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A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

  • demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision

  • providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 26 September 2016:

Decision Reference:    MD- PE- 2016 – 0120

Decision Summary Title:

Appeal Decision – La Reserve, La Grande Route de Faldouet. St. Martin JE3 6UG

Date of Decision Summary:

7 September 2016

Decision Summary Author:

Principal Planner (Policy)

Decision Summary:

Public or Exempt?

Public

Type of Report:

Oral or Written?

Written

Person Giving

Oral Report:

 

Written Report

Title:

Report to the Minister for Planning and Environment

Date of Written Report:

5 September 2016

Written Report Author:

D A Hainsworth LL.B(Hons), FRSA. Solicitor

Written Report :

Public or Exempt?

 

Public

Subject:

Appeal under Article 108 of the Planning and Building (Jersey) Law 2002 against a refusal to grant planning permission at La Reserve, La Grande Route de Faldouet. St. Martin JE3 6UG P/2016/0332

Decision:

The Minister allowed the appeal in part and a variation of the decision has been made. The Minister hereby grants permission to develop land under Article 116 of the Planning and Building (Jersey) Law 2002 in respect of the following development; Demolish dwelling and construct dormer bungalow.

 

This permission is granted subject to compliance with the following conditions and approved plans:

  1. The development shall commence within five years of the decision date.

Reason: The development to which this permission relates will need to be reconsidered in light of any material change in circumstance. 

 

B.  The development hereby approved shall be carried out entirely in accordance with the plans, drawings, written details and documents which form part of this permission.

 Reason: To ensure that the development is carried out and completed in accordance with the details approved.

 

1. Waste management shall be implemented in full accordance with the approved Waste Management Strategy. Any variations shall be agreed to in writing by the Department of the Environment prior to the commencement of such work.

 

2. No part of the development hereby approved shall be occupied until the vehicular manoeuvring area and car parking spaces have been laid out, surfaced and drained as indicated on the approved plans. The manoeuvring area shall thereafter be retained solely for the manoeuvring of vehicles. The car parking spaces shall thereafter be retained solely for the use of occupants of the development and shall not be sub-let for any other purpose.

 

3. The garage shall not be used for any purpose other than those incidental to the enjoyment of a dwelling house but not including use as living accommodation.

 

4. Prior to commencement of the development hereby approved, a scheme of landscaping shall be submitted to and approved in writing by the Department of the Environment. The scheme of landscaping shall provide details of the following; i)  all existing trees, hedgerows and other plants, walls, fences and other features which it is proposed to retain on the site; ii)  the position of all new trees and/or shrubs, this must include the species of plant(s)/tree(s) to be planted, their size, number and spacing and the means to be used to support and protect them; iii)  other landscape treatments to be carried out including any excavation works, surfacing treatments, or means of enclosure; iv)  the measures to be taken to protect existing trees and shrubs; v) the presence of any invasive plant species on site, and if present, a detailed method statement for the removal and long-term management/ eradication of the species; and, vi)  A landscape management plan for the maintenance of the landscaped areas. Once agreed, the approved scheme shall be implemented in full and thereafter retained and maintained as such.

 

5. Prior to commencement of the development hereby approved, details of any earthworks which involve changes to existing levels on the site shall be submitted to and approved in writing by the Department of the Environment. These details shall include the proposed grading and mounding of land, including the levels and contours to be formed, showing the relationship of any new site levels to existing site levels and vegetation, and the placement of fill material on the site. The scheme shall be carried out in accordance with the approved details unless otherwise agreed in writing by the Department.

 

6. Notwithstanding the provisions of the Planning and Building (General Development) (Jersey) Order 2011 (as amended), or any further amendment to or replacement of that order, no works shall be carried out to extend the dwelling or to create a new window or door opening above ground-floor level in the dwelling or to install a dormer window or a sky-light in the dwelling unless a planning application has been previously submitted to and approved by the Department of the Environment.

