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IN-DEPTH: Court rules Bouley Bay luxury home inquiry “unlawful”

IN-DEPTH: Court rules Bouley Bay luxury home inquiry “unlawful”

Thursday 25 August 2022

IN-DEPTH: Court rules Bouley Bay luxury home inquiry “unlawful”

Thursday 25 August 2022


The former Environment Minister’s decision to hold a planning inquiry into the proposed redevelopment of the Water’s Edge Hotel into a luxury home was “unlawful”, the Royal Court has ruled.

The applicants, WE Jersey, argued in a judicial review hearing last month that a series of emails – including one where he describes his decision as “not negotiable” – were proof former Deputy John Young had shown bias against the Bouley Bay application.

They also argued that the reasons given by the Minister for launching into a planning inquiry – the island's housing needs and the Coastal National Park – were inadequate.

While Commissioner Julian Clyde-Smith disagreed that there was "pre-determination" on the Minister's part, he agreed that his references to the Coastal National Park and the island's housing needs were not sufficient to justify a planning inquiry and subsequently ruled it "unlawful".

Express looks into the detail of the case...

A luxury development

Plans to convert the Water's Edge into a home with guest accommodation, a pool, tennis courts and extensive landscaped gardens were first put forward in June last year, attracting 188 public comments – of which the court heard just 48 were objections.

Many of the letters of related to the possible loss of the dive centre and to a lesser extent, the impact on Mad Mary's Café, which is on tenanted land not covered by the Scheme.

The scheme had the support of all of the immediate neighbours, the Architecture Commission, who described it as an "exemplary" development, and Trinity Constable and Planning Committee Chair Philip Le Sueur was also in favour.

"Not negotiable"

Mr Young wrote to planning officials on 1 August, while he was apparently on holiday, stating:

"In view of the huge public response and importance of our CNP. [Coastal National Park] I hereby call this application into a planning inquiry.

"Please acknowledge and confirm my instruction. Not negotiable."

Prompted by a BBC Jersey radio interview with the Constable two days later, the Minister wrote:

"Extra reason not that I needed it. Phil going on radio and promoting the development this morning. He declared an interest and indicated intention to withdraw but as chair of the Planning Committee the perception and probably the reality it was intended to influence decision and personally consider it unwise."

Constable Le Sueur replied by saying he would step aside as Planning Chair to avoid being conflicted and to enable him to represent his parishioners on the matter.

"Hi Phil. My apologies for such an abrupt message but I always like to be open and up front. I am out of the island in Alderney and trying to divide my time with family hols and keeping my duties up. The bigger reason is the loss of tourism on prime sites in the CNP [Coastal National Path] and emerging policy in the IPlan for policies to not stop but prevent an uncontrolled loss. Residential is one thing but dedicating such to High net worth people has potential for major impact on the community. Same as at Greve de Lecq and St Brelade. Speak when I get back on the points you raise. Thanks for your email accept your intentions entirely just the wider issues."

The Constable responded:

"My (limited) understanding of the requirements to call a scheme in for public inquiry is that the proposal represents a departure from the current Island Plan (which I don't believe this is) and if the development would be likely to have a significant effect on the interests of the whole or a substantial part of the population of Jersey (which it won't).

"Simply because there is significant public interest in an application does this warrant 'calling it in? There were a similar amount of written reps for the recent Portelet Bay Café but this wasn't called in."

Warnings from officials

Upon returning from holiday, Mr Young wrote to senior planning official Peter Le Gresley to start the process for launching an inquiry. Mr Le Gresley warned him against this, telling him:

"A couple of things on this if I may. I've always thought it part of my role to protect the office of the Minister from decisions which may later to be questionable or subject to legal challenge. Regrettably with us being in the holiday season, I have not had the opportunity to discuss this matter with you. Nor has the chairman of the Planning Committee, who has asked for an opportunity to do so."

He went on to explain that he didn't believe the thresholds for a planning inquiry had been met, before noting that the developer already seemed to be aware of his inquiry plans.

