A court of appeal has confirmed that the Planning Authority acted illegally when it allowed the partial demolition of the former Sea Malta building in Marsa, acting on a report by an Enemalta architect that the structure was dangerous, rather than appointing an architect of its own.
The court also ruled that the juridical interest of those challenging that decision still existed even though the building had been demolished.
The Kamra tal-Periti (Chamber of Architects) together with environmental NGOs Din l-Art Ħelwa and Flimkien ghal Ambjent Aħjar had filed proceedings against the Planning Authority and Enemalta over the demolition of the building along Xatt l-Għassara tal-Għeneb, Marsa.
The structure was built in 1948 as a warehouse and recreational facility for the British Navy, Army and Air Force. It was best known as housing the NAAFI stores.
Enemalta had sought to demolish it by means of an application for a Development (Removal of Danger) Order to the Planning Authority.
The Chamber of Architects had immediately objected, saying this was a fine example of modernist architecture which also happened to be within a protected zone designated as an “area of high landscape value of the harbour fortifications.”
By the time the matter reached court, the demolition had gone ahead.
Last November, the First Hall, Civil Court upheld the applicants’ claim, declaring that the Authority could only have issued such an order to demolish “after a detailed onsite inspection by an architect or civil engineer appointed by the Authority.”
A former PA chief executive had testified that it was customary for the Authority to rely on architects’ reports attached to applications, rather than engage an independent architect to inspect the site.
But the first court concluded that the Authority’s order was ultra vires and consequently all works undertaken to demolish the Sea Malta Building were carried out illegally.
Judicial review important, even though the building is gone
Both the Authority and Enemalta appealed on various grounds.
They argued that the chamber and the NGOs lacked juridical interest not only because they had no personal interest in the matter but also because by the time they filed the case, the building had been demolished.
Thus this was purely “an academic case,” argued the appellants.
However, the Court of Appeal, presided by Chief Justice Mark Chetcuti together with Justices Joseph R Micallef and Tonio Mallia, confirmed the reasoning of the first court, observing that even if the situation was irreversible, judicial review of the Authority’s decision was nonetheless important to determine whether the government entity had acted illegally or not.
The crux of the matter concerned the mandatory legal provision which stated that emergency works to remove a dangerous structure could be greenlighted only after a detailed onsite inspection by the architect or engineer appointed by the Authority.
In this case, architect David Mallia, in charge of the Dangerous Structures division at the PA, had visited the Sea Malta building but had only managed to inspect the front part.
Access to the rear end of the building was “blocked.”
So Mallia had taken a boat trip to view the building from the sea, observing that façade overlooking the water, evaluating its condition.
He later explained that that visit confirmed the state of the building as shown in the photos annexed to the report.
But he had not entered the rear end of the building and nor did he prepare a report about his visit that day.
The Authority later sought to justify such shortcomings by saying that “an inspection of the site was not carried out because of the level of detail of the structural analysis which had been carried out by the independent architect and the quantity of illustrative material which it contained.”
Yet the architect who drew up the report was not independent but tasked by Enemalta, the court observed.
Once the Authority acted ultra vires, ignoring that mandatory legal requirement, the demolition works were unlawful.
Enemalta argued in its appeal that the appellants had rushed to the media with the first judgment, publishing the story when the respondents still had a right to appeal that decision.
However the judges observed that such court reports were in line with the right to freedom of expression. Judgements of the first courts were frequently reported by the media even when proceedings were subject to appeal.
The court finally turned down the appeals by both the PA and Enemalta with costs.
Lawyers Claire Bonello assisted the applicants.