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Residential restrictions in the Channel Islands
Research report Residential ~es~~i~~io~s in the Channel Islands Since the late 194os, the ownershipor occupationof reskfential property on the Channel Islands of Jersey and Guernsey has been subjzct to legai control. /~~~uc~ as a rne~~ of dealing we a pressing post-war shortage, the controls have been refined over the years. The aims of the afterationshave been to protect local inhabitants,to retain reasonable prices in a market with a high level of demand, to provide reasonably priced accommodation for outsiders with ‘essential’ services to offer, to encourage wealthy rentiers to boost the economies of the islands and to rest&t the purchasing power of those not belongjng to the above classes.
In order to be effective, residential restrictions would appear not only to prevent certain outsiders from acquiring property on the islands but also to limit the freedom of the islanders in dealing with their own property as they see fit. Although the broad powers are laid down by statute, a great deal of discretion is granted to the committees charged with the day to day execution of the law. As pressure on space and amenities increases with the economic development of the islands, the restrio tions have not only increased but have also deprived people of rights which they have acquired under the previous law.’ The research paper of some 35000 words, sponsored by the N&field Foundation, has now been prepared on the Jersey situation and it is hoped that a similar work will follow on Guernsey in about a year’s time. The first part of the paper on Jersey outlines the history and development of the law and the second part deals in some detail with the legal means of redress open to property owners who feel that they have suffered as a result of the controls. A conclusion asks whether a control such as this is not simply a logical development from other state interferences with land such as planning control. One of the particular difficulties with the Jersey law is that Jersey is not a state in international law but enjoys a rather odd constitutional relationship with the UK, making it quite difficult to point to particular
LANDUSE POLICYJanuary 1984
‘citizens of Jersey’ who are being defended. Some of the general conclusions state that:
(1)
(2)
(3)
(4)
(5)
the attempt to control the price of residential property by the refusal of consent to housing transfers was not a great success; enforcement was not fully thought out - an attempt to control occupation is not likely to work unless there is effective enforcement of the law (many of the early breaches came to light by accident) whereas too effective a system might be so socially unacceptable as to prove the undoing of the law; where housing transfer consents are left to be decided by a committee acting under wide powers, this may have an unsettling effect on the market should its policy not be clear to the public; once it is decided to allow outsiders with important skills and services into the property market, difficult social questions must be asked -- are they to live on the same terms as the ‘natives’ or should they come on short term contracts? What of their families? etc; the question of how to control the use of dwelling accommodation is vital-Jersey began with control over the transfer of ownership and the creation of (some) leases and later imple-
(6)
mented controls over occupation. Guernsey’s control is exclusively over occupation - to allow one to own but not occupy is likely to pose human rights problems (the nub of the two European Convention applications) whilst occupation is not a term free from difficulty (at times some of the authorities in Guernsey have taken a very broad view of what the word means by interpreting it very much with the objects of the law in view). as Jersey ‘natives’ are not citizens of, Jersey, as there is no such thing, the quaking status must be one based on residence or by something like domicile. The law has always opted for qualifications based upon periods of residence although the discretionary powers have been used to favour those who can point to domicile or to some other (eg family) connection with the island.
