Issue link: https://maltatoday.uberflip.com/i/849592
46 maltatoday, SUNDAY, 16 JULY 2017 Opinion T he Administrative Review Tribunal turned down a plea from the Ministry of Education that judicial acts should be filed before actions are filed with the Tribunal. This was decided on 6 July, 2017 by Magistrate Charmaine Galea, Dr David Fabri and Dr Antoine Naudi in Vincent Carabott -v- Ministry of Education and the Teachers Professional Council. Vincent Carabott had filed an application with the Tribunal stating that in February 2017 his teacher's warrant was being withdrawn according to Article 30(1)(a) of the Education Act, following a Court of Criminal Appeal judgement delivered on 27 October 2016 where he was found guilty of threatening Ms Justice Abigail Lofaro. He was given a suspended sentence of 12 months and a fine. Mr Carabott challenged this decision and asked the Tribunal to reverse it. The defendants filed a statement of defence and amongst other pleas, registered a preliminary plea that this appeal could not proceed because no judicial act was filed in terms of Article 460 of the Code of Organisation and Civil Procedure. The Tribunal held that it would decide on this plea. Article 460 reads: "(1) Subject to the provisions of sub-article (2), no judicial act commencing any proceedings may be filed, and no proceedings may be taken or instituted, and no warrant may be demanded, against the Government, or against any authority established by the Constitution, other than the Electoral Commission, or against any person holding a public office in his official capacity, except after the expiration of ten days from the service against the Government or such authority or person as aforesaid, of a judicial letter or of a protest in which the right claimed or the demand sought is clearly stated. (2) The provisions of sub-article (1) shall not apply - (a) to actions for redress under article 46 of the Constitution; or (b) to warrants of prohibitory injunction; or (c) to actions for the correction of acts of civil status; or (d) to actions to be heard with urgency; (e) to referrals of disputes to arbitration, and where in accordance with the provisions of any law a particular procedure including a time-limit or other term is to be observed, the provisions of sub-article (1) shall not apply and the procedure aforesaid, including any time-limit or other term, shall apply and be observed in lieu thereof. (3) Causes against the Government in respect of which there is in force a warrant of prohibitory injunction shall be heard by the court with urgency in preference to other causes." The Tribunal quoted from a previous judgment, Emanuel Bugeja -v- Mary Rose Bugeja, of 26 June, 2003. The judgement explained that this article is a procedural privilege given to the government, when it is sued and therefore, it is a public order rule. If a judicial act is not notified to the government before an action is instituted that action is then declared null and void. In the note of submissions, the defendants pointed out that there are conflicting judgments. In Alfred Buttigieg -v- Bord tal-Professjoni tal-Inginerija it was held that there is no need of a judicial act, while another judgement Mari Paule Wagner -v- Ministeru ghall-Enegerija u l-Konservazzjon ta' l-ilma had turned down the ministry's plea that a judicial act was not filed before the appeal was lodged. The Tribunal held that this was in fact not a contradiction, since in the second case, the judicial act was filed, then the plea was withdrawn. The Tribunal pointed out that the law insists that the judicial acts should be filed in the Court Registry, but acts filed in Tribunal cases are filed before a separate Registrar. The Court also pointed our that appeals under the Education Act have to be filed 21 days from the minister's notice. Article 15 of the Administrative Tribunal Act indicates which articles of the Code of Organisation and Civil Procedure apply. Therefore, indicating that where the legislator intended the Tribunal to adopt the civil procedure it stipulated very clearly. The Tribunal then moved to turn down the minister's plea. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning proposal entitled "to sanction existing dwellings (pre-1967 farmhouses)" was submitted to the Malta Environment and Planning Authority in an attempt to obtain permission for the sanctioning of structural alterations which had been carried out without planning consent. The interventions include the roofing over of a passageway linking two old buildings. The application involves two old farmhouses situated in an area known as Tal- Qaghadi in the limits of Naxxar. Following a thorough analysis, the applicant's request was rejected by the Environment and Planning Commission after it unanimously held that the interventions were in violation of active plans and policies, specifically Policy 6.2C and Policy 6.3 of the Rural Policy and Design Guidance (RPDG, 2014). The Commission held inter alia that 'the current building is larger than the original building, the characteristics of the original buildings were not retained, the proposed landscaping scheme is not appropriate, the site falls within an archaeological area, the floor area of each dwelling exceeds 200 square metres, the extensions visually dominate the existing buildings and the extensions were constructed after 1994'. Moreover, the design was considered to lack visual, containing 'disparate styles that do not reflect the local context'. In addition, the Commission held that, given the site context, the interventions had 'an adverse impact on an important archaeological site', thus in conflict with Structure Plan policy ARC 3 which in turn provides that such areas or sites should be safeguarded and preserved. Concluding, the Commission maintained that the proposal would also give rise to unacceptable additional on-street car parking, exacerbating existing problems of congestion, potential highway danger and vehicular and pedestrian conflict. In reaction, the applicant lodged an appeal with the Environment and Planning Review Tribunal, insisting that the Commission's decision should be reversed. In his appeal submissions, the applicant maintained that his proposal was 'definitely not for the redevelopment of previously existing buildings'. The applicant went on to state that his application was not tantamount to a 'change the use' since the residential use was legally established, adding that the old building was being retained and 'not redeveloped'. He insisted that his designs were 'typical of rural development, simple, without elaboration, and fitting to its context'. Concluding, he highlighted that such applications should not be rejected 'a priori' for the simple reason that the relative site is located within a Class A Area of Archaeological Importance. In reply, the Authority held to its original position, reiterating that 'the existing structures were extensively altered and hence the property does not merit the designation as a high importance vernacular property'. The case officer pointed out to the Tribunal that structural extensions are favourably considered on condition that there are no substantial changes to the original building. With regard to the archaeological impacts, the case officer asserted that an assessment was not possible at that stage since works had already been taken in hand. In its assessment, the Tribunal observed that the applicant's request was tantamount to rehabilitating a vernacular building, the bulk of which was to be retained (contrary to what the Authority had stated). For this reason, the Tribunal acceded to the applicant's request on condition that the floor space of the recent additions is reduced. Dr Robert Musumeci is an advocate and an architect, with an interest in development planning law Robert Musumeci Rehabilitation allowed in view of the building's vernacular characteristics Malcolm Mifsud No need of judicial acts before appeals before Administrative Review Tribunal Permission granted subject to a reduction in floor space