Stairwell overlying penthouse allowed

The permits quoted by applicant were of little relevance since these were issued under a different policy regime

A planning application requesting the sanctioning of an illegally-built stairwell on the roof of a penthouse was turned down by the Planning Commission after it held that the design envelope was in breach of planning policy. The building in question is located in Triq Gorg Borg Olivier, Mellieha.

To justify its decision, the Commission cited policy P35 of the Development Control Design Policy, Guidance and Standards 2015. This policy lays down a clear framework which architects are bound to follow when interpreting height limitations. Policy P35 requires inter alia that building heights should be measured from the highest pavement level. Moreover, the said policy provides that only wind turbines, telecommunication antennae and flagpoles may encroach beyond the permitted height limitation. In this case, the Commission found that the stairwell encroached beyond the allowable height limitation. For this reason, the proposal was deemed to run counter to Urban Objective 3 of the Strategic Plan for Environment and Development (SPED) which aims to protect and enhance the character and amenity of urban areas.

In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that his proposal should have been approved. Applicant, now appellant, acknowledged that the stairwell had encroached beyond ‘the allowable maximum height’, however ‘by some negligible eight centimetres’. More so, applicant alleged that the Planning Authority had granted similar development in the vicinity.

In reply, the case officer representing the Authority held that the architect had interpreted the sight lines ‘wrongly’. The officer explained that in this case, applicant was allowed to build up to a height of three storeys and a three- course basement. According to policy guidelines, this would translate to a street facade of 12.9 metres and a receded height of 16.3 metres.

The officer argued that when the line of vision, taken ‘at the point where there is 1.6 metre height on the opposite side of the road to the building height (in this case 12.9 metres)’, is extended ‘until it meets the allowable height of 16.3 metres’, the stairwell in question would still exceed the permissible height by 0.9 metres. On this basis, the officer warned that the appellant was wrong to assert that the infringements were minimal.

In its assessment, the Tribunal observed that the building consisted of four floors and an overlying stairwell. The Tribunal further noted that the building was located in a busy commercial area. It was also pointed out that the permits quoted by applicant (in order to justify his appeal) were of little relevance since these were issued under a different policy regime. Nevertheless, the Tribunal was of the opinion that, given the street context, the illegal stairwell was inconspicuous and therefore overruled the Commission’s decision.


Dr Robert Musumeci is an advocate and a perit with an interest in development planning legislation

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