Issue link: https://maltatoday.uberflip.com/i/779073
44 maltatoday, SUNDAY, 29 JANUARY 2017 Classifieds T he Administrative Review Tribunal decided that decisions on applications for mini-van licences must be notified to the applicants and not sent to their lawyer. This was held in Josef Borg v Awtorita' ghat-Trasport f 'Malta on 23 January, 2014, presided by Magistrate Charmaine Galea. Josef Borg told the Tribunal in his application that in a letter dated 29 April, 2015 by Transport Malta (TM) it was held that his application to be a driver under the Motor Vehicles Regulations was refused. The reason given was that he did not satisfy the good conduct requisite since he had been found guilty of a crime that had a punishment stretching more than three months or a fine higher than €465. Borg held that the letter quoted the wrong law and also that TM did not take into consideration his written submissions, and the decision did not give any reasons. TM filed a statement of defence stating that its decision was correct and based on law and the correct legislation. The Tribunal considered the evidence produced and noticed that the decision was sent to Borg's lawyer and not to Borg himself. On 21 May, 2015 Borg sent a letter to TM, but it arrived on 25 May, 2015, meaning that it arrived after the 10 days in which he could file an objection to TM's decision, in a time limit set in the letter of 29 April, 2015. Borg explained that he could not get hold of the TM official. TM ruled that no representations were made in the 10 days limit and it ignored Borg's letter. The Court commented on the fact that the TM letter was sent to the lawyer and not to the applicant, though the law lays down that the final decision should be sent to the applicant. The Tribunal held that in the acts of the case there was no copy of the refusal. As to whether Borg held a clean conduct the Tribunal held that Borg was found guilty in February 2011 of a crime that carried a punishment of more than three months in duration, or a fine higher than €465. According to the law the tag given to drivers is valid for five years, but it may be revoked. In order to be given this tag an applicant must satisfy a number of requisites on reputation and on conduct. The Tribunal referred to a 2011 judgement where Borg was found guilty of a crime but was handed a conditional discharge for three years. The Tribunal held that conditional discharges cannot be considered a declaration of guilt for administrative entities when there are applications for licences. The Tribunal quoted from Article 25 of the Probation Act which states that a conditional discharge cannot be considered as a declaration of guilt. As such TM should no have considered the 2011 judgement in its deliberations to decide whether Borg should be given the tag or licence. The Tribunal then moved to uphold the application and revoked the decision of May 2015. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates W asteServ Limited obtained a planning permission for 'the construction of an autoclave as an ancillary to the Marsa Thermal Treatment Facility (MTTF)' following an application lodged with the then Malta Environment and Planning Authority (the MEPA) in 2011. The proposal contemplated the introduction of a pre-treatment facility for animal tissue waste prior to it being incinerated. Eventually, the permission was issued after the MEPA found that the proposal was expected to improve operational efficiency and create a back-up facility for the treatment of animal tissue waste. More so, the MEPA thought that the proposed treatment would be more efficient than thermal treatment. The facility occupies about four tumoli of land and is designed to treat approximately 11,224 tonnes of animal by-products each year. This permission was subject to a bank guarantee of €50,000 with a view to ensure that a construction management plan is submitted within six months once the permit is issued. Subsequently, the applicant proceeded with the works without submitting a construction management plan. Consequently, the MEPA forfeited part of the guarantee to the amount of €25,000. In reaction, the applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that the project in question was co-funded by the European Regional Development Fund ERDF 2007 to 2013, under which the funds would only be released on condition that the works are undertaken within the stipulated time frames. The applicant explained that the project had to be executed within only 12 months, adding that 'all the people involved were focused on the finalization of the design, construction and finishing of the project so that Malta will be able to disburse all the allocated funds related to the above mentioned project.' Even so, the applicant contended that the late submission of the construction management plan 'should not be considered as a disrespectful approach but a genuine oversight.' Moreover, the applicant highlighted that the Planning Authority was in actual fact 'fully aware of the progress of the works' since a commencement notice was duly submitted and a concurrent request was made to establish the official alignment. Concluding, the applicant asked the Tribunal to reassess the entire situation in the light of the above circumstances. In reply, the Authority maintained that it was correct to forfeit the bank guarantee since WasteServ was aware of its obligations arising from the permit conditions. The Authority pointed out to the Tribunal that the applicant had submitted the construction management plan seven months after the works were completed. In its assessment, the Tribunal observed that the Construction Management Plan was indeed submitted after the works had been carried out. Having said that, the Tribunal held that the applicant had lodged a commencement notice. Notwithstanding the MEPA being aware that works had commenced, the applicant was not issued with a stop order. Against this background, the Tribunal felt that the forfeited amount should be reduced to €10,000. robert@rmperiti.com Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law Part of forfeited guarantee reinstated Robert Musumeci The MEPA was aware that works had commenced and yet, the applicant was not issued with a stop order Administrative decision must be notified to applicant and not to lawyer Malcolm Mifsud mmifsud@mifsudadvocates.com.mt Article 25 of the Probation Act states that a conditional discharge cannot be considered as a declaration of guilt