Commission quotes wrong section of the law

In this case, the Planning Commission had granted full development permission for the sanctioning of a rural dwelling ‘as built’ even though the Planning Directorate had argued that the floorspace at basement level went beyond the footprint of the building. The building in question is located within an area proposed for scheduling as a Level 3 Area of Ecological Importance in Bidnija.

According to the case officer, the interventions were tantamount to ‘excessive take-up of rural land’, resulting in ‘urban development which will ‘visually dominate and detract from the character and integrity of the original building.’ Likewise, the Environment and Resources Authority (ERA) had also objected to the proposal after it held that the extent of development was scattered over a large area.

However, the Commission felt that permission should be granted since the site was covered by an old building permit, noting that that the built area at ground floor was less than what had been previously approved. Moreover, the basement could be justified since ‘the site is sloping and there is a difference in levels from the front to the back of the site’. The permit was eventually approved subject to a planning gain of €15,000 and an additional €50,000.

For his part, applicant submitted an appeal against the €50,000 fine before the Environment and Planning Review Tribunal, noting that the €50,000 fine was imposed in terms of section 105 of the Development Planning Act, 2016, which provision empowers the Executive Council to impose a maximum of €50,000 compromise fine when it believed that a person has committed an offence against the Planning Act. Moreover, appellant brought forward the following arguments:

•    The Commission failed to grant him the opportunity to state his case;

•    The Commission failed to give adequate reasons for the imposition of the said fine;

•    In any case, the fine was ‘excessive, unreasonable and unnecessary’.

In reply, the Authority reiterated that it was empowered to impose compromise fines where the Executive Council felt that a person committed an offence against the Planning Act, the amount of which lay within its discretion. It was further highlighted that a distinction should be made between a planning gain and a compromise fine.

In its assessment, the Tribunal felt that contrary to what appellant had alleged, the Commission’s intent on imposing a €50,000 fine had been made public in the case officer’s report, which report was accessible to appellant. Consequently, the Commission was not found to have acted in breach of the fair hearing principle.

Nevertheless, the Tribunal concluded that the €50,000 should not have been issued in terms of section 105 of the Development Planning Act, 2016 since the said provision concerns the Executive Council rather than the Planning Commission that was entrusted with the issuing of the permission. For this reason, the Tribunal decided to revert the case before the Authority for reassessment.