Issue link: https://maltatoday.uberflip.com/i/949290
54 maltatoday SUNDAY 4 MARCH 2018 I f one can present proof of an official change in their surname abroad, its registration and proof that the changes were effected according to a foreign law, then Maltese law will recognise the change in surname. This was held by Hon. Judge Lorraine Schembri Orland during the proceedings concerning the parties Dr David Zahra (on behalf of Lidija Cvijetic) vs Director of the Public Registry. On the 27th of February, the Court heard the pleas by the plaintiff who complained that she could not receive a Maltese passport because the name that she used to register her Certificate of Marriage in Malta did not match the name on her official documents in Serbia, the country where she got married. It was explained to the Court that the plaintiff had married her husband, a Maltese citizen, in Serbia and had retained her maiden surname because she had to travel not long after and did not make the effective changes to her name. After registering her marriage in Malta, she returned to Serbia and added her husband's surname to her official registered name. Issues arose when she was informed that although she has acquired Maltese citizenship, she could not obtain her passport. She therefore pleaded with the court to effect the changes to her name, adding her husband's surname after her maiden one, under a procedure in Article 253 of the Civil Code where the Court may effect necessary changes to a name. The Court then heard the counterclaim by the defendant who explained to the Court that such changes could only be made effective to names that one uses in everyday life and could not apply to surnames. It was furthermore claimed that authorised changes abroad in the form of Deeds of Change of Name (more commonly known as 'deed polls') are not recognised in Malta. The Court made reference to previous judgements concerning 'deed polls' where it was explained that insufficient proof of a registered change in name abroad will lead to a refusal in the official recognition of such changes by Maltese authorities. Once the defendant received the original marriage certificate and registered the plaintiff under that name, it would not be legally possible for Maltese law to allow the abandoning of a surname in exchange for another. The Court affirmed that the claim that foreign law is to be applied, in this case that the changes should be made effective in Malta in recognition of the Serbian legal changes, must be proven as a fact. It was held that the plaintiff managed to prove, to the satisfaction of the Court, that all of her official documents were changed in Serbia and that she obtained official authorisation from Serbian authorities. She was therefore granted an official recognition of her change in surname. The Court did, however, hold that expenses were not to be paid by the defendant since there were no mistakes made in the official marriage registration document and therefore all expenses were to be paid by the applicant. Dr Malcolm Mifsud is partner, Mifsud & Mifsud Advocates Opinion A sanctioning planning application involving the enlargement of a garage and underlying basement together with an illegal boundary wall was turned down by the Planning Commission. The said application concerns a dwelling located within walking distance from the Ggantija megalithic temples in Gozo. In its decision, the Commission held as follows: 1. The development proposed for sanctioning was located within an identified archaeological park (Gozo and Comino Local Plan Map 14.12-A) where 'only development related to traditional cultivation and maintenance of rubble walls may be permitted'; 2. The proposal ran counter to Gozo and Comino Local Plan policies GZ-ARCO-1 and GZ- ARCO-2; 3. The proposal was in breach of Thematic Objective 8.1 and Thematic Objective 8.7 of the Strategic Plan for Environment and Development which aim to safeguard and enhance cultural heritage; 4. The illegal extensions exceeded the maximum allowable plot depth, that is 25 metres; 5. The development had an adverse impact on the rural landscape surrounding the Ggantija Area of Archaeological Importance which includes the Xaghra Stone Circle and the Ghar ta' Ghejzu; 6. The proposed sanctioning ran counter to policy 6.3 of the Rural Policy & Design Guidance 2014 which specifies that structural extensions 'must respect the rural context and must not compromise the scheduling characteristics of sites of archaeological importance'; 7. The two-metre high boundary wall at the rear of property was in breach of Policy 2.9 of the Rural Policy & Design Guidance 2014 which specifies that such walls shall not exceed a height of 1.2 metres from the higher soil level. In turn, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that his application should have been granted permission. In his submissions, applicant (now, appellant) contended that the area was committed with similar development which, incidentally, was situated closer to the megalithic temples. In addition, appellant argued that the illegal extension was minimal when compared to the footprint of the original property. It was further argued that no demolition works affecting scheduled and vernacular buildings was envisaged. As a final point, appellant pointed out that a perimeter high wall was fundamental to provide him with enough security. In reply, the Authority observed that the extensions which applicant sought to sanction lacked respect to the context which comprised a buffer zone to an archaeological site. The drawings showed circa 600 square metres of illegally committed land, equivalent to 300% of the original dwelling footprint. Furthermore, the Authority warned that 'works necessitating the removal of soil and/or debris including possible rock cutting/ trimming in an area that is archaeologically sensitive' went on unmonitored. Despite the fact that no further demolition works were envisaged, the Authority was concerned about the excavation works having been carried out illegally. In this ambit, reference was expressly made to Thematic Objective 8 which clearly seeks the "safeguarding and enhancement cultural heritage". In its assessment, the Tribunal observed that the dwelling in question is situated within a buffer zone close to a Class A Area of Archaeological Importance. More so, the Tribunal contended that the illegal extensions were located outside the development zone. Concluding, the Tribunal felt that there was no sufficient commitment to justify the illegal development. The Tribunal also commented on the scale of the illegal footprint and went on to reject the appeal. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law robert@robertmusumeci.com Robert Musumeci The Tribunal felt that there was no sufficient commitment to justify the illegal development Malcolm Mifsud Surname change from foreign 'deed poll' effected in Malta subject to proof Development close to Ggantija found unacceptable