Planning and Building (Amendment No. 6) (Jersey) Law 2014

Planning and Building (Amendment No. 6) ( Jersey) Law 2014 Arrangement Article 1 Interpretation . 3 2 Article 1 amended . 3 3 Article 9A substituted . 3 4 Article 19 amended . 4 5 Article 21A inserted . 4 6 Article 22A inserted . 5 7 Part 7 amended . 6 8 Further and consequential amendments . 16 9 Transitional and saving provision . 17 10 Citation and commencement 17 Planning and Building (Amendment No. 6) ( Jersey) Law 2014 A LAW to amend further the Planning and Building (Jersey) Law 2002 Adopted by the States 2nd July 2014 Sanctioned by Order of Her Majesty in Council 8th October 2014 Registered by the Royal Court 17th October 2014 THE STATES , subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law – 1 Interpretatio n In this Law, the “principal Law” means the Planning and Building (Jersey) Law 2002 [1] . 2 Article 1 amended In Article 1(1) of the principal Law, before the definition “planning obligation” there shall be inserted the following definition – “ ‘Planning Applications Committee’ means the body exercising functions conferred under Article 9A;”. 3 Article 9A substituted For Article 9A of the principal Law there shall be substituted the following Article – “9A Role of Planning Applications Committee (1) Functions under any of the provisions listed in paragraph (2) may be carried out wholly or partly by a Planning Applications Committee established in accordance with standing orders under Article 48(1) of the States of Jersey Law 2005 [2] . (2) The provisions mentioned in paragraph (1) are – (a) in Part 3, Articles 19 to 23, 26 and 27; (b) in Part 5, Articles 40, 42 and 45; and (c) Orders made under Articles 76 and 81. (3) A Planning Applications Committee holding a meeting for the purpose of carrying out any of its functions under this Article shall – (a) permit members of the public to attend the meeting; and (b) cause to be published in the Jersey Gazette, at least 5 days prior to the date of any such meeting, a notice inviting the public to attend and specifying – (i) the date of the meeting and the time and place at which it is to be held, and (ii) the applications for planning permission or (as the case may be) decisions to be considered at the meeting. (4) Subject to paragraph (3), the Minister may by Order prescribe procedures to be followed by the Planning Applications Committee under this Law. (5) Except as otherwise provided by or under this Article, the Planning Applications Committee shall determine its own procedure. (6) The Planning Applications Committee shall, within the period of 3 months following the end of a year, report to the States – (a) the number of decisions made by the Committee under this Law during that year; (b) the number of appeals made during that year against decisions made by the Committee under this Law; (c) the Committee’s assessment of planning policy and any recommendations it has for its revision. (7) Where, under paragraph (6)(c), the Planning Applications Committee makes recommendations about planning policy, the Minister shall present to the States his or her response to the recommendations.”. 4 Article 19 amended In Article 19 of the principal Law, after paragraph (7) there shall be inserted the following paragraph – “(8) Where representations have been duly made by any person in relation to any application for planning permission, a decision to grant such permission under this Article shall not have effect during the period of 28 days immediately after the decision is made.”. 5 Article 21A inserted After Article 21 of the principal Law, there shall be inserted the following Article – “21A Time limits for determinations (1) The Minister may prescribe a time limit for the determination of – (a) an application for planning permission, under Article 19; (b) an application for planning permission for development already undertaken, under Article 20; and (c) an application to remove or vary a condition of planning permission, under Article 21. (2) If an application of a kind mentioned in paragraph (1) is not determined within the limit prescribed under that paragraph, the applicant may make a request to the decision-maker that the application be determined no later than the end of – (a) the period of 28 days; or (b) such other period as may be agreed between the applicant and the decision-maker beginning with the date of the request (‘the extension period’). (3) If, following a request made in accordance with paragraph (2), there is a failure to determine the application within the extension period, such failure shall be deemed to be a refusal of the application in question for the purposes of an appeal under Part 7 (but where no such appeal is lodged, nothing in this Article prevents the determination of the application after the expiration of the extension period).”. 6 Article 22A inserted After Article 22 of the principal Law, there shall be inserted the following Article – “22A Review of certain decisions (1) This Article applies where a decision is taken, other than by the Planning Applications Committee – (a) to refuse to grant planning permission; or (b) to grant planning permission subject to conditions (other than by virtue of a Development Order). (2) Where this Article applies, the applicant may request a review of the decision in question (the ‘initial decision’) by the Planning Applications Committee. (3) A request for review under paragraph (2) shall be submitted to the Planning Applications Committee no later than the end of the period of 28 days beginning with the date of the decision and shall contain – (a) the applicant’s name and address for correspondence; (b) the reference number of the application in question; and (c) the grounds on which the request is made, including where relevant the reasons why the applicant disagrees with the initial decision and with any reasons for the initial decision. (4) The Planning Applications Committee shall determine the request as soon as reasonably practicable and shall explain the reasons for its determination. (5) The determination of the Planning Applications Committee shall be substituted for the initial decision and – (a) Article 19(8) shall apply to the determination as it applies to a decision made under that Article; and (b) an appeal shall lie under Part 7 against the determination – (i) in the case of a refusal, or of a grant of planning permission subject to conditions, as though it were a decision under Article 19, or (ii) in a case relating to a condition, as though the condition were attached or imposed under Article 23.”. 7 Part 7 amended In Part 7 (Appeals) of the principal Law, the chapter headings shall be deleted and for Articles 106 to 118 there shall be substituted the following Articles – “106 Interpretation and application of Part 7 (1) In this Part – ‘appellant’ means a person aggrieved who brings an appeal under any of Articles 108 to 110; ‘document’, unless otherwise indicated, includes a map or plan, and a copy of a document in paper or electronic form; ‘Greffier’ means the Judicial Greffier; ‘inspector’ means an inspector appointed for the purposes of this Part under Article 107; ‘interested party’ means, according to the context, all or any of the following – (a) the appellant; (b) a third party; (c) a person who, in respect of the same or a related matter as that which is the subject of the appeal in question, has made a representation in writing prior to the decision against which that appeal is brought; (d) the occupier of any property which is the subject of the appeal in question, where such person is not the appellant; (e) the decision-maker; ‘Jersey Appointments Commission’ means the body of that name established under Article 17 of the Employment of States of Jersey Employees (Jersey) Law 2005 [3] ; ‘third party’ has the meaning given by Article 108(4). (2) Reference in this Part to the ‘decision-maker’ is to the person who is entitled under this Law to – (a) make a decision against which a right of appeal lies under Article 108; (b) serve a notice in respect of which a right of appeal lies under Article 109; (c) impose a condition against which a right of appeal lies under Article 110; or (d) exercise the right to enter a dangerous building and undertake work, against which a right of appeal lies under Article 111; and who, in any particular case, has made the decision, served the notice or imposed the condition duly appealed against under this Part. (3) For the purposes of this Part and unless otherwise appearing, a reference to a ‘decision’ includes reference to a refusal, and reference to a ‘refusal’ includes a failure deemed by Article 21A(3) to be a refusal. (4) This Part shall apply without prejudice to the right of any applicant to request a review by the Planning Applications Committee under Article 22A. 107 Appointment of inspectors (1) There shall be appointed as States employees such number of persons as the States may direct being persons who are, to the satisfaction of the Jersey Appointments Commission, capable of acting and willing to act as inspectors for the purposes of this Part. (2) Appointments under paragraph (1) shall be made by the Minister following recommendations made for the purpose by the Jersey Appointments Commission. (3) The list of persons so appointed shall be made available for public inspection at all reasonable hours. 108 Right to appeal against certain decisions, and persons who may appeal (1) A person aggrieved by a decision of a kind listed in paragraph (2) may appeal against that decision. (2) The following decisions are those against which an appeal lies under paragraph (1) – (a) a decision to grant planning permission under Article 19(3), (4) or (5); (b) a refusal under Article 19(6) to grant planning permission; (c) a refusal under Article 20(3) – (i) to grant planning permission for development already undertaken, or (ii) to amend planning permission already granted; (d) a refusal under Article 21(4) to amend planning permission already granted so as to remove or vary a condition of that permission; (e) a decision under Article 10(2)(a) or Article 27 to revoke or modify planning permission already granted; (f) a refusal to issue a certificate of completion under Article 28(1); (g) a refusal under Article 35(4) to grant building permission; (h) a