The owner of a Pietà property is calling upon the authorities to settle damages after his home was dwarfed by a next door development which steamed ahead pending “exaggerated and inexplicable delay” by the planning review board.
Frank Zammit sought legal advice when the owner of a neighbouring tenement on Hookham Frere Street applied for a permit to transform the building within an urban conservation area into a maisonette, with underlying basement and seven overlying flats.
The height of the new project would block out sunlight to Zammit’s home, rendering his solar panels practically ineffective.
The Superintendent of Cultural Heritage also objected to the voluminous project, stressing the need to abide by applicable policies.
The application was filed in 2019 and the following year all objections were overruled and policies cast aside by the Planning Authority’s Development Commission, which greenlighted the project in April 2020.
Zammit turned to the Environment and Planning Review Tribunal which, two months later, upheld his appeal and suspended the development permit for three months, declaring that the project would result in the “irreversible and irremediable loss of a building of historic and architectural value”.
Moreover, the commission observed that should the building proceed while the merits of the case were pending at appeal, it would be impossible to assess the value of the property.
The tribunal, chaired by lawyers Joseph Borg and Abigail Bugeja and architect Robert Sarsero, eventually rejected the appeal in September 2020.
Zammit took his case a step further by filing an appeal before the Court of Appeal.
In February 2021, that court, presided over by Chief Justice Mark Chetcuti, decided in favour of the appellant, declaring that the tribunal had wrongly applied the definition of “zone of influence”.
The case was sent back to the tribunal to be decided afresh.
Yet, in spite of several attempts by Zammit’s lawyer, Claire Bonello, for the tribunal to appoint the case for hearing, it was only on June 30 that the case resumed.
Meanwhile, the building next door to Zammit’s home went ahead uninterrupted.
Worse still, when the parties finally appeared before the tribunal, the developer’s architect refused to make his arguments orally, requesting a postponement to do so in writing, claiming that he wished to seek legal assistance since he had not done so earlier.
The appellant’s lawyer objected, minuting that there was no need for further submissions because all arguments had already been thrashed out and nothing had changed since the judgment of the court of appeal.
The legal representative of the Planning Authority backed the architect’s request, saying that there was no delay since that was the first hearing following the court’s decision.
And second time round, the tribunal was chaired by Roderick Spiteri with lawyer André Borg and Alex Zammit as members, the PA representative said.
The case resumed in September when final arguments were debated and the appeal was put off for judgment.
The written submissions by the developer’s architect never materialised.
Five months down the line, the long-awaited decision by the EPRT is still to be delivered but, meanwhile, the new building has been completed.
Such “exaggerated and inexplicable delay” by the tribunal had effectively reduced Zammit’s right of appeal to “a purely academic exercise”, argued his lawyer in a judicial letter filed against the PA, the EPRT and the State Advocate calling upon them to step forward within 10 days to settle damages.
It was a foregone conclusion that the tribunal would not order the developer to demolish his building.
The delay met by Zammit went directly against the EPRT Act which states that “the time within which the tribunal shall take its decisions shall be reasonable depending on the circumstances of each case”.
This was not a particularly complex appeal and the appellant had a legitimate expectation that the relative bodies would apply the local plan and policies consistently rather than issue the permit “in the most arbitrary and unreasonable manner”.
Moreover, the appellant had later found out that two members on the tribunal, namely Joseph Borg and Alex Zammit, were PA employees on unpaid leave and, thus, had a conflict of interest in the case.
This meant that the tribunal was not independent and impartial, going against principles of natural justice, argued the lawyer, adding that she would have sought their recusal had their position been known beforehand.
At the end of the day, Zammit was being deprived of the peaceful enjoyment of his home and that spelt a breach of his fundamental right to property as well as fair hearing, said his lawyer, also reserving the right to take further legal action.
Bonello signed the judicial letter.