Issue link: https://maltatoday.uberflip.com/i/702141
48 maltatoday, SUNDAY, 10 JULY 2016 Opinion T he Rent Regulation Board presided by Magistrate Monica Vella held that a property which is complementary to the principal place of business cannot be deemed to be not in use. This was decided on 16 June, 2016 in Adelaide Ellul et -v- Alfred and Josephine Cassar. The applicants had asked the court to take back in possession a property in Marsa, since it was not being used as an insurance agency. The defendants reacted by filing a statement of defence, stating that the property in question was never used as an insurance agency, but is used as a workshop, and opened regularly. The board noticed that in the application, this had mentioned erroneously that the defendants held the shop. Another error was that the property was never used as an insurance agency. A witness from the Malta Financial Services Authority testified that the Authority did not issue a licence for the property to be used as an insurance agency. It is true that an application was made before MEPA, but it is not conclusive evidence that the property was ever used as an insurance agency. Furthermore, the evidence showed that the property was being used as an engineering workshop. As such this is not a simple shop where products are sold. Magistrate Vella held that if one were to consult a dictionary and look up the word shop, it is described as a place where products are sold and bought. The definition of workshop in a dictionary is where products are made and fixed. Therefore, there is a difference between the two and the aims for renting the premises is different. What applies to a shop, does not necessarily apply to a workshop. The board pointed out that the principle of non-use of a premises must result from the evidence produced and therefore it was bound to analyse the evidence. The opening hours of a workshop may be different from those of a shop. In this particular case the workshop complements another shop that the defendants run, which is a minute's walk away. The premises are used for repairs and therefore, cannot be open regularly. The board commented that this version is credible. Furthermore the property was used as a workshop/ store from the beginning of the lease, 37 years ago. Around 14 years ago the defendants asked the applicants if they could convert the premises into an insurance agency. They carried out the works to convert the building into an office, but the defendants stopped and continued to use the same premises as a workshop. The board commented that this took place 12 years before the applicants filed their action in court. This meant that for 10 years they had accepted the situation and did not take any action. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Property is deemed to be commercial if complementary to the principal business A n attempt to sanction an extension to a confectionery was turned down by the then Malta Environment and Planning Authority on a number of counts. The drawings show an interconnected garage and a confectionery, without evidence of a planning permit. The Commission observed that the extension was unacceptable in a residential area as 'it would have a deleterious impact on the amenity of the area and of existing adjoining residential uses'. To support this reasoning, the Commission made reference to Structure Plan policy BEN 1, which specifically seeks 'to protect the amenity of existing uses'. In addition, reference was made to Policy SMHO 02 of the South Local Plan which limits commercial f loor space to 75 square metres in designated residential zones. The Commission also objected to a canopy which was found to be installed without a permit. In this regard, the Commission held that the canopy was 'incompatible with the urban design and environmental characteristics of the area'. Following the Commission's decision, the applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the commercial f loor area amounts to 65.6 square metres. On the other hand, the applicant contended that the 23 square metre store should be excluded for the purpose of computing the allowable commercial f loor area. In reaction, the Authority pointed out that the application could not be considered further since the applicant failed to request the sanctioning of the illegal canopy. The Authority pointed out to the Tribunal that these structures are only allowed within Town Centres, Entertainment Priority Areas, Tourism Zones and other areas specifically indicated in the Local Plans. As to the area computation, the Authority underlined that the store had to be taken into account. Consequently, the commercial area totalled 122 square metres. Concluding, the Authority argued that such an area increase 'has a negative impact on the amenity of the surrounding residential area as it generates more noise and traffic.' In its assessment, the Tribunal immediately observed that the Commission was correct to refuse the application on the basis that the applicant failed to request the sanctioning of 'all illegalities' and thus refrained from probing into the merits of the appeal. Following the Tribunal 's decision, the appellant appealed the decision before the Civil Court, insisting that the 'illegalities' being referred to in the Tribunal 's decision were not clearly pinpointed. In turn, the Court held that the Tribunal was obliged to take note of any illegalities that may exist on site, subject to the parties to the appeal being informed and having an adequate opportunity to react. In this case, the Court found that the appellant was not given adequate opportunity to defend himself with respect to the allegations raised by the Tribunal. In the circumstances, the Court ordered that the case be reassessed by the Tribunal. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree Robert Musumeci Appellant must be given opportunity to defend his case Malcolm Mifsud mmifsud@mifsudadvocates.com.mt complementary to the principal business mmifsud@mifsudadvocates.com.mt complementary to the principal business complementary to the principal business The court found that the appellant was not given adequate opportunity to defend himself The property was used as a workshop/ store from the beginning of the lease, 37 years ago