Issue link: https://maltatoday.uberflip.com/i/984659
17 LAW & PLANNING maltatoday | SUNDAY • 20 MAY 2018 IN 2012, applicant made a planning application to sanction an illegal extension to a licensed confection- ery in Zabbar. In essence, the pro- posal contemplated the intercon- nection of an already established confectionery with an adjacent ga- rage. The submitted drawings also showed a sign and a canopy on the front elevation. Following a thorough assessment, the then Environment and Planning Commission rejected applicant's re- quest on the following grounds: 1. The proposal 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'; 2. The proposal was tantamount to bad neighbour development and hence conflicted with Structure Plan policy BEN 1, which seeks to protect the amenity of existing uses; 3. The proposed development ran counter to the South Malta Local Plan Policy SMHO 02 in view of the excessive resulting floor-space in a Residential Area; 4. The canopy on the front eleva- tion was in breach of policy 15.7 of Development Control Policy & De- sign Guidance 2007 'which does not permit canopies in front of retail outlets in residential areas'; 5. The canopy was also found to be incompatible with the urban design and environmental characteristics of the area, thus running counter to Structure Plan policy BEN 2; 6. The proposed sign was out of scale. Following the Commission's de- cision, applicant lodged an appeal before the Environment and Plan- ning Review Tribunal, insisting that the permission should have been is- sued. On its part, the Tribunal re- jected the appeal after it held that applicant had ignored an enforce- ment order and carried on with an illegal activity. An appeal was subsequently lodged with the Court of Appeal. In its assessment, the Court held that the Tribunal had failed to substan- tiate its allegations insofar as the breach of enforcement order was concerned. On this basis, the Tribu- nal was ordered to reassess the case. When the case was referred back to the Tribunal for reassessment, reference was made to Article 86 (10) of Chapter 504 which states that "any application to regularise an activity or a development shall be dismissed forthwith if a require- ment in the order or notice stop- ping or prohibiting further activity, work or development, or requiring the cessation of a use, has not, both prior or during the pendency of the application, been complied with or if any penalty or other payment for which any person has become liable under this Act in respect of the rel- evant activity or development has not been paid or if the application is made to regularise a development listed in the Sixth Schedule." Meanwhile, two planning officers were summoned to witness before the Tribunal. In their evidence, both officers produced photo evidence to show that commercial activity within the extension had persisted despite appellant being served with an enforcement notice. Once again, the Tribunal held against appellant. THE Court of Appeal overturned the Rent Regulation Board decision, which allowed the tenant to vacate the prem- ises, once the landlord offered an alter- native accommodation. This was done because the Court of Appeal was not convinced that the switch was in the best interest of both parties. This was held in a judgement delivered by Mr Justice Anthony Ellul on 4 May 2018 in Carmelo Gatt, Carmel Gatt, Joseph Gatt, Paul Gatt and Antoine Gatt -v- Michael Bugeja. is judgement concerned an appeal from a Rent Regulation Board judge- ment, lodged by Bugeja, which allowed the Gatt family to take back possession of a property, which was rented to him. e original rent was Lm4 per annum and the Gatt family asked for the proper- ty back because they needed it and they were offering Bugeja a suitable alterna- tive accommodation in the same area. Bugeja had defended that action by explaining that he is a farmer and he works the land surrounding the rented property and therefore it was essential not only as a residence, but also for his work. He insisted that the alternative ac- commodation was not suitable for him and his children. e Rent Regulation Board (RRB) ar- gued that the Gatts had provided an alternative accommodation to Bugeja. e lease had originally been given to Bugeja's father and Bugeja claimed that he had always lived there; producing evi- dence of this. ere was also no evidence that the property had been poorly main- tenance. e RRB held that the alterna- tive accommodation offered was larger in size and needed little maintenance. e Board upheld the Gatts' requests to take over the rented property. Bugeja appealed the decision on the grounds that it is not true that the Gatts need the property because they have their own property, both personal and commercial, and therefore they cannot make use of Art 145 of the Civil Code. Furthermore, the property is used as Bugeja's residence and also as a farm- house. e Gatts want to demolish the property to build flats. e alternative accommodation does not fulfil the de- fendant's needs, since in reality the prop- erty is a casa bottega. e Court of Appeal in its judgement held that it is important to see what the property was used for when the rent was given in original and how it is used today. Karmenu Bugeja, the defendant's father, had receipts between 1951 and 1959 without any description of the use of the property. However, in Angelo Fenech v Peter Muscat Scerri, decided 21 March 1997, it was held that a receipt is a proof of payment and the use of the property has to be derived from the agreement between the parties. Since Bugeja al- leged that the premises is also used for agricultural use, he would have to prove this. He had testified that the land was a mile away from the premises and he worked as an impressed driver with the government, allowing him time to work the land. In the premises he breeds sheep and chicken and at a time he had horses which he used to work the land. He ad- mitted that today there are no animals, but he lives with his son on the premises. Part of it is to store his produce and ag- ricultural equipment. is was corrobo- rated by a neighbour. e Court consid- ered that this testimony was credible. Article 9(a) of the Reletting of Urban Property (Regulation) Ordinance allows the owner to take back the property for his own requirements and this must be in good faith. Furthermore, it must not be a wish but a necessity and an ac- tual need for the owner or other family members to live in said property. On the other hand the owner does not need to prove absolute necessity. e Court of Appeal pointed out that Carmel Gatt testified and explained that he has three children and his siblings also have children, totalling nine chil- dren in all. e proposed development catered for five apartments. e owner failed to prove that he is in possession of a PA permit, which would allow the development. Mr Justice Ellul upheld the appeal by overturning the RRB's decision. When landlord offers tenant alternative accommodation, this has to be done in good faith mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Permission denied due to subsisting illegal use Evidence showed that commercial activity within extension had persisted