Appellant - Statement of Case

Planning Appeal PA 25/90192/B Appeal submission on behalf of the Applicant Erection of replacement stone wall; creation of new vehicular access and driveway; erection of boundary fencing with drainage channel at Close Jairg Beg Old Church Road Crosby Isle Of Man IM4 2HA

Mark Pearce MP Associates Ltd 12 Strathallan Crescent Douglas Isle of Man IM2 4NR

Planning Appeal PA 25/90192/B Erection of replacement stone wall; creation of new vehicular access and driveway; erection of boundary fencing with drainage channel at Close Jairg Beg Old Church Road Crosby Isle Of Man IM4 2HA

Condition 2. The boundary fencing shown on the approved plan (Drawing No. 21-01-100 REV C Proposed Site Plan and Wall Elevation) shall be no greater than 1.8m in height and shall be erected and completed in full prior to the first use of the new vehicular access hereby approved and shall thereafter be permanently retained in that form. The fencing shall be maintained to ensure continued physical and functional separation between the residential curtilage of Close Jairg Beg and the adjoining land to the south. At no time shall the residential dwelling and the adjoining land be reconnected by vehicular means, including through the reinstatement of any internal driveway link. We do not agree with the wording of condition 2. The garden area has not changed outside the area of the proposed fence area and still forms part of the residential curtilage. The fence was requested as a means of preventing vehicles using both entrances and not to curtail the area of residential garden to the house. The fence is to keep pets in and to create a separation preventing cars entering and egressing through a second access point. The application at no time included a change of residential use to the land to the south. We enclose the Judgement by Deemster Corlett for section 5 (2) of the 1999 Act to quash the Eastern Plan Map 10 in this location, entitled CHP21_0003. Prepared by Mark Pearce

In the High Court of Justice of the Isle of Man Civil Division - Chancery Procedure

Between J M PROJECT MANAGEMENT LIMITED Claimant

and

CABINET OFFICE Defendant

Judgment delivered by His Honour The Deemster Corlett on 19 November 2021

Introduction

• 1. This judgment concerns the Claimant’s claim which seeks an order under section 5(2) of the Town and Country Planning Act 1999 (the 1999 Act) that Map 10, dealing with the village of Crosby, be quashed but only in so far as it relates to the property of the Claimant, known as Close Jairg Beg.
• 2. The claim form was issued on 13 January 2021 and the claim was heard on 19 October 2021 when Mr Helfrich of Long and Humphrey represented the Claimant and Mrs Quinn of the Attorney General’s Chambers represented the Defendant. I am grateful to both counsel for the economy and clarity of their submissions.
• 3. The hearing was delayed because of the Defendant’s unsuccessful challenge to the claim on the basis that it was out of time (see my judgment on that issue dated 19 May 2021). The parties sensibly agreed case management directions orders dated 13 August and 20 September 2021.
• 4. An agreed bundle of relevant documents is before me, in addition to the Claimant’s and Defendant’s skeleton arguments of 22 September 2021. The Claimant also filed a short responsive skeleton argument of 29 September 2021. Following the hearing the parties submitted at my request further skeletons both dated 3 November 2021 which have been of assistance. Statutory Framework
• 5. The claim is brought pursuant to section 5(2) of the 1999 Act. Section 5 states:“Validity of plans etc

(1) Except in so far as is provided by this section, the validity of—

• (a) the development plan or any strategic plan or area plan comprised in the development plan;
• (b) the revision or repeal of any strategic plan or area plan; or

• (c) any national policy directive, shall not be questioned in any legal proceedings whatsoever.

• (2) Ifany person aggrieved by the development plan or any strategic plan or area plan comprised in the development plan, or by any revision or repeal of a strategic plan or area plan or by any national policy directive, desires to question the validity of the plan or of the revision or repeal or the national policy directive on a ground specified in subsection (3), the person may, within 6 weeks of the publication of the plan, revision or repeal or the national policy directive (as the case may be), apply to theHigh Court.
• (3) The grounds referred to in subsection (2) are, in relation to the development plan or any strategic plan or area plan comprised in the development plan, or by any revision or repeal of a strategic plan or area plan or by any national policy directive (as the case may be)—

• (a) that it is not within the powers conferred by this Part; or
• (b) thatany requirement of this Part has not been complied with in relation to the preparation, adoption, revision or repeal of the plan or the making of the national policy directive.

• (4) On an application under subsection (2), the High Court—

• (a) may by interim order wholly or in part suspend the operation of the plan, of the revision or repeal, or the national policy directive either generally or in so far as it affects the property of the applicant, until the final determination of the proceedings;
• (b) if satisfied that the plan, revision or repeal or the national policy directive is wholly or to any extent outside the powers conferred by this Part, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of this Part, may wholly or in part quash the plan, the revision or repeal or the national policy directive either generally or in so far as it affects any property of the applicant.”

• 6. In accordance with section 2(5) of the 1999 Act, the Area Plan for the East, which includes Crosby, was adopted by the Defendant on 21 September 2020 and was approved by Tynwald on 18 November 2020. It came into operation on 1 December 2020.
• 7. The Particulars of Claim dated 8 January 2021 make it plain that the Claimant seeks to quash “specifically the delineation of part of the settlement boundary on Map 10 of the Area Planforthe East”(paragraph 1 of the Particulars of Claim). It is pleaded (paragraph

39) that Map 10 as adopted is not made within the powers conferred on the Defendants by Part 1 of the Act as a result of the Defendant acting “unlawfully and / or unreasonably and / or irrationally; and / or in breach of the rules of natural fairness and / or justice”. It is also

pleaded that there has been a failure to comply with section 2(3) of the 1999 Act because the Area Plan fails to contain “a reasoned justification”of the proposals contained therein in so far as they changed “the individual residential curtilages of properties where sites are not

zoned for development”(paragraph 38 of the Particulars of Claim). Section 2(3) of the 1999 Act provides:-

“An area plan shall relate either to the whole of the Island or to such part of the Island as may be specified therein, and shall consist of—

• (a) a written statement formulating, in such detail as the Cabinet Office thinks appropriate, its proposals for the development or other use of land in the area to which the plan relates, or for any description of development or other use of such land;
• (b) a map showing those proposals on a geographical basis;
• (c) a reasoned justification of those proposals; and
• (d) such diagrams, illustrations or other descriptive or explanatory matter in respect of those proposals as the Cabinet Office thinks appropriate.”

The Factual History

• 8. The first relevant document is at page 13 and illustrates the settlement boundaries of Crosby and Glen Vine which applied prior to the commencement of the Area Plan process. This map clearly shows that the Claimant’s land (Close Jairg Beg) is outside the settlement boundary of Crosby.
• 9. In September 2016 the Claimant filed a Response Form in answer to the “Call for Sites”made by the Cabinet Office. A plan accompanied the form (at page 14) which clearly marked the “line of suggested settlement boundary”. This was a line which broadly followed the old railway track which lies directly to the south of Close Jairg Beg. The plan also showed a substantial area of fields to the east of Close Jairg Beg which the Claimant wished to develop for residential housing.
• 10. The rationale for the development was set out in the statement accompanying the site submission made by Ellis Brown, Architects. The proposal was for the provision of 36 dwellings, partially on the garden ground associated with Close Jairg Beg and on the “unused, under-used fields”, numbered 324318, 320912 and 324316. Close Jairg Beg was to be retained as a dwelling.
• 11. At page 35 the Claimant stated that the draft settlement boundary map issued with the call for sites documentation did not currently include the site and it was suggested that a new position of the settlement boundary, set out in the Claimant’s accompanying map, provides a logical boundary to the settlement. At page 36 the Claimant confirms that in its view the former railway line forms a logical edge and boundary for the settlements of both Glen Vine and Crosby.
• 12. The Defendant assessed the site in a document dated November 2016, and gave the Claimant’s site the reference “MH003–Close Jairg Beg, Old Church Road, Crosby”.

• 13. The planning history of the site is set out at page 60. Of particular relevance is a planning approval issued in 1988 for the erection of the bungalow now known as Close Jairg Beg.
• 14. The Defendant initially supported the proposed development, noting (page 62) that it is “immediately adjacent to the Crosby settlement”and that site access was “possible via existing connection to Old Church Road”(page 68). Site MH003 was therefore proposed to be allocated for residential development in the draft Area Plan as published in May 2018.
• 15. Thus the proposal for the development of site MH003 went to the public inquiry into the Area Plan for the East. This inquiry before the independent planning inspector (Mr Hurley) was held between 10 September and 2 October 2019. However, prior to the commencement of the inquiry, in July 2019, the Defendant indicated that the site’s status would be changed to that of a strategic reserve.
• 16. In the end the Inspector in his report (at paragraph 392) recommended against Site MH003 being shown either as a residential allocation or as a strategic reserve in the Area Plan.
• 17. The Defendant issued a document published on 14 February 2020 entitled “Modifications to the Draft Plan following the Public Inquiry. Paper 4: Schedule of Recommendationsand theDepartment’s Proposed Modifications”.
• 18. Of relevance to this claim is the acceptance by the Defendant of the Inspector’s recommendation (page 88) that the Area Plan Proposals Map should show the development boundaries of the relevant settlements. In addition, the Inspector’s recommendation against site MH003 being shown either as a residential allocation or as a strategic reserve in the Area Plan was accepted by the Defendant (page 97).
• 19. The Defendant next issued a Response Form which enabled the Claimant to make comments and representations on the modifications proposed to the Draft Area Plan. The closing date was stated to be 14 April 2020.
• 20. The Claimant responded to both the above matters (i.e. the issue of development boundaries of settlements and the future of site MH003) on 14 April 2020. In summary, as to the issue of the settlement boundary of Crosby, the Claimant submitted once again that Close Jairg Beg should be included within the settlement boundary of Crosby. It noted that the Inspector in his report did not comment on the settlement boundary in Crosby, yet it noted that the extent of the settlement boundary had been modified in the latest iteration of the plan. The Claimant submitted that “the heritage trail”(i.e. the abandoned railway line) “is the natural boundary to the settlement of Crosby”.
• 21. So far as site MH003 is concerned, the Claimant made a materially similar point, restricted to the issue of the settlement boundary. It said (page 118) that “Close Jairg Beg is an existing residential site and should be washed over as part of the settlement boundary of Crosby. The residential use is both defined and established as part of the Village… There should be a distinction made between Close Jairg Beg and Field Numbers 324316, 324318 and 320912. These fields are an undesignated use, but the existing house and garden is residential”. A map was attached in support of the submission (page 126).

• 22. It is worth noting therefore that the Claimant did not in the end join issue with the designation of site MH003. Rather it was concerned solely with the issue of the settlement boundary and its effect on Close Jairg Beg in isolation.
• 23. The next event was the production by the Defendant at a date unknown but some time during summer 2020 of the Cabinet Office’s response to the many issues raised by interested parties. In so far as this claim is concerned, page 147 of the bundle is relevant. The Defendant’s relevant response is that:-

“In terms of the settlement boundary around the area of OldChurch Road, this has been revised to take in the residential curtilage of the existing properties, the open space and new housing development.”

• 24. On the issue of settlement boundaries generally, the Defendant stated (at page 158) that settlement boundaries at the time of drafting the Area Plan “were always intended to show a settlement “asitis now” rather than what land may be included in the future”.
• 25. As to the settlement boundary as it might affect Close Jairg Beg in particular, the Defendant agreed “thatthere is merit in including the two properties on the east of Old Church Road within the settlement boundary (see Map 10)”.
• 26. The best copy of Map 10 may be found at page 334 of the bundle. This shows the settlement boundaries of both Crosby and Glen Vine. So far as Close Jairg Beg is concerned, it clearly shows the settlement boundary running through the land comprised in the Claimant’s holding with a slight indent. It does not, as contended for by the Claimant, run in a line virtually adjacent to and following the line of the old railway line. In other words a material part of Close Jairg Beg is not within the settlement boundary.
• 27. On 6th May 2020, i.e. it seems before the release of the above response document by the Defendant but it seems after the Claimant had seen a copy of Map 10, Mr Pearce of Ellis Brown on behalf of the Claimant emailed the Cabinet Office in response to having “only just found the attached plan”. The email concerned “the zoning of the site at Close Jairg Beg off Old Church Road Crosby and site MH003 in part”. The email repeated that a submission had been made “indicating that the land associated with Close Jairg Beg should be shown as within the boundary of Crosby as well as being indicated as residential zoning”. The email attached the planning approval PA 88/0415 for the erection of what is now Close Jairg Beg.
• 28. Having received no response to his 6 May 2020 email (unlike that of 14 April 2020 which was acknowledged), Mr Pearce emailed yet again, on 15 October 2020, by which time of course the Area Plan for the East had been adopted by the Defendant. The email at page 209 reads:-

“Dear Ethan and Diane

Please see attached drawing number 2406/1 dated November 1987 by Partington Nixon Kinrade together with the Planning Approval for 88/0415 for the house at Close Jairg Beg dated 17thAugust 1988.

I have also attached a plan showing the extent of the house as approved and constructed on the attached plan drawing number 19/2576/PL100.

The boundary of the house you have used to define the site appears to be a temporary fence erected about 9 months ago for the tenant of the house to keep his dog enclosed. Thisis not the boundary of the site.

The fence was removed when the tenant vacated the house and is no longer there. The boundary should be as per the planning approval shown on the attached approval and plans. I would be grateful if the Village boundary plancan be modified to show the accurate position of the residential boundary to Close Jairg Beg. Kind regards Mark”

• 29. Eventually a response was received to Mr Pearce’s enquiries. Diane Brown MRTPI, the Head of Planning Policy with the Defendant responded by email letter of 16 December 2020 which I will set out in full:-

“Dear Mr Pearce Re: Close Jairg Beg–MH003

Further to your two emails of 2ndDecember 2020, I have looked into the timeline of events associated with the Site MH003 and checked all of our available aerial photography.

The Draft Area Plan for the East published in May 2018 showed the entire site (as submitted) as being within the predominately residential area. In this version of the plan the settlement boundary excluded the dwelling Close Jairg Beg asit formed part of the site MH003. Ahead of the Inquiry in September 2019, Cabinet Office recommended that the site was changed to a Strategic Reserve like many other sites in the Plan area. The Inquiry Report was, however, against the allocation of the site either as a residential allocation or as a Strategic Reserve. Cabinet Office accepted that there was a need to look again at the settlement boundary in this area of Old Church Road in the final Plan.

The Modification published in February 2020 which set out the intentions for all of the sites noted that site MH003 was ‘abutting the existing settlement boundary.’ Representations were received by the Department dated 14th April 2020, 6th May 2020 and 15thAugust 2020. Cabinet Office noted onpage 21 of its Response Table in Response to Comment BHLF-AAMW-WTXG-G that the settlement boundary had been revised to take into account the residential curtilages of the two existing properties on Old Church Road. A site visit undertaken in June 2020 revealed that there was a fence erected around the property which was on the aerial photograph taken in the summer of 2019.

The August 2019 aerial photography shows the gated fenced area fully constructed, enclosing the lawned garden and dwelling house of Close Jairg Beg separating it from

field 324318. In terms of your undated photograph submitted on 19thOctober 2020, it is estimated this was taken between August 2018 andAugust 2019 as it shows the fence only partially erected and the hedging that that (sic) was present in the 2018 ariel (sic) photography had been removed. There is a clear distinction between the lawned area around the property Close Jairg Beg and field 324318.

Your argument that the ‘village boundary’ in this location is incorrect, is noted. However, Cabinet Office would disagree that the settlement boundary as shown goes through the lawned garden of Close Jairg Beg. The evidence suggests that the area of land at issue more aligns with providing access to field 324318 from the public highway rather than a laid out domestic garden area.

Cabinet Office considers the position of the settlement boundary in this instance to be correct.

Yours sincerely Diane Brown MRTPI Head of Planning Policy”

• 30. It will be noted that the Defendant’s assessment of the relevant settlement boundary appears to rely upon a site visit undertaken in June 2020 which revealed that there was a fence erected around the property which was also shown on an aerial photograph taken in summer 2019. As such, the Defendant came to the view that the area of land at issue was more akin to an access route than part of the garden of Close Jairg Beg.
• 31. I have noted Mr Pearce’s witness statement dated 8 January 2021. The key points appear to be at paragraphs 15 and 16 at page 233 of the bundle:-

“15. The new residential curtilage boundary shown on the adopted plan has been adopted by the Cabinet Office without consultation with the owners of the property and does not follow the established residential boundary of the property.

1. The planning approval for the house at Close Jairg Beg indicates the residential boundary goes down to the Heritage Trail and follows thetree line to the North, East and West.”

• 32. Mr Pearce’s position is supported by photographic evidence in the form of an aerial photograph from June 2005 of Close Jairg Beg showing the contentious area as part and parcel of the garden, together also with various photographs from the albums of the late Mrs Kissack an avid gardener who formerly owned the property.
• 33. I also refer to Diane Brown’s witness statement dated 16 February 2020. In this document Ms Brown relates the history of the Area Plan process and argues that, as the Inspector had recommended the removal of MH003 from the plan this necessarily meant that the settlement boundary would be taken back to how it was previously shown, entailing Close Jairg Beg being on the outer boundary of the line. She continues, at paragraph 16 and the first sentence of paragraph 17 at page 253:-

“In making its decision on the settlement boundary, Cabinet Office referred to its own photographs taken in May 2020 and June 2020 which revealed the condition and appearance of the site and it was noted that there was a fence erected around the property(photographs attached as “DEB3”). The August 2019 aerial photography clearly shows the gated fence area fully constructed, enclosing the lawned garden and dwelling house of Close Jairg Beg separating it from Field 324318 (see attached photograph at “DEB4”).

A judgement was made about the sitingof the settlement boundary taking into account the representations made and also the evidence Cabinet Office had in respect of photographs and aerial photography.”

• 34. I refer also to the first sentence of paragraph 19 and paragraph 21 at page 254:-

“The settlement boundary was not taken arbitrarily but was based on the evidence Cabinet Office had before it at the time.

The evidence suggested that the area of land at issue between the settlement boundary around the property on Map 10 and the public footpath/heritage trail more aligns with providing access to field 324318 from the public highway rather than a laid out domestic garden.”

• 35. I note that the August 2019 aerial photograph annexed at DEB4 appears to show a fence separating a garden area from an area where tracked vehicles had been operating. It appears that it was from this photograph that Map 10 was taken and it explains why there is an indent in the boundary line, since that indent is also apparent in the fence on the photograph.
• 36. I have not found the other copy photographs at DEB3 particularly helpful as they are of poor quality.
• 37. Mr Pearce submitted a second statement dated 26 August 2021. I refer in particular to paragraphs 12, 13, 13.1 and 13.4 at page 275:-

“In Ms Brown’s witness statement (“WSDB”)at para 11, it is noted that the factors taken into account in determining residential curtilage include: “previous planning applications, evidence of domestication/established private garden on site or other garden paraphernalia”. The Property enjoys anestablished planning approval for the site for residential use, there has been an established private garden on the site for over 30 years, which has been in continuous use and is and has been littered with garden paraphernalia. The test and criteria forresidential curtilage was therefore beyond doubt at the point the defendant determined the settlement boundary south of the Property and it seems perverse and unreasonable for it to have done so and for it to have maintained its position in these circumstances.

In relation to the facts set out in the COR, I would make the following additional factual observations.

(COR, para 3): no consultation or response was received from the Cabinet Office with regard to the submissions made before the plan was determined on the specific issue of town boundaries.

(COR, para 13): the Cabinet Office have been selective in their recording of the boundary. This was a temporary fence erected for the tenant whilst we cleared the ditchesout and undertook extensive maintenancework to the grounds.”

• 38. A supporting statement of Aileen Oates Fermor dated 26 August 2021 was also filed. She is the daughter of the late Mrs Kissack, who died in May 2014. She states from her own knowledge of Close Jairg Beg that the Map 10 settlement boundary to the south of Close Jairg Beg does not accord with her own knowledge of the curtilage of the garden. The Issues
• 39. It seems to me that the issues for my determination are as follows:-

• 1. Have the interests of the Claimant been “substantially prejudiced” (in terms of section 5(4)(b) of the 1999 Act) by the content of Map 10?
• 2. Has there been a failure to comply with the development plan procedure set out in Part 1 of and Schedule 1 to the 1999 Act?
• 3. Is the statutory procedure properly to be supplemented by the common law requirements of procedural fairness and, if so, has there been a breach thereof?

