DRAFT PLANNING AND BUILDING AMENDMENT OF LAW) (JERSEY) REGULATIONS 201-
REPORT
Summary
On 4 July 2014 the States approved P.94/2014 Planning and Building Law (Amendment No.6) to allow the introduction of an independent merits based appeal process for decisions and actions taken under the Law. The Law was registered in the Royal Court on 7 October 2014
The changes to the Law were based upon P.87/2103 “Planning Appeals: a new system” adopted by the States Assembly on 11 September 2013. The Proposition set out a model for the consideration of appeals by independent inspectors who would report to the Minister for Planning and Environment to make a final decision. The inspectors would be allocated appeals by the Judicial Greffe who would administer the process and appeals would be considered either by written submissions or by the interested parties appearing at a hearing chaired by the inspector. The process requires the withdrawal of the Minister from the initial consideration of applications or actions that could be appealed.
This Proposition introduces Regulations which bring consequential amendments to the Planning and Building Law to enable the appeals process to function.
Background
The current appeals process involves the Royal Court considering whether a decision was unreasonable with regard to all the circumstances. In preparing what was to become the Planning and Building (Jersey) Law 2002 the then Planning and Environment Committee described the Royal Court appeal route as “invariably a slow and expensive process which effectively denies a right of appeal to those of limited means, or makes an appeal unworthwhile where the cost of the works to be undertaken are significantly less than the exposure to costs in an appeal” (P50/2001)
The Planning and Environment Committee proposed an independent Planning Appeals Commission with full jurisdiction under the Law with its decisions binding on the Committee.
An amendment to the Law to allow appeals against the granting of planning permission – appeals by third parties – raised concerns over how a Commission would work and whether it would be too expensive to implement. The proposal for a Planning Appeals Commission was dropped and appeal to the Royal Court for the refusal of an application or against the granting of a permission was introduced (P210/2004) with the Royal Court Rules amended to try and make the process made more accessible.
In 2005 there was a review of the Planning system by Chris Shepley, former Chief Planning Inspector for England and Wales. In his report Mr Shepley recommended that a proposal for a separate independent appeals tribunal should be revisited in due course. Since March 2007 there have been three formal considerations of all or part of the planning applications process. Of these, two reports were presented to the States;
- The Report of the Committee of Inquiry - Third Party Planning Appeals to the Royal Court Up to 31 March 2008 (R14/2009); and
- The Committee of Inquiry – Reg’s Skips Planning Applications Second Report (R38/2011).
There was also a report commissioned by the Minister for Planning and Environment
- The Development Control Process Improvement Programme (PIP) (November 2010)
All of these reports in some way investigated and considered the appeals process and all of them recommended that an alternative to the Royal Court Appeal should be introduced.
Whilst appeals in connection with applications for planning permission are the most prominent the same Royal Court process is the only way of challenging any of the many decisions or actions which can be taken under the Planning and Building Law. These decisions and actions include appeals against enforcement notices, the Listing of a building, place or tree or the refusal to grant building bye-laws approval
With the concerns over how appeals could be pursued in mind a Green Paper was published by the Minister for Planning and Environment in March 2013 (R24/2013)
seeking views on the potential for reforms to the appeal process.
Just prior to the publication of the Green Paper in February 2013 Deputy Young lodged Proposition P.26/2013 “Independent Planning Appeals Tribunal: Establishment” requesting that the Minister for Planning and Environment bring forward detailed proposals for the establishment of the new appeals tribunal.
On the basis of responses to the Green Paper and Deputy Young’s Proposition in September 2013 the Minister for Planning and Environment brought Proposition P.87/2013 outlining a model for an appeals process that would apply to decisions taken under the Planning and Building (Jersey) Law 2002. The Proposition was for an independent inspector – chosen from a panel of suitably qualified and experienced inspectors recruited via the Jersey Appointments Commission (JAC) – to consider each appeal case and then making a recommendation to the Minister for Planning and Environment. The Minister would make a final decision on the basis of the inspector’s recommendation. The Minister would not be bound by the recommendation but would have to explain any variation from it. The process would be administered by the Judicial Greffe as an independent body remote from the Department of the Environment. Appeals could be pursued without the prospect of costs being awarded and a reasonable fee would be payable towards the cost of administering the process.
The following decisions would be subject to the revised appeal process
1. The refusal to grant planning permission
2. The refusal to approve or amend an application for planning permission for development which has already taken place
3. The refusal to vary a previously approved application for planning permission
4. The refusal to grant a certificate of completion (confirming a development has taken place in accordance with a previously approved planning permission)
5. The refusal to grant building bye-laws approval
6. The refusal to grant permission to undertake particular activities on/in/under a site of special interest.
7. The refusal to grant permission for the importation or use of a caravan in Jersey
8. The imposition of a condition on any permission previously granted
9. The revocation or modification of a planning permission
10. The service of notices requiring actions
11. The inclusion of buildings / places / trees on relevant lists for their protection
12. The granting of planning permission – appeal by a third party
Deputy Le Herissier brought an amendment to the Proposition that retained the Request for Reconsideration (RfR) process where applicants who have received a refusal of planning permission determined by officers can ask the Planning Applications Panel (PAP) to consider the proposal.