The research on Guernsey is comparable to that on Jersey and also will develop some of the issues raised by the Jersey paper. It will ask how far can this form of social engineering go? At times ‘essential employees’ are forced to purchase more expensive properties than ‘natives’ and have also been required to finance the building of new properties so as not to threaten the local housing supply. Those of ‘economic benefit’ are defined differently in Jersey there exists a vetting procedure where in Guernsey the test is simple, can the person afford an uncon~olled property?* A feature of the Guernsey position has been the relatively clear distinction between controlled property (local market) and free property (open market) whereas in Jersey as all property can be subject to control, the differencs between the classes is not always so clear. Although redress is theoretically available in Jersey in the form of an orthodox appeal to the courts, given the unsettling feeling which can be produced over possible illegality in the way one lives, it must be asked whether such an avenue always results in justice. The
77
Research report/Conference review very nature of what the law attempts to
control produces difficulties as is shown with problems over the meaning of ‘occupation’ and ‘dwelling’. Although the total population of the two islands comes to only some 130000 persons, housing control laws are an issue of some international interest. The stance taken by the local Iaws coupled with the results obtained from the organs of the European Convention on Human Rights adds to our understanding of private land ownership in modem western society. Housing control laws provide a possible altemative to full immigration control (although this was never the aim nor the consequence of the Channet Islands legislation) especially where one is dealing with small societies whose work forces are fairly seasonal. They are of interest to people looking for methods of preserving their own special identities. On the other hand some will see these laws as a warning; they grew out of wartime necessity and out of a requisitioning power that was being used for a purpose for which it was probably never intended - with this
history such laws and their effects, both on those living under themand on those who wish to join or rejoin the relevant societies, show how great the power of the state can be allowed to grow with the aim of collective ends. A man’s house is not an island in these islands where a man may be unable to live iu his own house. St John A. ~~illia~ Faculty of Law The University Manchester, UK *These restrictions are currently under consideration by the Commission of the European ~nv~tion on Human Rights. The controlsraise the problemof the meaning of ‘home’ in Article8 and whethera right to reside in property lawfully owned by oneself is a. ‘p&s&on protected bi Article 1 of the First Protocol. ZAround 10% of property in Guernsey is available to whoevercan pay the pricefor it. These properties are ‘open market properties because of their ratable values. The other 90% of propertyis only available to people with residentialqualificationsor to those granted housing control licences because they are ‘essentialemployees’,for example.
Conference review Looking for unity Second Worid Congress on Land Poky, Harvard University 20-24 June 7983
The Lincoln Institute of Land Policy in Cambridge, MA, has probably done more than any other organization to bring together and establish a world community of people concerned with the nature and implementation of land policies. Representatives from all the land related professions have met and coIlaborated on research projects as a result of meetings funded by the Institute. The most important gatherings have been two World Congresses staged at Harvard University. The second, on June 20-24, 1983. took as its theme ‘Land: Resource for Human Survival Food, Fiber, Energy, Shelter’.’ The occasion was successful in bringing
78
together experts from 45 countries, but disappointing in failing to make it easier to synthesize disparate experiences into a narrow range of policy options available to governments concerned with the use and depletion of finite natural resources. Indeed, the one working rule that was repeatedly stated was the need to recognize that there was no one policy to meet the seemingly complex variety of problems that are to be found in different geographical and cultural regions. Each country or locality, apparently, has to devise its own strategies consistent with locaf conditions. This appears to be the view of the Lincoln Institute, too, although not of
its late benefactor, John C. Linc~ln.~ Yet the curious fact is that the experts returned time and again to identify what they saw as the key problems; the deleterious impact of land speculation, the frequent failure to put land to its best use, the failure to divert rental income into capital formation (the latter being associated with the moral view that the community ought to benefit from the value of land which it creates through infrastructural investments). Despite these specific concerns, the theorizing was fragmented by the over arching belief in the difficulty of employing a single, unifying theory to explain and solve the problems. As a consequence, the conference was long on problems but short on solutions. The ‘land problem’, sooner or later, will have to be confronted if we want to avoid civil war, according to Lester Brown, the President of the Worldwatch Institute, a Washington DC-based research organization that has published many fine monographs on ecology. He warned: My guess is that over the long term, as the employment problem worsens, it is going to either directly or indirectly lead to a lot of soul-searching in national capitals on the land distribution question. What is not clear to me is whether the reforms will come as a result of enlightened public policy and strong political leadership, or indirectly as a result of civil war and political instability, overthrow of govemments. There is not much question but that land reform is going to come in the world. The question is how. If there was one consensus view to emerge from the week’s deliberations, it was that man needed a new land ethic. This was stressed at the outset by Aurelio Peccei, President of the Club of Rome who inspired The Limits to Growth, the study that converted half
of the world to conservationist causes.3 The notion was most eloquently elaborated by Ann Strong, Chairman of The Department of City and Regional Planning at the University of Pennsylvania, who appealed for a holistic, long-term land policy that was grounded in ethics.4 The evidence of the need for a structured approach to tand-related issues was presented in a veritable deluge of papers dealing with such
LANDUSE POLICYJanuary 1984
In order to be effective, residential restrictions would appear not only to prevent certain outsiders from acquiring property on the islands but also to limit the freedom of the islanders in dealing with their own property as they see fit. Although the broad powers are laid down by statute, a great deal of discretion is granted to the committees charged with the day to day execution of the law. As pressure on space and amenities increases with the economic development of the islands, the restrio tions have not only increased but have also deprived people of rights which they have acquired under the previous law.’ The research paper of some 35000 words, sponsored by the N&field Foundation, has now been prepared on the Jersey situation and it is hoped that a similar work will follow on Guernsey in about a year’s time. The first part of the paper on Jersey outlines the history and development of the law and the second part deals in some detail with the legal means of redress open to property owners who feel that they have suffered as a result of the controls. A conclusion asks whether a control such as this is not simply a logical development from other state interferences with land such as planning control. One of the particular difficulties with the Jersey law is that Jersey is not a state in international law but enjoys a rather odd constitutional relationship with the UK, making it quite difficult to point to particular
LANDUSE POLICYJanuary 1984
‘citizens of Jersey’ who are being defended. Some of the general conclusions state that:
(1)
(2)
(3)
(4)
(5)
the attempt to control the price of residential property by the refusal of consent to housing transfers was not a great success; enforcement was not fully thought out - an attempt to control occupation is not likely to work unless there is effective enforcement of the law (many of the early breaches came to light by accident) whereas too effective a system might be so socially unacceptable as to prove the undoing of the law; where housing transfer consents are left to be decided by a committee acting under wide powers, this may have an unsettling effect on the market should its policy not be clear to the public; once it is decided to allow outsiders with important skills and services into the property market, difficult social questions must be asked -- are they to live on the same terms as the ‘natives’ or should they come on short term contracts? What of their families? etc; the question of how to control the use of dwelling accommodation is vital-Jersey began with control over the transfer of ownership and the creation of (some) leases and later imple-
(6)
mented controls over occupation. Guernsey’s control is exclusively over occupation - to allow one to own but not occupy is likely to pose human rights problems (the nub of the two European Convention applications) whilst occupation is not a term free from difficulty (at times some of the authorities in Guernsey have taken a very broad view of what the word means by interpreting it very much with the objects of the law in view). as Jersey ‘natives’ are not citizens of, Jersey, as there is no such thing, the quaking status must be one based on residence or by something like domicile. The law has always opted for qualifications based upon periods of residence although the discretionary powers have been used to favour those who can point to domicile or to some other (eg family) connection with the island.
The research on Guernsey is comparable to that on Jersey and also will develop some of the issues raised by the Jersey paper. It will ask how far can this form of social engineering go? At times ‘essential employees’ are forced to purchase more expensive properties than ‘natives’ and have also been required to finance the building of new properties so as not to threaten the local housing supply. Those of ‘economic benefit’ are defined differently in Jersey there exists a vetting procedure where in Guernsey the test is simple, can the person afford an uncon~olled property?* A feature of the Guernsey position has been the relatively clear distinction between controlled property (local market) and free property (open market) whereas in Jersey as all property can be subject to control, the differencs between the classes is not always so clear. Although redress is theoretically available in Jersey in the form of an orthodox appeal to the courts, given the unsettling feeling which can be produced over possible illegality in the way one lives, it must be asked whether such an avenue always results in justice. The
77
Research report/Conference review very nature of what the law attempts to
control produces difficulties as is shown with problems over the meaning of ‘occupation’ and ‘dwelling’. Although the total population of the two islands comes to only some 130000 persons, housing control laws are an issue of some international interest. The stance taken by the local Iaws coupled with the results obtained from the organs of the European Convention on Human Rights adds to our understanding of private land ownership in modem western society. Housing control laws provide a possible altemative to full immigration control (although this was never the aim nor the consequence of the Channet Islands legislation) especially where one is dealing with small societies whose work forces are fairly seasonal. They are of interest to people looking for methods of preserving their own special identities. On the other hand some will see these laws as a warning; they grew out of wartime necessity and out of a requisitioning power that was being used for a purpose for which it was probably never intended - with this
history such laws and their effects, both on those living under themand on those who wish to join or rejoin the relevant societies, show how great the power of the state can be allowed to grow with the aim of collective ends. A man’s house is not an island in these islands where a man may be unable to live iu his own house. St John A. ~~illia~ Faculty of Law The University Manchester, UK *These restrictions are currently under consideration by the Commission of the European ~nv~tion on Human Rights. The controlsraise the problemof the meaning of ‘home’ in Article8 and whethera right to reside in property lawfully owned by oneself is a. ‘p&s&on protected bi Article 1 of the First Protocol. ZAround 10% of property in Guernsey is available to whoevercan pay the pricefor it. These properties are ‘open market properties because of their ratable values. The other 90% of propertyis only available to people with residentialqualificationsor to those granted housing control licences because they are ‘essentialemployees’,for example.
Conference review Looking for unity Second Worid Congress on Land Poky, Harvard University 20-24 June 7983
The Lincoln Institute of Land Policy in Cambridge, MA, has probably done more than any other organization to bring together and establish a world community of people concerned with the nature and implementation of land policies. Representatives from all the land related professions have met and coIlaborated on research projects as a result of meetings funded by the Institute. The most important gatherings have been two World Congresses staged at Harvard University. The second, on June 20-24, 1983. took as its theme ‘Land: Resource for Human Survival Food, Fiber, Energy, Shelter’.’ The occasion was successful in bringing
78
together experts from 45 countries, but disappointing in failing to make it easier to synthesize disparate experiences into a narrow range of policy options available to governments concerned with the use and depletion of finite natural resources. Indeed, the one working rule that was repeatedly stated was the need to recognize that there was no one policy to meet the seemingly complex variety of problems that are to be found in different geographical and cultural regions. Each country or locality, apparently, has to devise its own strategies consistent with locaf conditions. This appears to be the view of the Lincoln Institute, too, although not of
its late benefactor, John C. Linc~ln.~ Yet the curious fact is that the experts returned time and again to identify what they saw as the key problems; the deleterious impact of land speculation, the frequent failure to put land to its best use, the failure to divert rental income into capital formation (the latter being associated with the moral view that the community ought to benefit from the value of land which it creates through infrastructural investments). Despite these specific concerns, the theorizing was fragmented by the over arching belief in the difficulty of employing a single, unifying theory to explain and solve the problems. As a consequence, the conference was long on problems but short on solutions. The ‘land problem’, sooner or later, will have to be confronted if we want to avoid civil war, according to Lester Brown, the President of the Worldwatch Institute, a Washington DC-based research organization that has published many fine monographs on ecology. He warned: My guess is that over the long term, as the employment problem worsens, it is going to either directly or indirectly lead to a lot of soul-searching in national capitals on the land distribution question. What is not clear to me is whether the reforms will come as a result of enlightened public policy and strong political leadership, or indirectly as a result of civil war and political instability, overthrow of govemments. There is not much question but that land reform is going to come in the world. The question is how. If there was one consensus view to emerge from the week’s deliberations, it was that man needed a new land ethic. This was stressed at the outset by Aurelio Peccei, President of the Club of Rome who inspired The Limits to Growth, the study that converted half
of the world to conservationist causes.3 The notion was most eloquently elaborated by Ann Strong, Chairman of The Department of City and Regional Planning at the University of Pennsylvania, who appealed for a holistic, long-term land policy that was grounded in ethics.4 The evidence of the need for a structured approach to tand-related issues was presented in a veritable deluge of papers dealing with such
LANDUSE POLICYJanuary 1984