Planning acted in “oppressive and improperly discriminatory way"

Thursday 23 August 2018

A policeman turned planning officer shouldn’t have been involved in a property dispute that ended up costing a St. Mary homeowner £50,000 due to a previous conflict between the two men, the States Complaints Board has found.

The homeowner in question was Mr Ivor Barette, who was given one of the largest Planning-related fines in the island’s history by the Royal Court, for replacing some rotting windows in his house, Broughton Lodge Farm, a property he had inherited and lived in his whole life.

Throughout his dealings with Planning, he complained that he had been treated unfairly. In particular, he said this was by a Planning Officer who he had made a “substantiated complaint” during his time serving in the Police. 

He took his grievance to the States Complaints Board, telling the members - Deputy Chairman of the Complaints Panel, Stuart Catchpole QC, Janice Eden and Graeme Marett - that the Planning Department made his life "hell" because of an alleged vendetta. 

This morning, they found in Mr Barette’s favour, stating that he was treated in an “oppressive and improperly discriminatory way.”

Pictured: Mr Barette's planning application for the main house was originally approved in 2012.

Janice Eden, one of the members of the Complaints Board said: “This case is a prime example of how the government interacting with private citizens can have an enormous effect both emotionally and financially on those concerned, especially when communication breaks down, as it did in this instance."

Mrs Eden said the Planning Department should have taken into consideration the fact that one of the Enforcement Officers "had been disciplined when he was a police officer following a substantiated misconduct complaint by Mr. Barette," "That officer should not have been involved in Mr. Barette’s case in any way" she added, stating "his continued presence in itself was provocative and antagonistic.”

Graeme Marett, who was also a Board member for this case, said every effort should be made to avoid any conflicts of interest in the future by officers, "especially in relation to compliance matters." "It cannot be just, that someone who was the subject of a substantiated official complaint can then occupy a position of power over the person who made that complaint," he added.

Pictured: Broughton Lodge Farm on La Verte Rue pictured in 2010.

The Board recommends a rigorous procedure to be implemented to review and monitor potential conflicts of interest in relation to those involved in the planning process. They also think a senior manager should be tasked with the responsibility of having such oversight and have the power to intervene, particularly when a complaint is made.

They have also recommended Mr. Barette receives a written apology from the Planning Department.

The case and the reasons for the States Complaints Board’s decision were released in a report this morning. 

What happened? Here’s what the report said…

Mr Barette’s complaint mentioned delays in dealing with his planning applications to renovate his home, but primarily focused on what he described as the “bullying tactics” of two enforcement officers – known only as Mr X and Mr Y – who were previously policemen. Neither of them attended the Complaints Board hearing.

He said that Mr X had waged a “personal vendetta’” against him ever since they had had an altercation in 2004, while Mr X was still serving. Mr Barette was arrested after the incident, but later cleared. He made a substantiated complaint against the officer, which was upheld, and received an apology from the Police’s Deputy Chief Officer.

In 2011, when work started being undertaken on the stables and granite outbuildings, Mr X started to make unscheduled “drop ins” to Mr Barette’s property on his way to, or from, work as well as at weekends, “appearing to use any excuse to harass Mr Barette.”

Pictured: The report concluded that Mr X - one of the Planning enforcement officers involved with Mr Barette's case - had a conflict of interest because Mr Barette had complained about him when he was a member of the Police.

St. Mary Constable John Le Bailly, who has 40 years’ experience in the building industry, was asked whether he’d seen something similar occur. He said that he had not, and that single site visits were usual.

Mr X was said to have told Mr Barette to make a £600 planning application for a chicken-run on an agricultural field, also telling him: “You can afford it.” It later emerged that planning permission was not required.

The officer’s attitude was described as “threatening and intimidating” in a letter sent to the Planning Department’s Chief Officer in 2011. Mr Barette was given reassurance that Mr X would no longer come to his property after that, but he continued to visit, often accompanied by Mr Y. Mrs Barette described their attitudes as “good cop, bad cop”, adding that the way they spoke to her husband was “nasty” and “provocative.”

During the Complaints Board hearing, Senior Planning Compliance Officer Chris Jones said that the pair were the only officers on the enforcement team at the time, stating that there had been other complaints about them. He said that the Planning Director investigated around 12 to 13 complaints in-house each year.

Near the end of 2011, Mr Barette was given permission to renovate his main house. He was asked to repair the windows at the front of the house, but said that they were in such a bad state that he had to remove and replace them. However, the Historic Environment Officer Tracy Ingle said that she was “not entirely convinced” they were beyond repair.

Pictured: Constable of St. Mary, John Le Bailly, said it was unusual for planning officers to make more than one site visit.

Mr Barette said that he was instructed to repair the windows in November 2015, even though they had already been removed. When he challenged the order, the officer allegedly replied: “You will do as I say.”

Mr X and Y subsequently attended the Farm, served an enforcement notice on Mr. Barette, and cautioned him. Mr Barette said he wasn’t told he could appeal the notice.

In September 2016, Mr Barette appeared before the Royal Court, pleaded guilty, and was fined £50,000 for contraventions of the Planning and Building (Jersey) Law 2002.

The Board was told that things had now changed. Visits used to be undertaken in pairs, with cases approached from an enforcement perspective. Mr Jones said that the teams now seek to engage in dialogue with those doing works with an agreed way forward, rather than taking people to court. 

Nonetheless, in Mr Barette’s case, he was adamant that the department had no option but to prosecute him because their enforcement notice was valid, and he had not appealed.

Pictured: The Planning Department, which is based at South Hill, said that they had improved their practices. (Wiki/Danrok)

The Board decided to uphold the complaint. 

They said that the state of the property’s floors and windows would have “undoubtedly been condemned had they been viewed by Planning Officers” and felt that the Historic Environment Officer would have agreed to the windows’ removal had she known they had dry rot. 

They continued: “The excessive monitoring by the two Enforcement Officers, which had created an atmosphere of distrust and conflict, had undoubtedly contributed to the actions taken by Mr Barette leading up to the removal of the windows. 

“The Board does not condone the fact that he decided to take matters into his own hands and dispose of the windows, but it does understand his rationale for doing so.”

The board members also concluded that Mr X’s “shared history” with Mr Barette should have been taken into consideration by Planning, who should have ensured he was not involved with the case in any way. They said his presence was a catalyst “for the breakdown in relations with the Department.”

The Board considered it “extremely unfortunate” that HM Attorney General was not provided with the full background to the case when it reached the Royal Court – the Planning Department couldn’t confirm during the Complaint Hearing if he had been aware of the complaint against Mr X - and that attempts were not made to resolve the case informally before enforcement proceedings were pursued.

They did suggest, however, that Mr Barette had been “somewhat naïve” by undertaking the “wholesale gutting of his property under the mistaken belief that he had permission to do so.” “There was a process to be followed and he had missed a very important step,” they added.

Praise was given to the changes made to the Planning Department’s compliance function, but that this approach should have been taken earlier with Mr Barette. 

Delays in dealing with Mr Barette’s planning applications, which affected him financially as the property has continued to deteriorate, were deemed “unacceptable.” While recognising there was blame on both sides, they felt the Department should have been “more proactive.” 

In future, they recommended improving the procedure for monitoring potential conflicts of interest among Planning staff, and stated that a senior manager should be responsible for having such oversight, as well as the power to intervene, particularly when a complaint is made.

Finally, the board recommended that Mr Barette receives a written apology from the Department.