The Court of Appeal has turned down an appeal lodged by Ray Bugeja from a decision of the planning authority’s appeals tribunal which had dismissed his attempt to sanction the construction of a swimming pool and room at the back of his existing house in Marsaxlokk.
Mr Justice Mark Chetcuti heard that the appeals tribunal had dismissed Mr Bugeja's request for sanctioning on the bases that the request ran counter to the Development Control Guidance for Development Outside Built-Up Areas. The tribunal had also established that the swimming pool as proposed was not in line with the authority’s criteria.
According to the tribunal, development outside built-up areas could not exceed a maximum floor space of 150 square metres. According to the tribunal this meant that not only the ground floor of the development was to be taken into account for the purposes of calculating the maximum floor space, but all the space occupied by the building, including upper floors.
It would have been different had the guidelines referred to a maximum footprint, as opposed to maximum floor space.
The tribunal concluded that if one were to calculate the measurements of Mr Bugeja's property, including the swimming pool and adjacent room that required sanctioning, then the total floor space would be around 230 square metres excluding the washroom and the internal yard.
As a result, the sanctioning as requested could not be acceded to.
Mr Bugeja appealed from this decision to the Court of Appeal on the basis that the tribunal had made an incorrect application of the policy guidelines for ODZ areas.
Mr Justice Chetcuti said that the court had to first establish whether this was a case concerning an interpretation of policy or a wrong application of the policy. It was only in the second hypothesis, namely that of a wrong application of the policy, that the Court of Appeal would have jurisdiction to hear and decide upon Mr Bugeja's appeal.
The court found that the tribunal had not made a wrong application of the policy, but had interpreted the policy when it ruled that the term "floor space" was not the same as "footprint". The term floor space referred to the total area of the development while the term footprint referred solely to the ground floor area.
Mr Bugeja's appeal could not, therefore, be allowed as he was basing it on a wrong interpretation of the policy which was not subject to the jurisdiction of the courts.