Issue link: https://maltatoday.uberflip.com/i/1044434
maltatoday 13 | SUNDAY • 28 OCTOBER 2018 CULTURE ENVIRONMENT LAW & PLANNING A planning application for the place- ment of two free-standing billboards fronting Tal-Balal Road was turned down by the Planning Commission on the following two grounds: 1. The location in question consist- ed of a piece of land, previously a field, turned into a parking area without prior authorisation. In principle, the illegal develop- ment had to be removed prior to processing the application and determine whether the proposal was acceptable from a planning point of view; 2. Even so, the site in question was not one of the designated sites identified in the Policy and De- sign Guidance regulating place- ment of new billboards. Further to the said decision, appli- cant filed an appeal before the Envi- ronment and Planning Review Tribu- nal, insisting that his request should have been approved. To substantiate his arguments, applicant (now, appel- lant) submitted that contrary to what the Authority had alleged, the prem- ises were not used as a car park. Appellant pointed out that Trans- port Malta had not objected to his proposal. In addition, it was observed that new billboards were not restrict- ed to those locations identified by pol- icy – although as a rule, 'there should be strict control over new sites apart from those indicated in the relative maps', appellant contended that oth- er locations (not identified by policy) could be permitted provided the fol- lowing requirements were met: • The advertisements or signage would not be injurious to amen- ity by virtue of size, position, lo- cation and proliferation; • The materials and structure were sympathetic to the sur- roundings; • A high standard of design and detail (in terms of height, width, depth and overall scale) was achieved; • If illumination was required, this was to be accommodated within the advertisement structure; • The siting was not such that it impaired the sightlines to any directional, hazard or warning signs or any traffic lights, pelican crossing beacons and pedestrian crossing; • The billboard was positioned in such manner that it would not obstruct sightlines in any way or direction. In reply, the Authority stood by its decision to refuse the application, re- iterating that 'there was no apparent justification as to why the proposed billboard could not be located within anyone of the designated sites indicat- ed in policy'. The Tribunal was further reminded that the location in question consisted of a traffic junction, hence the risk to approaching traffic. In its assessment, the Tribunal ob- served that it was not convinced that applicant had a connection with the illegal parking, adding that the Au- thority was, in any case, not prevented from executing direct action. On the other hand, the Tribunal held that the proposed location consisted of a traf- fic junction – the fact that Transport Malta had not objected to the pro- posal could not be taken to mean that the proposed billboards would not compromise the traffic sightlines. For this reason, the Tribunal confirmed the Authority's decision to refuse the permit. A father can have joint custody of his son even if the mother and son live outside Malta. This was decided on 23 October 2018 in AB v Dr Benjamin Va- lenzia on behalf of CD, who is absent from Malta. AB, the plaintiff filed a lawsuit against the mother of his son. The defendant is a French national and therefore the son is both French and Maltese. After the birth of their son, they all lived together for a number of months, but in January 2017, she left Malta to Morocco with their son. They are living in Morocco until this day. The father's access to his son was limited even when he travelled to Mo- rocco. In August 2017 all communica- tions were cut off. The defendant did not co-operate with Court proceedings in Malta and ignored all communica- tions from Court. In December 2017 the plaintiff trav- elled to Morocco to see his son but he was attacked by the defendant and he suffered facial injuries. He tried again in January 2018 by visiting them again and only saw his son for 15 minutes. This is affecting his son emotionally and is also affecting his psychological development. This was certified by French doctors. The plaintiff also explained that he pays €425 in maintenance. The plain- tiff asked the Court to award joint cus- tody and to order full access to his son. The curators appointed by the Court to represent the defendant held that they attempted contact her but did not succeed. Madame Justice Abigail Lofaro, who delivered the judgement, analysed the evidence produced, which included the plaintiff's affidavit. He explained that once he learnt the defendant was pregnant, he took the matter seriously. He financed a home for them. He noticed that the defend- ant did want to stay in Malta until in January 2017 she fled from Malta with their son. He traced them to Bordeaux in France and then in Morocco. They were traced thanks to the Mal- tese Embassy in Morocco. In Morocco he has no information about his son's education, but just receives the bills. From the few times he had contact with his son, it is clear that there is a loving connection between the two. The plaintiff's father, mother, sister and friend all testified and corroborat- ed the difficult time the plaintiff passed through due to the separation from his son and how the defendant made life difficult for him to have a meaningful relationship with his son. The Court then took to task the legal implications and quoted several judge- ments. In Jennifer Portelli pro et noe -v- John Portelli, decided on 25 June 2003, the court held that the law throughout the ages and local and foreign caselaw show that the children's custody and education are shared between the spouses and when they separate, the situation remains the same. In John Cutajar -v- Amelia Cutajar, decided by the First Hall of the Civil Court on 28 January 1956 stated that the apart from any moral consideration, the care and custody of the children should be taken after analysing all the circumstances of the case, but keeping the interest of the children paramount. In fact, Article 7(1) of the Civil Code, states: "(1) Parents are bound to look after, maintain, instruct and educate their children in the manner laid down in article 3B of this Code." Article 3B stipulates: "(1) Marriage imposes on both spous- es the obligation to look after, main- tain, instruct and educate the children of the marriage taking into account the abilities, natural inclinations and aspi- rations of the children." Therefore, the law imposes the same obligations on the two parents and they both have to contribute to their upbringing. The law does not dictate a formula on how to calculate mainte- nance, but imposes a number of prin- ciples as listed in Article 20 of the Civil Code, such as maintenance must be established according to the needs of the children, but also according to the means of who is paying. The Court should impose a means test which includes all types of income. In this particular case the defendant took the child illegally outside Malta, which left the plaintiff without his full rights, apart from being allowed his material support but no emotional support. The Court pointed out that the plaintiff was not seeking exclusive custody, but joint custody and it did not see any legal reasons why the court should not uphold his request. He also requested that he has free access to his son, even though the son is resident outside Malta. The Court also did not find any legal impediment from him having unfet- tered access, especially when the de- fendant took the law in her own hands and fled from Malta with their son. The Court then moved on to decide to give the plaintiff joint care and cus- tody of the child and also free access, which was extended also to the plain- tiff's family members. Joint care and custody can be given, even if the child resides abroad LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Request for billboards turned down malcolm@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates