Tribunal not convinced that rural building was ever habitable

The Tribunal held that it would consider redevelopment as long as the ‘residential use’ was visible on the 1978 aerial photos.

At issue was a planning application which sought to ‘regenerate a disused residence’ located outside the development zone of Mgarr. The proposed drawings indicated that the present building, which according to the  proposal description had an area of ‘circa’ 100sq.m, would be demolished to pave way for a new residence with a floorspace of 130sq.m.

Following a thorough assessment, the Planning Commission turned down the proposal after it held that applicant had failed to submit evidence to sufficiently prove that the building was used as a residence prior to 1992. For this reason, the Commission concluded that the proposal ran counter to the provisions of criterion 5 of policy 6.2C of the Rural Policy and Design Guidance, 2014.

As one would expect in the circumstances, applicant lodged an appeal with the Environment and Planning Review Tribunal, insisting that the permit should have been issued. In a nutshell, applicant (now, appellant), maintained that the building was ‘legitimate’. To support his argument, reference was made to the definition of ‘legally established’ in the policy guidelines, being in the following exact words: ‘Unless specified otherwise in the policy document, the term “‘legally established’ refers to any intervention, including land-use change and land reclamation covered by development permission or that which is visible on the 1978 aerial photographs.”

To this end, applicant stated that, in the past, the building was occupied by a certain family by the surname of ‘Chetcuti’. Against this background, appellant claimed that he had a vested right to take residence in the mentioned property.

In reply, the Authority reiterated its objections to the proposal. Contrary to what applicant had purported, the building was evidently never used as a residence as could be seen from ‘the low level roofing’. It was further highlighted that the electoral register was not considered to provide sufficient proof that applicant’s premises were ever used as a residence. On the contrary, the electoral register only demonstrated that family Chetcuti used to live in the hamlet.

On its part, the Tribunal held that it would consider redevelopment as long as the ‘residential use’ was visible on the 1978 aerial photos. This principle was enunciated by the Court of Appeal in a recent decision in the names ‘Joseph Borg et kontra l-Awtorità’.  Although there was no dispute that the building existed in 1978, the Tribunal was not convinced that it was habited at the time. For this reason, the appeal was rejected.

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