Planning tribunal ignored crucial information in Les Blanches case

In my letter I instanced a proposal to build on agricultural land which had been rejected twice by the (political) board of the Environment Department only for an unelected Planning tribunal to allow the appeal. I placed the responsibility for that controversial decision on the presiding member of the tribunal, Stuart Fell, a retired professional planning inspector from Jersey.

The reply from the Planning Authority firstly identified the planning application to which I was referring as being the one involving top-class agricultural land at Les Blanches, St Martin’s, which was finally allowed at appeal in October 2017. It secondly sought to reject my assertion about Mr Fell by stating that the decision to allow the appeal was the decision of the two local lay (i.e. non-professional) members of the tribunal, Sheelagh Evans and David Harry.

I have to thank the Planning Authority for two things. Firstly, by identifying Les Blanches I can now deal in specifics rather than in generalities. Secondly, presuming that the Planning Authority actually did ask the Planning Panel how the vote went and were told that Mr Fell did not cast a vote, I must thank them for the information. At long last I have the answer to a question I asked of the Planning Panel after the verdict – ‘Did the presiding member, Mr Fell, have to use his casting vote?’ – and was told, basically, that it was none of my business. I, therefore, hope that the Planning Department did actually check with the Planning Panel that it was OK to tell me as I’d hate to think that I might have got anyone into trouble for letting that confidential information out of the bag.

However, whether Mr Fell did or did not actually vote is somewhat irrelevant (as the Planning Authority well knows) because the presiding member essentially runs the whole show in whatever way he (or she) wants. That gave Mr Fell immense power to guide the tribunal in whichever direction he wanted. He might not have pulled the trigger but he was the professional advising the other two where to point the gun.

He was responsible for how the tribunal should assess the appeal and he chose to rerun the whole business from the very beginning. Only the appellant has the right to address the appeals tribunal; anybody else has to be invited by the tribunal. Had the tribunal wanted to have as full a picture as possible so that it came to the correct decision, they could have asked for as many witnesses as they wanted. Mr Fell chose to invite the bare minimum, especially not, as it turned out, anybody whose evidence might have turned out to have been against the verdict that was eventually reached. Happenchance or deliberate? I leave it up to others to make that judgement.

1. Had he wanted to get the full accurate picture of why the proposals had been rejected he could have invited those with information that would have been of the greatest relevance to the appeal. These would have been those planning board members who had rejected the proposals for any reason other than that there were too many houses crammed into too little space. (This was suggested to the tribunal well before the hearing.) Had that suggestion been followed, it would have meant inviting Dep. Adv. Haward, who in the first open planning meeting succinctly stated that the proposal did not meet the requirements of Policy RH2, and, from the second open planning meeting, deputies Tindall and Oliver who cast doubts on the suitability of the social housing. The benefit of having such information is irrefutable, especially as Policy RH2 was unique in the Rural Area Plan because it gave the board members discretion to apply RH2 or not. The policy stated: ‘Where a need has been established by the Housing Department for specific forms of social housing, then the provisions of Policy RH2 may (my emphasis) at the Environment Department’s discretion (my emphasis) override those of Policy RH1.’ Policy RH1 specifically stated that ‘The provision of new housing through other means, such as new-build, will not be permitted unless the proposal fully satisfies the provisions of Policy RH2’ (Environment Department’s emphasis). Instead, Mr Fell decided to disregard everything that had gone before, especially declining to invite and question board members who, using their discretion, rejected proposals which abused Policy RH2 by including ‘new-build housing’ which was unquestionably not social housing and unquestionably not to be permitted as stated in Policy RH1.

2. He rejected the suggestion that the recently retired States agricultural advisor, Andrew Casebow, should be invited to answer questions on his scientific paper which advised that the land in question was in the top 11% of agricultural land. Instead Mr Fell decided that two members of Mr Casebow’s former department would serve the purpose of answering his questions despite it being pointed out that neither were ‘agriculturalists’, one being an expert on trees, and the other being his line manager, previously in the Commerce and Employment Department. Even though at the public tribunal hearing they both stated that their combined knowledge on the subject in question was not equal to Mr Casebow’s expertise, Mr Fell ploughed on regardless. The outcome was predictable. Mr Fell did not get an accurate answer as to what made the soil at Les Blanches of such quality as to put it in the top 11% rather than in a lower grade.

This enabled him to claim truthfully that, on the evidence put before the tribunal, the land at Les Blanches was no different to any other of the 85% of agricultural land designated as ‘good agricultural’ land as opposed to the 15% designated as ‘poor’ agricultural land. That is as logical as Mr Fell claiming that he was just as intelligent as Albert Einstein because their IQs were both above the IQ of those people with severe intellectual disability. Clearly Mr Fell is not as intelligent as was Albert Einstein. His argument for dismissing Mr Casebow’s scientific evidence was a masterclass in illogicality and enabled him to remove a very powerful argument against the proposal.

Had Mr Casebow been allowed to answer questions on his own evidence, Mr Fell would not have been able to dismiss Mr Casebow’s evidence in such a facile and disrespectful manner.

3. The result of disallowing third parties to address the tribunal was once again all too apparent on the second day of the tribunal when new evidence to support the appeal was introduced. This was something of a surprise as I had been assured by the Planning Panel, who wrote to me before the appeal hearing, that ‘Where, as in this case, an appeal is made under section 68(1) of the 2005 Law, the Tribunal shall determine it on the basis of the materials, evidence and facts which were before the Development & Planning Authority at the time the application was determined. In other words, the tribunal will not be able to consider any new or additional material either the appellant or the Development & Planning Authority may wish to present (my emphasis). The new evidence was that six other applications to build social housing on agricultural land within the rural area under Policy RH2 had been allowed by the Planning department without problem and the appellants should be treated no differently. This had not been raised by anybody at any time before the tribunal commenced. Despite this the tribunal decided to accept this as evidence at face value.