Substantial Prejudice

• 40. I am in no doubt that the interests of the Claimant are substantially prejudiced by the content of Map 10. In simple terms the Claimant submits that a portion of its land is by virtue of Map 10 not within an established settlement. I consider that it makes little logical sense in the absence of a proper explanation for one part of a standard residential property to be treated differently in planning terms from another part. I will address the issue of proper explanation later, but at this stage it suffices to say that when it comes to the making of any future planning application, the fact that a part of Close Jairg Beg is without the settlement boundary is bound to be a matter to be taken into account by the relevant decision-maker, whether it be the Planning Committee or, on appeal, the relevant Minister. It is certainly not a neutral factor, but is a hurdle which the Claimant would or may have to overcome, depending on the nature of the planning proposal. Section 10(4) of the 1999 Act sets out a list of factors which must be taken into account when determining planning applications:-

“(4) In dealing with an application for planning approval or an application under subsection (3), the Department shall have regard to—

• (a)the provisions of the developmentplan, so far as material to the application; (ab) any relevant national policy directive under section 2A;
• (b) any relevant statement of planning policy under section 3;

• (c) such other considerations as may be specified for the purpose of this subsection in a development order or a development procedure order, so far as material to the application; and
• (d) all other material considerations.”

• 41. I consider that the extent of the settlement boundary as set out in Map 10 is capable of falling within both sections 10(4)(a) and (d). I am therefore unable to accept Mrs Quinn’s submission that the Claimant is not substantially prejudiced by Map 10. Its existence is likely to found an objection to any future development. Settlement boundaries are important, as is clear from the manner in which they were addressed during the Eastern Area Plan process.
• 42. I am also unable to agree with Mrs Quinn that in fact the Claimant has gained from the process because, while before the process began its land was entirely outside the settlement boundary, now some two-thirds is within it. I consider that the point is surely that the Claimant considers that the whole of Close Jairg Beg ought to be within the settlement boundary and the fact that it is not is where the substantial prejudice arises.
• 43. I also agree with Mr Helfrich that the Defendant’s delineation of the settlement boundary in Map 10 has the effect of nullifying or at least reducing the weight of the 1988 planning approval. While for the last 30 years or so the Claimant’s land has benefitted from a residential planning approval, it is now arguable that a part of the land is, as Mr Helfrich put it, “sterilised”. Compliance with the statutory procedure?
• 44. On this issue I am with Mrs Quinn. I summarise the statutory procedure set out in Schedule 1 to the 1999 Act as follows:-

• 1. Preliminary publicity must be given by the Defendant and representations are invited.
• 2. Following consideration of those representations a draft plan is published.
• 3. Objections or representations may be made in writing about the proposals in the draft plan.
• 4. A public inquiry is held by a planning inspector and a report is published.
• 5. The Defendant considers the report and by order may adopt the plan in terms either of its draft form or in a modified form.
• 6. If but only if there are modifications the Defendant must publish a notice stating the general effect of those modifications and the Defendant must permit objections or representations to be made but only about any of the modifications. Any objections or modifications must be considered by the Cabinet Office.
• 7. The Defendant then adopts the Plan and after it has been approved by Tynwald the Plan must be published.

• 45. I am in no doubt that the Defendant followed the statutory procedure. In particular it should be noted that there is no statutory obligation to engage with or consult any objector at my stage 6. Neither is there any statutory requirement to give reasons for rejecting or accepting representations or objections made at stage 6, save that, as observed earlier, an area plan must set out “a reasoned justification” for the proposals contained therein. Supplementing the Statutory Procedure
• 46. Nevertheless, I am satisfied that on the facts of this case, the Defendant was required to supplement the statutory procedure by additionally complying with the common law rules of procedural fairness.
• 47. In Re Baccarat Limited [2008] MLR 373 was a case involving, as here, a challenge under section 5 of the 1999 Act. Deemster Kerruish, at paragraph [28] said this:-

“It was accepted by Mr Harding that upon application to quash a plan the procedural requirements specified in the statute may be supplemented by the common-law principles of natural justice where appropriate.”

• 48. Mr Harding was counsel for the maker of the Isle of Man Strategic Plan, then the Department of Local Government and the Environment.
• 49. Mr Helfrich’s supplemental skeleton argument filed after the hearing sets out a helpful reference to the various authorities which support the proposition which he advanced at the hearing that the court may supplement legislative schemes with common law standards of procedural fairness. He submits at paragraph 1.2 of his additional submissions that:-

“This principle is sometimes referred to as the ‘Byles principle’: Byles J, in Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, 143 ER 414, 420, referring to: 'a long course of decisions … [which] … establish,that, although there be no positive words in a statute requiring that the parties shall be heard, yet the justice of the common law will supply the omission of legislature.”

• 50. Manx and English common law in this area are identical. Mr Helfrich refers in some detail to the Divisional Court’s judgment in R (Plantagenet Alliance Ltd) v Secretary of State [2015] LGR 172 (also at [2015] 3 All ER 261). The context of this decision was an alleged breach of the requirement of consultation which it was claimed lay on the Secretary of State and others in relation to the exhumation and reinterment of the remains of Richard III. The court had to consider the terms of the Burial Act 1857. I gratefully adopt Mr Helfrich’s analysis of the relevant section of the judgment which is set out necessarily at some considerable length at paragraph 2.5 of his skeleton:-

• 51. “2.5 Between paras 83 and 101 of the Judgment of the QBD (Divisional Court) in

Plantagenet Alliance Ltd, Hallett LJ provided a detailed overview of the applicable law, from which the following points / principles can be usefully gleaned:

• 2.5.1 Where a statutory process is of itself insufficient to ensure the requirements of fairness are satisfied, the common law will generally intervene to ensure that the requirements of fairness are met (para 84, ibid.).
• 2.5.2 The intervention of the common law pre-dates the development of the modern law of judicial review and was first developed in the Victorian era to supplement ‘sparse’ statutory regimes which conferred apparently untrammelled powers on officers of state (para 86, ibid.).
• 2.5.3 Modern parliamentary legislation tends to be detailed and complex and normally expressly prescribes the processes, procedures and evidence to be followed and taken into account when statutory decisions are made. That being the case, there may be less scope for courts to read into modern statutes implied procedural obligations than in relation to statutes of greater antiquity (para 89, ibid.).
• 2.5.4 The common law’s intervention is usually justified on the basis that Parliament is taken to have legislated in the knowledge of the common law duty to act fairly and the requirement of fairness, and on the assumption that decision-makers will act in accordance with those requirements (para 90, ibid.).

