Issue link: https://maltatoday.uberflip.com/i/357188
43 maltatoday, SUNDAY, 3 AUGUST 2014 T he Environment and Planning Tribunal has ordered the issue of a permit for a pig farm in Siggiewi which, according to the case officer of the Malta Environment and Planning Authority, is located within the Immediate Groundwater Protected Zone. The planning application entitled "To sanction existing pig farm" in Siggiewi was originally turned down by the Environment and Planning Commission on a number of counts. In the first instance, it was held that "the site is located just 50 metres away from an important header pumping station at Ta' Kandja" and so does not comply with Structure Plan policy RCO 28 which expressly provides for the protection of important water catchment areas. In fact, the Malta Resources Authority objected to the proposed development. Furthermore, the Commission observed that the building "as erected" fails to complement the surrounding rural environment and thus conflicts with Policy 1.3A of the Policy and Design Guidance on Agriculture, Farm Diversification and Stables which specifically militates against development having an unacceptable adverse impact on the rural landscape. In addition, the applicant was told that the proposal involves "the total coverage of the site by buildings", in consequence of which "there can be no provision for hard or soft landscaping on the site." For this reason, the development was deemed to conflict with Structure Plan policy BEN 17 which requires that buildings in the countryside are adequately screened. In reaction, the applicant appealed the decision stating that the existing farm has been in operation prior to 1992. More so, it was pointed out that the farm is officially registered with the Department of Agriculture and with the Food and Veterinary Regulation Division. The applicant also remarked that the Department of Agriculture requested him to upgrade the current waste management facilities. Notwithstanding the applicant's arguments, the MEPA case officer reiterated that there is no clear evidence to ascertain whether the farm was legally active prior to 1992. In the circumstances, the authority justified its position, stating that the proposal needs to be assessed in accordance with current planning policies, which in turn militate against urban type development in rural areas. The case officer stated once again that the site is located within the Immediate Groundwater Protected Zone, and more specifically within only 50 metres from the Mqabba Heading Gallery from Ta' Kandja Pumping Station, adding that farms need to be located at least 300 metres away from sources used for the abstraction of water intended for human consumption, such as boreholes. In its assessment, the Environment and Planning Tribunal observed that livestock farms were officially registered for the first time in 1999 and hence it is impossible for the applicant to provide documentary evidence showing that operations were already in force prior to 1992 as required by MEPA. But even so, the Tribunal noted that the Director of Veterinary Services gave evidence under oath, maintaining that he personally knew the applicant and was even aware that on site livestock operations were already in place in 1988. Against this background, the Tribunal ordered the MEPA to issue the permit on condition that the buildings are demolished should the applicant decide to cease current operations. robert@rmperiti.com Robert Musumeci MEPAwatch T he First Hall of the Civil Court ruled that Article 466 of the Code of Organisation and Civil Procedure should not have been used for a government agency to collect a refund of money because of a breach of agreement. This was decided on July 28, 2014 by Mr Justice Anthony Ellul in the names Il-Koordinatur Nazzjonali ta' l-Agenzija Programmi ta' l-Unjoni Ewropeja -v- Steven Attard. Mr Attard filed an application that the official letter he was notified with on January 31, 2014 was null and that the procedure used by the agency in terms of Article 466 of the Code of Organisation and Civil Procedure was wrong. The Agency replied by saying that the action they took did fall under article 466 since Mr Attard received European Union financial assistance through the Ministry of Education's agency, the European Union Programmes Agency (EUPA). An agreement was signed between Europe Experience Malta and the agency under the Youth in Action Programme. The refund was claimed because Mr Attard failed to present a final report as the contract had laid down. Mr Justice Ellul examined the judicial letter which was claiming a payment of €18,526.17 because Mr Attard failed to adhere to the agreement with the agency which was signed on March 6, 2008. The judicial letter mentioned that it was making reference to Article 466 and the head of EUPA signed an affidavit which was attached to the judicial letter. Article 466 reads: (1) Where the head of a government department or the person vested with the legal representation of a body corporate established by law or with the legal representation of any company or other body which has been authorised by or under any law to collect any amounts due to a government department or to a body corporate established by law, desires to sue for the recovery of a debt due to a government department or to any administration thereof or to a body corporate established by law, for any services, supplies, penalties, rent, ground rent, other burdens on property, compensation for occupation and or for any licence or other fee or tax due, he may make a declaration on oath before the registrar, a judge or a magistrate wherein he is to state the nature of the debt and the name of the debtor ....." The court held that the EUPA is established under Legal Notice 128 of 2007 and its aim is to take care of projects that take place in Malta which are financed by the European Union. One of these projects is Youth in Action Programme, where foreign youths are to visit Malta. The parties had signed an agreement on March 6, 2008. Mr Attard had received on June 1, 2008 circa €18,000 and was to receive a further €31,000. The whole issue arose when Mr Attard failed to present a final report as stipulated in the contract. In an email sent on October 28, 2010 the Agency wrote: "…. Failure to fulfil your obligations under Article 1.5 – Submit the final Report and other documents and Article II – Termination of the Agreement, results in the total recovery of the advance payment for this project". Clause II.11.14 of the agreement reads: "By way of exception, at the end of the notice referred to in paragraph 3, where the NA is terminating the agreement on the grounds that the beneficiary has failed to produce the final technical implementation report and financial statement within the deadline stipulated in Article 1.5, and the beneficiary has still not complied with this obligation within two months following the written reminder sent by the NA by registered letter with advice of delivery or equivalent, the NA shall not reimburse the expenditure incurred by the beneficiary up to the date on which the action ended and it shall recover any amount if its use is not substantiated by the technical implementation reports and financial statements approved by the NA" In its judgment the court held that it did not agree with the Agency that this was a claim for a service rendered, but it is in fact a refund for a payment already made as a breach of the conditions of an agreement. Mr Justice Ellul commented that the Agency was giving a very wide interpretation of Article 466 where it may collect monies for services. The court held in its judgment that Article 466 does not apply to every single credit that the government may have. If this was the case, there would not have been the need for the legislator to list the instances that this procedure may be used. Therefore the term "to collect any amounts due" used in Article 466 is limited to those instances mentioned in the same Article. The court then moved to uphold Mr Attard's request that the judicial letter of 31 January 2014 is unfounded. Dr Malcolm Mifsud Partner Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Agency uses wrong procedure to collect a refund Tribunal allows sanctioning of existing pig farm The tribunal noted the evidence given by the Director of Veterinary Services under oath In its judgment the court held that it did not agree with the Agency that this was a claim for a service rendered