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Building as high as my neighbour

Lately, appealing from points of law decided by the Environment & Planning Review Tribunal,[1] has become quite a successful exercise. What the Court of Appeal has come to accept as a point of law decided by the Tribunal,[2] has widened over time. Also, more often than not, the Court of Appeal has been finding in favour of the appellant.[3] One of the reasons is the upholding by the Court of Appeal of the Doctrine of Commitment, occasionally also referred to as cerimus paribus.[4]

The Doctrine

According to this doctrine, in the process of deciding an application for development planning, the Planner must not only consider the law, plans and policies, but must also balance these against the situation on the ground. The following is a typical claim made by an applicant:

‘F’dan il-kuntest fil-mori tal-kaz saret referenza ghal numru ta’ permessi li nghataw fuq siti li jinsabu fil-vicinanza u x’uhud minnhom addirittura jikkkonfinaw mas-sit mertu ta’ dan il-kaz. Dawn il-permessi huma PA 1621/98, PB3611/79, PA4335/92, PA5691/95, PA1621/98, PA3712/93, PA1581/94, PA1738/97, PA974/99, PA3931/04, PA4740/90, PA1450/87, PA7481/96 u PA3931/04 u ohrajn.’[5]

The Court of Appeal is adamant that this Doctrine is to be upheld, even mildly rebuking the EPRT for not doing so after the Court of Appeal had already upheld this doctrine:

‘Illi f’dan il-kaz jidher car li l-istess Tribunal, mhux ghall-ewwel darba, injora l-kuncett ta’ commitment ...’[6]

In the same judgement, the Court of Appeal further stated that this Doctrine is to be applied even in the face of the local plan. The Environment & Planning Commission[7] must consider the area and whether the particular area is committed in favour of a particular kind of development:

‘... d-decizjoni tal-Qrati huma fis-sens li jrid isir ezami serju jekk l-area hix hekk kommessa, u jekk hija hekk kommessa, mela allura jiddeciedi l-applikazzjoni fid-dawl tal-istess u tal-Pjan Lokali, b’mod li jekk l-area hija kommessa ghal tali tip ta’ zvilupp, mela allura l-kuncett ta’ commitment ghand jigi applikat, anke fid-dawl ta’ dak provdut fil-Pjan Lokali... L-ezistenza tal-Pjan Lokali u dak li jipprovdi mhux in kontestazzjoni, u l-appellant dan ma jikkontestahx, izda issottometta li abbazi tal-gurisprudenza konstanti, ghandu japplika l-principju ta’ commitment, u jekk jinstab li hemm commitment f’dik iz-zona u l-area, mela allura kif inhareg permess simili lil haddiehor, ghandu wkoll jinhareg permess lilu....

... huwa skorrett li wiehed jghid li gialadarba l-Local Plan jistabbilixxi z-zona in kwistjoni bhala wahda residenzjali, allura ma jistax jigi accettat uzu kummercjali fih.’[8]

In Joseph Gauci v. MEPA[9] the Court was just as adamant in this regard. The developer was seeking to build higher than permitted by the local plan, relying on the Doctrine of Commitment to obtain a relaxation of the height limitation. It was emphasised that the area is committed in favour of three storey constructions:

‘... l-istess Bord ma tax kaz li hemm tali commitment... u ma applikax tal-principju u kuncett  li gie spjegat f’termini gudizzjarji li la darba jigi pruvat li hemm commitment f’dan il-kaz ghal tali gholi mela allura l-applikazzjoni ghandha tigi kunsidrata bl-istess mod bhal ta’ l-ohrajn, u dan indipendentement minn dak li jipprovdi l-Pjan Lokali...’[10]

 

The Court goes on to cite past case law[11] and criticises the Planning Appeals Board[12] for bypassing the doctrine of commitment by dividing the applicant’s street into different ‘zones’[13] and concluding that since the claimed higher buildings are more than 180 metres away from applicant’s site, there is no commitment. The Court of Appeal describes this as a fictitious obstacle:[14]

‘...ostaklu fittizju sabiex dak li gie gurisprudenzjalment ritenut konstantament minnn dawn il-Qrati... jigi eluz u ma jigix res applikabbli; izda dan ma ghandux jsir u wisq inqas jithalla jsir, ghaliex id-decizjoni tal-Qorti kemm f’dak li huma punti legali, u kemm fuq dak li jkun gie stabilit fattwalment ghandhom jigu fl-istess kawza jigu segwiti, l-Qorti u kull Tribunal f’kompetenza inferjuri, huwa obbligat li josserva dak li huwa gja determinat u bl-ebda mod ma ghandu jittenta jbiddel dak li gja gie deciz minn Qorti tat-Tieni Istanza fl-istess kawza medesima...’[15]

