Tribunal approves a slight decrease in ‘open space’ at Baystreet complex

For this reason, the Commission concluded that the proposals were considered to be incompatible with the principles of good urban design and the characteristics of the area. The Commission therefore held that the designs ran counter to Structure Plan Policy BEN 2. (This policy promotes visual integrity.)

In reaction, the applicant appealed the decision before the Environment and Planning Tribunal, stating that his proposal was intentionally designed to be read as an "independent element" from the rest of the complex. In that way, the proposal would not compete with the aesthetics of the complex. But even so, the applicant insisted that the size of the proposed outlet would cover an area of just 16 square metres, thus "too small" to compete with the massive complex. In any case, the applicant contended that such a small outlet would "hardly be seen when coming down the street and from the opposite side of the street, due to the number of other elements within the same street before and in the vicinity of this retail outlet", adding that another outlet had been recently approved "just up the road" within the same boundaries.

For its part, MEPA kept on insisting that the proposed retail structure, which essentially consists of a concrete canopy supported by an external RSJ beam structure, amounts to a "piecemeal incongruous development". To this end, the Authority made express reference to Policies 1.1 and 1.3 of the DC2007, which require that new development should be compatible with the context and respect the scale, proportions and materials of neighbouring buildings. On a similar note, MEPA maintained that Policy 1.6 of the same document states that new developments should be integrated with their surroundings. The Authority further remarked that the proposed structure would occupy part of an open space which should have remained open once the Baystreet complex was allowed to rise higher than what is legally permitted in the Local Plan. (This principle is known as Floor Area Ratio.)

In its conclusion, the Tribunal held that the proposed outlet measures an area of 16 square metres and an external height of 3.55 metres (4.2 metres if one had to include the external signs). In addition, the Tribunal observed that the allowable height limitation for the area had in effect increased when the Local Plans were enacted in 2006. Indeed, this means that the amount, or ratio, of open space required if one applies the formula regulating floor area ratios is considerably less than that approved when the allowable height limitation was smaller.

As a final point, the Tribunal maintained that MEPA had not provided any solid justification as to why the proposed design failed to integrate with the surroundings, noting further that it is "unusual" for MEPA to comment on aesthetic considerations. Against this background, the Tribunal ordered the Authority to approve the permit.