Issue link: https://maltatoday.uberflip.com/i/1211430
maltatoday | SUNDAY • 16 FEBRUARY 2020 19 LAW & PLANNING Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates THE Administrative Review Tribunal is competent to hear and decide any administrative act or measure taken by a public authority. This was decided in Joseph Borg v Awtorita' għat-Trasport f'Malta u Kunsill Lokali Żebbuġ on 7 February 2020 by the Administrative Review Tribunal presided by Magis- trate Charmaine Galea. In his application Borg explained that he works in the construction industry and has a number of heavy vehicles, which he garages in a garage next door to his residence. The road is narrow and it is impos- sible for him to enter and exit the ga- rage if there are parked cars next to the garage. In 2013, the Haz Zebbug Local Council painted 3.25 metres double yellow lines on one side of the garage, which allowed him to make use of the garage. In September 2019, the road was re- constructed and these lines were not painted back. The Council said that they were following instructions from Transport Malta. Borg asked the Tribunal to declare that the decision to remove these road markings as not in conformity with the correct manner administrative deci- sions should be made. Transport Malta pleaded amongst other things that the Tribunal was not competent in terms of Article 5(2) of the Administrative Justice Act, which does not allow the Tribunal to review administrative acts, when these fall un- der a judicial review mentioned in Ar- ticle 469A of the Code of Organisation and Civil Procedure. Transport Malta (TM) further argued that the decision to remove the road markings was not taken by an admin- istrative tribunal. Article 5 of the Act reads: "5. (1) There shall be set up in ac- cordance with the provisions of this Part of this Act, an independent and impartial tribunal, to be known as the Administrative Review Tribunal, for the purpose of reviewing administra- tive acts referred to it in accordance with this Act or any other law, and for the purpose of exercising any other jurisdiction conferred on the Admin- istrative Review Tribunal by or under this or any other law, whether before or after the coming into force of this Act. (2) The Administrative Review Tri- bunal shall not have a general juris- diction to review administrative acts which are reviewable under article 469A of the Code of Organisation and Civil Procedure but it shall have juris- diction to review those administrative acts as may be prescribed in or under this Act or any other law granting ju- risdiction to the Administrative Re- view Tribunal over any class of admin- istrative acts." Magistrate Galea held that it is clear that the legislator intended to give the Tribunal a limited scope of reviewing administrative acts, which a person may be aggrieved of and may appeal from those administrative decisions to the Tribunal. The Malta Transport Authority Act is one of these legislations that allows such appeals to the Administrative Re- view Tribunal. Therefore, the Tribunal does have the competence to decide upon deci- sions taken by the Authority. In this particular case, in 2013 the Authority authorised that road marking be paint- ed adjacent to Borg's garage and then the Authority removed these same lines. Therefore, this constitutes as an administrative act, which Borg is try- ing to revoke. As regard to the second plea that that the Tribunal was not limited to inves- tigate issues raised by administrative board, this is established in Article 5 of the Administrative Justice Act. TM had also pleaded that the deci- sion taken was not a decision taken by a board or Tribunal forming part of TM. In terms of Article 3 of the Administrative Justice Act adminis- trative Tribunals should follow certain norms. However, this article does not differ from other administrative acts which are not taken by tribunals. All public authorities should follow these admin- istrative norms. The Court then ordered the case to continue on the merits of the case. AT issue was a site located on the pe- riphery of an Urban Conservation Ar- ea (UCA) next to a Grade 1 Building. Applicant was proposing to extend the current topmost floor of an existing building complex as well as introducing two penthouses instead of the overlying airspace. Insofar as the floor area of the pent- houses was concerned, the Planning Directorate had no issue since the floor area was found to be in excess of the minimum required. As to the height limitation, the ar- ea was officially designated for three floors and an underlying semi-base- ment. Having said that, the officer ob- served that the Strategic Plan for En- vironment and Development (SPED) should take precedence, meaning that 'a contextual approach towards con- trolling building height within UCAs' should be adopted for new develop- ment. Reference was also made to the set- back floor policy which states that 'in the case of setback floors within Ur- ban Conservation Areas, the setback from the façade must never be less than that of the committed adjacent properties on one or both sides'. In this case, the site was located adjacent to a scheduled building, to which end the officer was concerned with further construction on the top levels. The officer went to observe that, in the current case, there were no sim- ilar commitments in the immediate vicinity which could possibly justi- fy applicant's proposal. More so, the Superintendent for cultural heritage took a cautious approach by saying that should the development be ap- proved, 'the penthouses will alter the height of a Grade 1 building and the streetscape within a UCA'. Applicant was therefore requested by the case officer to amend his pro- posal, providing a setback of at least three metres at fourth floor level 'in order to create an adequate transition and to better mitigate any new blank walls that will be created'. Neverthe- less, applicant had not acceded to such a request. Against this background, the Plan- ning Commission was warned that the proposed building envelope ran coun- ter to Urban Objectives 2.3 and 2.4 of the (SPED) which promote 'a context driven approach for the control of building heights within Urban Con- servation Areas in order to protect the traditional urban skyline'. The Commission was further told that the proposal was incompatible with policies P35 and P39 of the De- velopment Control Design Policy, Guidance and Standards 2015 which require that building heights are based on a streetscape analysis in order not to create an unacceptable visual im- pact. It was further underlined that the proposal lacked a transition de- sign solution which is inevitably re- quired along the edge of transition between different zones or areas. When the proposal was discussed by the Commission earlier this week, applicant seemed to have had second thoughts about providing a transition solution and signaled his intention to scale down the proposal in view of what the case officer had previously recommended. For its part, the Commission gave applicant the opportunity to submit fresh drawings showing the removal of ' the washroom at the uppermost level' as well as the provision of an ad- equate recess at third floor level. The case was, therefore, adjourned and a decision should be taken next month once applicant complies with the Commission's direction. Any administrative act may be scrutinised by the Administrative Review Tribunal Applicant asked to provide design transition solution LAW PLANNING Dr Robert Musumeci is an advocate and a perit having an interest in development planning law