Issue link: https://maltatoday.uberflip.com/i/1031063
| SUNDAY • 23 SEPTEMBER 2018 maltatoday 11 CULTURE ENVIRONMENT LAW & PLANNING IN the instant case, the site presently consists of a typical one storey town- house which is located within the Urban Conservation Area of Tarx- ien. Applicant had submitted a plan- ning application for the construc- tion of two floors and an overlying receded floor, further to which, ap- plicant's proposal was turned down by the Planning Commission. To substantiate its decision, the Commission made the following ob- servations: The proposed height of develop- ment ran counter to Urban Objec- tives 2.3 and 2.4 of the Strategic Plan for Environment and Development which promote a context driven ap- proach for the control of building heights within Urban Conservation Areas in order to protect the tradi- tional urban skyline. The proposal also went against policies P4, P35 and P39 of the De- velopment 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. Subsequently, applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the permit should have been granted. In his request for appeal, applicant (now, plaintiff) observed that, after the case was heard for the first time by the Planning Com- mission, he was requested to submit drawings showing two floors and a roof structure, to which end he had duly conformed. Nevertheless, the Commission voted against the application in the subsequent sitting, even though the drawings were submitted as indicat- ed by the Commission in the previ- ous sitting. In reply, the case officer acknowl- edged that during its first meeting, the Planning Commission had re- quested applicant to submit fresh drawings showing 'two floors with a roof structure'. Nevertheless, according to the case officer, applicant's fresh drawings showed two floors and an overlying receded floor, rather than two floors and a roof structure as had been di- rected by the Board. In other words, applicant had dis- regarded the Board's clear direc- tion and opted for 'a receded second floor' instead of 'a roof structure'. In the circumstances, the Commission was therefore correct to refuse the application. In its assessment, the Tribunal ob- served that, as rightly claimed by the case officer, the Commission had requested applicant to submit fresh drawings showing two floors and a roof structure. Nonetheless, the Tribunal made reference to policy P29 of DC 15, which states that insofar as urban conservation areas are concerned, "the setback from the façade must never be less than that of the com- mittee adjacent properties on one or both sides, where applicable" and "in all cases, the massing of the set- back floors should visually relate to that of the adjacent properties." In this case, the Tribunal was satis- fied that the receded floor was ade- quately receded from the façade and visually related with the surrounding massing. In addition, it was noted that policy P29 does not exclude receded floors in urban conservation areas. Against this background, the Tribunal or- dered the Authority to issue the per- mit. THE First Hall of the Civil Courts agreed to rescind a contract after the consignment of goods was not deliv- ered and reduced in another consign- ment. This was decided by Mr Justice Lawrence Mintoff on 17 September 2018 in Dr Carlo Bisazza as special mandatory of Brymorex Spolka ZOO v Steel Eagle Commerce Limited. In their application the Polish company explained that it had en- tered into a supply agreement with the defendant company. In the agreement there were stipu- lated dates when the merchandise had to be delivered. The plaintiff company had paid over €50,000 and it is asking to be refunded. Steel Eagle replied by saying that the plaintiff company should prove why the agreement should be re- scinded and receive the money. Mr Justice Mintoff analysed the evidence produced before the court. The chairman of the plaintiff com- pany presented his affidavit, wherein explained that the two companies started working together in 2013. In April 2015 the plaintiff com- pany had made an order worth USD27,100, however the merchan- dise never arrived. In May 2015 another order was made and the defendant company issued another invoice for USD15,244. Again the goods did not arrive to their desti- nation. The defendant company did re- fund part of the first order, however, there is still a balance of €50,000 in the plaintiff's company's favour. In August 2017, the plaintiff company received a consignment, however, it was not complete. A representative of the defendant company did present an affidavit too and presented a document showing that the company received from the Polish company the €50,000 and ad- mitted that the products were not received, since the container was not released. In the same document, the defendant company agreed to re- scind the agreement and refund the company in three instalments. The senior sales manager of the defendant company accepted that the company had financial problems and in fact he was not receiving his salary. He told the court that the company has similar problems with other companies. The Court pointed out that the defendant company argued that the container was sent but it arrived late. The Court quoted Article 1347 of the Civil Code which states: "1347. A sale is complete between the parties, and, as regards the seller, the property of the thing is trans- ferred to the buyer, as soon as the thing and the price have been agreed upon, although the thing has not yet been delivered nor the price paid; and from that moment the thing it- self remains at the risk and for the benefit of the buyer." According to Article 1378, a per- son who sells goods, has two obliga- tions, the first being to hand over the object and secondly to guarantee it. In fact, Article 1385 states: "1385. If the seller fails to make de- livery at the time agreed upon, the buyer may elect either to demand the dissolution of the contract or to demand that he be placed in posses- sion of the thing sold, provided the delay has been caused solely by the seller." The Court quoted from a judgment Malta International Airport plc -v- Safety and Security Management Limited decided on 16 December 2015. In the judgement the court held Article 1385 gives the plaintiff a right to rescind the contract of sale, since the consignment was not done. The court then moved to order the defendant company to pay the plain- tiff company the claim and rescind- ed the contract between the two. Late shipment leads to revocation of contract 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 Policy P39 allows receded floors in UCAs