Policies for restricted penthouses apply equally for duplex apartments

In reaction, the applicant appealed the decision before the Environment and Planning Tribunal, insisting inter alia that his site is restricted, adding that in such cases, the policy allows for the “erection on the roof of a building of an additional level which forms part of, or will form part of, a duplex unit with the residential unit immediately below” with a reduced setback. Applicant further contended that in any case, his proposal still included a 4.25 metre setback on one frontage.

For its part, the MEPA case officer made reference to Policy 10.6 of the Policy and Design Guidance 2007 which states that the construction of rooms at roof level as a duplex with the underlying residential unit are allowed, provided that where  the proposed development has a frontage on two streets, the “penthouse level” should be set back at least 4.25m from each frontage. For this reason, the Authority maintained that there are no sound planning justifications which could justify a breach in policy.  

In its assessment, the tribunal took note of the submissions put forward by the parties. The tribunal made express reference to Policy 10.6 C of the Development and Design Guidance (2007) which specifically refers to penthouse floors in restricted corner sites. The said policy provides that “on restricted corner sites,  penthouses which are  set back by at least 2.5 metres may be permitted”, adding that such policy may be invoked in situations when the  gross floor area of a penthouse is less than 45 square metres (minimum floor area required for dwellings).

In this case, the Tribunal maintained that the proposed topmost floor is interconnected with the floor immediately below and  the concession applicable for penthouses by virtue of Policy 10.6 C may be equally invoked in the present circumstances. In its conclusions, the Tribunal observed that had applicant submitted a separate application to build a penthouse, he would have certainly been granted a permit. Against this background, the Tribunal found no justification on MEPA’s part to refuse the permit. MEPA was consequently ordered to issue the permit within 30 days. 

On restricted corner sites, penthouses are allowed to be set back by 2.5 metres