Tribunal convinced of old electoral register

A development planning application was submitted ‘to sanction the construction of an existing dwelling’ forming part of a cluster of buildings located outside the development zone of Burmarrad. To justify its decision, the Planning Commission gave the following reasons:

1    The proposal ran counter criterion 5(a) of policy 6.2C of the Rural Policy and Design Guidance (2014) since applicant had failed to provide sufficient evidence to show that the residential use of the original building was legally established;

2    The proposal was tantamount to excessive formalisation of land outside the development zone, thus in breach of the provisions of Rural Objective 3 of the Strategic Policy for Environment and Development (SPED), which seeks to control rural areas from the cumulative effect of urban development.

Aggrieved by the said decision, applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the permit should have been issued. In his submissions, applicant (now, appellant) argued that his property was ‘entirely visible in the 1967 survey sheet and thus considered to be legally established’. Moreover, appellant maintained that the proposal would not lead to excessive formalisation as purported by the Authority because the alleged “formality” existed prior to 1967.

As to the issue concerning the residential status of the building, applicant insisted that the premises had been occupied by his ascendants, including his father. To substantiate his arguments, appellant submitted an excerpt from an old electoral register, associating his father with the building location.

In reply, the Planning Authority rebutted that the building in question was subject to substantial additions that are not visible on the 1967 aerial photos. On this basis, the Authority reiterated that the dwelling was tantamount to ‘excessive formalisation of land outside the development zone’ and the proposal was therefore in breach of Rural Objective 3 of the Strategic Policy for Environment and Development.

The case officer maintained that ‘it was very unlikely that the existing rooms were ever used as a residence due to presence of food mangers and lack of windows.’ The Tribunal was also reminded that the electoral register which applicant had submitted had no official signature.

In its assessment, the Tribunal noted that it was satisfied that appellant had submitted sufficient documentary evidence demonstrating that the building in question had been used for habitation prior to 1978. The Tribunal further observed that applicant had made similar assertions in previous planning applications. In view of the said reasons, the Tribunal went on to entertain applicant’s request on condition that the dwelling floorspace is reduced to 200 square metres. Applicant was also fined 5058 euro.

Dr Robert Musumeci is an advocate and a perit

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