A planning application for the “change of use from an apartment (forming part of a multi storey block) to an office” in Ta’ Xbiex was initially turned down by the Environment and Planning Commission. The refusal report held that “the proposed development is unacceptable since it does not comply with policies 15.4 of Development Control Policy & Design Guidance 2007.”

As one would have anticipated, applicant appealed the decision before the Environment and Planning Tribunal, insisting that “the existing apartment block includes both licensed offices and residential apartments.”

The now appellant highlighted that “the predominant use of the existing flats is commercial and professional offices”, adding that one could therefore not “understand the argument that this application does not comply with policy 15.4 of Development Control policy & Design Guidance 2007”.

Appellant further argued that the said policy was specifically intended “to avoid the introduction of commercial uses in existing blocks solely with residential units” and cannot thus be extrapolated in situations where an existing block features “more flats used for commercial purposes than flats used for residential purposes.”

More so, appellant remarked that the street in question fronts a commercial area, where the majority of flats are already used as offices any way. In his conclusive remarks, appellant made reference to two planning permits by virtue of which the Authority approved the conversion of two independent apartments into offices in a nearby block.

For its part, the MEPA stood firm, reiterating that “Policy 15.4 of the Policy and Design Guidance 2007 seeks to ensure a separate access to commercial development in buildings containing also dwellings.”

The request was therefore unacceptable since the office would be accessed from “a common entrance shared between both commercial and residential units.” The case officer insisted that the proposed change of use would therefore result in the intensification of the shared access, regardless of any existing commitment.

With regards to the permits quoted by appellant, the case officer maintained that, in those cases, ”the entrance to the block shares an entrance with a legally approved much larger computer school”.

In its assessment, the Tribunal made immediate reference to Policy 15.4, which expressly states that “MEPA will not normally grant permission for commercial development in buildings also occupied by dwellings where a separate access to the commercial use cannot be provided.”

The Tribunal however noted that this policy does not provide an “a priori” exclusion and should therefore be interpreted in the light of the introductory “flexibility provisions” contained in the same Policy and Design Guidance 2007. The Tribunal concluded that one should have full regard to the site circumstances, notably the surrounding office commitment, which in this case allow for further intensification. Against this background, the Tribunal ordered the Authority to issue the permit.