Issue link: https://maltatoday.uberflip.com/i/1179886
| SUNDAY • 27 OCTOBER 2019 maltatoday 17 THE Court faced with a judicial re- view lawsuit is not competent to hear it if the plaintiff has other remedies at his disposal. This was decided on 22 October 2019 in Mary Doris Caruana et vs Planning Authority, Victor Baldac- chino et by Mr Justice Grazio Mer- cieca. The Plaintiffs held in their sworn application that they have inherited property in Mqabba. When they were preparing the causa mortis, their architect had no- ticed that Victor Baldacchino and other owners of the surrounding properties had filed a Planning Con- trol application before the Planning Authority. The application is intended to ask the PA to define what is allowed if these properties are developed. Af- ter enquiring with the PA, the plain- tiffs noticed that this application would prejudice their property. The defendants maximised the full potential where the potential of their property was limited. They tried to amend the applica- tion; however, this was not allowed and the PA approved the original ap- plication. This means that the plaintiffs were being discriminated and therefore asked the Court to revoke the PA's decision and condemn the defend- ants to pay damages. Both the PA and the other defend- ants held that the Court is not com- petent to hear this case. The PA further pleaded that the plaintiffs had other remedies in terms of the Development Planning Act. The Court held that it was first to decide whether it was competent to hear the case. Art 469(A) of the Code of Organisation and Civil Pro- cedure stipulates that a judicial re- view is not applicable when another law allows a contestation or remedy of an administrative act is available. According to Article 54 of the De- velopment Planning Act, the Execu- tive Council may revoke or modify the decisions concerning controlled planning Mr. Justice Mercieca point- ed out that the plaintiffs who were heirs failed to file an objection to the application and to the decision de- livered by the Executive Council of MEPA irrespective of the fact that they did not register themselves as a third party objector. The plaintiffs complained that the PA was not forthcoming with infor- mation, but also held that they did not notice that the application no- tice was placed at the property. The First Hall of the Civil Court held that in a previous judgement Garden of Eden Garage Limited vs Awtorita' Ghat-Trasport f'Malta had held that the Court in judicial review cases shall interpret sub-article (4) restrictively in that it has no juris- diction where there are other rem- edies. These other remedies must be effective. This was echoed in Dr Philip Galea et vs Tigne Development Co. Ltd. et. held if there is no alternative rem- edy, then the judicial review is ap- plicable, but if it is shown that the plaintiffs failed to use these alterna- tive remedies, the Court cannot look into the case. The Court then moved to uphold the pleas of lack of competence, since the plaintiffs did not utilise al- ternative remedies. Judicial review procedure cannot substitute the natural process of complaints LAW Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a planning application for the change of use of a disused ga- rage into a food and drink catering outlet. The premises were located in Zachary Street in Valletta. Although applicant made it very clear that no on-site cooking would take place, the Commission refused permission on the basis that the premises were located in a residential area. To substantiate its decision, the Commission held that the proposal was in breach of policy GV 22 of the Grand Harbour Local Plan which specifies that 'take-aways and other similar types of use will only be con- sidered if they are located in sites which will not cause annoyance to neighbouring residents.' In its decision, the Commission also observed that the proposal was in conflict with SPED Urban Objective 3 which 'aims to protect and enhance the character and amenity of urban areas.' In reaction, applicant decided to ap- peal the decision before the Environ- ment and Planning Review Tribunal. In his arguments, applicant (now, ap- pellant) underlined that his proposal envisaged 'a small snack bar' and not a 'take away', so much so that a seat- ing area was to be provided inside the bar precints. In addition, applicant emphasised that no cooking on site was to take place, insisting that the proposal sought to enhance an otherwise dis- used garage in the 'heart of Valletta'. While insisting that the floorspace was limited to 10sq.m, applicant re- minded the Tribunal that the Au- thority had issued a number of per- mits which were similar to his. In reply, the Authority stood by its decision to refuse permission. The case officer underlined that the pro- posed change of use was in breach of Local Plan policy GV22 of the Grand Harbour Local Plan, since the said policy was 'against the permitting of all Class 4 Uses that are likely to cause annoyance to neighbouring residents.' The officer warned that applicant's premises were located in 'a predomi- nantly quiet residential area in Val- letta'. Even though it was undisputed that the premises would occupy a floor- space of 10sq.m, the use involved 'the preparation and sale of hot or cold food or water for consumption on the premises', which use was strictly pro- hibited in the area. In its assessment, the Tribunal took note of the site location as well as the immediate environs. The Tribunal went on to observe that there were no other commercial outlets in the vicinity. Notwithstanding the fact that the premises occupied a small footprint, the Tribunal was still concerned that a bar would generate unacceptable sound levels and a high volume of traffic. For this reason, the Tribunal agreed with the Authority in that this part of Zachary Street should remain free from any new commercial activity. Permit denied for 10sq.m Valletta class 4C outlet robert@robertmusumeci.com ASK ROBERT mmifsud@mifsudadvocates.com.mt ASK MALCOLM LAW & PLANNING