Issue link: https://maltatoday.uberflip.com/i/1008890
15 LAW & PLANNING maltatoday | SUNDAY • 29 JULY 2018 A planning application seeking the change of use of a slaughterhouse to a tourist complex was rejected by the Planning Commission. The building lies within the outside development zone of Munxar in Gozo. To justify its decision, the Commission held as follows: 1. The proposed development ran counter to the 2014 Rural Policy Guide- lines in that the replacement building exceeded the previous approved build- ing; 2. The proposed design was of a low quality; 3. The proposal did not result in 'a wider environmental benefit'; 4. The proposal was not in line with the Thematic Objective 1 of the Stra- tegic Plan for Environment & Develop- ment which aims at limiting the land take up for uses which are not necessary or legitimate in rural areas; 5. The proposed development was not compliant with the Strategic Plan for Environment and Development (SPED), which aims to protect the landscape and the traditional components of the rural landscape and to safeguard pro- tected areas. In reaction, applicant lodged an ap- peal with the Environment and Plan- ning Review Tribunal insisting that the increase in area was primarily concen- trated at basement levels and hence in- visible from public view. In addition, appellant contended that his proposal would lead to a significant environmental benefit because the slaughterhouse was tantamount to an 'industrial activity that does not neces- sarily need to be located in an ODZ set- ting'. Even more, appellant maintained that he would be introducing an im- proved landscaping scheme 'compris- ing endemic and traditional tree spe- cies, and grass blocks as floor paving were possible to limit the hard-paved areas and reduce the site formalisation.' In reply, the case officer represent- ing the Authority held that the poultry house occupied an approximate area of 670sq.m whereas the extensions would total 810sq.m. The officer disagreed with appellant, insisting that the exten- sions would be visible from public view. It was also argued that the proposed use was not in line with the scope of the Ru- ral Policy and Design Guidance, 2014, since "the spirit of that document was to allow whoever genuinely needs to upgrade or redevelop an existing build- ing or to construct a new one outside the development zone, in conjunction with its use". According to the case of- ficer, owners should not be encouraged to "leave a site in a state of neglect in order to pave way for new commercial development." In its assessment, the Tribunal noted that the building had direct access to the road network. Meanwhile, the Tri- bunal made reference to Policy 6.2C of the 2014 Rural Policy Guidelines, which specifically allows 'redevelopment' or 'change of use' of existing buildings located outside the development zone, provided that the end product 'would result in a wider environmental ben- efit'. The Tribunal considered that the Authority had failed to substantiate its conclusions as to why applicant's pro- posal was not tantamount to a wider environmental benefit. Concluding, the Tribunal held that a tourist complex was indeed an acceptable alternative, subject to a reduction in the proposed floor space. THE First Hall of the Civil Court indi- cated that a warrant of prohibitory in- junction is upheld only if it protects a right. This was held in Dr Johann Craus v Kummissjoni ghar-Servizz Pubbliku u Segretarju Permanenti fil-Ministeru ghas-Sahha, decided on 18 July 2018. In his application Dr Craus asked the court to issue a warrant of prohibitory injunction in order to bar the Public Service Commission from appointing an Obstetrics & Gynaecology Con- sultant at the Ministry of Health. The Public Service Commission (PSC) last December issued a call, but Dr Craus al- leged that the process lacked a fair hear- ing and equality of arms. The PSC replied to the application by stating that the applicant did not have legal grounds for the warrant. It held that Dr Craus had an appointment for a meeting, however, he filed the applica- tion instead and therefore, cannot com- plain of the process. Mr Justice Joseph R Micallef, who pre- sided over the proceedings, analysed the evidence brought before the court. The applicant is a surgeon specialised in Obstetrics. Six applicants had applied for the call issued by the Ministry for the post of consultant. The adjudication board was composed of three persons, one of whom is Dr Marc Sant. Two of the applicants withdrew their applica- tions. Dr Craus, was called for an inter- view, but was ranked third. Two of the applicants worked in the private clinic of Dr Marc Sant. Dr Craus, filed a com- plaint on his ranking, as allowed by the PSC rules. The Board replied to these complaints. The PSC turned down Dr Craus's request to be handed the mark- ing of the fellow candidates. From a legal point of view the appli- cant has to show the court two elements for the warrant to be issued. The first is that the warrant is required to protect a right and the second is that a right ex- ists on the face of it. These two elements must exist together and are not alterna- tive. If any of the elements does not ex- ist, then the warrant cannot be issued. This is because the procedure to issue a warrant of prohibitory injunction is an exceptional procedure and is not copied in other procedures. The applicant must show that without the warrant, the right he is trying to protect will disappear. The right sought will have to still be es- tablished in a court case. In cases of ap- plications for a warrant against the gov- ernment, the applicant must also prove that the government was going to per- form the act that he is trying to block, and if that act takes place, the prejudice is disproportionate to what will take place if the government had to continue with the act. In this particular case Dr Craus want- ed the court to issue the warrant be- cause according to him, the PSC were not following the rules of natural justice and did not follow the law but followed a manual. The applicant complained that there are issues of a conflict of interest, lack of transparency and a lack of a fair trial before the PSC. The Court disagreed with the PSC, which argued that the procedure be- fore the PSC should not be compared to litigation and therefore, there should be equality of arms. The petition proceed- ings is the only remedy a candidate may have to stop the procedure to choose a candidate of a post and is used to inves- tigate the choice procedure. With regard to Dr Craus's claim that the PSC did not follow the law, but fol- lowed a manual, the Court did not agree, since it pointed out that the manual was based on a legal notice. In fact, the man- ual gives guide lines on the organisation and leadership in the public sector. The applicant of a warrant should show more than that there exists a dif- ficulty. The prejudice dictates that there exists no other remedy apart from stop- ping the defendant from continuing with his action. In this particular case the applicant is not asking for the PSC to stop the process of choosing a con- sultant, but it should continue as long as it follows the law. The applicant ar- gued that without the warrant, it would be difficult to institute further action, since the PSC made it clear it would not give the information that the applicant requested. But this, in fact, puts in doubt whether the right exists or otherwise. Furthermore, the warrant is not used for the defendant to do something specific, since there are other remedies. The war- rant is intended to block someone from doing something. The applicant, in fact, was requesting the court to give a de- claratory judgement. The Court therefore, turned down the application to issue the warrant of pro- hibitory injunction against the PSC. Prohibitory injunction upheld only if it protects right 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 Change of use from slaughterhouse to tourist accommodation permitted