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David & Goliath – round 3 the battle between the developer, the planning department and the home owner

Planning matters often give rise to lengthy acrimonious disputes between planners, developers and aggrieved neighbours.

Greg Herold-Howes of Viberts discusses one such case involving the development of a historic tower and its perceived impact on a neighbouring 19th century cottage.

The Keppel Tower case has been going on for several years and is now the subject of two successful third party appeals brought by the owner of Seymour Cottage, Mary Herold. This week the Royal Court issued its judgement in the second of Mrs Herold’s appeals and the decision provides some helpful guidance on the application of planning policy for developers and affected parties alike.

Background

Seymour Cottage sits on the coast of Grouville Bay to the south of the development site. Within the northern part of the site is Keppel Tower, a Grade 3 listed Conway Tower. The development proposed comprises multiple blocks of apartments either side of the tower. If approved, one of the blocks would border Seymour Cottage.

Mrs Herold’s first appeal succeeded because the Court agreed with her that the Minister had acted unreasonably by failing to take into account that Seymour Cottage was a ‘potentially listed building’ and therefore subject to the protection offered to listed buildings and their settings by Island Plan Policy HE1. Amongst other things, the Minister argued that Policy HE1 was not relevant to mere ‘potential’ listings, but the Court disagreed.

Had it not been for the failure to consider the cottage as a historic building, Mrs Herold would have lost her appeal.  Despite the Court agreeing with Mrs Herold that the development was “too big for a rural parish”, it decided that excepting the Policy HE1 failure the decision to grant permission was within what is known as the Minister’s ‘margin of appreciation’ as to what is reasonable.

Keeping between the margins

Given the complexities of the Island Plan it is inevitable that development policies will pull in different directions. A proposed development might comply with some policies and yet be contrary to others. In deciding whether planning permission should be granted or refused, the decision maker has to consider and weigh factors such as the importance of relevant policies and the extent of any apparent compliance or breach. The margin of appreciation permits decision makers to look at the overall impact of a plan and, if justified, to grant permission even when certain policies are not fully satisfied.

The second appeal

Following the first appeal, the developer commissioned a report which effectively concluded that the setting of Seymour Cottage (now a Grade 4 listed building) would not be adversely affected by the development. Unaltered plans were submitted in reliance on that new report.

However, in the light of the Court’s ruling, the Historic Environment Team (HET) on behalf of the Planning Department also carried out an appraisal of the impact on Seymour Cottage and other listed buildings in the area. The HET concluded that the plans did not comply with Policy HE1 and would have a detrimental impact upon the setting of Seymour Cottage.  Certain steps were recommended to mitigate the impact, including a reduction in the mass and scale of the block bordering the cottage. The developer chose not to alter the plans to the extent proposed by the HET or to address similar objections filed by members of the public. The Minister ordered that a scaffold profile be erected on site so that he could envisage the impact for himself. After visiting the site he suggested minor amendments to the plans, which still did not address the concerns of the HET.

Planning permission was granted. The Minister concluded that the development accorded with a number of Island Plan policies and that any “minor adverse impact” upon Seymour Cottage was acceptable due to the positive benefits to Keppel Tower.

On appeal Mrs Herold invited the Court to conclude that in the light of the public opposition and the HET’s repeated concern that the development did not comply with Policy HE1, the decision to approve the development was outside the margin of appreciation afforded to the Minister.

As in the first appeal, the members of the now differently constituted Court stated that had they been deciding the application themselves, they would unanimously have refused it. However, they accepted that this was not the test and went on to consider whether the decision was within the Minister’s margin of appreciation. Policy HE1 expressly provides that proposals which do not “preserve or enhance” the setting of a listed building “will not be approved”. The Court found that the impact upon the setting of Seymour Cottage was not minor and because manifestly the setting was not being preserved or enhanced, the development was contrary to Policy HE1. There was no apparent justification to depart from the policy, it being held unacceptable to attempt to justify harm to one listed property by enhancements to another. In these circumstances, the appeal was allowed to succeed.

What is the lesson?

This case underlines the importance of presumptions within the Island Plan and specifically those relating to historic buildings. Approximately 4,000 buildings are listed in Jersey as having historic interest. We all know that listing creates restrictions for owners but this further appeal makes it clear that listing also provides useful protections against potentially harmful changes to a building or its setting.

It is unlikely that this will be the end to the story. Indeed, the Court envisaged that “this site will still be developed for many residential units of accommodation”. The developer now has to decide whether and how to amend the plans to ensure consistency with the Court’s ruling and the policies of the Island Plan. Interestingly, the appeals process has now been modified so that future appeals will be determined under a new streamlined procedure, limiting the nature of referrals to the Royal Court. We are yet to see what impact this will have on the ability of affected parties to challenge planning decisions. That will be a topic for another day.

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