Fixed structure in front garden granted planning permission

Tribunal held that fixed structures in front gardens were acceptable in such locations

A development planning application seeking the change of use of a private car garage to a food and drink outlet (where cooking would also be allowed) was rejected by the Planning Authority after the Commission found that the proposal was in breach of planning policy. The premises are located in Triq Fortunato Mizzi in Rabat (Gozo), a designated Primary Town Centre, where food and drink outlets are usually permitted.

In its decision, the Commission took note of the submitted drawings and made specific reference to the lightweight enclosure around the front garden. The Commission found that the said structure ran counter to the provisions of Policy P50 of the Development Control Design Policy, Guidance and Standards 2015 (DC15) in so far as the ‘design and privacy to the overlying third parties’ property’ were concerned.

In reaction, applicant lodged an appeal with the Environment and Planning Review Tribunal, thereby insisting that the permit should have been issued. Applicant (now appellant) argued inter alia that, prior to the Commission’s decision, he had revised the drawings so as ‘to ascertain that a distance of 50cm was kept between the enclosure and the overlying third party balcony’. Moreover, appellant maintained that the Authority had issued a similar permit on the adjacent site.

In reply, the case officer representing the Authority rebutted that the sides of the enclosure consisted, in part, of franka block work. For this reason, the structure was not lightweight, thus running counter to DC15 policy requirements.  As to the adjacent site, the officer pointed out that applicant had failed to prove that the enclosure was covered by a planning permit, pointing out that although a change of use application was granted permission in the year 2007, no enclosure was shown in the relative permit drawings. Against this background, the canopy in the neighbouring site could not be considered as a legitimate commitment in terms of law.

In its assessment, the Tribunal noted that the premises were located in the Primary Town Centre, where food and catering outlets are therefore allowed by planning policy. Consequently, the Tribunal held that fixed structures in front gardens were acceptable in such locations. As to the adjacent site, the Tribunal noted that the enclosure was, as a matter of fact, covered by a valid planning permission, noting that the design was similar to applicant’s. Against this background, the Tribunal held in favour of appellant and ordered the Authority to issue the permit.