A practice that allows unsuccessful planning applications to be revised in the short window of time before refusal is formally notified was challenged by a lawyer at a meeting of the Development and Planning Commission yesterday.
Some applicants have used the short period between verbal refusal and formal notification to amend their plans in order to get their project rubber stamped by planners.
The practice follows the government’s decision to make DPC meetings public. Open meetings mean applicants become aware on the day if permission has been granted, even though they have to receive a letter from planning officials.
But yesterday, David Dumas, QC, questioned the legality of allowing applicants to use that window instead of re-filing their schemes from scratch.
Mr Dumas was representing an objector to the proposed refurbishment works and conversion of a shop into a cafeteria at 7 Casemates House.
In the August meeting of the DPC, the application was rejected after the DPC raised concerns regarding tables and chairs outside the premises, which the owner said were needed to make the business viable.
During the period it took for the official document to be drafted to formally advise the applicant that permission had been refused, he contacted Town Planning requesting to revise his application.
This was the application being heard at the meeting yesterday, and this time no outside tables and chairs were included in the plans.
Mr Dumas, on behalf of the objector, argued that it was illegal for the DPC to consider a revised application for an application that had already been refused.
“We have an ‘in principle’ objection to the hearing of this matter,” he said.
“The reality check time has arrived and I will tell you why.”
“When we were given notice 10 days ago that this matter was coming up again it was not, with all due respect, a fresh or revised application.”
He added: “Town planning replied to us that there is a six-year practice allowing an applicant after refusal and for the time it takes for somebody to type up and sign off the refusal decision to approach the town planner to see what might be acceptable notwithstanding the refusal.”
Mr Dumas said the applicant should have resubmitted his plans and gone through the usual procedures where notices have to be given.
He added that the current practice has “no legal foundation under statue firstly. Secondly, if undertaken, you are running the risk of undermining your own legal standard, as well as finding yourself or whoever is sitting on the commission at any given moment in time at the receiving end of a very sticky judicial review decision that you have no power to do [this].”
He stated that the DPC was not a court with its own powers but a commission created and regulated with practice and procedure by statute in principle and regulations.
“By acting the way you are doing you have no legal basis doing it and you run the risk in effect of breaking an unwritten law,” he said.
Town Planning will take legal advice on the issue and the refusal of the original application still stands.
However, it was noted that the applicant could submit a new application.