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‘Stopping’ use amounts to a change of use

Owner consent for “decommissioning” was not forthcoming

Robert Musumeci
4 March 2016, 7:48am
A planning application contemplating the relocation of a fuel station to San Giljan was approved by the Malta Environment and Planning Authority subject to the applicant committing himself to “decommission” a kerb side fuel station operating elsewhere.

The applicant had said that he acquired “rights” to decommission the fuel station, by means of a private writing dating back to 1996. The applicant also held that he was duly authorised by the Malta Resources Authority to transfer the licence from its present location to the proposed site.

Following the permit approval, a third party lodged an appeal before the Environment and Planning Review Tribunal, alleging that she was “the owner of the service station whose relocation and decommission is being proposed by way of the application.”

The objector pointed out that the applicant “knows very well” that she is the owner of the petrol station destined to be decommissioned, so much so that he pays her a yearly rent.

Whilst insisting that she never gave her consent for the applicant to proceed with the application, the objector added that “no notices were affixed to the old petrol station and no declaration of ownership was made relative to the same”.

The appellant went on to allege that such a tactic was tantamount to “a stratagem” devised to deprive her of her right to object against the proposal.

In its assessment the Tribunal concluded that the objector’s aggravations were conducive to civil rights, which in turn go beyond planning considerations. As to the allegation stating that the notice was not duly fixed, the Tribunal held that the objector was fully aware of the on goings, so much so that an appeal was lodged against the permit in due time. In the circumstances, the Tribunal threw out the appeal.

Following the Tribunal’s decision, the objector appealed to the Court, insisting that “the application was approved even though the applicant failed to issue the requisite notifications correctly”. Moreover, the objector underlined that the application is null and void “in that the applicant requested the decommission and relocation of the appellant’s property without receiving her consent and in fact without even filling the appropriate declaration of ownership confirming his title on the property.”

In its assessment, the Court held that the “decommission” of a petrol station amounts to a substantial change of use and thus requires a planning permit in terms of law. Now, according to the same law, the consent of the relative owner is required prior to a planning application being processed. In this case it was clearly evident that such consent was not forthcoming.

In conclusion, the Court held that the Tribunal was wrong to maintain that the “decommission” of the existing fuel station did not amount to a “development” in terms of law. Against this background, the Court ordered the Tribunal to reassess the case in light of the above.

Dr Robert Musumeci is a warranted advocate and a perit. He also holds a Masters Degree in ...
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