Guernsey Legal Resources

approved by Building Control. It was at that stage declared that the packing shed would be used as a workshop and computer store.

obliged to take into account a number of factors including any relevant development plan approved by the States, the effect of the development on the natural beauty of the area, in the case of land designated as agricultural (as this was) the suitability of the land for such use, the extent to which the development would detract from the character or amenity of the locality concerned and the effect of the development on, inter alia, adjoining properties. Section 18 allows for minor departures from development plans but there is no suggestion that this was a minor departure.

the erection of new housing in Areas of Landscape Value under Policies CE6 and H14.

usually with three), a “Full Court” consists of the Bailiff sitting with a minimum of seven Jurats. In the instant appeal, the Royal Court, sitting as it had to do as a Full Court, consisted of the Deputy Bailiff and nine Jurats.

the Jurats to decide whether as a question of fact the decision was unreasonable. He said that he would be directing them accordingly that it would only be in exceptional or special cases that personal considerations could be considered as a relevant factor as an exception to the general rule that they are not to be taken into account.

Security Department and its predecessor Authority since 1995 in accordance with the Supplementary Benefit Regulations, but in August 2002 the rent had been raised to a level above that which could be covered by the Social Security Department. As a consequence, he fell into arrears of rent and accordingly he needed to find affordable alternative accommodation which, in his financial situation as a supplementary beneficiary, he had been unable to do. That this was the factual situation was not disputed.

into account as a relevant factor which might assist in rebutting the presumption in [Policy] HT8?

2006. In that ruling (which is not challenged) he ruled that the Committee had the power to grant Mr. Johns’ application for change of use on a conditional basis and accordingly (in the light of the decision of the Jurats) he ruled that the refusal of permission should be set aside and the matters referred back to the Committee for it to grant a change of use on such conditions as were lawful and reasonable, in particular in relation to the length of time for which the change of use should be granted.

exceptional circumstances be obliged to have regard to personal circumstances of an applicant, nor was there any dispute concerning the ruling of November 23rd, 2006 on the Committee’s powers to attach a suitable condition on the grant of permission. Nor does the respondent challenge the Deputy Bailiff’s ruling on human rights.

the matter was not fully considered. It was obviously a very careful judgment upon which all members of that very experienced court agreed and which has subsequently been followed without demur.

He dealt in some detail with the evidence upon which Mr. Johns relied in support of his contentions and he stressed that the Jurats—

of the Jurats (see e.g. the judgment of the Judicial Committee of the Privy Council in Att. Gen. (Jersey) v. Edmond-O’Brien (1) (2006 JLR 133, at paras. 23–26). It matters not that this was a decision of the Jurats by a majority or a bare majority. The fact that a significant number of the Jurats did not agree that the decision was unreasonable cannot be relied upon to support a contention that, because some of the Jurats disagreed with the majority, the decision of the Committee cannot have been outside the range of reasonable decisions which the law allowed the Committee to reach. The decision of the majority of the Jurats constituted the decision of the Jurats. It follows that it is not for this court to decide whether or not it would have made the same findings of fact as made by the majority of the Jurats. This court has to respect that decision. Apart from considering the correctness of the directions of the Deputy Bailiff, this court can only interfere with the decision of the Jurats if it considers that there was no evidence relating to personal circumstances such as could have been left to the Jurats or that the findings of fact were perverse. As stated above, I consider that there was significant evidence (albeit incomplete) which could have been left to the Jurats upon which they could have relied and I do not see how their findings could possibly be said to be perverse. Nor do I see how it could be considered that the Jurats’ answer to Question 4 was inconsistent with their answers to Question 1. Question 1 dealt with the issue without personal circumstances, yet Question 4 dealt with the reasonableness of the decision in the light of the findings as to personal circumstances in Question 2 and as to the neighbourhood in Question 3.

raised by the parties. I note and accept what their Lordships were saying, but it would, in my view, be wholly inappropriate for a judge who has serious doubts as to whether, despite a previous decision of this court, the court is entitled to exercise jurisdiction in a matter, to keep silent when the argument has not been raised on behalf of the respondent. Such a reticence is particularly inappropriate in my view when it is a States Department that is the appellant. A concern about whether the States has given a power to a court can so easily be resolved by the States’ putting the matter beyond doubt by clarifying the law.

reported in 1848, who, almost entirely condemnatory about the way the Island was governed, justifiably drew attention to the lack of an appellate jurisdiction in criminal matters generally.

