Tribunal sees no overdevelopment since drawings according to policy guidelines

The Commission went on to state that the development would not be in the interests of the amenity of the area “as a whole” and would therefore exacerbate the problems of overdevelopment in the area, thus counter to Structure Plan policy BEN 1. Additionally, the Commission highlighted that the proposal does not comply with current sanitary laws and regulations in that the proposed office lacks a 1.5-metre backyard.

In reaction, applicant lodged an appeal before the Environment and Planning Tribunal, stating that prior to the Commision's decision, he was requested to revise the original proposal so that the number of proposed one-bedroom units would be below the statutory 20% limit specified in policy 3.7 of the MEPA's Design Guidance 2007.

The applicant furnished evidence that he had complied with such a request in December 2010. Against this background, applicant contended that the Commission's decision ignored section 3.7 of the policy guidance. To reinforce his argument, the applicant maintained that “quantitative" provisions are expressly intended to determine what constitutes overdevelopment.

As a matter of fact, the said policy provides that “overdevelopment can result from increasing the number of dwelling units in such a way that the proposed units would not achieve the minimum gross floor areas as specified in the policy, thus resulting in inadequately sized accommodation and increasing the ratio of one-bedroom dwellings above the 20% threshold."

In his concluding remarks, the applicant underlined that in the meantime, discussions were held with MEPA’s sanitary engineer and a solution with respect to the backyard was found.

For its part, the MEPA reacted by stating that as upheld on various occasions by the Environment and Planning Review Tribunal and confirmed by the Court of Appeal in the landmark Pater Holding Co. Ltd. Vs Planning Authority decision, the applicant does not have any right to appeal from reasons of refusal connected with sanitary aspects. In regard to the other merits, MEPA reiterated that the proposal amounts to “overdevelopment” since it would inter alia create a shortfall of 15 car parking spaces.

MEPA cannot arbitrarily resort to BEN 1 provision in order to do away with established quantitative guidelines

In its assessment, the Tribunal observed that the Authority's line of reasoning, on the basis of which it concluded that the proposal amounts to “overdevelopment”, is flawed and lacking "objectivity". On the other hand, the Tribunal held that applicant's arguments were grounded on set policy provisions. Against this background, the Tribunal concluded that the MEPA could not arbitrarily resort to qualitative policies (such as Structure Plan Policy BEN 1) in order to do away with established quantitative guidelines. After having regard to all the circumstances, the Tribunal ordered MEPA to issue the permit.

 [email protected]