Does Reforming our planning appeals system make sense? A view by our Planning correspondent, SONIA SMITH, a property lawyer at Lambert Legal
This is an expanded version of the article that appeared in the Spring issue of RURAL – Jersey Country Life magazine
WE are all accustomed to reading about high profile planning appeals in the Jersey press. So highly politicised is this area of law that we have also become accustomed to heated discussions around the dining table regarding whether or not various sites on our precious Island should be developed or not.
Whatever your view, planning decisions would appear to be emotive issues and ones that spark a great deal of interest from the general public. Certainly, recent public consultations on planning reforms, such as to the appeals system and to the policies of our Island Plan, have been a useful exercise. So what is all the fuss about? How does the planning appeals system work and how are the reforms relevant to the average Jersey homeowner?
Currently, there are three main options open to Jersey residents who are aggrieved by a planning decision and wish to make an appeal. First, applicants have the right to make a request for reconsideration if their planning application is refused by a planning officer under delegated powers. This does not apply to a refusal by the Planning Applications Panel or the Planning Minister in the first place. The request must be made to the Planning Applications Panel within two months of the date of the refusal. This right is for applicants (or their agents) only (ie it is not available to third parties), and it may only be used to appeal a refusal of planning permission where the applicant genuinely believes it was unreasonably refused. Following the request for reconsideration the Planning Applications Panel will reconsider the refusal at a public Panel meeting, at which any party may speak for a brief period.
The second option is open to applicants and (certain) third parties alike. This is making an appeal to the Royal Court. The appeal must be lodged within 28 days of receipt of notification of the offending planning decision (14 days for third parties), and planning approvals do not come into effect until 28 days after the decision is made, in order to enable time for appeal.
In order to be allowed to appeal, third parties must have already made an objection or commented on the planning application, and must live in (or own) land within fifty metres of the development site. Third parties have only had this right since 2007 in Jersey and do not have it in Guernsey, England and many other jurisdictions.
Although it is important for homeowners to be able to protect their property and the environment in which they live from unsightly or overbearing development nearby (albeit that the planners should be taking care of that!), it is also important that this right is not abused or used to frustrate development. The fact that it is such a costly and time consuming matter to appeal to the Royal Court is a mixed blessing in that regard. It acts as a deterrent to the Court being misused by warring neighbours, but at the same time could be seen to be denying the average homeowner the opportunity to exercise his or her right to appeal.
The third (and cheaper) option available to applicants and third parties is to appeal to the States of Jersey Complaints Board. This Board (made up of independent volunteers) hears complaints about all sorts of States decisions, not just planning decisions. However, unfortunately the Planning Minister is not bound by the Board’s decision, even if it finds the planning decision to have been unreasonable, so this avenue should not really be used as an alternative to a Royal Court appeal unless it really is the only viable option. It is a remedy of last resort and the States do bill it as such. Another such option is that of judicial review, which will only be granted if no other remedy is available under the Planning law or any other laws of Jersey. In order to succeed in a judicial review the applicant must be able to prove that the planning decision was fundamentally unlawful on the grounds of illegality, irrationality or procedural impropriety. In other words, there must have been something invalid about the decision, rather than it simply being unreasonable (or right or wrong).
Clearly the system could benefit from reform and the reforms are thankfully underway. We await the establishment of the new Planning Appeals Tribunal set for this summer, but looking more likely to be up and running by January 2015.
This Tribunal will enable appeals to be accessible to ordinary people at a reasonable cost, and it is hoped that decisions will often be based on written submissions alone. Appeals will be heard by members of the Tribunal, which will include a legally qualified Chairman and independent planning inspectors who are experts in their field, bringing Jersey into line with the rest of the British Isles.
The Minister for Planning will still make the final decision (after all he is democratically accountable), but he will step away from making original planning decisions and will ultimately have to provide very good reasons for departing from the recommendations of the Tribunal.
The test on appeal is also set to change, with each appeal being reconsidered on its planning merits, rather than against the current test, which (put simply) requires a decision to have been so mistaken as to be unreasonable, before it may be overturned. This test is very high and many appeals fail or never proceed to trial as a result.
The new system is bound to result in more planning appeals. The merit based approach may be fairer, but how viable it is for a jurisdiction which allows third parties to appeal as well as applicants remains to be seen. The English and Guernsey models have a merit based approach but importantly each of these jurisdictions have resisted allowing third parties the benefit of it. In the words of our Planning Minister “I don’t want to end up with a system whereby everybody will be challenging every decision”.
At the end of the day, the devil will be in the detail, which is being worked out as we speak, and it will be interesting to see how these developments work out in practice.