Issue link: https://maltatoday.uberflip.com/i/257374
47 maltatoday, SUNDAY, 9 FEBRUARY 2014 Opinion A planning application entitled "Proposed construction of kiosk at approved garden overlying approved restaurant" on a roof of a corner restaurant bordering Triq ix-Xatt ta' San Gorg in Paceville was initially turned down by MEPA' s Environment and Planning Commission. In its observations, the Commission held that the proposed development results in the "loss of a zoned public open space"and hence it was not the interests of the area "as a whole". To strengthen its arguments, the Commission made express reference to North Harbours Local Plan policy NHRL 01 which seeks to "protect" open zoned public space and prevent their development to other uses. Moreover, the Commission noted that the proposed development fails to provide an accessible environment for all its users and visitors, thus violating paragraph 4.16 of the Development Control Policy and Design Guidance 2007 and Structure Plan Policy SOC 24. (These policies require that premises used by the public are accessible for all). On his part, applicant filed an appeal before the Environment and Planning Tribunal, insisting that the site corresponds in actual fact to a private property, and added that the construction of a "kiosk" would certainly not "inhibit its open space characteristics." The applicant also argued that the kiosk would give "life and aim to an otherwise disused" public open space. However, the Tribunal stressed that the proposal conflicts with the provisions of the Local Plan. In its counteract, the Tribunal reiterated that the development was found to lack adequate accessibility for wheelchair users. In its assessment, the Tribunal concluded that irrespective of the fact that the site was earmarked as an open public space, it is nevertheless isolated from the surrounding public road network. Indeed, the Tribunal said that the plane is located seven courses below street level and consequently; the site cannot serve its intended public goal as established in the Local Plan. Taking this into account, the Tribunal ordered the Authority to issue the permit, provided that the applicant submits amended designs of a kiosk area of 20 square metres. In addition, the Tribunal requested that the structure would be easily demountable. An area for tables and chairs was also approved provided it does not exceed 25 square metres. Upon assessing fresh plans, the Tribunal said that accessibility issues would need to be addressed. robert.musumeci@rmperiti.com Robert Musumeci MEPAwatch The restaurant roof cannot serve as a "public open space" since it is located seven courses below street level Judge lays down the rules for parents Paceville kiosk approved on a roof of a corner restaurant I n a judgment delivered by Mr Justice Noel Cuschieri on 31 January, the Civil Courts (Family Section) awarded a mother the care and custody of her son even though there was evidence of a number of problems that existed. The judgement whose names were left confidential and therefore merely published as AB v CD dealt with two former partners who had a son but whose relationship ended. The mother filed an action against the father of her son in order for the Court to award her the care and custody of her son and to order the father to pay maintenance. However, the father objected and requested that the care and custody be held in common. Evidence pertaining to the care and custody of the child shed light on a number of existing problems. The plaintiff held that their son was exposed to his father's new partner and there was a time when the child was not certain who his mother was. Moreover, the mother also claimed that there were incidents of violence and that the father had broken things at home and sweared. She also said that she had to pick up the child from the police station due to fear of further violence. On the other hand, the father rebutted the plaintiff 's claims by stating that his relationship with his son's mother had ended because of her unfaithful behaviour, to the point that he had doubts on the paternity of the child. The defendant also claimed to have bought medicine and clothes for his son, because the mother had refused to buy him these items. He also claimed that he had to pick up the child from the police station because of violent incidents that occurred near the mother's home. The defendant also said he was attacked and injured by the mother's parents and boyfriend in front of the child and also accused the mother's boyfriend of trying to murder him by hitting with a farm tool and causing him 18 stitches on his head and a broken leg. Furthermore, the father said he was worried that his son was being exposed to lewd acts, as allegedly, the mother was sleeping with her boyfriend in front of the child. The father also said he was prevented from taking a photo with his son at his first holy communion. The Court observed that the factual care and custody of the child was the mother's responsibility and should remain as such. However, due to the surrounding problems, the judge handed down a number of conditions. Mr Justice Cuschieri said extraordinary decision should be taken jointly and that both parents had to inform each other with all issues pertinent to the child's health and education. Moreover, the judge said that each parent had a right to receive information from the school the boy attended. With regard to the father's visitation right, the parties had informed the court of an agreement that they had struck and the court confirmed that the child should be at his father for two hours on Monday, Thursday and Friday and shared the weekend on alternate weeks. Therefore one week the son would visit his father from Friday to Saturday and the next week from Saturday to Sunday. Furthermore, the Court held that the paternal grandparents could pick up the child if the father was at work. As regard to feasts such as Easter, Christmas and New Year's Day, these would alternate from one year to another. With regard to maintenance, the mother held that the father failed to pay from December 2006 to September 2010 and some months in 2013 totalling 11,417. In a previous court decree he was order to pay Lm100 per month. However, the father produced receipts issued to the mother for some dates in that period. The mother also reduced the sum claimed even further, since other payments were made. In total the father owed the mother 5,826 in maintenance. The Court turned down a request for expenses the mother incurred in medical and educational costs since a list which was presented in court was not confirmed on oath. Mr Justice Cuschieri revised the maintenance that the father was to pay to 180 a month which included ordinary medical expenses however, extraordinary medical and educational expenses were to be divided between the parents. Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt for parents mmifsud@mifsudadvocates.com.mt The father said he was worried that his son was witnessing lewd acts, as allegedly, the mother was sleeping with her boyfriend in front of the child YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt Download the MaltaToday App now