Permit revoked since passageway missing from site plan

This notwithstanding objections from a neighbour, who alleged that he was being deprived of the enjoyment of his property due to the applicant physically restricting the pathway leading to the garage, over which objector claimed a right of way.

Notwithstanding the objections, the permit was issued subject to “saving third party rights”. More so, the permit was issued with a condition to the effect that the garage had to be used solely for the parking of private cars. 

Following approval, the neighbour lodged an appeal before the Environment and Planning Tribunal, insisting that the permit should be withdrawn. In his appeal, the neighbour stated that applicant had persisted with the illegal works during the application process. The neighbour further reiterated that the approved permit would prejudice his rights with respect to the access.  

Passageway not indicated by architect on a site plan amounts to “missing essential information”

In its assessment, the Tribunal held that planning applications are determined on planning grounds and it is up to the Civil Courts to define third party rights. In support of its decision, the Tribunal highlighted that it has no competence to dwell on property rights such as “rights of access” and “servitudes”. 

Nevertheless, the Tribunal observed that applicants are required to state whether they are the sole owners of the property subject to the application or otherwise. In this case, it transpired that applicant did not indicate what legal rights pertained to him over the access in question. 

The Tribunal maintained that, should the passage pertain to third parties, the applicant was legally obliged to submit a certificate of ownership B (when a property is owned by third parties who are known to applicant) or a certificate of ownership C (when owners of a property are unknown). Nevertheless, the Tribunal stopped short of commenting whether the non-submission of a certificate of ownership would prejudice the application.   

The Tribunal however maintained that the passageway under consideration was not indicated on the site plan submitted with the application. It was therefore concluded that the passageway – regardless of its ownership – had to be shown on the site plan since it forms an integral part of the proposal. Due to the fact that the architect failed to indicate the said passageway on the site plan, the Tribunal held that the permit should be revoked due to “missing essential information.”

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