No end in sight for property bounce back

The Guernsey Open Market is a very important sector in our island’s property portfolio. It is excellent to see it flourishing with a great deal of local and distant interest in it.

Originally conceived in the 1960s as a simplified means of ownership (by those without local qualifications or permit), it has since attracted many thousands of residents over the years.

Today, the number of properties inscribed on the Open Market register is around 1,600 of a total housing stock (Local Market and Open Market) in the region of 22,000.

Of those 1,600 Open Market properties, a large proportion of them are classified as ‘Part A’ Open Market properties, which are defined as being a private dwelling house, used as a single family unit.

A recent piece of legislation, the Population Management (Guernsey) Law, 2016, {read alongside the Open Market Housing Register (Guernsey) Law, 2016} has streamlined housing arrangements in the island from an older statute that dated to 1994. 

Those legal pillars aside, what is often of more practical concern to most people is the state and condition of their home.

The purpose of this short note is to briefly set out (for Part A Open Market Properties) the planning law position for property improvement in parallel with the Population Management stance.

Planning Law

The Island Development Plan (“IDP”), again dating to 2016 (a busy legislative  year!), has given new flexibility to our planning regime. 

It replaced the outdated Rural Area Plan and Urban Area Plan, by consolidating those rules into a unified islandwide policy book.

As one might expect, there are general planning policies (covering things like amenity, overlooking, design and so on), and more specific policies depending upon the nature of the proposed development.

Concerning demolition and rebuilding a house, a number of planning policies are likely to apply. 

Depending upon where the property is situated, it may be in a Conservation Area, or perhaps in an Agricultural Priority Area. The property may be listed, or it may have protected trees within its boundary.  These are all factors which will shape how a planning application is made.

The likely policy that will affect any such application, regardless of site location, is “Policy GP13: Householder Development”. 

Proposals for demolition of existing dwellings and the creation of replacement dwellings on a one for one basis will be supported if three criteria are met. 

The first criterion is that such development will have no significant adverse effects on the amenities of neighbouring properties.

The second criterion is that the design, scale, mass and form would not detract from the open character of open locations.  It is therefore feasible that this may not apply in every case.

The third criterion is that the development does not affect the special interest of a Conservation Area or Area of Biodiversity Importance or protected building or protected monument.  As above, the site-specific circumstances will determine whether this precondition is even engaged.

In the event that a homeowner wishes to extend their domestic curtilage at the same time as demolition and rebuilding (to enable a greater area for permitted development), then a different policy will need to be considered.

Whilst the planning maze might at first seem fraught with difficulty, your professional team will be well versed in navigating it, and to help you reach the right outcome.

Population Management

From a different perspective, but equally important, is where a Part A Open Market owner and resident would live (in Guernsey) for the rebuilding period.

In these circumstances, policy does allow for an application to be made for a Discretionary Residents Permit (DR25), and which costs £100. 

That application is made through the www.gov.gg Population Office portal, and is supported by photographic identification, a current Right to Work document number (if held), and finally documentary evidence of the development work being carried out if no planning permission is needed.

If the DR25 application is successful, it means that the person (and their immediate and extended family) will be granted a temporary Permit so that they can live all in the Local Market as a household for a period of up to 2 years.

Typically, such a DR25 Permit would be granted if there is major development work taking place at the Part A property, and it is not practical to live in the property for the duration of the building work.  Evidence would need to be produced setting out why, for example, it is not possible to rent a property in the Open Market.

Once again, the time spent to produce and submit a well-considered and evidence-based application is inevitably well worth it.

Conclusion

Guernsey planning law recognises that we have aspirations to develop our own property, and those wishes need to be balanced alongside wider planning policy. 

Guernsey population management law respects citizens’ human rights to private life and the enjoyment of family, and any interference in those rights must be fair and proportionate.

Happily, there are gateways in both regimes for balance to be achieved, and yet to help a Part A Open Market property owner to build their dream home.

An ancient Chinese proverb states that “the best time to plant a tree was 20 years ago. The second best time is now.”

Trees are very important to all of us for many different reasons, but how are they protected by the planning rules in Guernsey?

As you might expect, the position is heavily regulated by both Law, and by Ordinance. 

A “Tree Protection Order” (“TPO”) is made by the Development and Planning Authority, known as the Planning Service, in the interests of amenity (something positive that contributes to the use and enjoyment of a particular place). 

