Issue link: https://maltatoday.uberflip.com/i/1130632
maltatoday 13 | SUNDAY • 16 JUNE 2019 CULTURE ENVIRONMENT LAW & PLANNING A planning application for the change of use of a previously ap- proved store to an area where ap- plicant could cook dry food with the intention to be sold elsewhere was turned down by the Planning Com- mission after the latter found that the premises were located in a resi- dential area. The permission was, in fact, turned down on the following basis: The proposed development ran counter to the provisions of policy NHHO 01 of the North Harbour Lo- cal Plan which specifies that light industry that would result in further nuisance to neghbbours was not per- mitted; The proposal was not in line with the SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban ar- eas; The proposal was in breach of cur- rent sanitary regulations (namely, Legal Notice 227 of 2016: Develop- ment Planning (Health and Sanitary) Regulations, 2016) since an Engi- neer's Light and Ventilation Report was not submitted; In reaction, applicant lodged an ap- peal with the Environment and Plan- ning Review Tribunal, insisting that his application should have been given the green light. In his arguments, applicant (now, appellant) highlighted the fact that the use was to remain unchanged. Applicant went on to explain that the premises, already approved as a store having no specific designation, would still be used as a 'food store'. Thus, appellant insisted with the Tribunal that there was no need of a 'change of use' permit. The Tribunal was reminded that appellant 'simply wanted to be able to boil/steam vegetables' in the kitchen and no nuisance was there- fore envisaged. For his part, the case officer repre- senting the Authority reiterated that the premises were located in a resi- dential area. For this reason, Policy NHHO 01 of the North Harbours Local Plan was applicable and light industry use would only permitted when the gross floor area of the premises was less than 50sq.m. In this case, the officer noted that the floor area was larger. In its assessment, the Tribunal not- ed that appellant was correct to state that the premises were covered by an old permit to operate as a store. Nevertheless, the Tribunal ob- served that the street was not com- mitted with any commercial activity, apart from the fact that the premises were overlain by residential apart- ments. The Tribunal maintained that the Authority was correct to observe that the area which was to be used as a kitchen was larger than the area which was previously designated as a store. Against this background, the ap- peal was rejected since the proposal was tantamount to intensification of use. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Store turned cooking area denied permit A brother of a tenant could not claim to have a title because his brother died and therefore, he could not ar- gue that he took over the lease of a government property. This was held in a judgement delivered on 11 June 2019 by the Administrative Review Tribunal, presided to Magistrate Dr Charmaine Galea. The case is Gi- useppe sive Joseph Perini -v- L-Aw- torita tad-Djar. Perini, in his application, held that he had received a judicial letter from the Housing Authority that he was to vacate his residence within 30 days. The plaintiff challenged the judicial letter since it did not contain any rea- son which is prescribed by the law. Furthermore, Perini insisted that he did have a title to live in his residence. He asked the Tribunal to order that the judicial letter would be declared null. The Housing Authority filed its statement of defence, stating that the plaintiff does not have a right to hold on to the government property and this was explained in the judicial let- ter. It is not for the Housing Authori- ty to prove that Perini does not have a title, but he should prove that he has. The Tribunal analysed the evidence brought before it. The first witness was an official of the Housing Author- ity who explained that the property in question was rented to the plaintiff's parents, Salvatore and Carmela Per- ini, but in 1980 the plaintiff's brother and his wife, Emanuel and Marietta Perini were recognised as tenants. In 2016, the plaintiff asked the Author- ity to recognise him as a tenant, since his brother died in 2014. As part of the process, the Authority carries out an inspection, however, this at first, was not carried out because the offi- cials did not find anyone in the prop- erty. Furthermore, the plaintiff's wife had another property in her name. The two were married in 2015 and therefore, they were occupying two properties. The plaintiff testified that he had told the Tribunal that he is 83 years old and that he always lived in this property with his family and after his brother died he still paid the rent to the government. He explained that he was not present for the inspec- tions because he usually leaves early in the morning and also because he is hard of hearing and might not have heard the knocking on the door. The Tribunal then took to task the legal issues put forward by both par- ties, the first being whether the ju- dicial letter had any explanation as dictated by Article 10(1) of the Gov- ernment Lands Act. According to Ar- ticle 9 the Authority may ask for the removal of any person from govern- ment property if that person does not have a legal title over the property. The fact that the reason given was that this was according to law, did not require further explanation. Then the Tribunal investigated whether the plaintiff had a legal title. The Tribunal agreed that it was the plaintiff who had to prove that he had a legal title, not the other way round. Once the plaintiff is claiming that he has a title, he has to show the Tribu- nal himself that this title exists. The Government Lands Act defines a les- see as a person on whom the lease is registered or is occupied by a title of lease. He explained that after his par- ents' death, the lease was inherited by his brother. The Tribunal pointed out that in 1980 the Housing Author- ity recognised the brother as the ten- ant. Furthermore the plaintiff argued that a letter dated 5 June 2018, which stated that from the inspection they found the plaintiff, the twin brother of the tenant Emanuel Perini regis- tered as a tenant, this showed that he was the registered tenant. How- ever, the Tribunal said that this was stretching the argument too far and if in the inspection report, the word les- see was used, then it does not mean that the plaintiff was, in fact, the les- see. However, the plaintiff received another letter that the lease was not to be renewed. The evidence showed that the plain- tiff's deceased brother had a legal ti- tle and not the plaintiff. The Tribunal moved to turn down the application. Tenant's surviving relative ordered to vacate rented property LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates