Application turned down due to illegalities

A planning application to sanction structural modifications which were carried out in a licensed restaurant had been turned down by the Malta Environment and Planning Authority (the MEPA). The application also included a request to sanction an enclosed balcony at first floor. The restaurant in question is located in Marina Street, overlooking the promenade of Marsaskala.

To justify its position, the Authority had held that “the enclosed first floor balconies do not compliment the rest of the building” adding that the balcony structure would occupy more than 40 % of the façade width, thus running counter to Policy 11.5 (a) of Development Control of the Policy and Desig Guidance 2007. Moreover, the Authority observed that the applicant had failed to obtain a Tourism Policy Compliance (TPC) Certificate.

In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that he was willing to reduce the balcony area to 40% of the façade, thus “bringing it in line with the Policy and Guidance regulations.”

More so, applicant, now appellant, submitted that a tourism compliance certificate was issued by the Malta Tourism Authority in the interim period.

In reply, the Authority requested the Tribunal to stop short from deciding on the merits of the case, alleging that applicant had made no attempt to sanction the illegal canopy on the front part of the premises. The Authority insisted that the canopy was larger than what was approved in a pervious permit.

Besides, it was alleged that applicant had installed an advert sign without obtaining planning consent. The Authority thus contended that Article 14 (1) of LN 514/10, which expressly provides that “where illegal development is present on a site, new development on that same site cannot be considered unless it is regularized,” should apply in the said circumstances. Concluding, the Authority stressed that any attempt to address the design of the balcony at such late stage “does not justify permit approval since the works were carried out illegally and therefore should be removed.”

In its assessment, the Tribunal highlighted that, as previously observed by the Authority, the appellant had evidently failed to take any concrete action with regard to the site illegalities prior to submitting his application. Against this background, the Tribunal felt that it should not delve into the merits of the appeal given that “where illegal development is present on a site, new development on that same site cannot be considered unless it is regularized.”

Dr Robert Musumeci is an advocate and a perit