Issue link: https://maltatoday.uberflip.com/i/1013924
13 LAW & PLANNING maltatoday | SUNDAY • 12 AUGUST 2018 A planning application entitled "addi- tion of one residence to existing block, installation of lift and internal altera- tions" pertaining to a site in Triq San Bastjan (in Valletta) was rejected by the Planning Commission. Were it to be approved, the proposal would result in the creation of two floors, the topmost which was to be re- ceded from the road alignment. In support of its decision, the Com- mission made the following observa- tions: 1. The proposed setback floor was found to run counter to Urban Objectives 2.3 and 2.4 of the Stra- tegic Plan for Environment and Development which promote a context driven approach for the control of building heights within Urban Conservation Areas in or- der to protect the traditional ur- ban skyline; 2. The proposal was deemed to run counter to policy P39 of the De- velopment Control Design Policy, Guidance and Standards 2015 which requires setback floors to have design and materials which are compatible with the character of the area and skyline, and not to intrude into important long- range or short-range views, par- ticularly those defined in Local Plans; 3. The proposed setback floor was in conflict with Grand Harbour Local Plan policy 'GV15 Build- ing Heights' which states that when giving consideration to ap- plications which include changes to existing building heights, the following criteria (amongst oth- ers) will be taken into account: i) the roofscape; ii) the skyline when seen from outside the site area; iii) the topographical features and consideration of the slop- ing nature (including buildings in the background); iv) any other relevant planning considerations. In response, applicant lodged an ap- peal before the Environment and Plan- ning Review Tribunal, taking note of other developments in the vicinity, fea- turing a similar envelope. Nevertheless, plaintiff submitted that he was willing to do away with the set- back floor, in which event the reasons for refusal would be addressed. Appellant made reference to two re- cent judgments delivered by the Tribu- nal in order to show that it was 'tech- nically' possible to scale down design proposals at appeal stage. In reply, the case officer representing the Authority disagreed with plaintiff and went on to highlight that 'the issue of excessive height was already flagged during the processing of the applica- tion, and therefore, prior to the actual board hearing, the applicant had ample time to submit a revised proposal in line with the Directorate's recommen- dations'. Revisiting the proposal at this junc- ture, according to the case officer, would be tantamount to altering the 'substance' of the proposed develop- ment, now under appeal. In its assessment, the Tribunal ob- served that the Commission was pri- marily concerned with the setback floor, which plaintiff was willing to do away with. Against this background, the Tribunal ordered the Authority to issue the per- mit 'without the setback floor', however subject to a restoration method state- ment. THIS was decided by the First Hall Civil Court as presided by Honour- able Judge Jacqueline Padovani Grima in its judgement dated the 30th July 2018 in the names of Bank of Valletta p.l.c. v Pauline Bugeja. On the 11th July 2018 Pauline Bugeja filed an application before the First Hall Civil Court where she requested the Court to suspend the proceedings of a Judicial Sale by Auction related to the sale of her property, since the ar- chitect's valuation as redacted in his Report and which was presented in the acts of the said Judicial Sale by Auction, did not meet the requirements set out under Article 310 (1) of the Code of Or- ganisation and Civil Procedure. The said provision of the law states that in the valuation of immovable property the experts shall include a description of the property stating the burdens, leases and other rights wheth- er real or personal, if any, to which the property is subject, as well as the last transfer of such property. The said description must include (a) an indication of the area and height of the property subject to judicial sale; (b) a plan or a sketch which shows the num- ber of rooms constituting the property and their size; (c) a report as to whether the property is built in line with build- ing permits and sanitary rules; (d) a copy of the deed of acquisition; and (e) a declaration as to whether the place is inhabited or occupied by third parties, and under which title it is so occupied. In her application, Pauline Bugeja contended that the valuation report in this case did not list the burdens that the property that was being sold by means of this judicial sale by auction was subjected to, did not mention the last transfer of the property and did not include the report confirming whether the property had been built in accord- ance with building permits and sani- tary regulations. Moreover it was claimed that the report did not include the deed of ac- quisition and it erroneously stated that the owners of the property were Wil- liam and Pauline spouses Bugeja, but the property was exclusively owned by Pauline Bugeja. Bank of Valletta p.l.c. in their reply held that as per article 308 (4) of the Code of Organisation and Civil Pro- cedure the architect's valuation report could not be attacked but an applica- tion could be filed requesting that the said appraisement is amended. Moreover Bank of Valletta p.l.c. held that in actual fact the valuation report did make reference to the necessary building permits and although the burdens and the last transfer were not included in the appraisement they had been duly indicated in the application of the Judicial Sale by Auction and a deed of acquisition was also presented together with the said application and from which deed resulted the title of ownership of the property. Whilst considering the facts of the case, the Honourable First Hall Civil Court found that the appraisement prepared by the architect did, in fact, lack the documents that Pauline Bugeja had mentioned in her application and erroneously indicated that the property belonged to spouses Bugeja rather than being solely owned by Pauline Bugeja. With regards to the building permit, the Court held that although the expert had mentioned that the property could not be further developed since it had already been over-developed, there was no indication as to whether the tene- ment was indeed covered with the nec- essary building permit. The Court further held that although the deed of acquisition had been an- nexed to the application of the Judicial Sale by Auction, the law as per its pro- visions in Article 310 of the Code of Organisation and Civil Procedure still requires the deed to be attached to the appraisement prepared by the archi- tect. Notwithstanding this, the Court up- held Bank of Valletta p.l.c.'s plea that such shortfalls in the appraisement do not bring about the suspension of the proceedings of the Judicial Sale by Auc- tion but only lead to the amendment of the report so that it would include all the information in accordance to law. In view of this, whilst rejecting Paul- ine Bugeja's request to suspend the judicial sale by auction, it ordered the expert that had prepared the report to carry out the necessary amendments as required in terms of Article 310 (1) of the Code of Organisation and Civil Procedure. Shortfalls in appraisement of property do not result in the suspension of a judicial sale by auction catherine@mifsudadvocates.com.mt ASK CATHERINE Dr Catherine Mifsud is an associate 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 Proposal scaled down during appeal proceedings