Issue link: https://maltatoday.uberflip.com/i/1115758
maltatoday 17 | SUNDAY • 12 MAY 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application which sought to 'regenerate a disused residence' located outside the devel- opment zone of Mgarr. The proposed drawings indicated that the present building, which according to the proposal description had an area of 'circa' 100sq.m, would be demolished to pave way for a new residence with a floorspace of 130sq.m. Following a thorough assessment, the Planning Commission turned down the proposal after it held that applicant had failed to submit evi- dence to sufficiently prove that the building was used as a residence prior to 1992. For this reason, the Commis- sion concluded that the proposal ran counter to the provisions of criterion 5 of policy 6.2C of the Rural Policy and Design Guidance, 2014. As one would expect in the circum- stances, applicant lodged an appeal with the Environment and Planning Review Tribunal, insisting that the permit should have been issued. In a nutshell, applicant (now, appellant), maintained that the building was 'le- gitimate'. To support his argument, reference was made to the definition of 'legally established' in the policy guidelines, being in the following exact words: 'Unless specified otherwise in the policy document, the term "'legally established' refers to any intervention, including land-use change and land reclamation covered by development permission or that which is visible on the 1978 aerial photographs." To this end, applicant stated that, in the past, the building was occupied by a certain family by the surname of 'Chetcuti'. Against this background, appellant claimed that he had a vested right to take residence in the men- tioned property. In reply, the Authority reiterated its objections to the proposal. Contrary to what applicant had purported, the building was evidently never used as a residence as could be seen from 'the low level roofing'. It was further high- lighted that the electoral register was not considered to provide sufficient proof that applicant's premises were ever used as a residence. On the con- trary, the electoral register only dem- onstrated that family Chetcuti used to live in the hamlet. On its part, the Tribunal held that it would consider redevelopment as long as the 'residential use' was visible on the 1978 aerial photos. This principle was enunciated by the Court of Ap- peal in a recent decision in the names 'Joseph Borg et kontra l-Awtorità'. Al- though there was no dispute that the building existed in 1978, the Tribunal was not convinced that it was habited at the time. For this reason, the appeal was rejected. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Tribunal not convinced that rural building was ever habitable THIS was held by the First Hall Civil Court in its judgement of the 8th May 2019 regarding an application filed by Ritienne Apap and Silvio Apap against the Commissioner of Police and the Attorney General. The facts of the case revolved around a crimi- nal offence that Silvio Apap, one of the plantiffs, had been found guilty of committing. By means of a judge- ment of the Criminal Court of the 18th March 2015 as confirmed by the Court of Criminal Appeal by means of a judgement of the 30th Novem- ber 2017, Silvio Apap had been found guilty of a crime related to drug im- portation in breach of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta. In conjuction with the punishment of imprisonment for the crimes committed and a fine of forty thousand Euro (€40,000), the Court had also ordered that all the assets of Silvio Apap were to be forfeited in fa- vour of the Government of Malta in terms of the Dangerous Drugs Ordi- nance, including all his moneys and other movable and immovable prop- erty. Prior to their marriage, Ritienne Apap and Silvio Apap had acquired a prop- erty by means of a deed of sale. This property eventually became their mat- rimonial home and since it formed part of Mr Apap's assets it was also affected by this order of forfeiture. In view of this, spouses Apap filed an application before the First Hall Civil Court where- by they requested the Court to release the said property and other property such as moneys held in the sole name of Ritienne Apap, which formed part of the community of acquests existent between the spouses in virtue of their marriage. The basis of this application was that the plaintiffs held that these properties did not result from the com- mission of any criminal offence or any proceeds thereof. This application was filed in terms of Article 22C of the Dangerous Drugs Ordinance which states that where an order of forfeiture is issued the person found guilty, or the third party therein mentioned, may bring an ac- tion for a declaration that any or all of the movable or immovable property so forfeited is not profits or proceeds from the commission of any offence under this Ordinance (whether or not so ad- judged by a court of criminal justice) nor property acquired or obtained, di- rectly or indirectly, by or through any such profits or proceeds. The defendants from their end op- posed the application by stating that the order of forfeiture should not be amended unless clear proof is brought before the Court showing that the ori- gin of the property is not illicit. During the pendency of the case, it re- sulted that the matrimonial home had been acquired in 1999 and in order to finance its acquisition a banking facility had been granted and had always been paid and was still being paid. Moreo- ver it resulted that during the period between the years 1994 and 2011 Silvio Apap had always retained a regular job and this resulted from the job history records held by JobsPlus whereas Ri- tienne Apap remained employed until the present day. Spouses Apap argued that the said property had been ac- quired from money earned from these jobs and not from any moneys related to the crimes committed by Mr Apap which were committed in 2014 and the payments towards the banking fa- cility were currently being made from bank accounts where Ritienne Apap's earnings from her regular employment were deposited. When considering the facts of the case the First Hall Civil Court high- lighted the fact that, as stated in a pre- vious judgement in the names of Fran- cis Muscat vs. Kummissarju tal-Pulizija decided by the First Hall Civil Court on the 31st May 2010, the onus lies with the plaintiffs to prove to the Court that the property in question in fact had not been acquired with the proceeds obtained from the commission of a criminal offence or any illicit activity. In the present case, the Court when considering the evidence that was brought before it, was satisfied that the matrimonial home of spouses Apap had not been acquired from proceeds of the criminal offence committed by Mr Apap since this had been acquired fifteen years prior to the occurrence of the crime. Moreover it held that the fact that the couple were granted a banking facility in order to acquire the property meant that the spouses had a regular employment with remunera- tion and this further proved that the moneys were not a result of the crime committed. Moreover, it resulted that the payments towards the banking fa- cility were currently being made from the remuneration acquired by Mrs Apap from her employment and there- fore the Court was satisfied that the house was not acquired with money generated from criminal or illicit ac- tivities. In view of the above, the Court, whilst ordering that the bank accounts held solely in the name of Silvio Apap and a particular vehicle that was used to commit the crime were to remain for- feited in favour of the Government, al- so ordered that the matrimonial home, other vehicles owned by the applicants, a small boat and the bank accounts held in the sole name of Ritienne Apap were to be released from this order of for- feiture since it was saitisfied that their origin was not related to any criminal or illicit activities. Property not forfeited in favour of government when not of criminal origin LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates