Issue link: https://maltatoday.uberflip.com/i/1118959
maltatoday 17 | SUNDAY • 19 MAY 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application to use a private car garage for the production of tiles. In essence, the ce- ment tiles are produced using a press- ing machine and they are subsequent- ly placed in contained water with a view to develop the required strength ( a process known as 'curing'). The ap- plication was, however, turned down after the Planning Commission found that the premises were located within a residential area in Fgura. In order to support its decision, the Commission highlighted the following reasons: 1. The proposed development ran counter to the provisions of policy SMHO 02 of the South Malta Local Plan since industrial use cannot be favour- ably considered in residential areas; 2. The proposal was in conflict with SPED Urban Objective 3 which aims to protect and enhance the charac- ter and amenity of urban areas; 3. The proposal was also in breach of Guidance 6 of the Develop- ment Control Design Policy, Guidance and Standards 2015, which specifies that 'development should encourage direct, safe and attractive connections between public transport, footpath and cycle routes and existing and proposed uses and the layout within and around the development should be user-friend- ly, clear and legible in order to enable users and visitors alike to facilitate navi- gation and help people to understand where they are'. Further to the above decision, appli- cant lodged an appeal before the Envi- ronment and Planning Review Tribu- nal insisting that he should have been granted permission. In his rikors (appli- cation), applicant, now appellant, made the following arguments: 1. The proposed operations will not generate undue noise disturbance. It was explained that the cement tiles shall be 'manually created' and subse- quently cured in batches. To this end, a Fire, Safety, Noise and Ventilation Re- port was commissioned and the recom- mendations contained therein shall be adhered to; 2. In this case, the floor area was less than 50sq.m whereas the activ- ity employed less than five people. This meant that the proposal was in line with Policy SMHO 02 which clearly permits light industry in residential areas sub- ject to the gross floor area not exceed- ing 50sq.m and the non use of 'heavy duty and/or noisy electrical/mechanical equipment'; 3. No objections to the proposal were submitted by potential interested parties; 4. The premises shall not be used as a retail outlet. Hence, there was no is- sue with the 'layout within and around the development'. In reply, the Authority reiterated that the garage could only be accessed through an internal garage court. The proposal was thus in breach of Guidance G6 of DC 2015 which requires inter alia a user-friendly, clear and legible layout is provided in order 'to enable users and visitors alike to facilitate navigation and help people to understand where they are'. The Authority warned that pro- spective customers would be exposed to high danger and inconvenience 'as these are forced to share access through a common drive-in'. In its assessment, the Tribunal im- mediately observed that the garage was situated two floors below street level, ac- cessed from a common driveway. Fur- thermore, the Tribunal saw that, except for the tile pressing machine, the activity mainly involved the use of manual hand tools. For this reason, the Tribunal or- dered the Authority to issue the permit subject to applicant having to install a noise absorbing enclosure and anti-vi- bration mountings so as to ensure that the external sound levels were kept be- low 45dB(A). The permit was however issued subject to the prohibited use of pneumatic equipment which relies on a three phase supply. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Manual tile production allowed in basement garage THE First Hall of the Civil Courts up- held the cancellation of a medical in- surance after it was discovered that the plaintiff had broken his leg when he was 15 years old. This was held on 14 May 2019 in a judgement delivered by Madame Justice Anna Felice in Wilfred Tops -v- Laferla Insurance Agency Lim- ited and Middlesea Insurance plc. The plaintiff explained in his sworn application that he and his wife took out a medical insurance policy a number of years ago. The policy was cancelled by the insurance companies because the plaintiff withheld relevant and impor- tant information. In the proposal form filled in 2007, the plaintiff failed to say that when he was 15 years old, he suf- fered a fracture to his ankle. In 2007 the plaintiff was 63. The application further explained that in 2007, he could not have known that his fall when he was 15 years old was a material fact. He claimed that he had no repercussions and was very active by climbing mountains, sail- ing, playing golf, going to white water rafting and doingother activities. The insurance company is basing their can- cellation on the legal principle uberrime fides, meaning utmost good faith. Tops asked the Court to declare that was can- celled illegally and there does not exist any non-disclosure of a material fact and also to order the company to pay the insurance coverage. The insurance companies filed a state- ment of defence and held the cancella- tion was justified, as the plaintiff gave incorrect information, which would have meant that the insurance com- pany would not have issued the policy. Furthermore, the plaintiff accepted the cancellation, since he stopped paying the premium. The Court analysed the evidence pre- sented before it. It was proved that on the proposal form, Tops failed to men- tion his injuries to his ankle when he was 15 years old. In 1996 and 2006, he had to undergo an operation on his an- kle. However, in 2010 he was diagnosed with cancer and he went to Switzer- land to receive treatment. He was feel- ing some pain in his right ankle and his surgeon advised him to undergo an op- eration for a surgical fusion. It was here that the insurance company discovered his 50-year-old injuries. The insurance policy was cancelled in 2013. As for the legal considerations, the Court held that the principle of utmost good faith binds both the insured and the insurer. The principles of an insurance contract was discussed in a previous judgement Marco Tanti -v- OF Gollch- er & Sons Limited noe, decided on 30 April 2002 where the Court had held that the insurer prior to the conclusion of the contract must disclose all mate- rial facts within his knowledge. A failure to disclose, however innocent, entitled the insurer to avoid the contract. In an- other judgement Joseph Rizzo -v- John Formosa noe decided on 3 October 2002, held that the risk on the insurance policy is on the insurance company and expects that the insured would be hon- est. Therefore, there should be an ulti- mate good faith. In other judgements it was held that the proposal form is an integral part of the insurance policy and therefore, if there are false declarations, it would be equivalent to a false policy. In Salvu Briffa -v- Walter Camilleri noe decided on 9 February 2001, the Court of Appeal held that the doctrine of duty of disclosure in insurance contracts, has been regarded as rigid, inflexible and out of date. The expression "contracts uberimmae fidei has been too frequent- ly and almost indiscriminately used by insurers and judges as a excuse for ig- noring insurance claims. Consequently, the insured's duty of disclosure of mate- rial facts become one of the most oner- ous burdens on the insured in insurance contracts." In this particular case, the plaintiff had given negative replies on questions on whether he was prescribed with medi- cation in the last two years or whether he was in hospital for the same period. The plaintiff argued that the pain in his leg was caused by osteoarthritis and he had surgery in 2013, which had nothing to do with his accident 50 years before. However, from the notes of the Swiss hospital there was a mention that there were several operations. The plaintiff accused the clerk at the insurance company of filling in the form and leaving details out. However, this was not pointed out in his sworn appli- cation and was only made when his wife filed his affidavit. However, the Court pointed out that in the proposal form, the plaintiff left our recent operations. Furthermore, Tops spent some time as an underwriter at Lloyds in London and therefore, he should have been aware the importance of the proposal form. The Court concluded by rejecting the plaintiff's claims, since an insurance company is in a bilateral agreement and the payment of the premium by the in- sured kicks off the obligations on future damages. The Court cannot impose upon the insurance company to renew a policy, which is not a right that the plaintiff can claim. If you broke your leg 50 years ago, tell your medical insurance provider LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates