Issue link: https://maltatoday.uberflip.com/i/1028264
maltatoday 15 | SUNDAY • 16 SEPTEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING IN the instant case, applicant sought to demolish an old dwelling and sub- sequently construct five basement garages and twelve overlying dwell- ing units. The building in question consisted of a typical farmhouse ('razzett'), located in Triq il-Palazz ta' Kaspru in Mosta. Following a thorough assessment, the Planning Commission rejected the permit, putting forward the following rea- sons: 1 The existing building was of cultural heritage significance. The obvious consequence was that the demolition works would result in the loss of traditional Maltese archi- tectural features. This implied that the proposal went against Urban Objective 2 of the Strategic Plan for the Environment and Development which sets a presumption against the demolition of buildings worthy of conservation; 2 The Superintendence of Cultural Heritage objected to the demolition of the building, which objection the Authority could not ignore; 3 The depth of the backyard fell short of the provisions attached to Legal Notice 227 of 2016: Develop- ment Planning (Health and Sanitary) Regulations, 2016. Subsequent to the decision, ap- plicant lodged an appeal before the Environment and Planning Review Tribunal, claiming that the building under consideration was in a state beyond repair. Applicant, now appellant, contend- ed that the building held no 'par- ticular features worthy of preserva- tion', adding that the existing roof slabs were made up of cast in situ reinforced concrete, except for two rooms that were roofed with tradi- tional timber beams and stone slabs. It was further pointed out that the ground floor walls were plastered with old sand cement in a failed at- tempt to halt rising damp. Conclud- ing, appellant underlined that in refusing the permit, 'the Authority was only contributing to the build- ing's further deterioration.' With re- gard to the sanitary issues, appellant maintained that the rooms as pro- posed had sufficient levels of light and ventilation. In reply, the Authority countered that appellant was selective in his arguments. The case officer made express reference to the comments made by the Superintendence of Cultural Heritage, whereby it was held 'that the existing building was considered of high historical and cultural value, with the earliest phase of the building dating to the 18th century'. For this reason, the Authority re- iterated that the building should be protected, restored and preserved. As to the sanitary issues, the Au- thority iterated that the proposed drawings were in breach of current sanitary regulations in that the pro- posed backyard depth was less than the statutory 4.8 metres. In its assessment, the Tribunal observed that the present building consisted of a typical farmhouse ('razzett'), the earliest phase of which dated to the eighteenth centu- ry. Contrary to what appellant previ- ously asserted, several of the existing architectural features (such as kileb, stone arches and wooden beams) were found to be in good condition. Moreover, the original layout was preserved and the site was thus con- sidered 'to give information that will contribute to the understanding of Malta's cultural history'. Against this background, the Com- mission's decision was confirmed. The Tribunal also requested the Ex- ecutive Council to consider whether the building in question merited to be scheduled. THE First Hall of the Civil Court held that it could not uphold a request to issue interim measures in an ac- tion for the protection of minorities shareholders rights in a company, be- cause plaintiffs did not specify which measures were required. This was decided on 11 Septem- ber 2018 by Mr Justice Joseph Zam- mit McKeon in Frank Griser, Kevin Schembri and Lydon Laudi -v- Do- little & Fishmore Limited, Jan Erik Pantzar, Acorn Technologies AB and Thomas Stig Pantzar. The application was filed by Frank Griser and a reply was filed by Dolit- tle & Fishmore Limited. The plaintiffs had filed an action against Dolittle & Fishmore Lim- ited in terms of Article 402(1) of the Companies, which regulates the pro- tection of shareholders against unfair prejudice and they are requesting remedies in term of Article 402(3). This judgement did not decide on the merits of the case and was limited to a request on interim measures. The Court quoted from Dr Andrew Muscat's book Principles of Maltese Company Law: "It is significant that where the leg- islator wished to grant to a court the power to make interim orders, the legislator did so by express provision, as with the power of the court to is- sue a 'provisional order' under article 37(5) of the Merchant Shipping Act (prohibiting dealings in a ship until the court definitely decides on the merits) and the power of the court to initially issue a warrant of prohibi- tory injunction for an 'interim period' under article 873(7) of the Code of Organisation and Civil Procedure. In practice, situations may some- times arise where the issue of an in- terim order would be necessary to protect the interests of the complain- ant or of the company. The introduction of an amend- ment to article 402 would allow the court to issue interim orders would be another helpful tool in the court`s arsenal against oppressive, unfairly prejudicial or unfairly discriminatory conduct ..." According the British authors May- son, French and Ryan in their book Company Law, the court when con- sidering interim injunction should not be upheld if the balance of prob- abilities is against it. In a previous judgement Vella et -v- Vella Brothers Limited, decided by the Court of Appeal on 9 March 2007, the Court said that the scope of Article 402 is to allow the court to intervene and may give all directions necessary to protect minority share- holdings, including giving temporary orders to assure a situation of sta- tus quo, until the conflict within the company is solved. Mr Justice Zammit McKeon point- ed out that the party asking for in- terim measures must show the court that without these interim measures his rights pending a final judgement will cause further prejudice. This case is no different and the ap- plicants should have shown to the satisfaction of the court that this situ- ation exists. The applicants in their application claimed that there was considerable activity going in in the premises of Dolittle & Fishmore Limited. There were works being carried out and moveables were being taken out. The company explained that the company had huge debts and they were forced to return the rented premises and re- turned moveables to the landlord. This was a measure to reduce their debts and avoid further legal pro- ceedings. The Court also pointed out that whether the removal of moveables was prejudicial, had still to be decid- ed upon in the main court action. This issue was premature to decide upon, but the request for the court to issue interim measures did not spec- ify the nature of the measures being requested. The Court could not fill in the blanks. These sort of requests are ex- ceptional in nature and are intended to assure status quo within the com- pany. On this note the Court rejected the application. Court turns down request for interim measures due to lack of detail 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 Mosta farmhouse saved from demolition