Introduction

Jersey's planning appeal process is about to change radically.

On 24 February 2015, the States of Jersey approved the regulations which will bring the Planning and Building (Amendment No.6) (Jersey) Law 2014 ("Amendment No.6") into force on 10 March 2015. Amendment No. 6 will introduce a new appeals process for decisions made or actions taken under the Planning and Building (Jersey) Law 2002 ("Planning Law"). 

At present, the right to appeal a planning decision normally requires individuals to take their complaint to the Royal Court, a process which has been criticised in the past as being too daunting, expensive and complex.  The Minister for Planning and Environment's ("Minister") view was that the present system also lacked democratic accountability, given that the ultimate decision to determine any planning appeal had to be taken by the (unelected) judiciary. The new regime aims to simplify the existing process and to bring it wholly within the Minister's domain.

From 10 March 2015, appeals under the Planning Law will be considered by an independent inspector.  The inspector will then assess the matter on its merits and make a recommendation to the Minister and the Minister, having considered that recommendation, will determine the appeal.   

Key Features of the New Appeals Process

The key features of the new system can be summarised as follows:

  • Appeal to independent inspector:  From 10 March 2015, appeals will be submitted to the Judicial Greffier.  The Greffier will allocate an independent inspector to each appeal.  Inspectors will be chosen from a panel of qualified and experienced inspectors recruited via the Judicial Appointments Committee. 
  • Format of appeal:  The independent inspector will consider the appeal on its merits either by written submissions or by convening a hearing (chaired by the inspector) for interested parties.  Following consideration of the merits of the appeal, the inspector will make a recommendation to the Minister. 
  • Inspector's recommendation not binding:  The independent inspector's recommendation will not be binding on the Minister.  It will be open to the Minister to depart from the recommendation, albeit that such variation would need to be explained.  A further right of appeal from the Minister's decision will lie to the Royal Court.  However, further appeals will only be allowed in limited circumstances (i.e. where there is a question of law arising from the appeal).
  • Change to the Minister's role: Amendment No.6 also makes some consequential amendments to the Planning Law.  These amendments effectively remove the Minister from first-tier decision making in respect of planning applications.  Currently, there are various ways in which the Minister may influence planning decisions.  The new regime aims to achieve greater fairness and democratic accountability by removing the Minister from initial consideration of matters which could later be the subject of appeal. First-tier decisions will now be taken by either planning officers or by the Planning Applications Committee (formerly the Planning Applications Panel). The Minister will no longer take any first-tier decisions but instead will have the final decision-making power in respect of appeals and remain responsible for setting planning policy and guidance.  
  • Administration of the new system:  A fee will be payable in respect of an appeal under the new process.  The fee will be set by Order, but will vary depending on the type of appeal.  All parties will be expected to bear their own costs in respect of the appeal, as there are no provisions to award costs under the process.
  • What decisions will be subject to the new process:  A number of key decisions or actions made under the Planning Law will be subject to the new rules on appeals, for instance (amongst other things):
    • The refusal to grant planning permission
    • The refusal to approve or amend an application for planning permission for development which has already taken place
    • The refusal to vary a previously approved application for planning permission
    • The refusal to grant a certificate of completion (confirming a development has taken place in accordance with a previously approved planning permission)
    • The refusal to grant permission for the importation or use of a caravan in Jersey
    • The imposition of a condition on any permission previously granted
    • The inclusion of buildings/trees/places on relevant lists for their protection
    • The granting of planning permission – on appeal by a third party

Planning applications which have been subject to Public Inquiry will not be subject to the revised process and will still be determined by the Minister.

Comment

The reform of Jersey's system of planning appeals has been a very slow process; a merits based right of appeal to an independent tribunal was first proposed in 2001.

Interestingly Jersey, by not giving the independent inspector full jurisdiction to determine appeals, has not gone as far as some other equivalent jurisdictions (notably Guernsey and the Isle of Man). From 10 March 2015 the Minister, and not an independent tribunal, will become the ultimate decision maker for all planning appeals. It therefore remains to be seen if, how and when the Minister will depart from the independent inspector's (non-binding) recommendations and moreover whether Amendment No. 6 will deliver a more accessible, efficient, cheaper system, as envisaged.