Issue link: https://maltatoday.uberflip.com/i/1065920
maltatoday 13 | SUNDAY • 23 DECEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application for the replacement of a building with a 2-storey residence and the construc- tion of a swimming pool. The site in question qualifies as a Category 3 set- tlement, located in Triq Sant Antnin, Marsascala. Notwithstanding the Di- rectorate's positive recommendation, the Planning Commission refused the applicant's request due to the follow- ing reasons: 1. The present building was wor- thy of retention; 2. The proposed reconstruction would have resulted in the take up of fresh land; 3. The proposal was incompatible with the South Malta Local Plan, spe- cifically Policy SMSE 08 which regulates new development in Category 3 ODZ Settlements. This policy militates against 'any new development involving the tak- ing up of fresh land'; 4. In addition, the proposal ran counter to the Thematic Objective 1.10 of the Strategic Plan for Environment & Development 'which only allows for rural development which is legitimate or nec- essary.' Aggrieved by the decision, applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that permission should have been grant- ed. In his application (rikors), applicant (now, appellant) made the following ar- guments: 1. Contrary to what the Planning Commission had indicated, the proposal was in line with policy; 2. The Superintendence for Cul- tural Heritage had found no objection insofar as the demolition was concerned. This meant that the existing building was not worthy of retention; 3. The current building had a floor area of 104 square metres, of which 38 % of that area was to remain unbuilt; 4. The proposed building would be receded further inwards and a buffer zone was to be provided; 5. On at least three other occa- sions, the Authority had found no objec- tion to issue permission for redevelop- ment outside the development zone; 6. When compared to the current situation, the proposal would constitute a better design solution. In reply, the Authority stood firm with its decision to refuse permission. Whilst acknowledging that applicant was cor- rect to point out that the resultant area would be less than what existed, the of- ficer went to observe that 'the new rede- velopment, including the pool and deck- ing, will commit further land on another part of the site to development.' As to the quoted permissions, the officer held that the relative sites were not located within a Category 3 Settlement. Moreover, the case officer reiterated that the Commis- sion had 'every right and obligation of flagging planning issues which ultimately go against the recommendation of the Planning Directorate or any other entity.' Were it not the case, the officer argued, 'the same Commission will only serve as a rubber stamp to the Planning Directo- rate's recommendations.' In its assessment, the Tribunal ob- served that the present building was of recent origin and thus was not worth retaining. Furthermore, the Tribunal was of the opinion that the replacement building was more aesthetically pleasing. On this basis, the Tribunal ordered the Authority to issue the permit. THE Administrative Review Tribu- nal held that the Lands Authority has a right to refuse the request from a restaurant to place tables and chairs on the pavement irrespective ofthe fact that a few metres away, there are other catering establishments with table and chairs on the pavement. This was held in a judgment delivered on 20 December 2018 in John Paul Winfield -v- L-Awtorita tal-Artijiet, presided by Magistrate Dr Char- maine Galea. Winfield is an owner of a restau- rant in Gzira Road, Gzira and he pre- sented an application to place tables and chairs in front of his establish- ment. The Boards of Governors of the Lands Authority turned downed the application. The land where he wants to place the tables and chairs belongs to the government and the Lands Authority does not have abso- lute discretion. There was no reason when the refusal was announced. Furthermore, Winfield pointed out that the Planning Authority issued a permit for this change of use where the tables and chairs were to be placed. Transport Malta agreed with the PA application. The Lands Authority replied to the appeal, explaining that the refusal was based in the ground that this was not the best use of the land in question. The Tribunal analysed the evidence produced before it and pointed out that when Winfield applied before the Planning Authority, it did not need to consult the Lands Author- ity. However, when the permit was issued, the applicant needed to the get the Lands Authority's consent. In the appeal the Transport Malta representative confirmed that there was no objection for the applicant to place a timber platform where to place the tables and chairs. The permit was subject to the applicant being granted permission from the relevant authority or government authority. The secretary of the Board of Governs explained to the Tribunal that the reason behind the refusal was that the area has a seri- ous parking problem. The Authority decides on the encroachment permit depending which is the best use of the area. The Tribunal was informed that a number of establishments in the same street did not have an ap- proved encroachment, while others did have approved encroachments. One of these establishments had the encroachment approved in April of this year, another was approved in March. Article 7(c) of the Lands Authority Act states: "to administer in the most ample of manners and make best use of all the land of the Government of Malta and all land that form part of the public domain such as the coastal perimeter, foreshores, har- bours, quays, wharfs, pontoons, portbeaches, landing places, berth- ing places, waterways, aqueducts, lakes, natural springs, cliffs, valleys, public squares, streets, alleys, lanes, access routes to other public places including those leading to the coast- al perimeter, woods, parks, areas of ecological or environmental impor- tance and sites of cultural, social or historical importance;" These functions are to be carried out by the Board of Governors, set up by the Lands Authority Act. The applicant argued that the re- fusal was not made according to the law as this was not the best use for this land. The Tribunal disagreed that the Board's decision was unclear, be- cause the Board wanted that the same area served for parking spaces. The applicant argued that some au- thorities, including Transport Malta agreed with the proposed use of ta- bles and chairs. It is this authority which has the function to look out for parking spaces and not the Lands Authority. The Tribunal held that there was no need of any scientific evidence of the use of the area where the proposed encroachment was being sought. It is also aware that a num- ber of encroachments were given by this Authority and by its predeces- sor, but the Tribunal is not compe- tent to decide matters of discrimina- tion. Therefore, the Tribunal limited its decision on whether the Author- ity could have taken the decision it took. As mentioned, the Authority is to see that public land is used in the best way possible. The dilemma of the Tribunal is to see whether the best use is for parking or for tables and chairs. The Authority has a right to decide one way and not another. It is a known fact that the street has an acute parking problem and the street is an important intersection. It is obvious that it would be more prudent for there to be more park- ing spaces. The fact that there are similar establishment holding a val- id encroachment, is a matter to be brought before another forum. The Tribunal drew the Authority's atten- tion to the fact that it should not al- low illegal tables and chairs. The Tribunal moved to dismiss the appeal. Tables and chairs or parking spaces? That is the question LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Green light to redevelopment in Category 3 Settlement mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates