Issue link: https://maltatoday.uberflip.com/i/1113313
maltatoday 13 | SUNDAY • 5 MAY 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application for the sanctioning of two residential units overlying an elevated basement located within a Category 2 settle- ment outside the development zone of Dingli. The proposal was turned down by the Planning Commission on the following grounds: 1. The development as carried out was in breach of criterion (i) of Local Plan policy NWRS 3, this being the applicable policy for sites falling within Category 2 ODZ Settlements. This is be- cause the footprint at basement level exceeded 150 sq.m, that is to say the maximum footprint area permitted by the said poli- cy, that is 2. The building was higher than the height which was permitted at law, that is two floors; 3. The elevated basement was con- sidered to be incompatible with the character of the streetscape; 4. The design of the openings on one of the facades lacked symmetry. 5. Following the said decision, ap- plicant filed an appeal against the Environment and Planning Review Tribunal, insisting that his request should have been ap- proved. In his rikors (appeal ap- plication), applicant, now appel- lant, put forward the following arguments: 6. The Rural Policy and Design Guidance, having been pub- lished in 2014, was deemed to supersede Policy NWRS 3 of the North West Local Plan which was issued in 2006. According to the rural policy, a basement was permitted as long as it was confined to the committed foot- print; 7. As for the elevated basement, to which the Authority found objection, the Tribunal was re- minded that there were similar commitments in the immediate vicinity; 8. Contrary to what the Author- ity had purported, the building façade, not only did not lack symmetry, but it provided "an interesting facade vis-à-vis the context of the area"; 9. The overall height of the build- ing totaled 11 metres "which is within the overall permissible height according to Annex 2 of the DC2015". In reply, the Planning Authority ac- knowledged that the site was located within a designated Category 2 Rural Settlement and was therefore subject to policy NWRS 3 of the North West Local Plan. It was underlined that the basement extension measured 185 sq.m, whereas the said policy NWRS 3 permitted a maximum overall area of 150 sq.m. In this context, the Authority warned that "a departure from the Local Plan policy will only result in a develop- ment that will not respect the remain- ing built context within this Category 2 rural settlement and will thus render the Local Plan exercise for this area as fruitless". As to the façade design, the Authority observed that the building design was "monolithic" and visually unacceptable. In its assessment, the Tribunal ob- served that the Authority's main con- cerns were associated with the base- ment having an area exceeding 150 sq.m and the building façade which was higher than 11.4 metres. Never- theless, the Tribunal concluded that the site context was characterized by similar buildings also having an el- evated basement. Against this back- ground, the Tribunal issued the per- mit subject to a fine of €1,197.76. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Infringements in Category 2 settlement sanctioned THE Court of Appeal ordered that a tender be re-issued following the information required for a tenderer to quote was not sufficient. This was held in a judgement delivered by the Court of Appeal in IOT Malta Lim- ited -v- Kunsill Lokali, Valletta, CVA Technology Company Limited on 29 April 2019. The appeal was lodged by the IOT Malta Limited, following a decision de- livered by the Public Contracts Review Board. IOT had originally objected to the Valletta Local Council's decision to put aside the company's bid to set up a parking management system in Vallet- ta. The contract was awarded to CVA Technology Company Limited. The Local Council had issued a tender for the Design, Development, Supply, Installation and Testing for a Parking Management System Including Park- ing Availability Sensors for Valletta as part of Civitas Destinations Project. The tender document included a number of conditions including that the solution proposed must be interop- erable with the Valletta Travel Infor- mation System (VaTIS) app, designed to aggregate and disseminate travel information. Companies which were interested in the tender asked for more information on the details required for the app. The Council replied that the "information will be provided after award of contract." There were three tenderers, CVA, IOT and another one. On 24 March 2018 the Council asked IOT for more clarifications on its tender and this was replied on 2 April 2018. On 10 September 2018, the Council informed IOT that CVA was given the contract. The reason behind this was that the Evaluation Committee was not aware of the costs to integrate VoTIS and the Committee was "not in a position to establish/derive to a fixed value at evaluation stage, prior award- ing the contract …." CVA was not the cheapest but IOT was. IOT challenged this decision before the Review Board asking it to revoke the Council's deci- sion. The Review Board gave its deci- sion on 1 November 2018 wherein it did not agree that there was a change of goal posts, as claimed by IOT, since VoTIS application should have been part of the technical requirements and it was clearly described, but IOT did not clearly indicate the application in the original submissions. The clarifi- cations given before the submission of the tender dealt with technical specifi- cations and the bill of quantities. The Board held this did not amount to new or additional specifications. With regard to the reason for the rejection of IOT's tender, the Board agreed with the Valletta Local Coun- cil that the bid was incomplete as the costs to have the service integrated with the VaTIS is unknown. The com- pany failed to make adequate clarifica- tions of its bid. The Court of Appeal was asked to re- view this decision. Before handling the appeal, the Court of Appeal had to deal with the request by the Valletta Local Council to remove the documents IOT presented in the appeal and which were not presented before the Review Board. In the list of documents presented with the application for the appeal, a num- ber of documents were specifically mentioned, while others were merely described as "various documents" pre- sented before the Review Board. The Court pointed out that each document should be described in the note listing the documents, but the Council failed to pin point which of the documents it was objecting to and therefore, these cannot be removed from the acts of the case. As the first ground of appeal, the company argued that how the tender was issued breached the principle of equal treatment. CVA has an advan- tage because it already operates the system. This point was ignored by the Board, although it was raised. IOT held that although CVA had a right to ten- der, the Council should have given a better explanation of what is required. The Court of Appeal held that the ten- der document the system offers should be interoperatable with the VaTIS app, but who is not familiar with the cur- rent architecture of the system, will not have sufficient information to make the system proposed compatible. When clarifications were sought, the tenders were informed that the system needed to generate an xml file every few sec- onds, which would be available online. CVA argued that this information was sufficient for all the tenderers. How- ever, the clarification also said that the information "will be provided after the award of contract". Therefore, the ten- derers, apart from CVA (who provided the service already), could not establish if this had an effect on the price. This meant that CVA was the only tenderer with sufficient information to be able to make a bid. Therefore, the Court of Appeal revoked the Review Board's de- cision and ordered that there be a fresh tender, with all the necessary informa- tion available to all tenderers. Authority issuing a tender must give all information to all tenderers LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates