Issue link: https://maltatoday.uberflip.com/i/337883
44 maltatoday, SUNDAY, 29 JUNE 2014 Opinion A 2013 planning application to construct a washroom and parapet wall at first f loor within a Category 2 Rural Settlement in Kercem was turned down by the Environment and Planning Commission after it held that the proposed extension runs counter to criterion A (ii) of the Gozo and Comino Local Plan in that the building area (in terms of both f loor space and footprint) exceeds the set limitations. The Commission further observed that the "building mass" would detract from the visual character of the rural settlement. In reaction, the applicant appealed to the Environment and Planning Tribunal, insisting inter alia that the same policy being quoted by the Commission allows for additional structures at roof level (second f loor level), having an area which does not exceed 20 square metres. Instead, applicant submitted, he voluntarily opted for a structure at a lower level having no fixed access to the overlying roof (at second f loor level). Applicant maintained that the proposed room at first f loor level "will eventually blend positively within the existing massing and screened from the otherwise blank walls." For its part, the commission reiterated that the site under appeal consists of a dwelling constructed on two f loors with an approved footprint of approximately 200 square metres and a f loor area of 300 square metres, besides having a garage at basement level. The case officer therefore contended that these dimensions exceed by far the maximum areas allowed by policy, which lays down a maximum of 150 square metre footprint and a 200 square metre f loor space. The case officer maintained that an additional washroom of 12 square metres would take the total f loor area to 312 square metres, thus exceeding the permitted 200 square metres. In its assessment, the Tribunal underlined that the site lies in a Category 2 rural settlement where the present f loor space already exceeds the maximum set out in the policy. Notwithstanding, the Tribunal observed that the proposed room was set to be located adjacent to three blank walls at first f loor level and no negative visual impact was therefore envisaged. Even more so, the Tribunal noted that instead of having a washroom at second f loor level in consistence with policy requirements, applicant opted for a much less intrusive design solution. Against this background, the Tribunal approved the extension at first f loor level on condition that "no washrooms are allowed at roof level." Robert Musumeci MEPAwatch I n a judgement delivered on Monday, 23 June, 2014 the court held that the fact that the original tenant of the property, which was requisitioned in 1977, has since died, does not give the owners the right to take back their property. The case, Anna, wife of Anthony Galea, Adrian Salomone, Joanna Bonello Salomone, Jeremy Salomone, Vanessa Said Salomone and Ferdinand Grech –v- The Commissioner of Lands, Joseph Cutajar and the Director of Social Accommodation, was decided by Mr Justice Mark Chetcuti. In their writ the plaintiffs held that they are co-owners of a residence in Marsa, however the defendants had issued a requisition order and therefore, they lost possession of it. In June 1977 a requisition order was issued to protect Rosina Tanti as a tenant in that property. When Ms Tanti died the Commissioner of Lands, instead of issuing a counter order and giving the property back to the owners, allowed others to occupy the same property. The plaintiffs asked the court to declare the protective requisition order is no longer needed and also to order the Commissioner of Lands to allow them to take possession of their property. The Commissioner of Lands replied to this writ by saying that he did not issue the requisition order and therefore, should not be a party to this action. The Housing Authority held that the registration order in question covers Joseph Cutajar also since he is the grandson of Rosina Tanti. Furthermore on 23/06/04 Joseph Cutajar was recognised together with his aunt as a tenant by the authority and this took place after Mr Cutajar passed the means test. Mr Justice Chetcuti examined the facts of the case in that on 17 June, 1977 a requisition order was issued on the Msida residence belonging to the Salomone family. The order was issued after a certain Micallef was not accepting the rent from Rosina Tanti and therefore, the Housing Authority wanted to protect Ms Tanti's position. At the time Ms Tanti was living with her daughter and the latter's husband, together with four children, one of whom is Joseph Cutajar. Ms Tanti died in 1979 after which the rent was being deposited in court. The rest of the family continue to live in the same premises together with Rosina's sister Annie. In 1993 the Salomone family filed an action in court, however, nobody seems to know what happened to that case. Annie Tanti died in 2005 and Joseph Cutajar continued to live in this property on his own. The Housing Authority carried out inspections and always found Mr Cutajar living there. The Court commented that the plaintiffs did not peg their claim to any law and they were asking for the order's removal simply because there was no need for Ms Rosina Tanti to be protected anymore. They also claimed that the authority abused its power when it recognised Joseph Cutajar. The plaintiffs were not asking for a human rights remedy nor were they requesting a judicial review. The Court quoted from a previous judgment, Paul Borg –v- Direttur tal-Akkomodazzjoni Socjali, decided on 3 February, 2012 when the court held that the Housing Act was aimed at assisting the lack of accommodation and respect peoples' right to have a place where to live. In fact Article 3(1) of the Housing Act reads: If it appears to the Director of Social Housing to be necessary or expedient so to do in the public interest, but only for the purpose of providing living accommodation to persons or of ensuring a fair distribution of such living accommodation, he may requisition any building, and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect and complied with. In another judgement Edwards pro et noe –v- Direttur tal- Akkomodazzjoni Socjali, decided on 3 October, 2003, the Court held that the law is based upon three independent considerations. The first of public interest, the second the provision of housing and the third is the distribution of housing according to equity. When a requisition order is issued it essentially removes the property from the owner and gives it to the Housing Authority. In this particular case the Housing Authority gave its protection to Mr Cutajar, who lived in the property when the requisition order was first issued. The authority further protected Mr Cutajar in 2004, because he met all the criteria. This last notice of requisition was notified to the owners, but it was not contested as they had a right to. The Court concluded by turning down the plaintiffs' claims. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Requisitioned property not given to owners in the public interest Extension allowed because it constitutes a less intrusive design solution Download the MaltaToday App now YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt ANTIQUES POMSKIZILLIOUS museum of toys Xaghra Gozo. Open June, July, August September Monday - Saturdays 10:30am - 1:00pm and 4-6pm. Groups by appointment. Keeping yesterday for you to see today. Toys from the main toy producing countries of the mid 1800-1930s. Call 21562489 POMSKIZILLIOUS museum of The additional room at first floor did not impart a negative visual impact