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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Hobson -v- Minister for Planning and Fairman [2012] JRC 200 (01 November 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_200.html Cite as: [2012] JRC 200 |
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Planning - Third party appeal against the decision of the Minister dated 2nd March, 2012.
(Samedi)
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Morgan and Olsen. |
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Between |
Andrew Alvin Hobson and Maureen Audrey Hobson |
Appellants |
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And |
The Minister for Planning and Environment |
Respondent |
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And |
Bernard William Fairman and Judy Lumsden Fairman (nee Coleman) |
Applicants |
Advocate N. M. Santos-Costa for the Appellants.
Mr D. Mills for the Respondent.
Advocate J. D. Kelleher for the Applicants.
judgment
the deputy bailiff:
Introduction
1. This is an appeal by the appellants against a decision of the minister issued on 2nd March, 2012, to give permission for the development of land at Beauport Place, Le Chemin du Beauport, St Brelade by the applicants, by way of construction of a garage. Although there are 15 grounds of appeal, these were later effectively reduced to three as set out below. The development site lies in the Coastal National Park as designated by the Island Plan 2011, and as a result one of the policies which needed to be considered is Policy NE6 which contains the strongest presumption against all forms of new development for whatever purpose. The affidavit of Mr Gladwin, a senior planner at the Ministry of Planning and Environment runs to 63 paragraphs over 15 pages. There are some 11 exhibits. The second appellant has submitted an affidavit running to 47 paragraphs spread over 13 pages, to which there are 16 exhibits. Because this is a third party appeal, the applicants, as owners of the development site, were given notice of it and indicated their wish to participate in the appeal. It was perfectly obvious from reading the four lever arch files and three skeleton arguments that the hearing of this appeal would take at least a full day, and so it did. Nonetheless, it was set down as an appeal brought under the modified procedure. At the outset, we indicated that we would not necessarily follow the Court's normal policy in relation to the costs of an appeal in modified procedure cases, although we express no firm conclusion on that and have left the matter over.
2. At the outset of the hearing, two preliminary matters were raised. The appellants argued that there should be a site visit in order that the Court could properly appreciate the impact of the proposed new building from the appellants' premises. This was relevant not because the minister - and we shall sometimes refer to the minister although the decision was in fact taken by the Planning Applications Panel - was alleged to have acted unreasonably in considering that impact, but because it was not considered at all. It was contended that as the minister had an obligation to consider all material considerations, the Court had to attend on site to make an assessment of the development site from the appellants' property in order to consider whether that was in fact a material consideration. The minister and the applicants contended that it was not necessary to attend on site for this purpose. In the event, the Court decided that it would be helpful to see the development site in its physical context for the purposes of reaching a conclusion as to whether the minister's decision was or was not reasonable.
3. The second matter which was raised was a complaint by the applicants that the appellants had put up a large hoarding on their property which was contended to be in the same proportions as the proposed building which is the subject of this appeal. Objection was taken that this hoarding was not present at the time the decision to grant permission was given, and as it was the reasonableness of that decision which was relevant, we should not have regard to extraneous considerations such as a hoarding subsequently erected, which in any event was not accepted by the applicants to be in the same proportions. We accepted the submissions of Advocate Kelleher in that respect and directed the appellants to ensure that the hoarding was removed before the Court attended on site later in the day, which the appellants duly procured.
4. The planning permit indicates that permission was given by the minister for the development of land at Beauport Place by the construction of a garage. The reasons were as follows:-
"The proposed development is considered to be acceptable having due regard to all of the material considerations raised. In particular, the development has been assessed relative to its impact upon the landscape character of the Coastal National Park (against Policy NE6); its impact on the local environment and neighbouring occupiers (against Policy GD1 "General Development Considerations") and in terms of its quality design (against Policy GD7 "Design Quality").
The proposed garage, by virtue of its siting, scale, simplified flat roof form and use of material represents a satisfactory form of development which complements the established landscaping, set against the backdrop of the natural landscape of the valley, maintaining the strategic gap between Beauport Place and La Cotte View house.
The cumulative effect of the development is not considered to unduly harm or detract from the landscape character of the area or the amenity of the neighbouring residents and therefore satisfies the requirements of Policies GD1, GD7 and NE6 of the 2011 Island Plan."
5. There were a number of conditions attached to the granting of permission, none of which are directly relevant for the purposes of this appeal.
6. There was no dispute before us that the proposed new garage would cover an area of some 54.7 square metres. Additionally, there was no dispute that the current combined footprint of the appellants' property and the applicants' property is currently 517 square metres. The granted permission would therefore result in an increase in the footprint of the developed land of approximately 12.5%.
7. As Mr Gladwin set out in his affidavit, the appellants and the applicants are neighbours. To the north and south of the development site are a number of other detached residential properties. To the west lie the wooded slopes leading up to Beauport, and to the east St Brelade's Bay. The site lies within the Coastal National Park and has no other Island Plan designations.
8. The application was lodged with the Planning Department on 27th October, 2011, and advertised in the usual way. Seven letters of objection were received from four separate parties. The application was handled in a procedurally appropriate way by the Planning Applications Panel, which attended on site before reaching its decision for the reasons set out in the permit as described above.
9. Policy NE6, which all parties accepted was a material policy for the purposes of this appeal, is in these terms:-
10. In the explanatory language that leads up to the formulation of this policy there are two paragraphs which are of particular significance in relation to the Coastal National Park:-
11. The appellants' appeal was based upon three alleged failures by the Minister:-
(i) A failure to consider appropriately the planning history of the area;
(ii) A failure to consider appropriately Policy NE6;
(iii) A failure to consider all material considerations.
12. Before addressing this summary of the detailed grounds of appeal, we remind ourselves of the legal test which is to be applied. It is well established. We must apply the test as set out in Island Development Committee-v-Fairview Farm Limited [1996] JLR 306 as elaborated by the passages in the Royal Court's decision in Token Limited-v-Planning and Environment Committee [2001] JLR 698, as approved by the Court of Appeal in Planning and Environment Committee-v-Le Maistre [2002] JLR 389 and by the majority of the Court of Appeal in Trump Holdings Limited-v-Planning and Environment Committee [2004] JLR 232. We cannot escape the responsibility of forming our own view, as so directed by the Fairview Farm case. Having formed that view, we must consider then whether the Minister's decision was unreasonable in all the circumstances, "unreasonable" being assessed in accordance with the cases which we have just mentioned.
13. The adjoining properties of the appellants and the applicants once formed a single property known as Les Creux Hotel. On 30th June, 2006, the planning minister gave permission for the demolition of all structures on this site and the formation of two five bedroomed dwellings with associated car parking facilities. The permission was granted under the Island Planning (Jersey) Law 1964, on the basis of the 2002 Island Plan, when the site fell within the zone of outstanding character as defined in that Plan. The reasons for the decision emphasised that the site lay within a particularly sensitive area of the zone of outstanding character. The seventh reason indicated that planning permission had been granted on the basis that the removal of the existing buildings and the construction of two new, more attractive buildings would achieve a significant environmental improvement. Revised plans were submitted, and on 12th July, 2007, a further permit was given under the Planning and Building (Jersey) Law 2002 ("the Planning Law"). All the previous conditions were maintained. These included condition 3 on the 2006 permit which, inter alia, contained this language:-
"No changes in levels are hereby approved other than within the footprint of the proposed buildings and proposed driveways, unless otherwise agreed in writing by the development control section of planning and building services. Detailed drawings of the proposed levels of the gardens and driveways, including spot heights and cross sections, together with all means of enclosure, shall be submitted to and agreed in writing by the department prior to any works commencing on site. It is expected that existing levels will be retained as far as possible and that new structures will be minimised...."
14. The extent of the on-going control is shown by condition 5 which is in these terms:-
"Notwithstanding the provisions of the Island Planning (Exempt Operations) (Jersey) Regulations 2002, no works involving the erection of a building, extension, gate, wall, fence or other means of enclosure, tank, any excavation or the introduction of any hard standing to any ground surface other than those shown on the drawings approved with this permission is permitted without the prior approval of the Minister for Planning and Environment."
