A development application entitled “proposed demolition of existing premises and construction of apartments over underlying basement” (in St Julian’s) was initially turned down by the MEPA’s Environment and Planning Commission after it held that “the proposed development, in terms of its floor area, massing, building depth and site coverage, is of an excessive scale and would lead to an over development of the site”.

In addition, the Commission observed that the proposal “would not be in the interest of the amenity of the area and would increase the problem of over-development.” Indeed, the proposed plans show a plot depth of circa 40 metres with respect to the building alignment.

In reaction, applicant submitted an appeal before the Environment and Planning Tribunal, insisting that the Authority’s decision should be reversed. Applicant (now appellant) argued that his proposal adhered to all relevant policy and legislation as designated by the MEPA. Applicant also argued that “the proposed height, scale and massing was in complete accordance with the Local Plans corresponding to the area.” But even so, applicant made reference to a number of “nearly identical applications” which were approved in the same road.

For its part, the Tribunal made reference to MEPA circular 3/14 which inter alia provides that “unless there are circumstances to suggest otherwise, the depth of the built footprint as measured from the building alignment should not exceed 30 metres”. Against this background, the Tribunal ordered the MEPA to issue the permit on the express condition that “the building depth for all levels, including the basement level, shall not extend more than 25 metres from road alignment”.

Notwithstanding a favourable decision, applicant lodged an appeal before the Civil Court insisting that the Tribunal acted ultra vires since it could not impose the “25 metre condition”. Appellant went on to state that the decision relied on circular 3/14 which was not as yet published during the proceedings.

Applicant thus contended that he had no opportunity to inspect the contents of the said circular, let alone assess whether such contents were applicable to the development. In his conclusions, appellant also insisted that a “circular” is not a legal instrument – but even so, the circular states that building depths should be limited to 30 metres whereas in his case, the Tribunal applied an even more rigorous approach when it imposed a 25 metre limit.

In its assessment, the Court maintained that a policy circular is a legal instrument. Nevertheless, it went on to conclude that the Tribunal was wrong to motivate its decision on a policy which was not available to the parties for discussion. For this reason, the Court revoked the Tribunal’s decision.