Issue link: https://maltatoday.uberflip.com/i/1060184
maltatoday 13 | SUNDAY • 9 DECEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING THE case under examination con- cerns a planning application for the demolition of a building in order to make way for a three star hotel in Sliema. Initially, the Planning Direc- torate had recommended the appli- cation for approval, even though the Superintendent for Cultural Heritage was concerned with regard to the pro- posed demolition works. As a matter of fact, the Superintendent pointed out that "the existing building had architectural and historical value whereas the proposed façade was not in harmony with the streetscape". Moreover, the eNGO Flimkien ghall-Ambjent Ahjar objected to the proposal on, more or less, the same grounds, reiterating that the Super- intendent of Cultural Heritage was against the proposal. Yet, the Directorate argued that the site was not located within the Ur- ban conservation area, noting further that the building was surrounded by other 'legal developments' having a similar height. In addition, the Di- rectorate held that hotels fell within the scope of Policy NHHO 01 of the North Harbours Local Plan. As to the proposed building envelope, the Directorate concluded that both the building height (27 meters) and the street frontage height (23.8 metres) lay within the allowable maximum height limitations set out in the Local Plan, in this case six floors with semi- basement. Nevertheless, the Planning Com- mission rejected the applicant's pro- posal once it held that both the Su- perintendent of Cultural Heritage and the Malta Tourism Authority were averse to the proposal. Further to the Commission's deci- sion, applicant decided to lodge an appeal before the Environment and Planning Review Tribunal. In his ap- plication (rikors), applicant, now ap- pellant, pointed out that, earlier on during the process, he had signaled his intentions to carry out any aes- thetic modifications which the Com- mission deemed fit and, yet, his calls were ignored. Furthermore, applicant took umbrage at the Commission for denying him the opportunity to re- quest the Superintendent to recon- sider his previous position. For its part, the Tribunal observed that the site was not located within an Urban Conservation Area, adding that the building was of no particu- lar architectural value. The Tribu- nal, however, observed that appli- cant should submit revised drawings showing a hostel instead of a hotel, following which a decision should be taken by the Commission. The Tribunal's decision was ap- pealed before the Court of Appeal by the objectors. In their appeal, the objectors contended that the Tribu- nal had decided more than it was re- quested when it concluded that ap- pellant should change the object of the proposal from a hotel to a hostel. In its assessment, the Court agreed with the objectors in that the Tribu- nal could not decide beyond what was requested. In other words, the Tribunal was obliged to see whether the proposed hotel was acceptable and not suggest to applicant what could potentially be developed in that particular location. On that ba- sis, the Tribunal's decision was an- nulled and the Court ordered the Tribunal to reassess the case in light of its judgment. THE Family Court issued a warrant not allowing a minor child to travel because there is a real fear that the fa- ther would, for the second time, take the child abroad without the moth- er's consent. This was decided on 3rd December 2018 in MG v JB. The applicant MG filed an appli- cation before the Family Section of the Civil Court, asking the Court to prohibit their child from travelling. The mother explained that there are mediation proceedings to regulate the case and custody, access and maintenance of the child. She fur- ther explained the parties have been in a relationship and had a child, but their relationship finished in August 2018. She said that there was little co-operation and the father wanted to dictate what happens to the mi- nor. The daughter is eight years old and according to the mother, she was asked by the father to steal her passport and travel to London. She thought she was going to Gozo. The father is now asking that the child live with him in the UK and this without the mother's consent. The child's father replied by saying that there is a contract between the two stating that his daughter lives one week with him and the next with her mother. He accused the mother of dictating what takes place with his daughter. In the meantime, he discussed with the mother wheth- er the daughter can live with him in London, where she would go to school there. He commenced legal proceedings for the Court to allow his daughter to live in London and therefore, he did not take the law in his hands. The Court presided by Madame Justice Jacqueline Padovani Grima analysed the evidence presented and saw the father's affidavit, who ex- plained that he has an opportunity to study for a Ph.D. and at the same time work at a university in London. He enrolled his daughter at a private school close to the university. The mother then testified that she suspected that her daughter will leave Malta because she stole her passport from a handbag. The Court quoted from Article 877 of the Code of Organisation and Civil procedures that a warrant may hold an underaged person from go- ing abroad. According to Article 873 (2) a warrant should not be issued if the applicant does not have prima facie right. A prima facie right is not a simple difficulty or discom- fort. Furthermore, when deciding whether to prohibit a minor from travelling the Court must hold the minor's interest as a top priority. In this case the Court saw that the parties have joint custody and that the child lives one week with one parent and another with the other. It was not contested that the father took the child to the UK without the mother's consent. The father has an opportunity to work and study in the UK and has to take a decision imminently. Therefore, there exists a real risk for the father to take the child once again without the moth- er's consent. The Court pointed out that although the father could be disappointed, his actions were un- justified. He acted because he disa- greed with the mother. The child is of both parents and every declara- tion for a child to be taken abroad must have the consent of both par- ties. If this does not take place, then there are severe repercussions. The court then moved to uphold the re- quest for the warrant to be issued and ordered that the passport be withheld. Warrant issued due to actual fear of flight of minor from Malta LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Sliema hotel decision revoked due to legal error mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates