News and Insights
28 September 2016
You have bought your beautiful home with a fantastic rural outlook but has the conveyancer done their job?
You have moved in, unpacked the boxes and had friends round for the housewarming. One morning you are enjoying your freshly ground coffee on your sun kissed veranda and thinking how lucky you are to have such a beautiful view. Then all of a sudden you spill your mocha as diggers rumble across the field next to you and start excavating footings for a new development. How could this happen?
There are risks for the unwary. To guard against these risks, all lawyers in Jersey routinely contact public service bodies and the Parish in which the property is located as part of the conveyancing process.
Search replies will identify the property’s connection to the drains, water, gas etc. It is important that the property has all the necessary rights to be connected to these services. The reply from the Planning Department will show what consents have been issued in respect of your new home.
The Planning Department’s standard reply already provides a list of all consents given on a property under the planning laws during at least the past eight years. Building permission under the Building Bye-Laws is also included in the search replies. Unless personal conditions are attached, planning consents are granted to the property, not the owner. The scope, precise wording, and conditions of these consents, all matter. Your lawyer may sometimes need to seek clarification from the Department, or arrange a review of the approved drawings. It is important to be sure that the structures and uses which exist on the site have consent, or the purchaser could be at risk of enforcement action being brought, which could ultimately result in the structure’s removal, uses being discontinuing and consequential financial loss.
Planning’s search reply may also indicate the Island Plan zone which applies, the property’s historic building status, whether any special policies apply, whether it is sited in a conservation area, tourist destination area or other special area. These definitions mean very little to the uninitiated, but are the keys to policy decisions by the States of Jersey, which will apply in the event of the purchaser (or neighbours) submitting applications for development or new uses. They need to be carefully considered, particularly if you have grand plans for development in the future. You may need to take expert advice.
There are ways of finding out what consents may have been granted for neighbouring properties. You could make a search on line at the Planning Department website, or ask your lawyer to make a formal enquiry. There will be a charge by the Department to process the extra enquiry. As yet, such requests are unusual. You may also find out by seeing a Site Notice fixed at the entrance to the property, which will give an outline of the proposed work.
What do you do if you have moved in and there are plans to develop a nearby property? A written representation may be submitted to the Planning Minister in respect of Planning applications if this is done within 21 days of the Site Notice appearing. It is important the representation addresses planning issues. If the application is given approval then recent amendments to the law enable third party appeals to be submitted against planning decisions.
Royal Court appeals can be made by third parties against approval of new applications on land provided they have an interest or live at land within 50 metres of the boundary of the application site. If you have not lodged a representation at the proper time then you will have no right of appeal. Your lawyer can submit planning appeals and represent either the applicants in favour of the site or a third party.
However, experience of the first year since third party appeals have been available, has indicated that this part of the Planning Law which was amended at the last minute, does not work as efficiently as it should and is considered by some to be prohibitively expensive. The States have set up a Committee of Inquiry into this.
So what if, having purchased your property, you then discover that your neighbours, who previously were engaged in farming activities start up a very noisy skip business for which they have been granted planning permission? What can you do? This is exactly what occurred in the case of Yates –v- Reg’s Skips Limited last year.
In Jersey, the owner or occupier of land owes a mutual duty in quasi-contract of voisinage to his neighbour. This duty obliges each neighbour not to use his property in such a way as to cause damage or harm to the other. The Learned Bailiff has translated voisinage to be ‘neighbourliness’.
The question the Court had to deal with was whether the arrival of the skip business had given rise, by reason of the nature of the business, to a breach of the quasi-contractual duty in voisinage.
Mrs Yates stated that the noise from the skip business seriously affected her enjoyment of her home. She could no longer take an interest in the garden and rarely ventured into it because it was so distressing for her. The noise invaded her home and her thoughts. Periods of quiet were interrupted by loud bangs and crashes throughout the day.
Mr Yates found the noise of the mechanical digger, the clanking of the caterpillar tracks, the mechanical arm and bucket of the digger, as well as the impact noise of the rubbish being lifted, sorted and dropped, intolerable.
Expert evidence was called from acoustic engineers and the Court found the technical evidence to be consistent with the evidence of Mr and Mrs Yates.
The Court found that the activities of Reg’s Skips did constitute a breach of the duty of voisinage which was owed to Mr and Mrs Yates, and this despite the fact that the owners of Reg’s Skips were permitted, if not encouraged by the Planning Department to establish their business at the farm, which they did in good faith.
The Court granted an injunction preventing Reg’s Skips from operating its skip business at or in the immediate vicinity of the current site, such injunction to come in force just over four months thereafter.
It is however important to bear in mind (as submitted by counsel for Mr and Mrs Yates) that ‘we live in an increasingly crowded Island, and standards of tolerance of noise and disturbance must move with the times. Before the invention of internal combustion engine, farming was a relatively quiet industry. Apart from the occasional lowing of cattle and grunting of pigs, little would have disturbed the peace of the countryside. Nowadays farming involves tractors, threshers, potato harvesting machines and many other forms of mechanical equipment which cause noise and disturbance to a greater or a lesser extent. Neighbours must in general put up with that. The principle in relation to odours is similar. The spreading of manure on agricultural land, for example, can cause temporary offensive smells which, in general, must be tolerated. Sometimes, however the barrier is surmounted and a breach of the duty not to cause harm to one’s neighbour will be held to have arisen.’