Whether a development planning application is successful or not depends on whether the proposal ‘fits’ within the parameters dictated by the relevant planning policies. Indeed, planning policies are intended to guide the behaviour of decision makers who, in the exercise of their functions, are required to show reasonableness and consistency as in all areas of administrative law.
Different contexts necessitate the application of different planning policies, provided, of course, that a specific policy or set of policies are in place to cater for the given scenario. Notwithstanding that, the manner in which planning policies are handled by decision makers remains an arduous task.
For certain, the starting point should be that the decision makers are able to appraise the facts of the case correctly.
First and foremost, the decision maker ought not to rely on any conjectures but on the facts as presented by the applicant through his architect.
Equally important, the decision maker is expected to understand the specificities behind the proposal. To take an example, it is not sufficient to consider a proposal for a hotel and a guest house as any ‘tourist establishment’. The reason to this is that hotels and guest houses are dictated by different sets of policy requirements. This is not to say, however, that a number of mutually irreconcilable policies could not be applicable.
What is certain is that failure to have regard to a policy which is relevant to the circumstances of a case is fatal and the eventual decision could, in turn, be eventually open to challenge. As a point of principle, the decision maker must, therefore, be able to identify which is the relevant policy in the context of the given circumstances.
Certain terms may be open to different meanings- Robert Musumeci
Once the policy or policies are correctly identified, the decision maker is then required to ‘apply’ those policies to the given circumstances and determine whether the applicant’s proposal is in compliance. The ‘application’ of a policy is the most challenging part of the process.
The correct application of a policy depends on a sensible reading of language in context. In other words, the meaning of a term (or terms) must be determined by looking not only at the words themselves but also the context in which the words appear. More so, a policy has to be read in its entirety.
For example, a policy might require the developer to provide a ‘suitable’ environment. At that point, the decision maker cannot decide according to what suits him but is required to probe further into asserting in which context the word ‘suitable’ was specifically intended.
Having said so, one has to concede that policies are typically full of broad statements, many of which leave the decision maker with ample discretion to go one way or another. For example, a policy provision which requires an assessment of whether a building has a ‘proper outlook’ calls for judgement in its application since what is reasonably considered as a pleasant view is ultimately a question of opinion.
Moreover, certain terms may be open to different meanings unless the policy itself provides a specific definition thereof. Take, for example, the Maltese word ‘razzett’. I recall that a member of the Development Control Commission had once insisted the word ‘razzett’ in old contracts of sale was taken to mean ‘an enclosure for raising animals’, writing off my assertion that the ‘razzett’ used to be inhabited. When the case was admitted before the Planning Appeals Board, my argument that ‘razzett’ was the equivalent of a ‘farmhouse’, that is ‘a house attached to a farm”, was accepted and the board concluded that rooms in question enjoyed a residential status.
It is up to the decision makers to conclude what a policy term should mean unless, of course, some contemporaneous document shows the policy intent at the time the document was finalised.
As Lord Reed had said in the notable Scottish judgment Tesco v Dundee, “it is not up to a policymaker to say what they think the policy means”. That role was assigned to PA officials entrusted with deciding planning applications.