Issue link: https://maltatoday.uberflip.com/i/274219
47 maltatoday, SUNDAY, 9 MARCH 2014 Opinion A development application entitled, 'To sanction the construction of a boathouse' in Dwejra was turned down by the MEPA Board in June 2011, even though the Board had expressed its "intentions to approve" such development during a public hearing way back in 2008. In its decision the Authority observed that applicant did not accede to its request to submit fresh drawings showing a lowered perimeter wall and no projection at roof level. At the same time, it was stated that the drawings showed a sanitary facility which was not indicated in the original drawing submissions. Moreover, the Board underlined that Dwejra is located within a Special Area of Conservation of International Importance and of high scenic value, adding that upholding such a request would go against "the public interest and proper planning". As a final point, the Authority remarked that the proposal cannot be considered further unless the illegal development (in this case the boundary wall and the roof projection) is first sanctioned or removed in synch with regulation 14 of Legal Notice 514 of 2010. Eventually, applicant lodged an appeal before the Environment and Planning Tribunal, insisting that fresh plans showing the removal of the projection and lowering of the wall were indeed submitted in line with the Authority's request. But even so, applicant observed that three years prior to its final decision which was taken in the year 2011, the MEPA Board had stated (in 2008) that the sanctioning of the boathouse could be approved "on condition that the applicant submits revised drawings, to reduce the height of the boundary wall and the projection at roof level". Once these drawings were indeed submitted, applicant contended that the Authority was obliged to issue the permit. Applicant made also reference to other commitments in the area and requested the case officer to "explain the manner in which the applicant's request differed to similar approved developments". For its part, the Tribunal confirmed that during the application process, albeit at a very late stage, applicant had indeed submitted fresh plans showing a lowered wall and no projection as requested by MEPA itself. Quoting from the landmark decision in the names 'Reverendu Joseph Tabone kontra l-Awtorita' ta' Malta dwar l-Ambjent u l-Ippjanar', the Tribunal held that the Authority may not conclude that a proposal runs counter to "public interest and proper planning" without providing supporting arguments. In this case, the Authority failed to give solid reasons as to why the proposed sanctioning ran against the public interest. Against this background, the Tribunal requested the MEPA to issue the permit subject to a planning obligation equivalent to a 4,612. Nonetheless, the Tribunal stated that the sanitary facilities as shown on plans were not being approved. robert.musumeci@rmperiti.com Robert Musumeci MEPAwatch MEPA may not simply state that a proposal runs counter to "public interest and proper planning" without providing details Court does not rest on a nickname MEPA obliged to "elaborate" on refusing an application T he Court of Criminal Appeal decided that the Magistrates Court was correct not to convict a person solely on his nickname and if the police wanted to identif y a person the least it should have done was to show the main witness photos of the accused. This was held by Mr Justice Antonio Mizzi on 3 March 2014 in the case The Police v Eleno sive Lino Bezzina. Bezzina was accused that in 1998 he was in possession of drugs and trafficked them. He was also charged with falsif ying bank notes and with being a recidivist. The Magistrates Court on 25 April 2012 found the accused not guilt y of the charges brought against him, however the Attorney General appealed the judgement. The Attorney General argued that the Magistrates Court arrived to the wrong conclusion. The Attorney General quoted from the judgement where the Magistrate's Court held there was no link between the facts of the case and Bezzina. He was not identified by the prosecution's main witness and the Court could not rest on this evidence. The main witness' testimony brought the successful prosecution of other people on the falsification of bank notes, but with regard to Bezzina, it did not have the same success. The Attorney General argued that the main witness, Joseph Attard, had told the police in his sworn statement that he bought drugs from a person from St Venera with the nickname Xalun. When the police asked Bezzina whether he was known by a nickname, he replied Xalun. Mr Attard told police that he used to meet Xalun in the Square of Hal Qormi and took him to another place in Hal Qormi. The accused told the police that he had a place in Hal Qormi but this belonged to his father and the rest of the family. The Court of Criminal Appeal stated in its judgement that it does not disturb the Court's examination of evidence, when the court reasonably and legally arrives to that conclusion. If the appellate Court is of the opinion that the Court of first instance could arrive to the decision it arrived to on the evidence produced then the Court of Criminal Appeal cannot change that discretion and conclusion. In fact Mr Justice Mizzi listed a number of previous Court Criminal Appeal judgements that held the same position. The Court then examined Attard 's testimony and statements, where he mentioned the nickname Xalun. The Court held that the Attorney General expected that this evidence pointed only in one direction, however, it argued that the prosecution had to show to the Court that Mr Bezzina was the only person in Malta known as Xalun. Secondly the police failed to confirm the identification of Xalun by showing Attard photos of the accused. Attard was not even asked to describe the person concerned. In his testimony in Court, Attard did not identif y the accused and with regard to the identification of the propert y in Hal Qormi, he was not taken on site to say whether it was the same place. Therefore the Court of Criminal Appeal turned down the appeal and upheld the not guilt y judgement. Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt The main witness' testimony brought the successful prosecution of other people on the falsification of bank notes, but with regard to Bezzina, it did not have the same success