Issue link: https://maltatoday.uberflip.com/i/1021976
maltatoday 13 | SUNDAY • 2 SEPTEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING THE owner of a detached villa filed a summary planning application seek- ing permission to mount a wooden lattice in "the backyard area". The property in question is located within a designated villa area in At- tard. The proposed designs showed a four-metre wooden lattice placed over and above an existing 2.3m ma- sonry boundary wall separating ap- plicant's property from the villa next door. Following assessment, the propos- al was approved summarily by the chairperson of the Planning Com- mission since the said interventions were deemed to be in line with cur- rent policies. The neighbour residing in the adja- cent property filed an appeal before the Environment and Planning Re- view Tribunal, whereby he insisted that the above-mentioned permis- sion should not have been granted. The objector alleged that the wood- en lattice would block all possible natural lighting to the detriment of his property. The objector went further to state that such interventions were not necessary since applicant already enjoyed sufficient privacy provid- ed by the existing high trees in his property. Concluding, the neigh- bour highlighted that the proposal went against the spirit of policy P08 of the 2015 Planning & Design Guidance which states that "a bal- ance should be struck between the requirements and inconveniences of two contiguous properties." In reply, the case officer repre- senting the Planning Authority un- derlined that the wooden lattice was acceptable in terms of the rel- evant planning policies. Reference was made to Policy P8 of the 2015 Planning & Design Guidance, which policy allowed for the extension of existing, side and rear garden/yard walls up to 3.4m above ground-floor level provided that such walls do not border exposed edges or ODZ areas. Additionally, the PA could allow a lightweight screen to be mounted over and above the stipulated 3.4m provided that the employed materi- als were compatible with the char- acter of the surroundings and the residential amenity of adjoining properties. In this case, the proposed lattice was made up of wood "which blends well with the mixed designs of the different properties" whereas the natural light and ventilation inso- far as the neighbour's property was concerned were safeguarded. In its assessment, the Tribunal observed that the objector had, at processing stage, alleged that the proposed interventions were in vio- lation of Policy P8 in that the wall would adversely affect his property in terms of the restriction of natural light and ventilation. This declaration, according to the Tribunal, was tantamount to a rep- resentation containing planning merits in terms of Regulation 18 (5) of LN162/16. Once a third-par- ty representation had reached the Planning Authority during the ap- plication process, the chairperson of the PA planning board had no op- tion but to refer the application to the executive chairperson for it to be formally processed according to the rules governing Full Development Applications. Against this background, the Tri- bunal revoked the summary approv- al. ALTHOUGH the use of false bank card at ATMs is not fraud, it is cer- tainly falsification and a misuse of data and software. This was held in a judgement delivered on 10 July 2018 by Magistrate Claire Stafrace Zammit in Il-Pulizija -v- Silviu Mirica. Mirica was accused of forming part of a criminal association, fraud, falsi- fication and took possession of data, software without the proper authori- sation and of hacking. The background concerns an or- ganisation which cloned credit cards in order for them to withdraw cash from ATM machines. These persons were taking money directly from per- sonal accounts of individuals who banked with Bank of Valletta. Mir- ica was defrauding the bank of over €5,000. Magistrate Stafrace Zammit held that the charges of the accused hav- ing criminal association with others in order to commit this crime had not been proven by the prosecution. The accused admitted that he had bought these false cards from others, but there was no evidence for exam- ple of transactions having taken place between the criminal organisation or else an exchange of messages. Article 83A of the Criminal Code reads: "(1) Any person who - (a) promotes, constitutes, organises or finances an organization with a view to commit criminal offences li- able to the punishment of imprison- ment for a term of four years or more; or (b) knowing or having reasonable cause to suspect the aim or general activity of the organization set up for the purpose mentioned in paragraph (a), actively takes part in the organi- sation's criminal activities, including but not limited to the provision of information or material means or the recruitment of new members, shall be guilty of an offence and shall lia- ble, on conviction, to the punishment of imprisonment for a term from four to nine years." From this article of law, the Maltese Court have jurisdiction over those organisations that have been estab- lished in Malta or abroad, but the prosecution failed beyond reasonable doubt that the accused formed part of any organisation. As regard to the fraud charges, the Maltese Courts have established three elements. The first being that everyone can be subject to this crime, the second that the crime safeguards the public interest to avoid deceit, and the third is that fraud is committed by using means contrary to law, deceit which instils hope or fear, and which is aimed at profiting from others. Therefore, the offence of fraud must impress the ordinary prudential per- son. The court backed this by quoting judgement as for Reg -v- Francesco Cachia et of 3 January 1896, which held that fraud must not only employ lies but also deceit and simulation and must be accompanied by an act intended to make the subject believe the story being told. Another judge- ment quoted is Pulizija -v- Charles Zarb decided by the Court of Crimi- nal Appeal on 22 February 1993. The Court concluded that in this particular case these elements did not exist and therefore, fraud cannot be found in these circumstances. This is not the case in the other charges. The accused admitted to purchasing the cards illegally and us- ing them in various ATMs. He was found guilty of these other charges and the Court commented what the accused did could have a catastroph- ic effect on the banks. As a result, he was awarded to 22 months' imprison- ment. Court pinpoints offence for using false card at an ATM 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 Summary approval revoked due to objectors