By Nicholas Culatto
A very interesting article by Eyleen Sheil was published a few weeks ago in which the Development Plan and the effect of the Development Plan was considered. I completely agree with Mrs Sheil’s view that the DPC is continually faced with, as she describes it, the difficult dilemma of having to balance heritage goals against commercial realities. I would also add the Development Plan into the mix of the matters the DPC must consider in this balancing act.
There are very few Planning applications which are being objected to where the Development Plan is not referred to by the objector as at least one of the grounds on which the said Planning application should be rejected.
Mrs Sheil’s article states that the Development Plan sets out the DPC’s Development Planning policies and acts as guidance, but is not law. Is this in fact the case? There is no doubt that from a legal perspective the DPC must at the very least consider the Development Plan. However the more tricky question is whether the DPC is legally bound to follow the Development Plan or does it always act as merely guidance which once considered can then be disregarded? In my view the short and not particularly helpful answer is “it depends on the specific planning application”.
The production of the Development Plan is a requirement under the Town Planning Act and the Development Plan’s self-described intention is “to guide land use Development Planning in Gibraltar for the next ten years”. The Development Plan goes on to say that “The purpose of the Development Plan is to provide a clear framework for the future Development Planning of Gibraltar and to provide certainty in how development should take place in the future”.
In other words the Development Plan is there to guide development in Gibraltar in the short and medium term and to inform anyone wishing to develop an area of land for whatever reason of the following; (1) whether they would be entitled to do so under the Development Plan and (2) what developments/works etc may be undertaken in the surrounding area in the next say 5 to 10 years or so. This in theory should allow an owner/developer to make an informed decision as to whether their scheme will be affected in the short to medium term by other developments in the surrounding area.
By way of example, let us say that I decide to purchase a plot of land in order to construct my family home. Before purchasing the land I check the Development Plan and see that the whole of the surrounding area is only designated for residential development. Therefore I purchase the land in the knowledge that at least until the Development Plan is revised a developer cannot come along and purchase the adjacent land and obtain planning permission to build, say a night club or a factory because the Development Plan does not allocate the area for such use and therefore the DPC would reject such an application. Or would it?
As to what influence the Development Plan should have on planning applications the Development Plan states that “The Development Plan will therefore be an essential tool in development control and proposals will be expected to conform fully to the policies and proposals contained within it. As the Development Plan has been the subject of extensive public participation it must be seen as a Development Plan that has the support of the community. Great weight will therefore be given to the contents of the Development Plan in determining applications and it is not expected that the policies and proposals contained within it shall be set aside without very significant reasons for doing so”.
It is clear from this text that the Development Plan should have a great influence on the approval or otherwise of any Planning application.
The Gibraltar Courts have, arguably, gone even further than this. In the Judicial Review decision by Mr Justice Alcantara in 1986, an application for the demolition of a building which had been approved by the DPC was overturned as it was “contrary to the City Development Plan”. One could certainly argue that the effect of the Judgment, is that in certain specific circumstances the Development Plan is in fact the law and is not merely guidance. This Judgment was issued back in 1986 but is in my view still good law.
Arguably there is a disparity between what the Courts have said as regards the influence or otherwise of the Development Plan on the one hand and on the other, the influence the Development Plan is having in practice when Planning Applications are considered. Some guidance on the influence or otherwise of the Development Plan through the new Town Planning Act could perhaps provide some much needed clarity on this issue. We shall wait and see.
Nicholas Culatto is a Partner at Gibraltar law firm TSN and specialises in construction and law. He also lectures at the University of Gibraltar on planning law.