Issue link: https://maltatoday.uberflip.com/i/1047665
maltatoday 13 | SUNDAY • 4 NOVEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING THE Planning Commission turned down a planning application for the construction of 'a semi-detached house with underlying garage' after it found that the site was not eligible for new development. To justify its decision, the Commission gave the following reasons: 1. The proposal location consist- ed of uncommitted land within a rural area where new urban development was not consid- ered justified; 2. The proposed basement was neither adequately ventilated, nor illuminated for its intended use. Thus, the proposal was in breach of sanitary regulations. Following the said decision, ap- plicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the permit should have been issued. With his application for appeal (rikors), applicant (now, appellant) attached a scaled block plan of the area showing a development which was granted a permit on the adjacent site. Appellant pointed out that his pro- posal was tantamount to an edge of development (being next to the plot shown in the block plan) and he was thus equally entitled to a permit. With regard to the light and ven- tilation issues, appellant submitted that such concerns could be easily addressed. In reply, the case officer represent- ing the Authority rebutted that the permit quoted by appellant referred to a winery which was to be located below street level. Moreover, the case officer held that the winery was granted permis- sion since it was 'directly related to agriculture' and an outline per- mit had already been issued on that same site. Consequently, appellant's circumstances were different and he could therefore not rely on such commitment to justify a request for residential use. Having said that, one could pos- sibly justify new development next to a party wall outside the schemed boundary as long as the wall height was at least one storey – in the pre- sent situation, this was evidently not the case. Moreover, the case officer noted that applicant himself had admit- ted that the ventilation/light issues could be addressed. This, according to the case offic- er, was an admission on applicant's part that the Authority was correct to refuse the application on sanitary grounds. In its assessment, the Tribunal ob- served that the permit quoted by ap- plicant to justify his proposal on the basis of the edge development prin- ciple related to a building having a walled elevation with apertures. Consequently, applicant was wrong to assert that the proposed develop- ment would abut a blank party wall. Against this background, the Tri- bunal held that the proposal would not result in an environmental ben- efit and thus rejected the appeal. CONTRACTUAL law dictates that parties to a contract are bound by the conditions they agree to when sign- ing. This is held in a Small Claims Tribunal decision between Sebatian Davies -v- Noyleen Zammit, decided on 31 October 2018 by Dr Claudio Zammit. The plaintiff of this case, Sebast- ien Davies was claiming a refund of €2950, as part of a deposit he paid on the price of a property he intended to purchase. In the promise of sale agreement, the defendant Noyleen Zammit, guaranteed that the prop- erty was built according to Planning Authority permits. In May 2016 both parties extend- ed a promise of sale agreement and added a condition that if the bank's sanction letter was not issued, Davies would lose 10% of the deposit he had paid to secure the property. In the meantime, he discovered that the property had a number of irregularities and was not built according to the approved plans. When the plaintiff's bank was in- formed of this, it withdraw its inter- est to finance the purchase. The plaintiff also claimed a further €705 in bank charges. The sale did not take place and the defendant kept the 10% of the deposit. Zammit replied quoting the condi- tions of the promise of sale, which allowed her to hold onto the sum. The law provides that the agreement is binding on all the parties Dr Zammit, analysed the testimony of a number of witnesses. The origi- nal promise of sale agreement held that the seller, who is the defend- ant, confirmed that the property was built according to all permits. In the extension, the parties added the deposit of 10% of the purchase prices was being released, however, they agreed that 10% of that deposit was to be kept in reserve. This amounted to €2950 and was to be kept if the sanction letter was not issued by the bank. The plaintiff interpreted this to mean that the de- fendant was to keep this sum if the sanction letter would not be issued owing to his fault. The defendant held that there was no such qualification. Furthermore, she told the court that she had in- formed the plaintiff of these irregu- larities and also informed his archi- tects. On expiration of the promise of sale, the bank refused to issue the sanction letter and the promise of sale fell through. The defendant's parents testified that once she received the news that the sanction letter was not gong to be issued, she decided not to sell the property. They convinced their daughter to continue with the sale as long as she kept the €2950. The Tribunal pointed out that the clause allowing the defendant to keep the €2950, does not specify un- der which circumstances the sanc- tion letter is refused. The only reference to the sanction letter refers to it being refused by the bank. The parties signed the ex- tension in May and the plaintiff had ample time to verify if the sanction letter was going to be issued. The Tribunal agreed with the de- fendant that the indication showed that when the extension took place, the plaintiff was already aware that the bank was not going to hand over the sanction letter. The defendant said that the plain- tiff had informed her that his archi- tects were working to regularise the property. The Tribunal confessed that it found it strange that on the exten- sion of the promise of sale, the plain- tiff asked for the refund of the de- posit it had paid originally and this indicates that the plaintiff was un- sure that the sale would go through. Therefore, the Court believed more the defendant's version of events. The Tribunal took into considera- tion the parties' actions. Notwith- standing this the Tribunal had to apply the agreement to the letter. The Tribunal made reference to the judgement Mario Vella -v- Malta Industrial Parks decided by the First Hall of the Civil Courts on 30 Sep- tember 2004, the Court said that it has to apply the clauses for the con- tract to be respected. The Tribunal concluded by up- holding the pleas of the defendant and reject the claims of the plaintiff. Conditions of contracts are applicable on all parties LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING ODZ semi-detached dwelling next to a winery refused malcolm@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates