Compl. 13 - 07

Complaint lodged on 6 November 2006, by Ms Astrid Vella on behalf of Flimkien G]all-Ambjent A]jar, concerning the approval of PA 6361/04: "To demolish existing dwelling and erect apartment block with semi-basement garage".

An investigation was carried out in terms of Section 17C of the Development Planning Act.

Facts

Mr John Littlejohn submitted an outline application (PA 6361/04) on 8 November 2004 to demolish an existing dwelling and erect an apartment block with semi-basement garage. The proposed development was located at 75 Windsor Terrace, Sliema, within the Sliema UCA.

On 2 December 2004, the Heritage Advisory Committee reviewed the application and recommended the following:

"Twaqqiegh ta' bini u bini gdid. Il-kumitat ikkunsidra l-applikazzjoni u innota li din id-dar tinsab fil-UCA ta' Tas-Sliema fi triq ta' kategorija B u tifforma parti minn ringiela ta' djar li fil-kuntest prezenti g]andhom dehra prestigjuza u awtentika. Ghalhekk il-kumitat hu tal-fehma li din it-talba ma tistax tintlaqa".

(Black 9, in file PA 6361/04)

The Development Permit Application Report was inserted in the file on 6 January 2005 with a recommendation for refusal. The reasons for refusal were Structure Plan Policies UCO7, UCO 8, UCO 10, BEN 2, UCO 6, paragraph 11 of Part A of the Design Guidance: Development Control within Conservation Area, UCO 13. The reasons given can be summarised as follows:

"It was being proposed to demolish an existing house within a row of similar houses, which in their context had considerable architectural merit.
The proposal would therefore disrupt the scale and rhythm of the streetscape and badly effect the urban environment".

(Extract from DPAR - PA 6361/04)

The DCC Division 'C' refused the application on 7 March 2005. The applicant applied for his application to be reconsidered on 4 April 2005.

The Planning Directorate re-assessed the application and reiterated its previous recommendation for refusal of the application.

On 19 December 2005, the DCC reviewed the application and decided to defer a decision in order to carry out a site inspection. At the same time it stated:

"Without prejudice to a final decision, please submit a revised scheme addressing issues of demolition and height".

(Minute 29 (b), dated 19 December 2005, in file PA 6361/04)

The DCC inspected the site on 18 January 2006 and minuted the following:

"House is the third in a row of 7 traditional houses, all in a good condition. House interior in a relatively good condition.
On the back of the site there is a commitment (from Tower Road) on 6 floors, as well as to the side of the site (next corner and five sites to right)".

(Minute 33, dated 18 January 2006, in file PA 6361/04)

The DCC approved the application on 18 July 2006 on the basis of amended plans which retained the existing façade in part with the following justification:

"Upheld 5 - 2 since the existing façade is being retained(except for garage access), and in view of the commitments of additional floors in the area and the back drop of the site which is presently an eyesore".

(Minute 40, in file PA 6361/04)

(DCC noted decisions of PA 4168/92 and recent decisions taken by DCC in the same street, directly adjacent).

The outline permit was mailed to the applicant on 18 October 2006.

It is to be noted that the MEPA Board approved the North Harbour (this includes Sliema) Local Plan on the 2 May 2006. This came into force on 3 August 2006, following its approval by the Hon. Minister.

According to Map SJ3 of the relative Local Plan, the area where this development is located is zoned for two floors.

Comments

The Development Permit Application Report: The case officer considered the application on the basis of current policies concerning UCA's. Whilst a number of similar applications in the same locality were considered, I find it difficult to understand why the case officer did not attach to his report a block plan indicating existing heights. This would have been particularly useful in Sliema, knowing too well the number of conflicting decisions taken on the demolition of buildings and their replacement with buildings much higher than the original. There seem to be a reluctance from case officers to use graphics to better explain their statements. This is difficult to explain as most MEPA staff are trained in graphical communication. Such a document would have explained clearly the situation without the need of lengthy descriptions.

The actions of the DCC These are very difficult to explain. At the first instance the DCC accepted the recommendations of the Planning Directorate and refused the application listing seven reasons, based on official polices as to why the development was unacceptable. Subsequently, at reconsideration stage, the members of the DCC changed their minds and reversed the previous decision. The reasons given, in no way address or contradict the original reasons for refusal - indeed, the reasons purporting to justify the overturning of the original decision are quite irrelevant.

Seven houses are described as having considerable architectural merit in their context as a result of this decision will eventually be demolished because the façade is being retained (in part), commitments in the area and the backdrop to the buildings. Once one building is allowed to be demolished, others will follow. The policies of the MEPA in relation to developments in UCA as outlined by the case officer are ignored and there is no justification to show why those policies have not been properly applied to this particular case by the Planning Directorate.

The DCC knew well enough that the Local Plan for the area was due to be published shortly (within days!). Yet they did not take the precaution to consult the finalised Local Plan so that by their action they will not compromise its provisions. This is required by the Structure Plan Policy BEN 4 which states that

POLICY BEN 4: During the interim period between the commencement date of the Structure Plan and the adoption of any particular Local Plan, permission for development in Temporary Provisions areas will be subject to Policies BEN 1,2, and 3. Additionally, permission will not normally be given unless the Planning Authority is satisfied that such permission would be unlikely to compromise the objectives of the review forming part of Local Plan preparation. Within this overriding concern the Authority will also have regard to the location of the proposed development, with more favourable consideration being given to development close to developed areas and already provided with roads and services, and less favourable consideration to development relatively remote from existing buildings and infrastructure.

The Local Plan: As stated above, the Local Plan for the area determines the height limitation on this site of two floors. Obviously this policy was adopted to retain the existing houses in their context. However, the MEPA is now committed with the applicant to issue a permit for a building with six floors, and this commitment can have very serious implications. It is to be noted that the permit was sent to the applicant on 18 October 2006, over two months after the approval of the Local Plan (although it was approved on the 18 July 2006). It is not clear what led to this excessive delay.

Consequently the MEPA is now faced with a situation where the full development application would normally be assessed on the basis of the Local Plan provisions, when the MEPA has a commitment to the contrary with the applicant as a result of its ignoring of the Structure Plan Policy BEN 4. This conflict I am advised, is regulated by Section 33 (1) of the Development Planning Act, as a result of which the outline development permission overrides the provisions of the Local Plan.
This is an extremely serious case, where an irreversible decision, with serious consequences on the architectural heritage, has been taken and no corrective action is possible. There have been several other instances in the past when the Audit Office, after an investigation, censored the different Divisions of the DCC relative to decisions taken. In all cases I had recommended that appropriate action be taken and to date I have not been informed that any effective action has, in fact, been taken. It seems that appointed members of the MEPA Board/Development Control Commissions are reluctant to face facts, shoulder their responsibilities, and in such cases submit their resignation.

Conclusion and recommendations

In view of the above, it is concluded that:

1. In issuing the outline development permission, the Development Control Commission, Division 'C':

a) ignored the provisions of Structure Plan Policy BEN 4 thereby compromising the Local Plan approved by the MEPA Board but still awaiting the Hon. Minister's approval;

b) did not address the reasons for refusal submitted by the Director of Planning, thereby breaching Section 13 (5) of the Development Planning Act.

2. There are no grounds for the withdrawal or modification to the permit in terms of Section 39A of the Development Planning Act as none of the reasons justifying withdrawal or modification established in the said Section 39A exist. In addition the Development Planning Act does not stipulate any alternative action to modify or withdraw a permit when the policies were not properly applied.

3. The DCC Division 'C' should shoulder the responsibility for its decision. It should be held accountable for this blatant ignoring of MEPA Structure Plan Policy BEN 4 and the provisions of Section 13(5) of the Development Planning Act.

Mepa's Reactions

I issued a Preliminary Report on the 16 November 2006 and subsequently on the 11 December 2006 I met the Chairman MEPA and his legal advisor. It was pointed out to me that in terms of Section 33 of the Development Planning Act, the Outline Development Planning Permit supercedes the provisions of the applicable Local Plan (approved in August 2006). In view of the outcome of this meeting, I have amended the Preliminary Report as originally drafted.

Joseph Falzon
Audit Office
18th December 2006