Issue link: https://maltatoday.uberflip.com/i/333851
44 maltatoday, SUNDAY, 22 JUNE 2014 Opinion A planning application entitled "To develop two duplex units overlying existing first floor dwelling and ground floor garages" concerning a corner plot was turned down by the Environment and Planning Commission after it held that the topmost floor, which forms part of the upper duplex, requires a 4.25 metres setback with respect to both street elevations. Indeed, the proposed drawings show a receded topmost floor, having a 2.5 metres setback (instead of 4.25 metres) with respect to one street frontage and a 4.25 metres recess (as required by policy) overlooking the other frontage. In reaction, the applicant appealed the decision before the Environment and Planning Tribunal, insisting inter alia that his site is restricted, adding that in such cases, the policy allows for the "erection on the roof of a building of an additional level which forms part of, or will form part of, a duplex unit with the residential unit immediately below" with a reduced setback. Applicant further contended that in any case, his proposal still included a 4.25 metre setback on one frontage. For its part, the MEPA case officer made reference to Policy 10.6 of the Policy and Design Guidance 2007 which states that the construction of rooms at roof level as a duplex with the underlying residential unit are allowed, provided that where the proposed development has a frontage on two streets, the "penthouse level" should be set back at least 4.25m from each frontage. For this reason, the Authority maintained that there are no sound planning justifications which could justify a breach in policy. In its assessment, the tribunal took note of the submissions put forward by the parties. The tribunal made express reference to Policy 10.6 C of the Development and Design Guidance (2007) which specifically refers to penthouse floors in restricted corner sites. The said policy provides that "on restricted corner sites, penthouses which are set back by at least 2.5 metres may be permitted", adding that such policy may be invoked in situations when the gross floor area of a penthouse is less than 45 square metres (minimum floor area required for dwellings). In this case, the Tribunal maintained that the proposed topmost floor is interconnected with the floor immediately below and the concession applicable for penthouses by virtue of Policy 10.6 C may be equally invoked in the present circumstances. In its conclusions, the Tribunal observed that had applicant submitted a separate application to build a penthouse, he would have certainly been granted a permit. Against this background, the Tribunal found no justification on MEPA's part to refuse the permit. MEPA was consequently ordered to issue the permit within 30 days. Robert Musumeci MEPAwatch O n June 17, 2014 the First Hall of the Civil Court held that the court is precluded from reactivating a registered partnership, unlike in the case of a limited liability company. Francis Mifsud and Anthony Mifsud had filed an application before the court in which they explained that on 7 July, 1973 they registered a partnership, Chez Francis Hotel. This partnership, in nom collectif, changed its name in 2002 to AF Enterprises & Co. Over the years this partnership bought a number of properties and in 2010 both partners agreed to liquidate the partnership and also agreed how to divide the assets between them. They were given the advice that this should be done by means of a public deed and that the partnership should assign the property to them individually. For this task they engaged a notary. Apart from this both partners had other property in common which they had inherited. They appeared on the contract on 25 October, 2010 when they were assigned property from AF Enterprises & Co. After this contract they liquidated the partnership, which was later struck off. In 2013 one of the former partners wanted to sell one of the properties he was assigned by the partnership. From the searches it resulted that there was a contract missing since what actually happened on 25 October, 2010 was a division of assets, some of which belonged to the partnership, and the assignment was not included in the same contract. As a consequence another contract was required for the partnership to assign the property to the former partners. The problem lay with the fact that the partnership was struck off and was therefore inexistent. According to the Companies Act, the Registrar of Companies may reactivate a company but not a partnership. The Mifsuds argued that this prejudiced their position as they were not allowed to have their property assigned to them. For them this was crucial. Therefore, they asked the court to reactivate the partnership for this purpose only. The Registrar of Companies replied by confirming that the partnership was struck off, but there was no legal provision on how to revive a partnership. The Registrar said that if this particular partnership was revived, it could lead to a dangerous precedent in the sense that there may be those who liquidate their partnership before closing off all their pending issues. Mr Justice Joseph Zammit McKeon considered the Companies Act, and pointed out that definition of "company" means a company formed and registered under Part V of the Act or the Ordinance, while ""commercial partnership" means a company or other commercial partnership formed and registered under the Act or formed and registered under the Ordinance where applicable; AF Enterprises was not a company but a partnership en nom collectif. The legislator thought of three types of commercial partnerships, the first is found in Part III of the Companies Act and deals with Partnership en nom collectif, the second is found in Part IV partnership en commandite and the third is the limited liability company, regulated in Part V of the Act. The court held that the Mifsuds were asking the court to revive the partnership because of the prejudice they found themselves in. However, the legislator does not give this as a solution. Nowhere in the law does it allow this type of solution and reviving the partnership is impossible. The court said it understands the problem the applicants are in, but just the same it is precluded by the legislator from upholding their request. The duty of the court in a democratic society is not to write the law, the constitution assigns that to the legislator. The courts are duty bound to interpret and apply the law. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt The law precludes reactivation of a registered partnership Policies for restricted penthouses apply equally for duplex apartments 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 On restricted corner sites, penthouses are allowed to be set back by 2.5 metres