planning considerations and be given such weight as the decision taker thought was appropriate.  Thereafter the Court, if an appeal were brought, would assess the reasonableness of the decision in the usual way. 

28.      It is not clear that the Panel in fact paid much attention to the financial considerations suggested by Mr Malet de Carteret.  The minutes of the Panel meeting held on 28th January reveal that consideration was given to the assertions by Mr Malet de Carteret that it was relevant to have a level playing field between the Manor on the one part and the heritage sites at Elizabeth and Mont Orgueil Castles and Hamptonne Country Life Museum on the other.  The reasoning of the Panel does not set out in any detail the views which it held upon the remaining contentions of Mr Malet de Carteret in this respect, but it is noted that among the reasons given for the approval were "the consultations and representations received".  It has to be assumed therefore that the Panel gave some attention to this question of the need to generate income for the purposes of maintaining the Manor. 

29.      Against that background one has to look at what the evidence actually was in order to assess the reasonableness of the decision.  The only evidence appears to be a letter dated 19th January, 2010, from Mr Malet de Carteret to the Planning and Environment Department where he said this:-

"Over the past 30 years, I have invested substantial sums from my own earnings to maintain and improve the fabric of the house.  I have restored the main tower, created additional residential units, repaired the roof windows and gutters, made good the pointing and installed a heating system.  I have devoted a substantial part of my life to preserving the house for my family and for the benefit of future generations. 

I estimate that the costs of running the house and grounds (i.e. gardening, housekeeping, heating and lighting, repair and maintenance etc) are in excess of £80,000 per annum. 

I recognised at an early stage that my earnings were insufficient to fund the restoration works and maintenance.  I realised I would need to hold events at the Manor to provide an additional source of income, and, indeed, since 1978 the Manor has hosted a wide variety of events and functions.  This has become particularly important since 2004, when I retired". 

30.      The evidence for the Panel to consider therefore amounted to these statements in the letter of 19th January, 2010, coupled with the assertions at the meeting by or on behalf of Mr Malet de Carteret that it was necessary for him to have a level playing field in competition terms with the other heritage sites which we have mentioned.  

31.      Mr Mills, for the Minister, argued before us that insofar as the comparison with the other competition sites is concerned, the Minister took the view that those sites were so wholly different that they should be disregarded.  This contention was that the issue for the panel was not a matter of comparing like for like with other heritage sites because they were not comparable, and because each site had to be considered on its own merits.  The Panel had to consider the matter as planners and not as a competition regulatory authority.  We think that was absolutely right.  Although it is unclear as to the precise reasoning of the Panel, we think it would not have been proper to take into account the comparison with other heritage sites for which Mr Malet de Carteret contended before the Panel and through Advocate Steenson before us. 

32.      As to the other matter of generating income to pay for the running costs of the Manor, Mr Le Maistre, for the third party appellants, contended that there was no evidence to speak of in relation to Mr Malet de Carteret's wealth or finances, nor much evidence as to the running costs of the Manor, nor any significant evidence about the income streams which might be available from marquee events, nor indeed any rationale as to how the permit as drafted would impact upon the business which Mr Malet de Carteret wished to operate.  It is probably the case that if the Panel did take the question of the income stream into account, it did not do so by attributing much weight to this factor.  It would not have been unreasonable to approach the matter in that way.  Indeed, if anything it would be unreasonable to give any significant weight to this factor because the Panel simply did not have the full information which it needed to have if it was a factor which was to be treated as material to the application. 

The Timing Condition

33.      As indicated at paragraph 14 above, the Panel attached a condition that the functions and clearing up process should terminate at 11:30 pm and the clearing up process not recommence until 9.am the next day where necessary.  On six occasions each calendar year the functions and clearing up process may terminate at 12 pm and not recommence until 9 am the following morning.  Although the third party appellants sought some clarification in relation to this condition, they did not seek to appeal it.  It was submitted by Advocate Le Maistre however that 11:30 pm termination meant 12:30 pm in practice, and that was unreasonable.  He asserted that his clients' understanding of the condition meant that save for the six occasions each year, all persons attending the event had to be offsite by 11:30 pm. 

34.      Advocate Le Maistre submitted that the termination of the event meant that all music, and service of food and alcohol must have finished.  For Mr Malet de Carteret, Advocate Steenson did not dispute that.  The Court considers that that approach gives a proper meaning to the condition.  However it does not mean that all those attending the event must be offsite by 11:30 pm.  If that were the condition, the Panel should have attached it in those terms.  Instead, there is an assumption that within a reasonable period after the termination of the function, those attending it will have left the site, indeed because there is no reason for them to stay. 

35.      Advocate Le Maistre also sought a clarification that Mr Malet de Carteret could not hold marquee events outside the specified period and sought a direction to that effect.  Advocate Steenson submitted that we had no jurisdiction to give any such direction on these proceedings.  We think that is right and we adopt the submission of Mr Mills, for the Minister, which was to the effect that whether there is any breach of the Planning Law or any conditions which have been attached to the Planning Permit is a matter for the Minister and/or the Attorney General.  We therefore decline to give any ruling on that submission of Advocate Le Maistre. 

36.      Mr Malet de Carteret did however appeal the timing condition.  His position was that there should be a level playing field with his competitors, particularly those running the Jersey Heritage sites at Mont Orgueil and Elizabeth Castle.  The contention was that having accepted that it is right to allow this development to take place, it makes a nonsense not to allow proper competition with other venues offering the same business.  It was also contended that an extra half hour would not make very much difference to the neighbours, and in those circumstances the terms of condition 1 should be such as to require the functions to terminate at midnight rather than 11:30 pm. 

37.      There was some suggestion that the approach of the Minister to a development at Radier Manor along similar lines required a timing condition which ran to 12 midnight.  There was not however any clear indication of the position at Radier at the present time and indeed our understanding is that the Minister has an application pending which has yet to be determined. 

38.      Mr Mills, for the Minister, contended that in relation to the timing condition, the Minister could not approach the matter as one of like for like with other Heritage sites.  The nature of other sites was, he submitted, not comparable with the Manor site, and in particular the amenities of third parties, such as those who are appealing in this case, was a matter which the Minister was obliged to take into account. 

39.      In the Court's view, we have to approach this matter in purely planning terms.  We are not a competition regulatory authority.  It seems to us to be self evident that some sites in the Island will be more suitable for use for a particular business than others, and will therefore have an inherent competitive advantage, depending on the nature of the business.  We would regard it as wrong in principle to conclude that the need to ensure fair competition is a material planning consideration, although of course if there were two practically identical sites in different parts of the Island with all the same characteristics and features affecting each site, it would be inconsistent and prima face unreasonable to reach a different view in relation to a similar application on each site. 

40.      That is not the position here.  The Heritage sites at Elizabeth Castle and Mont Orgueil Castle are quite different from this site at the Manor.  In our view, the protection for Mr Malet de Carteret is that if he wishes to assert that the purpose of granting him the consent which has been granted is frustrated by attaching a condition which means that the business is not viable, he would need to provide evidence to that effect and submit an application for a variation of the condition.  If still rejected by the Minister, he would be able to appeal at that time and the Court can make its assessment on the facts which were then available as to the reasonableness of the Minister's decision. 

41.      We remind ourselves of the test on appeal which we have described at paragraph 13.  In our view this is a clear example of a case where different people might reach different views about the appropriate timing condition, all of which might be reasonable.  We cannot think that the decision of the Panel was unreasonable, especially so in the context of a request to extend a business in the Green Zone, and we therefore reject the appeal on that ground. 

The Access Condition

42.      The conditions in relation to access are set out in paragraph 14 of this judgment above.  All parties agreed that the conditions as laid down do not work, because the southern entrance access was not sufficiently wide to allow cars to enter and exit contemporaneously.  It was suggested that a one way traffic system was necessary, save in respect of coaches, which would be required both to enter and leave the site by the North West entrance. 

43.      The Court has had regard to the photographs annex to the affidavit of Mr Malet de Carteret and agrees the current condition to be unreasonable.  In the circumstances, the Court strikes down condition 2 of the permit as issued and directs that it should be replaced with a condition that achieves the following access arrangements.  Coaches should enter and leave the site by the North West entrance, and all other vehicles, including taxis, should enter the site by the North West entrance and leave by the southern entrance.  It will be for the Minister and his officials to produce the exact language which achieves the Court's directions in this respect. 

The Lighting Condition

44.      As shown in paragraph 14 of this judgment above, condition 8, which should have been numbered condition 7, requires that all lighting associated with the events should be directed away from the neighbouring property to the north and should be turned off by 12:30 am.  It was contended by the third party appellants that the lighting condition was erroneous given the termination times of 11:30 pm and midnight.  It was contended by the appellant, in the course of his submission that the permitted hours should be extended, that the third party appellants would suffer no substantive loss of amenity if the lights remained on at the Manor until 1 am.  It was contended by the Minister that the purpose of the lighting condition was to ensure that the safety of patrons after the termination of the event until they left the site, and at the same time, to provide a firm cut off time by which patrons should be off-site. 

45.      The Court is of the view that the lighting condition cannot be said in these circumstances to be unreasonable.  It is true that the organisers of events will have to be aware of the need to encourage patrons to leave the site quickly on those occasions where the event continues until 12 midnight, but that does not seem to us to be an insuperable problem.  While the Court might well have extended the lighting condition by a half hour, were it making the decision of its own initiative, it does not appear to us to be intrinsically unreasonable as it is currently framed, and we therefore do not interfere with it. 

Authorities

Planning and Building (Jersey) Law 2002.

Statutory Nuisances (Jersey) Law 1999.

Caesar Investments Limited-v-Planning & Environment Committee.

Le Maistre-v-Planning and Environment Committee [2001] JLR 452.

R-v-Westminster City Council Ex Parte Monahan and Another [1990] 1 QB 87.

Hall & Co Limited-v-Shoreham - by Sea Urban District Council [1964] 1 WLR 240.

Sovmots Investments Limited-v-Secretary of State for the Environment [1977] QB4 11.


Page Last Updated: 15 Oct 2015


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