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MT 17 August 2014

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43 maltatoday, SUNDAY, 17 AUGUST 2014 A planning application entitled "Demolition of existing building, retaining main façade, and construction of local shop class" in High Street, Hamrun was initially turned down by the Environment and Planning Commission after it held that the proposed development would detract from the overall objectives of the Structure Plan which aim for the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas (Structure Plan policy UCO6). The Commission further observed that the proposed designs would not maintain the visual integrity of the area, hence not complying with Structure Plan policy BEN 2. In conclusion, the Commission underlined that Structure Plan policy UCO7 was being infringed since the proposal entailed a replacement building which is not in harmony with its surroundings. On his part, the applicant appealed the decision before the Environment and Planning Tribunal, insisting inter alia that the proposed interventions were minimal, consisting of the demolition of a masonry balcony (which is not symmetrical with an overlying timber balcony which was to be preserved) and the removal of a pillar that separates two existing entrances at ground floor level, with a view to widen the shop front. But in any case, the applicant maintained that High Street, Hamrun is characterised by several shopping outlets which were modified without any attempt to retain original architectural features in recent years. The applicant in fact referred to a 2009 permit pertaining to a nearby site, where a three storey facade featuring nine timber balconies was demolished and replaced by a modern building. But even so, the applicant maintained that, if anything, his proposal constitutes "a vast improvement on the existing facade." In reaction, the MEPA case officer reiterated that "solid- to-void ratio" in consequence of the proposed removal of the pillar separating the two entrances at ground f loor level is not considered adequate within Urban Conservation Areas, adding that St Joseph High Road is "still characterised by a larger number of buildings and streetscape stretches which are worth preserving. Indeed, the case officer concluded that the proposal "presents a more drastic outlook when considered with the rest of the street which is still characterised by a considerable amount of vernacular character.'' In its assessment, the Tribunal observed that the facade in question was already subject to various past structural interventions. In the circumstances, the Tribunal felt that a compromise could have been reached between the applicant and the Authority during the application process. The Tribunal held that the opening at ground f loor level (as proposed) is visually acceptable as long as the opening and first f loor overlying apertures are symmetrically aligned. Against this background, the Tribunal ordered the MEPA to issue the permit subject to the amendments. robert@rmperiti.com T he Family Court turned down a request to withdraw a garnishee order between spouses since the husband was giving the matrimonial home as a guarantee. This was held by Mr Justice Joseph Micallef on 6 August, 2014 in the names Mary Rose Carbonaro -v- Jesmond Carbonaro. The latter had filed an application in court asking that the garnishee order instituted by his wife be withdrawn or else have it limited to an insurance policy they both held. The action is based on Article 836 of the Code of Organisation and Civil Procedure, which outlines the reasons and the procedure for the court to withdraw a precautionary warrant. The court commented that the application had not explained why the husband was asking for this withdrawal. The law requires that the applicant asking for the withdrawal of a precautionary warrant is to give valid reasons why this should be done. The reasons must be based on Article 836(1) of the Code and not on generic arguments. From the acts of the proceedings a garnishee order was issued by the wife against her husband for €10,000, which represents the value of cars that was part of the communit y of acquests. The banks were notified of the warrant. The background of the case is that the parties are undergoing separation proceedings and in the letter requesting mediation, there is a request for maintenance to be established and that the psychological violence suffered by the wife will stop. The husband objected that there was more than one car that formed part of the communit y of acquests and moreover the matrimonial home covers this claim and so does an insurance policy. Mr Justice Micallef held that the reasons given by the husband to withdraw the warrant is unclear and did not refer to any other action instituted in the separation proceedings. During the proceedings the court learned that the parties did own a car which in 2013 was involved in an accident and the car was written off beyond economic repair. The insurance company passed on its value to the husband but this was deposited in his account. Therefore, the claim is with regard to the car's compensation which is in the husband 's hands. Article 836(1)(c) states that the court may remove a warrant if sufficient guarantee is placed. The husband explained that the value of the matrimonial home exceeds the claim. However, the wife pointed out that the house is also hers and it has not been placed on the market. For a guarantee to be accepted, this must be in the possession of the part y subject to the warrant or else given by a third part y. The person placing the guarantee must show that it exists and that this is a clear guarantee that will translate in payment if required. The husband failed to show the court that the matrimonial home is available to serve as a guarantee upon the wife's claim and that there are no other debts which give a preference to a third part y. Therefore, the court ruled that the matrimonial home is not sufficient guarantee to remove the warrant. The other requisite that the guarantee given is deemed sufficient by the court lies with the previous requisite. Reference was made to an insurance policy, but this has to be accepted by the other part y and the court cannot impose this t ype of guarantee on the wife. The court moved to turn down the application for the garnishee order to be withdrawn. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt The Tribunal felt that a compromise could have been reached between the applicant and the Authority The law requires that the applicant asking for the withdrawal of a precautionary warrant is to give valid reasons why this should be done. The reasons must be based on Article 836(1) of the Code and not on generic arguments Robert Musumeci MEPAwatch Facade alterations in High Street, Hamrun approved Matrimonial home is no guarantee for garnishee order in separation proceedings

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