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47 maltatoday, SUNDAY, 23 FEBRUARY 2014 Opinion A planning application to convert a boathouse into an office fronting Ta' Xbiex Seafront was turned down by the Environment and Planning Commission after it was held that the proposal violates policy NHGT13 of the approved North Harbour Local Plan. The Plan prohibits the change of use of existing garages and boathouses in the vicinity of 'It-Telgha ta' Ta' Xbiex, both for residential and for any other use. In a reaction to the Commission's decision, the applicant lodged an appeal before the Environment and Planning Tribunal, calling for the revocation of the decision since his property lies along a sharp bend together with a several identical garages. In his appeal, the applicant added that in the same street and less than four metres away, a similar garage was converted into a shop after the Authority has issued a permit. Moreover, the applicant pointed out that the sharp corner where the garage is located constitutes a traffic hazard as vehicles and boats cannot navigate in and out of the garages. Applicant made also reference to the fact that the policy itself (in this case, NHGT 13 of the approved North Harbour Local Plan) prohibits the construction of additional garages or boathouses in the area. On its part, the Authority reiterated that Policy NHGT13 is intended to protect the existing off- street parking provision. For this reason, the Authority maintained that the applicant's request to convert the existing garage into an office cannot be favourably recommended. Nevertheless, the case officer underlined that the similar permits that were quoted by the applicant in his appeal should not serve as a precedent since these were issued in contravention of the Local Plan. In its assessment, the Tribunal concluded that the garage in question is flanked with similar commercial development on either side. Moreover, the Tribunal confirmed that the garage in question is located along a sharp bend where traffic considerations raised concern. As a final point, the Environment and Planning Tribunal insisted that the proposed use is not tantamount to a loss of parking space, since the garage under review is not linked to an established development. While taking this into account, the Tribunal consequently instructed MEPA to issue the permit for the conversion of the boathouse into an office. robert.musumeci@rmperiti.com Robert Musumeci MEPAwatch Change of use from garage to office allowed since garage is located along a sharp bend Court stated that the defendants had no legal right to occupy the property and ordered eviction Ta' Xbiex Seafront boathouse turned into an office I n the case Raymond Bugeja vs. Giannella Annati et, the First Hall Civil Court, presided over by Honourable Justice Mr Joseph Azzopardi, on the 29th January 2014, gave the five defendant families four months to evict their homes. The plaintiff, the heir of the late Josephine Bugeja, had instituted a case and stated that as proprietor of a land in Paola, Josephine Bugeja had granted possession to the defendant against payment of ground rent for a period of 99 years. The said contract expired on the 11th November 1986 Upon the expiration of the said contract on 11th November 1986, the defendants had filed a case in front of the First Hall Civil Court against Josephine Bugeja asking the court to order Bugeja to convert the temporary ground rent into a perpetual one. Basing its decision on various articles of the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta, the court had acceded to the request of the defendants and ordered Bugeja to convert the temporary ground rent into a perpetual one. The court's decree saw Josephine Bugeja appeal the judgment, but it was to no avail. On 9th October 2001, the Court of Appeal confirmed the judgment laid down by the First Court. Subsequently, Bugeja filed a constitutional case against the defendants and the Attorney General, in which she explained that the judgment of the Appeals' Court breached her fundamental human rights. As a result, she asked the Court to declare that sub-sections 4, 5 and 6 of Article 12 of the Ordinance violated the Constitution of Malta and the European Convention of Human Rights. On 3rd October 2008, the First Hall Civil Court (Constitutional Jurisdiction) decided against Josephine Bugeja and consequently Mrs Bugeja decided to appeal the said judgment. Bugeja passed away during the proceedings and the acts of the case were conveyed to her heir, Raymond Bugeja. On 7th December 2009, the Constitutional Court decided in favour of Raymond Bugeja and declared that the Court of Appeal's decree had violated the fundamental human rights, most notably her right to enjoy her property, of the late Josephine Bugeja. The defendants filed a re-trial however such request was rejected and therefore the judgment handed down by the Constitutional Court prevailed. In light of this decision, the conversion of the temporary ground rent into a perpetual one never occurred and therefore, the defendants had no legal right to continue occupying the property in question. Using the Constitutional Court's decision, Raymond Bugeja asked the First Hall Civil Court to order the defendants to vacate the property in Paola. On the other hand, the defendants argued that the plaintiff had to prove the legal title he had on the property. Moreover, they claimed that were entitled to protection in terms of Article 12A of Chapter 158 of the Laws of Malta, which holds that "upon the expiration of a ground rent the person in possession of the property, who satisfies the requirements of sub article (1)(b) (i), shall be entitled to continue to occupy such property under a title of lease." While referring to several judgments, the court stated that it was essential for Raymond Bugeja to prove his legal title. It noted that the plaintiff had exhibited various contracts that proved that he was the sole owner of the property in question. This was also confirmed by the report drawn up by court- appointed architect. In addition, the court also pointed out that the fact that the defendants' had filed an action against the late Josephine Bugeja, who they presumed to be the owner of the property, implied that they knew that the Bugejas were the owner of the property. As a result, the Court stated that the only defence the defendants had was Article 12A of the Housing (Decontrol) Ordinance. This states that upon the expiration of the ground rent, the tenants shall be entitled to continue living in the property under a lease from the landlord. Nevertheless, the court insisted that in light of the judgment the Constitutional Court had pronounced, the said article breaches the fundamental human rights of the plaintiff. In conclusion the First Hall Civil Court stated that the defendants could not benefit from the protection offered by Article 12A of Chapter 158 of the Laws of Malta and furthermore the plaintiff had also sufficiently proven his legal right over the property. The Court therefore upheld the request of the plaintiff and ordered the defendants to evict the property within four months. Joseph Mizzi is a partner at Mizzi & Mifsud Advocates The defendants could not benefit from the protection offered by Article 12A of the Housing (Decontrol) Ordinance since this breaches the fundamental human rights of the property owner YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt Download the MaltaToday App now Court report Joseph Mizzi and ordered eviction