21 minute read
Chris Crew
INDUSTRY PROFILE: PLANNING CONSULTANT CHRIS CREW
As the senior planning consultant at law firm Collas Crill, Chris Crew works to help its clients engage with the planning service efficiently and effectively. He explained the role and its importance to the planning process.
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Whatdoes the planning consultant roleinvolve?
The Royal Town Planning Institute (RTPI) describes it well. It says: “A planner’s main aim is achieving sustainability. This means balancing different social, environmental and economic issues when official decisions are made on whether a piece of land is built on or not. Another way to describe this job is ‘making places’, such as towns, for people to live and work.” As a planning consultant, the essence of my role is to provide clear, expert advice to help clients achieve their objectives by engaging with the planning system in the most effective and efficient way possible. That could mean that I assist a developer with initial, strategic advice about a specific site all the way through to securing planning permission for a new development, prepare a discrete report or supporting statement to accompany an application submitted by an architect, or provide advice on grounds for objection if a client felt that a proposal might adversely affect them or their property.
It might be a cliché, but it’s true that every day is different. No combination of site, proposal or client is the same as another. Day to day you might find me meeting with clients, architects or planning officers, carrying out site visits, liaising with other consultants, reviewing and preparing documents and reports, in conversation with colleagues, submitting planning and certificate of lawful use applications, or appearing at open planning meetings and appeal hearings.
What do you enjoyabout the role?
The variety and fact I’m not chained to my desk are big plus points, but the most rewarding part of being a planner is that I get to influence how places change, develop and grow. As time passes it’s really satisfying to see new buildings appear and businesses develop, knowing that you had a hand in that and have made a real, tangible difference.
What are the main challenges?
The planning system is fundamentally about balancing competing private and public interests, and building consensus can often be difficult - especially in a small island like Guernsey. If we take the current housing crisis as an example, there are sites that have been allocated for housing for many years, where the principle of development shouldn’t be in question, but applicants are still having to battle to secure permission. Certainty breeds confidence, but where this is undermined it makes it that much harder to deliver new development that the island needs.
What path did you take to your current role?
Following university, I spent 9 ½ years at South Holland District Council, working in various roles up to the level of principal planning officer. After moving to Guernsey in 2014, in 2017 I became a chartered member of the RTPI, and on leaving the States my role was as senior planning officer, supporting both the development control manager and director of planning, and dealing with a wide range of complex, contentious and significant planning applications and appeals.
After almost 18 years in the public sector, I felt the time was right to take on a new challenge. Working as part of Collas Crill’s
property team, I’ve got the perfect base to use the knowledge and experience I’ve gained and apply that in a new way.
How have you seen the industry changeduring your time in it?
The public sector has changed a great deal since I started, particularly since 2010 and the cuts to UK local authority budgets that followed. Caseloads have risen, planning officers have had less time to spend meeting with applicants and architects at pre-application stage, and many experienced staff have retired or left to join the private sector and not been replaced.
At the same time planners have had to develop a much wider range of skills in order to assess financial viability, ecological impacts, flood risk, climate change, and sustainable design, amongst other things.
What further changes do you expect to see in the short to medium term?
In the short term, pressures on the planning service in terms of a lack of staff, an increased volume/complexity of planning applications, and similar pressures affecting other States services that provide specialist advice, are likely to mean continuing delays in decision making. I can see this putting the planning service in a position where it has to refuse more applications out of hand, as continuing with its very helpful and positive practice of deferring applications for negotiation of improvements or for submission of further information could lead to a backlog of applications growing to unmanageable levels. Architects and consultants will have to take greater responsibility for ensuring that applications are right first time, in order to minimise risk of refusal, time delays, and additional costs to applicants/clients.
In the medium term, changes to the exemptions, allowing for a wider range of works to be carried out without the need for planning permission, should free up planning officer time and enable the planning service to focus its efforts on more complex and contentious applications where it can deliver real added value. Digitisation and investment to enable the online submission of planning applications should also reduce the administrative burden. The upcoming review of the Island Development Plan is intended to be limited in scope, but will still involve a large amount of work. It will be interesting to see how the review pans out and whether it leads to certain policies becoming more restrictive or not.
From your perspective in this role, what are the challenges facing the island at the moment?
Globally, small islands have had a long history of being reshaped by shifts in international economic and political relations, and the spread of technological innovation. To those sources of stress and pressure we can add climate change, which will further test our resilience in years to come.
The planning system has a vital role to play in how we face up to and overcome the challenges of an uncertain future, in terms of providing for housing, jobs and infrastructure while responding to climate change and protecting and enhancing the best of Guernsey’s built and natural environments. But it will only be able to deliver on this promise if adequate skills and resources are available and if the States can put aside its internal differences and agree on a coherent vision and strategic direction for the island. This will require concessions to be made across the political spectrum, and difficult conversations with islanders, as tough decisions and compromises are made.
PLANNING CONSULTANT FACTFILE
THE JOB
Planners work throughout the public, private and voluntary sectors. They offer advice and support on all matters relating to planning, development and environmental issues for building and renovation projects. That advice can range from initial thoughts on what approach to take for planning, through to being involved at all stages of the design and build process.
THE SKILLS
Verbal and written communication skills are key for the role as it requires liaising with a wide range of parties. Planners should have a genuine interest in design and both the built and natural environments. Research skills are important as many sites will require input such as nature surveys etc, alongside awareness of the area. Organisational skills are also crucial due to the time sensitive nature of much of the work.
THE QUALIFICATIONS
All accredited planning consultants must be a member of the RTPI. Chris became a chartered member in 2017, and had previously completed a Masters in Town and Country Planning following his original degree in the History of Art and Architecture. However, there are various other routes, including experienced practitioner and apprenticeship avenues, to gain experience before becoming fully qualified.
The UK’s Register of Overseas Entities
Following the recent introduction of the Register of Overseas Entities in the UK, Carey Olsen senior associate and property law specialist Kieran Ogilvie sets out some of the high-level details of the new register and considerations for those in Guernsey.
The new Register of Overseas Entities (ROE) came into force in the UK on 1 August 2022 as part of a number of recent legal reforms designed to deal with financial crime and increase transparency in corporate governance. The ROE has important implications for Guernsey entities that are considering entering a property transaction in the UK or that already own land in the UK.
What is the ROE?
The ROE is a UK wide register created through the Economic Crime (Transparency and Enforcement) Act 2022, administered by the Registrar of Companies for England and Wales.
A key aim of the legislation is to obtain and record details of property located anywhere in the UK held by overseas entities as well as to ascertain details of the beneficial owner(s) of such overseas entities.
It means that any overseas entity that wants to acquire, dispose or transfer land or take a registerable lease in the UK, or who already owns or has a registerable lease of property, from certain dates, must register on the ROE.
The legislation defines “overseas entity” widely and means a legal entity that is governed by the law of a country or territory outside the UK. A legal entity is also defined widely and means a body corporate, partnership or other entity that is a legal person under the law by which it is governed.
What do Guernsey entities need to do?
As from 1 August 2022, a Guernsey entity that already owns property or occupies property under a registerable lease in the UK will have a six-month period to register, depending on where and when that land was acquired in the UK. In England and Wales if the land was acquired on or after 1 January 1999 then the entity must register on the ROE. In Scotland the relevant date is 8 December 2014 and in Northern Ireland the requirement to register only applies to land acquired on and after 1 August 2022.
A Guernsey entity that wishes to enter into a property transaction (such as a sale or purchase, granting security or entering a registrable lease) in the UK after 1 August 2022 must also register.
The application for registration in the ROE includes information about the beneficial owner(s) of the overseas entity and requires that certain verification checks are undertaken on such beneficial owner(s) before the entity can be registered.
What are the implications of non-compliance?
If a Guernsey entity, as a current owner or registered tenant, does not register with the ROE before the end of the transition period, on 31 January 2023, it may commit an offence under the new law, punishable by a fine, or imprisonment of the officers of the entity concerned.
The legislation does not impose a duty on a prospective purchaser of land or registered tenant to register, as such, but a Guernsey entity will be unable to complete the registration of title in the conveyancing process unless it is registered (save for certain exemptions). The applicable land registry in the UK will reject the application for registration if the contracting party to the transaction is an overseas entity, and it has not registered with the ROE, when it ought to have done so.
The legislation has brought about a marked change for overseas property investment in the UK and means a Guernsey entity should exercise caution if contemplating a UK property transaction and be careful to ensure that it fully understands the requirements under the legislation so as to avoid any transactional delays or committing any offences under the new law.
ESG considerations for Guernsey’s commercial property market
As ESG considerations feature ever more prominently for businesses, senior associates Laura Bougourd and Alison Wood of Mourant’s Guernsey commercial real estate team look at what this means for commercial property in the island.
*Deloitte 2022 Commercial Real Estate Outlook - Architecture 2030 “Why the building sector?” 2021 Although Guernsey might not be subject to the same level of regulation as other jurisdictions, environmental, social and governance (ESG) issues are featuring highly on the agenda for many businesses and institutional investors. As such, ESG considerations are increasingly influencing the activities and decision-making processes of these entities and are therefore becoming more relevant to the island.
What sorts of ESG issues affect commercial property?
Research has shown that buildings are responsible for nearly 40% of annual global carbon dioxide emissions. Of these, 28% come from building operations, i.e. day-to-day use, and the remaining 11-12% from building materials and the construction process.* As such, commercial property is a key focus for any business seeking to reduce their carbon footprint as part of its overall ESG strategy.
Developing vs letting
Where a new property is being developed, ESG considerations might require a developer to use more sustainable practices and materials despite there being no statutory requirement for Energy Performance Certificates or an equivalent in Guernsey.
We have seen incoming tenants require that a building meets certain standards of energy efficiency or achieves a certain BREEAM (Building Research Establishment Environmental Assessment Methodology) rating.
What about green leases?
With a newly developed building, the tenancy obligations are likely to be seeking to maintain the energy-efficient position. However, where a building predates ESG considerations, there is room for improvements to be made.
Although landlords and tenants will each have their own separate ESG objectives, including green provisions within a lease will require the parties to work together as they are likely to impact on issues of service charge, repair and alterations as well as reinstatement, all of which are key lease considerations.
There is no specific template for a ‘green lease’ but this term is generally used to describe provisions that encourage or require the landlord and tenant to reduce the environmental impact of the premises. For example, green lease terms might include making a building more energy efficient, controlling water management, waste management, using sustainable building materials and encouraging the use of green transport.
Why should those with an interest in commercial property take note of ESG?
Aside from the wider climate change and global-warming implications which people are familiar with, it seems it is only a matter of time until the financial implications of ESG are felt in relation to commercial property interests.
In reality, it is likely to be the financial impact which acts as the catalyst for greater change, with stakeholders seeing a ‘green premium’, with more sustainable properties commanding higher rents from tenants (who should then benefit from lower operating costs in return), or conversely a ‘brown discount’, with those less environmentally friendly properties having to offer reduced rents.
In conclusion …
ESG is here to stay. Nearly all commercial occupiers will have ESG considerations and will be required to see that reflected in the terms of their lettings.
Those with interests in commercial property should ultimately benefit from investing in making those properties more sustainable and environmentally friendly, whether that is by increasing the value of their investment or benefitting from lower running costs.
A minor departure
Chris Crew, senior planning consultant in Collas Crill’s Guernsey office, considers when and how a request can be made that a planning application be considered as a “minor departure”.
Guernsey operates what is known as a ‘plan-led’ planning system. This means that the Island Development Plan (the IDP), is the starting point for planning decisions, and only a limited number of other statutory duties (such as in relation to protected buildings, monuments and trees) and general material considerations can be taken into account.
In practice, this means that planning applications that comply with and are acceptable under the policies of the IDP will normally be approved.
Conversely, where a planning application is submitted for development that would involve a departure from the IDP, it must be refused.
The only exception to this is if the Development and Planning Authority (or the Planning Tribunal in determining an appeal) considers that to approve the application would only involve a minor departure, then it may grant permission.
What constitutes a minor departure is not defined in the Planning Law and Ordinances or in the IDP, but is a matter of fact and degree for the decision taker to determine in each case.
This point has been addressed by the Planning Tribunal when considering appeals against the refusal of planning permission, and its decisions provide some useful commentary.
In relation to a 2017 appeal against the refusal of planning permission for the conversion of two flats into a dwelling house, the Tribunal stated that:
“The expressions “departure from such a Plan” and “minor departure” are not defined in the legislation, so we must use the normal meanings of the words. Firstly, a departure must involve some element of breaking away from the Plan, or a lack of compliance with it. Second, since the General Provisions Ordinance conceives of there also being minor departures, it follows that for a
decision to involve a departure, the degree of breaking away or noncompliance will determine into which category it may fall. A departure, as distinct from a minor departure, must logically represent a level of noncompliance of an order of significance materially greater.”
And in relation to a 2021 appeal against the refusal of planning permission for the conversion of a packing shed to create a dwelling, the Tribunal stated that:
“…the procedure is not intended to create an opportunity to balance an actual or perceived benefit against the harm by reason of a breach of policy. Rather it is a chance to demonstrate that the departure from policy is minor. In this case the breach of policy is not minor. Rather, it is fundamental to its operation.”
Applicants who are concerned that their planning application may conflict with one or more IDP policies in any way, or whose application may have been deferred following initial consideration, should consider making a written request for their application to be considered as a minor departure. It is only where such a request is made in writing that it can be considered, and this presents an opportunity to put forwards as strong a justification as possible for planning permission to be granted.
Given that what is or is not a minor departure is open to interpretation, and that the approach taken by different decision takers can vary, applicants may wish to instruct a professional planning consultant to provide advice and act on their behalf. Consultants who are members of the Royal Town Planning Institute are trusted worldwide as abiding by the highest professional and ethical standards.
A knotty problem: Japanese knotweed and the law
Jonathan Anderson, counsel at Ogier, looks at the persistent problem of knotweed on the island, and how it can be dealt with by those buying or selling properties.
IF YOU ARE SELLING YOUR PROPERTY AND JAPANESE KNOTWEED IS PRESENT YOU WILL BE REQUIRED TO DISCLOSE THIS TO YOUR PURCHASERS OR YOU COULD FACE A CLAIM FOR DAMAGES.
Whether you have recently bought a house and discovered Japanese knotweed or are worried about Japanese knotweed on adjoining land, it may be necessary to take legal advice. Japanese knotweed is an extremely invasive and destructive perennial weed and can be identified by its reddish-purple fleshy shoots and heart shaped leaves that bud alternatively in a ‘zig-zag’ pattern along the stems.
The pernicious plant’s invasive root system and strong growth can damage concrete foundations, roads, paving and retaining walls and in extreme cases, even undermine the structural integrity of buildings. Hot weather and rainfall can lead to the weed growing out of control and The Royal Horticultural Society says that by early summer the bamboo-like stems can shoot up to over seven foot tall.
Some mortgage lenders in Guernsey will not lend on properties that suffer from Japanese knotweed. As a buyer of a property where Japanese knotweed is present, there are some possible avenues to pursue. Some lenders may be willing to lend where the weed can be eradicated before completion, or where a management plan is put in place by a professional eradication company, backed by a transferable guarantee.
As the law currently stands, there is no legal obligation to remove Japanese knotweed from your land. If the plant is coming onto your property from any adjoining property the Guernsey customary law recognises the principle of bon voisinage, or good neighbourliness, but a practical and cooperative approach should be adopted if at all possible since the law can be uncertain in its application to such issues.
The States have provided some guidance in the form of the Guidance on the Control of Japanese Knotweed in Guernsey and a list of dos and don’ts when controlling Japanese knotweed, which include: • Do not strim or chop Japanese knotweed as this creates small fragments that can root and spread the problem. • Do not move soil contaminated with Japanese knotweed as this will just spread the problem. • Do not pull Japanese knotweed unless you can dispose of it safely. Pulling can tear pieces of the crown out which are very persistent and difficult to kill by composting, drying or burning. • Do start treating Japanese knotweed as soon as you see it and keep at it till it’s gone. This may take several years. • Do, wherever possible dispose of Japanese knotweed on the infected site. Moving them to another site will increase the risk of initiating new infestations.
For large areas or commercial sites infested with Japanese knotweed it may be necessary to engage a qualified contractor. A knotweed management plan can be put in place often in conjunction with Planning, Guernsey Water and the Guernsey Waste Management team. For developers it is vital to ascertain whether a site is contaminated as soon as possible. Soil can be examined for evidence of stem material.
Whether a buyer, seller or developer, it is worth checking for the presence of Japanese knotweed. A failure to disclose its presence, or the lack of a knotweed management plan can result in delays, increased costs, an abortive transaction or even a possible misrepresentation claim after any sale. A proactive approach will help to avoid problems.
LEGAL LINGO
Guernsey’s legal heritage, which reflects the ancient laws of Normandy, means that its property law can be a confusing mix of modern parlance and esoteric references to customary law. That history means that the island’s land laws contain concepts that even English lawyers would find quite alien. Here’s a breakdown of some of the expressions you might hear, and what they mean.
MOVABLE AND IMMOVABLE PROPERTY
Property in Guernsey is divided into movable and immovable property, with immovable property defined as that which can’t be moved from one place to another, and which follows or is associated with the land. Parcels of land are immovable, as well as houses and buildings.
This approach has meant that the concept of leasehold has never developed in the island, and it is impossible to take security in Guernsey over a lease, regardless of the length of its term.
VERGÉES AND PERCHES
When Guernsey adopted the metric system in 1965 it was decided the traditional Norman measurements of vergées and perches of area would remain legally valid. TRP utilises the metric system but Cadastre still maintains a record of the equivalent Norman measurements in vergées and perches. For those wondering: one vergée = 40 perches, 1,638.8m² or 17,640 sq ft; one perch = 41m² or 441 sq ft; one acre = 2.469 vergées; and 1 bouvée = 20 vergées.
CONVEYANCES
A conveyance is the transfer of title to land from one person to another by way of a deed. One needs to be prepared to transfer ownership of real property (houses, buildings and land) in Guernsey. This means that if you want to buy a property in the island, you will need to see an advocate to prepare the conveyance. Those selling real property are not required to consultant with an advocate, although it may be wise in some circumstances.
The parties to the conveyance have to appear before the Jurats of the Royal Court and the conveyance has to be presented in contracts court on a Tuesday or Thursday morning.
ENFIN ET DE PERPETUITÉ D’HERITAGE
This French expression translates to ‘absolute title in perpetuity’. It’s the only form of ownership of land available in Guernsey law, apart from a rare limited enjoyment for life that can be created.
GREFFE/GREFFIER
Her Majesty’s Greffier is the registrar of property transactions, including all conveyances and some leases. He assesses the document duty payable on these (and other) transactions and acts as agent for the States of Guernsey for the payment and collection of this duty.
The Greffe refers to the records kept by the Greffier – in Guernsey it is publicly accessible and found under the Royal Court building. The Greffe holds records of land conveyances from 1567, with the records written in French until 1970 and English from then on.
CADASTRE
Guernsey’s Cadastre administers the Tax on Real Property (TRP) system of property taxation and maintains the Cadastre register of property ownership. It maintains the only indexed register of property ownership in Guernsey, with records dating back to 1912. The migration to a fully digital register was completed in 2010.
