The following is relevant in the context of the discovery and production obligations that one would expect to be met by Guernsey’s Civil Service, but where the threat of judicial review was needed. The Civil Service operate an unspoken policy of obfuscation and releasing as little information, as late as possible. It may take years to obtain the required information to challenge them – often most of the effort in mounting a defence to oppressive practices involves simply trying to get them to release information.
(this is a work in progress to which I will be adding over the next few days)
By 2011, there were 38 planning applications related to my lower garden land (where commercial development was envisioned), of which I had a contemporaneous list from the Department’s database. Despite my clear and legitimate interest in these applications, they were systematically withheld from me. This issue came to a head during a planning appeal that related to that land in 2012, where I was compelled to seek a Judicial Review1 to force disclosure; I was granted leave, and the Department took fright & I finally got to see some of my files, but not all. Previously, the Planning Department had provided only a minimal amount of information, limiting my access to just two sheets of paper (that attempted to excuse their conduct) from my files. Not allowing access to crucial information in planning appeals & thereby necessitating a request for Judicial Review, utterly contradicts the principles of fairness and transparency vital in any just legal system; it’s simply outrageous. In fact, a Mr. Steve Smith who introduced himself as the Environment Department’s CEO, called me to tell me that the Department were confident that leave for JR would not be granted, that they believed that I would lose my appeals and offered to settle the matter on disadvantageous terms; I refused. I was subsequently granted leave to have my JR case heard & based on that, some disclosure was made. We then went to appeal where I got what I wanted and the Department were humiliated in the final decisions that were handed down.
Appeal FULL/2011/3038, dismissed, but note paragraphs 42 onwards:
- The planning officer’s written assessment of the application acknowledged that no
programme for the development of the site has been submitted and the
requirements of part a) of Policy CEN7 had not been met. It went on to say that
given the particular circumstances and background, the proposal would result in an
enhancement of the site and approval in this case would be unlikely to set a
compelling precedent for such a use of private land. The proposal could therefore be
considered as a minor departure to Policy CEN7. Planning permission was
accordingly granted by the Environment Board in October 2009. - The Tribunal has found some difficulty in understanding the rationale that
underpinned this decision. If the submission of a programme for development is a
fundamental requirement of part a) of Policy CEN7, and this requirement has not
been satisfactorily fulfilled by an application, then, in the Tribunal’s judgment, the
application must automatically fail. The issues of precedent and the benefits that
might arise from landscaping should have been irrelevant in the reaching of such a
decision, as these relate to the potential consequences of the proposal and can in no
way overcome significant omissions in the submitted application. In the Tribunal’s
opinion the reference in the officer’s report to the ‘particular circumstances and
background’ of the case, which are not specified, further undermines the probity of
this decision. - The Department had the opportunity to review its approach to this development
when an application was made in February 2012 to renew the permission up to
October 2015. No submissions were made by the applicant in respect of the
requirements of part a) of Policy CEN7. It is the Tribunal’s view that the Department
should at this stage have enquired as to the progress that had been made regarding
the funding of the development, and the likely timescales involved in its
implementation, but no such enquiries had been made. Permission was granted for
this application in April 2012, under delegated arrangements, on the same basis as
before. - In comparing the handling of the appeal application and the applications relating to
Rue Marguerite, the Tribunal sees a striking inconsistency in the varying
interpretation of part a) of Policy CEN7. The Tribunal can understand why Mr.
Collings might feel that he had been treated unfairly, and agrees that more latitude
appears to have been allowed in respect of the applications for States-owned land
than had been shown in the assessment of Mr. Collings’ application. On the above
evidence, the Tribunal is satisfied that there has been inconsistency in the handling of
these applications.
Appeal ENF/2011/00119, upheld.
- 2012 JBDAC JR application for access to docs during appeal proceedings https://stateofguernsey.com/Docs/2012_09_05_Royal%20Court_discovery.pdf [↩]