Issue link: https://maltatoday.uberflip.com/i/1041944
maltatoday 13 | SUNDAY • 21 OCTOBER 2018 CULTURE ENVIRONMENT LAW & PLANNING APPLICANT had his planning appli- cation for the sanctioning of a com- mercial store rejected by the Planning Authority due to the fact that the premises in question were located in a designated residential area. Indeed, the premises consisted of two garages underlying a complex of apartments within a residential scheme. In its decision, the Planning Com- mission held that the proposed de- velopment ran counter to the provi- sions of policy CG 07 of the Central Malta Local Plan 'which does not include storage uses as permissible within residential areas.' Moreover, the Commission highlighted that the proposal was in breach of SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas. In reaction, applicant filed an ap- peal before the Environment and Planning Review Tribunal, insisting that the permit should have been is- sued since 'various commercial uses were present in the vicinity.' Moreo- ver, applicant held that he was will- ing to 'reduce the area required for storage purposes' with a view to find a compromise solution. In reply, the case officer reiterated that the proposal was incompatible with the Central Malta Local Plan since the proposed use ('storage') was not listed as one of the permit- ted uses within residential areas. Such use could only be considered were it to be shown that there were 'overriding reasons' which could jus- tify a departure from policy require- ments. Reference was also made to the Central Malta Local Plan which, in order to secure an improvement to the amenity and environmental quality of residential areas which have been compromised through the development of a number of warehouses, promotes the conver- sion of such warehouses to more compatible land uses. This was to say that the Local Plan discouraged further intensification and exten- sion of existing warehouses. More- over, the officer observed that ap- plicant could not decide to submit fresh drawings at this stage, as had been suggested in his appeal. On this point, the case officer remarked that the Authority was correct in re- fusing the application 'as otherwise the appellant would have adhered to the original proposal.' In its assessment, the Tribunal observed that applicant had already carried out the development with- out prior authorisation. More so, the Tribunal agreed with the Authority in that the premises were located in a residential area, pointing out that the introduction of warehousing in residential areas was strictly pro- hibited by planning policy. Against this background, the Tribunal con- firmed the appealed decision. THE First Hall of the Civil Courts departed from the usual method of calculating the permanent disability damages claim by not considering the medical disability percentage, as done in such damages cases. This was held in a judgement delivered by Mr Justice Grazio Mercieca in Trevor Grech and Lawrence Agius decided on 17 October 2018. Trevor Grech filed a sworn appli- cation wherein he explained that he was involved in a car accident in February 2012 in Paola. The col- lision was the defendant's fault and caused head injuries that affected his sight. Before the accident he was employed and enjoyed hobbies like dancing and cycling. He asked the Court to award damages. The de- fendant, Lawrence Agius, held that the insurance company had paid for the damages caused to the car. The case was not settled because accord- ing to Agius, Grech's claim was ex- aggerated. Mr Justice Mercieca analysed the evidence which was presented be- fore the court. On the day of the ac- cident the plaintiff was stopped on the traffic lights while the defendant, driving a truck smashed into the car driven by Grech. Due to his injuries, Grech was unable to continue to work and fell into a depression. This affected his family also, since he be- came fully dependant on them. His father had to start working again, to help his son financially. Grech also lost his hobbies, such as training to join Life Cycle. Since he was not able to train he increased in weight and also developed back problems. He has no social life as he depends on his family to go out of his house. Grech produced medical certifi- cates, where one doctor certified he had 60% disability, while two eye specialists indicated a loss of sight of 30% and 28%. The Court appointed two medical experts, who concluded that he has 30% disability. The Court then considered the legal points, mainly that of loss of earnings. The intention of damages is to put that person in the same fi- nancial position as though the acci- dent did not take place. Lord God- dard, in a British judgment British Transport Commission -v- Courley of 1956 held: "The basic principle as far as loss of earnings and out-of-pocket ex- penses are concerned is that the in- jured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened;" Article 1045(1) of the Civil Code states that a person is responsible for the effective loss directly linked to the damages caused. This year there was an amendment that al- lowed moral damages, but capped to €10,000. The same Article of law states that the sum that the court establishes for disability may be cal- culated after the court takes into consideration the circumstances of the case, in particular the type of disability caused. Furthermore, the Civil Code makes a distinction between damages cased voluntarily or involuntarily. In the 1938 Ordinance the loss of earnings was capped at Sterling100 and then increased to 120 Sterling. In 1962, the capping was removed and in 2018, the law made a distinction be- tween damages caused by voluntary crimes and other damages. The Court commented that there is no perfect compensation. However, what it will try to do is to be a fair and reasonable compensation as dictat- ed by the circumstances of the case. In the past there were a number of formulae to reach this type of com- pensation. Article 1045 gives a lot of discretion and latitude to the Court. The law however, gives two criteria, an objective one based on the level of incapacity, and a subjective one based on the condition of the one suffering the damage. Therefore, the disability percentage cannot be used solely to make the calculation. For example, if a pianist has his finger cut off, it is different from someone else or else if a pilot loses his eye- sight, it is different to others. The medical experts did come up with a percentage for the disability suffered by the plaintiff. The Court held that it would not rest on this statistic, but the court is going to use a criteria apt for this particular case. The plaintiff before the accident earned €26,800 per annum and had good prospects for promotion and therefore the court increased the sum by 20% for a period of 25 years, which amounts to €804,700. The plaintiff would in actual fact receive 79% of his pay, which would mean the sum awarded should be €635,713. The Court did not reduce the sum further because the plaintiff would have received a lump sum. Mr Justice Merceica ex- plained that this was used when the banks gave interest. Today there is a different reality. With regard to moral damages, the court pointed out that this was in- troduced this year. There are moral damages for offences in general and another type of voluntary crimes. This law does not apply retroactively nor for involuntary crimes. The Court then ruled that the defendant was to pay the plaintiff €635,713. LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Tribunal refuses application for warehouse in a residential area malcolm@mifsudadvocates.com.mt ASK MALCOLM Court does not consider disability percentage to calculate damages Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates