Issue link: https://maltatoday.uberflip.com/i/1000343
13 LAW & PLANNING maltatoday | SUNDAY • 1 JULY 2018 A planning application for the 'con- struction of warehouses' outside the development zone of Kirkop was initially turned down by the Plan- ning Board after it found that the proposal was in breach of various planning policies. In its decision, the Planning Board had held inter alia that the designs ran counter to Thematic Objective 1.10 and Rural Objective 4 of the Strategic Plan for Environment and Development (SPED) in that the warehouse use was not considered legitimate or necessary within the area. In addition, the Board held that the site 'would compromise the Planning Authority's ability to re-examine the future planning of this site', thus the proposal was seen as premature. Particular concern was raised with regard to the envisaged volume of vehicular movements, which accord- ing to the Authority, 'would have a significant and unacceptable impact on the road network thus reducing road safety in the area'. The proposal was also deemed to give rise to un- acceptable additional on-street car parking 'which would not be in the interests of the amenity of the area'. Further to the Authority's decision, applicant had lodged an appeal be- fore the Envionment and Planning Review Tribunal. In its assessment, the Tribunal had noted that the site consisted of a disused quarry surrounded by industrial develop- ment. After making specific refer- ence to Thematic Objective 12 of the SPED which aims to safeguard land around the Airport for 'the growth of aviation related activities and the logistics sector', the Tribunal or- dered the Authority to issue the per- mit. Nevertheless, the permit was is- sued on condition that the buildings would remain below street level. In reaction, the Authority filed an appeal before the Court of Appeal (in its Inferior Jurisdiction) insisting that the Tribunal's decision should be revoked on a point of law. In its rikors (application), the Authority argued that the Tribunal made a wrong application of the law given that Thematic Objective 12 makes specific allowance for aviation re- lated development whereas appli- cant's proposal concerned ware- house activity. In its assessment, the Court said that according to Wikipedia search, 'logistics is generally the detailed organisation and implementation of a complex operation entailing the management of the f low of things between the point of origin and the point of consumption in order to meet the requirements of customers or corporations.' According to this definition, 'the logistics of physical items usually involves the integra- tion of information f low, material handling, production, parkaging, in- ventory, transportation, warehous- ing and often security'. The Court went on to observe that warehous- ing would fall under the aforesaid definition. Nevertheless, the Court highlighted that the Tribunal had failed to ensure that the approved warehouses would cater for aviation related activities as provided in the SPED. For this reason, the Tribunal's decision was revoked. THE law distinguishes between a mari- tal breakdown that occurs during mar- riage and a marriage where one of the parties, even before consenting to the institution of marriage and its obliga- tions, was already mentally unprepared to carry out these responsibilities effec- tively. The former situation gives rise to a legal separation, while the latter gives rise to an annulment in exceptional cir- cumstances. This was explained during the proceedings precided by Hon. Judge Robert G. Mangion in the case of AB vs CD in the Civil Courts on the 21st of June 2018. The Court heard the pleas by the plaintiff who complained that before marriage she enjoyed her relationship with the defendant. The plaintiff stated that she felt that after marriage the de- fendant completely changed his attitude towards her, did not contribute towards the needs of the home and did not aid her financially. She painfully described it as though he was living in his own world without any consideration for her. She therefore requested the Court to annul the marriage, in accordance with Article 19 of the Marriage Act. The Court heard the counterclaim by the de- fendant who stated that their marriage was valid, and that the reason that the marriage did not work out was because of mistrust, jealousy and conflicting work schedules. He claimed that their marriage had been valid and that they should remain legally separated. The plaintiff's claim rested on two sub-articles within the Act, namely Art.19(1)(d) and Art.19(1)(f). In relation to this, the Court held that these two claims were contradictory in nature, and therefore could not be presented jointly. Citing jurisprudence, the Court explained that in relation to the situa- tion envisaged in the former sub-article, the plaintiff alleged that the defendant did not have the ability to use discre- tional judgement when entering into marriage with regards to understanding the responsibilities that come with mar- riage life. In the latter, the law describes a situation where a person willingly ex- cluded such responsibilities when con- senting to marriage, and therefore this was a situation of simulation of consent by positive exclusion, which by its very nature excludes the inability to use dis- cretion properly. The court therefore considered both claims separately. The Court responded to the claims by primarily explaining that marriage is an institution related to public order which meant that for an annulment to be given by the Court, the party proving the allegation must come up with ad- equate proof to substantiate the claim in a clear manner. The Court held that this is because the capacity of both parties to consent to the rights and obligations that come with marriage is legally as- sumed, and so the Court must find ad- equate reason to hold that consent was vitiated in any stage before the marriage. With regards to the first claim that the defendant did not possess appropriate discretion when deciding to marry the plaintiff, the Court clarified that in this case, the law requires a person to have a psychological anomaly leading to ef- fective immaturity and that simply be- ing ignorant of responsibilities in mar- riage is not enough for an annulment to take place. The Court held that the defendant did not seem to possess such a psychological condition and that their marriage failed mostly because of a lack of consideration for one another and a difficulty in seeing each other due to conflicting work schedules. With regards to the claim that the de- fendant simulated his consent to mar- ried life, the Court similarly found no evidence to substantiate such a claim. The Court held that the fact that the couple cohabited together for a year prior to marriage and that the woman was not using contraceptives during this time showed that when marrying each other the couple fully intended to start a family and that this was their reason for getting married and not any ulterior motive. The Court stated that it was re- grettable that marital breakdown may occur because of irreconcilable differ- ences but that separation was the appro- priate way to end the marriage in such situations. The Court therefore rejected the claims of the plaintiff and ordered all judicial costs to be paid by her. Court stresses that a marital breakdown occurring in marriage does not mean that there was vitiated consent exercised by the parties mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Kirkop warehouse project to be reassessed Envisaged volume of vehicular movements 'would have significant and unacceptable impact on road network'