Court revokes permit for catering establishment without a chimney stack

A neighbour, who resides above the premises, lodged a third party appeal against the approved permit with the Environment and Planning Tribunal, insisting that the permit should be revoked since he was worried that the conversion of the premises into a catering establishment would inevitably create an unbearable nuisance.

The third party objector also pointed out that members of his immediate family  suffer from a medical condition which “will be surely aggravated if the outlet in question is going to be operated as a food establishment, enabling the operator to operate from the front garden by the placing of tables and chairs”.

The objector made specific reference to a proposed horizontal duct which, once the establishment commences operations, would generate fumes directly under his balcony.  The objector further argued that the proposed activity amounts to a violation of Structure Plan Policy BEN 1 which in turn provides that any new development which is likely to have a deleterious impact on existing or planned adjacent use because of visual intrusion, noise, vibration, atmospheric pollution, unusually high traffic generation or unusual operating times should not be permitted.    

Notwithstanding the appellant’s  objections, the tribunal turned down the objector’s request after it held that the site falls in a designated Primary Town Centre, noting further that the applicant had submitted a Noise and Ventilation Report where it was indicated that extracted air would be filtered through active carbon filters prior to being discharged in the outside environment via an exhaust pipe terminating on the front façade.

...No allowance for alternative “fume extract solutions” other than vertical chimney stacks

In its conclusions, the tribunal remarked that the policy objectives would still be attained should the applicant provide adequate filtering and fume extraction systems, by way of which fumes are “filtered and vented away from overlooking windows”.

In reaction, the objector appealed the tribunal’s decision before the civil courts, arguing inter alia that the tribunal gave a wrong policy interpretation in that  the applicant had no option but to provide a chimney flue extending vertically above the building envelope.

After assessing the policy in detail, the court held that the objector was correct to state that there is no allowance for alternative “fume extract solutions” other than vertical chimney stacks that ought to terminate above the topmost part of the building. On this basis, the court revoked the tribunal’s decision and ordered the tribunal to review the case.

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Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law