Issue link: https://maltatoday.uberflip.com/i/1110343
maltatoday 13 | SUNDAY • 28 APRIL 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application to construct 3 basements, which were envisaged to accommodate 28 lock up garages and 24 parking spaces, together with four levels of apartments above street level. The site in question was lo- cated in Triq Fleur De Lys, Birkirkara. Although the site was located within the development scheme, where rede- velopment could therefore take place, the proposal was turned down by the Planning Commission on the following grounds: The plans were not compliant with sanitary regulations since applicant had failed to furnish a ventilation and light- ing report as required by Legal Notice 227 of 2016; The 'modern design of the elevation' on Triq Fleur-de-Lys was deemed to be out of context with the rest of the streetscape. It was pointed out that the architect made no attempt at reproduc- ing any of 'the architectural features which are present in this streetscape'. For this reason, the development ran counter to the provisions of Policies G3, G14 and Part (b) of G23 of the Develop- ment Control Design Policy, Guidance and Standards 2015. The proposed elevation was incom- patible with the Urban Objective 3 of the Strategic Plan for Environment and Development, which aims to protect and enhance the character and amenity of urban areas; Enemalta Corporation failed to give its go ahead to the project. In reply, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the en- visaged development was in line with regulations. In his appeal, applicant (now, appellant) made the following ar- guments to justify his position: Contrary to what the Commission had asserted, a ventilation and lighting report duly signed by a warranted engi- neer was, in fact, submitted to the Plan- ning Authority; The proposed façade design was ac- ceptable so much so that the superin- tendent of cultural heritage had raised no concern to that effect. Moreover, the immediate streetscape had little aesthet- ic value, meaning that no negative visual impact with regard to the surrounding urban context was envisaged; The proposal would inject life in an area which had been transformed to a commercial hub over the years; The Enemalta had, since the decision of the Planning Commission, given the green light to the proposed develop- ment subject to a sub-station being pro- vided within the site at basement level. The Authority reiterated its previous objections to the proposal, pointing out that the light and ventilation report mentioned by applicant, though sub- mitted at a late stage, still failed to ad- dress the pending sanitary concerns. In addition, the Tribunal was warned that applicant's site was located close to an archaeological site and a 'less modern façade design' would have been more visually appropriate. As a final point, the Authority held that it was not against the principle of the area being regener- ated as long as applicant complied to 'other important planning considera- tions'. In its assessment, the Tribunal im- mediately observed that applicant had indeed submitted a light and ventilation report, which it considered to be accept- able. Moreover, it was noted that the is- sues which applicant previously held with Enemalta were also addressed. As to the façade design, the Tribunal how- ever concurred with the Authority and held that the proposed façade design on Triq Fleur de Lys should be 'revised' in view of the surrounding context so as to read as three floors. The new designs were to also incorporate a number of closed balconies as a distinct feature. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Tribunal orders a 'less modern design' in Triq Fleur de Lys A supplier who failed to refund an or- der which was cancelled on the hope that his claim would be set off, was in fact committing a crime of arbitrary exercise of a pretended right. This was decided in a judgement delivered by Magistrate Dr Aaron Bugeja in Il- Pulizija -v- Bruno Tucci on 16 April 2019. The accused was charged with misap- propriation and the arbitrary exercise of a pretended right. From the evidence produced the police received a report from Jason and Mario Bezzina that their company had ordered from Tucci two heat exchangers, which had to delivered to another company. Tucci has accepted and Bezzina paid him in full. The delivery had to take place within three weeks, but three months later, the heat exchangers were not delivered. The Bezzinas were receiving pressure from their clients, and they had no option but to cancel the order with Tucci and order the heat ex- changers from another supplier. When the heat exchangers arrived, they noticed that they were addressed to Tucci. The Italian supplier informed them that Tucci had paid a deposit, but not the balance and therefore, they were not delivered. Once the Bezzinas learnt of this, they insisted with Tucci to re- fund what they had paid him. Tucci had explained to the police that at the time he had health problems and therefore, could not complete the order. He learnt that Bezzina had ordered the two heat exchangers from another supplier with- out informing him. He did not refund the money because he claimed that the Bezzinas owed him money. Today the Bezzinas have been paid in full, with in- terest. The Court then examined the legal points and started to analyse the crime of misappropriation which is regulated by Articles 293 and 294 of the Criminal Code. Article 294 applies more to this case and reads: "294. Nevertheless, where the offence referred to in the last preceding article is committed on things entrusted or de- livered to the offender by reason of his profession, trade, business, management, office or service or in consequence of a necessary deposit, criminal proceedings shall be instituted ex officio and the pun- ishment shall be of imprisonment for a term from seven months to two years." In Pulizija -v- Joseph Muscat decided on 3 March 1997 by the Court of Crimi- nal Appeal, held that misappropriation is not a crime that requires any deceit, and therefore it is not fraud, but it is the manipulation of the possession that was obtained voluntarily. In another judge- ment Il-Pulizija -v- Giuseppa Cauchi, decided on 21 November 1953 by the Court of Criminal Appeal, held that mis- appropriation takes place when the ac- cused would have received the object for a specified reason, but that person used that thing in a manner which was not in- tended. Case law has also shown that the restitution of money does not necessar- ily amount to misappropriation, unless there is the intention to make use of the money in his favour. On the other hand the offence of arbi- trary exercise of a pretended right regu- lated by Article 85 of the Criminal Code, reads: "85. (1) Whosoever, without intent to steal or to cause any wrongful damage, but only in the exercise of a pretended right, shall, of his own authority, compel another person to pay a debt, or to fulfil any obligation whatsoever, or shall dis- turb the possession of anything enjoyed by another person, or demolish build- ings, or divert or take possession of any water-course, or in any other manner unlawfully interfere with the property of another person, shall, on conviction, be liable to imprisonment for a term from one to three months." In Pulizija -v- Anthony Zahra decided by the Court of Criminal Appeal on 20 June 2014, listed the elements of this of- fence, the first being that that a person is not allowed to enjoy a right, the second is that the accused is acting in a way that he believes that he has a right. The third element is that the accused is taking the law in his own hands, when he is meant to use a judicial process and the last ele- ment is that the offence is not of a serious nature. This offence can take place when there is a simple possession and is not allowed to enjoy that possession. In Il- Pulizija -v- John Vassallo decided by the Court of Criminal Appeal on 22 March 1991, held that there is no need to prove more than possession. Magistrate Bugeja pointed out that it is up to the prosecution to prove its case beyond reasonable doubt, however, if the court deems that a witness is credible, then that would be sufficient. In this particular case, it was proved that the accused had an agreement with the Bezzinas to deliver two heat exchang- ers. When the order was cancelled due to delays, the accused failed to refund the money paid. The Court held that it doubted whether Tucci had the crimi- nal intent to misappropriate the money. Tucci had at the end of the day refunded the money and there seems not to have been any profit on his part by keeping the money. Notwithstanding this, the delay in refunding the Bezzinas was not independent from his own will. He with- held the payment on the hope that there would be a set off what he was owed by the Bezzinas. This is not the same inten- tion as misappropriation, but more of exercising a pretended right. He believed that he was owed money and therefore, he took the matter in his own hands by withholding payment. As a consequence he was guilty of the second charge and was fined €200. Not refunding payment may constitute a crime LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates