Issue link: https://maltatoday.uberflip.com/i/376810
43 maltatoday, SUNDAY, 7 SEPTEMBER 2014 A planning application "to erect three houses and garages" within the Qala scheme for development, which was was turned down by the Planning Commission, was sanctioned by the Environment and Planning Tribunal. The commission had held that the site is located on the side of a valley and such intervention would lead to soil erosion. On a separate note, the commission held also that the proposed development does not comply with policies 2.1 and 3.8 (B) of Development Control Policy & Design Guidance 2007 in that the 8.5 metre maximum height limitation rule (height limitation for two storey development) is not being respected. In conclusion, the commission held that the proposed works consist of an "internal development" which is incompatible with the urban design and environmental characteristics of the Urban Conservation Area, and so is in conf lict with the overall objectives of the Structure Plan for the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas (Structure Plan policy UCO6). The applicant appealed the commission's decision, insisting that the proposed development lies entirely within the development zone as shown in the Qala Local Plan. The applicant submitted that "the part of the site which is being developed is definitely not a valley", adding that "the water course is located circa 30 metres to the East away from the proposed development." The applicant went on to argue that the swimming pools which were originally proposed to be located beyond the development boundary have been eliminated from the proposal. As regards the "excessive height", applicant insisted that the latest designs addressed such consideration. On its part, the authorit y confirmed that according to the latest drawings, the development does not encroach beyond the development zone while the two- f loor height limitation was now being respected. Nevertheless, the authorit y insisted that the proposed development is objectionable since it is "expected to have a significant effect on surface water f low in the Wied il-Marga watercourse". In its assessment, the tribunal observed that the Malta Resources Authorit y were not objecting to the proposal on condition that the applicant adheres to the construction method statement which the applicant's consultant had submitted during the course of proceedings pending before the tribunal. The tribunal therefore concluded that the proposal could be entertained on condition that development is constructed entirely above soil level without the use of crushed stone between the existing soil levels and the surface of the concrete ground f loor slab as per method statement. Robert Musumeci is an architect who also pursued a degree in law robert@rmperiti.com I f a debtor does not show that there was a valid reason not to pay a debt, then the debtor should pay interest and judicial costs, according to a ruling by a magistrate's court handed down last Monday in Miksons Transport Co Ltd -v- Customs and Freight Agency Limited. Miksons instituted an action against Customs and Freight Agency on 5 October, 2009 where they claimed a payment of €9,637.94 after they carried merchandise. Prior to filing the suit, the plaintiff company had filed a judicial letter and a garnishee order. The defendant company defended the action by filing a counterclaim for €26,868.56, which was the difference for damage the plaintiff company had caused to a fork lifter, which owners BAS Limited are expecting from the defendant company. Magistrate Gabriella Vella analysed the evidence brought before the court. The plaintiff company was engaged to transport merchandise for the defendant company, which failed to pay for the service rendered. The defendant company held that this amount should be set off against a claim they had against the plaintiff for damage it had caused to a fork lifter belonging to BAS Limited, and which the defendant company was responsible for. The claim for €9,637.94 was deposited in court. The court then referred to a court sitting held on 8 October, 2012 where the defendant company admitted it owed the sum mentioned to the plaintiff company. There was also an agreement that the plaintiff company had withdrawn the sum deposited in court and also that the counter claim was no longer valid since BAS failed to institute legal action against the defendant company. The parties further agreed that the only pending issue is whether interest was still due and whether the defendant company should pay judicial costs. Magistrate Vella held that our legal system dictates that if a person owes money but fails to effect payment or does not have a valid reason not to pay, then the only damages that may be sought for the delay is 8% interest. Furthermore, if the debtor fails to pay his/her debts then he/she should pay for the judicial debts. Then the court had to analyse whether the defendant company was correct not to effect payment when it was originally called upon to pay. From the records of the case it is evident that the defendant company was holding the plaintiff company responsible for the damage caused to a fork lifter which was being transported from Malta to Gozo. Kevin Attard, director of Customs and Freight Agency Limited explained to the court that the company is an agent of BAS Limited. He attributed the accident to the fact that the driver of Miksons was driving at an excessive speed. This was confirmed by a surveyor's report which, although it was referred to, was never presented in court. However, the plaintiff company presented its own surveyor's report, which exonerated the driver, but blamed the damage to how the fork lifter was strapped during its transport, which would have allowed movement on the trailer carrying it. A second report which was also presented confirmed this and that BAS were responsible for securing the fork lifter. The court held that the evidence pointed to the fact that the plaintiff company was not responsible for the damage. Therefore, it followed that the defendant company should have paid for the transport services it received when it was called upon to do so. Magistrate Vella then ordered the defendant company to pay interest of €9,637.94 from when the invoices were issued and also that it should pay the judicial costs of the action. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Construction allowed subject to absence of crushed stone between concrete ground floor slab and underlying soil Magistrate Vella held that our legal system dictates that if a person owes money but fails to effect payment or does not have a valid reason to pay, then the only damages that may be sought for the delay is 8% interest Robert Musumeci MEPAwatch Qala development within scheme allowed, subject to mitigation measures Debtor will have to pay interest and judicial costs