 

7. Prior to commencement of the development hereby approved, a Demolition/ Construction Environmental Management Plan shall be submitted to and approved by the Department of the Environment. The Demolition/Construction Environmental Management Plan shall be thereafter implemented in full until the completion of the development and any variations agreed in writing by the Department prior to such work commencing. The Plan shall secure an implementation programme of mitigation measures to minimise the adverse effects of the proposal on the environment, and shall include but not be limited to:

 

A. A demonstration of compliance with best practice in controlling, monitoring, recording and reporting on any emissions to the environment (such as noise and vibration, air, land and water pollution);

 

B. Details of a publicised complaints procedure, including office hours and out of hours contact numbers;

 

C. Details of any proposed crushing/ sorting of waste material on site;

 

D. Specified hours of working;

 

 

E. Precise details of the proposed parking of vehicles of site personnel, operatives and visitors (to include any temporary access arrangement off La Grande Route de Faldouet); loading and unloading of plant and materials and the storage of plant and materials used in constructing the development.

 

Reasons:

1. To protect the amenities of the occupiers of neighbouring properties and the visual amenities of the surrounding area, in accordance with Policies GD1 and WM1 of the Adopted Island Plan 2011 (Revised 2014).

 

2. To ensure that the development provides adequate provision for off-street parking and manoeuvring for users of the site, in the interests of highway safety and the general amenities of the area, in accordance with Policy GD1 of the Adopted Island Plan 2011 (Revised 2014).

 

3. To ensure that the development provides adequate provision for off-street parking and manoeuvring for users of the site, in the interests of highway safety and the general amenities of the area, in accordance with Policy GD1 of the Adopted Island Plan 2011 (Revised 2014).

 

4. To safeguard the character and appearance of the area in accordance with Policies GD1, NE1, NE2 and NE4 of the Adopted Island Plan 2011 (Revised 2014).

 

5. To ensure that the benefits of the approved landscaping scheme are carried out and completed, making a positive contribution to the amenities of the site in accordance with Policies GD1, GD7, NE1, NE2 and NE4 of the Adopted Island Plan 2011 (Revised 2014).

 

6. To ensure that adequate private amenity space and car parking/circulation areas are retained within the curtilage of the dwellings in accordance with Policy GD1 of the Adopted Island Plan 2011 (Revised 2014).

 

7. To ensure the development does not have an adverse impact on public health or the wider environment, in accordance with Policies GD1, GD6 and WM1 of the Adopted Island Plan 2011 (Revised 2014).

 

Informative

The permission hereby granted confers authority for the development of land solely and entirely within the legally defined boundaries of the application property known as La Reserve. Any development that encroaches onto, over or under the boundary of the property is not authorised by this permission and any such works may result in the permission being rendered null and void.

For this reason, it is recommended that the legal boundary to the application property be fully established prior to any works commencing and that if the boundary differs from that indicated on the planning application, the Department be contacted for further advice.

 

Approved Plans:

 

Location Plan

Design Statement

Proposed Site Plan P51

Proposed Ground Floor Plan P1

Proposed First Floor Plan P2

Proposed East and North Elevations P3

Proposed West and South Elevations P4

Proposed Roadside Elevations P6

Proposed Section P5

Waste Management Plan

 

 

Reason for Decision:

The Minister agrees with the recommendation of the Inspector as detailed within his report dated 5 September 2016.

Resource Implications:-

None

Action required:

Request the Judicial Greffe to inform interested parties of the decision.