1950, one sees the practice today of the Bailiff and Jurats retiring to consider applications of this kind and, if there is to be a refusal, the court through the Bailiff will detail the reasons, which would not always have been the position in the past.

such as these. The legislature has had the opportunity for in excess of 40 years to add to the responsibilities of the Court of Appeal by making provision for this court to have an appellate role in all causes arising in the Royal Court sitting as a Full Court. This could have been done, but it has not been considered appropriate by those responsible for promoting legislative reform. That is why I find it particularly surprising that these and other appeals to this court in respect of planning matters have been instigated by the Law Officers on behalf of a States Department.

circumstances and perceptions. It was not intended to be a museum piece.” It is the substantive law of Guernsey that has to move on—on that occasion by adding to the armoury of the Ordinary Court a general power to review judicially decisions of an administrative nature. Despite a slightly misleading reference back to 1964, I do not read into what the court was saying any suggestion of an extension of the jurisdiction of the Court of Appeal itself. The willingness of the Royal Court and this court to develop the law, adhering at all times to the approved parameters for ensuring that the powers of the legislature are not usurped (see, for example, Vidamour v. Hood (19)), is particularly important in a small jurisdiction, with until very recently, limited resources for drafting legislation.

presided over, if they felt it appropriate to so order, by a different judge. I cannot find any grounds to suggest that the Court of Appeal in Guernsey has a “curious quasi-original jurisdiction” of the kind identified by Lord Donaldson, M.R in Chief Adjudication Officer v. Foster (5) ([1991] 3 All E.R. at 856) and endorsed in a Practice Direction. However, further discussion herein of what is a side issue is not appropriate, particularly as matters have moved on in England following promulgation of the Civil Procedure Rules in 1998.

forward the meaning of partners of deceased protected tenants entitled to succeed to the tenancy, to include those in long-term homosexual relationships.

of, new facts had come to light indicating that the aggrieved party had been the victim of fraud, in that the opinion on the validity of a patent given by an expert had been erroneous as a result of the expert’s deliberately not having been given the full facts by the opponent. Jessel, M.R., after taking comfort from the fact that the appellant had a remedy to go back to the High Court and seek to set aside the judgment on the grounds of fraud, said this (6 Ch. D. at 300–301):

Lawrence (18). There a 5-judge court decided that it did have a residual jurisdiction to reopen an appeal which it has already determined in order to avoid “a real injustice in exceptional circumstances.” This particular case centred on a complaint, which had already been considered, of real bias on the part of a trial judge where new facts had emerged since the appeal had been dismissed. In the event, the court was not satisfied that grounds for setting aside the decision of the original court had been established, but the point of the decision was that there was this power although to be exercised very sparingly.

necessary for the determination of any appeal, and the amendment, execution, and enforcement of any order made on such an appeal’. James, L.J. took the same view. The third member of the court, Baggallay, L.J. concurred, though he acknowledged that initially he had ‘felt great hesitation in negativing the proposition that there was jurisdiction in this Court to rehear an appeal’ where a judgment had been pronounced or obtained by fraud.

should be following the decision in Portholme notwithstanding the fact that I personally disagree with it. I also agree with what Vaughan, J.A. says in para. 38 concerning Mr. Dunster’s late letter. For my part, I cannot see that this change in Mr. Johns’ circumstances is likely to bring an early resolution of his and his partner’s housing problems—the housing situation in this Island remains difficult.