by Martina Francica - Paralegal
It is a general principle in local planning law that when determining whether a planning application brought before the Planning Board is to be acceded to or rejected, the Board is generally not expected to delve into the verification of title of the applicant.
Article 72(1) of the Development Planning Act (Chapter 552) holds that any development approved shall be without prejudice to third party rights and shall not in any manner constitute or be construed as a guarantee in favour of the applicant as to the title to the property. Through this one understands that despite in terms of planning laws, sanitary laws, policies etc., a development may take place since it is in perfect conformity with all requirements, it does not necessarily mean one is free to proceed with the works. For example, if one’s permit allows for the opening of apertures overlooking a third party property, or if the property has an approved entryway/ garage entrance requiring access from a private road/ alley, it does not mean the permit holder has a right of access in terms of the law.
Such third party rights disputes fall outside the competence of planning law and are regulated by Civil Law in our Courts of Law. That being said, in a recent landmark judgment in the names of Natalino Agius et vs L-Awtorità tal-Ippjanar decided by the Court of Appeal (Inferior) on the 17th November 2021 (App. num. 22/2021), Chief Justice Mark Chetcuti, gave an interpretation which to a certain extent goes against the third party rights principle, albeit in particular circumstances.
The Board itself must analyse title on a prima facie basis as held by article 71(4) of Chapter 552. The latter holds that in his application the applicant must either satisfy the Authority that; (i) he is the owner of the site or that he has notified the owner of his intention to apply by registered letter of which a copy has been received by the Authority and that the owner has granted his consent to such a proposal; or (ii) he is authorised to carry out such proposed development under any other law or through an agreement with the owner.
This clearly indicates that the permit holder does not have to be the owner of the site or premises upon which the development is to take place. A practical example of this is when parties are still in a promise of sale phase, and the sale of the premises has not yet taken place, the prospective buyer applies for the necessary permits under his own name, despite not yet being the owner.
Taking the above into consideration, one is not exempted from lying or obtaining a permit in mala fede, as such permit would be subject to revocation in terms of the Article 80 procedure (Chapter 552). This procedure is one of extrardinary nature and goes beyond policies and planning law, and is to be applied in very restricted circumstances.
In Agius vs Awtorità tal-Ippjanar, the appeal filed was based on determining whether there was fraud or misleading information which resulted in the granting of the permit in question. The appellant and the permit holder were concurrently in civil proceedings to determine the merits of the particular permit pertaining to ownership.
The court made reference to the case Joseph Azzopardi vs l-Awtorità ta’ Malta dwar l-Ambjent u l-Ippjanar decided on the 10th December 2015 by the Court of Appeal (App num. 46/2015), in which it was held: “fejn hemm kontestazzjoni dwar it-titolu fuq il-proprjeta jew xi dritt reali jew anki personali fuq l-istess proprjeta li fuqha tkun mibnija l-proposta, l-Awtorita ma hix fdata tiddetermina l-kwistjoni ta’ natura civili hi, izda ghandha tindirizza l-applikazzjoni biss mill-lat ta’ ippjanar u kull permess li talvolta jista’ jigi approvat, hu attwabbli biss fin-nuqqas ta’ oppozizzjoni minn min ikun qed jivvanta dritt fuq il-proprjeta li fuqha jkun inhareg il-permess ta’ zvilupp.”
As a result, the presiding judge held that since the intention of the appeal itself was to determine whether there results fraud, misleading information in terms of Article 80, it had to wait to see whether such fraud or misleading information resulted from a court judgment in this sense. Since the civil proceedings between the parties were still ongoing, the court depended on the outcome of the case. Therefore the Court felt that the Environment and Planning Review Tribunal had to consider such points to determine whether to put the case on hold (soprassessjoni).
One must read and analyse this judgment very carefully, so as not to interpret the court’s reasoning as a new general direction which goes against the principles outlines in article 72(1) of Chapter 552 as detailed above. In fact in it’s reasoning the court further quoted from the Azzopardi judgment in that interpreting this judgment loosely would result in a chaotic system whereby any third party wanting to prejudice a permit may simply put forward an allegation relating to the property.
“L-obbligu tal-Awtorita hi li f’kaz car ta’ nuqqas ta’ disputa fuq it-titolu tas-sit, jekk jirrizulta li l-izvilupp qed jintalab fuq sit ta’ terz li qed joggezzjona ghall-izvilupp, l-Awtorita ma ghandhiex tintratjeni applikazzjoni fuq il-bazi teoretika biss ta’ dak li jista’ jigi zviluppat. Il-kwistjoni pero hi differenti meta l-partijiet mhix konkordi fuq it-titolu jew xi limitazzjoni fuqu u ma hemmx prova cara dwaru. F’dan il-kaz l-Awtorita hi libera li tiddeciedi x’inhu fattibbli u sta ghal partijet li jirregolaw ruhhom fuq kwistjonijiet purament ta’ natura civili.” (Azzopardi vs Awtorita ta’ Malta dwar l-Ambjent u l-Ippjanar et)
Dr Martina Francica is a Paralegal at PROLEGAL Advocates.
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