PLANNING AND
ENVIRONMENT COMMITTEE:
VOTE OF NO
CONFIDENCE (P.45/99) - COMMENTS
_______________
Presented to
the States on 27th April 1999
by the
Planning and Environment Committee
______________________________
%20-%20comments%20P.45-99Com._files/image002.jpg)
STATES OF JERSEY
STATES GREFFE
175 1999 P.45/99
Com.
Price code:
C
COMMENTS OF
THE PLANNING AND ENVIRONMENT COMMITTEE ON THE PROPOSITION OF NO CONFIDENCE
(P.45/99) OF SENATOR R.J. SHENTON
Introduction
Senator
R.J. Shenton O.B.E., a former President of the Island Development Committee,
has asked the States to express a lack of confidence in the Planning and
Environment Committee (P.45/99). This reports deals with the specific points
raised in Senator Shenton’s proposition.
Members
may be surprised at the lack of substance in the report, especially as Senator
Shenton had several weeks in which to research it. He has chosen to ignore all
the broad, strategic planning issues with which the States has concerned itself
in successive Strategic Policy debates as well as the policies set out in the
Island Plan. Together this is the framework within which the Committee works.
Senator
Shenton uses broad generalisations to seek to undermine the position of the
Committee, with absolutely no evidence to support his assertions. His suggestion
that “its lack of decision making was costing the Island a great deal of money”
is completely unjustified. From the evidence supplied in response to questions
from the Deputy of St. John on 2nd February 1999 it is quite clear that the
Planning and Environment Committee has an excellent record in dealing with
applications, whilst at the same time making significant progress on a whole
range of strategic and corporate issues.
Senator
Shenton’s proposition dwells upon six “cases”: the Island Site, the Grouville
Bay Hotel development, Project Immanuel, Housing, the findings of recent Boards
of Administrative Appeal and Windyways, St. Peter. In the case of the
Island Site he has included a highly selective and personalised chronology
prepared by the Waterfront Enterprise Board which should be regarded with
extreme caution.
The
cases to which Senator Shenton refers must be seen in the context of the 9,000
applications processed by the Committee since taking office, 93 per cent of
which have been approved.
Members
are urged to concentrate on the tremendous amount of policy work undertaken by
the Committee. Changes affecting planning and the environment do not happen
quickly; they require continuity of thinking. Above all, the present Planning
and Environment Committee has taken its decisions in line with the corporate
policies established by the States. A more detailed summary of the Committee’s
work was published earlier this week.
How
perverse it would be to remove a Committee for sticking to policies which
States members themselves have approved.
The Island Site
The
idea, advanced by Senator Shenton, that the Planning and Environment Committee
is deliberately frustrating the Waterfront Enterprise Board because it “appears to know what is best of all of us”
is strongly refuted (page 4). Nor is it true that the Committee has done “everything to avoid a States debate” on
the matter (Comment 5 page 14). Indeed, the Committee would welcome a full
airing on the matter, but not through the back door of a ‘no confidence’
debate.
In
1990, the States voted to designate the Island Site a Site of Special Interest
under Article 9 of the Island Planning (Jersey) Law as amended. The Committee
of the day did not proceed to make the Order. Ever since, there has been
dispute about whether members thought they were agreeing to protect the whole
site - including the internal buildings - or simply the exterior walls. This
aspect can be checked by reference to the proposition of the then Island
Development Committee (P.151/89) which asked the States to agree the Planning
Brief for the Waterfront area before the Committee appointed consultants to
produce the Waterfront Plan. In the projet there is reference to the Planning
Brief where, at paragraph 6.8 and drawing No. 01.226.21, it is clear that it
was intended to retain the buildings within the perimeter wall. The States
should never have been in any doubt that the whole site warranted protection
and that the internal buildings should be retained and incorporated in any re-development.
This conviction was also held by the previous Planning Committee.
This
approach to the Island Site - mirroring best conservation practice in the rest
of Europe - was clearly conveyed to the Waterfront Enterprise Board when it
brought forward plans for a transportation centre. The Waterfront Enterprise
Board was responding to a successful amendment by the Connétable of St Helier
in 1995, which confirmed the States’ previous decision to move the existing bus
station from the Weighbridge to the Island Site. Interestingly, the
Connétable’s amendment sought to re-instate an earlier plan which included a
“Covent Garden type development”.
This
explanation of the Committee’s stance on the Island Site completely undermines
the start of Senator Shenton’s chronology, supplied to him by the Waterfront
Enterprise Board. It is suggested that, in January 1997, the Committee was
supportive of the Waterfront Enterprise Board’s plans. This is untrue. The
Committee’s reservations about the failure to conserve the internal buildings
was clearly explained to the Waterfront Enterprise Board representatives.
The
Waterfront Enterprise Board ignored this advice and submitted a planning
application which was rejected. They must recognise that the Planning Law
applies equally to private developers and the States. A public body should not
be allowed to circumvent the policies of the States.
The
Waterfront Enterprise Board chronology, presented by Senator Shenton, also
omits a very important meeting in September 1997, when the President of the
Planning and Environment Committee offered the Waterfront Enterprise Board the
opportunity of bringing in an independent arbitrator. This was declined because
the Chairman of the Waterfront Enterprise Board said he knew all that was
needed to know about public transport and they would not reconsider their
scheme. This opportunity, if the Waterfront Enterprise Board had taken it,
would have avoided the public wrangling, acrimony and delay.
The
Policy and Resources Committee asked the Planning and Environment Committee and
the Waterfront Enterprise Board to present their preferred approaches to States
members in January 1998. It was clear that many members would support the
Planning and Environment Committee approach if it could truly accommodate the
bus company and be achieved without the use of public funds.
Reacting
to the mood of that presentation, the Policy and Resources Committee gave the
Planning and Environment Committee three months to demonstrate the viability of
its approach. A brief was prepared and circulated. Seven firms prepared
submissions. Three were preferred and their details were submitted to the
Policy and Resources Committee in May 1998. All the schemes would have provided
a transportation centre and would have been completed at nil cost to the
States. At a meeting on 26th May 1998, the Policy and Resources Committee
approved the actions of the Planning and Environment Committee. Three days
later, at another meeting, attended by representatives of the Waterfront Enterprise
Board, Policy and Resources Committee changed that decision and chose to halt
the process - without explanation.
The
interested developers were put on hold. Frustrated by this turn of events, the
Planning and Environment Committee formally complained to the President of the
Policy and Resources Committee. In June 1998 the Planning and Environment
Committee prepared its own draft report and proposition and was ready to lodge
it “au Greffe”. This puts the lie to Senator Shenton’s assertion that the Committee
has done everything possible to avoid a States debate.
Instead
of proceeding with his Committee’s proposition, the President, Senator Quérée,
agreed to a meeting with the President of the Policy and Resources Committee,
Senator Horsfall (who had also said he would lodge a proposition), and the
Bailiff. The Bailiff’s advice was that it would be wrong to lodge either
proposition before the Planning and Environment Committee had decided to
implement the decision of the States, taken in 1990, to designate the Island
Site a Site of Special Interest (SSI).
Following
this advice, it was agreed that the Planning and Environment Committee would
carry out the designation process. This was completed on 26th November 1998 in
accordance with the procedures laid down in the Planning Law.
The
Waterfront Enterprise Board offered no evidence to counter the argument that
the site, and its complex of buildings, was of sufficient architectural,
cultural and historic merit to warrant designation. The case for designation
was supported by the Société Jersiaise, the National Trust for Jersey and Save
Jersey’s Heritage. Evidence was heard from, among others, leading architectural
historian Sir Charles Brett.
The
exhaustive SSI hearing - held in public - threw up one interesting point. It
became obvious that the exact requirements for a transportation centre had not
been clearly and impartially defined, and that the Waterfront Enterprise Board
had relied entirely upon the stated requirements of the existing operator. An
attempt by the Planning and Environment Committee, early in 1997, to agree an
objective brief jointly with the Waterfront Enterprise Board, JMT and the
Public Services Committee had to be aborted because the Waterfront Enterprise
Board and JMT were unwilling to discuss the issues.
After
the hearing, it was agreed jointly by the Planning and Environment and Public
Services Committees that these requirements should be objectively examined and
defined more carefully. The Public Services Committee established a transportation
working party and employed external consultants to assist. Preliminary findings
suggest that neither the Waterfront Enterprise Board scheme nor the Planning
and Environment Committee approaches will entirely satisfy the transportation
needs of the Island, and have raised doubts about the move from the
Weighbridge. Frustrating as this outcome may seem, the blame cannot be laid at
the door of the Planning and Environment Committee, which has adopted a
consistent approach to the problem of the Island Site.
It
is important to point out that the Planning and Environment Committee has never
wanted to act as a developer. It was forced into having outline approaches
prepared and demonstrating the viability of those approaches. The Waterfront
Enterprise Board, unlike private developers, will not accept planning policies.
Grouville Bay Hotel
The
actions of the Planning and Environment Committee in relation to the
re-development of the Grouville Bay Hotel were fully explained during the
States debate on the proposition of the Connétable of Grouville (P.2/99).
When
States members supported the Connétable’s proposition, they believed that a
refusal to grant a development permit would not involve the payment of
compensation to the developer.
The
Committee took stock. It asked the Solicitor General to give advice on the
legal implications of following the States’ decision on the basis of all the
facts of the case. She explained that the developer was entitled to expect the
planning permit to be followed by a development permit unless new planning
factors were identified to support a refusal. No new planning factors were
produced during the debate.
The
Committee carefully considered all the matters raised in the debate, and
concluded that not only was the scheme consistent with planning policies, it
was consistent with that part of the States’ decision which requested best use
be made of the site. In addition, the Committee considered advice that by
following the request of the States, it could be liable for compensation and
court costs in excess of £2 million. It decided it had no option but to issue a
development permit, even though this would go against the wishes of the
Assembly.
Before
issuing a permit, the Committee felt it important to inform the States. It was
not possible to have another debate. The only available mechanism was a
Committee Statement (Appendix attached). There was no attempt to “gag” members,
as suggested by Senator Shenton, simply a desire to provide as much detail as
possible. Further, the Planning and Environment Committee did not release the statement to the Jersey
Evening Post on the day before the statement was made; the newspaper correctly
guessed the direction that the Committee intended to go.
The
scale of the Grouville Bay re-development has been consistently opposed by its
neighbours. The Committee took their comments into account when requiring the
developer to modify the scheme. But the site is a large one and the Committee
feels the approved building will be a vast improvement on the one it replaces.
The
Committee totally refutes Senator Shenton’s allegation that the Committee
“sided” with the developer. Indeed, the developer had to wait two years for his
development permit and was required to provide considerable evidence that the
Grouville Bay Hotel was no longer viable.
The
Committee also refused the same developer consent to develop at Plemont.
Properly
made planning decisions are not a matter of taking sides or just making popular
decisions, but of striking the right balance between the legitimate interests
of the landowner and the public interest. Nor did the Committee make the case
for the developer; it acted in a fair and objective manner.
Project Immanuel
Senator
Shenton has provided a diary of the activities of Project Immanuel. It is
difficult to see what relevance this has to his proposition. Only seven of the
diary entries relate to the Planning and Environment Committee and, of those,
one has nothing to do with Project Immanuel. We note that Senator Shenton was a
member of the Project Immanuel Steering Group.
Project
Immanuel and Redrow Homes came to see the Committee in November 1998. The
Committee was impressed with its plans for a Christian centre, homes and
multi-storey car park on the Esplanade Car Park - and said so. The Committee
suggested that Project Immanuel incorporate a primary school in its proposals.
This was not, however, a planning application, simply an initial enquiry. The
Planning and Environment Committee awaited confirmation, from the Waterfront
Enterprise Board, of the status of Project Immanuel. It has come as a surprise
to read in Senator Shenton’s report that on 20th October 1998 the Waterfront
Enterprise Board agreed with the Project Immanuel Steering Group that “the
development should proceed”. It would seem that agreement was reached without
the approval of the Policy and Resources Committee, and was not included in the
information given to the Planning and Environment Committee.
It
is naïve in the extreme to suggest that the Project Immanuel Group believed the
Committee’s letter of 15th December 1998 gave “…effectively a consent in
principle…”. The letter simply confirmed that the proposals were in accordance
with the present zoning and offered a number of points of constructive advice
and some reservations.
On
24th September 1998, the Defence Committee called a meeting to find a solution
to the re-location of the Fire Service. At the request of the Policy and
Resources Committee, this was extended to establish the requirements of Police
Headquarters and, in particular, whether that requirement could be met at
Stopford Road. When it became clear, as a result of the investigations, that
Stopford Road was unsuitable for Police Headquarters, the attention of the
Defence Committee turned to the Esplanade car park and the Vice-President of
the Defence Committee discussed the possible siting of Police Headquarters
there with the Chairman of the Waterfront Enterprise Board.
On
4th March 1999, at the request of the Defence Committee, a meeting of major
Committee Presidents was convened to discuss these issues. The Presidents of
Education, Housing and Public Services were invited because of their interests
in the site. The Chairman and Managing Director of the Waterfront Enterprise
Board, which has responsibility for the Esplanade car park site, also attended
the meeting. The Planning and Property Services Departments, fulfilling their
strategic planning and corporate property roles, had identified an opportunity
to use the Esplanade car park for Police Headquarters, the new town primary
school, and other public sector uses. The intention, if the meeting agreed, was
to request the Waterfront Enterprise Board to investigate the opportunity.
Subsequently,
this meeting was misconstrued by some as an example of the Planning and
Environment Committee welcoming one scheme (from Project Immanuel) then putting
forward another (for Police Headquarters). As this report explains, that was
never the case. The Project Immanuel Group now accepts that it misunderstood
the actions of the Committee.
The
Waterfront Enterprise Board has since agreed to carry out the Policy and
Resources Committee’s request to undertake a feasibility study into
accommodating a primary school and Police Headquarters in its area. This will
not preclude an area being available for the Immanuel Centre if the States
agrees.
Housing
The
shortage of housing has been the major strategic problem facing the present
Planning and Environment Committee. The Planning and Environment Committee was
most concerned that the relative equilibrium which had been established up to
1997 had changed so dramatically. Considerable time and effort has been devoted
to this problem. This is set out in greater detail in the Planning and
Environment Committee’s document “What have we been doing?”
The
Planning and Environment Committee is proud of its considered and thoughtful
approach to the housing problem. The rezoning of green fields might have been
expedient at the first request of the Housing Committee. Past experience,
however, shows that the States will not rezone land without sufficient
justification, particularly since this would be in direct conflict with States
strategic policies. Instead, the Planning and Environment Committee in
partnership with the Housing Committee - through the Housing Forum - has broken
new ground with developers, architects, builders, estate agents and financiers
in finding new ways of providing urgently needed homes on sites in the urban
area.
Solving
Jersey’s housing needs in the urban area is a goal not only of the Planning
Committee but of the States as a whole. Senator Shenton, presumably, supported
‘2000 and Beyond’, the Strategic Policy Review 1995 which requested the
Planning and Environment Committee -
“to reflect in its planning
decisions the need to concentrate residential and commercial development as far
as is possible within the existing urban area.”
The
Urban Site Initiative has been welcomed by the four Committees involved:
Planning and Environment, Policy and Resources, Housing and Finance and
Economics. Land has been found for a third of the 900 homes needed before 2003.
More sites will be found as the initiative gathers pace; over thirty urban
sites are currently being examined. As agreed by the four Committees, land on
the edge of the built-up area is also being evaluated over the next three
months, in recognition of the constraints of developing urban sites.
All
this has been a superb example of Committees working together, and the Planning
and Environment Committee reserves special praise for the Finance and Economics
Committee which has so readily produced the funds for site acquisition. Given
this level of co-operation, it is especially disappointing that the President
of the Housing Committee has attached her name to Senator Shenton’s
proposition.
The
current position of the four Committees is quite clear. Three major statements
were agreed at a meeting in February 1999 and subsequently published in
‘Planning for Homes’ (R.C. 10/99) -
1. Most homes can be provided in
built-up areas.
2. It
may be necessary to develop suitable land on the edge of built-up areas.
3. New developments in the countryside
will be restricted.
The
four Committees’ support for the current plan of action was reaffirmed as
recently as 14th April 1999.
Administrative Review Boards
The
Administrative Review Board procedure is being used widely. It gives
individuals who are aggrieved by a decision of any Committee, an avenue of
appeal without facing the costs of taking the Committee to court.
The
impact upon the Planning Department is very great. Senior planners can spend up
to one week preparing the Committee’s detailed statement of facts for the
panel. Nevertheless, in a system which currently lacks any type of formal
Planning Ombudsman and where third-party objectors have no standing in law, the
Review Board system is welcomed by the Committee.
The
new system of Administrative Appeal Boards, using lay-people instead of States
members, is only two years old. It may be time to review its procedures,
especially as two recently-constituted Boards have appeared to simply
substitute their decisions for those of the Committee - something we believe a
Board should not do.
The
Committee finds this section of Senator Shenton’s report astonishing. He is
President of the Special Committee to Consider Relationships between Committees
and the States (which oversees the actions of Review Boards).The Planning and
Environment Committee was seeking to meet with the President and Chairman of
the Administrative Appeal Board to discuss recent decisions, but since the
President has so fixed an opinion about the Planning and Environment Committee,
it seems unlikely the Committee will receive an objective hearing.
The
Committee’s record since the beginning of 1997 is not as Senator Shenton
implies. The Planning and Environment Committee has been requested to produce
thirty-seven statements in response to requests for review boards. Of
these -
on
11 occasions, after receiving the Department’s statement, it was decided not to
hold a Review Board;
on
six occasions the Committee reconsidered its position and granted consent;
five
reports have been submitted and a decision is awaited whether to hold a Review
Board;
three requests, received in
1999, are pending.
A
total of 12 Review Boards were held, of which -
five were found in
favour of the Committee;
one
was adjourned and the Committee subsequently granted consent;
six were found in
favour of the applicant.
Of
the six Review Boards found in favour of the applicants, the Committee accepted
the findings in four cases, has sought clarification in one case and declined
to accept the findings in one case. The President wrote to the Greffier
requesting a meeting with the President of the Special Committee and the two
Panel Chairmen at the beginning of February. The Committee received a reply
from the Greffier in early April but has not yet had an opportunity to fully
consider it.
Windyways, St. Peter
Senator
Shenton completes his report with the case of one of his employees, the owner
of Windyways, St. Peter.
The Committee believes the letter from Mr. Graham Smith, Assistant
Director - Development Control to Senator Shenton dated 20th March 1999 in
response to an appeal explains the position fairly and squarely.
This application to build was also refused by the previous Planning and
Environment Committee in February 1995.
APPENDIX
APPLICATION OF
DANDARA ISLAND HOMES LIMITED TO BUILD PROPERTIES ON THE GROUVILLE BAY HOTEL
SITE - STATEMENT
The President of the Planning and Environment
Committee made a statement in the following terms -
“1. On 19th January 1999 the States approved the proposition of the
Connétable of Grouville (P.2/99) and requested the Planning and Environment
Committee, when considering the application by Dandara Island Homes Limited,
under Article 6 of the Island Planning (Jersey) Law 1964, as amended, for
development permission in respect of the Grouville Bay Hotel site to ensure
that -
best
use is made of the site area; and
the new
building is constructed no higher than the present hotel building on the north
and south-east sides and no higher than two storeys elsewhere on the site.
2. As a result of that decision the
Committee has -
reviewed the
information with which the States was provided;
sought
independent professional advice on the accuracy of the photo-montages presented
to the States by the Connétable on the day of the debate (which, as the
Committee advised the States during the debate, had not previously been
verified) and the accuracy of the physical model provided by Dandara Island
Homes and displayed in the States on the day of the debate;
sought the
written advice of the Solicitor General on the legal consequences of the
Planning and Environment Committee acting in accord with the States decision.
3. As set out in the report of the Committee in response to
proposition P.2/99 -
planning
permission for the construction of a complex of buildings comprising 32
apartments was approved on 14th July 1998, subject to a condition requiring the
redesign of the proposed apartments at the north-west corner of the site;
on 3rd
December 1998 a further planning permit was issued on the basis of amended
proposals which effectively discharged the condition of the 14th July 1998
permission;
on 4th
December 1998 Dandara Island Homes Limited submitted a development application
in accordance with that permission. This application remains to be determined;
on 15th
December 1998 Dandara submitted an application for development permission for
the construction of the same building complex as was approved on 3rd December
but comprising 40 apartments;
there are thus
pending before the Committee two applications for development permission for
the construction of the building complex. Externally the building in each is of
the same dimensions as that for which planning permission was given. They
differ only in the internal layout.
4. In this context it is important to clarify the distinction
between planning permission and development permission -
development permission is provided for
in the Law. The powers available to the Committee to revoke or modify a consent only apply to development permission. There is also a statutory right of appeal
against the refusal of development permission on the grounds ‘that the refusal is unreasonable in all the
circumstances of the case.’;
planning permission is an informal
procedure which has been adopted by successive Committees and approved by the
courts as a matter of practice. It is not provided for in the Island Planning
(Jersey) Law 1964, as amended. Because it is not provided for in the Law -
it
does not entitle the person to whom it has been granted to carry out the
development;
the
Committee cannot exercise its statutory power to revoke or modify it;
the
significance of a planning permission in practice is that if development
permission is refused for an application in respect of which planning
permission has been granted, and the applicant appeals, the previous grant of
planning permission is one of the factors which the court will take into
account when deciding whether the refusal is unreasonable. For that reason the
Committee is constrained as a matter of law to make its subsequent decisions on
development applications consistent
with any previous planning permission, unless there is some new factor relevant
to planning considerations.
5. The Committee, in previously considering the application for
planning permission, responded to the substantial number of representations of
residents. It -
visited
the site
had
profiles erected
attended
two public meetings
insisted on
modifications to the plans to protect those living closest to the site.
It was only when the
Committee was satisfied that the amended plans were in accordance with the
modifications required that it granted planning permission.
6. The planning permission is consistent with the first part of
the States decision of 19th January, that is ‘that best use is made of the site’.
7. With regard to the limitations on height sought by the States
the hotel buildings (now demolished) were single-storey on the south-east side
and on the north they were three-storey in a small part and two-storey
generally. The heights shown in the approved plans are one-and-a-half storey
for the south-east and three-and-a-half storeys for the north. A half-storey
provides accommodation in the roof space.
8. The Committee has been advised that the photo montages
presented by the Connétable of Grouville were generally accurate. However they
are open to misinterpretation because they focus on the ridge height of the new
buildings whereas the eaves height is the normal observational viewpoint. In
addition, one of the images was distorted because of the foreshortened
viewpoint.
The model was also
shown to be accurate as concerns the new buildings. However, the ridge heights
of surrounding buildings were overstated, making comparison unreliable.
Nevertheless, the eaves height comparison of the closest buildings, Maroa
Court, was correct.
9. The decision to grant planning permission was taken after
careful consideration, not of the model but of plans and elevations. These were
of a standard of accuracy normally associated with planning applications.
10. The Committee is conscious on the one hand of the importance of
having regard to the wishes of the States, and on the other hand of the need to
act within the constraints of the law. During the debate on 19th January 1999
the Solicitor General answered general questions on the issue of compensation.
After the debate, the Committee asked the Solicitor General for more
comprehensive advice on the implications of acting in accordance with the
decision of the States in this particular case. The advice which it received is
set out in the following italicised paragraphs.
