Issue link: https://maltatoday.uberflip.com/i/946236
46 maltatoday SUNDAY 25 FEBRUARY 2018 A n action for the judicial review of an administrative decision taken unjustly as described in Article 469A .1(b)(ii) of Chapter 12 of the Laws of Malta will not be considered if it is filed more than six months after the applicant knew or could have known about that decision. Hon. Mark Chetcuti, presiding over the case of Joshue Agius vs Kap Kmandant tal-Forzi Armati ta' Malta, held that contrary to other cases of the interruption or suspension of prescription, applicants had to respect the clear limitation rules set by Article 469A(3) when filing a claim against an administrative decision. On the 14th of February 2018, The First Hall Civil Court heard pleas by the plaintiff claiming that the administrative decision taken by the Captain of the Armed Forces leading to the termination of his employment within the Armed Forces of Malta went against principles of natural justice. The termination followed an incident in which a video was leaked onto social media depicting a member of the armed forces suffering injuries following an accident which occurred during the filming of a video intended to be used for the purposes of training within the force. It was pleaded that the termination did not follow a thorough and serious investigation. The plaintiff relied upon 469A.1(b)(ii) of Chapter 12 of the Laws of Malta which states that a court of civil jurisdiction may enquire into the validity of an administrative decision when the decision is ultra vires on the grounds that it failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon. The defendant primarily relied upon the claim that the action brought by the plaintiff did not adhere to the procedural limitations set by Article 469A(3) which states that: "An action to impugn an administrative act under sub-article(1)(b) shall be filed within a period of six months from the date when the interested person becomes aware or could have become aware of such an administrative act, whichever is the earlier.'' The Court limited itself to the exploration of the preliminary counterclaim by the defendant and solely considered whether the plaintiff 's claim was made fuori termine with regards to the six-month period ascribed by law. It held that, in accordance with previous judgements by the Court, this six-month period is one of limitation that is not subject to the ordinary conditions of suspension or interruption of other prescription periods. This means that the fact that discussions are being held between the parties over the administrative decision in question does not affect the six-month limitation set by law for the filing of an action by the plaintiff. The court took into consideration that the plaintiff was informed of the termination of his duties on the 17th of March 2015 and received his official letter of termination on the 18th of March. It considered therefore that the action should have been filed, at the latest, by the 18th of September of that same year whereas the lawsuit in desamina was filed on the 22nd of September. The Court dismissed the action with all fees in question to be paid by the plaintiff. Dr Malcolm Mifsud is partner, Mifsud & Mifsud Advocates Opinion T he owners of a hotel in Gozo filed a planning application to carry out an extension together with various structural alterations. The Planning Authority, however, rejected the application on the following counts: 1. Applicant had failed to submit a valid compliance certificate from the Malta Tourism Authority; 2. The design was in breach of various planning policies, notably Urban Objectives 3 and 4 of the Strategic Plan for Environment and Development (SPED) which promote a context driven approach for the control of building heights within Urban Conservation Areas; 3. The proposal ran counter to policies P35 and P39 of the Development Control Design Policy, Guidance and Standards 2015 which require that "building heights are based on a streetscape analysis in order not to create an unacceptable visual impact and blank party walls"; 4. Applicant had also failed to provide sufficient technical evidence to enable an appropriate traffic impact assessment. Aggrieved by the said decision, applicants lodged an appeal before the Environment and Planning Review Tribunal, insisting that the application should have been granted planning permission. In their appeal submissions, applicants (now appellants) insisted that a Tourism Compliance Certificate was, in fact, issued by the Malta Tourism Authority in June 2014 and subsequently renewed in June 2017. Applicants therefore contended that "the extension proposed in this development is compliant to Malta Tourism Authority requirements". Appellants explained that the updated certificate, although submitted "at the latter stages of the processing of the application, namely when the DPA report was issued", was ignored by the Planning Authority. It was further highlighted that the Design Advisory Committee was "not averse to the proposed extension". As far as traffic was concerned, applicants maintained that the scale of the proposed extension was relatively "minor" and adequate parking was already being provided within the site precincts. Concluding, appellants went on to explain that "hotel employees are generally provided transport to and from work organised by the hotel management" adding that "not more than three additional employees will need to be employed by the hotel to cater for the additional guest inflow generated by the extension". In reply, the case officer representing the Authority pointed out that the Tourism Policy Compliance Certificate "was not available in due time for the decision". Moreover, the Tribunal was reminded that the proposed height increase would have an adverse impact on the nearby Urban Conservation Area. In its assessment, the Tribunal held that it was primarily concerned about the eventual visual impact. The Tribunal observed that, in its decision, the Authority had ignored applicant's latest drawings which sought to reduce the scale of the development, limiting the proposed extension outside the Urban Conservation Area. In light of the said developments, the Tribunal felt that the Authority should reassess the proposal. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law robert@robertmusumeci.com Robert Musumeci Authority had ignored applicant's latest drawings Plaintiff claimed that the administrative decision leading to the termination of his employment went against principles of natural justice Malcolm Mifsud Six-month period on unjust administrative decision cannot be interrupted or suspended Authority ordered to reassess Gozo hotel extension