Issue link: https://maltatoday.uberflip.com/i/1011650
13 LAW & PLANNING maltatoday | SUNDAY • 5 AUGUST 2018 A planning application contemplating the conversion of an 'open terrace' situ- ated in Triq Santu Wistin, Paceville to a restaurant was turned down by the Planning Commission on the following grounds: 1. The proposed development ran counter to the provisions of the Local Plan, which 'intended this area to re- main open'; 2. The proposal was in breach of the Strategic Plan for Environment and De- velopment (SPED) Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas; 3. The proposed development runs counter to the provisions of policy G39 of the Development Control Design Policy, Guidance and Standards 2015 which specifies that only one sign may be mounted on a shop. In this case, a number of signs were mounted along the periphery of the terrace, resulting in 'visual clutter' which was affecting nega- tively the external appearance of the building and consequently its setting; 4. The site was not 'fully accessible' for users and visitors and thus ran counter to policy P11 of the Development Con- trol Design Policy, Guidance and Stand- ards 2015 and to Urban Objective 4 of the Strategic Plan for Environment and Development, which aim for the integra- tion of the requirements of people with special needs in the design of buildings and facilities. Concern to this end was raised by the Commission for the Rights of Persons with Disability (CRPD) in re- spect of a ramp which provided access to the terrace. In reaction, applicant lodged an appeal with the Environment and Planning Re- view Tribunal insisting that the permis- sion should have been issued due to the following reasons: 1. Contrary to what the Authority had alleged, the site in question does not fall within an area designated as Public Open Space but an area which the Lo- cal Plan had designated as a Secondary Town Centre where commercial activi- ties and active frontages are allowed; 2. As a fact, various permissions to undertake commercial activity on this terrace were issued in the past. For ex- ample, the Authority had, way back in 2002, issued a permit to place a hot-dog barrow on this terrace. In its reply, the Authority stood firm with its decision, reiterating that appli- cant's site formed part of an area that was originally designated as a Green Ar- ea in the Temporary Provision Schemes of 1988. According to the case officer, the proposal was thus objectionable on policy grounds since the proposed inter- ventions would detract from 'the inten- tions of the Local Plan designations to keep the area open.' In its assessment, the Tribunal ob- served that the the Commission for the Rights of Persons with Disability (CRPD) had retracted its previous ob- jections with regard to the access ramp since 'due to the limited space and en- croachment to the public stairs/pave- ment'. Furthermore, the Tribunal main- tained that the terrace in question was located within the Secondary Town Centre, adding that there was nothing to suggest that the Local Plan had desig- nated the terrace as a Public Open Space (as previously alleged by the Authority). Against this background, the Tribunal accepted appellant's arguments and or- dered the Authority to issue the permis- sion subject to the visual clutter along the site periphery being addressed. THE Court of Criminal Appeal, presid- ing by Madame Justice Consuelo Scerri Herrera, held on 31 July 2018, that the charge of nuisance of loud music may be satisfactorily proved if it is shown that the inconvenience was grave in nature. This was held in a judgement Pulizija -v- Salih Usta. Usta was accused of operating a loud speaker, gramophone, amplifier etc and causing a nuisance to a neighbour. The Magistrates in July 2017 found the ac- cused guilty of the charge and fined him €55. Usta appealed this judgement. Usta explained in his appeal that he owns and runs a bar in St Paul's Bay, which holds a permit to operate and is allowed to play music. The neighbour had filed a number of complaints with the Qawra Police Station. The Magis- trates Court appointed a technical ex- pert, who reported back to the Court. Usta claimed that it was in his favour, but the court did not take cognisance of the conclusions of the report and based its judgment on subjective norms and not on objective scientific consid- erations. Usta further explained that the road in question is in a touristic area and there is an amount of noise. Madame Justice Scerri Herrera ex- amined the evidence produced, namely that the neighbour had filed the report on 24 March 2016 at 9.28pm due to the noise coming from the bar. A police of- ficer visited the neighbour home and confirmed that he could hear the noise coming from the car. Further evidence showed that the bar is not licenced to operate amplified music, but may re- main open until 4am. In his evidence the neighbour told the Magistrates' Court that the inconvenience had being going on for a year. The Court of Ap- peal commented that he gave evidence more on the general situation than what had actually happened on the date men- tioned in the charge sheet. The appellant, Usta, gave evidence and explained that his clientele are more elderly people than a young crowd and therefore he never puts the music too high. The Court of Appeal, then exam- ined the legal points and held straight away that it is the prosecution that must prove the charges and must reach the level of beyond reasonable doubt. If these two criterias are not adhered to, the Court must acquit. The Court commented that it did not understand the appellant's submission that the technical report was in his fa- vour, because it merely established that if the music had to be put full on then the decibel reading from the neigh- bour's bedroom would reach 52Db2. On the other hand the Court criticised the fact that the charge makes no mention of the day and time of the complaint and the police report was also very general. The Court cannot be presented with generic evidence. For example, a repre- sentative of the Malta Tourism Author- ity confirmed that the bar could play music but must stop by midnight. The Court highlighted that this licence does not allow the bar to play music without due consideration to the neighbours. This was established in a judgement delivered on 20 November 1998 Pulizija -v- Raymond Spiteri. According to Reg- ulation 13 of Legal Notice 1 of 2006, li- cences are subject to conditions listed in the Second Schedule, which includes: "02. The commercial activity carried out in the premises or things stored within the premises shall not:- 02.1 cause annoyance to neighbours; 09. "No Commercial Activity located in an urban area can generate noise that can be heard from outside the premises that causes annoyance and disturbance to neighbours by playing of music by live bands or amplified music or other means between the hours of 11.00 p.m. and 9am of the following day"." The Court pointed out that not all inconveniences are censored and pun- ished before a criminal court, but if it is proved that that the inconvenience is of a serious nature it may be declared to be contrary to law. Although a judge must use an objective test, in cases of noise, the judge must evaluate the evidence brought before it. The Court made ref- erence to a judgement delivered by Judge William Harding in Pulizija -v- Antho- ny Cushieri decided on 16 Devember 1946, where the noise level is above that accepted by good neighbourliness in normal cases. Therefore, the inconven- ience must be grave and not easily toler- ated, continuous and intense. The Court made a comparison of the English and Maltese versions of legal Notice 1 of 2006, which have the same meaning as annoyance and nuisance. The Court held that in this particular case, the evidence shows that music was played in a general fashion in a com- mercial licensed place. There was not evidence that a disturbance was caused to the neighbourhood. The Court of Appeal upheld the appeal by revoking the declaration of guilty and instead declaring Usta not guilty. Criminal inconvenience must be grave, continuous and intense 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 Paceville open terrace found not to be a public open space