• 2.5.6 Where wide powers of decision-making are conferred by statute, it is presumed that Parliament implicitly requires the decision to be made in accordance with the rules of natural justice. Parliament is not to be presumed to act unfairly: the courts will imply into the statutory provision a rule that the principles of natural justiceshould be applied(para 90, ibid.).
• 2.5.7 Parliament does not legislate in a vacuum: statutes are drafted on the basis that the ordinary rules and principles of the common law will apply to the express statutory provisions, and it is a principle of construction requiring the courts to interpret even very wide words in a statute as implicitly limited by the presumption that Parliament intends the common law requirements of fairness to apply unless it has indicated to the contrary (para 91, ibid.).
• 2.5.8 The duty to act fairly or consult or take certain procedural steps may be expressly or impliedly excluded by thewords of the statute itself. It should be noted, however, that e.g. the maxim of construction expressio unius exclusio alterius (the express mention of one thing excludes all others) can seldom, if ever, be enough to exclude the common law rules of naturaljustice (para 92, ibid.).
• 2.5.9 The exercise of determining the requirements of fairness is ‘essentially an intuitive judgment’ and highly dependent on context. Lord Mustill (In Doody v Secretary of State for the Home Dept [1993] 3 All ER 92 at 106 summarised the principles to be derived from the authorities in six propositions:

‘(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

• (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.
• (3) The principles of fairness are not to be applied by rote identically in every situation. Whatfairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.
• (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of thelegal and administrative system within which the decision is taken.
• (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.
• (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer’ (para 94, ibid.).

• 2.5.10The basic common law principle of fairness has found expression in public law in a number of ways, which limit orcontrol the exercise of the power by government or public bodies by imposing certain duties on them before making administrative decisions, in particular, the duty to consult (para 95, ibid.).

2.5.11Amongst the various public law duties, derived fromcommon-law standards of procedural fairness / natural justice, that may be imported into statute / legislative schemes there is, inter alia, (a) a duty to consult, (b) a duty to carry out sufficient inquiry, and (c) a duty to have regard to relevant considerations (para 96, ibid.).

• 2.5.11A duty to consult may arise by statute or at common law. When a statute imposes a duty to consult, the statute tends to define precisely the subject matter of the consultation and the group(s) to be consulted (para 97, ibid.).
• 2.5.12The common law recognises a duty to consult, but only in certain circumstances, and the following general principles can be derived from the authorities:

• (1) There is no general duty to consult at common law. The government of the country would grind to a halt if every decision-maker were required in every case to consult everyone who might be affected by hisdecision.
• (2) There are four main circumstances where a duty to consult may arise. First, where there is a statutory duty to consult. Second, where there has been a promise to consult. Third, where there has been an

• established practice of consultation. Fourth, where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Absent these factors, there will be no obligation on a public body to consult.
• (3) The common law will be slow to require a public body to engage in consultation where there has been no assurance, either of consultation (procedural expectation), or as to the continuance of a policy to consult (substantive expectation).
• (4) A duty to consult, i.e. in relation to measures which may adversely affect an identified interest group or sector of society, is not openended. The duty must have defined limits which hold good for all such measures.
• (5) Thecommon law will not require consultation as a condition of the exercise of a statutory function where a duty to consult would require a specificity which the courts cannot furnish without assuming the role of a legislator.
• (6) The courts should not add a burden of consultation which the democratically elected body decided not to impose.
• (7) The common law will, however, supply the omissions of the legislature by importing common law principles of fairness, good faith and consultation where it is necessaryto do so, e.g. in sparse Victorian statutes.
• (8) Where a public authority charged with a duty of making a decision promises to follow a certain procedure before reaching that decision, good administration requires that it should be bound by its undertaking as to procedure provided that this does not conflict with the authority’s statutory duty.
• (9) The doctrine of legitimate expectation does not embrace expectations arising (merely) from the scale or context of particular decisions, since otherwise the duty of consultation would be entirely open-ended and no public authority could tell with any confidence in which circumstances a duty of consultation was to be cast upon them.
• (10) A legitimate expectation may be created by an express representation thatthere will be consultation, or a practice of the requisite clarity, unequivocality and unconditionality.
• (11) Even where a requisite legitimate expectation is created, it must further be shown that there would be unfairness amounting to an abuse of powerfor the public authority not to be held to its promise (para 98, ibid.).

2.5.13A public body has a duty to carry out a sufficient inquiry prior to making its decision. This is sometimes known as the Tameside duty (Lord Diplock’s speech in Secretary of State for Education and Science v Metropolitan Borough of Tameside (1976) 75 LGR 190 at 234): ‘[T]he question for the court is: did theSecretary of State ask himself the right question and take reasonable steps to acquaint himselfwith the relevant information to enable him to answer it correctly?’ (para 99, ibid.).

• 2.5.14The following principles, in relation to the duty to carry out sufficient inquiry, can be gleaned from the authorities:

• (1) The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable.
• (2) Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken.
• (3) The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for itsdecision.
• (4) The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries theyhad made were sufficient.
• (5) The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion.
• (6) The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (para 100, ibid.).

• 2.5.15A public body also has a duty to have regard to relevant considerations when making its decision. The decision-maker’s duty to have regardto relevant considerations may require him to ‘hear the other side’ and thereby take into account the affected person’s views about the subject matter (para 101, ibid.).”

• 52. As the House of Lords in Doody made clear, the requirements of fairness are highly dependent upon context. One notable Manx case to which my attention was drawn at the hearing is Re Graley [2007] MLR 133 where the Appeal Division held that in the context of the Interception of Communications Act 1988 it was not appropriate to import the requirements of procedural fairness so as to require the Interception of Communications Tribunal to accept representations from affected persons. Mrs Quinn referred to this decision in her further written submissions. She cited paragraph 133 thereof:-

“133. Given that Tynwald has vested the responsibility of overseeing the operation of the Act to the Tribunal and, save for schedule 1 paragraph 3(2), it has not expressly prescribed the procedures which the Tribunal should adopt in carrying out the investigation, we thus conclude that in this particular statutory context it is not necessary, appropriate or permissible to import some, but not all, principles of natural justice into this Act. Whilst we have no doubt that the Tribunal`s procedure should be fair, we believe that it is for the Tribunal to judge what is fair in this

statutory context. Applying such procedures as they judge are fair the Tribunal should draft their Report with courage and frankness because the public interest demands it.”

And also highlighted paragraphs 94, 109 and 113:-

“94. We start from the simple proposition that the rules of natural justice-which is in truth an umbrella term for legal standards of procedural fairness-are designed to ensure that a decision making process is fair and that what constitutes fairness will depend on the character of the decision making body, the kind of decision which it has to make, and in particular the consequences which it may have on persons affected by it, and the statutory or other framework in which it makes such decision : see Tucker LJ inRussell v Duke of Norfolk[1949] 1 All ER 109, Lord Denning MR inR v Race Relations Board, Ex parte Selvarajan[1975] 1 WLR 1686, at 1693 and Lord Bridge inLloyd v McMahon[1987] AC 625, at 702.

1. In our judgment all these cases stress that the context in which a decision is made is crucial to the determination of what constitutes fairness.

1. We have no doubt that the Act is designed to protect the public in terms of national security and theprevention and detection of serious crime. It allows for the authorisation of the interception of communications when such would otherwise constitute a criminal offence and it provides a procedure for obtaining such authorisation which is secret and where,but for the procedure for applying to the Tribunal for an investigation under section 8(2), the decision-maker is unaccountable to anyone. In these circumstances the factual and legal framework can clearly be distinguished from the very many cases reliedupon by the Petitioners where some or all of the principles of natural justice can be safely and appropriately inserted without prejudice to the statutory purpose.”

• 53. It goes without saying that the area plan process relating to town and country planning is vastly different in nature to the matters which came before that Tribunal. Different considerations must apply. The decision in Re Graley confirms this to be the case.

• 54. The Plantagenet Alliance case, to which I have referred at length above, concerned a Victorian statute which imposed a typically “sparse” statutory regime. Mrs Quinn submitted that the statutory regime set out in the 1999 Act was perfectly compatible with the common law requirements of procedural fairness and reflected the will of Tynwald as to the extent of public participation.

• 55. In determining the issue of compatibility with the common law it is vital to examine the factual context. I have concluded that, for the reasons set out below, in this particular case it is clear that the statutory scheme on its own was insufficient to secure fairness.
• 56. While Mrs Quinn submitted that to require the statutory procedure to be supplemented would lead to delay and an increased administrative burden on the no doubt already stretched Cabinet Office planning team, I am bound to agree with Mr Helfrich that no evidence has been adduced to support the view that implying additional safeguards into

• the statutory procedure would inevitably cause the Defendant any or any material inconvenience.
• 57. There is no evidence that, to use the phrase which appears in Plantagenet Alliance, the planning system would “grind to a halt”. Breach of the Requirements of Procedural Fairness?

• 58. Applied to the facts of this claim, I agree with Mr Helfrich that, while the issue of the development of site MH003 was addressed by the Inspector, the settlement boundary issue in so far as it concerned the Claimant’s property, which had undoubtedly, as the chronology reveals, been raised by the Claimant at the very outset of the Area Plan process, was not, it appears, addressed during the public inquiry. It was left to the Defendant to determine the matter post-Inquiry.
• 59. The key point here is that, as submitted by Mr Helfrich, no information or details were provided to the Claimant in response to Mr Pearce’s emails of 14 April 2020 and 6 May 2020, it later emerging that the settlement boundary issue was determined by the Defendant internally on the basis of information held by it and about which the Claimant had no opportunity to test or counter with its own copious and rather compelling evidence.
• 60. By reference to the Defendant’s letter of 16 December 2020 what appears to have happened is that the Defendant undertook a site visit in June 2020 (i.e. after the written representations of the Claimant made on 14 April 2020 and 6 May 2020) and in combination with the aerial photograph of August 2019 (page 270) the view was taken by the Defendant that the fence was a permanent feature and marked the position of the settlement boundary. It appears from Ms Brown’s statement of 16 February 2021 that photographs were also taken of the site in May 2020, in addition to those taken in June 2020.
• 61. Bearing in mind that the evidence is that the Defendant made its own fairly extensive site enquiries, it is to me surprising that there was no engagement with the Claimant about the issue in circumstances where the Defendant well knew that the settlement boundary was contentious. Such engagement would not have led to any significant delays or increase in the administrative burden. It would instead have probably led to a sensible resolution of an issue which has now become the subject of expensive High Court litigation. Further, or in the alternative, this was clearly, as Mr Helfrich submits, an issue which ought to have been determined in an open and transparent manner during the course of the Public Inquiry.
• 62. One can only conclude that this was an issue which was overlooked and, as Mr Helfrich submitted, had “fallen through the cracks”. It seems to me probable that, had the Claimant’s case on the settlement boundary issue been fully addressed either at the Public Inquiry or by the Cabinet Office at a later date (probably the stage where representations about modifications to the plan were received) the result would have been that the assessment made by the Defendant as to the nature of the fence (now it seems likely a temporary feature since removed) would have found to have been in error, based as it seems to have been on an error made by the Defendant’s cartographer based in turn on an aerial photograph.

• 63. Following the rejection of the proposal to develop the fields to the east of Close Jairg Beg, it was perfectly reasonable for the Claimant to wish to ensure that it could if necessary develop Close Jairg Beg in accordance with what it correctly saw as its historical planning status, i.e. residential. I therefore do not accept Mrs Quinn’s submission that it was the Claimant who chose to allocate a different status to the contentious area of land to the south of the plot. The different status was dependent on approval for the development of the whole of MH003. I do not accept her submission that the Inspector’s recommendation about MH003 in some way implied where the settlement boundary of Crosby should be. As we have noted the Defendant accepted that the settlement boundary should include within it the two properties on the east of Old Church Road (see page 159). It seems to me that in implementing that decision the Defendant employed flawed procedure and probably, in finalising Map 10, made an error.
• 64. Mrs Quinn referred to a series of cases (CPRE Surrey v Waverly BC [2019] EWCA Civ 1826; Knight v Bridgend County Borough Council [2006] EWHC 596; Bewley Homes plc v Waverley BC [2017] EWHC 1776 (Admin); Newsmith Stainless Ltd v Secretary of State [2001] EWHC Admin 74; Welsh Development Agency v Carmarthenshire County Council (14 October 1999) where (against a statutory background which increasingly tends to diverge from that in this jurisdiction) the courts in England and Wales have rejected challenges to planning decisions where the decisions are founded on assessments of planning policy or are based on planning judgment. In my judgment the issue of precisely where a settlement boundary should properly lie is not a matter akin to issues of unmet housing need, public transport accessibility, or pure planning judgment such as assessing whether a development is in keeping with its surroundings or whether landscaping can ameliorate the impact of a development. At the very least, even if such a matter does involve an element of planning judgment, it is surely a matter which requires the decision-maker to engage with the arguments made by those such as the Claimant who have raised the issue and made contrary arguments over a long period of time and who might be expected to, and indeed who did, have a great deal to say on the issue. Conclusion

• 65. I therefore conclude that the rules of procedural fairness, which amongst other matters require a person affected by a decision-making process to be consulted upon and to be heard in relation to a decision which, as in this case, will or may substantially prejudice them, are apt to supplement the statutory procedure in the 1999 Act. Applying Deemster Kerruish’s dictum in Re Baccarat, this is a case where it is appropriate to supplement the statutory scheme with the common law principles of natural justice.

• 66. Whether one classifies the matter as one of a failure to consult or a failure to hear the other side or a failure by the Defendant to acquaint itself with the relevant information, it is clear that there has been a breach of the common law requirements of procedural fairness, summarised in the Plantagenet Alliance case. Due to a failure to comply with those requirements, the decision to adopt Map 10 in so far as it relates to the Claimant’s land must be quashed.

• 67. There can be no question, as might be the case in other contexts, of remitting the matter of the settlement boundary to the Defendant for reconsideration. The Defendant is “functus officio”and the Area Plan for the East Process is long completed.

• 68. The court has no power to amend Map 10 or any other part of the plan. It can only quash the plan in whole or in part (section 5(4)(b) of the 1999 Act).
• 69. There was some discussion toward the end of the hearing as to how such a quashing order could benefit the Claimant because its result is that no part of Close Jairg Beg including the existing bungalow would be within the Crosby settlement boundary. Mr Helfrich provides an answer on his client’s behalf at paragraph 3.6 of his supplemental skeleton argument:-

“As submitted on behalf of the Claimant at the hearing, when it comes to the application of s.10 (4) of the Act and the matters to which planning decision-makers are statutorily required to have regard, a non-designation with a presumption of “white-land”, coupled with a planning approval specifying residential use and an established residence developed pursuant to such approval, is preferable to the situation in which the Claimant now finds itself with half the garden of Close Jairg Beg (the “Property”) situated outwith the Crosby Settlement Boundary.”

• 70. On the facts of this claim and applying the relevant common law principles of procedural fairness I am persuaded that the Claimant is entitled to the relief which it claims. I therefore make the Order sought by the Claimant. I will hear any representations as to costs at the handing down of this judgment.

His Honour The Deemster Corlett