Issue link: https://maltatoday.uberflip.com/i/302202
47 maltatoday, SUNDAY, 27 APRIL 2014 Opinion A company owning a piece of land in Zebbug instituted legal proceedings against MEPA and the Attorney General before the Civil Court, after its property was designated as a "strategic open gap" following the promulgation of the 2006 South Local Plan. The plaintiff company contended that the land in question was previously designated for industrial use and a permit was indeed issued for the construction of a factory, back in 1971. According to the 2006 Local Plan, "strategic open gaps" are defined as "locations which are visually important, being the first step outside urban areas offering a brief respite from the monotone visuals of heavily urbanized landscapes", hence calling for "substantial protection". Should the plaintiff company decide to demolish the present building, it follows that MEPA cannot issue a permit for redevelopment. On this basis, the plaintiff company argued that its rights were severely compromised, alleging further that it was never consulted about MEPA's intentions during the formulation of the Plan. As a remedy, plaintiff requested the Court to declare MEPA's actions as abusive and consequently order the reintegration of its property within the building scheme. In reaction, the Attorney General stated that plaintiff 's arguments are legally unfounded since the Local Plans were formulated according to strict parameters set out in the law. The Authority, on the other hand, insisted that the Local Plans are approved by the Minister and should therefore not be held responsible for any damages that plaintiff may have allegedly incurred. Still, the MEPA maintained that any vested rights acquired by applicant prior to the promulgation of the Plan, remain unaffected. In its preliminary assessment, the Court observed that Local Plan Policy SMCO 10 specifically provides that "urban development will not be permitted in all Strategic Open Space Gaps". In this context, the Court made reference to a recent European Court of Human Rights (ECHR) judgment in the names Lay Lay Company Limited vs Malta, where the Strasbourg Court held that "the refusal to issue a building permit must be regarded as an interference with the applicant company's right to peaceful enjoyment of its property" within the ambit of Article 1 of Protocol No.1 of the European Convention. The Maltese Judge also made reference to another landmark decision instituted by the Housing Association of War Disabled before the European Courts, where the latter recognised on the one hand that "contracting States should enjoy a wide margin of appreciation in order to implement their town- and country-planning policy", but at the same time, the Court must "determine whether the requisite balance is maintained in a manner consonant with the applicants' right of property". In keeping with the above legal reasoning, the Civil Court considered that the ultimate change in destination of plaintiff 's land as a result of the 2006 Local Plan should not absolve the Maltese State of its responsibility to provide adequate compensation to the relative owners. The Court concluded that the plaintiff company is eligible to a compensation for having its land designated as a "strategic open gap". robert.musumeci@rmperiti.com Robert Musumeci MEPAwatch The refusal to issue a building permit must be regarded as an interference with the applicant's right to peaceful enjoyment of its property T he Land Regulation Board, presided over by Dr Francesco Depasquale, ordered on 23 April 2014 that a field be returned to its owners, John and Isabelle Azzopardi, since it was proved that the tenants carried out no maintenance. John and Isabelle Azzopardi instituted an action against Frances Desira, wherein they asked the Board that land in Gudja be returned to them after it was rented to Frances Desira for €6.99 a year. The land was abandoned and had damages, therefore the conditions for the rural lease was not adhered to. On 15 June 2009, the Azzopardis purchased the land by court order. The Court Expert's description was that the land was 4.4 tumoli and that it was worth €25,768. However the land was rented to Frances Desira for an annual rent of €6.99, which was paid at Dr Philip Bianchi's office. The applicant's architect Ludovico Micallef issued a certificate stating: "During this site inspection, it found out that the rubble walls surrounding the field had been allowed to fall into disrepair. Also the wooden gate, which barred access to the property, was completely destroyed. It is quite evident that it had been a long time since any type of repair works have been carried out on the walls/gate by the tenant of the site." The document was accompanied by a number of photos. Furthermore, a certain Eugenio Galea testified that he titled the land and sowed wheat. Magistrate Depasquale held that there was no doubt that at the time when the application was filed the field in question was in a bad shape. The only use was that the land was tilled once a year and that wheat was sold to third parties. The defendant's son testified that he helped his mother in planting onions, potatoes and other vegetables. It resulted that the son, Carmelo Vassallo, worked abroad and the Board commented that it believed the Azzopardis that the Vassallos asked for money to vacate the place. The Board referred to previous judgements as in Vivien Cassar Desoin v. C. Vella of 15 July 2009 before the Court of Appeal, which held the tenant is bound to take care of the property and is also bound to return the property in the same condition it was given. In another judgement J. Zerafa v T. Casha decided by the Court of Appeal of 10 May 2006, the Court held that the tenant was bound to keep the walls in good order and repair. The Court upheld the Azzopardis' request and ordered Desira to vacate the field within 3 months. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt The land was abandoned and had damages, therefore the conditions for the rural lease was not adhered to Tenant ordered to vacate field due to lack of maintenance Court decides that owners whose rights to build were at some point affected are eligible to compensation Importers of hand-knotted Oriental carpets THE FLYING CARPET - OLD RAILWAY TRACK, ATTARD .PO5VFT5IVST4BUBNoQNt8FEOFTEBZNPSOJOHDMPTFE .PO'SJoQNQN *NQPSUFSTPG7BSJPVTIBOELOPUUFEDBSQFUTBOE,JMJNT /PO4MJQ6OEFSMBZ%SZBOE-JRVJETIBNQPP.PCJMF/P