A development permit which was originally issued in 1994 was renewed by MEPA’s Environment and Planning Commission following a request made by the applicant, but it was made subject to a number of new conditions.

The commission held in fact that the permit was renewed on condition that “the front elevation shall not exceed 9.8 metres in height (including parapet wall) from the lower street level” and “no structures are constructed at roof level”. Moreover, the commission included a condition to the effect that conditions were to prevail over the approved drawings.

The applicant felt aggrieved by the commission’s decision and filed an appeal before the Environment and Planning Tribunal. The applicant (now the appellant) maintained that, in the past, architects were not used to submitting “roof plans” as part of their application package. The applicant therefore argued that the absence of a roof plan in the original application was not to be construed as prohibited roof access. Nonetheless, the tribunal held that the authority was correct  to conclude that the absence of a roof plan was tantamount to “no right of access”.

Following the tribunal’s decision, the applicant lodged an appeal before the Civil Court (inferior jurisdiction) which in its assessment held that as a point of principle, no conditions, other than those included in the original permit, can be attached to a renewed permit.

The court thus concluded that the tribunal was wrong to assert that the applicant had no right of access to the overlying roof since such condition was nowhere to be found in the original permit. Against this background, the court ordered the tribunal to review its decision in the light of this rationale.

When the case was referred back for reassessment before the tribunal, the latter underlined that it had no option but to follow the court’s direction and ordered the MEPA to issue the permit without the condition restricting access to the roof.

In its “decide”, the tribunal referred to the provisions of part ‘A’ of DC 1/88 (the policy in force in the early 1990s) and went on to highlight that access to roofs was in no way restricted at the time when the permit was issued in 1994.