The function of the TPO is as its name suggests, but the Order will not cover hedges, bushes or shrubs. 

The TPO takes immediate effect as soon as it is made, and not, for example when a tree might reach a certain age, or size, or point in its growth cycle. The reason for that is because a tree or group of trees might be at risk of imminent damage, and so any delay would be detrimental.

By granting a tree (or group of trees) the statutory protection of the force of law, planning permission will often need to be obtained to carry out any activity that relates to it or them.  Typically, that means cutting the tree down, lopping, topping or pruning it, cutting or compacting the roots or the ground level of the root area, or uprooting, wilfully damaging or wilfully destroying it. 

But often where there is a rule, there is an exception, and protected trees are no different.  It is, in limited circumstances, possible to work on a protected tree in Guernsey and not need planning permission. But, the best practice is always to err on the side of caution. If in doubt, have no hesitation in seeking professional advice.

If planning permission is granted, the tree work will need to be carried out to a high level (at least British Standard Specification 3998/1989, and which itself was superseded in 2010).  For most of us, that will mean employing a tree surgeon.

If somebody does not obtain planning permission to work on a particular tree (and it is needed), and work is carried out, then they run the risk of an enforcement action being taken against them, and which can lead to a hefty fine or even a prison sentence (or both).

As the Planning Service is aware that this is a difficult area, a helpful guidance note has been produced by the planning officers and which is entitled, “Planning Advice Note 4: Protected Trees” and which offers various pieces of information.

So how might someone find out if there is a TPO in force on a particular property?  That could be very important to know, particularly if, for example, a homeowner has aspirations to develop their premises, or are someone is thinking of buying a property with trees in situ.

The answer is that there is a legal obligation upon the Planning Service to maintain an up-to-date public register, and this can be accessed via http://digimap.protected.gov.gg/ . This is a very useful resource as it also includes Protected Buildings and Protected Monuments.

If, as a landowner, you receive written notification from the Planning Service that a tree or trees on your property has become the subject of a TPO, then you do have the right of appeal.  It is important to remember that time is limited, in fact only within 28 days of receiving the decision. 

In conclusion, if a person is in any doubt about the status of trees near them, they should adopt the carpenter’s rule – measure twice, cut once! They should carry out research, speak to a professional and then proceed accordingly.

As an important pillar within the structure of the Bailiwick of Guernsey, the jurisdiction of Alderney has some unique characteristics concerning property and the treatment of it. We at Ferbrache & Farrell are very well versed with the particular laws and procedures that apply to Alderney registered land, and also with the Court of Alderney applications that are needed.

In this particular case, we were approached by a married couple; the husband was a UK citizen, and his wife was a passport holder from a country that is not an EU Member State.  The couple sought to buy a residential property in Alderney.  For ease of reference, let us call them ‘Mr and Mrs X’. Whilst Mr X (as a UK citizen) could purchase property there in his own name, his wife could not.

Although UK immigration law transposes into Bailiwick law by an Order in Council (and with local modifications), each jurisdiction within the Bailiwick may have its own arrangements determining how property may be owned.

In Alderney, the governing law dates to 1906 and is called the Loi Relative à l’Acquisition de Propriété Immobilière en cette Île par des Étrangers ou par des Sociétés Étrangères 1906 (as amended).

The peculiarities of that piece of legislation apply to Mr and Mrs X and we were instructed to help.  It was a pleasure to be able to assist as applications under the 1906 regime are fairly rare.

In the first instance, we collated various pieces of evidence about the circumstances of Mrs X, supported by an affidavit. 

We then presented a formal written Petition to the Queen’s local representative, namely His Excellency The Lieutenant Governor of the Bailiwick of Guernsey Vice Admiral Sir Ian Corder KBE CB. 

Our Petition set out various grounds why Mrs X should be granted permission to purchase property in Alderney.

Having achieved success at the first hurdle with our Petition being approved, we then made an oral application before the full Alderney Court.  That application referred to the position taken by His Excellency and that various criteria had been met under the 1906 Law.

Happily, the application was granted enabling Mr and Mrs X to purchase their new home.

In an excellent example of cross-jurisdictional assistance (and which was greatly appreciated), the Royal Court of Guernsey kindly accommodated a video link to Court of Alderney, a neat modern treatment of a very old piece of legislation.

For any Alderney queries, please do not hesitate to contact us, we would be delighted to help.