Issue link: https://maltatoday.uberflip.com/i/1101649
maltatoday 15 | SUNDAY • 7 APRIL 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning applica- tion for the sanctioning of a cater- ing outlet, previously a dwelling, lo- cated within the residential scheme of Swieqi. The proposal was turned down by the Planning Commission on the following grounds: The proposed development ran counter to the provisions of policy NHHOOI of the North Harbours Lo- cal Plan (2006) 'which does not list catering outlets as an acceptable use in a residential area'; The proposal ran counter to the SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas; The proposed development would create a deleterious impact on the amenity of the adjoining uses and therefore constitutes 'bad neighbour development'; The proposal was also in conflict with the SPED objectives TO 6.1, IJO 3.5 and I-JO 4.2. Aggrieved by the said decision, ap- plicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that permission should have granted. In his appeal, applicant (now, appel- lant) submitted the following argu- ments: Contrary to what was purported by the Commission, the Local Plan pro- vides that land-uses falling outside those mentioned in Policy NHHOOI (such as catering outlets) could be considered favourably should 'over- riding reasons to locate such uses within these areas' subsist; Independently of Policy NHHOOI, Policy FL-GNRLI of the Flexibility Policy 'allows for justifiable depar- tures from policies where proposals are deemed to be neighbour compat- ible and will not result in cumulative adverse impacts on the locality'. In this case, the area was charac- terised by commercial development, justifying a departure from policy; The Commission gave weight to the concerns raised by the neighbours, al- beit their objections were not lodged within the statutory timeframes. Rebutting, the case officer repre- senting the Planning Authority point- ed out that the Commission 'had the right to refuse the application since the proposal was incompatible with planning policies', regardless of any concerns which were raised by the objectors. The Tribunal was reminded that 'Policy NHHOOI and Urban Objec- tive 3.5 of the SPED aim at control- ling the proximity of non-residential uses in urban areas so as to protect the amenity of the particular context.' In the instant case, it was pointed out that there was no apparent plan- ning reason as to why the proposed outlet was to be located in a residen- tial area. In its assessment, the Tribunal saw nothing wrong in the Board's approach in taking note of the resi- dents' objections. In any event, the Tribunal held that the Commission was correct to conclude that the street was not committed with simi- lar development. Consequently, the permit could not be granted on the basis of 'nearby commitment' envisaged in the Flex- ibility Policy. Furthermore, the Tribunal observed that consideration had to be given to the 'traffic and parking carrying ca- pacity of the surrounding transpor- tation network, neighbour compat- ibility issues as well as surrounding existing and planned uses'. On account of the aforesaid, the ap- peal was rejected. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Swieqi catering outlet refused FOR the purposes of the employ- ment of private guards and com- munity officers, the Police Com- missioner cannot simply bar an ex-convict from obtaining a licence to provide such services without ad- equately considering the gravity of the offence and whether or not the person has been rehabilitated. This was held by the Administrative Review Tribunal presided by Mag- istrate Charmaine Galea on the 1st of April 2019 in the case of Tarcisio Agius vs Commissioner of Police. The Tribunal heard the claims by the plaintiff wherein it was explained that he applied for a licence in order to be able to work as a private guard. It was furthermore stated that he had received notice that his applica- tion had been declined by the Com- missioner on the basis of Article 10 of the Private Guards and Community Officers Act, concerning the refusal to issue a licence on the basis of a se- rious former criminal conviction and where the application goes against the public interest. The Tribunal heard how the plain- tiff had previously been found guilty of being involved in the running of an establishment that was frequented by persons engaging in prostitution and other immoral offences. It was claimed that the refusal to is- sue a licence on the basis of his previ- ous criminal record was unjust. The Tribunal also heard the tes- timony of a number of individuals, who addressed the Tribunal in their official capacities and who confirmed that the former convict had been re- habilitated since leaving prison. The Tribunal heard how both in and outside of prison, the plaintiff had engaged in voluntary work and even participated in a programme aimed at preventing persons from falling into a life of crime. The Tribunal also considered the defence council's reasoning for the Commissioner's actions, which were claimed to be based both on law and on fact. It was stated that the law places a responsibility on the Commissioner to refuse to issue a licence should the applicant have been convicted of a serious crime and in consideration of the impact that this would have on the public. It was, therefore, felt that the nature of the plaintiff's crimes warranted that his application be refused. In considering whether or not the decision was justified, the Tribunal held that the law imposes on the Commissioner the responsibility to objectively examine whether or not an offence was truly serious in na- ture. In order to do this, the Tribunal stated that the law itself establishes grievous crimes from others by im- posing a heavier punishment on some offences than on others. It was held that the crime that the plaintiff was convicted of, which is a crime that today falls within the original competence of the Court of Magistrates, carries a maximum pen- alty that can be identical to that of an offence of a very light wound. The Tribunal maintained that al- though every crime can subjectively be seen to be serious in nature, it is the Commissioner's responsibility to be reasonable when applying the pro- visions of the law. The Tribunal also held that it is clear that the plaintiff is not a dan- ger to society at large and that it was unjust for the Commissioner to base his decision solely on the fact that the plaintiff had a criminal record. For this reason, the Tribunal de- clared the decision to be annulled and reversed, although it was held that this did not mean that the Com- missioner could be ordered to issue the licence. Alternatively, the Commissioner was ordered to revise the decision and to pay all legal costs. Tribunal revokes Police Commissioner's decision to bar former convict from becoming a private guard LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates