Issue link: https://maltatoday.uberflip.com/i/997322
13 LAW & PLANNING maltatoday | SUNDAY • 24 JUNE 2018 A planning application seeking the sanc- tioning of 'changes' and 'proposed ad- ditions' to an 'approved bee breeding station' was submitted to the Planning Authority for assessment. Moreover, the application included a proposed under- ground reservoir and cesspit. The site lies in an area known as Wied Musa outside the development zone of Mellieha. Fol- lowing a negative recommendation from the case officer, the proposal was reject- ed on the following grounds: 1 The proposed additions ran counter to the provisions of policy 3.4A of the Rural Policy & Design Guidance (RPDG) 2014 in that the area of the approved bee- breeding station had already exceeded 25sq.m. which was the maximum area allowed by policy; 2 The applicant did not have the mini- mum number of bee colonies to be en- titled for such development and the pro- posal was therefore not in line with the Thematic Objective 1 of the Strategic Plan for Environment & Development, which limits the land take up for uses which are not necessary or legitimate in rural areas; 3 The proposal ran counter to Rural Objectives 1, 3, and 4 which are designed to control the location and design of ru- ral development, as well as the cumula- tive effect of such development; 4 The site was located within a sched- uled Area of High Landscape Value (AHL V) & Level 3 Area of Ecological Importance (AEI). The proposed addi- tions would therefore affect the natural characteristics of this scheduled area, hence in breach of policies 1.2G & 1.2H of the Rural Policy & Design Guidance (RPDG) 2014; 5 The proposal ran counter to policy NWCO 13 of the North West Local Plan for the protection of garigue land; 6 The site was characterised by illegal development, namely the 'deposition of soil on garigue'. As a matter of fact, ap- plicant had been served with an enforce- ment to that effect. Nevertheless, applicant decided to ap- peal the above decision before the Envi- ronment and Planning Review Tribunal. In his appeal submissions, applicant (now, appellant) contended that, except for the interventions which were identified for sanctioning, the building was otherwise a 'legal and legitimate construction cov- ered by the relevant permits'. Appellant maintained that 'the changes being re- quested to be sanctioned are not some blatant or capricious increase in area but merely a slight change in configuration of the building alignment which has re- sulted in a slight increase in area'. Appel- lant went on to explain that the number of bee colonies was set to increase, insist- ing that it was 'incomprehensible how a mere increase of 25sq.m. will contribute so negatively and adverse impacts on the natural and scenic attributes of the site'. For his part, the case officer explained that, apart from the bee breeding station, the proposed drawings showed the con- struction of an additional garage having an area of 34sq.m. together with a paved area covering 56sq.m., a water reservoir totalling a capacity of 56cu.m. and an underground cesspit having a similar volume. The proposal, according to the case officer, would thus take up more land from a scheduled Area of Ecological Importance and High Landscape Value. The Tribunal was also reminded that the Environment and Resources Authority had raised concern. In its assessment, the Tribunal con- firmed that appellant was indeed a regis- tered bee keeper. It was further observed that the bee keeping area had increased from 59sq.m (namely, the area approved in previous permit) to 65sq.m. With re- gard to the proposed underground res- ervoir and cesspit, the Tribunal found no objection. Notwithstanding, the Tri- bunal felt that the proposed garage and adjacent paved areas were not justified. Against this background, the Tribunal ordered the Authority to issue the per- mit once applicant submits fresh draw- ings showing the removal of the garage structure and the paved area. THE Malta Communications Authority was acting intra vires when, by means of Directive No. 2 of 2005, it instituted a legal interception fund for the purpose of sharing the cost of legal interception obligations between persons provid- ing, or authorised to provide, electronic communications networks and services or associated facilities. This was decid- ed by Judge Anna Felice in the case of Vodafone Malta Limited vs The Malta Communications Authority and the At- torney General heard in the First Hall Civil Court on the 16th of June 2018. The Court heard the claims by the plaintiff, who held that the defendants were responsible for the improper trans- position of EU Directive 2002/20 on the authorisation of electronic commu- nications networks and service. They stated that the costs imposed on them by Directive 2/2005, formulated by the Authority, went beyond the measures contemplated by the EU Directive, and that therefore it was not within their power to have made such a decision. The Court then heard two strong pleas by the Attorney General who attacked the claim both procedurally as well as substantively. The primary defence was that the Attorney General should only represent the Government, as a defendant, when no other departments or heads of departments can answer for a particular claim. Since the Directive was issued by the Communications Au- thority, the Attorney General could not be said to be the relevant defendant. The Court agreed with this reasoning. The second plea made, also reiterated by the Authority itself, was that the EU Directive regulated administrative costs that could be imposed on undertakings in the communications sector, and that this in no way was mutually exclusive to the costs imposed by Directive 2/2005. It was explained by the Authority that the aims of the costs imposed by their Directive were to collect the sums due for the costs of legal interception, allow- ing for electronic transmissions needed for communications, and to pass them on to Social Security services. Thus, it was held by the defendants that the de- cision made to impose such costs did not constitute an ultra vires action and that, on the contrary, the collection of such sums is necessary. The Court analysed the scope of EU Directive 2002/20 by making refer- ence to Article 1 of the said legislation. An analysis of the article shows that its aim is to implement an internal market in electronic communication networks and to harmonise rules and conditions imposed on undertakings within the sector. The plaintiffs argued that, in fact, no other Member State imposed such costs on similar undertakings and that therefore the harmonization envis- aged by the Directive was compromised. The Court, however, made reference to Recital 7 of Directive 2002/21/EC, or the Frameworks Directive, which itself establishes a common regulatory framework for electronic communica- tions networks and services. The Recital states that any specific directives related to electronic communications do not prejudice the right of Member States to establish necessary measures to ensure the protection of essential security in- terests and the safeguarding of public policy. The Court stated that this ap- plies to the implementation of Directive 2002/20, where the Communications Authority could not be found guilty for imposing ulterior costs to undertakings for the safeguarding of Social Security interests. It was therefore held to be ir- relevant whether other Member States imposed similar costs or not, owing to the fact that this was a measure contem- plated by Maltese authorities for the col- lection of required costs. The Court concluded that the only way by which the Authorities could be found to have abused their position and implemented an ultra vires decision, is if it was found that Directive 2/2005 either lacked transparency or proportionality. Since neither of these elements could be proven, the Court overruled the plain- tiffs' claims and ordered them to pay the judicial costs involved in the proceed- ings. Communication undertakings such as Vodafone to continue paying the cost of legal interception obligations as Court rules that such costs were not instituted ultra vires 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 Bee breeding station sanctioned without proposed extensions