Court asks Tribunal to investigate precedents quoted by applicant

A 2010 planning application entitled “to demolish existing building and to construct one residential dwelling” was originally turned down by MEPA’s Environment and Planning Commission after it was held that the proposal ran counter to Policy SMSE 07 of the South Malta Local Plan, which policy expressly provides that redevelopment within rural settlements may be permitted on condition that the building earmarked for demolition is legally permitted and has an external footprint of not less than 50 square metres. 

In this particular case, the proposal concerns an already built up structure which is located within a Category 2 rural settlement, yet having a legally built up area of 33 square metres.  

Against this background, the Commission concluded that the proposed development conflicts with Structure Plan Policy SET 11, which expressly prohibits urban development outside existing and committed built-up areas. Moreover, the Commission stated that applicant did not bring forward any reasons from a planning point of view as to why the proposed development cannot be located in an area designated for development or in an existing built-up area. 

In reaction, applicant appealed the Commission’s decision before the Environment and Planning Tribunal, citing that the “present existing building under consideration measures an external footprint of approximately 63 square metres”. Applicant therefore contended that the proposal is in line with current Local Plan provisions. Furthermore, applicant made reference to a number of planning applications that were approved notwithstanding similar site circumstances.

In its assessment, the Tribunal concluded that although the present building measures more than 50 square metres, only 33 square metres thereof are evident on the 1967 survey sheets and thus considered to be legal. For this reason, the Tribunal concurred with the Commission in that the building earmarked for demolition has an external footprint which is less than 50 square metres as required by Policy SMSE 07 of the South Malta Local Plan. More so, the Tribunal decided to refrain from probing into the issue as to whether such permits could constitute a legitimate precedent.

Similar planning applications may constitute a “legitimate expectation” in favour of subsequent applicants

Following the said decision, applicant appealed before the Civil Courts (Inferior Jurisdiction), citing amongst other considerations that the Tribunal made no reference to the permits which applicant himself referred to in support of his case. 

For its part, the Court concluded that appellant is correct to feel aggrieved since the Tribunal was obliged to investigate whether the permits quoted by applicant have any material bearing on his application since similar planning applications may constitute a “legitimate expectation” in favour of subsequent applicants. On this basis, the Court annulled the Tribunal’s decision and reverted the case before the Tribunal.