Tribunal, unlike Commission, fails to enter into sanitary issues

On a preliminary note, the Commission ruled that the proposed overall height exceeds the allowable height limitation in the South Malta Local Plan. As a result, the Commission maintained that the proposal is incompatible with the characteristics of the area, adding that it would detract from the overall objectives of the Structure Plan relative to the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas (Structure Plan policy UCO6). More to the point, the Commission underlined that the proposal would adversely affect the views of an Urban Conservation Area and detract from the traditional urban skyline (Structure Plan policy UCO10). Reference was also made to policy 10.6 of the Development Control Policy & Design Guidance 2007, which essentially states that penthouses within the Urban Conservation Area may only be considered on a building of more than three floors (in this case, the present building consisted of two floors). As a final point, the Commission observed that the proposal does not satisfy the minimum sanitary requirements required by law.

Following the decision, the applicant filed an appeal before the Environment and Planning Tribunal, insisting that the overall building height falls within the height limitations for the South of Malta Local Plan. In order to support his argument, applicant made reference to a number of precedents where permits for recessed floors in Urban Conservation Areas around Malta were allegedy granted. As an example, applicant mentioned a case where the MEPA gave its green light for an additional recessed floor on a Grade 2 Hamrun building.

In his reaction, the case officer representing MEPA made a preliminary point, stating that one of the reasons for refusal was based on the fact that the proposed development does not comply with current Sanitary Laws and Regulations since the balcony overlooking the backyard at second floor level projected more than 0.75 metres. MEPA thus contended that the Tribunal does not have any jurisdiction to decide the case. To support his argument, the case officer referred to a landmark case decided by the then Planning Appeals Board in the names 'Pater Holding Co. Ltd. vs Planning Authority', whereby it was held that planning appeals boards may not decide on sanitary issues.

In consistence with the Pater judgment, the Tribunal held once again that it possessed no jurisdiction to decide this case since one of the reasons under appeal concerned sanitary regulations, which are regulated by the Police Code (and not the Environment and Development Planning Act). If that is truly the case, it is my opinion however that the Environment and Planning Commission should have equally refrained from probing into sanitary matters in the first place since both the Commission and the Tribunal (whose role is to review a Commission's decision) are guided by the same legal framework.