St Brelade's Bay development plan (FOI)

Request 1a

With respect to the request in the report accompanying Proposition P.48 Amd.(13) that was approved by the States Assembly (the ‘Resolution of the States Assembly’) in 2011 for the Minister for Planning and Environment to include the principles of the St. Brelade’s Bay Development Plan set out in P.15 / 1968 (the ‘1968 Proposition’) and the St. Brelade’s Bay Environmental Improvement Plan of 1989 (the ‘1989 Plan’) in the Island Plan 2011:

a. which senior officer in the Planning Department was responsible for incorporating the principles of the 1968 Proposition into the draft 2011 Island Plan that the Royal Court in Ferguson v Minister of Environment and Planning [2013] presumed had been addressed in its actual policies?

Response 1a

The draft Island Plan is prepared by the Department of the Environment’s Planning Policy Team and its content is reviewed by an Island Plan Project Board; the Chief Officer and the Minister before lodging au Greffe for consideration and approval by the States Assembly. It was lodged in March 2011.

P.48 / 2011 (Amendment 13) was lodged by Deputy AE Jeune of St. Brelade in April 2011. It sought the following amendment of the draft 2011 Island Plan, as follows.

After the words “the revised draft Island Plan 2011” insert the words “except that –

(a) in Chapter 4: Built Environment, after paragraph 4.83 (on page 152) insert the following paragraphs and footnote, and re-number the later paragraphs and footnotes accordingly –

4.84 St. Brelade’s Bay is generally regarded as one of the most beautiful natural bays in the Island. Successive development plans (footnote 21) have sought to retain and protect its natural beauty and character whilst recognising its role as an attractive place for tourists and islanders to visit and as a place to stay and live. However, it is important that the spirit of the 1968 proposition ‘Development in St. Brelade’s Bay area (P.15 / 1968)’ and the 1989 St. Brelade’s Bay Environmental Improvement Plan, continue to be addressed in this and subsequent Island Plans where they remain relevant today.

(footnote 21) P.15 / 1968: Development in St. Brelade’s Bay area; 1987 Island Plan; 1989 St. Brelade’s Bay Environmental Improvement Plan; 2002 Island Plan.’

4.85 Whilst the landscape setting and important open spaces which characterise the bay are identified and protected through Island Plan policies, there is considered to be a need to review and develop a more detailed planning framework for the area, and specifically the defined Built-up Area, including those parts of the Built-up Area within the Green Backdrop and Shoreline Zones, to ensure that current and future pressure for the development and redevelopment of existing buildings in particular is sympathetic to its context and does not detract from the visual amenity of the bay and the public enjoyment of it.

(b) after the words “to guide its future development and enhancement” in Proposal 13: Local Development Plans (page 152) add the following words ‘; and for St. Brelade’s Bay to ensure that development is sympathetic to its context and does not detract from the visual amenity of the bay and the public enjoyment of it.’

The approval of the amendment, in June 2011, resulted in the insertion of the words of the amendment into the approved Island Plan.

No further amendment of the policies of the draft Island Plan were deemed necessary as a consequence of this amendment evidenced by the approval of the revised draft Island Plan by the States Assembly.

The resolution of the States Assembly to have regard to the spirit of the St. Brelade’s Bay Development Plan P.15 / 1968 (the ‘1968 Proposition’) and the St. Brelade’s Bay Environmental Improvement Plan of 1989 (the ‘1989 Plan’) was set out in the supporting justification for a proposal which seeks the development of further supplementary planning guidance for the bay. When this guidance is formulated, it will need to have regard to this aspect of the States’ resolution, whilst also being consistent with the policy framework also approved by the States as set out in the Plan.

Request 1b

b. why did this senior officer not take the action that the Royal Court presumed had been taken?

Response 1b

See 1a (above).

Request 2

Did any Minister for Planning and the Environment (or Minister for the Environment) at any time after the 2011 Island Plan was published, direct his senior officers in the Planning Department to give ‘little or no weight’ to the provisions of paragraph 4.86 of the 2011 Island Plan (that was adopted as an amendment to the draft Island Plan pursuant to the Resolution of the States Assembly), or to the 1968 Proposition or the 1989 Plan to which paragraph 4.86 refers, in making planning decisions for St Brelade’s Bay (the ‘Bay’) or did one or more of the Directors of the Planning Department make a unilateral decision to give ‘little or no weight’ to the provisions of paragraph 4.86?

Response 2

No. The Island Plan, manifest as the Revised 2011 Island Plan, approved by the States in July 2014, is currently the primary consideration in the determination of planning applications, as set out at Article 19(2) of the Planning and Building (Jersey) Law, 2002. As a consequence, it carries considerable weight in the planning process, having been through a prescribed process of scrutiny and review prior to its approval.

