Decision to be taken following inspection of Heritage Board

An applicant submitted a proposal to construct retail shops and garages in Triq Bugharbiel corner with Triq Xandru Pulis in Zejtun. The site includes a building, which applicant intended to restore part thereof. Nevertheless, the request was rejected by the Commission on the following grounds:

1.  The proposal was in breach of Legal Notice 227 of 2016 since back yards were not being provided. Applicant was reminded that every dwelling, except corner dwellings, with a depth of more than fifteen metres, require a backyard equivalent to at least six metres width or to the entire plot width if such plot width is less than six metres;

2.  The proposed development ran counter to the provisions of policies P39 and P35 of the Development Control Design Policy, Guidance and Standards 2015 in that top floors were not adequately set back from the street façade;

3.  The proposal was in violation of Urban Objective 3 of the Strategic Plan for Environment and Development which aims to protect and enhance the character and amenity of urban areas;

4.  The proposed development sought the extensive demolition of a Grade 2 listed building. The interventions would therefore significantly alter the current setting. Reference was made to Thematic Objective 8 of the Strategic Plan for Environment and Development which aims for the safeguarding and enhancement of cultural heritage.

As expected, applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that permission should have been granted. In his appeal application (rikors), applicant (now, appellant) put forward the following arguments:

1.  Contrary to what the Commission had stated, the site was ‘technically exempted from the need of a backyard’. To support his statement, applicant referred to Article 13(2) of the Development Planning (Health and Sanitary) Regulations 2016. Applicant contended that the Authority may choose to deviate from the exact definition of the regulations if there are justified planning and sanitary reasons. Given the site configuration, a conventional backyard was deemed ‘unjustified’;

2.  The proposed designs were in keeping with the streetscape;

3.  Contrary to what the Authority had purported, the proposal sought to ‘protect, restore, enhance and utilise an underutilised Grade 2 listed building’.

In reply, the Authority disagreed with applicant/appellant, insisting that ‘every dwelling, except corner dwellings, with a depth of more than fifteen metres, requires a backyard equivalent to at least six metres width or to the entire plot width if such plot width is less than six metres.’ Furthermore, the case officer argued that a significant part of the scheduled property was earmarked for demolition, resulting in a significant change in the urban setting. The officer also noted that appellant had already made an attempt to deschedule the said property, which request was turned down.   

After taking note of the visual characteristics in the immediate vicinity, the Tribunal held that applicant’s building stood out of context. Having said that, the Tribunal  observed that the Cultural Heritage Advisory Committee (CHAC) had committed to inspect the premises but nonetheless failed to carry out a site inspection. For this reason, the Tribunal ordered the Committee to submit a technical opinion following a visual assessment. The Tribunal concluded that it will take a decision thereafter.

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