Issue link: https://maltatoday.uberflip.com/i/994982
15 LAW & PLANNING maltatoday | SUNDAY • 17 JUNE 2018 A 2017 planning application contem- plating the demolition of a building in order to pave the way for a complex of apartments was turned down by the Planning Commission. The site in question is located in Triq San Guzepp Hamrun. In its decision, the Commis- sion held as follows: 1. The proposed height of develop- ment ran counter to Urban Ob- jectives 2.3 and 2.4 of the Stra- tegic Plan for Environment and Development (SPED) which pro- mote a context driven approach for the control of building heights within Urban Conservation Ar- eas in order to protect the tradi- tional urban skyline; 2. The proposal was in breach of 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; 3. The proposed development was not compliant with Urban Objec- tives 2 and 4 of the Strategic Plan for Environment since it was in- compatible with the urban design and environmental characteris- tics of the Urban Conservation Area; In reaction, applicant appealed the decision before the Environment and Planning Review Tribunal, insist- ing that permission should have been granted. In his appeal submissions, applicant (now, appellant) argued that the proposed building envelope was compliant with the provisions of the Local Plan, which stipulates a maxi- mum height limitation of three floors. Appellant went on to state that the Lo- cal Plan was consistent with the SPED objectives. It was further argued that the proposed designs were in line with policies P35 and P39 of the Develop- ment Control Design Policy, Guidance and Standards 2015. The Tribunal was reminded that the Authority had ap- proved similar development in the im- mediate vicinity, thus amounting to 'legal commitment' according to law. Furthermore, applicant stressed that the existing façade was to be retained whereas the new floors were designed to complement its aesthetics. On this basis, the Commission was wrong to conclude that the proposal would oblit- erate the visual characteristics of the area. In his final comments, appellant maintained that his proposal was tanta- mount to positive urban regeneration. In reply, the case officer counter ar- gued that the current policy framework clearly required a context driven ap- proach 'that is respectful to the UCA character of the area and to the fact that the adjacent area is a design priority ar- ea as stated in the Central Malta Local Plan'. The planning commission had, in fact, observed that the setback from the facade was less than that of the com- mitted adjacent properties, hence no setback floor should be allowed. Were it to be approved, the proposal would visually dominate the adjacent prop- erties 'which lie along the same build- ing block and not directly opposite'. To make matters worse, 'the impact was rendered more acute by the fact that the architect was utilising a higher terrain as a baseline for the proposed develop- ment with a complete disregard to es- tablished design principles'. In is assessment, the Tribunal ob- served that the Commission had held that 'there are other buildings in line with the height limitation being pro- posed'. The Tribunal also referred to a recent decision involving a certain Pauline Milli where the set height limi- tations were held to be consistent with the objectives of the SPED. For this reason, the Tribunal conceded that the proposed building envelope was in line with the set height limitations and thus ordered the Authority to issue the per- mit. THE Magistrate's Court in Gozo or- dered a carpenter to pay for the differ- ence in price of replacement of doors, after it was established that bad work- manship was carried out. This was held in a judgement delivered on 12 June 2018 by Magistrate Dr Joanne Vella Cuschieri in the case Jesmar u Rose konjugi Tonna v Mario Parnis. The Tonnas had asked the court to order Parnis to refund €3,200 which sum represented payment of wood works carried out in his home. They also asked third parties to carry out the remedial works at Parnis's expense and also for Parnis to pay damages. Mario Parnis, the defendant, filed a statement of defence, denying that the works were not carried out well and the Tonnas accepted the doors. Parnis also held that the claim was time barred. The case started off in December 2012 when the plaintiffs ordered from the defendant seven doors with frames and some shelving. The bill amounted to €5,700 per door and €150 per frame. Magistrate Dr Vella Cuschieri disa- greed that the action was time barred. The defendant failed to indicate under which article of the law was the action time barred, however, in the submis- sions he indicated Article 1390 of the Civil Code which refers to things not according to the stipulated quality which has no prescription period. The plaintiff had presented an affida- vit wherein he listed the defects found and reconfirmed that he paid the de- fendant €3,200 as a deposit. Joseph Briffa also presented an affi- davit wherein he said he inspected the works and found that in parts there was spray missing. In order to do the work again he gave an estimated cost of €6,786. The Court expert, Joseph Borg, in his report told the court that part of the doors had to be treated and need- ed to be sprayed agan, parts had to be changed also. As to the frames, Borg found more defects and these needed radical repairs. The defendant testified that he had already done works for the Tonnas and there were no complaints. When he took the doors, he was paid in part, however, the work was still incomplete. When the door and the frames were placed, he was paid and at this stage the plaintiffs made further orders for an arch. When this was fixed, the plaintiffs complained that there was a difference in colour. In discussions the parties had the defendant offer to make amends to the arch. The court held an on-site inspection and Magistrate Vella Cuschieri saw for herself each door and noticed there was a difference in colouring and that the frames were damaged and that the light could be seen from the wood. A par- ticular door was fixed at an angle and therefore, was not straight. The Court was convinced that the works were not carried out skilfully. The Court also agreed that the doors should be removed. The court agreed that the deposit of €3,200 should be returned to the plaintiffs and that the defendant should take back the works he carried out, except for the shelves. The Court also ordered that the de- fendant should pay for the difference in price that the plaintiffs should pay an- other carpenter to order new doors. Ac- cording to the court expert this should amount to €1,050. Carpenter has to pay for difference of prices for replacement works 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 Local Plan heights are consistent with the SPED