Issue link: https://maltatoday.uberflip.com/i/380554
43 maltatoday, SUNDAY, 14 SEPTEMBER 2014 News A planning application for the proposed relocation of a Qawra promenade kiosk so as to make way for the National Aquarium project in Qawra was approved by the Environment and Planning Commission. The new location for the kiosk lies also in Triq it-Trunciera, some 100 metres away, along the same Qawra promenade. Further to the issue of the permit, a number of objectors who, for the past 16 years, were allowed by the Government Property Division to run a commercial luna park in the same location where the kiosk is to be relocated, lodged an appeal before the Environment and Planning Tribunal. The objectors (appellants) insisted that the new kiosk location is "not more than 200 metres away from other existing kiosks" and therefore conf licts with Policy 5.3 of the 1994 "Kiosk policy" which expressly states that "No new kiosk will normally be permitted within 500 metres of an existing kiosk." Appellants further held that according to the North West Local Plan, "no additional kiosks to the number of kiosks, which possessed a trading licence/development permission prior to the adoption of this Plan, or another structure intended for the commercial use of the promenade and/or foreshore from Ghajn Razul in St Paul's Bay to Salina Bay, will be allowed." Against this background, appellants maintained that any proposed relocation must be assessed in terms of current laws and planning regulations, which clearly stipulate that relocation may be permitted on condition that the original kiosk is covered by a planning permit. In this case, appellants contended that the kiosk in question was never covered by a planning permit and previously operated under the pretext of a "mobile kiosk", which, according to law, may be sited in one and the same location "for a period of more than 14 days in total in any one year, not necessarily consecutively." For its part, the MEPA defended the permit for relocation, stating that the decision by the Government Property Division to move the kiosk from its previous site to the approved site was, in part, intended to compensate for the displacement of the kiosk which had to be demolished to make way for a government project which is of national importance. Without entering into the merits as to whether the original kiosk was indeed covered by a planning permit to operate on a permanent basis, the case officer highlighted that the number of kiosks along the Qawra promenade would not be increased since the permit is intended for the relocation of an existing kiosk structure. In its assessment, the Environment and Planning Tribunal highlighted that it would not probe into the merits connected with ownership rights since such matters fall entirely within the ambit of civil law. In other words, a planning permit is issued regardless of any title of ownership or "right of use" which an interested party may allege. With regard to the legal status of the original kiosk, the Tribunal noted that no enforcement notice contesting its legality was ever issued by the authority. In the circumstances, the Tribunal concluded that there is no reason to believe that the original kiosk was illegal and hence the application for "relocation" was deemed acceptable in terms of current planning policies. For the above reasons, the appeal was rejected. Robert Musumeci is an architect who also pursued a degree in law robert@rmperiti.com T he Magistrates' Court ruled on 21 August that in electricity theft the law shifts the onus of proof on the registered person to explain why the meter was tampered with. This was decided in the case the Police -v- Iliya Rnjak. Mr Rnajk was accused that between April 2000 and April 2005, as the person responsible for a restaurant in St Julians, altered the measurement of consumption on the meter at the premises and therefore, committed theft of electricity which exceeded €2,330. He was also accused of causing wilful damage to the meter which belonged to Enemalta Corporation. Magistrate Miriam Hayman presided. Alan Chetcuti from Enemalta calculated that €7,577.70 worth of electricity was stolen in the five years. He explained that this was discovered thanks to a surprise inspection. He told the court that since the records were not digitalised at the time, there were no records as to whether the accused had filed a report on any faults on the meter in question. The two inspectors who had carried out the unannounced inspection testified that they had gone to the restaurant in St Julians on 30 April, 2005. They checked the three-phase meter in the premises, in the accused's presence and discovered that there was a glue substance on two blue seals and also that the blue phase fuse inside the service box was tampered with. The meter was not rotating and therefore the consumption was not being registered. The inspectors insisted that the corporation does not use glue on their seals. The meter was then removed from the premises. The inspectors rebutted suggestions that the screws could have come loose as a result of the vibrations caused by construction works carried out close to the property. Anthony Gauci of ARMS Limited testified that their calculations on the unpaid electricity was based on the history of the meter and past consumption. Mr Rnjak testified that the inspectors were in fact not inspectors but were there to change the faulty meter. He explained that he had filed reports with Enemalta on the main fuses. The accused told the court that during the period 2000 to 2005 the restaurant was partly demolished and that there was digging in front of the property which caused damages. As a consequence he had to close the restaurant twice. Mr Rnjak confirmed that he was responsible for the restaurant from 1996, but had no idea who could have tampered with the electricity meters. Magistrate Hayman then examined the law and the legal pointed raised. Article 264(2) of the Criminal Code reads: "(2) In the case of breaking of pipes of the public water service or of the gas service, or of the wires or cables of the electricity service, or of the meters thereof, or of any seal of any meter, or in the case of the existence of artificial means capable of effecting the unlawful use or consumption of water, gas or electric current, or capable of preventing or altering the measurement or registration on the meter of the quantity used or consumed, shall, until the contrary is proved, be taken as evidence of the knowledge on the part of the person occupying or having the control of the tenement in which such breaking or artificial means are found, of the said use or consumption of water, gas or electric current, as the case may be." The law allows a presumption of the knowledge of the fact of tampering and unregistered consumption to be shifted to the registered consumer. The person who has effective control of the premises must provide evidence against the presumption. This does not exempt the prosecution from proving its case beyond reasonable doubt and according to the court, the prosecution succeeded in proving its case. On the other hand it commented that the defence raised by Mr Rnjak was weak and not probable. The court acquitted him of the charge of voluntary damage, since no evidence was produced on who actually caused the damage, but found Mr Rnjak guilty of the first charge and handed him an 18 month imprisonment sentence suspended for three years. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Download the MaltaToday App now "... in the case of the existence of artificial means capable of effecting the unlawful use or consumption of water, gas or electric current ...shall be taken as evidence of the knowledge on the part of the person... Robert Musumeci MEPAwatch Kiosk not illegal since no enforcement notice was ever issued The onus of proof in electricity theft is shifted on to the defendant