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Appellant must be given opportunity to defend his case

The Court held that the Tribunal was obliged to take note of any illegalities that may exist on site, subject to the parties to the appeal being informed and having an adequate opportunity to react

robert_musumeci
Robert Musumeci
15 July 2016, 7:34am
An attempt to sanction an extension to a confectionery was turned down by the then Malta Environment and Planning Authority on a number of counts. The drawings show an interconnected garage and a confectionery, without evidence of a  planning permit.

The Commission observed that the extension was unacceptable in a residential area as ‘it would have a deleterious impact on the amenity of the area and of existing adjoining residential uses’. To support this reasoning, the Commission made reference to Structure Plan policy BEN 1, which specifically seeks ‘to protect the amenity of existing uses’.

In addition, reference was made to Policy SMHO 02 of the South Local Plan which limits commercial floor space to 75 square metres in designated residential zones. The Commission also objected to a canopy which was found to be installed without a permit. In this regard, the Commission held that the canopy was ‘incompatible with the urban design and environmental characteristics of the area’.

Following the Commission’s decision, the applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the commercial floor area amounts to 65.6 square metres. On the other hand, the applicant contended that the 23 square metre store should be excluded for the purpose of computing the allowable commercial floor area.

In reaction, the Authority pointed out that the application could not be considered further since the applicant failed to request the sanctioning of the illegal canopy. The Authority pointed out to the Tribunal that these structures are only allowed within Town Centres, Entertainment Priority Areas, Tourism Zones and other areas specifically indicated in the Local Plans. As to the area computation, the Authority underlined that the store had to be taken into account. Consequently, the commercial area totalled 122 square metres. Concluding, the Authority argued that such an area increase ‘has a negative impact on the amenity of the surrounding residential area as it generates more noise and traffic.’

In its assessment, the Tribunal immediately observed that the Commission was correct to refuse the application on the basis that the applicant failed to request the sanctioning of ‘all illegalities’ and thus refrained from probing into the merits of the appeal.

Following the Tribunal’s decision, the appellant appealed the decision before the Civil Court, insisting that the ‘illegalities’ being referred to in the Tribunal’s decision were not clearly pinpointed.

In turn, the Court held that the Tribunal was obliged to take note of any illegalities that may exist on site, subject to the parties to the appeal being informed and having an adequate opportunity to react. In this case, the Court found that the appellant was not given adequate opportunity to defend himself with respect to the allegations raised by the Tribunal. In the circumstances, the Court ordered that the case be reassessed by the Tribunal.

[email protected]

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

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