38cm encroachment over roof terrace deemed ‘minimal’

At issue was a planning application involving the sanctioning of a setback floor which was not built according to permit In actual fact, the facade of the setback floor was receded 4.02 metres from the façade instead of 4.20 metres as  prescribed in the previous permit.

As a matter of policy, ‘a building shall not exceed the permissible height as established in the Local Plans’, which height ‘includes the provision for any setback floors and services, as well as an obligatory 1-metre parapet wall on the exposed façades at the uppermost roof level.’

Moreover, no elements or structures, except for awnings, are allowed to encroach within the permissible setback. In essence, this means that any setback floor must lie within the permitted overall building envelope.

Following analysis of the submitted drawings, the Commission turned down applicant’s request for the following reasons:

The proposal included a setback floor which ran counter to policy (namely, the provisions of policy P39 of the Development Control Design Policy, Guidance and Standards 2015) since the building encroached within the permissible setback;

The proposal was deemed to run counter to the Urban Objective 3 of the Strategic Plan for Environment and Development (SPED) which aims to protect and enhance the character and amenity of urban areas.

In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal. In his appeal, plaintiff (applicant) stated the following:

• Whilst acknowledging that the setback floor encroached within the ‘permitted setback’, the extension was minimal, that is to say 38 centimetres;

• In any case, the height of the building was lower than what was allowed by policy;

• Were the building to be constructed higher, the encroachment would not be visible from public view;

According to policy, ‘a one metre cantilever at the roof over penthouse level’ was acceptable.

In reply, the Authority reiterated the idea that applicant’s proposal was in breach of policies P35 and P39, which state that no part of a building should be visible from street level.

In its assessment, the Tribunal however noted that the only reason for refusal concerned the setback floor. The Tribunal went to observe that the alterations carried out by applicant were minimal, resulting in no considerable visual impact. On this basis, the Tribunal ordered the Authority to issue the permit even though the setback floor was, strictly speaking, in breach of policy requirements.