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MT 27 May 2018

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13 LAW & PLANNING maltatoday | SUNDAY • 27 MAY 2018 ON the 30th June 2016, the Planning Board refused permission for a 'desti- nation port comprising a hotel, a yacht marina and a tourist village' in Hondoq ir-Rummien, Qala (Gozo). The applica- tion was submitted to the then Malta Environment and Planning Authority back in 2002. In order to justify its decision, the Board cited the following reasons for refusal: 1. The proposal would result in a dense urban development within a designated coastal rural area, hence in breach of the Strategic Plan for Environment and Development (SPED) which seeks to locate urban development within com- mitted built areas and to protect rural and coastal areas from incompatible uses; 2. The proposed development ran counter to Thematic Objective 1.10 and to Rural Objective 4 of the Strate- gic Plan for Environment and Develop- ment in terms of land-use in that the proposal was not considered legitimate or necessary within the rural area; 3. The type, scale and density of the proposed development went beyond what was considered acceptable in terms of Policies GZ-Qala-3 and GZ- Qala-4 of the Gozo and Comino Local Plan 'to rehabilitate the damaged land- scape resulting from the past quarrying activity in Hondoq ir-Rummien and to provide basic beach amenities in the area'; 4. Due to its ecological and social im- pacts, the proposed marina was not compatible with the intentions of the Local Plan's Policy GZ-TRAN-13 to provide destination ports around the Gozitan coast in order to improve the tourism product, upgrade facilities for boating and yachting while protecting the environmental resources; 5. The development was incompatible with the natural characteristics of the area and with 'the current informal rec- reational use of Hondoq ir-Rummien Bay'; 6. Transport Malta had objected to the proposed development due to the envisaged traffic impact. In reaction, applicant filed an appeal before the Environment and Planning Review Tribunal. In his appeal submis- sions, applicant, now appellant, argued that he was denied a fair hearing. The Tribunal was reminded that the Au- thority had directed applicant to com- mission a multitude of costly 'reports, studies and assessments'. Fourteen years on, applicant was served with the case officer's report, recommending a refusal and was given only ten days to lodge his counter arguments. The pub- lic hearing went on as scheduled despite the 'vast majority' of experts who were involved in compiling the studies could not attend due to the short notice. Ap- plicant therefore contended that the Authority had acted in breach of his fundamental human rights since he was not given adequate opportunity to prepare his case. In reply, the Authority countered that applicant was present for the hearing, adding that at no point was he denied the opportunity to put forward his ar- guments In its assessment, the Tribunal ob- served that the planning application was submitted in 2002. Reference was made to Regulation 3 c of Legal Notice 162 of 2016 which inter alia states that for those applications that were validat- ed prior to 2011 (such as the application under review, which was submitted in 2002) 'the applicant shall be informed by a letter from the Executive Chair- person stating that the provisions of the 2010 Development Planning (Proce- dure for Applications and their Deter- mination) Regulations apply'. In this case, it transpired that the Executive Chairperson had failed to send the said letter as required by law. Instead, applicant was served with the case officer's report. Against this back- ground, the Authority's Chairperson was ordered to send the letter to ap- plicant, reminding him that his case would be reassessed in line with the previous 2010 procedural regulations. A decision shall be taken thereafter. THE charge sheet presented by the police in criminal charges, as de- scribed in Section 360(2) of the Crim- inal Code, should contain a clear and accurate representation of the facts of the charge "together with such par- ticulars as to time and place as it may be necessary or practicable to give''. Unless the evidence produced, and the charges brought correspond to what is on the charge sheet, then the Court is obliged to dismiss the claim. This was held by Magistrate Natasha Galea Sciberras in the case The Police vs Mohammad Awal, which was held on the 16th of May 2018. The Court heard how in a sitting held a few days earlier, where the ac- cused was arraigned before the Court under arrest, the defendant requested that the trial be held in English and consequently the charges were read out and confirmed by the Prosecuting Officer in the English language. The Court commented on how the charg- es which were written on the charge sheet in Maltese were not identical to the charges on the English version of the charge sheet, with the defend- ant's crime and the evidence brought not corresponding to the latter charge sheet. The defendant was originally charged with possession of canna- bis resin with the intent to distrib- ute according to the charge sheet in Maltese, while the charge sheet in English described the charge as pos- session of cannabis plant with inten- tion to distribute the same. Although the defendant pleaded guilty to the crime, the Court stated that the ac- cused was being charged with an of- fence which finds no basis in the al- leged facts leading to his arrest, and a clear mismatch also was present with regard to the evidence produced. The Court rested on the testimony by ex- pert Godwin Sammut who confirmed that the substance retrieved from the defendant was cannabis resin and not the plant. The law indeed distinguish- es between the two, possession of which are two separate offences, and therefore, the defendant was charged with the wrong offence according to the latest translated charge sheet. The Court proceeded to liken this case to a number of others, wherein the inac- curacy of the charges as described on the charge sheet warranted a dismiss- al of the case. The Court described the facts of the case in Pulizija vs John Mary Briffa, where in 2005 the appellant had been charged with a crime that accord- ing to the charge sheet occurred at 7.30pm. Despite this, the evidence brought pointed to an event that ac- tually occurred at 7.30am. The Court had held that where the charge sheet declares that a crime occurred "ghall- habta ta'' (around), referring to a crime that happened around the time indicated on the sheet, it must refer to a time very close to the one indicated, and not 12 hours earlier. The Court explained that in such situations where there is clearly a mistake, it is the responsibility of the Prosecution to request an immediate correction. The Court, referring to other judge- ments, held that unfortunately once a mistake such as this described has oc- curred, it is too late for the Attorney General to request a correction to the charge sheet at appeal stage. Lastly, the Court made reference to a judgement by Hon. Judge William Harding, in the case of Pulizija vs Martin Camilleri, on the probatory value of a guilty plea. It was explained that in this case the Court, in consid- eration of both English and local law, had held that a Court cannot find a de- fendant guilty, even if they themselves admit guilt, unless they are guilty of the crime they are charged with. They cannot just be found guilty of com- mitting a crime, but rather must be guilty of the crime described by the plaintiff. The Court therefore found the defendant not guilty as it held that it could not be assumed that the de- fendant was still guilty of cannabis possession if the law distinguished between offences in this regard. Court highlights importance of accuracy on charge sheet in criminal proceedings; the absence of which will free defendant mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Hondoq proposal to be reassessed in view of procedural error

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