Bermuda: Planning Appeals Challenging Decisions

Last Updated: 6 September 2013
Article by Appleby  

This article discusses the forthcoming changes to the Planning Appeals System in Jersey.

For many people, the submission of a planning application can be the start of a tumultuous time, both financially and emotionally. It can commence years of resentment between two neighbours, or act as a catalyst to bring a community together on a common cause.

Regardless of how it is initiated, dealing with applications for development close to home as applicant or objector can cause considerable stress and frustration, more frequently than not over extended periods of time.

When the decision is finally made, it is common to hear participants complaining of inadequacies in the process, feeling that their key concerns have been overlooked or disregarded entirely, or that the decision maker has misunderstood a critical piece of technical evidence.

One of the longer running gripes with planning process in Jersey is the lack of a "merits based" appeals system. This is the lack of an appeal procedure where another statutory body (such as a Planning Inspector) considers an application afresh on its planning merits, and if required, can reverse the previous decision.

The current Jersey system has been widely criticised for falling short of what is provided elsewhere in the British Isles.

At present, the principal method to seek an appeal against a planning decision is via an application to the Royal Court. This process is considered difficult to access by the layman, being unduly expensive, prescriptive in its process and difficult to undertake without professional legal advice. And crucially, the Royal Court can only interfere if it believes the Planning and Environment Minister's decision was so wrong as to be unreasonable.

All these issues are pointed out as deterrents to proceed with an appeal, even if the affected party strongly believes the decision to grant a planning permit was unjust.

The Planning Minister has now lodged his proposition outlining his proposals for a new planning appeals system. It is to be debated by the States on 10 September 2013.

The key features of the proposals are as follows:

  • Planning and building control decisions of all kinds (including appeals by third parties, imposition of conditions and listing of buildings) will be able to be appealed on their merits.
  • Appeals will be made to an independent Inspector (drawn from a panel to be appointed by the Jersey Appeals Commission) who will hear the appeal and make a recommendation to the Minister as to how the appeal should be determined.
  • The final decision on an appeal will lie with the Minister, who will ordinarily follow the Inspector's recommendation and will need to show good reasons for departing from the recommendation. The Minister will have no involvement in the original decision-making, which will be dealt with under delegated powers by the Planning Applications Panel or by officers.
  • A 'call in' procedure will be introduced, under which in the case of particularly significant planning applications an Inspector will be able to be appointed before the initial determination of the application, who will produce a report containing his recommendation for final determination by the Minister.
  • Appeals will be considered on the basis of written submissions or (for more complex appeals) an appeal hearing and will require the appellant to pay a fee.
  • Where a planning application has not been determined within a requisite period of time by the Planning Department, a 'non-determination' appeal can be submitted whereby the Minister determines the application.

The arrival of a merits based appeal system is welcome over the existing Royal Court procedure, which has been widely criticised. However, the proposal for the minister to have 'final say' on all planning appeals, however submitted, has already been subject of criticism from Deputy John Young and from the Jersey Chamber of Commerce, with Deputy Young announcing an intention to bring forward alternative proposals.

Clearly, there are important principles to be weighed up. The planning minister has justified his approach on the basis of 'retaining the constitutional element of planning appeal decisions being made by someone who has been elected and is, therefore, accountable.'

On the other side of the argument the president of the Chamber of Commerce, James Filleul has commented: 'Fundamentally the proposed new system would lack independence and necessary specialism, at its summit. It clearly cannot be right for the minister to be final interpreter of his own polices.'

We can expect an autumn of vigorous debate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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