Issue link: https://maltatoday.uberflip.com/i/310131
40 maltatoday, SUNDAY, 11 MAY 2014 Opinion A 2012 planning application entitled "conversion of two apartments into one duplex apartment" was turned down by MEPA's Environment and Planning Commission. In this case, applicant first obtained a planning permit to construct a penthouse. At the same time, a special concession was secured allowing construction having a reduced setback since the penthouse f loor area was otherwise less than the stipulated minimum for habitable dwellings (45 square metres). Thereafter, applicant submitted a new application (the one under review) with a view to interlink the penthouse with the underlying apartment. As a result, the application was refused on the pretext that the "the proposed development does not comply with policy 10.6c of Development Control Policy & Design Guidance 2007 since a reduced setback at penthouse level is only permissible for independent dwelling units which have a gross f loor area of less than 45 square metres. (minimum dwelling size)." Consequently, applicant appealed the decision before the Environment and Planning Tribunal, stating that "at no point does the policy restrict the joining up of a penthouse (which has a setback of 2.5 metres instead of the statutory 4.25 metres) to the underlying f loor." Besides, applicant contended that the MEPA approved similar applications. In his conclusive remarks, applicant argued that the proposal amounts to a "lessened" impact on the residential amenity by way of density and parking provision. On its part, the MEPA reiterated that "restricted penthouses" must be viewed as a planning concession based on a specific justification. The case officer maintained that policy concessions should not be abused at the expense of visual impact. In addition, the officer remarked that the proposal is tantamount to "bypassing" the system by first proposing a development that qualifies for a restricted penthouse and subsequently connecting same with the underlying apartment. As a final point, it was stated that policies are aimed to promote best practice planning and are not meant to be "bypassed" by virtue of "some loophole or another.". In its preliminary observations, the Tribunal maintained that should applicant have opted in the first instance to obtain a permit for a two storey duplex, the permitted upper f loor would have been required to be receded as per standard distance requirements (4.25 metres), in which case applicant would have been deprived of the eventual opportunity to split the f loors to independent dwelling units because the f loor area at upper level (with a full recess) falls short of the standard minimum dwelling size requirements. (45 square metres). To this end, the Tribunal observed that such a restriction is unwarranted. For this reason, the Tribunal ordered the MEPA to issue the permit. robert.musumeci@rmperiti.com Robert Musumeci MEPAwatch T he First Hall of the Civil Court, on 30 April 2014, allowed a father to have his surname corrected after the Public Registry had issued marriage and birth certificate of his two sons with obvious errors. Shaban Farag Abdel Ghany had instituted proceedings against the Director of Public Registry, after his marriage certificate had indicated the wrong surname, an error that was passed on to his two sons. In his application, the plaintiff held that he was born in Egypt on 28 December 1962. In 1993, he settled in Malta, married and had two children. He had registered is Egyptian birth certificate in Malta, which was correct and contained no mistakes in the spelling of his surname. The extract of his birth certificate then indicated the surname Ali, which was his grandfather's. The correct surname is Abdel Ghany, which is the surname of his father. His son Joseph 's birth certificate indicated him as the father, however it erroneously wrote Shaban Farag Abd El Ghani Ali and not Shaban Abdel Ghany. Furthermore, his wife also had errors in her name when she was indicated as the mother of the child. In fact, the certificate read 'Patricia, wife of the said Shaban Farag Abd El Ghani Ali ', instead of 'Patricia, wife of the said Shaban Abdel Ghany'. The same mistakes were shown on his other son Redeemer's birth certificate. The plaintiff 's marriage certificate had similar mistakes in his name. He complained to the Court that these mistakes do not ref lect the realit y and need to be corrected. Therefore, he asked the court to order the defendant department to correct the birth certificates of his sons and his marriage certificate. The Director of Public Registry held that these errors were not his fault, since it was the plaintiff who made such declarations when he went to register his two sons, Josef and Redeemer. The defendant held that the word Ali was included by the plaintiff and not by them. Furthermore, with regard to the marriage certificate, the plaintiff had declared and signed that his name was Shaban Farag Abd El Ghani Ali. Since the plaintiff was not Maltese at the time when he married in Malta, the authorities did not have any official system to verif y these details and therefore relied on what the plaintiff wrote himself. Mr Justice Joseph Azzopardi, who delivered the judgment in the case of Shaban Farag Abdel Ghany, in his name and of his minor children Redeemer Farag Abdel Ghany and Joseph Farag Abdel Ghany –v- Direttur tar- Registru Pubbliku, held that this action was based on Articles 253 et sequitur of the Civil Code, which allows a person to ask the court to order corrections of certificate of civil acts. The Court held that from the evidence produced, it is clear that there was a misspelling of the plaintiff 's surname. The Court held that the defendant department was not to blame for these mistakes and therefore, should not bear the expenses of this case. It seems that the plaintiff himself had given the wrong information. It could also have been a misunderstanding due complexit y of the surname. Mr Justice Joseph Azzopardi decided to uphold Shaban Farag Abdel Ghany's requests for corrections to the acts of birth of his children and his own marriage certificate. The Court however, condemned the plaintiff to pay for the court costs of the case. Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt The authorities did not have any official system to verify these details and therefore relied on what the plaintiff wrote himself MEPA says that "restricted penthouses" must be viewed as a planning concession based on a specific justification. Tribunal tends to disagree YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt Court allows correction of surname due to its complexity Tribunal dismisses claims that applicant is resorting to "policy loopholes"