Because the objectors did not have a voice in the proceedings, they could not point out to the tribunal (if it did not know already) that the six applications had all been determined by the planning officers under delegation (and not the political board) because the applications were not controversial. Five of the sites were derelict vineries (but still technically ‘agricultural land’) and the sixth had never been designated as agricultural. Allowing objectors to have their say would have forcibly made the point in public to the tribunal that it was absurd to treat derelict, contaminated agricultural land which had been built on as if it were the equal of high class, untouched, greenfield agricultural land.

4. Finally, the tribunal decided to ignore the information proffered by the farmer who had rented the field in question until he was ‘invited’ by the appellant company to terminate his lease on that one field prematurely but not on the other three contiguous fields that he also leased from that company. He acceded to that ‘invitation’ but refused to get involved in the fight to stop the proposed development. He refused to say why but you can draw your own conclusions. He was invited by the tribunal to comment on the proposal to develop the field that he’d previously farmed but he gave no reply until after the meeting closed but before the tribunal’s verdict was published. Rather than accepting his late submission, thereby adding to their knowledge base which could have done nothing but help them in their understanding of why the proposals had been rejected by the politicians, the tribunal declined to accept his submission as it ‘judged this to be out of time’. Instead, they accepted at face value the assurance given during the meeting by Bill Lockwood, one time head of the States’ IDC (the forerunner of the Environment board) but who was now advising the appellant company, that ‘the farmer in question has since found land elsewhere’. He provided no information as to how far away this land was, how this had affected farming practices and whether the welfare of the farmer’s cows had been affected by having to be trucked over greater distances. Such lack of interest in his submission makes one wonder just how much weight the tribunal would have given to the farmer’s submission even if it had been received in time.

What all this shows is that the presiding member in a tribunal wields enormous power in how the verdict is reached and I doubt that the lay members of the tribunal went against many, if any, of his suggestions, explanations or guidance relating to planning matters. As long as it is within the boundaries of the rules for a Planning tribunal, the presiding member is his own man. He can ignore what he wants (as we have seen) and can accept what he wants (as we have seen) and can come to idiotic conclusions (as we have seen).

To paint the presiding member as if he were just a figurehead and all that happens was down to the two lay-members (as per the Planning Department’s response) is overt nonsense.

When our unofficial advisor on planning matters heard that Mr Fell had been appointed as the presiding member, he told us there and then that we had lost the fight. He correctly advised us that our requests to address the tribunal would be rejected and it was almost certain that the appeal would be allowed. He added that if it had been the lady (I know not her name nor her status) who was on the Planning Panel, our chances of a favourable verdict would have been much better, as her handling of appeals was much more open to members of the public.

This immediately begs the question as to how is the presiding member chosen and by whom, since who is chosen would appear to have an effect on the likely outcome of the appeal. Unless the presiding member and the lay members are chosen by lottery, the system is wide open to potential abuse (and even lotteries can be fixed). Unless and until the public are given the answers to this question from which they can assure themselves beyond a shadow of a doubt that the process is open and honest, they are going to continue to distrust the Planning Panel and all that it does even more than it is now distrusted after the fiasco of the Les Blanches appeal.

I am not suggesting that Mr Fell and the lay members were anything but honest in their duty, but everybody’s characters, beliefs and methodologies differ so that different people will be affected by the same information in different ways and to a greater or lesser extent. For example, just prior to the appeal meeting, Mr Harry (one of the lay members) moved residence to the parish of St Martin’s, in which the field in question is situated. Unsurprisingly, the appellants felt that this would bias him against the appeal and made that point forcefully known at the opening of the appeals meeting. This undoubtedly placed Mr Harry in the position of knowing that any borderline decisions that he made against the appellants would be put under very close scrutiny by the appellants and he might have to justify these decisions. To avoid this he would have to bend over backwards to show that he was scrupulous in not being biased against the appellant, with the end result that he might have occasionally unwittingly bent over backwards just a little too far and unjustly favoured the appellant.

It is not for me to say whether or not the presiding member was consciously biased towards the position of and the recommendations made by the planning officers (members of his own profession) but it was quite apparent that he was set in the mould of a ‘planner’. The whole tenor of the way he conducted this appeal was that ‘if something is allowable, it must be allowed’ whereas the correct way would have been to accept that the Environment board’s politicians had the discretion, specifically given by Policy RH2 to modify that stance to ‘if something is allowable, it may at the board’s discretion be allowed or disallowed’.

His decisions as outlined above certainly made many of us feel that he was not being neutral in his approach to the appeal. His mindset was that of a planning officer, not surprisingly since that was his profession. Inevitably, that would spill over into any interpretations, explanations and guidance given to the two lay members who completed the appeals tribunal.

If the Planning Department is correct and Mr Fell’s vote was not needed because Mrs Evans and Mr Harry were in agreement over the verdict, he is not fully absolved because the evidence strongly suggests that some of his decisions were not even-handed, with the result that the evidence base was not complete in significant areas and might have swayed the two lay members into allowing the appeal.

TONY LEE

Les Salines,

Le Vallon,

St Martin’s,

Guernsey,

GY4 6DN.

Editor’s footnote: a spokesman for the Planning Panel replies:

Thank you for giving the Planning Panel an opportunity to reply to your correspondent’s letter.

A third party representor who is not satisfied with a decision of a Planning Tribunal may seek to challenge that decision through the Judicial Review before the Royal Court.