15. And also by condition 6:-
"The colour of the render to unit 1 shall be agreed with the development control section of Planning and Building Services. Thereafter only that colour may be used and no alternative colour, at any time, unless otherwise agreed in writing by the development control section of Planning and Building Services."
16. At condition 8 there were strict restrictions on demolition, building operations, fencing, burning of materials, disposal of top soil and felling of trees.
17. When the 2007 permit was given, the minutes of the Ministerial meeting contained this extract:-
"Senator Cohen informed the applicant that he would ordinarily expect similar schemes within the zone of outstanding character to achieve a minimum of 25% reduction in floor area before considering the possibility of granting permission. Although the Minister confirmed that he regarded the original application passed in June 2006 as the highest quality scheme presented to his department by a local architect during his time in office, he advised that the increased floor space which would result from the revised application represented the absolute maximum that the site could be expected to accommodate. On that basis the applicant was invited to note that further incremental applications requesting an increase in floor space were highly unlikely to be considered favourably."
18. Revised plans were submitted in July 2007 and approved on 1st August, 2007. The approval maintained the conditions, including those mentioned above, on the existing permit.
19. Further revised plans were submitted and approved in respect of the site formerly known as Les Creux Hotel in September 2008. It would appear that the further revised plans included the construction of a swimming pool, the installation of solar panels and revised landscaping fencing and terracing. Again the conditions on all the previous permits remained valid.
20. In May 2011, the applicants applied for permission for various fenestration changes and the construction of a garage on the north-west elevation. The application was considered under the 2002 Island Plan and was refused on the grounds that the proposed attached garage would result in the loss of a strategic gap between the properties and would introduce an urban element into an otherwise open coastal location, which would be dominant and intrusive and cause significant harm to the character and setting of the surrounding zone of outstanding character and to St Brelade's Bay.
21. This then was the background to the application made in June 2011, for the conversion of the lower ground floor garage and guest suite into an indoor swimming pool, the construction of a loggia, and the removal of a lower level driveway at the applicants' property, which was granted on 6th October, 2011. In other words, the applicants had applied for the construction of a garage in May 2011 and had been refused, and in June 2011 applied to convert the existing lower ground floor garage and guest suite into an indoor swimming pool, and were given permission. If that work had been carried out, then of course the applicants' property would not have had the benefit of any garage.
22. The very same day, the agents for the applicants signed a further application form for the creation of a semi-buried garage within extended landscaping. The application form was not actually received by the Planning Department until 27th October, but there is no doubt that the securing of the approval to convert the existing garage into an indoor swimming pool was but the first step in the overall scheme for the creation of a new garage on the applicants' property. The application was advertised in the usual way and objections from the appellants and others were received by the respondent. As a result, discussions with the applicants took place and revised plans were submitted. A landscape and visual impact assessment drawing was received in February 2012, and a planning department report written thereafter. This was considered by the Planning Applications Panel at its meeting on 1st March, the Panel having visited the site on 29th February, and the application was approved with four Panel members voting in support and one member voting for refusal. The minutes of the Planning Applications Panel meeting held on 1st March show that the Panel considered in this respect the planning officer's report dated 16th February, which we have already mentioned; also that the Panel received Advocate Young, then representing the appellants, objecting to the proposal, and also the Connétable of St Brelade who too expressed concerns about the size of the proposed garage, stating that it was a new building in the Coastal National Park and expressing the view that the application would result in a loss of the strategic gap between the application site and the adjacent dwelling to the north. The Panel also heard from the architects, the applicants and their legal representatives.
