Tribunal orders applicant to demolish part of balcony

In its assessment, the Commission observed that the proposed balcony is unacceptable since its 'outer face is not at least 0.75 metres away from the boundary line of the party wall nearest to the balcony' (Policy 7.2 of Development Control Policy & Design Guidance 2007). 

Indeed, this requirement is also found in the Civil Code (Article 443 of the Civil Code states that the distance between the external line of that side of the balcony or other projection, which is nearer to the party-wall, to the internal line of such wall shall be at least 76cm). 

The Commission further maintained that a party wall was being created at first floor level, which, in turn, was incompatible with the urban design and environmental characteristics of the area. The Commission therefore concluded that the proposal did not seek to maintain the visual integrity of the area as required by Structure Plan Policy BEN 2.

In response to the said decision, applicant lodged an appeal before the Environment and Planning Tribunal, stating inter alia that in the present case, the adjacent building belongs to the same applicant and hence distance requirements did not instill concern. To support his argument, applicant argued that 'in every residential block being built, when the whole apartments appertain to the same owner', MEPA does away with such distance requirements. In addition, applicant observed that the proposed development lies between two existing buildings, as a result of which, the party walls were not 'visually exposed'.

On its part, the Authority reiterated that the proposed sanctioning includes a balcony at first floor level that spans along the entire façade. The case officer pointed out that Policy 7.2 of the DC2007 requires that projecting balconies are to be located at least 0.75m from the nearest boundary line of the party wall. Additionally, MEPA's case officer maintained that "the balcony at first floor will be entirely enclosed from the side by a wall, which is intended to support the balcony at second floor", adding that such arrangement is considered to be visually intrusive and inappropriate. As a final point, the officer remarked that it is "utterly incorrect" to state that the Authority does not enforce this policy when the whole block belongs to the same owner. 

In its assessment, the Tribunal considered that Policy 7.2 of Development Control Policy & Design Guidance 2007 applies regardless of the ownership of the party wall. 

In the circumstances, the Tribunal held that the balcony is to be partially demolished so that a distance of 0.75 metres between the outer face of the balcony and the nearest party wall is achieved in line with planning policy. Applicant was further requested to visually reinstate the "disturbed" structural parts (as a result of the demolition operations) using masonry cladding.

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