Issue link: https://maltatoday.uberflip.com/i/1141804
maltatoday 13 | SUNDAY • 14 JULY 2019 CULTURE ENVIRONMENT LAW & PLANNING robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING THE Magistrates Court took into consideration the long-standing tradition that takes place in feasts and the public safety in considering criminal charges. This was held on 9 July 2019 in a judgement delivered by Magistrate Dr Caroline Farrugia Frendo in Pulizija vs Edmund Saliba and Laurence Portelli. Portelli was accused of not using diligence in firing fireworks at the San Guzepp Band Club in Hamrun. Then Portelli and Saliba were ac- cused of allowing and firing fire- works on the roof of the band club at 1.02am, without a licence and with- out an insurance policy. The prosecution had presented a number of documents and pro- duced Superintendent Carmelo Bar- tolo as a witness. In the 2016 feast, the San Guzepp Band Club applied for permits related to fireworks and band marches. There was a similar application from the rival San Ge- jtanu Band Club. On the night of 7 August 2019 both band clubs let off fireworks at 1.02am. He said that someone from the band club asked whether he could fire on the roof and he gave a negative reply, but just the same they let them off. Super- intendent Bartolo instructed that an investigation commence against both band clubs. Superintendent Bartolo, when cross examined, said that in 2014 the Commissioner of Police had given permission to the band club to let off fireworks for an extra 20 minutes, but in fact these lasted fo 45 minutes more. With re- gard to the application for fireworks, an insurance policy was attached, with a condition that fireworks must be let off during the time the permit allowed. A police inspector that was present on the night of 7 August 2016 con- firmed that there were fireworks af- ter 12.30am on the roofs of the two band clubs. Another police inspec- tor testified that he had been part of the organisation of the feast of St Gaetan since 2013. On the night both bands stopped playing before 1am and in order for both band clubs to give a signal that they were withdrawing from the streets, they fire a small fireworks display. Magistrate Dr Farrugia Frendo first dealt with whether the band club was covered by an insurance policy. An insurance policy is a must according to the Explosives Ordinance. The prosecution presented photocopies of the policy. The Court pointed out that the documents were photocop- ies, which is not the best evidence. The prosecution did not present any representatives of the insur- ance company to confirm the copy. It is the insurance company that has to confirm whether the band club would have been insured after the hours mentioned in the permit. Therefore, the accused were found not guilty of this charge. The Court also found the accused not guilty of the third charge, since there was an error in the charge sheet. Lawrence Portelli is not the secretary of the San Gejtanu Band Club, as stated in the charge, but that of St Joseph. As regards the charge of firing fire- works after the stipulated time, the evidence showed that the fireworks were let off after 12.30am, but did not stipulate when they stopped. The band clubs stopped playing in the streets at 1am. The feast of St Gaetan is a tense one due to the ri- valry between the two band clubs and therefore, the police are aware that the two clubs let off fireworks in order to signal that their respec- tive bands have stopped playing. This is derived from agreements which always existed and constitut- ed a tradition. The fireworks are not part of a display but a signal for the supporters that both bands stopped at the same time. This was also an assistance to police in order to as- sure themselves that the law and or- der would be kept. What happened in 2016 was the same as what had taken place in previous years. Again the application for a permit to let off fireworks was a photocopy and not the original. The copy was difficult to read. The law states that no fire- works shall be let off after 12.30am. The Commissioner of Police issues the permits, in which the times are listed. It is the police that have the discretion to allow fireworks after 12.30am. The law does not give a time-frame, meaning that there is no indication when the fireworks can restart after 12.30am and there- fore, allowing the police an amount of discretion for them to regulate in cases such as the Hamrun feast. As to the charge that Lawrence Por- telli allowed fireworks to take place at the St Gaetan band Club without a permit, the Court held that in the circumstances the band club has to allow fireworks at the time, because their supporters were waiting for the signal as has happened for decades. If the signal was not given, then there would be an issue of lack of law and order in the streets. Therefore, it was prudent that Portelli allowed the fireworks to be let off. The accused were also found not guilty of this charge. Court takes into consideration feast traditions LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates THE Planning Commission had ap- proved a planning application for internal alterations and the construc- tion of two overlying floors, the top- most of which was to be receded from the front alignment. In his report rec- ommending approval to the applica- tion, the case officer had noted that although the site was located within the limits of Urban Conservation Area of Sliema, the proposal com- plied with SPED Urban Objective 2 and Policy TO8.7 since it sought to improve the setting of the Sliema townscape and historic core without resorting to demolition. In addition, the case officer pointed out that a height to width ratio anal- ysis was carried out and 'a three floor elevation' was found to be accept- able. Moreover, it was noted that the corner building in front of the site was already developed on three full floors and the proposed design was therefore not considered to run counter the context within which the site was located. Following the said decision, an ap- peal was lodged by a number of third parties before the Environment and Planning Review Tribunal, who in- sisted that permission should not have been granted. In their appeal, the third party objectors maintained that they had a valid title of lease on the same property by virtue of Ar- ticle 12(2) et seq. of Chapter 158 of the Laws of Malta. It was explained that despite being fully aware of this fact, applicant had failed to forewarn them of his inten- tion 'to apply for a permit in order to undertake the relative works and alterations in the property in ques- tion'. More so, it was alleged that appli- cant had made no attempt ' to enter into preliminary discussions with a view to agreeing to a potential solu- tion prior to submitting the applica- tion, as would have naturally been expected'. As a final point, the Tribunal was reminded of its obligation to care- fully examine, even if only at prima facie grade, whether such matters had a bearing on, issues of planning law and procedure. As a reaction, applicant countered by saying that he was the undisputed owner of the property in question and he only sought to apply for the permit in question 'in accordance to law'. Applicant underlined that, in any case, all planning permits are issued "save for third party rights". Conse- quently, the permit was issued with- out prejudice to appellants' right to institute a civil case before the Courts. In its assessment, the Tribunal held that it was precluded to delve into civil matters, particularly so when a title was in dispute. Against this background the appeal was rejected while the permit was upheld. Planning Tribunal reluctant to delve into civil matters