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MT 15 July 2018

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13 LAW & PLANNING maltatoday | SUNDAY • 15 JULY 2018 A development planning application seeking the change of use of a pri- vate car garage to a food and drink outlet (where cooking would also be allowed) was rejected by the Plan- ning Authority after the Commission found that the proposal was in breach of planning policy. The premises are located in Triq Fortunato Mizzi in Rabat (Gozo), a designated Primary Town Centre, where food and drink outlets are usually permitted. In its decision, the Commission took note of the submitted drawings and made specific reference to the light- weight enclosure around the front garden. The Commission found that the said structure ran counter to the provisions of Policy P50 of the Devel- opment Control Design Policy, Guid- ance and Standards 2015 (DC15) in so far as the 'design and privacy to the overlying third parties' property' were concerned. In reaction, applicant lodged an ap- peal with the Environment and Plan- ning Review Tribunal, thereby insist- ing that the permit should have been issued. Applicant (now appellant) ar- gued inter alia that, prior to the Com- mission's decision, he had revised the drawings so as 'to ascertain that a distance of 50cm was kept between the enclosure and the overlying third party balcony'. Moreover, appellant maintained that the Authority had is- sued a similar permit on the adjacent site. In reply, the case officer represent- ing the Authority rebutted that the sides of the enclosure consisted, in part, of franka block work. For this reason, the structure was not light- weight, thus running counter to DC15 policy requirements. As to the adja- cent site, the officer pointed out that applicant had failed to prove that the enclosure was covered by a planning permit, pointing out that although a change of use application was granted permission in the year 2007, no enclo- sure was shown in the relative permit drawings. Against this background, the canopy in the neighbouring site could not be considered as a legiti- mate commitment in terms of law. In its assessment, the Tribunal not- ed that the premises were located in the Primary Town Centre, where food and catering outlets are therefore allowed by planning policy. Conse- quently, the Tribunal held that fixed structures in front gardens were ac- ceptable in such locations. As to the adjacent site, the Tribunal noted that the enclosure was, as a matter of fact, covered by a valid planning permis- sion, noting that the design was simi- lar to applicant's. Against this back- ground, the Tribunal held in favour of appellant and ordered the Authority to issue the permit. THE Director General has the re- sponsibility to decide to revoke a pen- sion and demand a refund of pension- able funds when the beneficiary of the pension has a capital sum of more than EUR 14,000 in his possession, which goes above the amount of eli- gibility for entitlement. This was the conclusion of a case in the Court of Appeal by the name of Lawrence Vella vs. Director General of Social Securi- ty decided on the 2nd of July 2018. The plaintiff held that the procedures in place for the refusal of his pension, and the order of him to repay funds he had received as his pension, did not re- spect principles of natural justice. The case was an appeal from an arbitration which concluded that indeed the appel- lant owed the State €764.61, which was money he received in 2015 and which he was not entitled to. The Court first heard the pleas by the plaintiff who held that his claim was based on three considerations. While he did not deny that the capi- tal sums in his possession had ex- ceeded the amount which entitled him to social security benefits un- der Maltese law, he stated that he had used the money to repay a debt which he owed to his sister, and that therefore, he was still entitled to re- ceive his pension and did not owe the State the sum ordered by the Di- rector General. It was firstly stated that he did not feel that the Director General's deci- sion respected the principle of audi alteram partem, which means that both parties in a case should have the opportunity to defend themselves. It was secondly claimed that the deci- sion taken by the Director General should have followed civil law proce- dures, meaning that he should have been able to not only provide proof of the payment he made towards his sister, but that he should have also been given the time to adequately explain himself. The third ground of appeal was founded in the recent judgement Carmen Abela v. Direttur Generali tas-Sigurta' Socjali. In this judgement, the Court held that it is not necessary for beneficiaries of a pension to put themselves in the po- sition of minorita solvibilita' to con- tinue to benefit from social security benefits. This means that if a person receives an amount of money that they intend to dispose of for justicia- ble reasons, it should not bar them from continuing to receive their pen- sion. The Court looked at the appeal decision by the arbitrator where it was held that the appellant had no proof that he had transferred mon- ey to his sister and that the reasons for him borrowing money were for him to visit his son in Australia; a reason which was not deemed as necessit y. The Court stated that the opportunit y for the appellant to re- ceive an appellate decision by the arbitrator showed that the principle of audi alteram partem was respect- ed and that it was, in fact, insuffi- cient proof which rendered his case dismissed. With regards to the second ground of appeal, by the plaintiff, the Court commented on the merits of the ap- peal. It was concluded that the trans- fer of EUR10,000 happened well after he was informed that he had to repay the State and that his pension was being revoked. The Court also held that the Social Security Act does not bind the Director General to take in- to consideration whether the capital sums pertain to the repayment of a debt. Once the amount stated by law is lapsed, then the law itself is clear in stating that the pension is to be re- fused. The Court also linked this to the third claim by the appellant when it stated that in the case of Carmen Abela, the Court emphasised on the importance of the intention of the parties. The appellant in this case never explained why the transfer of the sum to his sister happened after he was notified that his pension will be revoked. It was, therefore, concluded that the appellant had a fair decision by the Director General, that he had an appropriate opportunity to appeal against the decision and present his evidence, and that his claims were not justified. The court therefore rejected the appeal and ordered all costs to be paid by the plaintiff. The judgement was delivered by Hon Judge Anthony Ellul. Court confirms revocation of pension and refund of pensionable funds 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 Fixed structure in front garden granted planning permission Tribunal held that fixed structures in front gardens were acceptable in such locations

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