Issue link: https://maltatoday.uberflip.com/i/1053035
maltatoday 13 | SUNDAY • 18 NOVEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING THE Court of Appeal declares ap- peal null after it failed to ask it to re- voke or reform the first judgement. This was held by Mr Justice Antho- ny Ellul in Bank of Valletta plc -v- Kummissarju ghall-Informazzjoni u l-Protezzoni tad-Data u Malta Pub- lic Transport Services (Operations) Limited, decided on 5 October 2018. The Bank appealed from the Infor- mation and Protection of Data Ap- peals Tribunal decision. The Tribu- nal had decided on a case when the Bank had erroneously paid twice the Malta Public Transport Services em- ployees. The bank had the employees' data including names, IBAN number and amount of payment. According to Article (2) of the Data Protection Act, data can be processed if it is within the legitimate interest of the controller, in the case Public Trans- port Services or else third parties, in this case BOV. EU member States give either a restrictive interpreta- tion to this or else a wider interpre- tation. It is within the company's and the Bank's interest to retrieve the extra monies deposited in the employees' accounts, however, the company did not take action. The UK Infor- mation Commissioner's Office gave examples of what is "legitimate in- terest". The Tribunal disagreed with the Commissioner, since the em- ployees could take advantage of the situation, something the law is not intended for anyone to abuse the system. The Information and Data Protec- tion Commissioner filed an appeal from the Tribunal, alleging that it had interpreted Article 9(f) incor- rectly, since the extra payments were the bank's mistake and because the Tribunal was following the UK guidelines on cases of debt recovery, which is different from this case. It was also argued that this creates a dangerous precedent. The Bank filed its reply saying that the appeal is null and void, since there is no request for the Court of Appeal to revoke or reform the Tri- bunal's ruling and that an appeal is limited to a point of law. Mr Justice Ellul, analysed the facts of the case, where the evidence showed that in January 2014, the bank changed its system to SEPA, however, it affected some double payments totally to €181,000. The bank began an exercise to collect this money by sending a letter to the employees, asking them to refund the monies. In fact, they collected circa €127,000. 124 employees failed to refund the bank and according to law, the bank had a right to collect the outstand- ing €54,000. The bank asked for the details of persons concerned from the company, but this was refused on the ground of data protection. The Commissioner disagreed with the company and ordered them to release the information to BOV. Data protection is intended to pro- tect the process of private informa- tion. However, there are exceptions to this, which exceptions are to be interpreted narrowly according to the authors of Data Protection Law and Practice. However, before entering into the merits of the case, the court had to deal with the pleas that the appeal is null and void. The appellant asked the Court of Appeal to declare that the bank has no judicial interest in the request and not to process any personal data, and for the court to give its direction on the issues raised. Mr Justice Ellul quoted from Jo- seph Buttigieg -v- Malcolm J Naudi et noe, wherein it stated that an ap- peal required that the object of the appeal be determined in the applica- tion. Article 789(1) of the Code of Organisation and Civil Procedure dictates those circumstances un- der which a plea of nullity may be made, one of which, when the act is defective in any of the essential req- uisites expressly prescribed by law. The proviso of that article allows for remedies in such cases, such as fil- ing an application asking to approve a correction. In this case, the Court of Appeal noted that there was no request to revoke the Tribunal decision as out- lined in Article 143 of the Code, but merely limited it to a declaration. The Commission did not ask for a correction and therefore, the Court had no choice but to declare the ap- peal null. Appeal is null if there is no request to revoke or reform first judgement LAW IN the case under review, applicant had his planning application for the construction of additional floors over a two-storey dwelling refused by the Planning Commission. The building in question was located close to the church of Birzebbugia. According to the submitted draw- ings, the proposal would add up to a full floor at second floor and an over- lying receded floor. To justify its decision, the Planning Commission held as follows: • The proposed height was incom- patible with Urban Objectives 2.3 and 2.4 of the Strategic Plan for En- vironment and Development which promote a context driven approach for the control of building heights within Urban Conservation Areas in order to protect the traditional ur- ban skyline; • A transition solution between ap- plicant's site, which was located on the border of the Urban Conserva- tion Area, and the remaining scheme of development was not provided; • The proposal was in breach of Ur- ban Objective 3 of the Strategic Plan for Environment and Development which aims to protect and enhance the character and amenity of urban areas; • The proposed designs would not maintain the visual integrity of the area. Following the said decision, appli- cant decided to lodge an appeal with the Environment and Planning Re- view Tribunal. In his appeal, appli- cant (now appellant) put forward the following arguments: 1. Except that of applicant, all prop- erties close to the church comprised three full floors; 2. Once constructed, the proposal would eliminate an unsightly blank party wall located at the rear of site; 3. In virtue of Article 72 of Chapter 552, the Planning Authority had the 'faculty' to consider all material cir- cumstances to a case and reach the relevant conclusions. In this case, the Planning Board had allegedly failed to take into account the perti- nent material circumstances. In reply, the Authority stood by its decision to refuse the permit. The Tribunal was reminded that accord- ing to Policy P6 of DC2015, 'where development is sited immediately adjacent to an UCA, it cannot be higher than the height of the pre- dominant buildings located within the stretch of the perimeter block with frontages in the UCA in ques- tion.' It was also pointed out that 'the existing buildings in the block front- age are two floors high, and conse- quently the height of the building on site should remain that of two floors'. Furthermore, the case officer highlighted that contrary to what ap- pellant had purported, the proposal would not cover up a blank wall but would, on the other hand, create a highly obtrusive blank party wall. In his conclusions, the case officer as- sessed that the building should be stepped whereas the third floor was to remain unbuilt. In its assessment, the Tribunal ob- served that, except for the four dwell- ings located next to applicant's site, the area was committed with three storey development. Reference was made to Policy P35 which states that that in the case of Urban Conserva- tion Areas, the assessment of build- ing heights on the street façade had to be based on a streetscape analysis. The Tribunal found that the pro- posal was acceptable, subject to the proposed third floor being receded a further distance of 1.5 metres from the southern boundary. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Birzebbugia two-storey UCA dwelling granted extension mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates