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SUBMISSIONS OF THE MALTA ENVIRONMENT AND PLANNING AUTHORITY IN REPLY TO THE CONCLUSIONS REACHED BY THE COMMISSIONER FOR THE ENVIRONMENT AND PLANNING IN HIS REPORT ON PLANNING APPLICATION PA 2708/14 DATED 23 NOVEMBER 2015 – OMBUDSMAN CASE NO EP 0032

CONTEXT THE SITE – CATEGORY 3 SETTLEMENT

1

PA 6928/05 Approved Case not considered by Ombudsman

2

PA 1637/12 Refused Case considered by Ombudsman

3

PA 2708/14 Approved Case under investigation

POLICIES NWRS 3 and NWRS 4 PRIMARY CRITERIA TO BE SATISFIED • Policies distinguish between development, re-development and rehabilitation • A site qualifies for re-development if there is a commitment on site whereby: – The existing building has a footprint greater than 50 m² – The existing building is not worthy of retention • If a proposal does not qualify as re-development, then it is considered as new development. New development which takes up fresh land is not permitted in Category 3 Settlements.

MATERIAL CONSIDERATION • Article 69 (2) of ACT X (2010): “In its determination upon an application the Authority shall also have regard to: (a) Any other material consideration, including, environmental, aesthetic and sanitary considerations, which the Authority may deem relevant: Provided that no such material consideration including commitment from other buildings in the surroundings may be interpreted or used to increase the height limitation set out in a plan”

PA 6928/05 - Conversion of existing house of character and extension. Demolition of existing structure.

1

PA 6928/05 - Conversion of existing house of character and extension. Demolition of existing structure. BEFORE

AFTER

PA 6928/05 - Conversion of existing house of character and extension. Demolition of existing structure.

PA 6928/05 - Conversion of existing house of character and extension. Demolition of existing structure. The footprint of the existing building was greater than 50 m². The existing building was not deemed worthy of retention. “new development, which takes up fresh land...will not be permitted” is not applicable in this case since this is not a new development , but a redevelopment , given that it satisfied the previous two criteria. • This permit was granted by the Environment and Planning Review Tribunal on the 15/12/10 and issued on the 27/6/12. • Therefore it is clearly evident that with respect to the application under investigation, PA 6928/05 constitutes – a commitment and – a material consideration • This case was not considered by the Ombudsman. However it was taken into consideration by MEPA since this constitutes material consideration.

PA 1637/12 – Demolition of existing abandoned house, excavation, construction of a new terraced house.

2

PA 1637/12 – Demolition of existing abandoned house, excavation, construction of a new terraced house. Footprint of the built-up area less than 50 m².

Infill under contention circa 25 m²

PA 1637/12 – Demolition of existing abandoned house, excavation, construction of a new terraced house. X The footprint of the existing building was less than 50 m² (circa 35 m²). The existing building was not deemed worthy of retention. X “new development, which takes up fresh land...will not be permitted” is applicable to this case since the proposal does not qualify as a redevelopment. As such it may be considered as new development. This proposal included also the take up of the back land. •

This application was refused by the EPC.



Therefore it is clearly evident that PA 1637/12 has material differences from the case under investigation. However MEPA still took into consideration this case.



The Ombudsman’s argumentation revolves around the comparison between this case and the application under investigation.

PA 2708/14 – Application under investigation.

3 A

B

D

C

PA 2708/14 – Application under investigation. A

B

C

D

PA 2708/14 – Application under investigation.

A

The issue under contention revolves around the “infill” area, circa 25 m² delineated in yellow.

PA 2708/14 – Application under investigation. PA 2708/14 existing footprint, greater than 50 m²

More than 75% of the site in question features a building which was set to be demolished and redeveloped.

Drawing extracted from PA 2708/14

PA 2708/14 – Application under investigation. The footprint of the existing building was greater than 50 m². The existing building was not deemed worthy of retention. “new development, which takes up fresh land...will not be permitted” is not applicable to this case since this is not a new development , but a re-development, given that it satisfied the previous two criteria. • This permit was granted by the Environment and Planning Commission (EPC)on the 3/12/2014, following a positive recommendation by the Planning Directorate.

OMBUDSMAN’S CONCLUSIONS & MEPA’S REACTIONS • “No mention is made of the taking up of fresh land, which was flagged emphatically as the main breach of policy in PA 1673/12.” – (Ombudsman’s report).

– The main breach in PA 1673/12 was not related to the take up of fresh land, but to the fact that this proposal did not “satisfy the eligibility criteria for the re-development of an existing building” – (para 4.10 – Conclusion of the PA 1673/12 DPAR). • A simple ‘cut and paste’ action would have included this reference”. ..“the series of omissions and variations... point to a deliberate attempt to remove the one remaining obstacle potentially blocking the approval of the application” – (Ombudsman’s report).

– The whole case file related to PA 1673/12 was actually attached and referred to the EPC.

OMBUDSMAN’S CONCLUSIONS & MEPA’S REACTIONS • “It is clear that the objective of Policy NWRS 4 is to severely limit the possibility of existing open space within the building cluster to be built up” – (Ombudsman’s report)

The objective of NWRS 4 is stated in paragraph 5.4.12 of the same policy which states that category 3 settlements “are characterised by low densities and can only be considered as small clusters of buildings. This is their most significant feature and this policy seeks to protect it by seriously curtailing the take up of fresh land for buildings for the creation of new dwelling units, which increase densities and activities in the settlement”.

OMBUDSMAN’S CONCLUSIONS & MEPA’S REACTIONS • The Commissioner stated that closure of the infill amounts to the take up of fresh land, which is not allowed in Category 3 settlements. He describes this as a “grave error”. • The Commissioner also stated that application PA 2708/14 amounts to “new development”. However MEPA strongly insists that the proposal is tantamount to redevelopment. Therefore the text from NWRS 4 “new development, which takes up fresh land...will not be permitted” is not applicable to this case since this is not a new development.

OMBUDSMAN’S CONCLUSIONS & MEPA’S REACTIONS In PA 1637/12 the external footprint was circa 35 m² while in PA 2708/14 it was circa 95 m². Hence the latter qualified for redevelopment while the former did not. Thus PA 2708/14 could be assessed as per the provisions of NWRS 3 while PA 1637/12 could not. Therefore PA 1637/12 is materially different from PA 2708/14. However this was not pointed out by the Commissioner in his report. The Commissioner made no mention of the specific and diverse planning and material considerations pertaining to each particular case. To the contrary, all his conclusions are erroneously based on the relationship between PA 1637/12 and PA 2708/14.

OMBUDSMAN’S CONCLUSIONS & MEPA’S REACTIONS Moreover the Commissioner totally ignored PA 6928/05, notwithstanding the express reference made by MEPA before the Commissioner and in the DPAR, when it is clearly evident that PA 6928/05 constitutes – a commitment and – a material consideration, which MEPA had to take into account during the determination of PA 2708/14 as per Article 69(2). Had this comparison with PA 6928/05 been made, then the Ombudsman’s conclusions on PA 2708/14 could have been totally opposite.