"...his agent telephoned me on Wednesday morning to discuss this issue – you may be assured that your intention was not leaked out of this office."

The matter was discussed in a departmental meeting in early September in which the Minister spoke of the "urgent need for housing in Jersey and, in turn, the requirement for land to meet this demand" – something Mr Le Gresley did not consider was a "relevant planning issue".

Another senior Planning official, Kevin Pilley, wrote in a message on 22 September that he felt using a reference to housing policy contained in the Island Plan would be a "stretch".

As well as referring to the island's "urgent and pressing housing need", the final Ministerial Decision issued to call a planning inquiry also referred to the Coastal National Park and need to "conserve and enhance its natural beauty", as well as Bouley Bay's status as a "special place for many islanders".

A failure "fatal" to the legality of the decision

During the hearing last month, Advocate McNulty conducted what the court described as a "forensic analysis" of the reasons provided by the Minister for holding a planning inquiry, arguing that he had failed to "understand and lawfully apply" the article of the law giving him the power to initiate a planning inquiry.

The threshold for a planning inquiry can only be met if it can be explained why a development is "likely" to have a "significant" effect on the interests of a substantial part of the population.

Commissioner Clyde-Smith agreed that the Minister had not done this.

"If one accepts that in making the very broad assertion that Bouley Bay is a special place for many islanders and is associated with historic cultural activities, the Minister has identified the interests of a substantial part of the population, the Minister does not explain why the Scheme is likely to have a significant effect on those interests, and it is not enough to say that it is implied," he said.

He later continued: "Whilst he may have identified what the interests of at least a substantial part of the population are, he has not explained why the Scheme is likely to have a significant effect on those interests. That failure is fatal to the legality of the Decision in that it shows either that the Minister did not understand the threshold or that he was unable to explain why the threshold was met.

"Either way the Decision must be set aside as unlawful."

Pre-determination?

During the hearing, Advocate McNulty also described the Minister's handling of the Water's Edge application as a "classic case of predetermination".

The Royal Court's consideration of this argument largely revolved around the Minister's use of the phrase "not negotiable".

"At the very least it does seem that the expression "negotiable" requires in the context of this matter some explanation," Advocate McNulty pointed out.

However, "no explanation has been forthcoming from the Minister, who has not provided any evidence", the court observed.

Advocate James Rondel argued that the language in the email – apparently sent when Mr Young was on holiday – was unfortunate.

"I accept that the language is unfortunate and that there is no explanation forthcoming from the Minister as to what he meant, but I presume he meant that his instruction to call in the planning applications was not negotiable within the department," the Commissioner said.

However, he went on to find that the Minister had shown a "predisposition" rather than "pretermination".

He noted that, while the instruction had been described as "non-negotiable", the Minister "did agree to take no action until he returned from holiday and had a meeting", "later referred to it as a request rather than an instruction", and attended two more meetings "where it is recorded that he did consider the advice given by the department and did consider and weigh up a number of factors", before a decision was made on 1 October 2021.

"It was a procedural decision for him alone to make, but taking into account all of the circumstances, and in particular the subsequent conduct of the Minister, I conclude on balance that this falls on the right side of demonstrating a predisposition on the part of the Minister to call in the planning applications as opposed to a predetermination to do so. He had not closed his mind to the consideration and weighing up of relevant factors in the period leading up to the Decision," the Commissioner wrote.

The Government's response

Reacting this morning, the new Environment Minister, Deputy Jonathan Renouf, said: "I am aware of the judgment from the Royal Court relating to the public inquiry called by my predecessor.

"I am now considering the various options available to me.

"It would not be right for me to comment further at this point."

READ MORE...

"Gaping hole" in Water’s Edge inquiry decision, court hears

Water's Edge applicant wins first round in fight to stop planning inquiry

Legal fight to block inquiry into Bouley Bay luxury home plan

Agreement reached on future of Bouley Bay Dive Centre

Future of Bouley Bay diving business 'uncertain'

Plans to convert former Bouley Bay hotel into single landscaped home

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