Tribunal dismisses claims that applicant is resorting to “policy loopholes”

In this case, applicant first obtained a planning permit to construct a penthouse. At the same time, a special concession was secured allowing construction having a reduced setback since the penthouse floor area was otherwise less than the stipulated minimum for habitable dwellings (45 square metres). Thereafter, applicant submitted a new application (the one under review) with a view to interlink the penthouse with the underlying apartment. As a result, the application was refused on the pretext that the “the proposed development does not comply with policy 10.6c of Development Control Policy & Design Guidance 2007 since a  reduced setback at penthouse level is only permissible for independent dwelling units which have a gross floor area of less than 45 square metres. (minimum dwelling size).” 

Consequently, applicant appealed the decision before the Environment and Planning Tribunal, stating that “at no point does the policy restrict the joining up of a penthouse (which has a setback of 2.5 metres instead of the statutory 4.25 metres) to the underlying floor.” Besides, applicant contended that the MEPA approved similar applications. In his conclusive remarks, applicant argued that the proposal amounts  to a “lessened” impact on the residential amenity by way of density and parking provision.

On its part, the MEPA reiterated that  “restricted penthouses” must be viewed as a planning concession based on a specific justification. The case officer maintained that policy concessions should not be abused at the expense of visual impact. In addition, the officer remarked that the proposal is tantamount to “bypassing” the system by first proposing a development that qualifies for a restricted penthouse and subsequently connecting same with the underlying apartment. As a final point, it was stated that policies are aimed to promote best practice planning and are not meant to be “bypassed” by virtue of “some loophole or another.”.

In its preliminary observations, the Tribunal maintained that should applicant have opted in the first instance to obtain a permit for a two storey duplex, the permitted upper floor would have been required to be receded as per standard distance requirements (4.25 metres), in which case applicant would have been deprived of the eventual opportunity to split the floors to  independent dwelling units because the floor area at upper level (with a full recess) falls short of the standard minimum dwelling size requirements. (45 square metres). 

To this end, the Tribunal observed that such a restriction is unwarranted. For this reason, the Tribunal ordered the MEPA to issue the permit.

[email protected]