Amendments to the Law - Planning and Building (Amendment No.6) (Jersey) Law 201-
Following the adoption of P.87/2013 legislation was drafted to allow the new appeals process to function. That legislation was debated in July 2014 (P.94/2014). The legislation followed the principles indicated above and also allowed for Regulations to further amend the Law to fully reflect the shift in responsibilities, namely that the Minister would be removed from the initial decision making process in order legitimately consider appeals. Amendment No.6 established a Planning Applications Committee – in effect replacing the current Planning Applications Panel - which would be formed by the States Assembly and not appointed by the Minister.
All appeals against decisions or actions under the Law will be considered by an independent inspector – chosen from a panel of suitably qualified and experienced inspectors recruited via the Jersey Appointments Commission (JAC) - who will gather evidence and then provide the Minister with a written report and recommendation on the case. The Minister will then make a decision on the basis of the inspector’s recommendation. All the documents including the inspector’s report will be publicly available.
As per Deputy Le Herissier’s proposal the Law will allow the Planning Applications Committee will be able to review a decision made by officers of the department
The Planning and Building (Amendment No.6) (Jersey) Law 201- was adopted by the States Assembly on 4 July 2014 and registered in the Royal Court on 7 October 2014.
The Regulations
In order that a new appeals system can be introduced the fundamental process of decision making will have to alter so as to ensure that the Minister is not involved in the first tier decision making. The Minister will still have the power to make policies – including the Island Plan - and issue guidance against which decisions should be considered. In broad terms the Regulations will ensure that;
1. The Minister will generally be removed first tier decision making in order to allow the consideration and determination of appeals against decisions and actions under the Law.
2. The Minister will retain the role of decision making in the following circumstances:
i. Where there is no right of appeal to the Minister - for example where an application for planning permission which has been the subject of a Public Inquiry.
ii. The role relates to actions after an appeal process - or the opportunity to pursue an appeal process - has run its course.
iii. The decision-making does not relate to individual cases, but relates to policies and guidelines for decision-makers to follow.
3. The Chief Officer of the Department will become a first tier decision maker in their own right with a right of appeal to the Minister over any decision.
- The Planning Applications Committee will make decisions relating to applications for planning permission and similar issues. Matters to be referred for decisions by the Committee will be agreed between the Committee and the Chief Officer.
- For applications which have not been the subject of a Public Inquiry only the Committee can make a decision to grant of planning permission for a development which would be inconsistent with the Island Plan.
Resource Implications
There are no implications expected for the financial and manpower resources of the States arising from the adoption of these Draft Regulations.
Article by Article changes
Article 1 - Interpretation
The Chief Officer of the Department of the Environment has been defined
Reference to the Minister has been removed in connection with
- “planning permission” as applications will not be made to the Minister
- “site notice”, and “dangerous building notice” as the Minister will no longer be responsible for these notices.
Article 5 – Meaning of “develop”
The notice which can be served under Article 5(4) can be the subject of an appeal to the Minster so the Chief Officer has been identified as the decision maker.
Article 9 – Applications for planning permission not granted by a Development Order
This Article reflects the fact that applications will be made to the Chief Officer. The Chief Officer or the Planning Applications Committee may then make a decision on the application.
In Article 9(4) accepting an application for planning permission which has not been endorsed by the owner of the site of the application has remained the responsibility of the Minister. Such a decision involves making judgement of public interest and the Minister is best placed to make that judgement. Allowing such an application to proceeded to consideration and determination would not prejudice the Minister’s role in any subsequent appeal
Article 9A (as amended) – Role of the Planning Applications Committee
This Article has been included in the Law by virtue of the Planning and Building (Amendment No 6) (Jersey) Law 201-. However the Article is further amended by these Regulations to require the Chief Officer and the Planning Applications Committee to agree on how matters that can be considered by the Committee are allocated.
Article 10 –False information etc in application for planning permission
Articles 10(2) & 10(5) have removed reference to the Minister as they are actions that can be appealed.
Articles 10(7), (8) & (9) retain the Minister as the decision maker. At the point of entering land to carry out works the ability to pursue an appeal will have either been exercised or the opportunity for such an appeal will have passed. The Minister will not be considering any subsequent appeals from actions under these Articles and the actions they involve are serious enough to retain the Minister as the responsible body for their function
Article 10(10) refers to the Minister, the Chief Officer and the Planning Applications Committee. The principle of the decision maker being unable to be pursued for compensation is established in the Law and that arrangement should continue for all decision makers.
Article 11 – Publicity for applications for planning permission
Making an Order for the publicity of applications for planning permission is a matter of policy and responsibility stays with the Minster.
Article 11(3) to (5) have been amended to reflect the Minister’s withdrawal from first tier decision making but still requiring the process of publicity to be completed prior to any decision being made.
Article 12 – Public Inquiries
For Public Inquiries the functions will remain the responsibility of the Minister but there is clarification that the Minister’s decision following a Public Inquiry can only be challenged in the Royal Court.
Article 13 – Environmental impact of proposed development
Reference to the Minister has been retained in the context of setting an Order but removed where it relates to the consideration of an application.
Articles 14, 15, 16 & 17 - Development of concern to (various other Ministers)
These Articles all make reference to consultations requests on an application for planning permission prior to any decision being made. This is a function that will be carried out by the Department in processing an application.
The Articles have been amended to remove reference to the Minister but retain the requirement of the process of consultations with other Ministers.
Article 19 – Grant of planning permission
This Article reflects the new arrangement of the Minister being removed from the first tier of decision making and the role being taken by the Chief Officer and the Planning Applications Committee as appropriate.
Article 20 – Application for planning permission for development already undertaken
This Article has been amended to reflect the new arrangement of the Minister being removed from the first tier of decision making and the role being taken by the Chief Officer and the Planning Applications Committee as appropriate.
Article 21 – Conditions subject to which planning permission may be varied or removed
This Article has been amended to reflect the new arrangement of the Minister being removed from the first tier of decision making and the role being taken by the Chief Officer and the Planning Applications Committee as appropriate.
Article 22 – Reasons for certain decisions
This Article has been amended to require any decision maker to give reasons for a decision as appropriate.
Article 23 – Conditions attached to the grant of planning permission
This Article has been amended to set out the requirements of any conditions attached to a grant of planning permission by any decision maker.
Article 24 – Planning permission attaches to land
Reference to the Minister has been removed without altering the function of the Article.
Article 25 – Planning Obligations
Article 25(1) to (8) - Planning Obligation Agreements (POAs) are material considerations when determining an application for planning permission. POAs are normally used to secure policy objectives identified in the Island Plan, design briefs and masterplans, or infrastructure improvements which are necessary because of a development proposal. POAs will need to be used be utilised at a first tier decision or on an appeal decision.
Whilst the Planning Applications Committee will be a formally constituted body it is not appropriate that they enter into a POA. Instead they should be able to require that there be a POA which will then be completed by the Chief Officer. They would be entitled to set out demands for what the POA must achieve in connection with any grant of permission.
Given the above the Minister and the Chief Officer need to be able to enter into a POA.
Article 26 – Termination of an application with reference to time limit & Article 27 – Revocation and modification of planning permission
As there is an appeal against decision under these Articles the Chief Officer or the Planning Applications Committee will take decisions as appropriate.
Article 28 – Certificates of completion
The Chief Officer will have the power to issue Certificates of Completion and the Minister would consider any appeal against the refusal to issue such a certificate.
Article 33 – Prescribed work not to be undertaken without building permission
As there is an appeal against any decision the Chief Officer will take decisions in the first instance.
Article 34 – Applications for building permission
As there is an appeal against any decision amendments reflect the fact that the Chief Officer will make decisions.
Article 35 – Grant of building permission
As there is an appeal against any decision amendments reflect the fact that the Chief Officer will make decisions.
Article 36 – Reasons for refusal to grant building permission
This Article requires that reasons are given by the decision maker for any decision to refuse an application.
Article 37 – Conditions attached to the grant of building permission
As there is an appeal against any condition attached to a decision the Chief Officer will attach conditions in the first instance.
Article 40 – Service of an enforcement notice in respect of breach of development controls
As there is a right of appeal against the service of an enforcement notice the Chief Officer or the Planning Applications Committee will make a decision to serve a notice as appropriate.
Article 42 – Variation or withdrawal of an enforcement notice
This Article allows the Chief Officer or the Planning Applications Committee to vary or withdraw an enforcement notice. An appeal against an enforcement notice may result in the notice being varied or withdrawn by the Minister.
Article 44 – Offence when enforcement notice is not complied with
The Article has been amended to remove reference to the Minister.
Article 45 – Stop notices
The Minister will hear appeals against Stop Notices and so will be removed from any part of the Article connected with serving or subsequently administering the notice.
Article 47 - Enforcement of development conditions
As there is an appeal against any condition attached to a decision the Chief Officer will attach conditions in the first instance.
Article 48 – Injunctions restraining breaches of development control
This Article has been amended to allow either the Chief Officer or the Minister to seek an injunction depending on the circumstances of the case. If there is an outstanding or potential appeal in connection with the case the Minister should not be involved. If there is no potential to appeal then the Minister should be involved in seeking an injunction.
Article 51 – Lists of sites of special interest
This Article makes the Chief Officer responsible for the maintenance of a List of Sites of Special Interest – buildings and / or places – including the inclusion of a building or place on the list.
Article 52 – Notice and procedure for inclusion on, or removal from, the List of Sites of Special Interest
This Article makes the Listing process the responsibility of the Chief Officer to allow the Minister to consider appeals against any Listing.
Article 53 – Provisional Listing
This Article makes the responsibility of provisional listing the responsibility of the Chief Officer. Although there is no appeal against provisional Listing full Listing may follow
Article 54 – Control of certain operations etc not amounting to development
The Chief Officer will make decision under this Article as a right of appeal to the Minister can arise from actions under the Article.
Article 55 – Certain activities restricted on sites of special interest
Reference to the Minister has been removed for Articles 55(1) to (8) inclusive where they occur as there are appeals that can be brought against actions in those parts of the Article.
Articles 55(9) to (13) inclusive are all actions which will arise after an appeal or after the opportunity to bring an appeal has passed. Responsibility for these particular actions will remain with the Minister
Article 57 – Interpretation – protected trees
The list referred to in this Article is to be maintained by the Chief Officer and as such reference to the Minster will be removed
Article 58 – Minister to protect trees by maintaining a List of Protected Trees
This Article makes the Listing process the responsibility of the Chief Officer to allow the Minister to consider appeals against any Listing.
Article 59 - Notice and procedure for listing of, and removal from, a tree on the List of Protected Trees
This Article makes the Listing process the responsibility of the Chief Officer to allow the Minister to consider appeals against such a Listing.
Article 60 – Provisional listing of trees
This Article makes the responsibility of provisional listing the responsibility of the Chief Officer. Although there is no appeal against provisional Listing full Listing may follow
Article 61- Protected tree not to be felled etc without permission
There is a right of appeal against the refusal to allow works to a protected tree so the Article has been amended remove the Minister from its function.
Article 62 – Preservation and planting of trees in connection with planning permission
This Article has been amended to reflect that there are a variety of decision makers.
Article 66 – Dangerous building notice in respect of building in dangerous condition
As there is a right of appeal against the service of an enforcement notice the Chief Officer make a decision to serve a notice.
Article 68 – Variation or withdrawal of a dangerous building notice
The Article has removed the Minister from its function which will be carried out by the Chief Officer. The Minister may be involved in variation or withdrawal in considering an appeal. .
Article 72 – No compensation payable
The reference to “action taken by the Minister” has been expanded to include action taken by the Chief Officer. Immunity from being liable for compensation is an established principle and should apply to any new decision maker as well as the Minister.
Article 76 – Minister may make Orders to control advertisements
The Minister will make the Order as a matter of policy.
The Minister will not grant permission under the Order for the control of advertisements and should be removed from the Article in this respect.
Article 78 – Penalty for contravention of an Order
As there is an appeal against any notice served in connection with the Order the Chief Officer will make the decision to serve a notice in the first instance.
Article 81 – Minister may make Orders in respect of moveable structures
The Minister will make the Order as a matter of policy
The Minister will not grant permission under the Order for the control of moveable structures and should be removed from the Article in this respect.
Article 82 – Penalty for contravening an Order
As there is an appeal against any notice served in connection with the Order the Chief Officer will make the decision to serve a notice.
Article 83- Interpretation – land condition
Reference to the Minister will be removed.
Article 84 to 93 inclusive
Under the Article 109(1) (i) as amended there is a right of appeal to the Minister in respect of land condition notices. Reference to the Minister will be removed, and the Chief Officer will be the decision-maker / authorising body for all the actions / powers in these Articles.
The Planning Applications Committee has no powers under Article 9A to control the condition of land under these Articles.
Article 95 – No compensation payable
The reference to “action taken by the Minister” has been expanded to include action taken by the Chief Officer. Immunity from being liable for compensation is an established principle and should apply to all decision makers.
Article 99 – Control of importation and use of caravans
Reference to the Minister should be removed as the Chief Officer will act as the decision-maker.
Article 100 – Offence of importing etc caravan without permission
Reference to the Minister has been removed as the Minister will not issue such a permission. There is a right of appeal against refusal to grant such a permission.
Article 101- Conditions on the importation and use of a caravan
As there is an appeal against any condition attached to a decision the Chief Officer will attach conditions in the first instance.
Article 108 – Right of appeal against certain decisions and persons who may appeal
These amendments reflect changes elsewhere in the Law by these Regulations
Article 121 – Service of notices
Reference to the Minister has been removed as the serving of any notice can be appealed.
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