Issue link: https://maltatoday.uberflip.com/i/550022
48 maltatoday, SUNDAY, 2 AUGUST 2015 Opinion T he Court of Magistrates (Malta) as a court of criminal judicature, in an appeal sitting deciding on decisions of local tribunals, decided that smoking an electronic cigarette inside is not illegal and revoked the decision of the Commissioner of Justice. Anna Manicolo was accused of smoking a tobacco product in an enclosed area and the local tribunal found her guilty and condemned her to pay €232.94. The accused appealed the judgment arguing that she was smoking an electronic cigarette in an establishment in Paceville when a Police Officer recorded her details and gave her a ticket. The accused stated that she had shown the officer who recorded her details that she was not in fact smoking tobacco but an electronic cigarette. Nevertheless, the officer insisted that she was breaching the law and handed down a fine. In the appeal submissions, the accused pointed out that she had also shown the electronic cigarette to the tribunal however the Commissioner of Justice decided to uphold the argument of the prosecution. Manicolo, as represented by her lawyer, stated that Subsidiary Legislation 315.04 of the Laws of Malta makes it clear that a person is not permitted to smoke any tobacco product in any enclosed area. The appellant insisted that an electronic cigarette is not a tobacco product and therefore requested the court to revoke the decision of the tribunal and acquit her from all the charges. The court, after confirming that the accused was in fact smoking an electronic cigarette, stated that the law prohibits the smoking of tobacco products and not the smoking of electronic cigarettes in enclosed areas. Magistrate Francesco Depasquale decided the appeal by acceding to the requests of the appellant and consequently revoked the judgment of the tribunal and acquitted the accused from all the accusations brought against her. Joseph Mizzi, Partner, Mifsud & Mifsud Advocates Joseph Mizzi jmizzi@mifsudadvocates.com.mt jmizzi@mifsudadvocates.com.mt A planning application entitled "To carry out internal alterations and add dwelling unit" was turned down by the Environment and Planning Commission, even though the Planning Directorate went ahead with a favourable recommendation, insisting that the existing building was already committed with two floors over an underlying basement and "the proposed additions of two floors over the existing underlying basement at the rear of the site retained the existing profile of the approved building envelope". The site lies within an ODZ Settlement in Xaghra, Gozo. Nonetheless, the Commission concluded that the "proposal exceeds the height limitation for the area and runs counter to GZ-RLST-1 of the GCLP, which in turn sets the height of two floors without basement." Indeed, the submitted drawings show a proposed full floor at second floor level and additional new construction towards the rear of the plot. As one would have expected, applicant appealed the Commission's decision, describing his proposal as consisting of "alterations and additions to add a dwelling to an existing block of five apartments and garages." Applicant (now appellant) explained that the existing block is built on two floors plus semi basement as per an Appeals Board decision delivered in 1999. Applicant went on to argue that the proposal is a "continuation of the development already approved in a previous application, forming part of this same block and perfectly respecting the same approved height of two floors and semi basement." Moreover, the applicant contended that "the proposed height will be in line with the heights of the surrounding buildings", adding reference to policy GCLP HTLM-1 (found in the Gozo and Comino Local Plan), which essentially acknowledges that "there are instances of buildings where the existing height is higher than that indicated by the relative Maps, and in which requests for development on the same area would be favourably considered." In its assessment, the Tribunal acknowledged that that the site in question lies within a category 1 ODZ settlement in Gozo. The Tribunal pointed out that paragraph 4.2.4 of policy GZ- RLST-1 which was quoted by the appellant in his application (and by virtue of which policy, buildings which are higher than what is stipulated in the Local Plans are permitted wherever the site is surrounded by similar commitment) does not find applicability in this particular case since the applicant's property is not located within a schemed boundary. Against this background, the Tribunal concluded that the proposed designs were not acceptable and only conceded to structural additions at second floor level with a limited floor area (not exceeding 36 square metres). On this basis, the Tribunal requested the applicant to submit fresh drawings in line with its decision. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters degree in conservation and a degree in law. Robert Musumeci MEPAwatch Tribunal rejects a request for a full floor in an ODZ settlement Gozo height relaxation policies are not applicable in ODZ settlements Smoking an electronic cigarette in an enclosed area is not against the law I would like to receive the newspaper MaltaToday Midweek for a period of one year. Name & Surname .................................................................. Telephone: ........................................ Address ...................................................................................... E-mail: ........................................ FOR €42 YOU CAN RECEIVE THE MALTATODAY MIDWEEK, FOR A PERIOD OF ONE YEAR. SUBSCRIPTION FORM Send a cheque payable to MediaToday to: Subscriptions, MediaToday, Vjal il-Rihan, San Gwann, SGN 9016 The newspapers are delivered by post and therefore subject to the usual postal timings. Normally, MaltaToday midweek should arrive on the same day (Wednesday). SUBSCRIPTION FORM