Issue link: https://maltatoday.uberflip.com/i/1062629
maltatoday 13 | SUNDAY • 16 DECEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application to sanction an 'extended' agricultural store to be used as a sheep farm and a dairy processing unit. Applicant's site consists of a field located outside the development zone of Siggiewi. The Planning Commission agreed with the Planning Directorate and went on to refuse permission on the following grounds: A swimming pool was found on site. For this reason, applicant's genuine in- tentions were being questioned; 1. There was no record to show that the premises were ever used for agri- cultural purposes; 2. The applicant was not a regis- tered livestock breeder; 3. The size of the proposed ancil- lary facilities in relation to the size of the proposed livestock holding was not justi- fied. Consequently, the proposal was not considered to be essential to the genuine needs of agriculture (Rural Objective 3 of the Strategic Plan for Environment & Development (SPED)); 4. The height of the boundary walls was deemed excessive, 'hindering the country views; 5. The site was developed 'with lit- tle respect to the rural context' employ- ing 'extensive hard paving in beaten earth and concrete flooring resulting in unjus- tified soil sealing'; 6. The proposal was incompat- ible with Rural Objectives 1.7 and 4.3(a), which seek to control the cumulative effect of rural development and protect sensitive landscapes of cultural impor- tance and natural beauty; 7. The proposed waste manage- ment facilities were not endorsed by the Department of Agriculture. Notwithstanding the said objections, applicant decided to appeal the decision before the Environment and Planning Review Tribunal, insisting that the per- mit should have been issued. In his ap- peal, applicant (now appellant) described his proposal as being 'ideally located'. In addition, appellant argued that he had 'a right to rear sheep over the property'. Applicant concluded by stating that the waste Management Plan demonstrated his genuine intentions. In reply the Authority reiterated its ear- lier stance. The case officer warned that the proposal was in breach of a multitude of policies and regulations, also under- lining that the illegal interventions were carried out after 1988. The Tribunal was further reminded that the illegal inter- ventions included an extensive paved area measuring circa 700 square metres, which led to 'unnecessary soil sealing'. The case officer rebutted applicant's ar- guments by saying that 'the preparation of a Waste Management Plan on its own could not be considered enough proof of the genuine intention of the applicant for a sheep farm.' In its decision, the Tribunal asserted that applicant was not a registered live- stock breeder. It was further observed that the Agricultural Advisory Commit- tee had objected to the proposal. Against this background, the Tribunal felt that this was reason enough to reject the ap- peal. THE fact that a testator has mental health issues at the time he draws up a will, does not mean that that will is null and void. This was held on 10 De- cember 2018 by Mr Justice Lawrence Mintoff in Dr Carmelo Galea on be- half of the absent Mario Schembri -v- Rosina Schembri; Carmel Schembri; Joseph Schembri; Sinitio sive Sintheo Schembri; and Teddy Schembri. Mario Schembri held that he was one of 10 siblings and his parents both had several wills registered from 1971 and 1999. The plaintiff challenged the last wills registered: that of April 1999, of April 1996 and of January 1995. The plaintiff explained that his mother Anna Schembri at the time was suffering from Alzheimer's disease and was not fully in her right mind to be able to do a will. He therefore, asked the court to declare these null and void. His other siblings had filed state- ments of defence, where they chal- lenged this claim, because they claimed that their mother was fully capable of changing her wills. Mr Justice Mintoff analysed the ev- idence produced in this case. Mario Schembri presented an affidavit, ex- plaining that he had lived in Canada since 1973, but kept regular contact with his parents. In July 1994, he vis- ited Malta and his parents, but found that his mother Anna was confused. She missed shops for the church and his father and sister, who lived with her were afraid of leaving her on her own. He suspected that his mother was already suffering from Alzheimer's. He visited Malta again in 1997 and his mother's health had deteriorated. She once confused him with his father. When back in Can- ada, he used to ring her up and his mother had difficulty in identifying with whom she was speaking. The plaintiff's wife and son corroborated this version of events. The court heard Dr Brian Farrugia, who was not the parents' usual doc- tor, but had visited them at St Vin- cent de Paule three times. He could not access their medical records, be- cause Anna had been dead for more than 10 years and the files were de- stroyed, while Antonio Schembri 's files were damaged, since rain water had leaked into the room where they were being kept. He knew that Anna Schembri suffered from dementia before 2008. The couple's doctor was Dr Ray- mond Sacco who was their regular doctor between 1990 and 2002. He stated that Anna Schembri's mental health was good and she could have suffered from dementia at the end of 2002. The defendants who testified stat- ed that at the time when their moth- er had drawn up wills, she was very capable and did not show signs of mental health. Mr Justice Mintoff pointed out that although the plaintiff was con- vinced that his mother suffered from Alzheimer's disease, the objec- tive evidence of the medical records had been destroyed. Furthermore, the two doctors that were pro- duced gave opposite views on Anna Schembri's mental health. It is not out of the ordinary that the court is faced with opposing positions and so it quoted from George Bugeja -v- Joseph Meilak, decided on 30th Oc- tober 2003, which stated that when the court is faced with opposing versions of events, it is not whether the explanations that are given are believable, but whether on the bal- ance of probability the versions are credible. The Court also took into consid- eration what the notary who drafted the will had testified; that Anna's mental health was good enough for her to make new wills. Rosina spent most of the day taking care of her parents. The fact that Anna Schem- bri's health deteriorated, was some- thing normal, considering her age. It is understandable that since Rosina was taking care of her parents, she was given preference in the will. In fact, both doctors stated that Anna Schembri was taken well care of. The Court quoted from Carmen Micallef v Madalena Galea et de- cided on 10th April 2013, where the capacity is the rule, while the inca- pacity to do a will is the exception. The fact that the testator has men- tal health issues is not sufficient to declare the will null and void, since there may be times where the testa- tor is livid. The Courts consider a will as invalid if the testator, when drawing up the will, is not in his right mind. In Bonavia v Bonavia de- cided on 20th October 1971 the in- capacity must take place because of mental infirmity, and the incapacity has to be proved. In this particular case, the will does not show that the testator, Anna Schembri, had mental health issues. Apart from this the will was a unica charta will since it was joint with her husband Antonio. Anna did not change the wills after Antonio's death. The Court moved to uphold the pleas and turned down the claim. Persons who have mental health issues still have the right to draw a will LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Farm proposal rejected after applicant found not to be a livestock breeder mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates