Issue link: https://maltatoday.uberflip.com/i/1107757
maltatoday 13 | SUNDAY • 21 APRIL 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application for the conversion of an Mdina resi- dence into a restaurant. The property under examination was situated in Triq Mesquita. The proposal was initially recom- mended for dismissal by the Plan- ning Directorate on the pretext that catering outlets were not permitted in this particular area of Mdina. The Directorate pointed out that the proposed use ran counter to the provisions of policy NWMD 2 of the North West Local Plan as well as SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas. In addition, the Directorate held that the premises were not fully ac- cessible to persons with mobility disability. It was further highlighted that the proposed designs fell short of sanitary standards and regula- tions. Nevertheless, the Directorate's recommendation was subsequently overturned by the Planning Com- mission after it held that the site was located in an area which the Local Plan designated for 'Consolidation of Business Activity'. Furthermore, the Commission ob- served the fact that the Superinten- dent of Cultural Heritage had not objected to the proposal. It was also noted that the consum- er area was less than 75sqm. This meant that applicant was exempted from providing an 'access for all' en- vironment. Following the issue of permit, an appeal was filed by an objector to the Environment and Planning Review Tribunal. In his appeal, the objector insisted that the permit should be revoked due to the fact that the pro- posal was incompatible with policy requirements. In his arguments, the plaintiff ob- jector maintained that in order for the proposal to qualify in terms of policy NWMD 2, an access had to be provided from either Triq Vil- legaignon, Triq San Pawl, Triq In- guanez, or Triq I-Imhazen. In actual fact, the premises in ques- tion could only be accessed through Triq Mesquita. Moreover, plaintiff contended that the development would give rise to unwarranted traffic congestion in an otherwise residential area. On this basis, plaintiff reasoned out that "the proposal was incompatible with an otherwise quaint residential area, thus running counter to Local Plan objectives which aim to pre- serve and enhance the residential amenity and setting of our impor- tant urban heritage." In its assessment, the Tribunal took note of the Commission's observa- tions in deciding to overrule the Di- rectorate's recommendations, where it held that the site was located in an area designated for Consolidation of Business Activity in accordance with Map 61 of the North West Lo- cal Plan." The Tribunal, however, assessed Map 61 and found that the site under examination was located outside the boundaries where further business activity could formally take place. The Tribunal noted that, even more so, the area was not commit- ted with any commercial activity. Against this background, the Tribu- nal upheld the plaintiff's appeal and moved on to revoke the permit. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Mdina permit for restaurant revoked A person cannot represent a company, if he acts on a personal basis. This was decided by the Administrative Review Tribunal on 16 April 2019 in Joseph Aquilina -v- Il-Bord tal-Gvernaturi ta' l-Awtorita ta' l-Artijiet, presided by Magistrate Dr Charmaine Galea. Joseph Aquilina had filed an applica- tion before the Administrative Review Tribunal wherein he explained that in August 2018, the Board of Governors of the Lands Authority had notified him of a decision taken with regard to a property in Sliema, which was given on temporary emphyteusis to Venxa Limited. The property houses a num- ber of shops with difference entrances, which shops are rented out. Aquilina is a director of the company and personal guarantor of the obligations the com- pany undertook. In March 2018, Aqui- lina personally wrote to the governors, asking them to approve a change of use of the property. Aquilina was not au- thorised by the company to make this request on behalf of the company and the contractual relationship is lim- ited between the Lands Authority and the company. The Board of Governors replied by refusing the request, since it is not in the government's interest that government property is trans- ferred. Aquilina held that the Board should have refused the request on the ground that it was not made by the company and that the refusal as put by the Board of Governors prejudiced the company's position. Aquilina asked the Tribunal to declare that the Board of Governors' decision of August 2018 is null and void. The Board of Governors defended the action by filing a statement of defence in which it held that the competent authority to decide upon requests for change of use of government property is the Lands Authority and it was Aqui- lina who had signed the deed of tempo- rary emphyteusis in May 2012 and he was authorised by the company at the time and therefore, he is known to the Authority as the person representing the company. The Tribunal held that this is a unique case where the plaintiff is asking for a decision to be revoked because the application should have been made by a different person. By examining the evidence the Tribunal pointed out that the conditions of the emphyteusis states that the property cannot be rent- ed to third parties, but it was already rented to third parties when the deed was signed. Clause 12 of the same deed states that the company cannot enter into partnership with third parties nor enter into management agreement. The Tribunal discussed whether the Board of Governors was the correct defendant in this action. According to Article 6 of the Lands Authority Act, the Authority has a distinctive juridical personality and therefore, it is adminis- tered by the Board of Governors. This plea was not accepted. The Tribunal also disagreed with the Board of Governors that the applica- tion was valid. The Board of Govern- ments disregarded the notion of a dis- tinction of corporate personality. It is true that Aquilina had signed on behalf of the company when the emphyteusis was established, but he was not doing this in his personal capacity. From the Memorandum and Articles of Associa- tion it transpires that he is not the only shareholder and director and the ad- ministration of the company is vested in two directors. Therefore, the Board of Governors should have checked whether Aquilina had the company's representation and authority to make any request. Even if Aquilina was the sole shareholder and director of the company, he must have been repre- senting the company and not himself. The request lodged was made in Aqui- lina's personal capacity and not by the company. Therefore, the Tribunal moved to or- der the Board of Governors to revoke their decision. There is a distinction between personal and corporate representation LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates