Jersey Unreported Judgments

[2010]JRC103

royal court

(Samedi Division)

3^rd June 2010

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Morgan and Fisher.

 

The Appellant appeared in person.

Advocate C. R. Dutôt for the Minister of Planning and Environment.

The Applicant was represented by its Chief Executive, Major Stephen Coleman.

judgment

the commissioner:

1.        This is a third party appeal by the appellant, who we will refer to as "Mr Farina", against the decision made by the Planning Applications Panel (by way of delegated authority from the respondent to whom we shall refer to as "the Minister") on 15^th December, 2009, to approve an application by the applicant, which we will refer to as "the JSPCA", in respect of its Animals Shelter at 89 St Saviour's Road, St Helier. 

The Application

2.        The Animals Shelter is accessed from St Saviour's Road where there is a visitors' car park and hospital reception and administration centre.  Electronically controlled gates allow vehicle access up past (in turn and on the left) a kennel block, an open air exercise yard, a 1938 grooming and small animals building and finally two dog kennels.  Mr Farina owns 20 Beaulieu Park which is immediately adjacent to the two dog kennels.  To the right of the dog kennels is a car park ("the upper car park").  The site also contains a nursery building and cattery block. 

3.        The application of the JSPCA was as follows:-

(i)        To create a new three storey building in the upper car park;

(ii)       To create a new car park and covered exercise yard (with an overspill car park) in place of the existing 1938 building and open-air exercise yard. 

4.        The JSPCA have engaged Agora Management ("Agora"), accepted by Mr Farina as specialists in the construction and development of veterinary animal welfare facilities, to advise on the development.  In their supporting information document, Agora explained the need for this re-development.  There had been a marked increase in pet ownership (consistent with that seen in the UK and Ireland) and as a consequence of disclaimed animals.  Re-housing these animals had stretched the current facilities and much needed kennels and cat facilities were taken up by housing the rapid increase in rabbits, guinea pigs, hamsters, rats and ferrets, amongst other small animals.  The new three storey building would comprise a secondary reception and waiting area, housing for smaller animals, a new veterinary facility, educational and training facilities and (on the third floor) a café with a balcony facing towards Mr Farina's property (and that of his neighbours). 

5.        The purpose of the development, according to the JSPCA, is to improve the management of the site and in particular to consolidate visitor movements.  The coffee shop, as well as providing an opportunity for the JSPCA to gain additional funds would have, it says, the advantage of keeping the visitors on site to consider their re-homing options and for staff to use, which would cut down on travel and traffic movements to and from the centre.  The new building, being for small animals, will not generate any noise and the covered exercise yard will greatly benefit neighbours in terms of noise mitigation. 

6.        The States of Jersey investigated the possibility of relocating the Animals Shelter in 1994.  The States minute of 26^th July, 1994, describes the difficulties of finding an acceptable alternative site in the Island as "legion".  The Island Development Committee at the time was influenced by two factors - firstly that the kennels could be re-built and the activity actively managed in such a way that the existing levels of disturbance were reduced and secondly that on a survey of residents living close to the Animals Shelter it was found that as many as 87% preferred to live next door to the Animals Shelter rather than see the site developed for housing.  89% of residents did not believe that the noise caused excessive discomfort.  Accordingly, the Committee decided to allow investment to be made in the refurbishment and development of the Animals Shelter at its existing site rather than the establishment of a new shelter elsewhere in the Island, with the intention that in the design of improvements the opportunity to reduce noise was taken. 

7.        Noise created by barking dogs became a concern to Mr Farina in 1998/9 when consent was given for the construction of the two dog kennels adjacent to his property, in what was previously the site of a cattery.  Strong objection was made particularly to the second kennel, but the sub-committee dealing with that application was persuaded by the advantages of the "newer style kennel block" in terms of both noise mitigation and animal welfare and the actions the JSPCA said it would take to deal with animal behavioural problems.  Mr Farina acknowledges that these measures have achieved some success, although he says that noise has recently become more of a nuisance. 

History of the application

8.        The application was originally submitted on 28^th January, 2009, in which it was proposed that the new building be erected on the site of the 1938 building, thus very close to Mr Farina's property and those of his neighbours.  The Planning Department expressed concern about the proposals and following a period of negotiation, amended plans were submitted on 28^th August, 2009, which were re-advertised.  In addition to moving the proposed new building to the upper car park, and thus further away from the neighbouring properties in Beaulieu Park, the height of the building had been reduced by being set lower into the ground and certain design changes had been made so as to reduce the building's impact and improve its appearance.  The application was recommended for approval by the Planning Officer on 23^rd October, 2009, and referred to the Planning Applications Panel for determination.  The panel undertook a site visit on 11^th November, 2009, and held a Planning Applications Panel meeting on 12^th November, 2009, which was attended by a resident from Beaulieu Park, namely Mr P Livesey, as well as Deputy S. Pitman, who spoke against the application.  The application was deferred as the panel members wanted clarification on the levels of the site relative to the proposed building and the neighbouring properties and to give any interested parties further opportunity to scrutinise the plans.  The information on levels was duly provided by Agora and updated plans submitted, with the application being re-advertised on 20^th November, 2009. 

9.        In a report dated 30^th November, 2009, the Planning Department recommended approval of the application subject to certain conditions.  At that stage only one third party letter of objection had been received from Mr and Mrs P Livesey, who lived at 27 Beaulieu Park, whose concerns related to the potential for the new building to overlook their property and the noise level that might emanate from the covered exercise yard. 

10.      Mr Farina wrote to the Department on 8^th December, 2009, when he expressed the following concerns:-

"2.  The existing dog kennels were converted from a cattery in 1999, and while some sound insulation was incorporated, it was agreed that this was insufficient (on its own) to prevent barking being a nuisance; this was due to the proximity of the kennels to my property.  As a consequence a compromise was reached whereby the insulation would be supplemented by careful management of the dogs by the Shelter.  While this was achieved with some success, in recent times the noise has become more of a nuisance.  The problem has arisen because the Shelter has been unable to relocate nuisance dogs due to lack of space.  In 1999 the Shelter stated that due to lack of funding the then development was the best solution, but if further funding were available they would provide more specialist kennels, more appropriately positioned, and specifically for problematic dogs.  This does not appear to have been considered in the proposed development. 

3.  Part of the management strategy originally employed by (sic) the Shelter was to limit activity at the top of the site to prevent excessive barking.  The impact of the completed development will directly affect the enjoyment of my property.  The Planning Department informs me that such an impact assessment has not been fully considered; for example they were unable to tell me whether the existing kennels have a direct line of sight with the proposed new building. 

4.  In light of the recent barking problems and the proposed new development it would seem appropriate that the Shelter review the strategy for the management of nuisance dogs, and that it be placed on a more formal basis before any planning approval is granted.  I suggest that this can only be properly achieved through consultation with neighbours." 

11.      On 10^th December, 2009, Mr Farina and three of his neighbours at Beaulieu Park wrote a letter to the Planning Department in identical terms, raising concerns as to noise emanating from the covered exercise yard, the potential for the new building to overlook their properties and the noise that might emanate from that new building.  The letter concluded as follows:-

"To conclude:-

The proposals show that there is a potential to create prejudice to ourselves by the overlooking and noise of the café and terrace into our bedroom and that of our neighbours, despite being situated at the other end of the site. 

Therefore, we have no alternative but to object on the grounds of noise and overlooking prejudice due to the second storey elevation being formed of glazing and open-ended terrace as well as the canopy over the yard." 

To his letter Mr Farina had added in manuscript "Please add the above concerns to those expressed in my previous letter." 

12.      On 10^th December, 2009, Agora wrote to Mr Farina, dealing in part with an issue over the potential use of the party wall which had concerned the neighbours, stating as follows:-

"I note that you have some further concerns with regard to any implications the new building has on the existing kennels.  The answer to that question is apart from some noise during the construction period, which will be managed by the JSPCA, there will be no effect from light, noise or movement created by the new development once it is completed.  In fact, the whole idea of the new development is to improve the services offered by the JSPCA. 

I would certainly bring your attention to the fact that I do believe that some misleading information has been forwarded to you.  The roof over the covered way will in fact improve on noise retention when the dogs are exercising in the outside runs, this is the whole idea of the development, as I have stated before, to improve the situation." 

13.      The application was considered again at the Planning Applications Panel held on 15^th December, 2009.  At this hearing, Mr Farina and his three neighbours were represented by a chartered surveyor, Mr B Livesey.  The minutes of the meeting record the submissions made to the Panel as follows:-

"The Panel heard from Mr. B. Livesey, Director, N.S.J. Chartered Surveyors, who represented the residents of numbers 20, 25, 26 and 27 Beaulieu Park.  Mr Livesey drew the Panel's attention to the recommendation for approval from the Planning Department and the conclusions of officers that the proposed development would not have an unreasonable impact.  Mr Livesey advised that he wished to present information to the contrary.  With regard to the inclusion of a café, Mr Livesey expressed the view that the floor area of nearly 2,000 square feet, including indoor and outdoor space, made for a sizable commercial café.  He expressed the view that the café and shop should be contained so that they would not become a destination in their own right.  The proposal was seen to be an over-intensification and would create a noise element that would be harmful to residents.  Mr Livesey stressed that, should the development be approved, a condition should be applied which would limit the hours of use or type of use.  Mr Livesey had regard for condition 7 of the officer report and policy guidance note 24, and stated that the residents believed that the third floor of the proposed building would provide a substantial increase in noise levels.  Mr Livesey questioned the accuracy of the officer report with regard to proximity to the nearest residential area, siting (sic)it at 50 metres, rather than 70 metres.  He also sited (sic) noise from the covered kennel run and the level of acoustic insulation. 

Mr Livesey also expressed concern with regard to overlooking and stated that the 2-metre obscure glazed screen to the north elevation would be of some benefit to number 20 Beaulieu Park, but not to the other properties.  With regard to the scale and massing of the building, Mr Livesey asked the Panel to note a plan of the building and to consider its relationship with number 20 Beaulieu Park.  Mr Livesey stated that the residents would request the Panel to reject the application.  

The Panel received the Chief Executive of the J.S.P.C.A. Major S. Coleman, the Chairman of the J.S.P.C.A., Mr N. Blampied, the applicant's agent Mr A. Darvill, and architect, Mr P. Emerson.  Major Coleman advised that the building had been constructed in 1938 and had outlived its useful life.  He advised that the proposed new building would be open between 8 a.m. and 5 p.m. 7 days per week.  With regard to the proposal to include a café, he considered that animals were more likely to be re-homed in a shorter time-span if people were able to discuss the possible adoption in a comfortable location.  It was considered that this would have the added benefit of reducing vehicle movements, as the discussion and decision-making process would often take place on site.  He advised the Panel of the work which had gone into developing the scheme, which would be suitable for the needs of the J.S.P.C.A. going forward. 

Mr Emerson stated that work had been ongoing in respect of the scheme for 2 years.  The building had been repositioned, redesigned and remodelled to lessen the impact and sunk into the ground by 750 millimetres to reduce its height.  As a result of the comments raised by neighbouring residents, a privacy screen had also been included.  The proposed covered run for exercising animals had been closed in with insulation and the side louvre windows would have acoustic baffles at the windows.  Mr Emerson advised that the windows were solid fixed, and that he would be content for them to be double glazed although he did not consider this to be necessary.  He stated the building was very inward looking with the focus being upon the animals.  

Mr Darvill advised that he specialised in the design of these types of buildings and that the focus was to lessen their impact.  Mr Blampied then advised the Panel of the history of the site, outlining the J.S.P.C.A.'s 30 year unsuccessful search to find an appropriate alternative site, which lead (sic) to the need to develop the site in St Saviour's Road, as agreed by the States.  Development had accordingly begun in 1994 and proposals had now been put forward for this particular scheme, which would allow for an increase in the number of animals on site over the next 50 years." 

14.      These minutes show Mr Livesey seeking the rejection of the whole application essentially on the grounds set out in the letter of the 10^th December, namely noise emanating from the covered exercise yard, the potential for the new building to overlook the neighbouring properties and the noise that might emanate from that new building.  There is no minute of Mr Livesey raising the effect of the new building and in particular the café on the dogs in the existing kennels, although Mr Farina told us that he had made reference to it.  Certainly those representing the applicant did not appear to have understood this as an issue as they did not address it in their submissions to the Panel. 

15.       Having heard these submissions, the Panel then put the application to the end of the agenda so that it could take time to consider the letters of objection that had been written since the scheme had been re-advertised, which we presume would have included Mr Farina's letters of 8th and 10th December, 2009. 

Planning permit

16.      Permission was granted to the application subject to the following conditions (in so far as they are relevant to this appeal). 

"....

4. The canopied run/overspill car park shall only be used for exercising animals outside the hours of 1800-0800 Monday through to Sunday. 

....

7. Noise from the unit should not exceed a noise rating curve equivalent to the background level (measured as L90 dBA and measured in the same location) measured 1 metre from the boundary of the nearest affected domestic dwelling or commercial property. 

...

10. The café hereby approved shall only operate between 0800-1700 hours Monday through to Sunday. 

11. The windows on the north elevation of the canopied covered run shall be constructed with double glazing." 

17.      The reasons for approval were stated as follows:-

"REASON FOR APPROVAL:  The proposed development is considered to be acceptable having considered the Jersey Island Plan 2002 and all other material considerations.  In particular, the development has been assessed against policies G2 and G3 of the 2002 Island Plan and it is considered that the proposal would not have an adverse impact on the character or appearance of the area.  In addition, the objections raised to the scheme on grounds including an increase in noise and loss of privacy have been fully assessed.  However, it is considered that the proposal accords with the terms of policy G2 (ii) of the 2002 Island Plan, in that it does not have an unreasonable impact on neighbouring uses." 

Island Plan Policy

18.      In his affidavit of 11^th March, 2010, Mr Jonathan Gladwyn, a senior planner of Planning and Building Services, informed us that the site is located within the Built-up Area as designated by the Island Plan and that within this Built-up Area, there is a general presumption in favour of development.  The principal planning policies as noted in the planning permit are Island Plan Policies G2 and G3, which are in the following terms:-

"Island Plan Policy G2

This sets out general development criteria which apply across the Island to all types of development.  The listed criteria include, amongst other considerations, the following two criteria which concern the need for applicants to demonstrate that a proposed development:-

(i) will not unreasonably affect the character and amenity of the area;

(ii) will not have an unreasonable impact on neighbouring uses and the local environment by reason of visual intrusion or other amenity considerations. 

Island Plan Policy G3 - Quality of Design

Policy G3 states that 'a high standard of design that respects, conserves and contributes positively to the diversity and distinctiveness of the landscape and the built context will be sought in all developments'.  This is judged against a series of criteria, the following two criteria being the principal considerations in this case:-

(i) the scale, form, massing, orientation, siting and density of the development, and inward and outward views;

(ii) the relationship to existing buildings, settlement form and character, topography, landscape features and the wider landscape setting;"

Grounds of appeal

19.      The grounds of appeal filed by Mr Farina were drawn in very wide terms, including an assertion that the Minister had failed to take into account adequately or at all his human rights, but at the hearing Mr Farina had very helpfully reduced his submissions by way of a written skeleton argument, the central thrust of which was that the Panel had not considered the effect of the café and the associated extra parking on the dogs in the existing kennels, for which it should have procured an impact assessment from a suitable independent expert.  In essence, the noise from the café and the flow of people going to and from the new building past the dog kennels would potentially disturb the dogs, causing them to bark, and thus creating a nuisance to him and his neighbours.  This potential nuisance was a relevant matter into which the Panel had not made proper inquiry.  He cited in support the following passage from Taylor-v-Island Development Committee (1969) JJ 1267:-

"It is the duty of the Committee, when considering any application, to make proper enquiry into all matters relating thereto which are, or which may be, relevant and of which it has knowledge.  Where relevant matters are submitted on behalf of the applicant, so that the Committee has knowledge of them, it must, unless it has already accepted the interpretation placed upon those matters by the applicant, make proper enquiry into them."

20.      Mr Farina also submitted that certain manifest omissions and inconsistencies to which we will come shortly did not allow the Panel to come to a proper decision on this application.  

Legal test

21.      The well established legal test set out in Token-v-Planning and Environment Committee [2001] JLR 698 is as follows:-

"The Solicitor General submitted that the decision in Fairview Farm did not entitle the Court to find that the Committee's decision was reasonable but quash it because the Court had reached an equally reasonable but different decision.  We agree.  The Court might think that a Committee's decision is mistaken, but that does not of itself entitle the Court to substitute its own decision.  The Court must form its own view of the merits, but it must reach the conclusion that the Committee's decision is not only mistaken but also unreasonable before it can intervene.  There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simply mistaken.  To put it another way, there is a margin of appreciation before a decision which the Court thinks to be mistaken becomes so wrong that it is, in the view of the court, unreasonable."

Minister's and Applicant's case

22.      Miss Dutôt accepted that potential nuisance created by noise was a relevant issue for the Panel to inquire into, but it had done so.  She pointed out that Agora were acknowledged specialists in this field and one of the aims of the development was to reduce activity on the site by retaining clients going through the re-homing process.  Major Coleman explained to us that the main visitors' reception would remain where it is presently situated and access through the electronic gates to the new building thus controlled.  Whereas at the moment cars drive past the dog kennels in order to enter into the upper car park, they would now park before reaching the kennels.  He explained the construction of the existing kennels and confirmed that there was no line of sight between them and the new building and that as confirmed by Agora "there would be no effect from light, noise or movement created by the new development once it is completed."

23.      Miss Dutôt submitted that Mr Farina's letter and the impact of the development had been considered by the Panel at its meeting on 15^th December, 2009.  Proper advice had been taken, in particular from the Health and Social Services Department, who had raised no concerns.  Although Health and Social Services Department make no reference in their advice to the impact of the development upon the dogs in the kennels, they omitted to do so according to Miss Dutôt, because it was not regarded as an issue, and this could be confirmed in writing.  Seeking a further letter from Health and Social Services was not a matter however which in our view we could pursue.  In the absence of an application to adduce further evidence, we were bound to consider the appeal on the basis of the information before the Panel on the 15^th December, 2009. 

24.      The café was located on the third floor of a building which itself could only be accessed through controlled gates and it would not become a destination in its own right.  However, the Minister would have no objection to conditions being imposed, as recommended to the Planning Department by PSD Highways in their letter of the 9^th October, 2009, to ensure that both the café and the veterinary facilities remained ancillary to the operations of the Animals Shelter.  Miss Dutôt suggested the following wording:-

"The café shall not be used or occupied or permitted to be used or occupied otherwise than in conjunction with and ancillary to the operations of the Animals Shelter".  

Similar wording could be used in relation to the veterinary facilities.

25.       In her view and that of the applicant, the Panel's decision was entirely reasonable. 

Decision

26.      We accept the proposition (following Taylor and as applied in Dunn & Others-v-Minister for Planning and Dandara [2009] JRC 237) that when considering any application it is the duty of the Minister or those acting on his behalf to make proper inquiry into all matters relating thereto which are, or which may become relevant and of which he or they have knowledge, whether those relevant matters are submitted on behalf of the applicant or a third party, the purpose being to ensure that he or they have sufficient information to make the decision.  His or their duty is not to make all possible inquiries into a relevant matter but "proper" inquiries, i.e. inquiries that are appropriate and proportionate to the circumstances.  Miss Dutôt accepted that a potential nuisance created by noise was a relevant matter for the Panel to consider and the issue therefore is whether the Panel made proper inquiry into it. 

27.      Mr Farina submits that the Panel was duty bound to commission an impact assessment on the effect of the new building on the existing kennels (obscured as that issue appears to have become at the Panel meeting) from an expert in that field, such as Agora, but independent of the applicant.  At the very least, the Panel should have referred the matter back to the Health and Social Services Department for its specific advice.  We disagree for the following reasons:-

(i)        The applicant had engaged an acknowledged expert in the field, Agora, and its advice was that there would be no effect from light, noise or movement created by the new building once completed. 

(ii)       The Panel had considered the issue of the impact of noise by imposing conditions restricting the use of the café and the covered exercise area effectively to the daytime. 

(iii)      The applicant submitted and Agora advised (see letter of 13^th October, 2009,) that one of the benefits of the scheme was to reduce vehicle movements to and from the site.  It was self evident to us that moving the car parking to a position below the dog kennels would reduce vehicle movements past those kennels. 

(iv)      Whilst the new building might give rise to an increase in pedestrian traffic past the kennels, those pedestrians would be out of the line of sight of the dogs in the kennels. 

(v)       Agora had advised, and again it seemed to us self evident, that covering the open air exercise yard would reduce noise when dogs were being exercised.  Mr Farina concedes as much in paragraph 61 of his affidavit of 6^th April, 2010. 

(vi)      We had serious doubts as to whether the potential impact of the new building on the dogs in the existing kennels was capable of expert assessment.  Whilst an expert can no doubt monitor the current vehicle and pedestrian flows past the kennels, on what basis is an expert to assess how and to what extent those flows will change once the development is completed?  It would seem self evident that vehicle flows would reduce, but by how much would pedestrian traffic increase and if it did so, what effect would it have on the dogs in the kennels?  Quoting from the article:- "Excess barking; a more complex problem than it would appear" by Dick Murray appended to Mr Farina's affidavit:- "Barking is not a steady, easily monitored noise like the hum of an air-conditioning plant, or the rumble of a diesel train, or the blast of an airliner taking off".  As he says, barking noise can be intermittent or episodic and is "particularly difficult for nuisance inspectors to assess".  

28.      In our view Mr Farina's real complaint lies against the decision of the Island Development Committee to permit the construction of kennels so close to his home.  The measures taken by the JSPCA to reduce noise emanating from those kennels have not, he says, been successful.  His real aim is to have the kennels wholly enclosed; something which the JSPCA say would be detrimental to the welfare of the dogs (see the letter from the Planning and Building Services of 24^th October, 1999).  That is what Mr Farina's letter of 8^th December, 2009, on its true construction, sought to achieve but this was not a consideration urged upon the Panel on 15^th December, 2009, and it would not have been a reasonable condition for the Panel to have imposed in the context of this application. 

29.      In our view, it was reasonable for the Panel to have proceeded on the basis of the information before it and without commissioning further expert advice. 

30.      We turn now to what Mr Farina described as the manifest omissions and inconsistencies which he submits prevented the Panel from coming to a proper decision on the application. 

31.      Mr Farina criticises the lack of response of the Panel to the concerns expressed by Andrew Raeburn, Planning Officer, in his letter of 27^th March, 2009, to Agora over the "proposed use of the building and parking requirements."  However, as Miss Dutôt pointed out, this letter was in response to the first application which had the new building located close to Mr Farina's property and that there then followed a process of negotiation with the Planning Department which led to the second application, which addressed all of the concerns of the Planning Department, which it supported. 

32.      Mr Farina challenges the advice given by the Planning Department in its report of 30^th November, 2009, as follows:-

"That the proposed café and shop would be used in their own right, the intention being to provide a complementary service for the people whilst they contemplate the adoption of an animal.  The shop would only sell small animal related items such as leads, collars, dog bowls etc." 

Mr Farina pointed to a Jersey Evening Post article of 18^th December, 2009, in which Major Coleman was quoted as saying:-

"We see the café as a major means of fund raising". 

In his view this supports his fear that the café will become a commercial enterprise in its own right.  We do not find Major Coleman's comment in any way incompatible with the assertion by the JSPCA that the café will be an ancillary activity.  Indeed, the article starts with the following:-

"Islanders looking to adopt an abandoned animal will soon be able to think about the decision over a cup of tea". 

Furthermore, as Miss Dutôt pointed out, access through to the new building will be through an electronic gate controlled by the main reception and the café is situated on the third floor of that building.  We agree that it is most unlikely that it will ever become a venue in its own right, although we think the matter should be put beyond doubt by the imposition of the conditions suggested by Miss Dutôt. 

33.      Mr Farina criticises the lack of response of the Panel to Mr Livesey's submission at the Panel meeting of 15^th December, 2009, that the correct noise limit was not adopted.  The Planning Department's report of 30^th November, 2009, had recommended a condition in relation to noise, which the Panel subsequently imposed; see condition 7 set out in paragraph 16 above. 

The minutes state that Mr Livesey referred the Panel to the Planning Policy Guidance 24 (Planning and Noise) in force in England, Annex 5 of which provides that:-

"1. Type of limit

Depending on circumstances, it may be appropriate to set either:-

(a) an absolute limit based on the average level of noise which should not be exceeded in a specified time period;

(b) a relative limit based on the permitted increase in noise level with respect to the background level.  This is the approach used in BS 4142:1990." 

Although it is not clear from the minutes, we are told by Mr Farina that Mr Livesey advised the Panel to take the first option and impose an absolute limit.  These are technical matters on which we are not equipped to opine, but in any event, as Miss Dutôt pointed out, the Guidance referred to has no application in Jersey and the Panel cannot be criticised for following the technical advice of its own officers, which was in turn based on the advice of the Health and Social Services Department. 

34.      Mr Farina submitted that the number of extra car parking places provided by the development remained uncertain.  Miss Dutôt was able to clarify the matter to the extent that there was any uncertainty, namely that there will be 55 parking spaces under the new scheme, as against the 35 existing spaces - an increase of 20 car parking spaces.  We do not regard this as relevant to the issues under the appeal. 

35.      Finally, Mr Farina submitted that there was no clear reason given for not implementing the three conditions recommended to the Planning Department by PSD Highways in their letter of 9^th October, 2009, as follows:-

"Policy

The animal shelter site is very constrained with a relatively low provision of visitor parking, and only 3 additional spaces proposed in the re-development.  To ensure that incremental increased use of the site does not lead to traffic and parking problems, it is recommended that consideration be given to conditioning the permit to prevent an increase in vehicular movements and parking demand.  The café and shop should be conditioned such that they do not become a destination in their own right, but support facilities for the sites primary and existing uses.  The veterinary facilities should also be conditioned again, such that they could only be used in connection with the primary and existing use of the site." 

As mentioned above, the Minister has no objection to conditions being imposed to ensure that the café and veterinary facilities remain ancillary.  The first proposed condition relating to preventing an increase in vehicular movements and parking demands (apart from being based on an apparent misunderstanding as to the number of new spaces being provided) lacked sufficient certainty to be enforceable.  It was no doubt for this reason that the Planning Department did not recommend the imposition of a condition of this kind to the Panel and the Panel cannot now be criticised for failing to impose it. 

36.      In conclusion, we find that the Panel had the information before it necessary to reach its decision and that, applying the Token test, the decision was neither mistaken nor unreasonable.  We therefore confirm the decision of the Panel save to the extent that we think that it would be helpful for the two conditions relating to the café and the veterinary facilities being ancillary to the operations of the Animals Shelter to be imposed, to which the Minister has no objection and we so order.  

Authorities

Taylor-v-Island Development Committee (1969) JJ 1267.

Token-v-Planning and Environment Committee [2001] JLR 698.

Dunn & Others-v-Minister for Planning and Dandara [2009] JRC 237.