Issue link: https://maltatoday.uberflip.com/i/388498
54 maltatoday, SUNDAY, 28 SEPTEMBER 2014 Classifieds T he Environment and Planning Tribunal overturned a decision by the Environment and Planning Commission about an application for a swimming pool at a Wardija residence. The planning application was "to displace" the swimming pool that had already been approved (but not constructed) within the boundaries of the Wardija residence by virtue of a previous planning permit. It was turned down by the Environment and Planning Commission after it held that the proposal runs counter to the policy document "Development Control Policy – Swimming Pools Outside Development Zone" of January 2000. The Commission cited paragraph 5.1 which specifies that "the construction of new swimming pools shall be within the curtilage of existing buildings and shall not be within sites of ecological, geological, archaeological, cultural or historical importance." Moreover, the same policy goes on to state that ODZ swimming pools "shall be adequately screened from view from outside the site." On such basis, the Commission contended that accepting this development would prejudice the main objective of the swimming pool policy, which aims at containing the spatial spread of development, minimising the take-up of land and limiting the extent of visual intrusion Outside Development Zone. In reaction, applicant lodged an appeal against the decision before the Environment and Planning Tribunal, insisting inter alia that "the need to displace the pool came up due to the close proximity of the approved pool to the site's boundary." Applicant contended that "a pool which is so close to the site's boundary can be a threat for the privacy of the eventual users and provides less area for landscaping to screen the pool." In his arguments for appeal, applicant further highlighted the he was already in possession of a valid permit to construct a swimming pool within his home precints, adding that the new location is better shielded by rubble walls and landscaping. On his part, MEPA's case officer reiterated that the new location falls outside the "curtilage" of the building as required by policy, since it lies within an open field. The case officer further contended that the site in question falls within an area of high ecological and landscape value, concluding that the intervention would result in an adverse visual impact on the rural landscape. In its assessment the Tribunal held that the applicant was already in possession of a permit to construct a swimming pool. But even more so, the topographic characteristics of the proposed new location (subject of this appeal) were prima facie similar to those pertaining to the site relative to the permit already in hand. In addition, it was observed that both locations are more or less equidistant from the applicant's dwelling. Against this background, the Tribunal ordered the Authority to issue the permit on condition that a bank guarantee is made so as to ensure that the applicant carries out a landscaping scheme which he himself had proposed as part of his proposal. Robert Musumeci is an architect who also pursued a degree in law robert@rmperiti.com T he Court ordered that a young boy be taken back to his ordinary residence in England, after he travelled to Malta without the father's consent. This was decided by Ms Justice Abigail Lofaro on 18 September, 2014 in the Director of Social Welfare Standards Department -v- AB. The Director of Social Welfare Standards Department filed the application in terms of the Child Abduction and Custody Act (chapter 410 of the Laws of Malta), after the child, called CD in the judgement, travelled to Malta. The parents married in May 2013. The father, PQ, was working in Malta in September 2013, but the mother and the child remained in Bradford, England. The parents spoke on the phone and communicated on Facebook early in November 2013. The father then discovered that his wife and child were in Malta. On 26 November, 2013 the Maltese central authority received a request from the English central authority in order to file an application for the return of the minor child. According to the UK Children Act 1989 the custody of the children are vested in the parents jointly and as a consequence the mother is prohibited from unilaterally changing the residence of the child. The court in Malta was asked to return the boy to England. The mother defended the action by arguing that the parents had intended to move to Malta and establish their residence here, however, the husband left Malta after he was dismissed from work. She also argued that as an EU citizen she had a right to establish her residence wherever in the EU. She further submitted that it is not in the best interest of her child to move back to England. Ms Justice Lofaro examined the versions given. The father submitted that he did not give his consent for his son to come to Malta, while the mother told the court that she is happy in Malta and could find a job and make a living here. The father confirmed that she travelled to Malta with the child without his permission. The Court pointed out that the mother contradicted herself when she had told her husband that they were in Malta. The Court questioned why would the mother and son come to Malta when she knew her husband was without a job and had an affair with other women. The Court considered whether the husband knew that the mother and child were coming to Malta. It was determined that the change of residence took place without his consent, although whether he knew that they were coming to Malta was not certain. The intentions of the mother are not clear either, although it was established that there were matrimonial problems. The Court then concluded by deciding that England and not Malta was their son's ordinary residence and in accordance with the Child Abduction and Custody Act ordered that the child be returned to England. Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Download the MaltaToday App now The Court concluded that England and not Malta was the son's ordinary residence Robert Musumeci MEPAwatch Wardija swimming pool allowed to be 'displaced' Court orders son to be returned to the UK Republic Street, Valletta next to the Courts