Issue link: https://maltatoday.uberflip.com/i/1034189
maltatoday 17 | SUNDAY • 30 SEPTEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING THIS article highlights the key argu- ments brought forward by the Plan- ning Directorate to justify approval of a proposed five star 438-room hotel, occupying 18 levels, next to a 38-sto- rey residential tower on the former ITS site in Pembroke. Furthermore, the proposal includes conventionally designed commercial office space, a shopping mall, restaurants and a basement car park. The proposed development was ap- proved by the Planning Board, despite a record number of objections. Approval was, however, given after the Planning Directorate highlighted the fol- lowing considerations to the Planning Board: 1 According to the North Har- bours Local Plan, the area in question is designated as an entertainment priority area, deemed 'ideal for hotel develop- ment'. At the same time, the proposal is tantamount to 'a revitalising mix of com- mercial and residential uses' in a desig- nated 'Principle Urban Area'; 2 The proposed development was found to be compatible with Floor Area Ratio (FAR) policy. The develop- ment was, in fact, described by the case officer as 'a landmark building in a lo- cality identified by the FAR document as a designated appropriate location for tall buildings due to its predominance in tourism and leisure uses'; 3 The hotel component was in line with the Height Limitation Adjust- ment Policy for Hotels (2014); 4 Unobstructed public access to and along the coast would be safeguard- ed; 5 A strategic underground car parking facility, catering for circa 1000 spaces, would also be provided; 6 The project features a 'formal garden' which would be accessible to the public. The said garden shall be land- scaped and maintained at the expense of the developer; 7 Moreover, a public open space between the tower and the hotel block providing a pedestrian link to the street below shall be provided at developer's expense; 8 Although the Superintendence for Cultural Heritage signaled concern insofar as the development could have an impact on the military barracks and Harq Hamiem cave (a geological feature scheduled at Level 1 which is located nearby), the said objection was later withdrawn once the developer gave as- surance that the entire construction and excavation works would be monitored; 9 Developer would be obliged to adhere to a Management Programme, approved by the Environment and Re- sources Authority; 10 The Government of Malta has committed itself to implement the re- quired transport infrastructure measures within an appropriate time-frame, with a view to ensure that 'site-generated traffic does not create conditions in which the road capacity criteria are exceeded'; 11 The impact of the tower as seen from Fort St Angelo was found to be negligible; Applicant shall be obliged to provide certification that the buildings meets fire safety requirements. A plaintiff does not need to quote any particular article of the law when filing an action. This was held in a judgement delivered by Mr Justice Lawrence Mintoff on 26 September 2018 in Alfred Desira -v- Josef Spag- nol and Horace Camilleri. Alfred Desira filed a sworn applica- tion where he explained to the Court that he is the owner of land in Marsas- cala. The defendants work the land next to his and it had its own access, but the defendants started to use his land to ac- cess their land. They pulled down a wall and removed a gate in order to accom- modate this access. Desira held that the defendants have no right to pass through his land. He asked the court to declare that the defendants do not have a right of passage and order them to stop using his land to pass through. Spagnol and Camilleri disagreed with Desira and filed a statement of defence. One of the pleas held that the defend- ants are not the rightful parties to this claim because they are not the owners of the land. This judgement dealt with this plea. Mr Justice Mintoff had to de- cide whether the action the plaintiff presented is an action negatoria, an ac- tion to establish a right over a property and therefore, could not succeed, since the defendants are not the owners of the land. The Court analysed the evidence pro- duced by the parties. Alfred Desira pre- sented his affidavit where he explained that he has being working the land for over 50 years and he had inherited it from his parents. When his father oc- cupied the land, it was surrounded by a rubble wall, with one entrance, which had a gate. Two years prior to open- ing the case, Spagnol approached him saying that the Lands Department in- formed him that he had a right to pass from his land. Desira objected to this. He was called to attend at the police station and he was advised to sort this out with the Lands Department. He sought legal advice and was informed that there was no servitude of right of passage over his property. After this he found his gate removed and also parts of the wall re- moved. From then the defendants were going in and out of their land from his land using a tractor and car. A representative of the Joint Office testified and explained that the land was registered in the name of Raymond and Antonia Azzopardi as sub emphyteusis. Josef Spagnol testified that he was au- thorised to tilt the land. Joseph and Saviour Desira, who worked the land now used by the defendants ex- plained that when the land was trans- ferred to the defendants, they had signed an agreement which pin pointed where the access should be made, which was different to the one they are using. They both confirmed that nobody used to pass through the plaintiff's land. Other family members of the plaintiffs con- firmed that the land was not subject to a right of passage. Joseph Spagnol, the father of one of the defendants, said that he is the owner of the land his son is working. He inherited it from his mother, and when it was in her hands, he hardly attended. He left his son and son-in-law to take care of the land. The plaintiffs had filed an application to call into suit the owners of the adja- cent property, however, the defendants objected, because this is an action nega- toria servitutis, and an action which is meant to establish a servitude. In fact the defendants did plea that they were not the correct defendants as the action should have been instituted against the owners. Mr Justice Mintoff held that actio ne- gotoria does presume that the parties are the owners of the properties. In its decree on the application to include the owners of the other property, the court held that this could mean that the defendants are being substituted and therefore, the ap- plication was turned down. The court pointed out that Joseph De- sira had said that he worked the land now in the hands of the defendants and it was he who transferred the land to them. The Court had to decide whether the action is a property rights action or else a possessory action. The plaintiffs are asking the court to decide whether the defendants have a right of passage over their property. The defendants argued that the way the plaintiff presented the case, makes it unclear what type of ac- tion is it. Article 156(1) of the Code of Organisation and Civil Procedure lists the requisite of a sworn application, but there is no obligation for the plaintiff to indicate any article of law and there is no need for the plaintiff to spell out the type of action he has filed. This was established in two judgements Godwin Azzopardi -v- Paul Azzopardi decided on 31 February 2003 and Carlo Pace -v- Giuseppe Bugejaof 1 October 1935. In Marisa Baldacchino -v- Carmelo Grima of 6 May 1997 decided by the Court of Appeal, for a court to establish the nature of the action, one must not merely look at the words used by the plaintiff but the right that is the object of the rights sought. In this particular case the evidence showed that Josef Spagnol was allowed to use the passage by mere tolerance only. When he abused of this gesture, the relationship between the two par- ties degenerated. The evidence further showed that the defendants started to use the plaintiff's land as access to their land around two years ago. The Court ruled that the wording of the sworn application and the evidence produced indicates that the action is based on an abuse of a personal right. The Court ordered the continuation of the case. The choice of action may be implied 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 The raison d'etre behind the former ITS site controversial permit