Issue link: https://maltatoday.uberflip.com/i/952911
50 maltatoday SUNDAY 11 MARCH 2018 I n line with the principle of the need for sufficient evidence, the Court must see an official copy of a letter of contestation when the alleged amount owed to a government entity for light, electricity and other similar bills is challenged. This was decreed by Magistrate Dr Francis Depasquale in the case of Automated Revenue Management Services Limited, Enemalta plc u Korporazzjoni ghas-Servizz tal-Ilma vs Ignazio Licari on the 5th March of 2018. One of the defendant's pleas, mainly that he had contested the amount owed to the plaintiffs, was not sufficiently proven since the official letter of contestation was not produced in Court. The case centered around the procedures listed in Article 466 of Chapter 12 of the Laws of Malta which describe the special processes available to a government entity to recover a debt. The Court heard pleas by the defendant who contested the amount that he allegedly owed for three separate bills due to the authorities for light and water, among others. Such authorities relied upon Article 466 in order to recover their debts, which provide for a representative of a government department to sue for the recovery of debt by declaring an oath before a registrar, judge or magistrate where he may state the nature of the debt, the amount and the name of the debtor. This provides access to a special procedure for the recovery of a debt without the need for a lengthy hearing. The Court, however, made a special reference to the provisory addition to the Article which states: Provided that the provisions of this article shall also apply in respect of amounts due for the supply of water and electricity and for the rental of the relative meters but they shall not apply where prior to the service required under sub-article (2) the person from whom the amount is claimed shall have notified the claimant either by means of a judicial act or by registered post that he is disputing the metering, calculation or the charge in respect of such supply or rental. The Court stated that, for such a procedure to be availed of, the law required the sum of the debt to be certain, liquidated and due. The defendant claimed that he had sent a judicial letter contesting the amounts, and that therefore, the special procedures could not apply. The Court denied this counterclaim due to the fact that this letter was not produced during the hearing, but rather, the defendant produced an official record published by the Court that a letter was sent to the plaintiff, but the contents of this letter were not proven. The Court held that it is the responsibility of the parties to substantiate their claims by providing the best possible proof for the Courts' consideration. The Court therefore dismissed this counterclaim and yet still held that the special procedures were not relevant in these circumstances due to other procedural deficiencies on the part of the plaintiff. The Court therefore dismissed the claim by the plaintiffs and ordered all costs to be paid in solidum by them. Dr Malcolm Mifsud is partner, Mifsud & Mifsud Advocates Opinion A planning application requesting the sanctioning of an illegally-built stairwell on the roof of a penthouse was turned down by the Planning Commission after it held that the design envelope was in breach of planning policy. The building in question is located in Triq Gorg Borg Olivier, Mellieha. To justif y its decision, the Commission cited policy P35 of the Development Control Design Policy, Guidance and Standards 2015. This policy lays down a clear framework which architects are bound to follow when interpreting height limitations. Policy P35 requires inter alia that building heights should be measured from the highest pavement level. Moreover, the said policy provides that only wind turbines, telecommunication antennae and f lagpoles may encroach beyond the permitted height limitation. In this case, the Commission found that the stairwell encroached beyond the allowable height limitation. For this reason, the proposal was deemed to run counter to Urban Objective 3 of the Strategic Plan for Environment and Development (SPED) which aims to protect and enhance the character and amenity of urban areas. In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that his proposal should have been approved. Applicant, now appellant, acknowledged that the stairwell had encroached beyond 'the allowable maximum height', however ' by some negligible eight centimetres'. More so, applicant alleged that the Planning Authority had granted similar development in the vicinity. In reply, the case officer representing the Authority held that the architect had interpreted the sight lines 'wrongly'. The officer explained that in this case, applicant was allowed to build up to a height of three storeys and a three- course basement. According to policy guidelines, this would translate to a street facade of 12.9 metres and a receded height of 16.3 metres. The officer argued that when the line of vision, taken 'at the point where there is 1.6 metre height on the opposite side of the road to the building height (in this case 12.9 metres)', is extended 'until it meets the allowable height of 16.3 metres', the stairwell in question would still exceed the permissible height by 0.9 metres. On this basis, the officer warned that the appellant was wrong to assert that the infringements were minimal. In its assessment, the Tribunal observed that the building consisted of four f loors and an overlying stairwell. The Tribunal further noted that the building was located in a busy commercial area. It was also pointed out that the permits quoted by applicant (in order to justif y his appeal) were of little relevance since these were issued under a different policy regime. Nevertheless, the Tribunal was of the opinion that, given the street context, the illegal stairwell was inconspicuous and therefore overruled the Commission's decision. Dr Robert Musumeci is an advocate and a perit with an interest in development planning legislation robert@robertmusumeci.com Robert Musumeci The permits quoted by applicant were of little relevance since these were issued under a different policy regime Malcolm Mifsud Court requires 'best proof' of the contestation of a debt alleged by a government authority Stairwell overlying penthouse allowed @ maltatoday