The law, therefore, effectively provides a presumption in favour of development which accords with the current Island Plan and applications which depart from it should only be approved where there is sufficient overriding justification to do so:

19 Grant of planning permission

(2) In general planning permission shall be granted if the development proposed in the application is in accordance with the Island Plan.[68]

(3) Despite paragraph (2), planning permission may be granted where the proposed development is inconsistent with the Island Plan, if the Planning Committee is satisfied that there is sufficient justification for doing so.[69]

Paragraph 4.86

To appreciate the relevance of paragraph 4.86 to the determination of planning applications, it is important to understand the format of the Island Plan and particularly the difference between a Policy and a Proposal.

The form of the Island Plan, as the principal consideration in the determination of planning applications, is set out at Article 4 of the Planning and Building (Jersey) Law 2002:

4 Form of draft Island Plan[10]

(1) A draft Island Plan shall be in 2 Parts.[11]

(2) Part 1 shall be a written statement of the Minister’s policies in respect of the development and use of land together with a reasoned justification of each of those policies.

(3) Those policies must –

(a) further the purpose referred to in Article 2(1) and the intention referred to in Article 2(2); and

(b) in so doing, designate land for particular development or use.

The key point to note from this is that it is the policies of the Island Plan that provide the basis against which planning applications are assessed and determined. This is given further clarification in the Plan itself where the difference between and Policy and a Proposal is given further elaboration.

The Island Plan comprises two parts:

Written Statement

• Section 2: sets out the detailed policy framework, together with site specific proposals, which will guide development over the next ten years.

Chapter format

The substance of each chapter is contained within the policies and site specific proposals related to each topic area.

Proposals

A number of proposals are put forward in the Plan which generally indicate areas where further work is required, such as a supplementary planning guidance document or a detailed master plan. Proposals will appear in a green box.

Policy justification

Each of the policies in the Plan is supported with a justification. This seeks to set out the considerations that have applied in the development of that particular policy and to provide a greater understanding of the intent and purpose of each policy.

Policy Within each chapter there are a number of policies. These are shown in bold type and are clearly identifiable with a policy number and a title which explain the scope of each particular policy. Proposals will appear in a blue box.

Against this context, it is relevant to note that paragraph 4.86 is neither a policy nor a proposal: it simply provides some of the supporting justification to inform further work which, in this case, is the development of supplementary planning guidance for St. Brelade’s Bay as set out in Proposal 14. It is thus not a material consideration in the determination of planning applications.

P.15 / 1968: Development Proposals in the St. Brelade’s Bay Area

Prior to the adoption of the Planning and Building (Jersey) Law 2002, which came into effect on 01 July 2006, the various States Committees which existed before the office of Minister, could prepare development plans for different parts of Jersey for the approval of the States. It is these documents that effectively served as the Island Plan. The resolution to adopt P.15 / 1968: Development Proposals in the St. Brelade’s Bay Area may well have served as a development plan for this area at that time but this was effectively superseded by the approval and adoption of the 1987 and 2002 Island Plans which came thereafter and which provided comprehensive planning policy regimes for the entire Island, including St. Brelade’s Bay.

The transitional provisions of the Planning and Building (Jersey) Law 2002 make clear that it is the current Island Plan that should be regarded as the Island’s development plan and that any other development plans effectively fall away upon its approval, thus rendering them of little or no material significance in the determination of planning applications.

1989 St. Brelade’s Bay Environmental Improvement Plan

It is not considered that the 1989 St. Brelade’s Bay Environmental Improvement Plan enjoyed the status of a development plan, as defined under the Island Planning (Jersey) Law 1964, as it was not considered or approved by the States.

The primary objective of this plan was about the delivery of environmental improvement in St. Brelade’s Bay related to traffic problems associated with mass tourism; the appearance of seafront buildings, street furniture and signage; and tree planting. The content of the plan is now almost 30 years old.

On the basis of the above, this plan is considered to carry little or no weight as a policy tool in the determination of planning applications. It may provide some historical context to any assessment of development proposals to change buildings in the bay where their appearance has been previously identified as being in need of improvement: this was the case in the Zanzibar application referred to in the Ferguson v Minister for Planning and Environment Royal Court case ([2013]JRC022).

It is relevant to note that the Royal Court found no substance in the submission that the 1968 Proposition and 1989 Plan were materially significant to the assessment of planning applications in the Bay (para 86 (iii) below).

(iii) Should the Minister have considered the proposition adopted by the States in 1968 (P15 /  1968) (see Paragraph 27(xviii) above)? The 2011 Plan at paragraph 4.86 refers to it being important that the spirit of this 1968 proposition and the 1989 St Brelade’s Bay Environmental Improvement Plan continue to be addressed in this and subsequent Island Plans, where it remains relevant today. Under proposal 14 of the 2011 Plan, it is proposed that the Minister will develop a planning framework for St Brelade’s Bay, which has yet to be undertaken. The spirit of the 1968 proposal has presumably been addressed in the actual policies set out in the 2011 Plan and will continue to be addressed in proposal 14, whenever that is formulated. The Minister can hardly be criticized for failing to take into account a framework that is not in existence and in so far as it is currently addressed within the 2011 Plan the Minister has, in our view, considered the relevant policies carefully. There is no substance therefore in this submission.

Request 3a

On what constitutional and legal basis do members of the Planning Department (and the Natural Environment Team with respect to the recommendations regarding the Bay’s landscape in the 1989 Plan) regard themselves as entitled to consider the 1968 Proposition and 1989 Plan to carry ‘little or no weight’ in current planning and environmental decisions regarding the development of properties in St Brelade’s Bay (as evidenced in the Press Release issued on behalf of the Department of Environment dated 07 July 2017 headed ‘Response to St Brelade’s Bay Association Press Release’) notwithstanding:

a. the Resolution of the States Assembly and the express provisions of paragraph 4.86 of the Revised 2011 Island Plan stating that the 1968 Proposition and 1989 Plan remain relevant?

Response 3a

See answer to 1a and 2 above

Request 3b

b. the statement by the Royal Court in Ferguson v Minister of Environment and Planning [2013] (paragraph 86(iii)) that the ‘spirit of the 1968 Proposal has presumably been addressed in the actual policies set out in the 2011 Plan’?

Response 3b

See answer to 1a and 2 above

Request 3c

c. the application of the recommendations of the 1989 Plan by the Royal Court to a large development in the Bay in the case of Ferguson v Minister of Environment and Planning in 2013?

Response 3c

See answer to 1a and 2 above

Request 4a

In view of the role of the States Assembly in amending the Island Plan to include paragraph 4.86, why did the Minister for the Environment not:

a. inform the States Assembly of his or the Planning Department’s decision to consider the 1968 Proposition and 1989 Plan to carry ‘little or no weight’ notwithstanding the weight given to the 1989 Proposition and the 1989 Plan by the States Assembly and the Royal Court?

Response 4a

See answer to 1a and 2 above

Request 4b

b. follow the procedures for amending the Revised 2011 Island Plan set out in Article 4A of the Planning and Building (Jersey) Law 2002 in order to revoke paragraph 4.86?

Response 4b

There is no proposal to revoke paragraph 4.86. The provenance of this paragraph and the proposal which it supports, was accepted by the States as an amendment and it now forms an integral part of the Island Plan. It will remain so until the Plan is reviewed, which will be carried out in accord with the procedures set out at Article 4A and Planning and Building (Island Plan) (Jersey) Order 2009.

The status of paragraph 4.86 is set out in answer to 2 above.

Request 5

Why were the 1968 Proposition and 1989 Plan, to which paragraph 4.86 of the Revised 2011 Island Plan makes reference after its draft was amended in 2011 through the States Assembly’s approval of Proposition P.48 Amd.(13), never made publicly available by the Planning Department at any time after the States Assembly approved the said proposition despite paragraph 4.86 of the Revised 2011 Island Plan stating the 1968 Proposition and 1989 Plan remain relevant to planning applications in the Bay?

Response 5

The 1968 Proposition is publically available as an archival reference at the States Greffe Book Shop. The 1989 Plan is publicly available at the States of Jersey Archive and the Jersey Library.

The status of the 1968 Proposition and the 1989 Plan is set out in response 2 above.

Request 6a

On what basis did the Department of Environment assert in its Press Release dated 07 July 2017 that the existing policy framework for St Brelade’s Bay is ‘considered to be adequate and robust’ notwithstanding:

a. the Resolution of the States Assembly to amend the draft 2011 Island Plan to refer to the 1968 Proposition and the 1989 Plan and (in the form of what is now paragraph 4.87 of the Revised 2011 Island Plan) to develop ‘a more detailed planning framework’ for the Bay?

Response 6a

The States consider the planning policy framework to be robust, evidenced by its approval of the Island Plan in 2011 and 2014, notwithstanding the resolution that this should be complemented with some further supplementary planning guidance.

It is also relevant to note that independent planning inspectors consider the existing planning policy framework to be robust.

The Minister points out that there are various relevant policies in existence, which he lists in his response. The Shoreline Zone, along with the rest of St Brelade, is, unsurprisingly, defined as part of the Built Up Area – which plainly and as matter of fact it is. Policies such as those he lists provide protection for the Bay. Notwithstanding local views about the rights and wrongs of individual decisions, we accept the view of the Minister that the present polices are “robust”, and enable Planning Officers and Planning Applications Panel members adequately to balance economic and environmental factors in decision making. (see: Report to the Minister for Planning and Environment by Chris Shepley and Alan Langton, 2011 Island Plan Interim Review, Further Examination in Public July 2014)

Request 6b

b. the recommendation of independent planning inspectors in 2014 that the new local development plan be progressed with some urgency. More specifically, who is making this judgment and on what authority?

