When ‘loss of parking’ cannot be claimed

Applicant who subsequently obtained permit for overlying dwellings required consent of the garage owner

The owner of a street level garage submitted a planning application to convert the garage into a commercial outlet. The garage, occupying an area of 50 square metres, forms part of a multi-storey complex in Zejtun. The dwelling on the upper level pertains to a different applicant who had acquired the overlying air space  independently of the garage and obtained a planning permit.

The Planning Authority turned down the applicant’s request on the basis that ‘the proposed development will remove the existing parking spaces for the building and so it would conflict with Structure Plan policy TRA 4 and PA circular 3/93 which seek to ensure that appropriate provision is made for off-street parking’.

In other words, the Authority reasoned out that the conversion of the garage into a commercial outlet would remove a parking space which is required to cater for the dwelling above, regardless of the fact that the garage and dwelling pertain to different owners. The Authority’s decision was subsequently confirmed by the Environment and Planning Review Tribunal on appeal, following which another appeal was lodged before the Court of Appeal (Inferior Jurisdiction) on a ‘point of law’.

In turn, the Court found in favour of the appellant who insisted that the owners of the garage and the overlying apartment were not the same. The Court made it clear that the Tribunal was obliged to investigate whether the dwelling on the upper floors was approved on the premise that the applicant’s garage was being considered in terms of the required parking provision in the dwelling application. In other words, the Court held that the Tribunal was in that case obliged to ascertain whether the garage owner gave his consent in the ‘dwelling application’. Against this background, the Court ordered the Tribunal to review its decision in line with the above legal rationale.

Upon reassessment, the Tribunal confirmed that the appellant’s garage was built prior and independently of the overlying dwelling. Moreover, the Tribunal found that the garage owner failed to give his consent to the applicant who subsequently obtained a permit for the overlying dwelling, and which in the opinion of the Court was in such case necessary. In the circumstances, the Tribunal concluded that the garage and the dwellings should therefore be assessed independently. In addition, the Tribunal observed that the garage floor area amounts to 50 square metres and thus ordered the Authority to issue the permit.

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Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree.

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