Posted Friday, May 31, 2019
When permission is requested on site with illegalities

At issue was a planning application which, prima facie, appeared not to be very straightforward. According to the proposed description on the application form, applicant sought to widen a gate and construct a meter room in an agricultural field situated outside the development zone of Marsascala. Nevertheless, the Commission turned down the said application after it held that the site was characterised by a multitude of illegalities.

In this regard, the commission made reference to the presence of ‘several structures on site’, ‘the formation of passages’ as well as excavation works which allegedly were carried out without due authorisation. In addition, the Commission observed that applicant had demolished a stretch of rubble walls, though these were protected under Legal Notice 160 of 1997 (which was eventually amended by virtue of Legal Notice 169 of 2004).

In the said Legal Notice, traditional rubble walls are afforded protection due to their historical and architectural importance, their contribution to the character of rural areas, their affording a habitat for flora and fauna, and their vital importance in the conservation of the soil and of water. More so, the proposal was found to be in breach of  policy 2.9 of the Rural Policy & Design Guidance (RPDG) 2014 since the proposed gate was higher than what was permitted, namely 1.2 m.

In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that permission should have been granted. In his application (rikors), applicant (now, appellant) submitted that the illegal developments mentioned by the Authority, which included  the formation of passages and the built structures, were located in third party property. Appellant clarified, however, that this third party property had a right of way over his field. As to the proposed gate, applicant contended that this was aligned ‘with the exterior face of the rubble walls’ and was thus considered to be visually acceptable.

In reply, the Authority reiterated its previous concerns. The Tribunal was reminded that the unauthorised development could not be justified, all the more so since applicant’s intentions to sanction the illegalities were not made known at the outset of the application as required by law. The case officer underlined that ‘every proposed development (including that to be sanctioned) has to be mentioned in the proposal and reflected on the proposed plans’, failure which the application cannot be processed further.

In its assessment, the Tribunal took cognizance of the arguments brought forward by appellant and the Planning Authority. The Tribunal assessed that the site in question was characterised by a multitude of unauthoried works, not least a passageway which was extended without a planning permit. The Tribunal made specific reference to Regulation 17 (1) of Legal Notice  162 of 2016, which states that ‘when an application is submitted on a site which is subject to an enforcement notice, the Planning Board may dismiss the application unless the illegal development is included for sanctioning and, or any payments due as a result of any enforcement notice on site, are settled prior to the issue of the permission.’ For this reason, the Tribunal held that the Authority was correct to dismiss the planning application.

 
Avv. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
This article may also be accessed on Malta Today.  
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