Court strikes down permit to convert disused Bidnija farm into residence
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Court strikes down permit to convert disused Bidnija farm into residence

Strict terms of the law must be respected to ensure level playing field, judge says

A court has turned down plans for the conversion of a disused broiler farm into a residence in the Bidnija countryside after finding it had not been in disuse for 10 years prior to current policy which would have permitted it to do so.

A development permit was originally refused by the Planning Authority but the applicant, Winston J Zahra appealed before the Environment Planning Review Tribunal, which overturned the decision.

The authority, in turn, took the issue to court and successfully overturned the board's decision.

Mr Zahra had applied to build a residence at Ħal-Dragu, Bidnija in place of the disused farm.

Before the tribunal, he successfully argued that despite the policy conditions, there was a substantive element, allow by law, that the demolition of the farm and its replacement by a landscaped house would benefit the environment. He pointed out that the site was surrounded by several residences built without a permit.

The court, presided by Mr Justice Mark Chetcuti, insisted that the tribunal should have strictly applied the law, which laid down that disused livestock farms must have ceased operation for at least 10 years prior to the coming into force of the current policy document.

The policy came into force in August 2004 while the farm was still in use up to 2008.

It said the tribunal was grossly mistaken in its application of the law, which, it said, gave no grounds for interpretation. Once the legislator had left no discretion, any tribunal, authority or court was bound by the law. The law had to be respected because that was the only way to ensure that there was a level playing field with no suspicion of discrimination or favouritism.

Once it had become clear that the farm was not in disuse for 10 years before the coming into force of the policy, the tribunal should have stopped its considerations.

The tribunal was wrong to have given its go-ahead on the basis of what was viewed as a wider environmental benefit. 

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