Permit issued before enforcement notice

The applicant was already in possession of a previous permit for the installation of street furniture for outdoor dining

A planning application seeking to relocate a number of tables and chairs to a new location after applicant was granted consent on a nearby site was accepted by the Planning Authority. Both locations are situated in Merchants Street in Valletta, today  a pedestrian zone.

The said decision was nonetheless contested by a third party objector before the Environment and Planning Review Tribunal, who insisted that the permission should be revoked. In his submissions, the objector argued inter alia that the decision was both erroneous in fact and at law. It was alleged that the ‘applicant has been in operation and is still operating illegally on site by placing tables and chairs as he deems fit both on site as well as adjacent to the Presidential Palace wall’.

This, according to the objector, should have been pointed out by the case officer since ‘one must remove all illegal development or operations from site before applying’. It was further alleged that the applicant had placed the tables and chairs even though he had no executable permit in hand. Moreover, according to the objector, applicant had erected a plastic structure on site in breach of permit conditions. Objector concluded by saying that the Authority should take a holistic approach whereby ‘all pending applications together would lead to better harmony of operations on site and not the free-for-all reality which reigns at the moment’.

In reply, the case officer disagreed with the objector. Whilst acknowledging that the site was subject to an enforcement notice initiated on 22nd December 2016 in connection with the illegal placement of additional tables and chairs without permit and an illegal canopy on the façade, the permit (under appeal) was still non-executable. Even so, the case officer went to state that ‘applicant was already in possession of a previous permit for the installation of street furniture for outdoor dining (tables and chairs)’. Moreover, the permit (under contestation) was issued saving third party rights whereas the granting of encroachments for tables and chairs was ultimately at the discretion of the Government Property Division rather than the Planning Authority.

In its assessment, the Tribunal found that the permit under appeal was issued on 2 December 2016 whereas the enforcement notice was issued on 22 December 2016. The Tribunal thus concluded that the Commission had no reason to dismiss the planning application since the enforcement notice was not yet in force when the permit was issued. The Tribunal maintained that it was precluded to probe into the merits surrounding previous applications which did not form part of this appeal. On this basis, the appeal was rejected.