Issue link: https://maltatoday.uberflip.com/i/1019057
LAW & PLANNING 16 maltatoday | SUNDAY • 27 MAY 2018 IN the instant case, applicant had his planning application entitled "To sanction agricultural room and res- ervoir" turned down by the Planning Commission. The room in question, which was located in a small field in the limits of Birzebbuga, occupied a floor area of circa 30sq.m. To justify, it decision, the Commission highlighted the following reasons: The proposed sanctioning of the ex- isting store was in conflict with criteri- on 2, 6 and 8 of policy 2.5A of the Rural Policy & Design Guidance (RPDG) 2014 'since the room was not positioned on registered land'; The size of the store exceeded the maximum storage entitlement and the height of the store was in excess of that permitted in the policy; The proposal ran counter to the The- matic Objective 1.10 of the Strategic Plan for Environment & Development which only allows rural development where it is found to be legitimate or necessary; The proposal resulted in the loss of agricultural land, thus running counter to Policy 1.20 of the Rural Policy and Design Guidance 2014 which seeks to ensure soil conservation; The proposed sanctioning of the wa- ter reservoir ran counter to policy 2.7A of the Rural Policy & Design Guidance (RPDG) 2014, which requires that wa- ter reservoirs exceeding 10sq.m shall be located underground covered by a 0.5 metres layer of soil; A number of illegalities were detected on site, namely an unauthorised pas- sage which in turn resulted in the frag- mentation of land and the demolition of a stretch of rubble walls which are pro- tected at law; In reaction, applicant lodged an ap- peal before the Environment and Plan- ning Review Tribunal, insisting that permission should have been issued. In his rikors (application), applicant, now appellant, submitted that the holdings in question were registered under ap- plicant's name, contrary to what had been purported by the Commission. Having said that, applicant held that he would be forwarding additional rea- sons to justify his proposal during the pendency of proceedings. In reply, the case officer cited Regu- lation 17 of Legal Notice 162 of 2016 which specified that a proposal could not be considered further should there be illegal development on site. In this case, the officer reminded the Tribunal that applicant had formed a passageway without obtaining prior clearance. For its part, the Tribunal however observed that the 'illegal passageway' was not deemed objectionable since it consisted of beaten earth. Moreover, it was observed that the Authority had not filed any similar objections with regard to previous application relative to the same site. As to the merits, the Tribunal asserted that applicant was in possession of circa five tumoli of land and was therefore entitled to a maxi- mum of 15sq.m roofed storage area. Moreover, the reservoir in question was to be buried. In this case, the room measured 30sq.m whereas the water reservoir was located above soil level. In the circumstances, the Tribunal felt that the appeal should be dismissed. In a decree ordering that a case will start to be heard in October, Mr Justice Grazio Mercieca took the opportunity of giving the history of the Courts' summer recess. This was held in a decree in a case filed on 14 August 2018 in Malta Stock Exchange plc -v- Pefaco International plc. The Malta Stock Exchange (MSE) had filed a court case, using the special sum- mary proceedings procedure, known as "bil-giljottina". Article 29 of the Code of Organisation and Civil Procedures al- lowed a Board on the Rules of Court and the Minister to establish which are the sessions to be used by the various courts throughout year. Two 2008 Legal No- tices establish that the summer recess should take place between 16 July and 15 September of each year. Mr Justice Mer- cieca pointed out that the same regula- tions dictate that the next session should start on 1 October, leaving uncertainty of what takes place between 16 and 30 September. The Court held that the Code does not make any reference to when the recess should take place, but merely makes references to the Rules of Court. This was not always the case, because before 2002, this was established in the Code of Organisation and Civil Procedure. This was the case since Ordinance IV of 1854. We can also see references to the Courts' recess in the Code de Rohan and Code Manoel. But such references can also be found in Roman Law. The term "sessions" was used when the Prefect held sitting and the recess or vacation were those days when the sittings were not held. There were two types of recess, those formal and those ordinary. The first were held on fixed days and the oth- ers were held on days which were unpre- dictable. In Code De Rohan, the Courts were closed when there were religious feasts such as Sundays, Christmas day, Good Friday. Any acts filed on these days were null. According to Canon Law, no litigation could take place on these days. On the other vacation days, no one was forced to take part in a court case and if no plea was raised the case could con- tinue. According to Regulation 13 of the 1814 Constitution, Thomas Maitland wrote: "At the expiration of every three months (which period shall be termed a Session), there shall be a vacation of one month; during which time the said sev- eral Courts shall be at liberty to adjourn, subject to the provisions hereafter to be established for each of the said Courts respectively". At present we have three sessions, Epiphany, Pentecost, and Vit- toria. According to Sir Antonio Micallef – who wrote on the Code de Rohan at the beginning of the British rule in Malta – he said that the vacation days did not in- terrupt the running periods established by law. Sittings were allowed to be held during the recess only in urgent cases, with the approval of both parties and as directed in writing to the court. In this present case, MSE filed their case on 14 August 2018 using the spe- cial summary proceedings, where Arti- cle 169 of the Code of Organisation and Civil Procedure stipulates that the first sitting should be held within 15 days and not longer than 30 days from noti- fication. There is nothing blocking the court from holding a sitting during the summer recess if there is a reason. That reason should not be capricious. The Court could not find a valid reason to hold a sitting during the Court holidays and therefore, was to fix a date after the recess. Mr Justice Mercieca then explained that the procedure of special summary proceedings is an extraordinary proce- dure that puts the defendant at a disad- vantage. The Court used amendments enacted in 1995, that would allow the Court to defer the case, while keeping intact the special summary proceedings procedures. After seeing the acts of the case, such a course of action would not prejudice either of the parties. The Court then moved the case to be held in early October. Judge gives the history of the Courts' summer recess LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Farmer not eligible to storage facilities, though registered mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates