XUEREB v. MALTA
Inadmissible
Geoffrey Valenzia;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
The applicant, Mr Angelo Xuereb, is a Maltese national who was born in 1952 and lives in Lija. He was represented before the Court by Dr P.J. Galea, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of a property in Sliema. On 20 December 1985 the applicant applied for a permit for the purposes of developing his property. On 24 July 1986 the Planning Area Permits Board (“PAPB”) issued a permit “to erect shops, dwellings and garages for private cars, subject to [the] conditions on form TH and as per [the] plans submitted and amended”. Thus, the applicant was authorised to build “four floors from [the] highest street level”. The permit was valid for one calendar year. On 29 March 1987 the applicant applied for another building permit in relation to the same property. On 15 September 1988, the Building Inspector and the Sanitary Engineering Officer requested the applicant to put a stop to the construction, since it was being carried out without the necessary permit. On 16 November 1988 the PAPB issued a permit under certain conditions, namely “to carry out extension of garages, shops and apartments, as per [the] plans submitted with [the] original application and [the] fresh plans submitted, subject to [the] conditions on form TH, in accordance with departmental alignment, corner site with splay. [The] height of the building should not exceed five floors (19.25m) from [the] highest street level”. This permit, valid for two years, was issued on the basis of the plans and elevations submitted. However, along with the plans, the applicant submitted a “section drawing” which was not in conformity with the elevations. In consequence, the maximum height of five floors approved in the permit (in conformity with the elevations submitted with the permit) was illustrated differently in the section drawing, namely in a way which included an additional floor. The applicant claims that he had started work on the proposed project. Two weeks later, by a letter dated 30 November 1988, having noted the discrepancy, the authorities decided to withdraw the said permit. The latter was replaced by another permit which ordered that the maximum height of the structure could not exceed five floors from the level of the adjacent roads. Since the adjacent roads had different levels, according to the applicant, this alteration of the permit had the effect of reducing the proposed construction by one storey (allowing four instead of five storeys), as well as making the building of another block impossible. According to the Government, the applicant constructed two floors in excess of what was permitted. On 11 October 1989 the applicant instituted ordinary civil proceedings, arguing that the replacement of the permit of 16 November 1988 was abusive, unlawful and ultra vires. These proceedings are still pending. On 7 November 1989 criminal proceedings were instituted against the applicant for illegal construction carried out before 16 November 1988, following the issuance of the permit of 24 July 1986. These proceedings were suspended sine die for a number of years pending the outcome of civil proceedings (mentioned above) but were eventually resumed. The proceedings are still pending. In February 2006 the applicant instituted constitutional redress proceedings. He alleged a violation of Article 1 of Protocol No.1 to the Convention and Article 14, in that, unlike in his case, permits for extensive construction and the addition of a fifth floor had been issued in respect of the buildings adjacent to his own property. On 21 December 2007 the Civil Court in its constitutional jurisdiction rejected the applicant’s claim in respect of an alleged interference with his right of property on the grounds of the non-exhaustion of ordinary remedies. It held that the civil proceedings instituted by the applicant could result in the revocation of the decision to withdraw the original permit and therefore sufficed as a remedy. Moreover, the aim of constitutional proceedings was not to suspend criminal proceedings which were not related to human rights issues. On 27 March 2009 the Constitutional Court upheld this judgment. It further held that although the Article 14 issue was not open to examination in ordinary proceedings, a favourable outcome in such proceedings would remedy any such violation. Until 1 January 1993 building development permits were regulated by Part I of the Code of Police Laws. Section 16(1) of that Code provided: “The Minister responsible for public works may, prior to the preparation, publication or approval of a scheme, order by notice in the Government Gazette the whole or any part of Malta to be a planning area; and from the date of any such order no person shall lay out, construct or close any street, or erect any building or increase the height of or otherwise modify any existing building, or change the use of any land or building in any part of such area (whether or not an approved scheme exists in respect thereof) without a permit from the Minister responsible for public works who may, in his discretion, refuse the grant of a permit or, in granting it, impose such conditions as in his discretion he may deem proper.” The Minister responsible for public works could delegate all or any of his powers to a body known as the Planning Area Permits Board (“the PAPB”). Section 37 §§ (1) and (3) of the Development Planning Act provide: “(1) If an applicant considers that conditions imposed upon a development permission, or a refusal of such a permission, is unreasonable he may, without prejudice to his right of appeal, either request the Authority or the Commission, as the case may be, to reconsider its decision or he may lodge an appeal with the Appeals Board ... A request for reconsideration shall not be made currently with an appeal. A request for reconsideration and an appeal under this sub-section, as the case may be, shall be made within thirty days of receipt of the decision of the Authority or of the Commission, as the case may be. Where a request for reconsideration has been made, an appeal may be made to the Appeals Board within thirty days of receipt of the decision taken in the reconsideration. ... (3) During the reconsideration stage, the Authority or the Commission, as the case may be, may request the applicant to file fresh plans, in which case the Authority or the Commission, as the case may be, shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of Article 32(5) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the Authority’s or the Commission’s sitting, as the case may be, when such application shall be discussed. Both the applicant and the objectors, if any, shall be informed of the date and time of the meeting and, if present, may address the Authority or the Commission, as the case may be, with regard to the planning matters concerning the said application.” The relevant sections of the Maltese Civil Code read as follows: Section 1030 “Any person who makes use, within the proper limits, of a right exercisable by him, shall not be liable for any damage which may result therefrom. Section 1031 Any person, however, shall be liable for damage which occurs through his fault. Section 1032 (1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias. (2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree. Section 1033 Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.”