Response 6b

The independent planning inspectors, in their report of July 2014, acknowledged that previous efforts have been made to progress the development of new guidance for the bay, in accord with the then Proposal 14.

It is a matter of great regret that the Supplementary Planning Guidance proposed for the area in Proposal 14 has not progressed. We note the Minister’s thoughts on the reasons for this. It does need local support, and the Minister’s view regarding the lack of such support until recently was not disputed at the further EiP. It seems, however, that there is now a willingness locally to get involved (but as the Minister accepted the process needs to be professionally led). (see: Report to the Minister for Planning and Environment by Chris Shepley and Alan Langton, 2011 Island Plan Interim Review, Further Examination in Public July 2014).

Subsequent commitment of resource to progress the development of supplementary planning guidance, on the basis of a proposal put forward by the Department of the Environment (see Appendix 1 below), has not been supported by some local residents. Consequently, this work has yet to progress and limited resources have since been reallocated to the progression of other, competing priorities.

The Minister has indicated that this work will be progressed during the Plan period (2011-2020) relative to other priorities and the level of available resources.

ID FOI Appendix 1 with map (Appendix 2)

Request 7

Given that the 1968 Proposition restricted the construction of new buildings in the Bay other than on the sites identified in the 1968 Proposition or those in replacement of existing buildings, on what constitutional and legal basis does the Department of the Environment consider paragraph 4.87 of the Revised Island Plan not to refer to the 1968 Proposition and the 1989 Plan in stating the need to review and develop a more detailed planning framework for the Bay to ensure that ‘current and future pressure for the development of existing buildings in particular is sympathetic to its context and does not detract from the visual amenity of the bay and the public enjoyment of it’?

Response 7

See answer to 1a and 2 above

Request 8a

Why despite the Department of Environment asserting in its Press Release dated 07 July 2017 that ‘the planning process is incredibly open’ and ‘the basis for decisions is transparent and open to scrutiny and challenge’:

a. did an individual planning officer approve planning application P / 2016 / 1636 under delegated authority, without referring the same to the Planning Committee or giving reasons for the same, despite two organisations (the National Trust and the St Brelade’s Bay Association) having objected to the application on the grounds of breach of policies in the Revised 2011 Island Plan?

Response 8a

The application P / 2016 / 1636 was approved under delegated authority. Delegated authority is given to officers by the Chief Officer when an application receives less than three letters of objection, if the application is recommended to be approved. The application was recommended for approval by the case officer, and reviewed and signed off by a senior officer.

Request 8b

b. does the Department purport to be entitled to ignore the decision of the States Assembly made in the Resolution of the States Assembly and of the Royal Court in Ferguson v Minister of Environment and Planning without having first publicised the matter and without the Minister having published any alternative policy pursuant to Article 6 of the Planning Law and without the involvement of the States Assembly?

Response 8b

The Department has neither ignored the decision of the States (see answer to question 1a above) nor the decision of the Royal Court, which dismissed the appeal of Ferguson, the third party. It concluded that the Minister had given proper consideration to the relevant planning policy framework and material considerations.

89. Having taken into account all the submissions made by the appellant, we conclude, applying the Token test, that the Minister’s decision was reasonable and accordingly this Court has no grounds to intervene.

90. The appeal is therefore dismissed.

(Ferguson-v-Minister for Planning and Environment [2013]JRC022)

Request 9

Please provide a copy of the minutes of the pre-application meeting with respect to application P / 2017 / 0574 so that the public may be aware of the advice given by the Director of Planning to the developer with respect to that application.

Response 9

The PDF document below contains the following documents as requested:

• copy of minutes from a meeting of the Jersey Architecture Commission dated 18.03.2016

• copy hand written notes of a meeting regarding Wayside Café on 16.08.2016

• copy of the pre-application advice provided dated 19.04.2017

Documents relating to Wayside Cafe

These documents should also be considered in relation to Requests 4 b and 8 b.

The documents contain personal information which identifies individuals and is therefore exempt under Article 25 of the Freedom of Information (Jersey) Law 2011.  Where necessary the documents have been redacted to comply with Article 25.

Exemption applied

Article 25: Personal Information

(1) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject as defined in the Data Protection (Jersey) Law 2005.

(2) Information is absolutely exempt information if –

(a) it constitutes personal data of which the applicant is not the data subject as defined in the Data Protection (Jersey) Law 2005; and

(b) its supply to a member of the public would contravene any of the data protection principles, as defined in that Law.