Flexibility policy complements local plans

Nothing in the engineer’s report to suggest that the mitigation measures were inadequate

The case officer stated that the proposal is acceptable in terms of the flexibility policy
The case officer stated that the proposal is acceptable in terms of the flexibility policy

A planning application to allow ‘cooking’ on an already established catering establishment was approved by the Environment and Planning Commission, following which a number of third party objectors filed an appeal before the Environment and Planning Review Tribunal, requesting the revocation of the permit.

In their submissions, the objectors pointed out that the premises in question are ‘sandwiched’ between dwellings. Moreover, it was alleged that the premises are located within an urban conservation area, where ‘the proposed use is not acceptable because it is not listed as an acceptable use.’

More so, the objectors insisted that the commercial floor space exceeded the allowable 50 square metres. In the circumstances, the objectors argued that there were no ‘overriding reasons’ which could possibly justify the location of such use in this particular location.

The objectors went on to explain that the road ‘is largely residential in nature’, consisting of ‘a row of traditional terraced houses.’ Moreover, specific reference was made to a planning application whereby the Authority had refused a request for the change of use of a garage to a showroom situated in a nearby location

Furthermore, the objectors underlined that the permit could not be justified on the basis of the recent ‘flexibility’ policy (known as “General Policy relating to Regeneration/Consolidation Initiatives” of January 2013) which indeed allows for “justifiable departures from policies which can be adequately justified from a planning perspective”.

According to the objectors, the ‘flexibility policy’ may not overrule the provisions of the Local Plan. Concluding, the objectors maintained that ‘there was hardly any need of emphasizing that the development approved will most likely have a deleterious impact on the adjacent residential uses owing to visual intrusion, noise, vibration, pollution and unusually high traffic generation and the fact that the hours of operation are all day long until late at night’, so much so that the applicant had already placed a site advert for ‘private parties’.

For its part, the Authority defended the permit. Indeed, the case officer stated that the proposal is acceptable in terms of the flexibility policy. Even so, the proposal was supported by an engineer’s report ‘to mitigate any nuisance from noise and odours emission.’

As regards the floor space, the Authority maintained that the premises were already covered by a commercial class 4 C permit, adding that the proposal is tantamount to a ‘better re-organisation of the approved catering establishment, which includes an increase in the floor space of the kitchen and storage area.’

In its assessment, the Tribunal noted that the premises were already approved as a wine bar. In addition, the Tribunal held that the cooking operations are still “deemed to be neighbour compatible with no result in unacceptable cumulative adverse impacts on the locality”.

Against this background, the Tribunal concluded that the applicant’s proposal falls within the ambit of the flexibility policy, which document ‘complements’ established local plans.

Finally, the Tribunal observed that there was nothing in the engineer’s report to suggest that the mitigation measures (which applicant obliged himself to implement) were inadequate. The Tribunal thus rejected the appeal.

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Dr Musumeci is a perit and a Doctor of Laws

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