 

The EPRT seems to be trying to resist the Doctrine of Commitment. This is a shift from the past, considering that the EPRT’s predecessor endorsed and upheld the same doctrine more than a decade ago:

  • Emanuel Vella v. DCC (PAB 23.02.2000): ‘Il-Bord jaqbel mas-sottomissjonijiet maghmula mill-appellant. Huwa car li fl-inhawi vicin tas-sit mertu tal-appell hemm ammont ta’ binjiet li jmorru oltre l-height limitation tal-lokalita’. Dan jifforma element ta’ commitment li l-Bord irid bil-fors jaghti kasu ...’
  • Charles Bugeja v. DCC (PAB 19.07.2000): ‘Indipendentement minn kull regola jew gudikat kwotat mill-Awtorita’, l-Bord ma jistax jahrab mill-istreetscape tal-lokalita’(liema streetscape ma jistax jigi injorat ghaliex huwa stat ta’ fatt). .. Dak li kien tajjeb ghal haddiehor ghandu jkku tajjeb anki ghall-appellant.’

The position at law

The old law on development planning, article 33 (1), read as follows:

33. (1) In its determination upon an application the Authority shall -

(a) apply the following:

(i) development plans, including the height limitations shown in the Temporary Provisions Schemes or in local plans, unless the limitation may be modified by applying a planning policy which deals specifically with the maximum building height which may be permitted on a site, which policy shall take into consideration both the site coverage and the building volume which may be permitted on a site,

(ii) planning policies:

Provided that subsidiary plans and planning policies shall not be applied retroactively so as to adversely affect vested rights arising from a valid development permission; and

(b) have regard to:

(i) any other material consideration, including aesthetic and sanitary considerations, which the Authority may deem relevant;

(ii) representations made in response to the publication of the development proposal.

On the other hand, the current Environment & Development Planning, article 69(1) reads:

69. (1) In its determination upon an application the Authority shall:

(a) with respect to an application for a development permission apply the following:

(i) plans:

Provided that the height limitation may only be modified by applying a policy which deals with the maximum building height which may be permitted on a site, which policy may take into consideration the site coverage, the building volume which may be permitted on a site or any other material consideration;

(ii) policies:

Provided that subsidiary plans and policies shall not be applied retroactively so as to adversely affect vested rights arising from a valid development permission;

(b) with respect to any other application apply such plans, policies and regulations issued under this Act as it may deem relevant and appropriate.

(2) 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;

(b) representations made in response to the publication of the development proposal.

The Policy and Design Guidance of 2007[16] reads as follows:

‘The following provisions are applicable solely to applications which were duly submitted to MEPA on or before 3rd August 2006. Nothing contained in this section is in any way applicable to applications which were submitted to MEPA after 3rd August 2006.

a) With reference to local plan policies which specify a 120 sq. m. Limit for residential units, the policies are to be applied such that all units are to be at least 96 sq.m. (including all roofed over enclosed spaces)

b) With the introduction of local plans, the height relaxation policy is no longer applicable. For applications submitted prior to the local plans, however, the height relaxation policy is applicable provided that

(i) there are commitments in the immediate vicinity and within the same street which have been permitted as three floors on the basis of that policy.

(ii) the resultant development is compatible with its immediate surroundings and that the additional floor will result in an improved streetscape.

Similarly, a penthouse over a third floor may be allowed, provided that

(i) there are three storey development with penthouses in the immediate vicinity and within the same street with valid permits

(ii) the resultant development is compatible with its immediate surroundings and that the penthouse will result in an improved streetscape.

c) For applications relating to sites which were previously not within Urban Conservation Area (nor were they indicated as UCA in the draft local plan) and are now within a UCA in accordance to the newly approved Local Plan, Policy 3.8 of the DC 2005 relating to internal developments in UCA is not to be applied. The allowable height limitation is to be assessed in accordance with the previously existing Temporary Provision Schemes and the height relaxation policy if it was applicable. There will be no consideration of any habitable structures (such as penthouses) above the allowable height limitation.’

 

Art. 40(13) EDPA states that the Tribunal 'shall ensure that it complies with the provisions of article 69 in reviewing decisions of the Authority'.  Its decisions are final, apart from the limited appeal to the Courts, on points of law decided by the same Tribunal.  The previous law was similarly worded.

My challenge, at this stage, is to ignore the obvious element of perceived equity which the Doctrine of Commitment offers developers, and try to fathom the evident disagreement between the position taken so far by the EPC and the EPRT on the one hand, and the Court of Appeal on the other hand.

There is little doubt that, taken as a whole, the Doctrine of Commitment is a material consideration, and a relevant one at that. The old Development Planning Act left open the question of whether the Doctrine of Commitment is a material consideration, let alone a relevant one. The law was silent, the reason probably being that the Doctrine of Commitment came later, via the Planning Appeals Board. In due course, when Cap. 504 was enacted, the law maker actually confirmed that it was a relevant material consideration.[17] The question I ask is: does this mean that the Authority and the EPC can deviate from plans, policies, etc., when deciding applications? It all comes down to the value given to the obligation ‘to apply’ as opposed to the obligation to ‘have regard to’. Are we expected to believe that the lawmaker, after approving and publishing the Structure Plan in the late 1990, and setting up the Planning Authority in 1992, actually intended the Authority and the EPC to be allowed to discard even the most fundamental of planning rules, on the basis of the Doctrine of Commitment? Are we expected to believe that the lawmaker, after stipulating that the local plans for example, will not come into force before the Minister approves them, can then be cast aside by the Authority, or the EPC, or by the EPRT, simply to be in line with the situation on the ground? If this is the case, I ask what is the point of having planning laws, if old possibly bad permits actually set precedents and cannot be cast aside to make way for better future planning?

The earlier quoted judgements indicate that the EPC and EPRT believe that the plans and policies are to be applied and cannot be deviated from on the basis of neighbouring / surrounding commitment, a stand which the Court of Appeal is not happy with. The term ‘shall apply’ in article 69 is interpreted by the EPC and by the EPRT as mandatory and uncompromising, while the term ‘have regard’ seems to be given very little value by the same EPC and EPRT. The term ‘have regard’ cannot possibly mean much to the EPC and to the EPRT, when these entities believe that at the end of the day they are bound, obliged by law, to apply the plans and polices. Does ‘to have regard’ mean that the EPC listens to the submissions of the applicant concerning material considerations, acknowledges the existence of such material considerations, but ultimately casts these material considerations aside because at the end of the day the EPC and EPRT are bound to apply plans and policies without compromise? This seems to be the case according to the EPC and EPRT, although not according to the Court of Appeal.

The earlier-quoted extract from DC 2007 policy requires that where pre-3 August 2006 applications are concerned, height relaxation policies will not apply over local plans where the latter exist. This favours the EPC / EPRT position, at least up to a point: where local plans exist, the height limitations they establish will prevail notwithstanding any amount of commitment on the ground. Does this however suggest that where other forms of commitment exist on the ground, the local plans do not necessarily prevail?

Art 69(2) EDPA also makes it clear that while commitment is a material consideration, height commitment from nearby property cannot serve to increase the height of a proposed development. This raises the same question as DC 2007: does this provision of law, which was not a carryover from the previous law, imply that forms of commitment not involving height, might prevail over plans and policies?

Which interpretation is correct at the end of the day? Are the EPC and EPRT correct to apply policies and plans in an uncompromising manner, on the basis of the existence of the term ‘shall apply’ in article 69(1), giving little if any practical weight to the ‘have regard’ clause in 69(2)? Or is the Court of Appeal correct, in giving so much weight to the other obligation in article 69, to ‘have regard’ to material considerations, that it expects the EPC and EPRT to compromise on their clear mandatory obligation to apply plans and policies? Does one compromise on what he is expected to apply, or disregard what he is to have regard to?

In my opinion, plans and policies should be applied with practically no compromise, or else why have them at all? Favourable as it may be to prospective developers, the developer should not be able to have the planning laws discarded, so that he emulates what already exists on the ground irrespective of what current plans and policies state.

In my opinion, the real culprit is the lawmaker, who did not pass crystal clear legislation in the first place. The legal provision in question was problematic from the start, from when article 33(1) of Cap. 356, as originally enacted, seemed to place development plans and material considerations on the same footing:

‘In determining an application the Authority shall have regard to the development plans, to representations made in response to the publication of the proposal and to any other material consideration…’.

 

The door was left open for material considerations to find favour even over development plans. In 2001 the law was amended, so that the Authority became obliged to give priority to plans and policies, over material considerations (‘shall apply’ as opposed to ‘have regard to’). It is however regrettable that the lawmaker left this question mark under discussion concerning the value given to ‘have regard to’. The lawmaker could have specified, for example that in case of a lacuna, or perhaps in case a conflict in the interpretation of plans and policies arises, the EPC and EPRT will resort to material considerations to resolve the impasse. Such a legislative provision would have made things more clear, and given plans and policies the undisputable status which I think was intended for them all along.

