“Mistakes” may have been made by Planning officials in the case of a builder who was prosecuted for replacing the windows of a historic property he owned – but these do not constitute “misfeasance” in public office, the Royal Court was told yesterday.
Michael John Neville, who had a business buying, refurbishing and reselling properties, claims that eight former and current government workers acted with malice towards him, ultimately leading to his prosecution in the Magistrate’s Court in 2010.
While Mr Neville successfully appealed three years later, he claims that he lost “everything” as a result of a case he believes was the result of “misfeasance in public office” and is seeking damages.
But Advocate Steve Meiklejohn, appearing for the defence yesteday, argued that the bar for misfeasance in public office was high.
He said: “Good faith mistakes or the taking of good faith decisions on an erroneous… basis do not constitute misfeasance.”
Both Planning Enforcement Officer Keith Bray and Planning Officer Marion Jones, the first two defendants to give evidence in the trial, denied ever targeting Mr Neville personally.
Mr Bray said he had “made mistakes”, which were “down… to the language of planning, which can be quite technical sometimes”.
He admitted that, despite an enforcement notice being “serious”, he hadn’t read the full file relating to Mr Neville due to time pressure. A former police officer, he drew an analogy to attending the scene of a crime quickly in his previous role.
The court heard how he had sent an email in which he said Mr Neville didn’t have the “grit” to fight the department, though Mr Bray argued that this was normal language to use in the workplace.
He added that he liked Mr Neville, adding: “I wish him luck, and hope he can get over the bitterness he holds in his heart.”
When interviewing Mr Neville, he had become “confused” about some specifics of the application, he said.
Ms Jones, who allegedly was part of a group of officers in the Planning Department who acted out of “malice” towards Mr Neville, denied that this was the case.
Advocate Mike Preston, acting for Mr Neville, asked her: “Did you have it in for him?”
She replied: “I did not.”
She said she was “surprised” to hear that Mr Neville thought this, adding: “I had so little interaction with Mr Neville.”
Ms Jones had previously refused a planning application by Mr Neville, the court heard, but she said that she made decisions based on merit, following regulations and the Island Plan.
Officials can deal with around 100 applications a year, she said, often with repeated applications from developers.
She added: “I don’t believe my intention was to cause him harm. As Planning Officers, we have to stick to the planning laws and policies that are given.
“We have sympathy with the applicants, we’re not sitting there [saying], ‘Very good, that’s another refusal’.
“It would not have been directed at Mr Neville in a personal way.”
Yesterday, another of the defendants, former Planning Enforcement Officer Jerry Bolton, spoke of the emotional toll the case had allegedly taken.
He said: “It’s caused me extreme anxiety over the last however long this has been going on for.”
He added that he “totally refute[d]” Mr Neville’s allegations.
In his evidence, he described how it was “difficult to get guidance for [his] job at times” and how there was no training.
He also explained how, when he joined the department, Planning cases were referred to the Law Officers’ Department but would often “stagnate” there. Mr Bolton described introducing a system where cases would be referred to the Centenier.
He further denied that he had been “rude” about Mr Neville in an internal email sent ahead of the 2010 trial, in which he referred to Mr Neville’s thought processes as “labyrinthine”.
Advocate Preston asked him: “That’s an incredibly rude way to refer to a member of the public who is paying for the services of the Planning Department, isn’t it?”
Mr Bolton answered: “No, sir.”
Mr Neville alleges that he was unfairly targeted by Planning – for unknown reasons – when he was served an enforcement notice, and eventually convicted, for placing uPVC windows on two listed properties he had bought.
Mr Neville bought 17 and 19 Devonshire Place in 2007, which were listed as ‘Buildings of Local Interest’. At the time, they had metal Crittall windows, the court heard. These had been authorised in the 1970s, replacing the original timber sash windows.
Mr Neville replaced the windows on the rear of the property with UPVC windows, relying on “accepted practice” that this would be fine if they weren’t visible to the public.
He was refused a retrospective planning application.
In 2010, Mr Neville was found guilty in the Magistrate’s Court of breaching planning laws and fined £1,000. However, three years later, he successfully appealed his conviction in the Royal Court.
At the end of last week, the Royal Court heard evidence from an architect who had worked with Mr Neville, Mike Waddington, who spoke about how he felt Planning had become less “pragmatic” over the years, having previously sought to find compromises with applicants.
It also heard from former Senator Ben Shenton, who explained that he had met Mr Neville to help him.
He said he had suggested “leniency” and that he had felt he had been able to find a solution, but that he stopped after he was told that Mr Neville had been threatening towards Planning employees. Later, he found out that these allegations were not true.
The trial continues this morning.
