Issue link: https://maltatoday.uberflip.com/i/416739
53 maltatoday, SUNDAY, 16 NOVEMBER 2014 Opinion T he Court of Appeal ruled on 12 November, 2014 in Joseph Xuereb -v- MEPA, that a letter challenging a stop notice was in fact an appeal in terms of the authority's legislation and the tribunal should have treated it as an appeal. The background of the case concerns a stop notice which was issued in July 2005 against Joseph Xuereb for having an aviary on his roof, without the necessary MEPA permits. This stop notice was not appealed but Mr Xuereb's architect held that a stop notice could not have been issued since the aviary had existed since 1988 and in terms of Article 55B of the Development Planning Act, the aviary did not require a permit. The MEPA action was instigated by a next door neighbour who complained that she could not sell her house because of the aviary where pigeons were kept. Furthermore in 2007 Mr Xuereb's house suffered a fire and the aviary was burnt down. In the meantime in 2012 MEPA replied to the architect that it was not satisfied that the aviary was in place before 1993. Mr Xuereb filed an appeal to the Appeals Board that it took MEPA six years to reply to the architect's letter and that the authority's board had no power to take a decision without Mr Xuereb being first notified of the sitting. Furthermore, MEPA could not take action on the stop notice until the authority was presented with all the documentary evidence. MEPA replied by pointing out that there was no appeal from the stop notice. Furthermore, the stop notice was necessary because the aviary was built without any permit and the evidence produced did not satisfy MEPA. All Mr Xuereb produced was an affidavit. MEPA contended that it was not bound by any time limit to reply to the architect's submissions. The Environment Revision Tribunal held in its decision of April 1, 2014, that when one is served with a stop notice, one has 15 days to appeal to the appeals board. This did not take place but a letter was sent. Irrespective of this no direct action was carried out by the authority. Mr Xuereb was ordered to remove the structure but failed to do so. The fact that MEPA took six years to reply, was to Mr Xuereb's advantage. Neighbours continued to complain and an enforcement officer visited the house but was not allowed to enter. Mr Xuereb complained that he was not invited to the board meeting that took the decision to remove the aviary. The tribunal held that according to the new Environment and Development Planning Act, MEPA board meetings are open to the public and all concerned may make submission to the board. However, this is allowed in applications and not in cases such as was under examination. From evidence produced this board meeting was not a public hearing but an administrative meeting. However, the minutes of the meeting show that the board asked the Planning Directorate to present to them documents of the use of these rooms on the roof. This meeting was not a meeting concerning planning applications, but one where the enforcement section was informing the board of particular cases. The tribunal refused Mr Xuereb's appeal, which was followed by an appeal before the court. The grounds of appeal before the Court of Appeal concerned the last sitting before the tribunal delivered its decision. The appellant asked the tribunal for a deferment in order for his lawyer to attend and be in a position to verify documents which were in the acts of the appeal. Mr Xuereb argued that this went against the principle that the tribunal should have heard the other side (audi altrem partem). As a consequence the appellant did not have an opportunity to produce evidence through his lawyer. Mr Justice Mark Chetcuti in the Court of Appeal saw the case differently from the parties in that the court held that the architect's letter of 2005, stating that the aviary existed before 1993, was in fact an appeal because it attacked the validity of the stop notice. Therefore, the tribunal based its decision on an erroneous premise. The law allowed the subject of a stop notice to ask for its revocation or withdrawal because the structure existed pre-1993. The Court of Appeal held that the tribunal has full discretion on whether to accept or not a request for an adjournment, however the court has the right to sanction its decision. In fact, the court is of the opinion that the fact that the tribunal proceeded with its decision did not give the appellant the possibility to verify the documents the authority presented. The appellant was never privy to the documents in the enforcement file. The court annulled the tribunal's decision and ordered it to apply the law. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application entitled "To raise dividing wall between properties for privacy and raise existing chimneys accordingly", in St Paul Street, Valletta, was approved by MEPA's Environment and Planning Commission, following which the neighbour of the adjacent propert y lodged an appeal before the Environment and Planning Tribunal requesting revocation of the permit. The tribunal ordered the MEPA to withdraw the permit. In his submissions, the objector insisted that the applicant's declaration to the effect that the applicant is the sole owner of the entire site (which includes the "dividing wall " set to be raised) is factually incorrect since the part y wall appertains to both the objector and the applicant. The objector therefore insisted that the information given by the applicant is misleading, so the permit should be revoked. To support his argument, the objector (appellant) made reference to Article 68(3) of Act X of 2010 which inter alia provides that when not the sole owner, an applicant is required to notif y any co-owner via what is commonly referred to as 'Certificate B' and obtain consent to proceed with the works. In addition, the objector stated that the applicant had no reason to raise the dividing wall separating his propert y from that of the objector since "the proposed extension will not contribute anything to the privacy of both tenements". The objector further alleged that "the sole possible effect of raising this wall would be to obstruct his view of the entrance to Grand Harbour, as well as diminishing the sea breeze f lowing from the North Easterly direction." For its part, the MEPA (having issued the permit) counteracted by stating that a permit is issued on the express condition that "if the declaration of ownership, as contained in the application form, is determined as incorrect by a Court of Law, then the said Court of Law can declare this development permission as null and void ", adding that any development permission "does not remove or replace the need to obtain the consent of the land/building owner to this development before it is carried out. This development permission is granted saving third part y rights." In other words, MEPA was maintaining once again that ownership issues are ultimately decided by the Civil Courts. In its assessment, the tribunal observed that Article 68(3) of Act X of 2010 clearly provides that applicants are required to notif y any co-owner of their intentions to carry out any development relative to a site which they co- own with such co-owners. Having said that, the tribunal also noted that the Civil Code (Chapter 16 of the laws of Malta) gives a right to co-owners to raise the height of a part y wall. More so, the tribunal agreed with the MEPA that any issues regarding ownership should be dealt with before the Civil Courts. Nonetheless, the tribunal observed that the proposed raising of the wall is unacceptable in terms of planning policy since it would result in an exposed blank wall in a World Heritage Site. On this basis, the tribunal ordered the authorit y to revoke the permit. The tribunal agreed with the MEPA that any issues regarding ownership should be dealt with before the civil courts The MEPA action was instigated by a next door neighbour who complained that she could not sell her house because of the aviary where pigeons were kept Robert Musumeci MEPAwatch Tribunal revokes permit for raising party wall which would block views of Grand Harbour New Planning Tribunal should have given opportunity to all parties to present evidence