23. In his submissions on behalf of the appellants on this point, Advocate Santos-Costa said that the history of the site was of some importance. The development of the two houses, belonging to the appellants and the applicants respectively, was envisaged on the basis of a maximum developed footprint, such that there would be no more development on this site. Indeed, following an original approval in respect of the appellants' property in 2006, a revised plan submitted for consideration with a greater habitable space was refused in November 2006 on the grounds that the original permit had been granted in order to achieve a significant reduction in floor area and a substantial environmental improvement. He pointed out, correctly, that the planning officer's report in February 2012, which the Planning Applications Panel considered, did not contain under the heading of "relevant planning history" any references to the Ministerial decision in 2006 relating to the whole of the Les Creux Hotel site, which he submitted was even more important than Policy NE6. He pointed out that potential purchasers of properties always had their lawyers conduct searches at the Planning Department for relevant information in relation not only to the property being purchased, but also the immediate environs, and in this case, it was clear from the second appellant's affidavit that the appellants had purchased their property in October 2008 because the peaceful enjoyment of it was of paramount importance to them, and they had been advised that no further floor space would be permitted either on the property they were purchasing or on the applicants' property. She attested to the comfort which she and her husband took from the fact that the developer had had extensive negotiations with the Planning and Environment Department and that one of the reasons given for the approval of the demolition of Les Creux Hotel and the construction of the two properties was that that development achieved a significant reduction in floor area and a substantial environmental improvement.
24. There is no doubt that the previous planning history is a material planning consideration in respect of any application for development. In Trump Holdings Limited-v-Planning and Environment Committee [2004] JLR 232 the Court of Appeal accepted the submission that previous decisions were capable of being material planning considerations, and endorsed with approval the dicta in the judgment of Mann L J in North Wilts DC-v-Environment Secy [1992] 65 P&CR137 at page 145:-
25. Lord Justice Mann went on to say that it did not follow that like cases must be decided alike. All he was saying was that previous decisions were material considerations. It is the obligation of the planning minister to consider each application on its merits and a previous decision does not amount to a precedent which binds him and prevents him from giving fresh consideration to what is before him. Nonetheless what has happened previously is a material consideration which requires to be evaluated with all other material planning considerations.
26. In his written submissions, Mr Mills made all these points, but also contended that a new planning chapter had been opened in respect of the location with the replacement of the hotel by the two residential properties such that each of those two properties became a new planning unit with a different and distinct use from that which preceded it.
27. It was submitted that the real issue was whether the proposed development would cause serious harm to the landscape character of the area, which was a question of planning judgment, and it would be wrong to use the former hotel as a barometer with which to measure its impact. Mr Mills submitted that it was better for the proposed garage to be sited to the rear of the property, lowered into the site and well landscaped, rather than as in the previously refused planning application, where the garage was sited alongside the existing property.
28. In his submissions on behalf of the applicants, Advocate Kelleher contended that consistency with prior planning decisions was an important planning factor, but that did not transform previous decisions into any form of binding authority because the discretion of the minister, in this case exercised by the Panel, could not be fettered, reliance being placed on Caesar Investments Limited-v-Planning and Environment Committee [2003] JLR 566. At paragraph 74 of the Court's judgment in that case, Birt DB said:-
29. We agree and endorse that approach. Inconsistency on the part of the decision taker in planning matters is capable of being a sufficient ground for setting aside the decision on appeal under the Planning and Building (Jersey) Law 2002 ("the Planning Law") and therefore the decision taker may be required to justify any change of approach on his part.
30. In his written submissions in relation to the facts, Advocate Kelleher submitted that there were other environmental gains in the demolition of Les Creux Hotel than a mere reduction in the footprint of the building. He contended there were landscape gains including the cessation of some property to public space, and a reduction in vehicle movements as a result of the construction of two residential dwellings in place of a hotel. Furthermore, he contended that any comments made by the previous Minister in relation to further incremental applications were not directly apposite to subsequent purchasers of the two properties when different considerations might be considered to arise. The dangers of cumulative damage through incremental development were a material planning consideration, but in this case had already been recognised and considered by the respondent in making a decision to approve the development. Importantly it was submitted that a focus on comparative percentage floor areas and footprints obscured the fundamental consideration at issue in considering the effect of the development, namely the impact on the Coastal National Park.
31. There is in truth not much clear water between the submissions of all parties as to the correct approach which should have been followed, although perhaps Advocate Santos-Costa emphasised more, for understandable reasons, the need for consistency in the taking of planning decisions. In our judgment, it would have been open to the minister to take a different view from his predecessor, as is envisaged by the passage in Birt DB's judgment in the Caesar Investments case, but that departure from a previous decision does need to be justified. It follows that the previous approach ought to have been made known to the Planning Applications Panel, and this is particularly so here for two reasons - first of all because the development site falls within the Coastal National Park which is an area of great sensitivity which is subject to special protection, and secondly because the relevant previous decision was taken in the very recent past. It is probably the case that the longer the period of time between the first decision and the second, and on this hypothesis inconsistent, decision, the more likely it is that other planning considerations have advanced to the fore and the less weight the minister is likely to give to a previous decision. In this case, the change in approach over a three year period did amount to an inconsistency and there is no real explanation for it. Given all the circumstances, including the fact that the planning policy appears to be more restrictive in this zone than previously, we think this inconsistency was unreasonable.
32. We have more concern about the impact of Policy NE6, as is apparent later in this judgment. Nonetheless the inconsistency reinforces the reasons why we think that this appeal must be allowed.
33. We wish to add this in relation to the contention of Mr Mills that the previous planning permission was in relation to the Les Creux Hotel site, and now there were two different sites with a new planning chapter. The first permission which was given in June 2006 contained a number of stringent conditions. When revised permissions were given for the demolition of the hotel and construction of two residential properties, all those conditions were brought forward. Article 24(2) of the Planning Law provides that a condition attached by the minister to the grant of a planning permission binds and is enforceable by the minister against a person for the time being having an estate or interest in the land subject to the condition. In our judgment it follows that the conditions which were imposed in relation to the development of the Les Creux Hotel site continued to apply unless they are expressly revoked either by variation under Article 21, by a modification of a planning permission under Article 27 or on a fresh permission which is granted. In the case of the planning permission currently the subject of appeal, there is no reference to the previous conditions which were attached to the permit for the development of the Les Creux Hotel site and construction of the two residential properties. We think that the effect in law of Article 24 of the Planning Law is that these conditions continue to apply notwithstanding that they have not been mentioned. We express that view in the context of the submission that a new planning chapter has opened in relation to each of the two residential properties, because we do not believe that to be so as a matter of law, and if it were to be intended that the existing planning conditions should no longer apply, then the minister would have to take appropriate steps either on a separate application by the relevant property owner or pursuant to the powers under the legislation to revoke or vary conditions.
34. We now come to the second ground of appeal.
35. Advocate Santos-Costa's second main plank of appeal was that the minister was required to interpret correctly Policy NE6 which was relevant in the present case, and secondly, to provide adequate justification for deviating from that Policy where the grant of a permission would amount to such deviation.
36. In essence, the submission was that the Coastal National Park was to be given the highest level of protection where there would be the strongest presumption against all forms of new development for whatever purpose. In order to overcome that presumption, he argued, it was necessary that the application should fall within one or other of the exceptions set out in Policy NE6.
37. The minutes of the Planning Applications Panel meeting on 1st March, 2012, show that it was drawn to the attention of the Panel that the application site was located within the Coastal National Park and that Policy NE6 was relevant. The Panel noted that there was the strongest presumption against all forms of development for whatever purpose. The minutes show that the Panel was advised that it was considered reasonable to permit small scale extensions to residential buildings in the Coastal National Park as long as the extensions did not unduly harm or detract from the landscape character of the area, and where the cumulative visual impact of the development of the property was not damaging to the wider landscape. The minutes show that the Department's view was that the siting, scale and simplified flat roof form of the proposed garage and the use of material represented a satisfactory form of development set against the backdrop of the established landscaping, the cumulative effect of which would not unduly harm or detract from the landscape character of the area in accordance with Policy NE6. The minutes also show that Advocate Young submitted on behalf of the appellants that the proposed development was contrary to Policy NE6. The Connétable of St Brelade addressed the Panel quoting extensively from this and other policies and the minutes show the Connétable's assessment that the application contravened this Policy. The minutes go on to show that the Panel was addressed by the applicants' architect, who said that the department did not believe that the application contravened any of the relevant Island Plan policies, and the Panel was also addressed by the applicants' lawyer, Advocate Philpott, who said it was clear that the application was in accordance with the relevant plan policies, describing the scheme as a relatively minor application for a small garage within the domestic cartilage, which would have little visual impact.
38. The summary of the departmental recommendation is repeated in the minutes of the Panel meeting. The department's expressed view was that it was reasonable to permit small scale extensions to residential buildings in the Coastal National Park where the extensions did not unduly harm or detract from the landscape character of the area and where the cumulative visual impact of the development of the property is not damaging to the wider landscape.
39. The proposed new garage would be sited some distance away from the house which forms part of the applicant's property. It is clearly not an extension. That this is so can be illustrated by comparison with Policy NE7 which applies in the green zone, as opposed to Policy NE6 which applies the Coastal National Park. There is under Policy NE7 a general presumption against all forms of new development for whatever purpose, but the exceptions include development where the scale, location and design does not unreasonably harm the character of the area, not only for domestic extensions and alterations of an existing dwelling but also for limited ancillary and incidental buildings within the curtilage of a domestic dwelling. The difference between the two policies in the different zones shows that real meaning must be given to the use of the word "extension" in Policy NE6, where there is no provision for new development amounting to limited ancillary or incidental buildings within the curtilage of the domestic dwelling.
40. In the planning officer's report which the Panel considered, when referring the Policy NE6, the officer referred to certain types of development being permissible, including extensions to existing dwellings which do not by their size, design or appearance cause serious harm to the landscape character of the area. The officer in his report went on:-
"Outbuildings are not specifically listed but a small scale ancillary development on an existing site, their impact in principle may be similar to that of an extension to a dwelling. A judgment has to be made on whether a specific proposal will have a damaging impact on the Coastal National Park."
41. It is clear that although there is express acknowledgement that outbuildings are not amongst the matters listed in the exceptions in Policy NE6, the impression left with the Panel from the case officer's report was that Policy NE6 was nonetheless not infringed by this proposed development. Indeed in his oral submissions, on behalf of the minister, Mr Mills said that the plan should be read not so as to prohibit all forms of development in the Coastal National Park because there would be instances, perhaps the construction of a potting shed or the laying of hard standing, where it could not be said to be a failing on policy to give permission. Mr Mills asserted that the case officer was indicating that this application was in the nature of an extension and the judgment call should be made against the purpose and intent of the plan. He went on to submit that even if this garage were built, the total area of built land would provide a smaller footprint than in 1999, and therefore the permissions granted were still consistent with the objective of reining back from the position at that time. The key considerations he said were the intent and purpose of the policy and the impact on landscape character.
42. On behalf of the applicants, Advocate Kelleher submitted that Policy NE6 was a broad statement of policy which ought not to be read as a statute. He submitted that effectively there was a hierarchy in relation to the presumptions - the strongest presumption was against new development on an undeveloped site (which this was not) and there was a strong presumption against redevelopment of a developed site. Looking at that hierarchy, it was right therefore to say that the exception in Policy NE6 relating to extensions should be read as permitting ancillary building within the residential curtilage, which amounted to the same thing as an extension. There was no material difference between an extension and an ancillary building and it was simply an "oversight" not to mention in the exceptions in Policy NE6 the possibility of ancillary buildings being constructed. There would be no logical reason, he submitted, why the fact that a new building was joined to an existing building by only a scintilla of cement should be permitted as an extension, but if sited two feet away, would not.
43. The Court is in no doubt that this proposed garage is not an extension to an existing building. It is an ancillary building. As a result, the proposed development is contrary to the terms of the Island Plan Policy NE6. Article 19 of the Planning Law does not prevent the minister from granting a planning permission that is inconsistent with the Island Plan, but it does require that the minister does not grant such permission unless satisfied that there is sufficient justification for doing so. There is nothing in the paperwork before us which suggests that the Panel ever contemplated that the application was outside the terms of the Island Plan. The minutes of the Panel meeting suggest that the Panel was apprised of assertions by the department and the applicants that the proposal fell within the terms of Policy NE6, as well as contentions from the appellants and the Connétable of St Brelade that it did not. The reasons for the decision included the requirement for landscaping to be consistent with Policy NE6, and the safeguarding of visual amenities in accordance with Policy NE6. The planning permission indicates that Policy NE6 was satisfied by the application. In our judgment, this was an unreasonable conclusion. This was not an extension, and Policy NE6 does not include ancillary buildings which are not extensions. It was accordingly outwith the terms of the Policy. As the Panel does not appear to have considered that it was outside the terms of the Policy, it unsurprisingly did not provide any sufficient justification for granting planning permission despite that fact. All the preliminary language at paragraphs 2.55 to 2.71 of the Island Plan go to emphasise the need to prevent any development in the Coastal National Park subject to the exceptions which are to be found in Policy NE6. We think Policy NE6 does distinguish between new development and redevelopment. On balance, this application for the construction of a garage seems to us to be a redevelopment - but even so, there is a strong presumption against redevelopment taking place. It is therefore necessary to bring this application within one of the exceptions if it is to be treated as falling within Policy NE6, and for the reasons we have given, we do not think it is possible to do that. Accordingly, the Panel's decision to grant consent was unreasonable.
44. We were shown a draft supplementary planning guidance in respect of Policy NE6 dated May 2012. The draft is out for consultation. At paragraph 6.3.7 of the draft, under the heading "Extension to Existing Residential Buildings", the minister appears to be consulting on this guidance:
"Whilst not explicitly referred to in Policy NE6, proposals to extend dwellings by the provision of ancillary buildings and structures, such as garages and outbuildings (which are not in the form of extensions to the principal dwelling house) should be considered in the same manner as extensions, where the key test will be the impact upon landscape character. As with extensions, the larger that ancillary buildings and structures are the greater their impact is likely to be."
45. In essence, it would appear that, perhaps with this draft supplementary planning guidance in mind, this was the test which the planning officials and the Panel applied. Whilst it would not be right to describe such supplementary guidance at this stage as unlawful, it would be right to say that it is hard to see how supplementary guidance can possibly be consistent with the terms of the plan policies. It is certainly the case that supplementary guidance can explain how the Island Plan policies are to be construed and how they are to work, but it does not seem to us that supplementary guidance can overturn the Plan policy itself. It follows that if the States have approved Policy NE6 upon the basis, as we have found, that the first exception does not apply to ancillary buildings, it would not at first glance be open to the minister to reverse that decision of the States on his own and determine, even after consultation, that the word "extension" included ancillary buildings
46. It is trite planning law that in making a planning decision, the minister must take into account all material considerations. In this respect, a material consideration is the impact of a particular building on neighbouring properties. Advocate Santos-Costa, on behalf of the appellants, submitted that the Panel looked at the gap between the proposed new garage and the appellants' property, but did not visit the appellants' property and therefore did not consider the impact of the building from his clients' premises. In particular, he submitted that the view from his clients' dining room would be seriously impacted, and that cars driving up the drive at night would have their headlights shining directly into the main bedroom of his clients' property.
47. In her affidavit, the second appellant contends that the proposed garage would be seen from many rooms within the appellants' property, including the lounge, kitchen and master bedroom, and from the main entertaining areas in the appellants' garden. The impact of a garage further up the driveway of the applicants' property would result, she asserted, in increased noise pollution for the area in general and in particular in relation to her property, because noise would be amplified by the backdrop of the cotil.
48. We note from the minutes of the Planning Application Panel meeting that the Panel was advised by the applicants' architect that the proposed garage would be 2.3 metres away from the boundary. Although it was described by the architect as a small scale structure, the internal floor area was proposed to be 50 sq. metres.
49. The planning official's report concluded that in his view the proposed garage would not impact upon the amenity of the neighbouring residents. The Department of the Environment Report contained this information:-
"Whilst the concerns of the neighbouring residents are acknowledged and notwithstanding the willingness to remove the aforementioned steps, the application site presently contains an extensive tiered landscaping area which extends across the width of the rear of the plot and provides an elevated area of amenity space from which an outlook is available to the north, south and east. Therefore given the established nature of this outlook and the modest area and inability to access the flat roof it is considered unreasonable to resist the present proposals based upon a potential loss of privacy.
50. Neither the planning officer nor the Panel considered the development from the appellants' property. This is not in dispute. However, in his affidavit, the first applicant says at paragraph 36:-
"... the parapet height of the garage is 2.8 m and the adjoining extant planting is approximately 2.5 m high. The intention is to screen fully the garage by vegetation, something which it is anticipated will be achieved following two growing seasons. The Appellants' view towards this part of Beauport Place will then be of vegetation only. In the premises there is materially little difference from the view now and what will be the view once the new garage is constructed."
51. Later in his affidavit, at paragraph 60, the first applicant says this:-
"The allegation that the proposed garage will have a detrimental impact on the Appellants' privacy is completely unfounded. The proposed new garage cannot be seen from the street or from high up above on the cotil (because of its "green" roof). Immediately upon completion of building works, the Appellants will only be able to see approximately one metre at the top of the side of the garage and this view will be completely screened by planting within two growing seasons. Furthermore, if the garage were not to be constructed and, hypothetically, all the existing planting removed, then the only new view that would present itself to La Cotte View House is our back garden. In that hypothetical situation the Appellants would not even benefit from extra sunlight as the height of the cotil to the south side prevents this."
52. As far as the allegation of the appellants that cars driving up the drive will cause attendant disturbance to them, the first applicant said:-
"It is important to bear in mind that it is only my wife and I who will be using the proposed garage. The garage is only large enough to house two cars so any future successors in title will also be restricted to parking two cars in the garage. I therefore do not believe that the levels of noise, fumes or intrusive headlights will adversely affect the Appellants as they claim."
53. These contrasting claims were relevant considerations for the minister when considering this application. The Court is not saying that whenever a particular application comes in, it is routinely necessary for a visit to be made to the adjoining property by the minister or the Panel, but it does appear to us that perhaps in this case it might have been desirable for at least the case officer to have visited the appellants' property in order to assess the impact of the proposed development on that property. It was undoubtedly intended to be a reasonably substantial structure with a footprint of some 50 sq. metres, and it was to be constructed within a couple of metres or so of the boundary line.
54. The Court was left with the impression that the impact on the neighbours' property may not have been fully taken into account. It is not necessary to reach a firm conclusion on that point because the development permission must be set aside for the reasons that we have already given.
55. We feel obliged to say that we have some sympathy for the applicants. They submitted an application in the spring of 2011, and when it was refused, the covering letter from the Planning and Building Services Department offered a meeting to discuss the options of repositioning and redesigning the garage, perhaps to the rear western elevation. The application which was ultimately approved was the product of further discussions between the applicants, their architect and the planning officers, and as far as we can tell, the applicants have acted in good faith throughout, as indeed have the appellants.
56. Nonetheless, the appeal succeeds because the Planning Applications Panel on behalf of the minister has granted a planning permission for a development which was inconsistent with the Island Plan 2011, albeit the Panel did not recognise that this was so and did not justify any departure from the Plan. Given the planning history of both this site and the neighbouring site, the need to have close regard to the Island Plan and to all material planning considerations was self-evident, but it seems that this was overlooked, especially insofar as Policy NE6 was concerned. This was unfortunate, because it is clear that the greatest care needs to be taken where an application site lies within the Coastal National Park, such that very high levels of protection are given to it and there is a strong, sometimes the strongest, presumption against development. We suspect from the material which we have seen that the planning officers considered that the scheme currently under appeal was a considerable improvement on an earlier scheme, and therefore that it ought to be recommended for approval - and indeed that approval be given. If that were the approach, we think it was the wrong one. The test on each application is not a comparison with what has gone before on the basis that any improvement suggests a consent, but rather, in accordance with Article 19 of the Planning Law, whether the proposal is consistent with the Island Plan and is appropriate given all material planning considerations, or whether a permission can be justified despite inconsistency with the Island Plan.
57. For all these reasons the permission granted to the applicants cannot stand, and in accordance with the Court's powers under Article 114(8) of the Planning Law, we order the minister to cancel his decision. We add that we have considered whether simply to remit the matter to him for reconsideration but we do not think that would be the right course to adopt. First of all, the appeal has succeeded on more than one ground. Secondly, and more importantly in this case, the appellants bought their property in October 2008 in circumstances where the minister's approach to any further development of the footprint of both their house and that of the applicants was clear. They were entitled to rely upon it for at least the immediately foreseeable future. Yet here we are, only three to four years later, and the minister has taken a different approach as though this is a new planning chapter. We do not think that is fair.
