MEPA Watch | Sunday, 05 April 2009

PRINT THIS ARTICLE

Robert Musumeci agrees that similar commitment which is covered by a valid permit outweighs the provisions of a Local Plan. His reasoning is based on a landmark planning judgment delivered this week by the learned Mr Justice Raymond C. Pace in the names Trident Development Limited vs MEPA

Case Details
The Planning Appeals Board overturned a negative decision taken by the DCC to sanction a distribution depot which is located in an area which lies outside the development zone in the limits of Iklin. The DCC had refused this application on the basis that the requested depot lies outside the development zone.
The DCC had then insisted that the proposal ran counter to the provisions of Structure Plan policies SET 11 and IND 6. Structure Plan policy IND 6 specifies that the Authority may only give favourable consideration to industrial development in those sites which are specifically identified for such use by the relevant Local Plan. In this case it was clear that the location was not designated for industrial use by the Local Plan, but was designated to remain a strategic open gap. Hence, in the eyes of the DCC, the proposed sanctioning would have resulted in undue intensification of urban development in a rural area. Consequently the said application was rejected.
The applicant, aggrieved by the Commission’s decision, filed an appeal before the Planning Appeals Board, claiming the site under consideration was distinctly committed with similar approved developments in its proximity. To back his arguments, applicant made reference to a number of approved permits which were issued in the vicinity, despite their location being an Outside Development Zone – namely a public service garage (previously a garage for the parking of coaches) which was approved in 2002, a warehouse (similar to the one in question) which was approved in 1992 together with another case where an extension to an already operating factory was already approved by the Authority.

The Planning Appeals Board decision
The Planning Appeals Board, chaired by Dr Ian Spiteri Bailey, overturned MEPA’s negative decision and proceeded with the approval of the permit on the pretext that there were a number of existing commitments in the ODZ surroundings. The Planning Appeals Board justified its decision by noting that large scale operations like the one under consideration could not be located in a residential area.

MEPA’s reaction to the Planning Appeals Board decision
Following the decision of the Planning Appeals Board, the Authority felt aggrieved by the new positive decision which was given by the Appeals board. MEPA filed an appeal before the Courts of Law, claiming that the decision delivered by the Planning Appeals Board should be declared null. The Legal Counsels of the Authority pointed out that the judgment delivered by the Planning Appeals Board constituted a breach of Article 33 of the Development Planning Act, claiming that the Planning Appeals Board had no legal authority to determine a decision in contravention of documented policies.

The Decision by the Civil Court
The Court, presided by Mr Justice Raymond C Pace pointed out that during the proceedings before the Planning Appeals Board, the MEPA representative defending DCC’s decision had conceded to the fact that the area under review is heavily committed with dispersed development.
Based on the above basis, said Judge made reference to a number of judgments already delivered by the Civil Court, all of which declare that planning decision bodies have the legal power, without effecting any changes to the Temporary Provision Schemes (now Local Plans), to evaluate planning cases on the specific merits deriving from the particular site circumstances. It is further enunciated in these judgments that when it results that there is an established similar commitment which is covered by the necessary permits, planning decision bodies have the legal powers to depart from such established policies, which for example to mention one the policy, that which regulates the height limitation.
This principle is further embodied in a number of judgments, which include “Alex Montanaro nomine vs Il-Kummissjoni ghall-Kontroll ta’ l-Izvilipp” (A.C. – 9 ta’ Frar 2001); “Marie Louise Farugia vs Kummissjoni ghall-Kontroll ta’ l-Izvilupp” (A.I.C. 24 ta’ Marzu 2003); u “Michael Gatt vs l- Awtorita’ ta’ l-Ippjanar” (A.C. - 19 ta’ Novembru 2001); “Max Zerafa vs Kummissjoni ghall-Kontroll ta’ l- Izvilupp” (A.I.C. (RCP) - 12 ta’Jannar 2004); “Santinu Gauci vs Kummissjoni ghall-Kontroll ta’ l-Izvilupp” (A.I.C. (RCP) - 24 ta’Marzu 2003); “Jimmy Vella vs Kummissjoni ghall-Kontroll ta’ l-Izvilupp” (A.I.C. (RCP) – 24 ta’ Marzu 2003); “Ignatius Attard vs Kummissjoni ghall-Kontroll ta’ l-Izvilupp” (A.I.C. (RCP) – 26 ta’ Mejju 2004); “Andrew Mangion vs Kummissjoni ghall- Kontroll ta’ l-Izvilupp” (A.I.C. (RCP) – 27 ta’ Ottubru 2003); “Joseph Muscat vs l-Awtorita’ ta’ Malta dwar l-Ambjent u l- Ippjanar” (A.I.C. (PS) – 18 ta’ Mejju 2005) “Consiglio D’Amato vs Kummissjoni ghall-Kontroll ta’ l-Izvilupp” (A.C. – 24 ta’ Mejju 2004)
Against this background, the Judge confirmed that the decision made by the Planning Appeals Board was according to law.

Robert Musumeci’s observations
The raison d’être behind the Court’s decision is very clear. When similar building commitment (assuming it is covered by a permit) exists in an area or a site, planning decision bodies have the legal power to depart from established quantitative guidelines even if such guidelines are indicated in approved policy frameworks. Appointed decision-makers are legally bound to follow this principle. This judgment marks another milestone in Maltese planning history.

Any comments?
If you wish your comments to be published in our Letters pages please click button below.
Please write a contact number and a postal address where you may be contacted.