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Consent from recognized co-owners 'a must'

The applicant for the sanctioning of an open staircase did not enjoy an absolute title and third party consent was therefore needed

Robert Musumeci
3 June 2016, 9:48am
A planning application for the sanctioning of an open staircase located in a front garden together with the roofing of part of the site curtilage at basement level was turned down by the Environment and Planning Commission. This application was also subject to strong objections from a co-owner whom applicant notified by way of a registered letter stating his intentions to sanction the illegalities in the front garden. 

Nonetheless, the Commission based its conclusions on planning merits and found that the proposal runs counter to policy 11.3 of DC 2007 since the number of risers exceeded that permitted by policy. In fact, the policy allows a maximum vertical height of 1.6 metres with respect to pavement level. Moreover, the Commission maintained that the proposal detracts from the aesthetic character of the building and the streetscape. (The dwelling is located in Triq Ta’ Xmiexi, Msida.)

Following the decision, the applicant filed an appeal before the Environment and Planning Review Tribunal. In his submissions, the applicant contended that the 1.6 metre rule is not applicable in his case since a minimum of 14 risers are  required to enable access over a two metre roofed semi basement. Concluding, the applicant countered that “the steps ‘as built’ do not detract from the character of the building”, adding that open staircases may be appropriate in certain circumstances as part of certain design solutions or architectural styles.

The objector also took part in the appeal proceedings. He specifically recalled that he was a co-owner of the front garden and went on to remind the Tribunal that he had not released his consent for the application to proceed. As to this point, the Authority maintained that an incorrect declaration of ownership, ‘in and of itself’, does not necessarily carry a material bearing on the processing of the application.

In its assessment, the Tribunal observed that the applicant had, in this case, formally notified the objector (qua co-owner) with his intentions to submit the planning application. It thus follows that the applicant did not enjoy an absolute title and third party consent was therefore needed. Furthermore, the Tribunal noted that the applicant had submitted a written declaration to the effect that the co-owner granted the required consent. Having said that, it was very clear that the objector (namely, the co-owner) did not give applicant the ‘go ahead’ to proceed with the application, so much so that the latter was participating in the appeal proceedings. Against this background, the Tribunal abstained from probing further into the planning merits of the appeal.

[email protected]

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

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