Issue link: https://maltatoday.uberflip.com/i/329964
44 maltatoday, SUNDAY, 15 JUNE 2014 Opinion A 2012 planning application entitled "Demolition of the existing kitchen/dining at second floor level and construction of an additional full floor at second floor level and washrooms at roof level, and to sanction part of the existing as built" was turned down by the Environment and Planning Commission after it held that "the height of the proposed building exceeds the maximum height limitation for Mellieha." The Commission highlighted that the proposed building envelope is incompatible with the surrounding urban characteristics. In its assessment, the Commission observed that the building plot has a frontage on two streets set on different levels as a result of which, the building profile is required to be "stepped down" in consistence with the sectional topography (Policy 2.3 of the Development Control Policy & Design Guidance 2000). Moreover, the Commission held that the proposed development runs counter to Structure Plan policy UCO10 in that it would adversely affect views of the Urban Conservation Area and detract from the traditional urban skyline, thus failing to maintain the visual integrity of the area in violation of Structure Plan policy BEN 2. In reaction, the applicant lodged an appeal before the Environment and Planning Tribunal, contending that if one had to consider a 50- metre radius from his location, the predominant height is equivalent to three floors. In support of his argument, the applicant cited a number of permits that were approved in recent years. For its part, MEPA insisted that the permits quoted by the applicant were issued before the 2006 Local Plans came into force. In its preliminary assessment, the Tribunal underlined that planning decisions need to be determined in accordance with the relative Local Plan provisions that are in force at the time of decision. Nevertheless, the Tribunal observed that the permits quoted by the applicant, although issued prior to the 2006 Local Plan, were approved in the light of the provisions contained in the 1995 "Development Control within Urban Conservation Areas". The Tribunal added that the said document was never repealed, so much so that reference to it is expressly made in the Local Plans. On this basis, the Tribunal maintained that the precedents quoted by the applicant cannot be overlooked. After considering all the above circumstances, the Tribunal ordered MEPA to issue the permit subject to the applicant submitting fresh plans showing a recessed one- bedroom unit at second floor level, having a 4.25-metre setback from one side and a 2.5-metre recess from the rear façade. Robert Musumeci MEPAwatch O n 6 June 2014, the Administrative Revision Tribunal presided by Magistrate Dr Charmaine Galea held that a government entity cannot make use of a time limit when its forms indicate otherwise. This was held in Sebastiano Vella –v- Transfer of Residence Exemption Board. On 5 March 2013, Vella filed an application before the Tribunal, explaining that he is an Italian national and resided in Italy together with his Maltese wife. In October 2012, his family moved to Malta and they brought with them their Italian registered car, a Hyundai Matrix. Vella requested that he be allowed not to pay registration tax in accordance with Article 19 of the Motor Vehicles Registration and Licensing Act. He asked for information from the competent authority and was given Form VEH 07, which listed the conditions to be able to receive this exemption. The applicant's vehicle must have been used outside Malta for at least 2 years before his change in residence in Malta. The form also mentions that the vehicle must be declared for the extension after two months from when the applicant became a resident in Malta and not later than one year. On 15 February 2013, Vella received from the Chairman of the Transfer of Residence Exemption Board saying that his application was being declined in terms of Regulation 4(3) of the Legal Notice 6 of 2012. The applicant asked the Tribunal to overturn the Chairman's decision and allow an exemption from payment of tax. The Transfer of Residence Exemption Board defended the case, saying that according to Vella's application he transferred his residence on 13 October 2012 and the vehicle arrived in Malta on the same day. The application was filed after more than 30 days. The Board then later filed further pleas in that the Minister of Finance was the correct defendant, which was accepted. The Minister of Finance also defended the action by saying that the application was filed late and that ignorance of the law is not a defence and therefore, Vella cannot sustain his claim by saying he did not know he had 30 days to file. Magistrate Galea examined the facts of the case, where it was evident that the application to exempt Vella from paying registration tax was filed late. It was also proved that Vella sought advice from Transport Malta, but none was forthcoming, not even on the authority's website. The Board argued that Vella did not fulfil one of the conditions in that he has to file his application within 30 days as laid down in the legal notice. Article 19(2)(a) and (d) of the Motor Vehicles Registration and Licensing Act stipulates that: a) The Minister responsible for finance may, by order and subject to any conditions, restrictions or limitations, exempt any person from the payment of any tax or part of the tax or from any obligation imposed under this Act. (d) The Minister responsible for finance may delegate his authority to any person to put into effect the exemption under paragraph (a) In fact the Minister did delegate this power to the defendant Board. Article 19(3) of the same Act says that vehicles will be exempt from registration tax under a list of conditions and this list is found in Subsidiary Legislation 368.01. Another important fact was that the applicant and his car arrived on 13 October 2012, which meant that on that day the 30 days began, according to the same subsidiary legislation. However, the Tribunal commented that the background of this case is extremely important. According to the application form VEH 07, there is written: "A vehicle is to be declared for exemption not earlier than two months before the date on which applicant becomes normally resident in Malta and not later then twelve months following that date" This is the only time period found on the form, and it fails to indicate the 30-day requirement. Only Transport Malta knows about the 30-day period in which one has to file the application. The Tribunal held that the public administration failed tremendously in this case. In fact the form has changed and highlights the 30-day period within the amended version of the form. Therefore, the authority was aware of this grave mistake. The Tribunal commented that the public administration is there to assist people to receive the correct information. The applicant followed what was stated on the form but was penalised by having it rejected. The Tribunal further explained that it understood the legal maxim that ignorance of law is no excuse. However, the form in question makes reference to the Act, while the 30-day rule is not found in the Act but in the Subsidiary Legislations. As a consequence, the authorities concerned did not carry out proper administration towards Vella. The Tribunal ordered that the rejection of Vella's application be revoked and that he be exempt from paying registration tax of his vehicle. Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Misleading government forms allow applicant an exemption on registration tax 1995 'height document' takes precedence Download the MaltaToday App now YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt ANTIQUES POMSKIZILLIOUS museum of toys Xaghra Gozo. Open June, July, August September Monday - Saturdays 10:30am - 1:00pm and 4-6pm. Groups by appointment. Keeping yesterday for you to see today. Toys from the main toy producing countries of the mid 1800-1930s. Call 21562489 POMSKIZILLIOUS museum of The applicant asked the Tribunal to overturn the Chairman's decision and allow an exemption from payment of tax Permits quoted by applicant, although issued prior to the 2006 Local Plan, were relevant