Finance Centre challenge stopped on eve of hearing
A LAST-ditch attempt by campaigners to derail the Jersey International Finance Centre development has been withdrawn on the eve of it going to court.
The St Helier Waterfront Action Group had been due to appear in the Royal Court on Friday seeking a judicial review of a decision to approve the second unit of the Jersey Development Company scheme, known as Building 5.
However, after Environment Minister Steve Luce said this week that it may be appropriate to review and update the Esplanade Quarter Masterplan, which sets terms for the wider development of the area, following recommendations by independent planning inspector Philip Staddon, the group has decided to withdraw its application.
The minister's comments came as he rejected an appeal against Building 5 lodged last year by rival developers C Le Masurier Ltd, thereby removing the final hurdle for the development and the action group has now asked Deputy Luce for a meeting to discuss a possible review of the masterplan and a timescale for it.
In a detailed letter sent to Deputy Luce, the group's lawyer Advocate Howard Sharp sets out how the masterplan is, in the group's opinion, flawed.
Read the letter, in full, below:
Development of the Esplanade Quarter
Judicial Review of the planning decision dated lih March 2016
I represent Mr Baker, co-founder of the St Helier Waterfront Action Group, who
commenced a judicial review on 20th April 2016 against the Planning Applications
Committee's recent decision in respect of 'Building 5'.
On 1th May 2016, you made public the report of the Independent Inspector, Mr
Staddon, that relates to an earlier planning permission in respect of Building 5. The
report is dated 3rd May 2016 and confirms that the Masterplan is no longer viable and
in urgent need of review. Can I please draw your attention to the following points:
(1) The starting point is that Article 19(1) of the 2002 Law requires the Committee
to reach a decision that is consistent with the Island Plan unless satisfied that
there is sufficient justification to depart from it [paragraph 16).
(2) The Island Plan, through Policy BE 2, establishes that the Masterplan for the
Esplanade Quarter is a "principal material consideration in the determination of
planning applications" relating to the development of Esplanade Quarter.
(3) The Masterplan is more than simply a Planning blueprint of a proposed area
based regeneration project. In addition to the proposed layout of buildings,
roads and spaces, it sets out a scheme delivery approach. That approach is
comprehensive and it was intended that a single developer would take the
whole scheme forward. The Masterplan establishes very clearly performance
obligations and risk ownership and that delivery would be controlled not just
by the Planning system but, contractually, through a Development Agreement.
That combination of Planning content, project delivery, performance
obligations (financial and road lowering) and risk ownership are all inextricably
linked elements of the Masterplan (paragraph 41}.
(4} That is not what is happening in practice. A piece by piece delivery approach is
being pursued with SOJDC progressing individual building projects secured, at
least in part, by signed office occupiers (pre-lets). This a very different delivery
model to that stated in the Masterplan and it is not without Planning
implications (paragraph 75}.
(5} The Masterplan is fundamentally premised on the lowering of La Route de La
Liberation. Without the security of the Masterplan, there is no planning
mechanism to secure its delivery. The lowering of the road is the "Masterplan's
critical element of infrastructure" (paragraph 76).
(6) "/ am currently unconvinced that the 2008 Masterplan can be regarded, in
Planning terms, as viable and deliverable". Mr Staddon describes SOJDC's
evidence to him on this issue as "scant, ... broad brush and speculative, and is
silent on the issue of risk and contingency". (paragraph 77) Mr Staddon is clearly
right when he concludes that the Masterplan is not viable: see the EY report
produced for the Corporate Scrutiny Panel for further independent
corroboration. If SOJDC had cogent evidence to the contrary, it would have
been produced to either EY or Mr Staddon or both.
(7) One is left troubled by Mr Staddon's remarks that the 'planning framework' of
the Masterplan cannot "be treated as up to date or fully sound". He states that
weaknesses and cautious in its application" and that its unresolved state has
planning implications "Substantially diminished weight (paragraphs 79 and 97)
and "its weight in planning decision making is diminished".
(8) Mr Staddon observes that the planning permission granted in respect of
Building 5 features a Condition 29 that requires that a Phasing Plan be
submitted and approved prior to development commencement. It states that
the plan " ... shall include details of the timetable for the delivery of the wider
Esplanade Quarter works beyond Phase 1 (the Jersey International Finance
Centre) to include the sinking of La Route de Ia Liberation and the balance of the
works in the approved Masterplan for the Esplanade Quarter (as Amended)."
The reasons stated for imposing the condition was 'to ensure compliance with
the Masterplan. Mr Staddon concludes that these Planning conditions, whilst
well meaning in their intent, have little substance or enforceability in Planning
terms (paragraphs 92 and 93).
These fundamental problems with the Masterplan are not the fault of the Planning
Committee who appear to have been put in an impossible situation. Therefore my
client has concluded that it is not appropriate to continue a judicial review against the
Committee and withdraws its application currently before the Royal Court.
We understand that it is the statutory duty of the Planning Minister to review the
Island Plan which is the product of democratic process and the rule of law. The
Masterplan is of course an integral part of the Island Plan. It is plain that an urgent
review is long overdue.
I should be grateful if you would agree to meet with representatives from the Action
Group in order to discuss whether or not you accept that a review should take place
and if so, the timescales.
You will understand that there is a great sense of unease about this profoundly
important issue. There is a widespread concern that the Planning Committee will
continue to approve ad hoc applications for office accommodation on the Esplanade
Quarter in the knowledge that the overall result intended by the current Masterplan
will not be achieved.
I look forward to hearing from you in respect of the proposed meeting.
Howard Sharp QC
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