Refusal of ODZ swimming pool based on bad law

A 2012 planning application for the “construction of a swimming pool” in Bidnija was turned down by MEPA’s Environment and Planning Commission after it held that the proposed layout is not in accordance with the provisions of the Development Control Policy - Swimming Pools Outside Development Zone (January 2000).

The Commission underlined that the policy specifically aims to “contain” the spatial spread of development, minimise the take-up of land and limit the extent of visual intrusion. In this case, the Commission observed that the proposed swimming pool is located 20 metres away from applicant’s residence, a distance that was deemed excessive.  

Applicant appealed said decision before the Environment and Planning Tribunal, insisting that despite the policy document (in this case, the Development Control Policy – Swimming Pools Outside Development Zone (January 2000)) stipulating that “swimming pools should be sited as close as possible to an existing building and limited in size”, the policy fails to specify whether the “existing building” refers to applicant’s own residence. But even so, the applicant observed that the distance from the neighbouring property totaled 6.5 metres, adding that such distance is in keeping with the scope of the policy.  

The Tribunal, on its part, upheld the view taken by the Authority, confirming that the swimming pool policy aims to limit fresh land being taken up. With the same reasoning, the Tribunal concluded that distance requirements were to be assessed in relation to applicant’s residence within the owned site precincts, since a “long” distance is tantamount to additional land take up in order to accommodate pathways linking the residence with the pool area. On this basis, the Tribunal reiterated the Commission’s decision. 

In turn, applicant appealed the Tribunal’s decision before the Civil Courts, insisting inter alia that the Tribunal made a wrong application of the law since the policy does not state that pools must be necessarily located close to applicant’s residence.

Tribunal’s assertions legally unfounded since the ODZ pool policy does not stipulate any distance requirements

In its assessment, the Court agreed with applicant, noting that the Tribunal’s assertions were unfounded. The Court referred to the policy, which expressly provides that pools must be located “within the curtilage of existing building”, “curtilage” being defined as “the open space situated within the common enclosure belonging to a dwelling house”.  

The Court took exception to the conclusions reached by the Tribunal since the policy does not mention that the pool must be located adjacent to the residence. Consequently, for the above reasons, the Court said that the Tribunal’s conclusions were anchored on a wrong application of the law. On this reasoning, the Court annulled the Tribunal’s decision and ordered a fresh examination of the case under review.

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