Kiosk not illegal since no enforcement notice was ever issued

The new location for the kiosk lies also in Triq it-Trunciera, some 100 metres away, along the same Qawra promenade.

Further to the issue of the permit, a number of objectors who, for the past 16 years, were allowed by the Government Property Division to run a commercial luna park in the same location where the kiosk is to be relocated, lodged an appeal before the Environment and Planning Tribunal.

The objectors (appellants) insisted that the new kiosk location is “not more than 200 metres away from other existing kiosks” and therefore conflicts with Policy 5.3 of the 1994 “Kiosk policy” which expressly states that “No new kiosk will normally be permitted within 500 metres of an existing kiosk.”

Appellants further held that according to the North West Local Plan, “no additional kiosks to the number of kiosks, which possessed a trading licence/development permission prior to the adoption of this Plan, or another structure intended for the commercial use of the promenade and/or foreshore from Ghajn Razul in St Paul’s Bay to Salina Bay, will be allowed.”

Against this background, appellants maintained that any proposed relocation must be assessed in terms of current laws and planning regulations, which clearly stipulate that relocation may be permitted on condition that the original kiosk is covered by a planning permit. In this case, appellants contended that the kiosk in question was never covered by a planning permit and previously operated under the pretext of a “mobile kiosk”, which, according to law, may be sited in one and the same location “for a period of more than 14 days in total in any one year, not necessarily consecutively.” 

For its part, the MEPA defended the permit for relocation, stating that the decision by

the Government Property Division to move the kiosk from its previous site to the approved site was, in part, intended to compensate for the displacement of the kiosk which had to be demolished to make way for a government project which is of national importance.

Without entering into the merits as to whether the original kiosk was indeed covered by a planning permit to operate on a permanent basis, the case officer highlighted that the number of kiosks along the Qawra promenade would not be increased since the permit is intended for the relocation of an existing kiosk structure.

In its assessment, the Environment and Planning Tribunal highlighted that it would not probe into the merits connected with ownership rights since such matters fall entirely within the ambit of civil law. In other words, a planning permit is issued regardless of any title of ownership or “right of use” which an interested party may allege.

With regard to the legal status of the original kiosk, the Tribunal noted that no enforcement notice contesting its legality was ever issued by the authority. In the circumstances, the Tribunal concluded that there is no reason to believe that the original kiosk was illegal and hence the application for “relocation” was deemed acceptable in terms of current planning policies. For the above reasons, the appeal was rejected. 

Robert Musumeci is an architect who also pursued a degree in law

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