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Finance Centre challenge stopped on eve of hearing

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A LAST-ditch attempt by campaigners to derail the Jersey International Finance Centre development has been withdrawn on the eve of it going to court.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:

Dear Minister,

Development of the Esplanade Quarter

Judicial Review of the planning decision dated lih March 2016

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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

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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.

(paragraph 21).

(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.

Yours sincerely,

Howard Sharp QC

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