In the instant case, the site presently consists of a typical one storey townhouse which is located within the Urban Conservation Area of Tarxien. Applicant had submitted a planning application for the construction of two floors and an overlying receded floor, further to which, applicant’s proposal was turned down by the Planning Commission.

To substantiate its decision, the Commission made the following observations:

The proposed height of development ran counter to Urban Objectives 2.3 and 2.4 of the Strategic Plan for Environment and Development which promote a context driven approach for the control of building heights within Urban Conservation Areas in order to protect the traditional urban skyline.

The proposal also went against policies P4, P35 and P39 of the Development Control Design Policy, Guidance and Standards 2015 which require that building heights are based on a streetscape analysis in order not to create an unacceptable visual impact.

Subsequently, applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the permit should have been granted. In his request for appeal, applicant (now, plaintiff) observed that, after the case was heard for the first time by the Planning Commission, he was requested to submit drawings showing two floors and a roof structure, to which end he had duly conformed.

Nevertheless, the Commission voted against the application in the subsequent sitting, even though the drawings were submitted as indicated by the Commission in the previous sitting.

In reply, the case officer acknowledged that during its first meeting, the Planning Commission had requested applicant to submit fresh drawings showing ‘two floors with a roof structure’.

Nevertheless, according to the case officer, applicant’s  fresh drawings showed two floors and an overlying receded floor, rather than two floors and a roof structure as had been directed by the Board.

In other words,  applicant had disregarded the Board’s clear direction and opted for ‘a receded second floor’ instead of  ‘a roof structure’. In the circumstances, the Commission was therefore correct to refuse the application.

In its assessment, the Tribunal observed that, as rightly claimed by the case officer, the Commission had requested applicant to submit fresh drawings showing two floors and a roof structure.

Nonetheless, the Tribunal made reference to policy P29 of DC 15, which states that insofar as urban conservation areas are concerned,  “the setback from the façade must never be less than that of the committee adjacent properties on one or both sides, where applicable” and  “in all cases, the massing of the setback floors should visually relate to that of the adjacent properties.”

In this case, the Tribunal was satisfied that the receded floor was adequately receded from the façade and visually related with the surrounding massing.

In addition, it was noted that policy P29 does not exclude receded floors in urban conservation areas. Against this background, the Tribunal ordered the Authority to issue the permit.