MEPA Watch | Sunday, 22 March 2009

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Robert Musumeci explains how the illegal canopies on the Marsalforn promenade were sanctioned after four years, even though these could been sanctioned within 30 days according to L.N. 115 of 2007 DEVELOPMENT PLANNING ACT (CAP. 356). This decision also shows that Circular PA2/96 should be repealed

Case Details
This week, MEPA had to decide on three different applications all related to the sanctioning of illegally placed tented structures, serving three different restaurants on the Marsalforn promenade. These applications have been ever pending since 2005.
On one occasion, the Planning Appeals Board had already refused a similarly placed shading structure in the same location. This article focuses on one of these applications.

Case Officer’s comments
In this case, the Directorate’s representative underlined that the restaurant to which the canopy relates is subject to an enforcement notice. The illegalities referred to by the case officer include amongst others, the timber poles which were fixed to delineate the tables and chairs in front of the restaurant named in the application.
In the meantime, MEPA also requested the Estate Management Department to terminate the encroachment agreement relating to the site on which the tented structure was placed. To strengthen its arguments with the Estate Management Department, MEPA had underlined that the seaward side of the shore should be left free from tables and chairs and the areas for tables and chairs should be placed just in front of the restaurant itself, and not across the road towards the sea shore touching the promenade.
According to the same officer, the tented structure would interfere with public enjoyment of the promenade. Consequently he felt that this would therefore not be in the interests of the amenity of the area and henceforth runs counter to Structure Plan Policy BEN1. The case officer also stated that the proposal in question would also detract from the amenity given to fishermen, fishing boats and to the whole fishing industry.
In his report, the case officer also indicated that the proposed canopy runs counter to Structure Plan Policy CZM3 on the basis that public access to the foreshore would be restricted. In other words, the proposed development would lead to the encroachment of the building towards the seashore, which in this case is an area identified by Local Plan for Gozo and Comino as a Public Coastal Access.
The case officer also passed comment on the visual aspect of such a structure in that such canopy would create an adverse visual impact to the coast, which is incompatible with the urban design and environmental characteristics of that same area.
MEPA’s decision
The application was scheduled for a decision before the DCC last Tuesday. This time round, the DCC did not pursue the requests made to the Lands Department to terminate the encroachment agreements with the private owners. A contrario senso this time round, the DCC stated that that the proposed proposals respect the encroachment concessions approved by government itself. The DCC therefore accepted the proposed canopies subject to the condition that a 1.5m passageway from the foreshore is maintained, and that the canopy should be earth coloured, bearing no advertising signs and removed in the winter months.
On an equally significant note, the DCC stated that the illegalities mentioned by the case officer relate to the restaurant per se and not to the canopy as such, despite the fact that the restaurant (with the alleged illegalities) and the canopy in question are linked to the same applicant.

Robert Musumeci’s observations
This planning decision goes to prove that despite there being a number of illegalities on a site belonging to an applicant, but which do not affect the proposal under examination, the application should still be processed. This principle however runs counter to a circular PA2/96 issued by MEPA itself, stating that “when existing building development on a site is wholly or partly illegal, the Development Control Commission will not consider a development permit application relating to new development on that site, unless the development is regularised”. Hence, this circular today holds no water and should undoubtedly be repealed.
Despite the fact that the Appeals Board had refused a similar application submitted in 1999, the decision delivered by the DCC can still in fact be justified on legal grounds, if one had to challenge this decision. In particular, L.N. 115 of 2007 DEVELOPMENT PLANNING ACT (CAP. 356) Development Notification Order, 2007 CLASS 15 entitled Tented Structures provides that tented structures may be erected on land for not more than six (6) months in any one (1) calendar year. Tented structures are taken to mean structures made of fabric, plastic or similar light materials.
It is of paramount importance to point out that the use of the tented structure and the land that it covers must be ancillary to the existing use of land or building, the tented structure would not impair visibility at a road junction or otherwise pose a threat to the safety of pedestrians or vehicular traffic, and the structure must be completely removed and the land used or affected must be fully restored to its pristine condition, before the expiry of such six-month period.
It is also interesting to note that legally, all developments falling within the Notification Framework should be given a permit within 30 days. As stated in LN 115 of 2007, the law obliges the Authority to respond in writing to a notification within 30 days after the Authority has validated the notification.
Consequently, it may be safely stated that in the case under review, the Marsalforn canopy which satisfied all the criteria defined in the Development Notification Framework should have been sanctioned in thirty days, and not four years, should it have been realised that the request could be submitted under the Development Notification framework.

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

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