By way of background, the Case Officer advises: In mid June 2004 the applicant was given pre-application advice that permission for change of use of this property to a joinery workshop would be required and, because of the nature of the operation, would be likely to be refused in this predominantly residential area. Later in June 2004, an application was made “to change use of existing electricians workshop/store to carpenters-builders workshop/store. (Note property previously occupied by Building Contractor.)” The application was returned by the Department because, on the basis of the description submitted, it considered that a material change of use would not occur and therefore permission would not be required. However, it transpires that the above description provided by the applicant was not correct and that in 1983 permission had been granted “to convert builders workshop and store into offices and storage space and various signs.” This permit was implemented and this office and storage use therefore became the authorised use, and the builders workshop and store use was effectively extinguished. Owing to the Department`s advice that permission was not required the carpenter-builder started to move into the building, which caused noise and disturbance to the neighbours, prompting a visit by the Enforcement Officer who then exposed the errors made and advised the applicant of his obligation to submit an application. The Case Officer requested that the applicant demonstrate the noise levels of the equipment as part of the assessment of the application. The applicant refused to engage a noise consultant to demonstrate the level of noise the proposed woodcutting equipment would make. The Case Officer then instructed the equipment to be installed for the explicit reason to test the noise levels. Following noise tests of the joinery machinery undertaken by H&SS and witnessed by the Case Officer it was clearly evident that the level of noise and vibration caused to the adjoining properties was unreasonable owing to the disturbance caused. The applicant has engaged Advocate Crill who has advised that bearing in mind the way in which this matter has been dealt with, if the application is refused, “his client will look to the Committee for compensation in respect of the costs and expenses reasonably incurred by him following receipt of the letter dated 23rd June 2004 upon which he quite reasonably relied.” Following the noise tests and the recommendations of H&SS the applicant was advised that he would need to provide soundproofing to mitigate the effects of the machinery. Clearly, this would be a costly exercise and Advocate Crill has asked the Committee to consider the application subject ‘to the occasional operation of a workshop and being restricted to the hours stipulated in H&SS`s letter dated 24th August 2004 (0800am to 1800pm Monday to Friday. 0800am to 1300pm Saturday. The business should not be operated at all on Sundays or Bank Holidays)’. This is not considered to be an acceptable compromise. In the knowledge that they may be faced with a compensation claim, the Committee decided to refuse the application on 21 April 2005, having regard to all the material planning considerations, and considered that the proposed change of use would cause undue harm to the amenity of the adjoining residential properties. The Sub-Committee minutes of 21 April 2005 are attached with the background papers. Advocate Crill subsequently wrote to the Committee requesting that it reconsider its decision of 25 April 2005. Advocate Crill provided four reasons to request the reconsideration of the Sub-Committee’s decision. In particular, Advocate Crill also argued that inadequate consideration had been given to the principle use of the premises as storage and not workshop, and subsequently inadequate consideration has been given to conditioning the proposed change of use limiting the workshop as ancillary to the predominant use of storage. The definition of ancillary use is being used incorrectly in this instance. An ancillary use can only be considered where the use is supplementary to the predominant use, and in being supplementary must be of a lesser impact and must be complementary to the predominant use. A workshop and storage unit would only be considered with the storage use being supplementary to the workshop use, as the impact the two uses would have on an area is quite different. In addition, the measurements taken were based on the noise generated from single machines, not multiple, and thus even if the use is considered ancillary, it would not change the impact of external audibility. No additional information, in particular independent noise reports or measures to mitigate the levels of noise, were provided by the applicant, as previously requested by Case Officers. On the 30th September 2005, The Committee refused the request for reconsideration and sanctioned enforcement action, unless the use was to end within 28 days. The Committee minutes of 30 September 2005 are attached with the background papers. The applicant had not ceased the use at the premises as instructed by the Committee on 30th September 2005. The application was referred back to the Committee to issue an enforcement notice with a 28 day period for compliance. Deputy Rondel wrote to the Committee on 15th November 2005 and raised 3 questions for reconsideration of the refusal of planning permission. The questions raised did not change any planning considerations of the determination. As the decision to refuse the use had been consistent and justified, and not dependent on the circumstances surrounding the case, the Committee on 3rd November 2005, refused the request for reconsideration by Deputy Rondell and sanctioned the issuing of an enforcement notice with a 28 day compliance period. The Committee minutes of 3 November 2005 are attached with the background papers. An enforcement notice was issued on 23rd November 2005 with a compliance date of 5th January 2006. During the period following the issuing of the enforcement notice on 23rd November 2005 and the compliance date of the 5th January 2006, Advocate Crill and the applicant Mr Gallichan wrote to the Department requesting that the decision be reconsidered again. On the 21st December 2005 and the 4th January 2006 the Assistant Director responded to these requests and clearly stated that he could not accept another appeal against the decision as the Committee had already reconsidered the matter and ‘made a very clear decision to continue pursuing the enforcement proceedings’. The letters from the Assistant Director are attached with the background papers. On the 6th January 2006, the applicant appealed against the Enforcement Notice to the Royal Court. The Notice of Appeal was defective. To date the applicant has not returned the Notice of Appeal to the Royal Court. On the 25th January 2006 Senator Ben Shenton wrote to the Minister for Planning and Environment requesting reconsideration of the decision to refuse planning permission. The Minister formally reconsidered the application on 7th February 2006. The Minister was concerned that the advice in the 24th June 2004 letter estopped and/or prejudiced the position in relation to the use in the premises, and wondered whether it would be reasonable to grant planning permission subject to a condition that allowed the use of the premises only when adequate structural measures were undertaken to ensure that no nuisance arose to the surrounding properties. The matter was referred to the Law Officer’s Department on 22nd February 2006. A response was received on 7th June 2006 at which time the Case Officer required clarification on certain matters. The final response from the Solicitor General was received on 24th July 2006. The advice from the Solicitor General concluded that - “The Minister is not bound by the previous indication of the Planning Officer that no permission was required.
- If there is a material change of use, permission is, as a matter of law, required.
- The application should be dealt with on its planning merits.
- If the application is refused on tenable planning grounds, the Minister will have a good prospect of success on appeal.”
The Solicitor General’s response of 24th July 2006 is attached with the background papers. The application has been consistently determined based on its planning merits, despite the circumstances that have surrounded the case. The applicant has been advised several times from different Case Officers, to employ a consultant to carry out an independent report and was requested to explore measures to mitigate the levels of noise transmitted to the adjoining house. To date the applicant has not provided any information in this regard. The Committee has previously considered strict operational hours in its determination of this case and concluded that this was not an acceptable compromise. In particular, the noise and vibration tests were taken with one machine, not multiple, and a single machine caused noise levels far exceeding the maximum noise level for residential. Please note that these levels were taken from three locations, including inside the neighbour’s bedroom, and all locations exceeded the maximum level. Thus, as the use of one machine once is considered to cause a significant nuisance to the surrounding properties, it is concluded that allowing multiple machines to be used even for a couple of hours a day will certainly cause unreasonable noise and vibration to the adjoining properties. The principle of this use in this property is considered unacceptable and the recommendation to refuse planning permission has been consistent and justified. | 
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