Prior to the decision, the neighbour had objected to the proposal, alleging that one of the windows in his property would be blocked as a result of the new construction.
In his appeal before the Environment and Planning Review Tribunal, the neighbour insisted that permission should not have been granted. In his appeal, the objector highlighted the following arguments:
Applicant had allegedly modified the plans during the process of the planning application, ‘deliberately’ omitting the presence of the window at issue in both existing and proposed plans’. For this reason, applicants’ architect was accused of ‘clearly trying to paint a very different picture to what is actually the situation on site’;
The window in question was covered by a planning permit;
In addition, the interventions ran counter to sanitary regulations since the room in which the window was located would be rendered inhabitable;
The envisaged construction would introduce further apertures overlooking objector’s property, giving rise to an additional servitude;
The Authority was wrong to dismiss his objections on the pretext that such issues were considered as ‘third party civil rights’ falling within the competence of the Courts;
In reply, the Planning Authority rebutted by stating that the proposed development was in line with policy requirements. The Authority held that it would not ‘enter into third party issues for the issuing of a permit’ since it was precluded to do so. Moreover, the case officer observed that, contrary to what the objector had alleged, the window at issue was ‘not essential from a sanitary point of view’.
For his part, the permit holder contended that the window in question was, in reality, illegal. This was due to the fact that it was built in a party wall and had been in existence for less than 30 years. In fact, it was explained that this window was ‘created some time between 1999 and 2001’. More so, the permit holder underlined that no public deed was found to attest that the window was legal.
In its assessment, the Tribunal saw that the objector had insisted that applicant’s architect should have indicated the window at issue on the drawings since it formed part of the precincts under examination. Nevertheless, the Tribunal held that such issues went beyond its remit, since ‘real rights’ are regulated by the Civil Code. Consequently, the Tribunal concluded that such matters should be resolved before a Court of Law. On this basis, the permit was confirmed.