Issue link: https://maltatoday.uberflip.com/i/1181922
| SUNDAY • 3 NOVEMBER 2019 maltatoday 15 THE Housing (DeControl) Ordi- nance states that where a dwelling house has been granted on temporary emphyteusis according to a contract preceding 2lst June 1979, the emphy- teuta shall be entitled to continue to occupy the house under a title of lease after the contract expires. This has been found to be in direct vio- lation of Article 1 of the First Protocol to the European Convention on Human Rights both by the European Court of Human Rights (ECHR) as well as the Maltese Constitutional Court in the case of Grima et. Vs. Avukat Generali u Kaptan Ronald Paul Abela on the 21st October 2019 presided by Hon. Judge Toni Abela. The Court heard the pleas by the plaintiffs who are the owners of a tene- ment in Sliema that was given to the de- fendant on title of emphyteusis in 1960. After the expiration of this period, the property was rented out to the same de- fendant and has been occupied by him to this date. Since their tenement was subject to the provisions of the Housing (DeControl) Ordinance, the plaintiffs held that they are now in a situation where their property cannot be enjoyed by them and that the defendant will perpetually occupy the tenement indefi- nitely, violating their right to peaceful enjoyment of their property as guaran- teed by both the Convention as well as the Constitution. The Court reiterated what has been established by the ECHR in a number of judgements, that Government con- trol of leases as well as restrictions on the termination of such lease contracts violates the rights of private individu- als. The Attorney General, however, put forward the argument that the Conven- tion allows for such regulation in the public interest. It was explained that this law came into place to provide for social housing at a time when it was necessary for the government to establish control over rent prices. Nonetheless, the Court held that in such cases where Govern- ment interference is necessary, meas- ures must be taken in accordance with the principle of a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's funda- mental rights. The Court held that as stated by the ECHR in Buttigieg and Others v. Malta (app. No. 22456/15), the lack of proce- dural safeguards in the application of the law and the rise in the standard of living in Malta over the past decades produced a disproportionate and ex- cessive burden on the applicants who were made to bear most of the social and financial costs of supplying hous- ing accommodation. Thus, Article 12 of the Housing (DeControl) Ordinance is in violation of both European human rights law as well as Article 37(1) of the Constitution. The Court then went on to consider the applicants' plea for remedial action. The Court first held that defendant Ab- ela should not pay any compensation to the applicants as it is only the State that is responsible for the violation due to the implementation of the law promul- gated by Act XXIII of 1979. The Court also held that defendant Abela neither should nor can be forced to vacate the property. The Court stated that con- trary to what has been advised by the ECHR, the ejectment of lessees in such cases would be both unfair and unrea- sonable. It held that it is also not within the remit of the Constitutional Court to determine the civil aspects of the case, and there are other legal bodies which have jurisdiction to determine such is- sues. It was held, however, that the oc- cupant Abela cannot remain occupying the tenement on the basis of the law found to be in violation of human rights and another legal relationship must be established. The Court also held that it could not declare the law to be without effect in its totality. Since the action is not one which is actio popularis, therefore chal- lenging the validity of the law, the Court can only declare that the law is uncon- stitutional and without effect with re- gards to the parties in this case. In determining the necessary com- pensatory amount to be paid by the Attorney General, the Court first held that it can only give compensation for the violation of the fundamental right and not civil damages. It was also es- tablished that in line with judgements such as Azzopardi vs Avukat Generali (2019) a constitutional remedy does not necessarily mean a reimbursement of the whole amount of the rental market price to the applicants. It was stated that the calculations of the applicants do not take into account the social aspect of the law and maintenance and repair costs which the applicants would have had to incur over the property through the years. It also cannot be taken for granted that the property would have been rent- ed perpetually by lessees. Taking all of the above into considera- tion, the Court awarded the applicants a sum of €20,000 to be paid by the At- torney General as a representative of the Government along with all legal expenses for both defendant Abela and the applicants. Article 12 of Housing (DeControl) Ordinance in violation of human rights 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 which envisaged the total demoli- tion of an old townhouse to pave way for the construction of a four-storey complex of apartments. The said townhouse was located out- side the Urban Conservation Area of St Julian's. Following a thorough as- sessment, applicant's request was re- jected by the Planning Commission on grounds of 'historic value'. The Com- mission made reference to earlier com- ments made by the Superintendent of Cultural Heritage, who had observed that the property was 'one of a series of late nineteenth or late twentieth century houses whose architectural and historic value is enhanced by its location within the series of surviving houses along the street.' The demolition of the façade was thus considered objectionable. Against this backdrop, the Commission held that the proposal ran counter to The- matic Objective 8 of the Strategic Plan for Environment and Development (SPED) which aims at safeguarding and enhancement of the cultural heritage as well as Urban Objective 3 of the same SPED which further aims to protect and enhance the character and amenity of urban areas. Even more so, the proposed elevation was also found not to be in keeping with the remaining streetscape. In response, applicant lodged an ap- peal before the Environment and Plan- ning Review Tribunal (EPRT), insist- ing that permission should have been granted. In his appeal application, ap- plicant (now, appellant) alleged that he was denied a fair hearing due to 'the chairperson refusing to put on screen streetscape elevations and other docu- mentation' which he submitted in order to gain a better understanding of the site context. This failure, according to appellant, amounted to a 'procedurally deficient, flustered, and vitiated' hear- ing. Insofar as the proposed demolition, it was pointed out that the Superinten- dent of Cultural Heritage was prevented from expressing his concerns when the site was located outside the urban con- servation area such as in this case. Fi- nally, the Tribunal was reminded that the Authority had approved the demoli- tion of a number of buildings next to his property, even though these were con- sidered of 'higher architectural quality' than his property. In reply, the case officer stood by the Commission's decision. The officer re- butted by saying that appellant's allega- tions that he was not given a fair hear- ing before the Commission were totally unfounded. While acknowledging that applicant's site was located outside the urban conservation area, it was further pointed out that the applicant's build- ing 'formed part of a series of surviv- ing houses along a unique streetscape' and should therefore be retained. As to whether the Superintendent of Cultural Heritage acted beyond his remit, it was underlined that the latter was a statuto- ry consultee recognised by law and the Commission was therefore obliged to lend weight to what he had to say. In its assessment, the Tribunal made specific reference to the concerns raised by the Superintendent of Cultural Heritage who had observed that the property in question was one of a se- ries of late nineteenth or late twentieth century houses and should be there- fore preserved 'up to and including the roofline cornice'. Notwithstanding, the Tribunal assessed that the surrounding streetscape had its context compro- mised along the years due to a number of recent reconstructions. The Tribunal could see no benefit in insisting about the preservation of an old façade being located in an unalike urban streetscape. For this reason, the Tribunal ordered the Authority to issue permission. No need to retain façade due to already compromised streetscape robert@robertmusumeci.com ASK ROBERT mmifsud@mifsudadvocates.com.mt ASK MALCOLM LAW & PLANNING