Issue link: https://maltatoday.uberflip.com/i/1078260
maltatoday 13 | SUNDAY • 3 FEBRUARY 2019 CULTURE ENVIRONMENT LAW & PLANNING IF an entity is appointed by a minis- ter, then it forms part of the govern- ment and as a consequence before it is sued, a judicial letter must be filed. This was held by Mr Justice Grazio Mercieca in a judgement delivered on 28th January 2019 in the names of Paul Gauci f'ismu propju u għan- nom Tas-soċjeta' E & G Properties Limited vs Sovrintendent tal-Patri- monju Kulturali , f'isem is-Sovrin- tendenza tal-Patrimonju Kulturali. In an action presented by the plain- tiffs, the defendants pleaded that it was null, since a judicial letter was not filed in terms of Article 181B of the Code of Organisations and Civil Procedure before the case was insti- tuted. This Article dictates that all ac- tions against the Government must be preceded by a judicial act and must be notified to the head of the government. The plaintiff submitted that the Superintendence of Cultural Herit- age was set up by the Cultural Herit- age Act, which has a separate judi- cial personality and can sue and be sued. They submitted that the Su- perintendence is not a government department. The Attorney General argued on behalf of the defendants that the Government is one although it has a number of entities includ- ing the Superintendence of Cultural Heritage. The term used in Article 181B is "government department" and it includes such entities. The Court held that the Code of Organisations and Civil Procedure does not define the terms "Govern- ment" and "department of govern- ment". The Interpretation Act just defines the term "government" as the Government of Malta. The Con- stitution lists as the institutions of the country, the Executive, where the Cabinet controls the govern- ment of Malta. The Public Administration Act says that the public administration is the government of Malta includ- ing the ministers and their depart- ment, agencies, government entities, commissions and boards. However, Article 2(2) of the Public Adminis- tration Act excludes Magistrates, judges, Attorney General, Auditor General, Speaker, Ombudsman and others from the meaning of govern- ment. The Constitution sets up entities which are not part of the govern- ment. These include the Broadcast- ing Authority. The Court quoted from the Public Administration Act which divides departments into four catagories. The first include the De- partment of Internal Investigations and Audit, the Electoral Office, the Public Service Commission and the Office of the President. The second catagory includes a large number of departments such as the Fishing Department, Depart- ment of Social Security and Con- tracts Department. Government entities include Man- agement Efficiency Unit, MEUSAC, and Attorney General's Office. With regard to agencies Article 181B of the Code of Organisation and Civil Procedure applies. The employees of all agencies are to follow directives of the Principal Permanent Secretary and the Minis- ter. The Public Administration Act defines a government entity as an organisation not being a department or agency, but falls under the control of the government. Article 7 of the Cultural Heritage Act states that the Superintendence of Cultural Heritage is to act on or- ders given by the Minister with re- gard to policies and is to inform the Minister on its activities. The Court indicated that although the Superintendence of Cultural Heritage has a separate judicial per- sonality, it still has the character- istics of a government agency and forms part of the government struc- tures. For this reason the Court closed the case by rejecting the claim. If you are appointed by a minister, you are Government LAW AT issue was a planning application to shift a 'licensed outdoor catering area' currently located at the upper part of the garden next to Villa Spinola (in St Julian's), closer to the entrance. Fol- lowing a thorough analysis, the Plan- ning Commission turned down ap- plicant's request due to the following reasons: 1. The proposed development was deemed to run counter to the provisions of Policy NHPV 09 of the North Harbours Lo- cal Plan which specifies that the garden in question should be redesigned as a new public open space 'to act as a gateway from St Julian's into Paceville via Paceville Avenue'; 2. The proposal ran counter to the SPED Urban Objective 3 which aims to protect and en- hance the character and amen- ity of urban areas; 3. The proposed development was also incompatible with the National Environment Policy (2012) which states that public gardens should be preserved; 4. The proposed development would result in the loss of open green spaces in an otherwise urban area; 5. The proposal was not compli- ant with policy P10 of the Out- door Catering Policy which states that new catering areas should 'not adversely affect the characteristics of any public open space of significant his- torical, architectural, natural or social importance'; 6. The proposed development was of an excessive scale and would thus lead to an overde- velopment of the site; 7. The proposed development would alter the appearance of a public garden and detract from the historical, architectural, natural and social value of an important garden. In reaction, applicant lodged an ap- peal against the Authority's decision before the Environment and Plan- ning Review Tribunal, insisting that his application should have been granted permission. In his appeal, applicant, now appellant, brought forward the following arguments: The 'relocated' tables and chairs would occupy only a small part of the garden. Therefore, the garden could still serve as a 'gateway from St Julian's into Paceville via Paceville Avenue'; At present, the garden was in a state of neglect whereas appellant would ensure that it would be kept in a good state. In reply, the case officer represent- ing the Authority reiterated that permission should not be granted. Whilst acknowledging that the com- mercial use of public spaces could be allowed 'if the Authorities are satis- fied that the extent of the concession does not detract from the amenity of the location and its surroundings', the officer was not convinced that this proposal would provide added value to the 'overall quality' of the area around Villa Spinola. The offic- er maintained that the proposal was tantamount to the loss of open green space in an urban area. In its assessment, the Tribunal im- mediately acknowledged that the garden in question featured sig- nificant historical and architectural characteristics. Nevertheless, the Tribunal took note of the fact that, contrary to what the Authority had previously asserted, the area earmarked for re- location was not officially designated as a public open space. In addition, it was observed that ap- pellant was already in possession of an area which had been reserved for the placement of tables and chairs. Against this background, the Tri- bunal was not against the proposed relocation, provided that the tables and chairs were placed on a raised wooden platform. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Tribunal consents to relocation of tables and chairs mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates