Issue link: https://maltatoday.uberflip.com/i/1050749
maltatoday 13 | SUNDAY • 11 NOVEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING IN the case under review, applicant had filed a planning application with a view to regularise a girna and a small room built next to it, both which had been constructed without prior au- thorisation. Applicant also sought to sanction a rubble wall which, accord- ing to the Authority, was also rein- stated without a permit. The Planning Commission observed that applicant's field was located out- side the development zone and went on to refuse the application on the following grounds: 1. The field was located within a Special Area of Conservation of International Importance; 2. The rooms were not necessary to the management or enhance- ment of the site; 3. The interventions were not compatible with the visual in- tegrity of the area; 4. The interventions included in- ter alia the 'significant altera- tion of rubble walls' which con- tribute to the character of rural areas, their affording a habitat for flora and fauna. In reaction, applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the proposed development should have been approved. In his appeal, appli- cant (now, appellant) put forward the following arguments: 1. The Commission had ignored the fact that the rooms under consideration (namely, the gir- na and the room) had been in existence for a long time; 2. The Environment Protection Directorate had not objected to the proposal; 3. The interventions regarding the rubble walls were not significant as these were limited to the top- ping of the walled surface with concrete. The concrete layer was aimed to guard against wa- ter intrusion. In reply, the case officer reminded the Tribunal that the site in question was designated as an Area of Ecologi- cal Importance (Degree of Protection 2). In addition, the interventions, ac- cording to the case officer, were in- compatible with the scenic value of the area whereas. Similarly, the re- constructed walls were out of context with the visual amenity and landscape value of the site due to the employed construction methodology. Finally, it was noted that even though the Cultural Heritage Adviso- ry Committee had found no objection to the redevelopment of the girna, the same could not be said with regard to the other room since this was not vis- ible in the old 1967 survey sheets. In its assessment, the Tribunal confirmed that applicant's field was situated within a Special Area of Conservation and a Level 2 Area of Ecological Importance. The Tribu- nal also observed that the Authority was objecting to the reconstruction of the room as well as the interventions carried out to the rubble walls. Nev- ertheless, the Tribunal held that ap- pellant was registered as a farmer and was thus entitled to having agricul- tural storage provided that the room was of a high quality rural design. After noting that the illegal room was situated close to the girna, the Tribunal ordered the Authority to is- sue the permit on condition that both rooms were to be used solely as a store for agricultural implements and produce. ONCE a property is damaged due to works that are taking place in the property adjacent to it, then the own- er of that property is to pay for all the damages caused. This was held by Madame Justice Anna Felice in Ed- ward sive Eddie Sciberras -v- Joseph Satariano on 6 November 2018. In his application, the plaintiff, Sciberras explained that he owns a property in Hal Balzan and the de- fendant owned another property be- hind his. In this property works were being carried out and caused dam- ages to his property. Although the defendant agreed that he had caused the damages, he failed to pay. The plaintiff asked the court to order the defendant to pay for these damages, which at the time amounted to LM6,097. Satariano filed a statement of de- fence saying that he has no judi- cial relations with the plaintiff and therefore, should not form part of the lawsuit. He also claimed that he did not cause any damage to the plaintiff's property and therefore, does not owe anything. The evidence showed that the plaintiff was informed by the neigh- bours that the house behind his was going to be developed. Therefore, he asked the developer's architect and insurance to inspect the premises before the works started. He also testified that on one occasion his bedroom shook. His architect then drew up a report when the damages appeared and wrote "repeated shocks and strong vibrations together with some pos- sible localised ground movement." The plaintiff then spoke to the de- fendant, who assured him that the insurance would make good, how- ever, when he was faced with the bill he said he would not pay. The Court had delivered a prelimi- nary judgement on the plea whether the defendant is the correct party to this action, since the defendant held that the development was be- ing made by Balzan Homes Ltd. and not by him personally. This plea was turned down since he never showed that he was speaking on behalf of the company. With regard to the question on the responsibility of the defendant the Court made reference to Arti- cles 1031,1032 (1) and 1037 of the Civil Court. The last article states that whoever carries out works due duty bound to remedy any damages caused. The Court went through the plain- tiff's reports drawn up before and after the works. On the other hand, the defendant's architect stated that the damages were not caused by his client because the plaintiff's house is old and not in a good state. The Court commented that the defend- ant's version was weakened by his architect who did not deny that the project could have caused the dam- ages. The insurance's architect told the court that it did not do a condition report in the plaintiff's house in Au- gust 2005 because he thought it was vacant, but then saw the property in September. The next inspection took place in February 2006, after the excavation works and the damages occurred. The report identified damages to the walls, tiles in the bathroom, yard and kitchen. The architect con- ceded that there were cracks on the walls before works commenced, but these increased in size. The remedial works had to take place after the ex- cavations were ready. The defendant claimed that the bill presented to him was inflated and said that there was a possibility that his workmen caused some damage. As regard to general principles of the law, Madame Justice Felice quoted from previous judgments such as Emanuel Agius -v- Emanuel Mifsud of 28 April 2005, which said that although a property may be old, the damages caused were due to the works next door. In another judgement Vincent Fenech -v- Keyland co Ltd of 30 October 2009, the Court held that the responsibility of damages is not automatic but must be proved. Not- withstanding this it is a known fact that excavation causes these types of damages. The Court concluded that once the damages were caused, the contrac- tors who carried out the excavations were not competent in their job and therefore, should be responsible ac- cording to Article 1037 of the Civil Code. As a result the €14,668 is due and the Court ordered that this must be paid to the plaintiff. Court awards damages following works in adjacent property LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING A 'girna' and an agricultural room given the green light mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates