Duty to give reasons

The Planning Commission had decided to reject a planning application for the proposed demolition of an existing building and the subsequent construction of “a basement garage, ground floor retail, two overlying apartments and setback floor”. The site is located on the border of Santa Venera.

The Commission held that the proposed designs were objectionable, particularly so since the existing building was “worthy of preservation”. Moreover, the proposed setback floor at roof level was in breach of policy since there were no committed adjacent roof structures on one or both sides of the site in question. Notwithstanding the Directorate’s favourable recommendation, the Commission had concluded that the proposal went against policies SPED UO 2.2 and DC 15 P5.

In reaction, applicant lodged an appeal against the Commission’s decision before the Environment and Planning Review Tribunal, insisting that the permit should have been issued. In his submissions, applicant (now, appellant) argued that the internal part of the building was in a derelict state “as a result of damp, years of neglect and haphazard structural alterations to the extent that it could safely be said and shown that the internal part of the house was completely worthless from a conservation point of view”. Moreover, appellant contended that the setback floor would not be visible from the street “when viewed from an eye level height of an average person who is 1.6m tall.”

According to appellant, there was a considerable number of buildings “which are of the same height or higher (even without a recess / setback) than the proposed development” in the immediate vicinity. Applicant went on to pin point that the Directorate had made no reference to “SPED UO 2.2 and DC 15 P5” in its recommendation to the Commission. Consequently, the Commission’s eventual decision went beyond “that which is sought” (ultra petita).

In addition, the Design Advisory Committee signalled its “no objection” to the proposal since “the existing building did not constitute any particular characteristics and architectural features and hence its demolition was acceptable according to the SPED Objectives”.

The Commission relied on policies “SPED UO 2.2 and DC 15 P5” without further explanation

In reply, the case officer representing the Planning Authority pointed out that the Commission was not bound by the Directorate’s technical recommendations, adding that were it not the case, “the  Planning Commission would only turn out to be a rubber stamp”. In this case, the Commission felt that the building was deemed to be of architectural and historical value and should be saved from demolition.

In its assessment, the Tribunal, however, observed that the building was not in a good state of repair. Moreover, the Tribunal noted that the Commission’s decision was not sufficiently motivated. The Commission relied on policies “SPED UO 2.2 and DC 15 P5” without further explanation. Consequently, the decision went against Article 72(1) of the Development Planning Act which states that for any refusal, “the Planning Board shall give specific reasons”. Against this background, the Tribunal concluded that the case should be referred back to the Commission for assessment.

Dr Robert Musumeci is an advocate and a perit