An appeals court has thrown out a last-ditch attempt by the Marsaxlokk local council to prevent an 18th-century barumbara from being swallowed up by encroaching development.
The Barumbara ta’ Lambert is a unique structure with a pigeon loft of historical and architectural value, located on the corner of Triq Tax-Xerriek with Triq il-Luzzu in Marsaxlokk.
The case dates back to 2017 when the owner of the site, Monica Cassar, filed a planning application to sanction changes to an existing building and build an extension to the first floor as well as a roof level. These changes had been approved in a previous planning application, but the time to execute the permit had since elapsed, necessitating a fresh application.
Residents who spoke to Times of Malta said that originally the barumbara was a free-standing structure with an archway, however, it was privately acquired in the 1970s and a garage, as well as a dwelling, started to be constructed around it. Work on the structure was never completed and remained in its unfinished state for some 50 years.
In 2017, the current owner applied to finish the abandoned works and build an additional level, which would see one side of the barumbara being enveloped almost entirely by the new development.
The planning authority’s case officer recommended the project for refusal, saying that the development would “detract from the historical value of the building” and therefore detracts from planning policies which aim to safeguard and enhance cultural heritage.
The Superintendence of Cultural Heritage also originally objected to the proposal, citing that previous attempts to construct the first-floor level had already been refused by the PA.
“The superintendence objects to the proposed development application and insists that all changes carried out on this footprint that are not in keeping with any valid development permit are to be reversed,” the SCH said in its original submission.
“Furthermore, most of the approved changes under the previous (now expired) permits which impact the façades are objectionable and should not be reconsidered for approval. The superintendence also notes that the submitted drawings do not faithfully represent the original existing façades as shown in the photographs. Discrepancies are also noted between the existing/approved and proposed drawings submitted.”
However, the SCH later retreated on the objection and gave the plans clearance after “clarifications” were made by the architect.
After the planning application was approved two separate appeals were filed to the Environment and Planning Review Tribunal, one by the Marsaxlokk council and another by third party residents, but both of these failed to get the planning decision overturned. In a last-ditch attempt to get the permit revoked, the council took the PA to the Planning Appeals court, where it argued that the review tribunal had ignored enforcement orders on the site, that the structure was obstructing the garage of a third party resident, that residents’ rights to enjoy their property were being infringed upon and that the SCH’s objection to deny the application on heritage grounds had been ignored entirely.
"As the structures were built according to the original planning permission, then the applicant’s rights could not be revoked"
The court ruled that on the issue of enforcement notices and conflicting planning permits, the council’s argument lacked merit and that the tribunal had concluded that the original structures had been built according to a permit issued in 1973 which had been submitted prior to an application for the third party property.
The court highlighted it was not in a position to pass ruling on whether planning permission granted decades earlier was based on good or ideal policy, because once a planning permit is issued, then this is an acquired right granted to the applicant.
As the structures were built according to the original planning permission, then the applicant’s rights could not be revoked.
Additionally, the court found that the council’s assertion that residents were not given priority in the consideration was a point of fact in terms of planning and was not an issue that has grounds for appeal at law.