Issue link: https://maltatoday.uberflip.com/i/290775
47 maltatoday, SUNDAY, 6 APRIL 2014 Opinion A 2006 application entitled 'Proposed construction of pool and underground basement and additions and alterations to existing building' was turned down by the Environment and Planning Commission on the basis that the proposal could not be considered further unless the illegal development consisting of "the removal of trees and excavation of garden area" was first sanctioned or removed. But even so, the Commission added that the proposed development runs counter to Part B Section 1 of the Design Guidance for development Control within Urban Conservation Area since it "would remove the existing open space and would adversely affect these environmental consideration which are vital to Urban Conservation Areas.'' In reaction, applicant appealed the decision, insisting that contrary to the Commission's conclusions, the alleged "illegal " works were implemented according to a valid building permit. On its part, the Authorit y rebutted applicant's arguments, stating that the permit referred to by applicant was indeed withdrawn at the request of the previous applicant and for this reason, the garden area was deemed to have been excavated illegally. From the facts of the case, it transpires that previous applicants requested the Authorit y to withdraw the said permit after negotiations on their part to acquire the propert y in question failed. More so, the MEPA reiterated that both public and private open spaces in Urban Conservation Areas are fundamental to the character of village cores since these protect the "amenit y and privacy of such areas", whilst reducing noise at the same time. On this basis, MEPA reiterated that "rather than being developed, such open spaces should serve as the 'green lungs', which are essential to retain the open character and provide better qualit y of living in such areas." In its assessment, the Tribunal concluded that the excavation works were carried out illegally and confirmed the Authorit y's decision since the previous permit was deemed withdrawn. Nonetheless, applicant appealed the decision before the Civil Courts, stating that the Tribunal based its conclusion on wrong information. On its part, the Court concluded inter alia that the law makes no provision for applicants to have a permit withdrawn, hence the tribunal 's conclusions were legally unfounded. Against this background, the Court annulled the Tribunal 's decision. robert.musumeci@rmperiti.com Robert Musumeci MEPAwatch Court concluded that the law makes no provision for applicants to have a permit withdrawn T he Court of Appeal presided over by Mr Justice Mark Chetcuti held that a development permit cannot be granted and then withdrawn by the applicants themselves. This was decided in a judgment delivered on 26 March 2014 in the names of Rebecca Darmanin Kissaun –v- Malta Environment and Planning Authorit y (MEPA). The appeal was filed following a decision delivered by the Environment and Planning Review Tribunal that disallowed that a permit be issued for the construction of a pool and underground basement in a propert y in Lija. The applicant, Mrs Darmanin Kissaun, argued that the permit had already been issued in 2005, a few months after the previous prospective buyers withdrew it. Therefore, she argued, that if a permit PA 407/03, was issued in 2005, how is it that MEPA were not issuing the permit. More importantly, the applicant argued that the permit was withdrawn illegally and therefore, the original permit was still valid at law. The applicant's law yer, Dr Cedric Mifsud, had pointed out that Catherine Galea was to purchase the same propert y, but the pre-contractual agreement fell through allowing his client to purchase the propert y instead. The applicant filed a new application on the basis of the previous permit. It was at this time that Ms Galea cancelled her own permit on a MEPA letterhead, which read: "...as applicant hereby declare that I shall not, whether directly or indirectly, utilize or allow or permit to be utilized in any manner whatsoever the above captioned permit and hereby further declare that for all intents and purposes the said permit is to be construed as null and void. I, Catherine Galea, further declare that the new owner of the propert y to which this application relates is Mark Darmanin Kissaun and Rebecca Darmanin Kissaun." The Development Control Board were not informed of this withdrawal, but were informed in 2011. Article 69(4) of the The Environment and Development Planning Act mentions that a development permit is valid for 5 years, however it does not mention that the permit may be cancelled by the holder of the permit. Subsection 6 of the same article stipulates that a permit is attached to the propert y and not to an individual and therefore the holder of the permit cannot cancel a permit unilaterally. The appellant held that Catherine and her husband Mannie Galea did not have the right to cancel the permit. The Court quoted from Architect's Mannie Galea's testimony, which confirmed that the permit he was interested in purchasing was cancelled, since he feared that he would be criminally responsible for the works. The Court considered that the propert y was in a UCA area and had an enforcement notice on it issued on 25 September 2008. The new application was refused because of PA Circular 2/96 & 2/98 that states that permits were to be issued if there were illegal structures on site. The applicants argued that the works were not illegal since it was covered by PA 4071/03 issued to Catherine Galea. This new application was identical to PA 4071/03, which was approved on 17 January 2006 and was withdrawn. The Environment and Planning Review Tribunal on 13 June 2013 held that the permit PA 4071/03 was withdrawn before the works commenced. Therefore, the works were carried out without an effective permit. The Tribunal agreed that Ms Galea could have withdrawn the permit. Mr Justice Chetcuti disagreed with the Tribunal that the two applications in question were identical, which fact had legal consequences. The Tribunal argued that it did not make sense that Mrs Darmanin Kissaun presented an identical application to the permit issued, especially when she was unaware that the permit was withdrawn. In fact the Court of Appeal commented that it doubted how much the Tribunal was focused on the facts when it arrived to its conclusions. Furthermore, the Court held that the Tribunal failed to consider the appellant's claim from a legal point of view that one cannot withdraw her own development permit. The Court of Appeal went so far as to say that the Tribunal "acted from the heart" when it held that the permit was irregular and that the works carried out were illegal. Neither should MEPA and the Tribunal have entered into the issue of the guarantees it received from Mrs Galea when the permit was issued. This should have been discussed by Mrs Galea and Mrs Darmanin Kissaun and not the Authorit y. The Court concluded by upholding the appeal and ordered that the records of the case be sent back to the Tribunal. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates. Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt The Environment and Planning Review Tribunal on 13 June 2013 held that the permit PA 4071/03 was withdrawn before the works commenced YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt MEPA permits cannot be withdrawn by permit holder Download the MaltaToday App now Law makes no provision for applicants to request withdrawal of a permit