PLANNING AND ENVIRONMENT
Planning and Building (Jersey) Law 2002, as amended
Proposed amendment (no.5): law drafting instructions
Purpose of the Report
This report enables the Minister to consider the potential amendment of the Planning and Building (Jersey) Law 2002 to address what are considered to be a number of deficiencies in the current Law.
Background
Since the Law came into force in July 2006, there are a number of issues that have come to light which require drafting amendments to be made. The areas of potential drafting and the justification for so doing are set out below:
Article 3: Minister to prepare an Island Plan
The Bailiff has ruled that the Law makes no provision for anyone, other than the Minister, to prepare revisions to the Island Plan and that it would undermine the planning process if the Minister’s plan, or any revisions to it, could be subject to amendment without undergoing the exacting procedures for publication, consultation and transparency which are imposed upon the Minister and laid down by Law.
In light of work that is ongoing to review the Island Plan, the Minister wishes to ensure that the primary legislation contains provision which enables amendments to the Island Plan or revisions to it, to be lodged by members requesting the Minister consider revision to the Plan after the Minister has lodged his proposition to adopt the Plan. Any such provision, however, should require that any amendments that are new and which have not been consulted upon before, are required to go through a public consultation/independent review process and that the Minister would be required to report to the States the outcome of that process, and of any proposed amendment to his own proposition as a result of his consideration of it, prior to a States debate.
To enable this process to take place, it is envisaged that provision would need to be made to extend the period between the Draft Island Plan being lodged and the Plan being debated by the States. A possible timeframe might include the following steps and time periods:
R&P lodged
4 weeks Members consider draft Plan and lodge amendments
4 wks 28 day consultation period
2-4 wks Inspector considers amendments and feedback from consultation, and produces report to Minister
2 wks Minister publishes and considers Inspectors report. Considers and lodges amendments to his own proposition on basis of report.
2wks Period for Minister's amendments to be lodged and be in public domain before debate
Debate.
It is envisaged that the new Island Plan will be lodged for debate in April or May 2010.
Article 4: Form of Island Plan
HM Attorney General has advised that it is necessary to amend Article 4(3) and/or (4) of the Law, to make it explicit that the Minister is entitled to designate sub-categories of the use of land. Article 4(4) enables him to do this in respect of affordable housing, but the AG has concerns with the States decision in July 2008 to designate land for open market housing for over-55s, based on an established need, because the Law does not, in his view, explicitly enable the Minister to deal with other sub-categories of a land use.
The uncertainty is holding up the development of much-needed homes for the elderly.
Accordingly, the Minister would like the relevant provisions to be amended urgently to enable the designation of land for sub-categories of use (not exclusively for housing, but other uses too).
Article 6 or 8 (or Part 6): Guidelines, Development Orders or additional controls
There is considered to be a need for a clear and unequivocal legal basis for the protection of areas based on the desirability of protecting and enhancing their architectural and historic interest; or their archaeological potential. Legal advice has been sought about the potential use of Articles 6 and 8 to do this, and whilst potentially achievable, it is considered to be somewhat obtuse.
The Minister proposes to introduce Conservation Areas in Jersey and this change would ensure that their introduction is clearly and soundly based within the provisions of the Law. Areas of Archaeological Potential, as a form of area based designation, have already been introduced but amendment to the Law to provide an explicit means of so doing would be beneficial.
Article 27: Revocation and Modification of Permission
There is an error in this Article. In Article 27 (6A), there is a reference to “The loss or damage mentioned in paragraph 6(a)…..”. This should be a reference to paragraph 6(b). The former Solicitor General and the Law Draftsman are already aware of this issue.
Part 4: Building Controls
Please see Chris Anderson’s comments below regarding transitional arrangements and completion notices:
There is no transitional provision in the Law or Bye-laws, and it would ideally be placed in the Law when there is an opportunity to do so. This should say that in the case of any change to the Bye-laws, any application that has been made before the change takes effect will result in building permission that relates only to the Bye-laws as in force before the change.
There is a post-construction notice provision in the bye-laws that has no separate offence (Bye-law 13(6))
On the other hand I am still unable to convince myself that the expression in Article 33(2) of the Law "if when undertaking …. building work the person contravenes…" allows us to make Bye-law provisions requiring different notices to be given when a structure has been completed.
I suggest then that the requirements to give notice or information after building work is completed be made part of the conditions of building permission until we have an opportunity to clear up this area by an amendment to the Planning Law. So you would have to make sure that the requirement is written into the conditions each time permission is granted.
I can see one or two other things that could perhaps be clarified in the Planning Law, for example, that it is an offence to contravene an applicable provision of the Bye-laws (Article 33(2)(b)), yet the Minister can give permission inconsistent with the Bye-laws (Article 35(2)). Perhaps it could be spelled out that such permission basically disapplies Bye-laws with which it is inconsistent.”
These changes should be effected as part of the amendment.
Articles 52 and 58: Listing of Sites of Special Interest and Protected Trees
There is a requirement to amend Article 52 and 58, related to the Listing of Sites of Special Interest and trees, to ensure that the minimum period of 28 days notice, specified at articles 52(1) and 58(6) do not expose special sites and trees to risk of damage or loss. It has been the case, and evidence can be provided, to show that the special interest of buildings and trees can become vulnerable to damage once the Minister’s intent to protect them is known, represented by the service of Notice.
In such circumstances, it is considered desirable that protected status is conferred upon special sites or trees on service of the Notice of the Minister’s intent to List, rather than at the expiry of the minimum 28 day period (which is often much longer).
The implications of any such amendment would also need to be considered relative to Articles 53 and 60, which confer the powers of provisional Listing.
Article 61: Protected trees not to be felled etc without permission
It is considered that there needs to be a statutory right of appeal against a refusal of permission, or condition of permission under this Article (amendment to Part 7 – Appeals).
Articles 113 and 114: Provisions regarding appeals
It has become apparent on a number of occasions since the Law came into force, when appeals have been heard, that there is an anomaly in the above articles that gives the Royal Court wider powers when hearing an appeal against the grant of planning permission than when dealing with an appeal against refusal. There was never an intention for this to be the case, nor should it be so.
The wider powers conferred on the Royal Court by Article 114(8) should be contained in Article 113(3).
A further amendment is requested to Article 114 at paragraph 3. The stated “period of 28 days immediately after the decision is made…” should be “period of 28 days immediately after the decision is notified to the applicant”. A similar amendment needs to be made to Article 114(7). This will then tally with Article 113(2) for first party appeals.
Article 121: Service of Notices
The provision is too narrow and should be extended to include service by ordinary mail.
Legal and financial implications
Legal implications relate to an amendment of primary Law.
This proposed amendment is not contained within any programme of Law drafting but is driven by circumstances related to the need to amend existing legislation, particularly in relation to those issues related to amendment of Articles 3 and 4 respectively. Amendment of the Law will require Law drafting time.
Recommendations
On the basis of the above, the Minister for Planning and Environment is recommended to –
- note and endorse the proposed amendment of the Planning and Building (Jersey) Law, 2002, and the justifications for so doing;
- request the Law Draftsman to prepare an amendment of the Planning and Building (Jersey) Law, 2002 to effect the desired changes.
Reason(s) for Decision
The proposed amendment seeks to address current deficiencies in the primary Law.
Action Required
The Director/ Assistant Director of Planning to liaise with the Law Draftsman to secure law drafting time to enable the preparation of an amendment of the Planning and Building (Jersey) Law, 2002.
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