Issue link: https://maltatoday.uberflip.com/i/1006805
15 LAW & PLANNING maltatoday | SUNDAY • 22 JULY 2018 THE Planning Commission had re- jected a planning application 'to sanc- tion an agricultural store' in a field located at Tas-Simar in Qala, Gozo. Applicant was already in possession of two rooms, occupying an aggregate area of 25sq.m storage. The 9sq.m ex- tension would bring the total area to 34sq.m. In its decision, the Commission not- ed that applicant was already in pos- session of other structures/buildings located in other fields which were reg- istered on his name whereas a number of 'cages' were placed on site without prior authorisation. According to the Commission, the interventions were not deemed to be 'essential to the need of agriculture'. Reference was also made to a number of low walled enclosures which were built illegally. Concluding, the Commission under- lined that the proposal ran counter to Structure Plan Policies AHF5, SET11, BEN 5, RCO 2 and RCO 4 and went on to reject applicant's proposal. Aggrieved by the said decision, ap- plicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the Commis- sion's decision should be revoked. In his appeal, appellant submitted that he was a genuine farmer and made the following arguments: The rooms in his possession were small and built over 100 years before; These rooms were not structurally safe; He cultivated circa 17 tumoli of ar- able land; The extension was 'necessary' for the storage of 'tools and equipment'; The 'unauthorised cages' were to be considered as legitimate interventions since these were used to 'raise birds'; The low-walled enclosures served as a 'shelter for bird watching' and did not require planning permission. In reply, the case officer reiterated that appellant was in possession of a number of rooms which were 'either totally or partially constructed in stone'. After noting that applicant was in possession of 17 tumoli of land, the officer said that, according to current policies, appellant was thus entitled to a maximum storage space of 20sq.m. The case officer went on to empha- sise that 'the presence of an agriculture store which is not structurally sound is not an excuse for constructing addi- tional agricultural stores', adding that preference should invariably be given to restoring the old stores, which, in this case, already occupied an area in excess of 20sq.m. Moreover, the roofs of the existing stores were surrounded by a 1.2m high unsightly fence placed along the periphery. As to the cages, the Authority rebutted that these were 'not used for agricultural pur- poses and were visually unsightly and incompatible with the rural setting'. On this basis, the case officer insisted that the appeal should be rejected. In its assessment, the Tribunal conceded that applicant was indeed in possession of 17 tumoli of land and consequently he was entitled to 20sq.m of storage. Nevertheless, the Tribunal went on to observe that ap- pellant was already in possession of two rooms having an aggregate foot- print of 25sq.m. The Tribunal con- cluded that granting additional stor- age space (which in this case adds up to a total area of 35sq.m) would be tantamount to breaching current planning policies. On this basis, the appeal was rejected. THE provisions of Article 1531J that stipulate that the laws regulating the rent of band clubs will remain subject to perpetual renewal under Chapter 69 of the Laws of Malta may bring about breaches of the fundamental right to the enjoyment of personal property as guar- anteed by the European Convention on Human Rights. This was confirmed by the Constitutional Court in relation to human rights breaches to the right to the enjoyment of property in the case of Evelyn Montebello et. vs The Attor- ney General and Maria Mater Gratiae Philarmonic Society on the 13th of July 2018. This case was an appeal by the defendants who held that the decision taken by both the First Hall Civil Court as well as the Court of Appeal contained deficiencies both on the consideration of merits and procedure. The Court reviewed the facts of the case as originally presented by the plain- tiffs who are the owners of a property in Zabbar which was leased in 1926 to the defendants who are a philharmonic society whose band club has engaged in locality events and feasts for more than a century. The plaintiffs, however, argued that due to the emergency rent laws that were enacted during the 20th cen- tury, in order to protect tenants of urban properties during the times when hous- ing was scarce post-World War II, they were unable to take back possession of their property. Chapter 69 of the Laws of Malta was enacted in 1931, and granted a right for the extension of a lease after the period stipulated by the contract had extinguished. The rent would have to be extended under the same conditions as the previous tenancy agreement, mean- ing that rental costs imposed by the landlord could not be raised. The plaintiffs held that this meant that for a period of around 90 years the landlords of the property could not im- pose rent higher than the yearly sum of €279.52. They held that this was a grave violation of their fundamental hu- man rights. Both the first and appellate Courts concluded that the application of the laws in Chapter 69 in this case led to a breach of human rights and thus could no longer have effect. They also award- ed both pecuniary and non-pecuniary damages, in the sums of €180,000 and €10,000 respectively. The Constitutional Court heard the appeal lodged by the Attorney General who had four grounds of appeal that the appellate Court should consider. The first regarded the fact that the situation the plaintiffs were in was self-imposed because they chose to rent the property at a time when the laws contemplated such measures. The Court did not en- tertain this claim, stating that on the contrary, the laws imposed such condi- tions on the owners of the property who rented the property prior to Chapter 69 being enacted. The Court also denied the second ground of appeal by the de- fendants who held that the breach of the fundamental human right to the enjoy- ment of property, as guaranteed by Ar- ticle 1 of the first Protocol to the Con- vention, made an exception for when the aim of the Government was to protect a legitimate social interest. It was, howev- er, concluded by the Court that although the band club constituted an important part of the social and cultural local tradi- tions, the breach had occurred because depriving the owners of the property for so many years with a very low rent was not a proportionate action. The third ground of appeal, was con- firmed by the Constitutional Court and was with regards to the order by the first Court ordering the tenants of the prop- erty to immediately vacate the property. The Court agreed with the Attorney General that such a decision required factual checks and certain informa- tion which only a competent tribunal would be able to affect. This decision was therefore reversed and the Court concluded that the fact that the laws of Chapter 69 would no longer apply to the rental of the property was enough to remedy the situation. Finally, the Court addressed the ground of appeal of the Attorney General on the improper quantification of dam- ages. The Court concluded that due to the long-standing denial of their rights, the plaintiffs, in fact, deserved a higher amount of compensation for pecuniary damages. It was ordered that €200,000 should be paid as compensatory dam- ages to the owners of the property and that moral damages should remain at the amount of €10,000. The Court was preceded by the Chief Justice Hon. Jo- seph Azzopardi, Hon. Judge Giannino Caruana Demajo and Hon. Judge Noel Cuschieri. Constitutional Court confirms unjust nature of band club rental laws, raises compensation sums mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Nine-square metre extension refused