Issue link: https://maltatoday.uberflip.com/i/345566
41 maltatoday, SUNDAY, 13 JULY 2014 A planning application for the construction of a garage within the curtilage (side garden) surrounding an apartment block which forms part of Ta' Mlit Housing Estate in Mosta was refused by the Environment and Planning Commission. The commission argued that the proposed garage encroaches onto a front garden area and thus goes contrary to the official alignment as set out by the Malta Environment and Planning Authority (MEPA). At the same time, the Commission added that the proposal is considered to run against the spirit of Structure Plan policy BEN 1, which essentially seeks to protect the residential amenity of the area. Finally, the commission observed that a kitchen/dining room was being proposed to be constructed in an area which should remain "open and undeveloped". For this reason, it was concluded that the proposal is incompatible with the urban design and environmental characteristics of the area. In reaction, the applicant appealed the decision before the Environment and Planning Tribunal, stating that similar planning applications were permitted in the immediate vicinity within the same housing estate. Applicant pointed out that in the case of semi-detached villas, garages are typically allowed in side gardens and hence there should be no reason to turn down a similar request in housing estates. Furthermore, it was observed that, in this case, "there is a serious parking problem since the official parking areas and garages provide very limited facilities." To this end, the applicant contended that his proposal would remove the need for one on-street parking bay. In his conclusions, the applicant also "questioned" how a low lying garage would not maintain the visual integrity of the area, adding that the authority usually insists that applicants should provide adequate parking facilities for new buildings. In its response, the MEPA reiterated that side curtilages are spaces within the building alignment where development is not usually permissible except "under certain parameters". According to the case officer, the proposed one-storey high garage would "disrupt the uniformity of the building block and ref lect negatively on the surrounding environment since it is aesthetically unacceptable and is not respecting the character and appearance of the existing building and urban layout." In its assessment, the tribunal nonetheless agreed that a number of permits for the construction of garages adjacent to nearby blocks were issued in the not so distant past, as stated by the applicant. But even so, the tribunal highlighted that the proposed one storey garage edges a wide passageway which is in turn located close to a low lying blank boundary wall pertaining to the back yards of an adjacent block. In the circumstances, the tribunal saw that the proposal would not impact negatively on the visual integrity of the area. Against this background, the tribunal held that the proposal could be favourably considered and ordered the MEPA to issue the permit. robert@rmperiti.com Robert Musumeci MEPAwatch M r Justice Anthony Ellul on 4 July, 2014 in Christopher and Marisa Galea v Emanuel and Maria Concetta Spiteri held that the contracts did not allow the defendants to place a water tank on the roof. The plaintiffs purchased Flat 2 of a block of apartments in Cospicua on 21 January, 2010 and the contract mentioned that the roof was the property of Flats 1 and 2. Notwithstanding this, the Spiteris, who owned flat 3, placed a water tank on the roof without any authorisation. The tank was removed and Spiteri instituted a court procedure for spoliation which he won and the Court ordered the tank to be placed once again. At this stage the plaintiff noticed that there was a mistake in the contract of sale in that the roof was owned by Flats 1 and 3 and not Flats 1 and 2. The plaintiffs asked the Court to declare that the roof is the exclusive property of Flats 1 and 2 and to order the removal of the tank. The Spiteris replied by saying the action is confusing and that it is time barred by 30 years. Mr Justice Ellul examined the preliminary pleas, namely that the claims of the action are confusing. The Court disagreed because the plaintiffs were clearly complaining of the defendants' claim that they had a right to place a water tank on the roof and the aim of this action was to establish that they do not have this right and to have the tank removed. With regard to the claim that the action is time barred by 30 years, the defendants claimed that they are in fact part owners of the roof, but then testified in court that they are not claiming any title on part of the roof which belongs to f lats 1 and 2, but they are claiming on another part. They claimed that since they had a share in the stairs leading to the roof, they had a right to use the same roof. The Court examined the contract of purchase of the defendant but mentioned that the roof belonged to f lats 1 and 2. The Court commented that this was confirmed in the contract of the plaintiffs and the contract did not exclude any part of the roof as belonging to the two f lat owners. The previous owners of f lat 3 said that the access to the roof was limited to the use of the television aerial and not hanging clothes. This was confirmed by Carmel Micallef, a representative of the family which owned the whole block. Previous owners of the f lats told the court that the defendants had paid for their share of maintenance expenses of the roof, such as when they changed the door to the roof and other maintenance works. The defendants claimed that the water tank existed before they purchased the f lat and this was accepted by the other f lat owners. Mr Justice Ellul commented that the fact that they placed a water tank on the roof and no one complained does not give them the right to keep this water tank. The purchase contract does not mention this right and the defendants themselves confirmed this under oath. Any verbal agreement between the defendants and the previous owners of f lat 2, does not bind the plaintiffs. The previous owners in fact denied giving this right to the Spiteris. The Court concluded that the defendants' claiming to having a right to fix a water tank is without any legal basis. The Court then moved to uphold the Galeas' requests that they were co-owners with f lat 1 of the roof and the property was not subject to any servitude and ordered the Spiteris of f lat 3 to remove the water tank within 60 days. Malcolm Mifsud Partner Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Court rules that flat owner had no right to place water tank on roof MEPA ordered to issue permit for garage in a housing estate The Tribunal saw that the proposed garage would not impact negatively on the visual integrity of the area