Permission denied due to subsisting illegal use

In 2012, applicant made a planning application to sanction an illegal extension to a licensed confectionery in Zabbar. In essence, the proposal contemplated the interconnection of an already established confectionery with an adjacent garage. The submitted drawings also showed a sign and a canopy on the front elevation.

Following a thorough assessment, the then Environment and Planning Commission rejected applicant’s request on the following grounds:

1. The proposal 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’;

2. The proposal was tantamount to bad neighbour development and hence conflicted with Structure Plan policy BEN 1, which seeks to protect the amenity of existing uses;

3. The proposed development ran counter to the South Malta Local Plan Policy SMHO 02 in view of the excessive resulting floor-space in a Residential Area;

4. The canopy on the front elevation was in breach of policy 15.7 of Development Control Policy & Design Guidance 2007 ‘which does not permit canopies in front of retail outlets in residential areas’;

5. The canopy was also found to be incompatible with the urban design and environmental characteristics of the area, thus running counter to Structure Plan policy BEN 2;

6. The proposed sign was out of scale.

Following the Commission’s decision, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the permission should have been issued. On its part, the Tribunal rejected the appeal after it held that applicant had ignored an enforcement order and carried on with an illegal activity.

An appeal was subsequently lodged with the Court of Appeal. In its assessment, the Court held that the Tribunal had failed to substantiate its allegations insofar as the breach of enforcement order was concerned. On this basis, the Tribunal was ordered to reassess the case.

When the case was referred back to the Tribunal for reassessment, reference was made to Article 86 (10) of Chapter 504 which states that “any application to regularise an activity or a development shall be dismissed forthwith if a requirement in the order or notice stopping or prohibiting further activity, work or development, or requiring the cessation of a use, has not, both prior or during the pendency of the application, been complied with or if any penalty or other payment for which any person has become liable under this Act in respect of the relevant activity or development has not been paid or if the application is made to regularise a development listed in the Sixth Schedule.”

Meanwhile, two planning officers were summoned to witness before the Tribunal. In their evidence, both officers produced photo evidence to show that commercial activity within the extension had persisted despite appellant being served with an enforcement notice. Once again, the Tribunal held against appellant.