decision under Article 51(2) to include a building or place on the List of Sites of Special Interest; (i) a refusal to remove a building or place from the List in accordance with Article 51(5); (j) a refusal to grant permission to undertake an operation or make a change of use to which Article 54 applies; (k) a refusal to grant permission under Article 55(3)(a) to undertake an activity to which Article 55 applies; (l) a decision under Article 58(2) to include a tree on the List of Protected Trees or under Article 60(5) or (6) to remove a tree from that List; (m) a refusal to grant permission to undertake, in relation to a protected tree, an activity specified in Article 61(1)(a); (n) a refusal under Article 99(1) to grant permission to import or use a caravan. (3) In paragraph (1) of this Article, ‘person aggrieved’ means – (a) for the purposes of an appeal against a decision mentioned in paragraph (2)(a), the applicant for planning permission and any third party; (b) for the purposes of an appeal against a decision mentioned in paragraph (2)(e), the applicant, the owner and (where different) the occupier of the land to which the planning permission relates; (c) for the purposes of an appeal against a decision mentioned in paragraph (2)(h) to (m), the owner and (where different) the occupier of the land on which the building or, as the case may be, the tree in question is situated; (d) for the purposes of an appeal against a decision mentioned in paragraph (2)(n), the owner of the caravan in question; (e) for the purposes of all other appeals to which this Article applies, the applicant. (4) For the purposes of paragraph (3)(a), ‘third party’ means a person, other than an applicant, who – (a) has an interest in, or is resident on, land any part of which lies within 50 metres of any part of the site to which an application for planning permission relates; and (b) prior to the determination of that application, made a representation in writing in respect of it. 109 Right to appeal against certain notices, and grounds of appeal (1) This Article applies in respect of the following types of notice under this Law – (a) a notice served under Article 5(4) declaring that the deposit of refuse or waste material will constitute development; (b) a notice served under Article 10(2)(b) requiring work to be undertaken or a development to be modified; (c) a notice served under Article 26(2) terminating planning permission by reference to a time limit; (d) an enforcement notice served under Article 40(2); (e) a stop notice served under Article 45(2); (f) a notice served under Article 47(2) to enforce a condition of planning or building permission; (g) a notice served under Article 54(7) requiring an injury to a site of special interest to be made good; (h) a dangerous building notice served under Article 66(2); (i) a land condition notice served under an Article of Chapter 6 of Part 5. (2) A person aggrieved by a notice in respect of which this Article applies may appeal against the notice on all or any of the following grounds, namely – (a) that the matters alleged in the notice are not subject to control by this Law; (b) that permission has already been granted under this Law in respect of the matters alleged in the notice; (c) that at the date of service of the notice no or no expedient action could be taken to remedy the alleged breach; (d) that the person was not the proper person to be served with such a notice; (e) that the matters alleged in the notice have not in fact occurred; (f) that the requirements of or conditions in the notice exceed what is reasonably necessary to remedy any alleged breach of control or make good any injury to amenity; (g) without prejudice to the generality of sub-paragraph (f), that any time period imposed by the notice for compliance with its requirements falls short of the time which should reasonably be allowed for such compliance; (h) subject to paragraph (4), where the notice is an enforcement notice served under Article 40(2), that in all the circumstances planning or (as the case may be) building permission should be granted in respect of the development in question; (i) where the notice is a notice served under Article 47(2), that the condition with which compliance is required by the notice should be discharged. (3) Where an appeal is brought on any ground stated in paragraph (2), the appellant shall not be entitled to allege, in any further or other proceedings instituted after the appeal, that the notice which is the subject of the appeal was not duly served. (4) An appeal may not be brought on the ground stated in paragraph (2)(h) unless the notice of appeal is accompanied – (a) in addition to any fee prescribed under Article 112(2)(b), by the fee prescribed under Article 9(3)(a) in relation to an application for planning permission; (b) where the appellant is not the owner of the land in question, by a certificate as required by Article 9(3)(b). (5) In this Article, a ‘person aggrieved’ is the person on whom the notice in question is served. 110 Right to appeal against certain conditions (1) This Article applies in respect of conditions attached to a grant of permission under any of the following provisions of this Law – (a) a condition attached under Article 23 to a grant of planning permission (a ‘planning condition’); (b) a condition attached under Article 37 to a grant of building permission (a ‘building condition’); (c) a condition attached under Article 55(6) to a grant of permission to undertake a restricted activity on a site of special interest (a ‘restricted activity condition’); (d) a condition attached under Article 101(1) on the importation or use of a caravan. (2) A person aggrieved by a condition in respect of which this Article applies may appeal against the condition on such of the following grounds as apply in respect of the particular condition in question, namely – (a) in respect of a planning condition, that the condition does not fairly and reasonably relate to the proposed development; (b) in respect of a building condition, that the condition does not fairly and reasonably relate to the proposed prescribed building work; (c) in respect of a restricted activity condition, that the condition does not fairly and reasonably relate to the protection of the special interest of the site; (d) in respect of a condition attached under Article 101(1), that the condition does not fairly and reasonably relate to the importation of the caravan or (as the case may be) the use of the caravan in Jersey. (3) In this Article, a ‘person aggrieved’ is the person to whom the permission in question is granted. 111 Right to appeal against entry into building (1) This Article applies in respect of an entry under Article 71 to a building appearing to the Minister to be dangerous and in respect of the undertaking of work under that Article. (2) A person aggrieved by a matter in respect of which this Article applies may appeal against it on all or any of the following grounds, namely – (a) that the building in question is not immediately dangerous as alleged; (b) that the entry was unjustified, for the reason given in sub-paragraph (a) or any other reason; or (c) that the extent or nature of the work undertaken was unreasonable. (3) In this Article, a ‘person aggrieved’ is a person on whom a notice may be served under Article 71(3). 112 Notice of appeal: proper form, time limits and fee (1) An appeal under this Part must be made by notice of appeal duly given in accordance with this Article. (2) A notice of appeal must – (a) be in such form as shall be prescribed for that purpose; (b) be accompanied by the prescribed fee; and (c) contain or be accompanied by such further particulars as may be prescribed or as may reasonably be required by the Greffier. (3) The notice of appeal must be received by the Greffier no later than the end of the period of 28 days beginning – (a) in the case of an appeal under Article 108, with the date of the decision against which the appeal is made; (b) in the case of an appeal under Article 109, with the date of issue of the notice containing the requirement or condition against which the appeal is made; or (c) in the case of an appeal under Article 110, with the date of grant of the permission containing the condition against which the appeal is made; (d) in the case of an appeal under Article 111, with the date of the entry in respect of which the appeal is made. (4) Where the Greffier receives a notice of appeal which fails to comply with any of the requirements imposed by paragraph (2), the Greffier may – (a) reject the notice, and in such a case no appeal shall lie under this Part or otherwise against that rejection; or (b) may invite the appellant to remedy any defect in the notice by submitting, within the period of 14 days beginning with the date of the invitation, such further material (including any fee or additional fee) as the Greffier may request. 113 Registration of appeal, nomination of inspector etc. by the Greffier (1) Upon receipt of a notice of appeal in accordance with Article 112, the Greffier shall – (a) notify the decision-maker that an appeal has been registered; (b) invite each interested party to submit all documents relevant to the decision appealed against, and any supplementary statement, by no later than the end of the period of 28 days beginning with the date of the invitation; and (c) ensure that the appeal is publicised, and provision is made for representations to be provided by members of the public, in the same manner as prescribed under Article 11 in relation to an application for planning permission in the first instance. (2) As soon as practicable after the end of the period mentioned in paragraph (1)(b), the Greffier shall – (a) nominate an inspector to conduct the appeal, from the list of persons appointed for that purpose under Article 107; (b) in the case of an appeal proceeding by way of written representations, take all necessary steps for the due administration of any prescribed procedure, including notifying all interested parties of the identity of the nominated inspector; (c) in the case of an appeal proceeding by way of a hearing, take all necessary steps for conducting the hearing and for notifying all interested parties of the date, time and place of the hearing; (d) obtain, and send to the inspector, all documents necessary for the proper determination of the appeal. (3) A supplementary statement under paragraph (1)(b) and any response to such a statement shall be in writing and in the form (if any) which may be prescribed for the purpose. (4) Any document received from one interested party shall be circulated by the Greffier to all other interested parties without undue delay, and in any case no later than the time when such a document is sent by the Greffier to the inspector. (5) The appellant may withdraw the appeal by notice in writing given to the Greffier at any time. 114 Appeal procedures (1) Subject to paragraphs (2), (3) and (6), the following kinds of appeal shall be determined by way of consideration of written representations – (a) an appeal under Article 108(2)(b) against a refusal to grant planning permission; (b) an appeal under Article 110(1)(a) against a condition attached to a grant of planning permission; (c) an appeal under Article 108(2)(f) against a refusal to grant a certificate of completion; (d) an appeal under Article 108(2)(g) against a refusal to grant building permission; (e) an appeal under Article 110(1)(b) against a condition attached to a grant of building permission; (f) an appeal under Article 108(2)(h) against a decision to include a building or place on the List of Sites of Special Interest; (g) an appeal under Article 108(2)(k) against a refusal to grant permission in relation to an activity on a Site of Special Interest; (h) an appeal under Article 108(2)(l) against a decision to include a tree on the List of Protected Trees; (i) an appeal under Article 108(2)(n) against a refusal to grant permission to import or use a caravan; and (j) an appeal under Article 110(1)(d) against a condition attached on the importation or use of a caravan. (2) An appeal of a kind mentioned in sub-paragraph (a) or (b) of paragraph (1) shall be determined by way of written representations only in a case where no representations (except representations by statutory bodies) were made in relation to the application which gave rise to the appeal. (3) An inspector nominated to hear a particular appeal of a kind listed in paragraph (1) may, notwithstanding that paragraph, deal with the appeal by way of a hearing – (a) on the application of any party; or (b) on his or her own motion, but in either case following consultation with all the parties. (4) Subject to paragraphs (5) and (6), appeals of all kinds other than those listed in paragraph (1) shall be determined by way of an appeal hearing. (5) An inspector nominated to hear a particular appeal of a kind not listed in paragraph (1) may, notwithstanding that paragraph, deal with the appeal by way of written representations – (a) on the application of any party; or (b) on his or her own motion, but in either case following consultation with all the parties. (6) An inspector nominated to hear a particular appeal of any kind may, if the inspector considers that any of the issues in that appeal should be more properly addressed by way of a public inquiry, make a recommendation to such effect to the Minister. (7) If the Minister declines to accept a recommendation by an inspector under paragraph (6), the appeal shall be determined under paragraph (1) or paragraph (4) (as the case may be) as though paragraph (6) were of no effect. 115 Conduct of appeal by inspector (1) The inspector shall, without undue delay, consider the appeal and all supplementary statements and other documents provided under Article 113 in relation to the appeal. (2) In considering an appeal by way of written representations the inspector shall take into account all representations duly received from the appellant, the decision-maker, and any other interested parties. (3) In relation to the conduct of an appeal hearing the inspector may determine all matters of procedure, including but not limited to – (a) the use of cross-examination; (b) the use and admissibility of expert evidence; and (c) the exclusion of any person from the hearing in the interests of good order. (4) For the purposes of this Article the inspector may – (a) impose any reasonable conditions (including, but not limited to, conditions as to the contents of any evidence, number of witnesses, duration of a hearing, or number and length of supplementary statements); (b) invite any Minister or other body or person to provide expert advice or opinion (whether or not that Minister, body or person has previously given evidence, or been acknowledged as a party interested, in the appeal in question); (c) hold a meeting of such parties and for the purpose of investigating such issues as the inspector may determine; (d) request from any interested party such further and better particulars (whether in writing or by way of oral evidence at a hearing) as the inspector may reasonably require to reach a decision; (e) carry out an inspection of the site to which the appeal relates. (5) Following the consideration of written representations or (as the case may be) the appeal hearing, the inspector shall make a report in writing to the Minister and the report shall include – (a) the inspector’s recommendation as to the determination of the appeal; and (b) the reasons for such recommendation. 116 Minister’s decision on appeal, etc (1) Having considered the inspector’s report under Article 115, the Minister shall determine the appeal, and in so doing shall give effect to the inspector’s recommendation unless the Minister is satisfied that there are reasons not to do so. (2) For the purposes of paragraph (1) the Minister may – (a) allow the appeal in full or in part; (b) refer the appeal back to the inspector for further consideration of such issues as the Minister shall specify; (c) dismiss the appeal; and (d) reverse or vary any part of the decision-maker’s decision. (3) As soon as practicable after the Minister has determined the appeal, the Minister shall give notice in writing of the determination to – (a) the appellant; (b) the Greffier; (c) the decision-maker; and (d) any other interested party. (4) The Minister shall make reasonable arrangements for access by the persons mentioned in paragraph (3) to the inspector’s report under Article 115, and the notice given by the Minister under that paragraph shall include – (a) details of how copies of the inspector’s report may be obtained or where the report may be viewed, or both, as the case may be; and (b) if and to the extent that the Minister does not give effect to the inspector’s recommendation, the full reasons for the Minister’s decision. (5) No further appeal shall lie from the Minister’s determination under this Article except on a question of law arising from the appeal, which question may be referred to the Royal Court. (6) The power to make rules of court under Article 13 of the Royal Court (Jersey) Law 1948 [4] shall include the power to make rules regulating practice and procedure in relation to references under paragraph (5) of this Article. (7) Where the Minister refers an appeal back to the inspector under paragraph (2)(b), the inspector shall as soon as practicable produce a supplementary report and recommendation to the Minister, and – (a) the Minister shall thereupon determine the appeal; and (b) this Article, except for paragraph (2)(b), shall apply to that further determination. 117 Effect of certain appeals pending determination (1) Subject to paragraph (2), in the case of any appeal under Article 108 the decision against which the appeal is brought shall remain in effect until determination. (2) In the case of an appeal under Article 108(2)(a), the development permitted by the grant in question shall not take place until determination. (3) In the case of any appeal under Article 109 except an appeal against a stop notice as mentioned in Article 109(1)(e), the notice in respect of which that Article applies shall cease to have effect until determination. (4) In the case of an appeal against a stop notice as mentioned in Article 109(1)(e), the stop notice shall remain in effect until determination. (5) In the case of an appeal under Article 110, the condition in relation to which the appeal is brought shall remain in effect until determination. (6) In the case of an appeal under Article 111 – (a) the Minister may direct that any work being undertaken shall cease; but (b) if no such direction is given and an appeal in respect of the work succeeds in whole or in part, Article 72 shall not apply. (7) In this Article, ‘determination’ means – (a) determination by the Minister in accordance with Article 116; or (b) the withdrawal of the appeal.”. 8 Further and consequential amendments (1) The States may make Regulations for the purpose of further or consequentially amending any enactment (including the principal Law, and whether or not already amended by this Law) so far as necessary or expedient for giving full effect to this Law. (2) Regulations under paragraph (1) may, in particular, amend the principal Law so as to provide that any function of the Minister under the principal Law (other than a function of making an Order or determining an appeal) is transferred to another person or description of persons. (3) In Article 48 of the States of Jersey Law 2005 [5] , after paragraph (3) there shall be inserted the following paragraph – “(3A) Standing orders made under paragraph (1) shall – (a) establish a Planning Applications Committee; (b) require the States to appoint an elected member, who is not a Minister, to be its chairman; and (c) require the States to appoint to be members of that Panel at least 3 and no more than 9 elected members who are not Ministers.”. 9 Transitional and saving provision Where at the date of commencement of this Law an appeal under Chapter 2 of Part 7 of the principal Law has been made to, but not yet heard by, the Royal Court, that appeal shall proceed to final determination by the Royal Court as though that Chapter were still in force and unamended by this Law. 10 Citation and commencement This Law may be cited as the Planning and Building (Amendment No. 6) (Jersey) Law 2014 and shall come into force on such day or days as the States by Act appoint. m.n. de la haye, o.b.e. Greffier of the States [1] chapter 22.550 [2] chapter 16.800 [3] chapter 16.325 [4] chapter 07.770 [5] chapter 16.800