Issue link: https://maltatoday.uberflip.com/i/421389
52 maltatoday, SUNDAY, 23 NOVEMBER 2014 Opinion T he Administrative Review Tribunal held on November 17, 2014 that the Transfer of Residence Exemption Board misinterpreted clear documentary evidence that an applicant's vehicle was in Italy for more than two years and therefore, entitled to an exemption on tax. Katia Borg had appealed from a decision of Transport Malta (TM), which refused an exemption on registration in Malta of a car with Italian number plates. The transport authority held that it was not it that took this decision but the Minister of Finance. In view of this Ms Borg asked the tribunal to call into suit the Minister of Finance, Economy and Investment, which request was upheld. The minister held that Ms Borg failed to prove that the vehicle in question was being used in the previous two years. In fact the evidence showed the contrary. Magistrate Charmaine Galea examined the evidence which was brought before the board and the tribunal. On 19 June, 2009 Ms Borg was informed that her application for an exemption under Article 19 of the Motor Vehicle Registration and Licensing Act was being turned down because the vehicle was in Malta for the previous three years. With regard to TM's plea that it was not involved in the decision, the tribunal held that TM and the minister are two different entities and the Transfer of Residence Exemption Board falls under the latter's competence. TM cannot influence the decision one way or another and therefore, the tribunal upheld this plea. With regard to the merits of the appeal, Magistrate Galea held that Ms Borg followed a course on jewellery in 2006 and as a consequence she had asked Transport Malta (TM) to allow her to import her car into Malta to be able to follow this course. This request was consented to for two years. In 2008 she reapplied for an extension explaining that she was to follow another course. This time TM turned down the application. In 2009 she decided to relocate to Malta permanently and asked for an exemption from the registration tax of the vehicle. It resulted that the 2006 course was a correspondence course and travelled occasionally to Malta from Italy. The Ministry of Finance had refused the application on the ground that from the data forwarded by TM she had used her car in Malta for the previous three years. Ms Borg claims that her letter to TM was misinterpreted because it was presumed that she was in Malta for the whole time. Magistrate Galea viewed the documents the ministry had in hand which included receipts of payment of rent of a premises in Italy, receipts from a mechanic in Italy and parking receipts in Italy also. The Tribunal observed that the applicable legislation was Legal Notice 196 of 2009, which commenced on January 1, 2009. Article 4(1) of this Legal Notice states: "4. (1) The exemption under sub- article (3) (i) of article 19 of the Act shall be granted to a motor vehicle which is the personal property of a private individual and is being brought or imported permanently into Malta by the individual when he is transferring his residence from a place outside Malta to a place in Malta: Provided that – (a) that person has been residing outside Malta for a continuous period of more than twenty-four months before his transfer of residence to Malta; Motor vehicle brought over for demonstration purposes. (b) the motor vehicle has been in his possession and used by him outside Malta for at least twenty- four months before the date on which he ceased to have his residence outside Malta; (c) the vehicle is registered in his name or in the name of his or her spouse where applicable; (d) that person holds a valid driving licence; (e) the vehicle shall be imported or brought into Malta within twelve months of the individual's transfer of residence; (f) the motor vehicle shall not be sold, given away, disposed of, hired out or lent following its importation or its bringing into Malta unless the vehicle registration tax to which the exemption aforesaid relates is paid thereon in accordance with the provisions of the First or Second Schedule to the Act." The tribunal held that it did not agree how the board interpreted the facts of the case. Although it was proved that Ms Borg followed a course in Malta between 2006 and 2008 and came to Malta from Italy occasionally, this did not mean that the vehicle was in Malta for three years. This was not challenged by the authorities. When she visited Malta with the car she asked for permission from TM. The tribunal concluded by reversing the ministry's decision and ordered it to re-evaluate its decision under this interpretation. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application for the "change of use of part of a garage to office" in Triq il- Kbira, Balzan was turned down by the Environment and Planning Commission after it held that the proposed development is unacceptable since it would result in a "conflict between pedestrian and vehicular movement." The decision was rejected by the Environment and Planning Tribunal. The Commission underlined that the proposal constitutes bad neighbour development, thus conflicting with Structure Plan policy BEN 1 which seeks to protect the amenity of existing uses. In conclusion, the Commission observed that the proposal would generate a considerable volume of pedestrian movements in an area where "the narrowness of the road might create a danger to this increased pedestrian traffic from oncoming vehicular traffic in the area." Following the decision, the applicant submitted an appeal before the Environment and Planning Tribunal, contesting the decision. In his submissions, applicant argued that the proposed office is small, having an area of circa 40 square metres, and the anticipated activity with such a small office is therefore "quite limited". The applicant, being a lawyer, pointed out that the he has other small offices around the island, adding that his personal experience has shown that offices of such scale are normally meant to serve the people of the locality, most of whom are already familiar with the area. The applicant went on to state that despite the street in question being narrow, there are other doors to private dwellings and even garages in the area, which in turn should serve as a "natural traffic calming feature". It was also highlighted that a "traffic calming hump" is located a few metres away from the office in question, "the latter almost stopping all vehicles passing through this road." As a final point, applicant submitted that he is willing to "install the necessary signs at the exit from the premises to make all the people using the office aware of any potential dangers." For its part, the MEPA reiterated that the street in front of the office door is quite narrow, being only 3.6 metres in width, and the possibility of having a pavement is therefore excluded. In this light, a person exiting from the proposed office would find himself immediately on the carriageway and thus prone to "accidents involving vehicles and pedestrians." In its assessment, the tribunal observed that the office is very small, adding that the authority's contention in the sense that the proposed activity would generate additional traffic is based on mere perception. The tribunal further maintained that contrary to the commission's conclusions, MEPA's Transport Directorate had held that "given that the street is narrow, this acts as a natural traffic calming feature, where speeding, which would affect pedestrian safety, cannot really take place." Against this background, the tribunal ordered MEPA to issue the permit. Robert Musumeci is a warranted architect with a degree in law robert@rmperiti.com Authority's contention that the proposed activity would generate additional traffic is based on mere perception Although it was proved that Ms Borg followed a course in Malta between 2006 and 2008, this did not mean that the vehicle was in Malta for three years Robert Musumeci MEPAwatch Tribunal rejects MEPA assertions as based on 'mere perception' Administrative Tribunal disagrees with board's interpretation of documentary evidence