Permission to repair punctures issued following Court direction

In 2012, applicant had submitted a development planning application contemplating the change of use from a garage to ‘a place to repair punctures and wheel alignment’. The garage was located within a designated residential area. For this reason, the Environment and Planning Commission refused planning permission, citing the following reasons:

1.  The proposed change of use was deemed unacceptable since applicant’s premises were situated in a residential area;

  2.  The proposed activity was considered to have ‘a deleterious impact on the amenity of the area and of existing adjoining uses by virtue of noise, vibration and operating times’, hence tantamount to ‘bad neighbour development’;

  3.  The new use was in conflict with Structure Plan Policy BEN 1 which seeks to protect the amenity of residential areas;

  4.  The proposal was also in breach of the Gozo and Comino Local Plan Policy UCA General Provisions GZ-HOUS-1;

Applicant lodged an appeal with the Environment and Planning Review Tribunal, insisting that the Commission should have issued the permit. Applicant, now appellant, submitted a noise and ventilation report containing the signature of a warranted engineer. This report listed the equipment that would be employed once the premises were eventually in operation. The report also stipulated that the envisaged background noise was calculated at 38dBA ‘and therefore not expected to be of any nuisance’.  Appellant reminded the Tribunal that light weight industrial use (such as that under examination) was deemed acceptable in residential areas as long as the gross floor area of the premises does not exceed 50 square metres and no  heavy duty or noisy electrical / mechanical equipment is used. It was further argued that the proposed activity would not entail ‘the generation of combustion, chemical or particulate by products’.

Still, the Tribunal was not convinced that applicant would not make use of any pneumatic equipment once the premises are fully operating. For this reason, the Tribunal rejected applicant’s appeal.

On his part, applicant contested the Tribunal’s decision before the Civil Court of Appeal (Inferior Jurisdiction). In his submissions, applicant claimed that the Tribunal had ignored the engineer’s report.

In turn, the Court of Appeal noted that the Tribunal had based its decision on the pretext  that pneumatic machinery would be likely employed, even though there was no factual evidence to substantiate such allegations. For this reason, the Court referred the case back to the Tribunal.

Upon reassessment, the Tribunal concluded that there was no reason to doubt the noise and ventilation report which held inter alia that the operations did not envisage the use of  pneumatic equipment. Against this background, the Tribunal ordered the Planning Authority to issue the permission.

Dr Robert Musumeci is an advocate and a perit having an interest in development planning law

[email protected]