Regrettably as things stand, if article 33 Cap. 356 was not amended in 2001 as well as it should have been, the proviso to article 69(2) of Cap 504 made the situation yet more precarious. The lawmaker, in introducing the proviso, confirmed that commitment is a material consideration, but required that height commitment cannot overrule height limitation policy. This renders it possible to not only allow the Doctrine of Commitment to lead to deviations from plans and policies, but specifically to  allow height relaxations on the basis of commitment where applications were submitted prior to the 2010 law. This point was actually made by the Court of Appeal in the earlier-referred Joseph Gauci judgement:

‘Illi din il-Qorti tħoss li l-istess artikolu ma huwiex applikabbli għall-każ in eżamina, li la darba jittratta dwar applikazzjoni li saret fis-sena 2006 għaliex dan l-artikolu permezz tal-Avviż Legali 511 tal-2010 ġie biss in vigore fil-31 ta’ Diċembru 2010 u għalhekk dan l-artikolu ma jistax jiġi applikat retroattivament.’[18]

The way forward

Earlier in 2012, the Court of Appeal upheld a number of appeals and sent the matter back to the EPRT. What position the EPRT will take, is as yet unknown. Irrespective of this, I do not believe that commitment is an appropriate basis for casting aside development plans, local plans, etc. The law maker should step in to make this absolutely clear.

 

 

Author's note: This article reflects the position in mid-November 2012. In December 2012 Mr Justice Pace resigned from the Judiciary. This resignation may in future lead to a change in direction.



[1] EPRT.

[2] Environment & Development Planning Act (EDPA), art. 41 and Second Schedule.

[3] For example, in all of the judgements delivered on 26 June 2012, the appeal was upheld.

[4] Barbara v. MEPA (App. Nru 48/2011, per Mr Justice Pace, 26.06.12) p.2. The applicant was seeking ‘to sanction yard enforced by ECF 541/02 which will include replacement of boundary wall and steel canopy.’

[5] Ibid. Translation: ‘During the course of proceedings of the case (before the EPRT) reference was made to a number of permits issued on sites which are very close, and some even neighbouring, the site merits of this case. These permits are PA 1621/98, PB3611/79, PA4335/92, PA5691/95, PA1621/98, PA3712/93, PA1581/94, PA1738/97, PA974/99, PA3931/04, PA4740/90, PA1450/87, PA7481/96 and PA3931/04 and others.’

[6] Domenic Sultana v. MEPA (App. Nru 7/2011, per Mr Justice Pace, 31.05.12), p. 16. Translation: ‘It is clear from this case that the Tribunal, not for the first time, ignored the concept of commitment...’

[7] EPC

[8] Ibid. Pp 16-17.  Translation: ‘... the decisions of the Court are in there must be a serious examination of the area to determine whether the area is committed, and if it is so committed, a decision must be taken in the light of the same and of the Local Plan, in such a way that if the area is committed in favour of this kind of development, the concept of commitment has to be applied, even in view of what is stated in the Local Plan.... the existence of the Local Plan and what this stipulates is not under contestation, and the appellant is not contesting it, , but is submitting that on the basis of constant jurisprudence, the principle of commitment is to be applied, and if it turns out that there is commitment in that zone and area, just like others were provided with permits, so also a permit should be granted in favour of this person... it is incorrect to state that since the Local Plan establishes the area as a residential one, then no commercial use can be accepted...’

[9] Court of Appeal, 26.06.12 per Mr Justice R C Pace (ref 9/2012). This was the second time that this case went to the Court of Appeal. The matter had gone back to the Planning Appeals Board after a Court of Appeal judgement dated 25.02.2010.

[10] P. 18. Translation: ‘... the sane Board ignored the fact that there is this commitment... and did not apply the principle and concept which was explained in judicial terms that once it is proven that there is commitment in this case commitment towards a particular height then the application must be considered like the others, independently of what the Local Plan states...’

[11] Pp 18-19.

[12] PAB

[13] P. 20.

[14] P. 21.

[15] P. 21. Translation: ‘... a fictitious obstacle so that what is constantly retained by the Court in its jurisprudence... is avoided and not rendered applicable; this should not be done or allowed to be done, because the decision of the Court whether on points of law, or on established factual matters in the same cause should be followed, the Court and every Tribunal of inferior competence, is obliged to observe what is determined and should not in any way try to change what is decided by the Court of Second Instance in the same proceedings...’

[16] Part 17, p. 116.

[17] Proviso to art. 69(2)(a).

[18] Translation: ‘The Court is of the opinion that the article in question does not apply to the case under consideration, since the application was made in 2006, because the article in question, by means of Legal Notice 511 of 2010, only came into effect on 31 December 2010, and cannot be given retroactive effect.’

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