Issue link: https://maltatoday.uberflip.com/i/1098850
maltatoday 13 | SUNDAY • 31 MARCH 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application which envisaged the 'part-demoli- tion' of an old building to pave way for basement garages and an overly- ing five storey residential complex. The Planning Commission observed that the interventions included 'the demolition of vernacular buildings situated around a central courtyard which is of heritage value', adding further that the proposal had been objected to by the Superintendence of Cultural Heritage. For this reason, the Commission held that the pro- posal was incompatible with Themat- ic Objective 8 and Urban Objective 2 of the Strategic Plan for Environment and Development, which policies seek to preserve buildings of cultural heritage. On this basis, the Commis- sion rejected the application. Following the Commission's decision, applicant lodged an appeal before the Environment and Planning Review Tri- bunal, insisting that permission should have been issued. In his appeal, appli- cant (now, appellant) brought forward the following arguments: 1. The stone corbels (kileb) which formed part of the roof structures were retained as shown in the latest submit- ted drawings; 2. The Planning Commission had expressed no concern with regard to the fact that the set height limitation was exceeded by 1.38 metres, 3. The building services were to be located towards the rear of site, hence inconspicuous from public view. In reply, the Planning Authority held to its previous position, reiterating that the existing building should be retained in its entirety due to its architectural, historical and vernacular value whereas the proposal envisaged the retention of only 'part' of the building. On a differ- ent note, it was underlined that appli- cant had, during the process, submitted fresh drawings to include a shop. This was tantamount to a 'material change' while a planning application was still under process, which 'change' was not permitted by law. In its assessment, the Tribunal ob- served that the Superintendent of Cul- tural Heritage had initially commented that the property in question consisted of 'a complex of vernacular buildings around a central courtyard, located just outside the Urban Conservation Area of Safi'. The Cultural Heritage watchdog had further noted that 'despite some modern interventions/accretions, the property had evident vernacular, his- torical and architectural value.' The Tribunal, however, noted that at a later stage, applicant had submitted fresh drawings with a view to integrate the historical buildings as directed by the Superintendent. In fact, the Super- intendent had subsequently inspected the property, noting that the latest drawings 'effectively preserve and in- tegrate the historically and significant parts of the existing property.' On ac- count of the said events, the fresh draw- ings were sent back to the Commission to enable reassessment. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Tribunal sends fresh drawings to PA for reassessment IF elderly tenants decide to move to a retirement home, then they will be effectively foregoing their lease. This was held in a judgement delivered by the Rent Regulation Board on 26 March 2019 in Anna Maria Falzon, Josephine Borg, Raymond Borg and Carmel Borg -v- Paul Sant, Felica Sant and Miriam Sant. In this case the plaintiffs explained in their application, that they are owners of a property in Marsa and that the ten- ants Paul and Felica Sant, moved out to live in a retirement home and therefore, it is no longer their residence. Their daughter is occupying the premises, but does not have a title. The property is in need of urgent maintenance. The plain- tiff asked the Board to order the defend- ants to formally vacate the premises. The Sants replied to the application by stating that the application is null be- cause the application did not mention the expiry date of the lease. They denied that the property was abandoned and claimed that they are in the retirement home on a temporary basis. Magistrate Dr Josette Demicoli, who presided over the proceedings, analysed the evidence. The plaintiff, Anna Maria Falzon testified that the property was, in fact, first rented to Felica Sant's fa- ther, Carmelo Schembri. When Felica married her husband moved in. In June 2015 Paul and Felica Sant moved in a re- tirement home and therefore, the plain- tiffs asked for the keys of the premises. Miriam Sant started to deposit the rent in court. The witness told the Board that she went a number of times to the property and did not find anyone there. She also noticed that there were dam- ages to the house. In fact, the property is overlying a complex of garages and the tenants of the garages complained of leakages from the Sants' residence. This version of events was corroborated by the testimony from other plaintiffs. The plaintiff showed that in the elec- toral register of April 2006 Miriam Sant was registered on the rented property. Miriam Sant testified and confirmed that she lives in the said property on her own since her parents went to live in a retirement home. She confirmed that she works and earns the minimum wage, but there was a time she had fi- nancial difficulties after her separation. Magistrate Demicoli examined the first plea dealing with the expiry date of the lease which was not mentioned in the application. However, the Board pointed out this action is asking the Board to terminate the lease and not re- locate the tenants. Therefore, the expiry date of the lease is not required. With regards to the merits of the case the Board pointed out that there are two principle issues. The first is whether the lease is terminated since Paul and Fe- lica Sant are now in a retirement home and secondly whether Miriam Sant has a right to occupy the property in terms of Articles 1555A and 1531F of the Civil Code. Article 1555A states that if the rented property is not used for more that 12 months then it is deemed that the property is wrongly used. If the ten- ant, before 1 June 1995, is admitted to a retirement home then the property is transferred in accordance to Article 1531F. From the evidence produced Paul Sant passed away during the proceed- ings, and Felica Sant is 77 years old. They were admitted to the retirement home on 30 April 2015. Paul Sant was in a wheelchair and both needed constant care. The Board could not verify this, however, a representative of the retire- ment home explained their condition. The Board discounted what Miriam Sant held, that her parents can return home and she would take care of them. Article 1555A (2) of the Civil Code, in- dicates that since the original tenant was Felica Sant's father, then this made her the tenant. Upon Felica's death Miriam Sant may be recognised as the tenant. Article 1531F of the Civil Code states that the lease terminates upon the death of the tenant, however, this will not take place if the tenant's children would have lived with the tenant for four years from five years before the death. The law provides for a means test. It is the person claiming a right over the prop- erty to prove that she qualifies. There is a distinction in the law between chil- dren living with the tenants before 1 June 2008 and those after 2008. In the first instance they must live there with the tenants for four years of five years. If after 2008, then they must live with the tenants until their death. In this particular case Miriam Sant is claiming that she went to live with her parents in Marsa in October 2005 and remained there. Therefore, she lived there for three years before the 1 June 2008 and therefore she does not qualify for the means test. In terms of Article 1531F of the Civil Code, Miriam Sant would have a right to remain in the property for five years and there should be an increase in rent by double the amount. The Board ordered that the lease is terminated, but Miriam Sant is to reside in the premises for a term of five years. Residential leased property must be lived in LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates