THE RIGHT TO DEVELOP AIRSPACE OVER A BLOCK OF APARTMENTS – HOW DOES THIS AFFECT THE RIGHT OF USE OVER THE ROOF ENJOYED BY THE APARTMENT OWNERS?

The case was instituted in 2011 by a number of apartment owners of a block in Tower Road, Sliema. They enjoyed a general right of use over the roof overlying an existing penthouse.

In 2003, the penthouse and its overlying airspace and roof were transferred to third parties who obtained a development permit to construct an additional room to the penthouse and another overlying penthouse level. The works were carried out but in doing so, access to the new roof was no longer available via the stairwell but only through a hatch and a metal staircase so that older people or people with special needs could not access the roof.

In January 2006, the new penthouse owner was requested by the penthouse owners to remove the new penthouse and to reinstate full access to the roof so that they could continue to enjoy full use of the roof. The basis of their claim was the fact that their enjoyment of the servitude was being reduced or made more difficult to exercise, in breach of their civil rights.

The judgment of the First Hall went in favour of the apartment owners. A court-appointed technical expert had concluded that although the development was carried out in accordance with the development permit approved by the Planning Authority, this had effectively reduced the apartment owners’  enjoyment of the roof and restricted the use to the placing of water tanks and antennae, whereas access would only be available for reasons of maintenance.

The First Court concluded that although the owner of the overlying airspace retained the legal right to build further storeys, this right had to be exercised with full protection of the rights of the apartment owners to enjoy the roof. The fact as to whether the apartment owners used the roof to hang their washing or made any alternative use was of no consequence and did not reduce in any manner their rights of use in terms of their title. The penthouse owner was therefore ordered to carry out the necessary structural works within six months to provide the same form of access leading to the roof which the apartment owners previously enjoyed and to provide an equivalent area on the roof for the enjoyment of the apartment owners as they had enjoyed previously.

The penthouse owner appealed claimed, amongst other grounds, that the penthouse level was indeed illegal and therefore, the apartment owners could not enjoy an illegal element. This argument was discarded by the Court of Appeal which noted that although the penthouse level was indeed illegal and was built instead of washrooms, it was sanctioned in 2001 and therefore, could no longer be considered illegal.

Appellant also argued that the planning policies brought into force by the Planning Authority in 2007 did not allow use of the roof overlying the penthouse level. This argument was also unsuccessful, since the Court held that given that the apartment owners enjoyed the roof area, the reduction and restriction of this right of enjoyment as a consequence of the development carried out, breached their rights of use. Besides, the new planning policies approved in 2007 could not apply retroactively and affect the rights acquired previously by the apartment owners.

The Court of Appeal also observed that although the grant of the right of use of the roof did not specify how access was to be provided to the roof, it was clear that the creation of a hatch instead of the original stairwell leading to the roof had rendered the access less convenient and therefore, this amounted to a substantial loss of the right of enjoyment.

The judgment of the First Court was confirmed with costs in favour of the apartment owners, including payment of compensation in the amount of twenty-five thousand Euros (€25,000) jointly to the apartment owners, representing their loss of enjoyment of the roof since the development took place.

The Appellant is therefore bound to carry out the works within six months in order to provide access to the roof by means of a flight of stairs rather than a hatch with an iron staircase, and to provide an equivalent area at roof level so that the apartment owners are able to exercise the rights of use available to them before the development took place.