News and Insights
28 September 2016
In March 2015 Jersey’s planning laws were substantially amended in an attempt to make the planning appeal system easier, cheaper and more accessible for those aggrieved by planning decisions.
Under the old system appeals were usually heard before the Inferior Number of the Royal Court. The strict test applied by the Royal Court made it difficult to successfully appeal a decision taken by the Minister for Planning and the Environment (the “Minister”). It was not enough simply to persuade the Court to disagree with the decision of the Minister. Appellants had to show that the decision was not merely wrong but that it was unreasonable, as the Minister was given a “margin of appreciation”.
The old system required appellants to be familiar with the complex rules relating to development and was undoubtedly daunting, not least because to take an appeal to full hearing was expensive. Moreover, the Royal Court was not able to make orders for costs, as is done in most litigation. The Minister would always be represented by Advocates experienced in matters of planning law and the complexities of the law required litigants in person to address even complicated legal arguments. Appellants often had no choice but to instruct lawyers. This meant that successful appellants were left with bills for thousands of pounds.
The new process is a cheaper, more streamlined and certainly less daunting way of appealing certain planning decisions about which one is aggrieved.
Cases are assessed by an independent inspector who directs the process and, having heard from all parties (either on the papers or by way of a hearing at which the parties will be legally represented), will make a recommendation to the Minister. The new system would also appear to be more democratic, as unelected members of the judiciary are no longer directly involved in the appeal process.
Eligibility to appeal
You may appeal a planning decision in a number of situations; for example if:
- You have been refused planning or building permission;
- You disagree with a condition attached to a planning or building permission;
- You have an interest in land within 50m of the application site and you have made a written representation about the application during the 21 day notice period;
- You have had a stop or enforcement notice served upon you; or
- You own or occupy a building or land where a building, place or tree has been listed, or the delisting of such features has been refused.
The appeal process
How to appeal - applications should be made to the Judicial Greffier, who now administers the appeal process.
Why appeal? To secure a review of the decision on its merits – the reasonableness test is not used by the Inspector.
When to appeal - you must give notice of your appeal to the Judicial Greffier within 28 days from the date of the planning decision which is being appealed.
- Appeals are submitted to the Judicial Greffier, who will allocate an independent inspector.
- Inspectors are chosen from a panel of qualified and experienced inspectors who are recruited by the Judicial Appointments Committee.
- The inspector chooses whether the appeal will be in the form of written submissions or by convening a hearing for interested parties.
- The inspector’s decision will be in the form of a recommendation to the Minister as to whether the appeal should be allowed or not.
- The inspector’s recommendation is not binding.
- The Minister’s role has been changed in that he no longer participates in first tier decision making in planning applications.
- The Minister is the ultimate decision maker on planning appeals and must give an explanation if he does not follow the recommendation of the inspector.
Timescale & costs
There is a targeted 10 week turnaround on appeals.
All parties are expected to bear their own costs. Inspectors have no power to award costs. The charges will be as follows:
- In case of refusals to grant or vary planning permission - £300 for major development and £100 for minor development
- Third party appeals - £300
- All other appeals - £100
Is the new system working?
Based on the increased number of appeals being filed, the new system certainly seems to be more accessible. 55 appeals were filed in the first year of the new system compared to roughly one appeal per month over the previous three years. Some appeals relate to controversial, high profile developments e.g. Gas Place, Esplanade and La Collette. The costs of running an appeal against large scale developments such as these would have been substantial (and irrecoverable) under the old system.
So far the Minister appears to have followed the recommendation of the inspector in the majority of cases.
Given the greater accessibility of the new system developers might submit less ambitious/controversial plans as they will be aware that their applications are more likely to be challenged.
Judicial review remains available if one party is aggrieved by the Minister’s decision. This is a complex area of law and the decision to begin a judicial review requires advice on the merits, and a focus on the long term outcome risks.
If you have a planning related grievance and would like legal advice on appealing a planning decision, Viberts have an experienced team which can help. The system has been improved but it always makes sense to seek professional guidance on how to advance the available arguments so that they achieve the most impact.