Appeals court blocks development without courtyard

Three judges presiding the Appeals Court have held that all homes must have a courtyard, blocking a permit for the construction of houses in Xewkija that would not have such a feature.

The appeal had been filed against a decision by the General Services Board in March 2017, which had overuled Mario Sciberras’s objection to a development permit granted to Victor Vella.

Vella had applied for a planning permit to build three dwellings with pools in Xewkija, Gozo. Sciberras had objected to the proposed building on the grounds that the planned properties, which were adjacent to his own, would not have a courtyard.

According to the Code of Police Laws states that “every house shall have at its back a courtyard exclusively belonging to it” and it was on the basis of this legal disposition that the objection was made.

Vella’s application was approved by the planning authority and Sciberras had filed an appeal to this decision to the General Services Board, which confirmed the planning authority's conclusion.

“The objective of a courtyard at the rear of a building is intended to ensure light and ventilation in all rooms and parts of the building. In fact, the law provides for an exemption from such a requirement...” the board ruled.

It held that the fact that the two dwellings that are adjacent to the objector’s party wall as of a length that is less than 12 metres, the necessity of a courtyard at the rear of the said properties may be dispensed.

The lack of a courtyard at the rear of the said property did not negatively affect the sanitary conditions of the property since the constructions did not reduce the light or ventilation of the property. “Moreover, as a state of fact, given that the properties are less than 12 metres, and the law provides for an exemption from the requirement of a courtyard at the rear in such case, the General services Board considers there is no reason to uphold the objection submitted by the objector.”

Sciberras appealed the decision, arguing amongst other things, that the Board had misinterpreted the law.

The Court of Appeal, presided by Chief Justice Silvio Camilleri, Judge Tonio Mallia and Judge Joseph Azzopardi found for the appellant, saying that it was the width of the plot upon which the buildings are constructed that must be less than 12 metres and not the buildings themselves.

"The words of the law are clear and there is no room for interpretation: it is only 'when the width of the plot upon which the building is to be constructed' is small that the authorities can dispense with the need for a courtyard," the judges said.

When the law imposes a rule, and more so an exception to that rule, the interpretation must follow the strictures of the law, the court said. It is only in the case where an exception is applicable that the competent authority should investigate whether the exception would lead to harm to public health.

The court upheld the objection, revoking the decision by the General Services Board and blocking the permit.