MEPA Watch | Sunday, 12 April 2009

Robert Musumeci reviews three decisions by the Planning Appeals Board in the last weeks

The first case relates to planning application to erect flats and garages in Marsalforn, which was refused by the DCC. The refusal was mainly based on the fact that the proposal ran counter to Structure Plan policy TRA 4 due to the fact that the development as proposed failed to provide the required car parking spaces (required by the development) within the site itself. The DCC, on behalf of the Authority, concluded that the absence of car parking spaces was conducive to the intensification of development, which consequently resulted in acute impact on the surrounding area.

Planning Appeals Board decision
The Planning Appeals Board, chaired by Dr Ian Spiteri Bailey, overturned the negative decision, provided that the said applicant makes a monetary contribution in favour of the Urban Improvement Fund in order to make good for the required car parking.

Robert Musumeci’s observations
The policy document entitled Policy and Design Guidance 2007 provides that where car parking cannot be provided on site, because it is either physically impossible or considered undesirable, and the site is not within the area covered by a Commuted Parking Payment Scheme, a contribution to the Urban Improvement Fund of Lm500 (€1,164) for each space which is not provided will be required. However, nonetheless, the same policy goes on to state that such new development shall not result in the removal of parking which is already available on site. This principle is embodied in policy 4.18 of the said document. It is therefore uncontested that the rationale adopted by the Planning Appeals Board in this decision is fully justified.

This application, which was refused by the DCC, was submitted for the sanctioning of a roof structure having a height of eight courses and located on the roof of a penthouse in Sliema. The refusal was based on the pretext that structures which are located on roofs of penthouses should not exceed 5 courses. In fact, the policy which regulates penthouse development provides that access to the roof of a penthouse may be permitted provided that the stairwell’s external height does not exceed 1.5 metres from the roof of the penthouse (which is equivalent to circa 5 courses).

Planning Appeals Board decision
The Planning Appeals Board however overturned this decision and held that despite the roof structure on top of the penthouse was not strictly built according to established quantitative guidelines, there was no concern in terms of the visual impact in relation to the site under review.

Robert Musumeci’s observations
This decision goes to prove that planning decision bodies may depart from established quantitative standards as long as the strategic objectives of the Structure Plan are still attained. In this case, the reason behind having a roof structure which is limited in height is to safeguard the potential visual impact in line with Structure Plan Policy BEN 2, which militates against negative visual impacts. In the case under review one could safely depart from established quantitative guidelines with a view to secure practical design solutions, since the overriding planning objectives (in this case, visual impact) were not compromised. The Planning Appeals Board was therefore correct in its decision.

This case which was refused by the DCC, treated an application regarding the possibility of changing a semi basement to a showroom in the locality of Birkirkara. The Board refused the application on the premise that the location was considered to be a residential area. The DCC reasoned out that, if approved, the proposal would infringe on Structure Plan policy BEN1 which promotes the amenity of residential areas. This same negative decision was appealed before the Planning Appeals Board. As expected, the Authority continued to insist that car showrooms were not listed as an acceptable use within residential areas. The applicant (now appellant) however contended that the area was characterized by heavy commercial commitments.

Planning Appeals Board decision
The Planning Appeals Board confirmed that the area under review was in reality, committed to commercial development in the vicinity, despite the fact that the area was considered as a residential area. The Planning Appeals Board found it strange how the same Authority had previously issued a permit for a private clinic and a service centre (for mobile telephony) in a basement which is located in the same road and then have the application under review refused. Based on this premise, the Appeals Board approved the change of use from a semi basement garage to a car showroom.

Robert Musumeci’s observations
There is no doubt that a clinic and a mobile telephony service outlet are more likely to attract visitors in the area, than would a car showroom. Planning decisions should be consistent and based on factual considerations. The Planning Appeals Board, once again, was fully justified in its decision.


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