The Planning Authority has just published circular CIR2/24, proposing to formalise the conversion of the building height limitations, expressed in number of floors in the approved Local Plans, into overall heights in metres.
One wonders why this formalisation is necessary, given that since November 2015, the concept was already introduced by the (surreptitious) inclusion of Annex 2, (the draft document issued for consultation did not include this annex), within the otherwise commendable Development Control Design Policy, Guidance and Standards 2015 (DC15). This document is categorised as ‘Supplementary Guidance’.
The almost simultaneous (just six months later) change in the sanitary regulations, by the same PA, which reduced the minimum floor-to-floor height permissible, together with the “conversion” of semi-basements (projecting 0.9m above street level) and of washrooms as additional floors, effectively resulted in by-passing the maximum limitations on floors, as stipulated in the Local Plans. The differences between the numbers in Annex 2 and Circular 2/24 may seem innocuous but, of course, there are always reasons.
Everybody knows that the application of P35 and Annex 2, indiscriminately to the whole of Malta and Gozo, is the main reason for the dramatic deterioration of the quality of our urban spaces.
The Planning Commission's deciding on development proposals have consistently ignored all the other considerations, such as streetscape, skyline, context etc., and focused solely on treating this maximum height limitation as a right, instead of as a limit.
This approach was never corrected by the Planning Authority, confirming that this was the intention of Annex 2. As a result, the country has seen, and continues to see, pencil developments creeping all over streets hitherto preserved in character as well as in scale and density.
Ironically, the circular acknowledges that the interpretations by the Directorates, Boards/Commissions of the Planning Authority, and the Environment and Planning Review Tribunal, “were established by practice over the years but were never formally approved or published”.
In other words, these interpretations were illegal whenever they went beyond the limitations imposed by the Local Plans, as eNGOs have consistently pointed out, and as the Courts have consistently confirmed. Had the correct interpretation of policy been applied, the extra floors that the Planning Authority has been approving, would not have been possible.
PA CIR2/24 proposes that these new “converted” height limitations will be integrated into the Local Plans Interpretation Document which was published in 2007, by changing Sections A2.2 and A8.1c. Since a thorough explanation of the significance of this change is not given by the Planning Authority, it is useful to try to understand it.
The wording of Section A2.2 is currently very clear, and merits being quoted verbatim: “Aesthetic considerations of the height of the building are not the only considerations which need to be taken into account when assessing a development planning application.
Floors are centres of activity generation. This is a very important concept and not giving it the due consideration will result in increasing the development intensity in an area over and above that which is statutorily indicated in a local plan. Therefore, unless the local plan’s policy or its interpretation indicate otherwise, development proposals should strictly adhere to the number of floors stipulated in an approved local plan.”
In other words, as Robert Musumeci explained in 2008, “decision bodies are legally bound to refer to the stipulated buildings heights in Local Plans prior to taking any decision.”
The country has seen, and continues to see, pencil developments creeping all over streets hitherto preserved in character as well as in scale and density
The proposed text deletes all reference to the concept of development intensity and simply states: “Development proposals should adhere to the provisions of Circular CIR2/24 related to the Conversion of building height limitations in the Local Plans (height in number of floors) in terms of Annex 2 of DC15 (overall height in metres)”. The proposed amended text in A8.1c is practically identical, with the addition of the words: “These provisions shall apply to all building height limitation maps in all approved local plans”.
It is intriguing that, simultaneously, a public consultation has also been launched on a proposed amendment of P35 in DC15, requested by the government. What exactly is the real significance of this amendment?
The law requires that planning decisions be taken with due regard to plans (Local Plans), policies, and regulations, that have been approved by the minister or the House of Representatives – as well as other material considerations. The courts have clarified precedence following the same sequence.
The Local Plans, for example, are supreme over policies, particularly when it comes to land use or permissible height of development. The North Harbour Local Plan, for example, states “The maximum building height limitations indicated in this local plan override any approved supplementary guidelines with respect to building heights”.
Collectively, the proposed amendments seem to attempt to change all this. How are we to understand the changes outlined by CIR2/24, combined with the proposal offered for public consultation, if not as effective changes to the Local Plans, which increase the development intensity envisaged in such plans – without following the process outlined in Chapter 552?
What are we meant to contribute via the so-called public consultation? What is the justification for the proposed removal of the principle of development density? Why has the Planning Authority ignored A2.2 for the past nine years, and why does it need to change it now? Is it to pre-empt court decisions?
What is the real objective behind the proposed amendments? Is the intention behind the changes to help make it possible for developers to build beyond the limitation on number of floors permitted in the Local Plans (although this is in fact against what current policies allow)?
True consultation implies a clear explanation of the impact of approval, or otherwise, of the proposal, as well as the outlining of alternatives; it also implies that the authority is ready to consider the submissions made during the consultation process, and possibly change its proposals.
If not, the consultation process is nothing more than a perfunctory ritual, which does not alter a pre-determined conclusion. It would be far more honest for the authority/government to declare that it wants to change the density restrictions of the Local Plans. Or what else?
Alex Torpiano is chairman of the Heritage and Environment Protection sub-committee of Din l-Art Ħelwa