Issue link: https://maltatoday.uberflip.com/i/989894
15 LAW & PLANNING maltatoday | SUNDAY • 3 JUNE 2018 A planning application contemplat- ing the extension of an "outdoor ca- tering-area to an existing restaurant (class 4d)" was turned down by the Planning Commission. The said catering establishment is located adjacent to other similar outlets bordering a designated pub- lic open space in Marsascala. In order to justify its decision, the Commission underlined the follow- ing reasons: • The proposal ran counter to the provisions of policy SMSE 04 of the South Malta Local Plan which designates the site in question for 'communal ac- tivity and children's play area'; • The proposal was in breach of SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas; • The proposed tables and chairs ran counter to the Poli- cy for Outdoor Catering Areas on Public Open Space, which states that outdoor catering areas shall not obstruct access to public amenities and shall not obstruct pedestrian access to street furniture. In reply, applicant filed an appeal with the Environment and Plan- ning Review Tribunal, maintaining that permission should have been granted. Applicant, now appellant, argued that the ' the placing of ta- bles and chairs around the square was done by all the catering estab- lishments which are located there'. In addition, it was highlighted that the proposed development would neither encroach on the existing playground, nor would 'it obstruct any access to the facilities which are located there'. For his part, the case officer rep- resenting the Authority counter ar- gued that the proposed tables and chairs would occupy a public urban open space 'that the Local Plan des- ignates as a space for communal ac- tivity and children's play area'. The Tribunal was also reminded that applicant's outlet was already equipped with an outdoor seating area. Concluding, the officer warned that the proposal would further en- tail 'the removal of existing public benches present in the piazza'. In its assessment, the Tribunal observed that the proposal would indeed result in the encroachment of an otherwise designated public open space. After noting that applicant had al- ready obtained permission to place tables and chairs in front of his premises, the Tribunal highlighted that the occupied depth was similar to that for the nearby outlets. Acceding to applicant's request, according to the Tribunal, would encroach onto the buffer zone sand- wiched between the already permit- ted location and the rest of the des- ignated public space. On this basis, applicant's request was rejected. THE Rural Leases Control Board, presided by Magistrate Dr Francesco Depasquale, ordered a tenant to va- cate land, after it was proved that an illegal construction was built on it. This was decided on 30 May 2018 in the case Raymond Xerri -v- Anthony Delia, Martin Vassallo and Raymond Delia. Raymond Xerri filed an application asking the Board to take possession of his land rented to the three defend- ants in March 1997. He claimed that the land was not being used as it was intended. The defendants filed a statement of defence and in it they claimed that the land was used according to how they agreed and with the applicant's con- sent. The Board had received a copy of the lease agreement which established that the rent was Lm100 a year and the lease was extended every year. In fact, the receipt book reflected this. The government had taken Xerri's land therefore, Xerri asked the de- fendant to give back the land, for his use. He also told the Board, that he had agreed that the defendants build a single room, but they built more than one room, which forced Xerri to report the matter to MEPA. The Board had received copies of receipts for years from 1997 to 2006, which were paid by Twanny and Ray- mond Delia. The Board had appointed technical experts to report on the land. The ex- perts described the land subject to the judgement and held that the defend- ants insisted that the new rooms they found, replaced the two rooms that existed. There were also two stables. The land was also tilted, and potatoes were the produce. The applicant, Xerri emphasised that the lease was extended year by year and therefore, he had a right to reclaim the land for himself. The Board explained that was not competent to order the defendants to vacate the land on ground that the lease was terminated on the ground that they did not have a title. This would have to be decided by another court. Magistrate Depasquale, analysed whether Xerri had authorised the de- fendants to build on his land, includ- ed two stables. Following Xerri's report to MEPA, the defendants were forced to demol- ish these buildings. The Court's experts did verify these stables did exist through photos. Such buildings are not allowed since the land is in an Outside Development Zone. Therefore, Xerri managed to prove that the defendants were in breach of the lease agreement. The Board also took into considera- tion that Xerri wanted the land to de- velop it into a cow farm, however, the application was rejected. The applicant and his son, were forced to purchase land to have a cow farm. Therefore, the Board was not convinced that the applicant did not need the land for himself. The Board turned down the defend- ants' pleas and upheld the applicant's claim to repossess of the land and gave the defendants three months to vacate the land. Agricultural lease is terminated due to illegal construction 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 to extend area for tables and chairs denied