Signature:

Deputy S Luce

 

 

 

Position:

Minister

Date Signed:

 

 

Date of Decision (If different from Date Signed):

Hide report
La Reserve, La Grande Route de Faldouet, St. Martin: Planning Application: (P/2016/0332): Appeal Decision

Inspector’s Report – Appeal by Mr & Mrs G Powell – Ref. P/2016/0332

PLANNING AND BUILDING (JERSEY) LAW 2002 (as amended)

 

Appeal under Article 110(2)(a) against a decision made under Articles 19(4)(b) and 23 to attach a condition to a grant of planning permission

 

REPORT TO THE MINISTER FOR THE ENVIRONMENT

 

made under Article 115(5)

by D A Hainsworth LL.B(Hons) FRSA Solicitor

the inspector nominated under Article 113(2) from the list of persons appointed under Article 107

__________________________________________________________________

 

Appellants:

 

Mr & Mrs G Powell

 

Application reference number and date:

 

P/2016/0332 dated 17 March 2016

 

Decision Notice date:

 

21 April 2016

 

Site address:

 

La Reserve, La Grande Route de Faldouet, St Martin JE3 6UG

 

Development approved:

 

“Demolish dwelling and construct 1 No. two storey, three bedroom house.”

 

Condition appealed against:

 

“6. Notwithstanding the provisions of the Planning and Building (General Development) (Amendment No. 2) (Jersey) Order 2015, or any amendment to or replacement of that order, no works involving the erection of a building, extension, structure, gate, wall, fence or other means of enclosure, tank, conversion of garages or lofts, the creation of any new openings in the external fabric of the building (or the replacement of any windows with doors or vice versa), or the introduction of any hard standing to any ground surface, is permitted without the prior written approval of the Department of the Environment.”

 

Inspector’s site visit date:

 

9 August 2016

 

Hearing date:

 

11 August 2016

__________________________________________________________________

 

Introduction and procedural matters

  1. Planning permission P/2016/0332 was granted by the Department of the Environment on 21 April 2016 under delegated powers. It authorises the demolition of the detached bungalow on the site and its replacement by a two-storey, three-bedroom house. The permission is subject to two standard and seven other conditions.
  2. This is an appeal by the applicants against Condition 6, the terms of which are set out above. The reasons given in the Decision Notice for Condition 6 are as follows: -

“6.   To ensure that adequate private amenity space and car parking/ circulation areas are retained within the curtilage of the dwellings [sic] in accordance with Policy GD1 of the Adopted Island Plan 2011 (Revised 2014).”

  1. At the hearing, the Department added three further reasons for Condition 6, namely (i) the protection of neighbours’ amenities, (ii) the protection of the Green Zone and (iii) the Department’s objective of controlling all further development on the site that would otherwise be permitted by the General Development Order. 
  2. Article 23 of the 2002 Law requires a condition to “fairly and reasonably relate to the proposed development”.  The Department informed the hearing that their practice in meeting this requirement is to apply six tests, namely that the condition should be - (i) necessary; (ii) relevant to planning; (iii) relevant to the development to be permitted; (iv) enforceable; (v) precise; and (vi) reasonable in all other respects. There is no dispute that Condition 6 meets tests (ii), (iv) and (v).
  3. The Planning and Building (General Development) (Amendment No. 2) (Jersey) Order 2015, which is referred to in Condition 6, is a further amendment of the Planning and Building (General Development) (Jersey) Order 2011. Condition 6 should have quoted the 2011 Order, which remains in force as amended, since it is the principal Order and the one that grants planning permission for the works referred to in the condition.   

Description of the site and its surroundings

 

  1. The site is in a row of residential properties to the east of the village centre. It is in the Built-up Area for planning purposes. The site and the properties to the west of it in the row do not have a direct vehicular access to La Grande Route de Faldouet; instead they share a narrow rear access track, which joins a tarmac road that connects with La Grande Route de Faldouet at the western end of the row. The junction between the track and the tarmac road is difficult to negotiate because of its width and alignment.
  2. The track terminates at the site and the site’s rear boundary runs next to farmland, which is in the Green Zone. The property on the western side of the site is Roseland, which is a detached bungalow; Les Cerises, a detached dormer bungalow, is on its eastern side. Part of the site lies between the rear boundary of Les Cerises and the farmland.

Details of the approved development

  1. Although the approved development is described in the Decision Notice as the demolition of the detached bungalow on the site and its replacement by a two-storey, three-bedroom house, the new dwelling is not in fact described as having two storeys in the planning application. It is accurately described in the Department’s Officer Assessment Sheet as a dormer bungalow.
  2. The new dwelling will be sited so as largely to maintain the present staggered frontage here that Roseland, the existing bungalow and Les Cerises have to La Grande Route de Faldouet.

The case for the appellants

  1. The appellants indicate that the existing bungalow is substandard and that the new dwelling will occupy a similar footprint. In their view there is no design context calling for Condition 6. They state that permitted development rights have not been withdrawn on the site previously and they point to other instances of residential development having been approved in the vicinity in recent years without the withdrawal of permitted development rights.
  2. The appellants maintain it is unreasonable that nearby dwellings have domestic features that the condition would exclude on the appeal site without planning permission having been specifically obtained. Finally, they indicate that having to apply for permission for the range of works included in the condition will encourage complaints.

The case for the Department of the Environment

  1. The Department indicate in their Appeal Statement that the permission was granted after issues arising in previous applications had been addressed, including the impact on adjacent properties, and an appropriate balance achieved. They therefore consider it is necessary to remove permitted development rights so that the new dwelling cannot be altered and extended without further approval, so as to maintain this balance and ensure that any additional development does not have a detrimental impact, particularly on neighbouring properties and the site itself.

Representations made by others

  1. The occupiers of Roseland wish to see Condition 6 retained. They maintain that without it they would have no right to object to structures being built that were too close to their boundary or reduced their right to light, or affected their enjoyment of their property in other ways. 
  2. The occupiers of Les Cerises also wish to see Condition 6 retained. They want the Department to oversee any proposals for further development, because they are concerned about development taking place too close to their boundary, which they state was the case in a previous proposal that was refused planning permission.

Inspector’s assessment

  1. The restrictions imposed by Condition 6 are far-reaching. They require the occupiers of the new dwelling to obtain planning permission for a wide range of works that householders in general, and other householders in this locality, can carry out when they want to as far as planning controls are concerned, subject only to the limitations and conditions set out in the Order. It seems to me that the purpose of the Order is to give householders freedoms from detailed planning controls, subject to standard limitations and conditions that protect neighbours’ amenities and the environment to the extent that is generally considered necessary. In my opinion, conditions withdrawing these freedoms need to be justified by exceptional circumstances if they are to meet the Article 23 requirement to “fairly and reasonably relate to the proposed development”.
  2. The reasons given by the Department for Condition 6 have not been stated consistently. I have, however, taken them all into account – that is to say, those recorded in the Decision Notice, the additional ones given at the hearing and those set out in the Department’s Appeal Statement (see paragraphs 2, 3 and 12 above).
  3. The Department’s objective of controlling all further development on the site that would otherwise be permitted by the Order is unsupportable in my view. Withdrawals of permitted development rights should in my opinion be targeted at specific identified problems and be supported by clear evidence of harm to amenities or the environment, which the limitations and conditions in the Order would not adequately address and which are sufficiently serious to give rise to exceptional circumstances.
  4. There is also no force in the Department’s assertion that Condition 6 is needed in order to protect the land adjoining the site which is in the Green Zone. No evidence has been produced to support this assertion. Planning permission would be required before any development could extend from the site into the Green Zone.
  5. I turn now to the assertion in the Decision Notice that Condition 6 is needed in order to ensure that adequate car parking/circulation areas are retained within the curtilage of the new dwelling. I have described the arrangements for access in paragraph 6 above and I have no doubt that the constraints I have referred to make it essential that the new dwelling has enough parking spaces and enough circulation space to enable drivers to turn so that they can enter and leave the site in forward gear.
  6. The arrangements for car parking and circulation are shown on the approved plans and Condition B requires the development to be carried out in accordance with those plans. Condition 2 is as follows and Condition 3 controls the use of the garage.

