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MT 12 March 2017

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48 maltatoday, SUNDAY, 12 MARCH 2017 Opinion O n the 16th February, 2017, Mr Justice Joseph R. Micallef in Lidl Immobiliare Malta Limited vs. Mifsud et noe held that the changes in the traffic system carried out by the council of Sta Venera were not ultra vires, despite complaints raised by the establishment of Lidl Immobiliare Malta Limited. The applicant company argued that the administrative conduct of the local council of Sta Venera as carried out on 12 March, 2014 was null, invalid and ineffective since such conduct went beyond its powers. It claimed that the conduct was unauthorized as the council did not abide by the principles of natural justice or mandatory procedural requirements both in carrying out the works in question and during the prior deliberations. It thus concluded that this amounted to an abuse of its powers as, according to it, the local council's objectives were arbitrary and based on irrelevant considerations. Lidl claimed that the council's actions, which obstructed the public's direct access to its establishment, were carried out without their consultation. It further stated that no studies were carried out so as to analyse the impact of such actions on the resultant traffic prior to issuing an order to bring about these changes. Thus, Lidl pleaded for the traffic system to be reverted back to how it was prior to the decision and claimed damages against the local council in terms of Article 469A of Chapter 12 of the Laws of Malta. Despite Lidl's claims that they were not consulted prior to such decisions, the evidence brought forward by the local council proved to be more credible in that it had obtained the required permission from Transport Malta and it regularly notified the residents in the vicinity, including the said establishment, with regular updates as to what was happening. This included an invitation for a consultation meeting with them. This was not only proved by a petition submitted by the residents themselves but also with a copy of the minutes of the said meeting. Thus, the Court concluded that the local council's behaviour was carried out rigorously and as expected by a public authority of its nature in terms of the standards required by law. Although Lidl claimed that it was intentionally left out of the consultation process by the local council in order for the project to take place without any obstacles from its end, it also did not deny the possibility of any correspondence having gotten lost or thrown away. This is so especially if one takes into account the fact that the people in the establishment change on a regular basis. In fact, Lidl had asked for future correspondence to be sent to its main offices in Hal Luqa. Yet, the court held that responsibility for such correspondence getting lost was ultimately to be borne by Lidl itself. Thus, the court is of the opinion that the duration of the time in which Lidl could have contested the action started running on 24 February, 2014. This means that the period in which Lidl were allowed to lodge their case did not start running from the actual day on which they got to know about the changes, which day arose due to their own negligence and seems to be an arbitrary day chosen by them. Conversely, it started running from the day in which the defendant company should have become aware of the administrative action of which it is complaining, meaning the day on which the decision was taken. The court upheld the local council's claim that the action brought by Lidl was prescribed in terms of Article 469A(3). Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A development planning application entitled "To sanction boundary wall" was refused by the Malta Environment and Planning Authority in May of 2015. The submitted drawings show a wall consisting of franka blocks bordering the backyard of a boathouse in Dwejra. The Authority described Dwejra as having "considerable scenic value'. It was also noted that the applicant's location qualified as a Special Area of Conservation. Even so, the Authority pointed out that the proposal amounts to the "significant alteration of a rubble wall', thus running counter to Legal Notice 160 of 1997 and Legal Notice 169 of 2004 regulating the conservation and maintenance of rubble walls and structures located outside the development zone. Indeed, the said regulations declare rubble walls and non-habitable structures as "protected" by reason of their "historical and architectural importance, their contribution to the character of rural areas, their affording a habitat for f lora and fauna, and their vital importance in the conservation of the soil and of water." In the circumstances, it was held that there was no planning justification as to why the boundary wall could not be constructed in rubble stone. In conclusion, the Authority considered that the proposal was in violation of Policy GZ-RLCN-1 of the Gozo and Comino Local Plan. As anticipated, the applicant lodged an appeal to the Environment and Planning Review Tribunal, insisting that his proposal was in line with current policies. In his submissions, the applicant argued that his development contemplated the replacement of a four course deteriorated franka stone wall, using the same construction methodology. The applicant maintained that his proposal was deemed the more acceptable "when one considers that all backyards in the area are surrounded with franka stone walls." Furthermore, the Natural Heritage Advisory Panel had found no objection to the sanctioning request. In reply, the case officer reiterated that, as a matter of principle, "the use of franka stone is not permissible when constructing boundary walls outside the limits to development." As a final point, the officer remarked that Dwejra is "one of the most important scheduled areas in Gozo due to its natural, ecological and geological features". In its assessment the Tribunal immediately observed that the applicant's proposal was tantamount to a new development which is in turn regulated by Policy GZ-Slwz-2 of the Gozo Local Plan. This policy expressly states that "MEPA shall favourably consider proposals to attenuate the negative environmental impacts at Qawra and Dwejra", prohibiting "the erection of additional boathouses or other permanent structures." In this case, the introduction of the boundary wall only served to extend the footprint of the boathouse. For this reason, the Tribunal rejected the applicant's claims. Dr Robert Musumeci is an advocate and a perit with a direct interest in development planning law Backyard to Dwejra boathouse rejected Robert Musumeci The erection of additional boathouses or other permanent structures is prohibited in Dwejra Malcolm Mifsud Lidl Immobiliare Malta Limited vs Michael Mifsud Et Noe

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