A planning application for the change of use “from an existing shop to a cateteria/bar” was approved by the Environment Planning Commission despite strong objections from a number of residents living in the same block.

The approved plans show the introduction of a vertical chimneystack located in an internal shaft extending up to roof level.

Following permit approval, the objectors lodged an appeal before the Environment and Planning Tribunal, insisting that they co-own the shaft and were not giving their consent to the introduction of a chimney in said shaft. In a strongly worded appeal, they also alleged that the applicant had initially submitted misleading drawings, following which he was requested to submit fresh drawings, which were not submitted within the stipulated time frame. 

The objectors went on to explain that the applicant has no direct access to the shaft in question, adding that “such a chimney is impossible to install, considering that third-party services need to be removed and/or redirected in order to ensure a minimum distance of 300mm between the chimney and the third-party walls as per sanitary laws and regulations.”

On his part, the applicant contended that questions of ownership are of a civil nature and may not be debated before a planning tribunal. The case officer expressed a similar opinion, stating, “applicants are likewise never required to submit a Certificate of Ownership B in order to use a common shaft for the installation of foul water drainage pipes or any other services.”  

In its assessment, the Tribunal dismissed the appeal and held that, in any case, the permit was issued subject to third-party civil rights. In its conclusions, the Tribunal observed that as a last resort, the applicant might always opt to use a different air extraction system.

Following the Tribunal’s decision, the objectors filed an appeal before the Civil Court of Appeal, making reference to Article 68(3) of Chapter 504, which expressly provides that “an applicant for development permission shall certify to the Authority that 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”. In this case, the appellants explained that they were co-owners and had given no consent.

The Court nonetheless held that Article 68 comes into play when a “title” is not under dispute. In this case, the Court observed that the parties (applicant and objectors) were both claiming a right with respect to the shaft under consideration. The Court thus reasoned out that the Tribunal was correct to steer away from such issue and confirm the permit, subject to third-party rights.