11. The Committee has been
informed that Dandara have stated that if the Committee refuses the development
application in its present form, they will appeal to the Royal Court under
Article 21 of the Planning Law. Their grounds will be that such a decision is
unreasonable as the Committee had already granted planning permission and that,
in reliance on that permission, Dandara purchased the hotel for £3 million and
incurred costs in preparing the development application. The Committee has been
advised that these are factors which the Court will take into account when
deciding whether the refusal is unreasonable. To refute such an argument the
Committee would need to show that there was some new planning factor which had
not been before it when it made its previous decision.
12. The only new factor is the
decision of the States, and, although the Committee is entitled to have regard
to the views of the States on planning matters, it is not entitled simply to
substitute the views of the States for its own if all that has happened is that
the States have come to a different conclusion on a particular application from
that which the Committee has reached after a full consideration of all material
planning considerations. In the present case the proposition upon which the
request of the States was based raised no new planning factors and therefore is
not of itself a sufficient new consideration.
13. While the outcome would
not be certain, it is virtually inevitable that the appeal would be allowed and
the refusal quashed. In such a case the costs of the appeal would be awarded
against the Committee.
14. Once Dandara had received
a development permission following a successful appeal, it would be open to the
Committee to modify this development permission in accordance with the
provisions of Article 7 of the Law. This in turn is, however, subject (a) to a
statutory right of appeal, again on the grounds that the modification is unreasonable
in all the circumstances of the case, and (b) if there is no appeal, or if any
appeal is unsuccessful, to a statutory right to compensation for expenditure
incurred in carrying out work rendered abortive by the modification and any
other loss or damage directly attributable to the modification.
15. It is impossible to
predict with certainty the outcome of any appeal. It would undoubtedly be
argued on Dandara’s behalf that it was unreasonable for the Committee to modify
a permission which the Court had held should be granted. All that can be said
with confidence is that any such appeal would be very costly and might well end
in the Court quashing the modification and ordering the Committee to pay costs.
16. It is possible that Dandara might not appeal or that an appeal
might be unsuccessful, in which case the modification would stand and Dandara
would be entitled to the statutory compensation. It is certain that a very
substantial claim would be made.
17. The Committee does not believe that this should be contemplated.
It considers the development for which it has already given planning approval
is consistent not only with planning policies but also with that part of the
States decision which required the best use to be made of the site. It has also
already significantly reduced the effect of the development on the properties
in the area, and has achieved an acceptable scheme. There is no new planning
factor.
18. If, in accordance with the States decision, the Committee
refuses development permission for the development in respect of which planning
permission has already been given, the refusal will inevitably be followed by
long and expensive legal proceedings which will probably end in one of two
ways.
19. The first is that Dandara will successfully appeal against both
(a) the refusal of development permission, and (b) any subsequent attempt to
modify the development permission. The final result in that case would be that
Dandara would be able to construct the development for which they already have
planning consent and the Committee would be liable for the costs of the
appeals. There would be no change to the development but there would have been
a significant expenditure of public money.
20. The second is that Dandara would not appeal or they appeal but
the Royal Court upholds the modification. The final result in that case would
be that Dandara would build a reduced scheme which did not make best use of the
site and the public would be liable to pay compensation which, it is believed,
would be very substantial.
21. In this statement I have set out for members the careful and
reasoned analysis which has taken place since the debate in January. It is
clear to the Committee that the proposed development will be built; either by
the granting of a development permit - which will cost the States nothing
but go against a request of this Assembly - or after a long court case
which will surely follow our refusal to issue a permit and will involve the
payment of compensation. The development company has assured us that it will
take the matter to court if it is denied a development permit. The cost of
compensation could be in excess of £2 million, which would be in addition to
both sides legal costs.
Although it has been
requested to do so by the States, the Committee feels it would be reckless and
irresponsible to take an action which will almost certainly result in the
payment of substantial compensation and more than likely fail to achieve the
second aim of the Connétable’s proposition.
Taking all these
factors into account, the Committee has concluded that the only legitimate
course of action is to grant a development permit.”