Issue link: https://maltatoday.uberflip.com/i/1153841
maltatoday 13 | SUNDAY • 11 AUGUST 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 CHARLIE Catania was arraigned be- fore the Court of Magistrates (Malta) as Court of Criminal Judicature ac- cused that on the 14th December 2012 through imprudence, careless- ness, unskilfulness in his art or pro- fession, or non-observance of traf- fic regulations, involuntarily caused grievous bodily harm to Nazzarena Buhagiar. He was further accused that he drove his vehicle in a reckless, negligent or dangerous manner and that he failed to take all the necessary precautions when he was exiting onto a main road. The accident occurred when Nazza- rena Buhagiar and her husband Joseph Buhagiar were crossing the road by the roundabout close to Mater Dei Hospi- tal. Charlie Catania who was driving his vehicle was at the time stationary on the give-way before exiting onto the said roundabout and as Nazzarena Buhagiar was crossing the road, Charlie Catania drove on and her leg became trapped beneath the vehicle. Nazzarena Buha- giar was admitted to hospital where she spent 14 days and underwent surgery. She spent a further five months bed bound and underwent therapy. Buha- giar testified that Charlie Catania drove without looking on his side and there- fore only saw him and his wife after the latter had been hit. When analysing the first charge, the Court referred to previous decisions of our Courts which determined that the pedestrians themselves have a responsi- bility when using the road. In the judge- ments Pulizija v J Thorton and Pulizija v Cassar Desain, the Courts had declared that when a pedestrian suddenly goes down from the pavement or does so abruptly, they could startle the driver. In this case, spouses Buhagiar noticed that Catania was on the give way of the roundabout waiting for the cars on his right to clear so that he could exit onto the roundabout and they crossed the road from his left. Therefore, having determined that the pedestrians had, in fact, startled the driver, the Court had to determine whether the driver could have avoided the accident, notwithstanding the fact that he was startled by the pedestrians. The Court held that it is established in our jurisprudence that the driver is bound to keep a proper look out for pe- destrians even more so when the road allows this. Although the area of the accident was not properly lit, that im- posed on the driver the obligation to be more attentive. The court referred to a British Court judgement in the names Neuhaus ND vs Boston Insurance Co Ltd (1968) which held that "Keeping a proper look out means more than look- ing straight ahead, it includes awareness of what is happening in one's immediate vicinity. A motorist shall have a view of the whole road, from side to side, and in case of a road passing through a built-up area, of the pavements on the side of the road as well." In view of this, the Court held that al- though Catania had been startled by the pedestrians, he did enjoy a good visual of the road and he had time to keep a proper lookout of the whole road since he was stationary at the give way, waiting for the roundabout to clear and he failed to look on his left before exiting onto the roundabout which he was duty bound to do in order to avoid any accidents. With regards to the second charge ac- cusing Charlie Catania of reckless, negli- gent or dangerous driving, the Court re- ferred to the case Pulizija v Alfred Mifsud decided on the 6th May 1997 where the Court had analysed the definition of these terms. It was held that negligent driving was any form of driving that de- parts from or does not reach the level ex- pected from a reasonable, prudent, com- petent and experienced driver. As a rule the breach of traffic regulations as well as non-observance of the non-dispositions of the Highway Code which relate to the mode or quality of driving amounts to negligent driving. Reckless driving was contemplated as being a situation where there is a high level of negligence and includes the cases where one deliberately takes risks which he ought not to take whilst driv- ing due to the probability of the damage that could be caused to third parties. It also includes cases where the driver would be indifferent to such risks. Dangerous driving on the other hand contemplates those situations where the driving was dangerous to third parties and their property. In order to deter- mine whether this danger was present, one must evaluate all the circumstances of the case including the time, location of the accident and the presence of oth- er traffic or pedestrians or lack thereof. In the present case the Court held that the prosecution had failed to bring evi- dence before it as to what kind of driving was involved in this case. Moreover, the Court held that although the accused had exited onto the roundabout he did not do so recklessly since he waited for the other traffic to clear and reckless driving could not be proven in this case as it was not proven that the driver had deliberately taken risks in his driving. Likewise, the Court could not declare that the accused had failed to take the necessary precaution whilst driving but held his guilt was due solely to lack of prudence. In view of the above whilst finding the accused guilty of the first charge brought against him, the Court did not find him guilty of the second and third charges brought against him and dis- charged the accused on condition that he does not commit any other crime within three years. Being startled by a pedestrian does not exonerate driver from keeping lookout LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is an associate at Mifsud & Mifsud Advocates AT issue was a planning application entitled "Sanctioning of the part re- construction of a pre-1967 agricul- tural store". The room was located in a rural field outside the development zone of Siggiewi. Although there was no dispute that the site had been committed prior to 1978, the Plan- ning Commission held that the pro- posal was in breach of various plan- ning policies and thus rejected the permit. To substantiate its decision, the Commission submitted the fol- lowing reasons: The proposal was in breach of the provisions of policy 6.2C (5)(a)(b)(d) of the Rural Policy & Design Guid- ance (RPDG) 2014 in that the use of the existing structure as a non-agri- culture store was not legally estab- lished or covered by a development permission; The proposed development was not compatible with Thematic Objective 1.10 of the Strategic Plan for Environ- ment & Development which only al- lows for rural development which is legitimate or necessary; The proposal ran counter to criteri- on 3 of policy 6.2C of the Rural Policy & Design Guidance (RPDG) 2014 due to the fact that the footprint exceeded that of the pre-1978 building; The proposed development was not in line with Rural Objectives 1, 3, and 4 aimed at facilitating sustainable ru- ral development by controlling the location and design of rural develop- ment, as well as the cumulative effect of such development; The proposed agricultural store was also in breach of policy 2.5A criteria (2) and (3) of the Rural Policy & De- sign Guidance (RPDG) 2014 in that the applicant was not a registered farmer and the store was not located on registered agricultural land; The Environment and Resources Authority had also objected to the development. In reaction, applicant lodged an ap- peal with the Environment and Plan- ning Review Tribunal, insisting that he should have been granted permis- sion. Applicant, now appellant, con- tended that 'the agricultural store had always been used as such as evident from the submitted and attached photos.' It was further argued that the footprint of the present structure was identical to that of the 'pre-1967 agri- cultural store'. But even so, appellant clarified that his proposal concerned the replacement of only part of the original building. As a final point, ap- pellant remarked that him not being an officially registered farmer was not tantamount to 'the site not located within and totally surrounded by ag- ricultural land.' According to appel- lant, 'the right of reconstruction of dilapidated walls and fallen roof of a structure does not fall on the merit if the owner is a registered farmer or not', all the more so since in his case, the structure was typical of Mediter- ranean agricultural buildings. In reply, the Authority held to its previous position, reiterating that the proposal was not justified since the building was not used for agriculture purposes. It was evident, according to the officer, that the site had been left derelict for a long time and 'no ag- ricultural implements could be ever stored within a structure with a col- lapsed roof'. In its assessment, the Tribunal agreed with applicant in that the de- velopment in question was, more or less, equivalent to the committed footprint held prior to 1967. Refer- ence was also made to a site inspec- tion carried out by the Tribunal it- self, during which it resulted that the room was being used as an agricul- tural store. The Tribunal went fur- ther to state that despite applicant was not registered as a farmer, he had acquired a vested right due to the building having already been in exist- ence. With regard to the use (namely, agricultural storage), the Tribunal felt that this was compatible with the site characteristics. Against this back- ground, the Tribunal ordered the Au- thority to issue the permit. Of vested rights and compatible use