“2.   No part of the development hereby approved shall be occupied until the vehicular manoeuvring area and car parking spaces have been laid out, surfaced and drained as indicated on the approved plans. The car parking spaces shall thereafter be retained solely for the use of occupants of the development and shall not be sub-let for any other purpose”. [There is a defect in this condition, which I have returned to in paragraph 24 below].

  1. It is therefore an unnecessary duplication [subject to paragraph 24 below] for Condition 6 to impose additional controls to ensure that adequate car parking/ circulation areas are retained within the curtilage of the new dwelling.
  2. The other element of the reason given in the Decision Notice for Condition 6 is that it is needed in order to ensure that adequate private amenity space is retained within the curtilage of the new dwelling. The Order permits incidental structures and house extensions to be erected within the curtilage of a dwelling, but it imposes a limit on the amount of land that can be used for these purposes. This is not a small plot; it is in fact about the same size, or larger, than the others in the row. The new dwelling will have enough amenity space around it after the approved car parking and circulation areas have been retained for those purposes, even if the limit imposed by the Order is reached at some time in the future. The withdrawal of permitted development rights is not necessary in order to ensure that adequate private amenity space is retained.
  3. The remaining reason put forward for Condition 6 concerns the protection of the amenities of the occupiers of Roseland and Les Cerises. The Order already protects them by imposing various limitations and conditions on the kinds of work that would be permitted development within the curtilage of the new dwelling, but as I indicated in paragraph 9 above, the three dwellings would not have a uniform building line. The possibility arises therefore that, notwithstanding the protections in the Order, the amenities of Roseland and Les Cerises could be adversely affected by permitted development. Examples are (1) alterations or extensions to the western elevation of the new dwelling that affect the privacy of Roseland’s front garden or have an impact on Roseland’s kitchen window and (2) alterations or extensions to the eastern elevation of the new dwelling that affect the privacy of the rear garden of Les Cerises and its nearest rear windows. To my mind, these are exceptional circumstances that justify a limited and targeted withdrawal of permitted development rights, i.e. one that is much more focussed than Condition 6. Policy GD 1 of the Island Plan lends support to this approach, since it seeks to protect neighbours’ living conditions against development that would unreasonably harm their amenities.

Inspector’s conclusions

  1. I have therefore come to the conclusion that Condition 6 should be replaced by the condition recommended in paragraph 25 below. I mentioned in paragraphs 20 and 21 above that there is a defect in Condition 2. This is the failure to require the vehicular manoeuvring area to be retained as well as the parking spaces. The omission can be corrected by substituting the revised condition specified in paragraph 25 below.

Inspector’s recommendations

  1. I recommend that, in exercise of the power contained in Article 116 of the Planning and Building (Jersey) Law 2002 (as amended), the appeal should be allowed and the planning permission P/2016/0332 granted on 17 March 2016 for development at La Reserve, La Grande Route de Faldouet, St Martin JE3 6UG, consisting of the demolition of the existing dwelling and the construction of a new dwelling, should be varied by replacing Conditions 2 and 6 by the following revised conditions: -

“2.   No part of the development hereby approved shall be occupied until the vehicular manoeuvring area and car parking spaces have been laid out, surfaced and drained as indicated on the approved plans. The manoeuvring area shall thereafter be retained solely for the manoeuvring of vehicles. The car parking spaces shall thereafter be retained solely for the use of occupants of the development and shall not be sub-let for any other purpose”.

“6.   Notwithstanding the provisions of the Planning and Building (General Development) (Jersey) Order 2011 (as amended), or any further amendment to or replacement of that Order, no works shall be carried out to extend the dwelling or to create a new window or door opening above ground-floor level in the dwelling or to install a dormer window or a skylight in the dwelling unless a planning application has been previously submitted to and approved by the Department of the Environment”.

Dated 5 September 2016

 

D.A.Hainsworth

Inspector

1.

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