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Planning Watch | Sunday, 14 December 2008

A permit following court order


A request to alter the dimensions of an internal shaft was submitted to MEPA following a judgment dated 15 December 2004, delivered by the court of appeal. The site in question relates to a social club in Qormi, which use was not being contested. The corner building has its main entrance facing Triq il-Kbira and the other façade faces Triq Anici. The building is thus located within the Urban Conservation Area of Qormi.
A neighbour filed an objection to the development on the grounds that the proposed modifications were to affect his property without his consent. Against this background, the neighbour made reference to section 32(3) of the Development Planning Act, which establishes that when an applicant submits an application for development, applicant must certify to the Authority that he is either the owner of the site, or that he has notified the owner of his intention to apply by registered letter of which a copy must be transmitted to the Authority.
On his part, the case officer found no objection to the proposed internal alterations, since the changes which were being proposed were of a minor nature and did not run counter to established planning guidelines. Nor did the case officer made reference to the ownership issue.
However, the case officer, in his first reactions, claimed that the façade featured a number of accretions which amount to illegal development. The case officer, in fact, made specific reference to a number of projecting signs, a roller shutter, various air-conditioning units and a perspex sign – all of which were not covered by the necessary permits.
Where illegal development exists on site, case officers insist that a MEPA application cannot be processed. In these circumstances, reference is always made to circular PA 2/96 which specifically states that when an existing development is wholly or partly illegal on site, the Development Control Commission (DCC) cannot consider a development permit application relating to new development on that site, unless the illegal development is regularised. In this case, the case officer pointed out that the illegal development (the number of projecting signs, a roller shutter, various air-conditioning units and a perspex sign) could not be regularised since no request was made for the sanctioning of the said works.
In his reaction, the architect underlined that the application was made specifically on the basis of a judgement delivered by the Appeals Court of Law. Notwithstanding, the architect stated that the irregularities mentioned by the case officer were committed by previous applicants and insisted that the case officer should focus on the request which was made further to an order which was given by the Court of Appeals.
When the case was referred last Wednesday for a decision, the DCC approved the application subject to third party civil rights.

Case Implications
1) The claims raised by the neighbouring objector that the proposed works were in breach of Conditions of section 32(3) of the Development Planning Act, since the intended works were allegedly affecting a property which is not owned by applicant, are tenuous.
Section 32(3) of the Development Planning Act 1992 establishes that an application for development permission shall certify to the Authority that applicant is either the owner of the site, or that he has notified the owner of his intention to apply by registered letter of which a copy has been received by the Authority.
It must be underlined that an applicant may propose to undertake works in third party property, provided that the third parties are informed by way of registered notification. A permit does not entitle an applicant to proceed with the undertaking of the works, unless prior consent is obtained from the owners of the site. Planning permits are in fact always issued subject to third party civil rights.
2) On a completely separate note, there is a MEPA policy (Circular PA2/98 Para 2.4), which states that where part/s of a site or building is illegal, permission for new development elsewhere on the site or building should not be refused solely because there are illegalities in the building. This policy goes further to state that this rationale applies provided the granting of the permit will not physically prevent, hinder or make difficult enforcement action (removal or rectification) against the illegal parts of the building. This policy adds further that, in such circumstances, the application does not include the ‘illegal’ part/s, and the applicant was not involved in the ‘illegal’ development. In this case, the approved permit (enlargement of an internal shaft) will not hinder or render difficult any enforcement action against the illegal parts of the building. In other words, the projecting signs, the roller shutter and the air-conditioning units on the façade may still be removed without hindrance by MEPA’s own enforcement officers, irrespective of the permit which was granted.
The DCC was only correct in its decision. It is important however that this principle is adopted without exception – not only when there is a court order to execute specific works.

Robert Musumeci is an architect. His main area of practice focuses on MEPA development applications.

robert.musumeci@rmperiti.com

 


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