Issue link: https://maltatoday.uberflip.com/i/884700
48 maltatoday, SUNDAY, 8 OCTOBER 2017 T he First Hall of the Civil Courts refused to consider whether the suspension of a fishing boat licence was legitimate, since the action was filed six months after the suspension had taken place. This was decided and delivered by Mr Justice Mark Chetcuti on 3 October, 2017, in Malta Towage Limited -v- Director of Fisheries. In the plaintiff company's application, the company explained that it owns a vessel, the MV Ernest E. Pierce, which had a fishing licence which was valid from 15 May, 2015, to 4 May, 2016. On 15 June, 2015 the Director of Fisheries suspended the licence, because according to the defendant, the vessel was fishing beyond 12 nautical miles without the necessary authorisation and also it was alleged that the captain was not registered and licensed. The licence was suspended in terms of the Fisheries Conservation and Management Act. The plaintiff company argued that none of the circumstances listed in Article 12(4) of the Fisheries Conservation and Management Act, which allowed suspension of the licence, existed in the case of the plaintiff company and the Fisheries Department failed to take further action as the law dictated. On 15 March, 2016, the company wrote to the department asking it to reactivate the licence. On 14 April, 2016, a negative reply was sent, however, the department did not give any reasons for refusing the reactivation. After much pushing and tugging, the plaintiff company received an email on 20 April, 2016, with a list of requirements necessary for reactivation. The company then wrote that in fact all the conditions were satisfied and there was no need to obtain additional certificates, when these were given when the licence was issued. The department stuck to its guns and insisted all the conditions had to be adhered to. The company asked the court to declare that the refusal to lift the suspension of the licence was ultra vires and therefore, the department acted beyond its powers. The company invited the Court to declare that the department acted in bad faith, which caused damages. The Department of Fisheries filed a statement of defence, where amongst others, it was claimed that the vessel was not the property of the plaintiff company and therefore, it did not have any judicial interest to institute this action. Furthermore, the department raised the plea that in terms of Article 469A(1)(b) of the Code of Organisation and Civil Procedure, the action should have been instituted within six months. The letter of 14 April, 2016, was merely a repetition of a letter of what was already said. The department also held that this action could not be successful because the letter of 14 April, 2016, cannot be construed to be an administrative act. The Court held that this case was one of judicial review, where it was being alleged that a licence to operate a vessel was suspended on 15 June, 2015. The company made a request for the licence to be reactivated on 15 March, 2016. On 20 April, 2016 a list of conditions was sent, amongst which there were some which were new. Although the company tried to comply, the Department refused to reactivate the licence. Mr Justice Chetcuti dealt with whether the action could have been instituted because six months had lapsed in terms of Article 469(3) of the Code of Civil Procedure and Organisation. According to subsection 3 of the Article, an administrative act is amongst others, a decision made by a public authority and the time within which it may be attacked, and the six months period cannot be suspended nor interrupted. This was held in Maria Victoria Borg et -v- the mayor and secretary in representation of Pieta local council. The plaintiff company held that the department's decision was taken on 14 April, 2016. The Court disagreed. The letter made reference to the previous letter of suspension of 28 May, 2015. Therefore, the administrative act was taken in May 2016, and not in April 2016. The fact that in April 2016, additional reasons were given for the suspension, cannot be considered as a new administrative act. In that letter, the director merely confirmed his previous decision. Therefore, the action was filed after the six months period. The Court turned down the action. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Opinion T he Planning Commission had to decide whether to grant planning permission for the construction of a boundary wall at the rear of a residential property located in San Lawrenz, Ghawdex. The Commission held that the proposed interventions were objectionable 'in principle' since the wall was located outside the development zone. In giving the reasons for refusal, the Commission considered that the proposal was 'not sensible to the general objective of protecting the rural setting and character, as specified in Thematic Objective 1.10 of the Strategic Plan for Environment and Development.' In reaction, the applicant lodged an appeal against the Planning Commission before the Environment and Planning Review Tribunal, insisting that the proposed wall was 'within the garden of a developable plot earmarked for residential development'. The applicant went on to observe that the said wall formed part of a rectangular plot, most of which lied within the schemed development zone. The appellant emphasized that the proposal contemplated a 1.2 metre high rubble wall beyond the 30 metre plot depth when measured from the building alignment. Moreover, the applicant contended that he had received 'unfair treatment', citing particular reference to four planning applications that were granted 'boundary walls bordering the back gardens of residential development' in an 'adjacent or nearly adjacent sites'. Rebutting, the case officer representing the Planning Authority observed that the applicants' site formed part of 'a series of six plots which are all similarly requesting the construction of a boundary wall extending beyond the schemed development boundary'. The officer pointed out to the Tribunal that all six requests were turned down by the Authority. As for the permissions quoted by the applicant, the case officer argued that these were characterized by different site contexts and were thus not relevant to the case in question. As a final point, the officer warned that the site in question was regulated by a planning control application having set clear conditions in terms of road alignments, height limitation and land use. Approving the development, the case officer warned, was in breach of these conditions. Upon review of the facts before it, the Tribunal concluded that the applicant's site was sandwiched between developments having a committed depth of 38 metres whereas in the applicant's case, the proposed wall would extend by a further one metre (namely up to 39 metres). Given that the discrepancy between the committed plot depths was minimal the Tribunal concluded that approving the development would not result in adverse visual impacts. Against this background, the Tribunal upheld the appeal. Dr Robert Musumeci is an advocate and a perit having an interest in development planning law robert@robertmusumeci.com Robert Musumeci Malcolm Mifsud Judicial review proceedings must commence within six months Boundary wall given the go ahead Site was sandwiched between developments having a committed depth of 38 metres whereas in applicant's case the proposed wall would extend up to 39 metres' depth