Issue link: https://maltatoday.uberflip.com/i/1068299
maltatoday 13 | SUNDAY • 6 JANUARY 2019 CULTURE ENVIRONMENT LAW & PLANNING THE Magistrates' Court may award damages limited to it the amount it is competent to award, even though the damages may be of a higher amount. This was held by the Court of Appeal on 18 December 2018 in Emanuela sive Lilliana Farrugia and Franco Far- rugia -v- Michael Axisa, LayLay Co Limited and George Barun. The Farrugias filed a court case claiming that their residence in Haz Zabbar was damaged due to excava- tion and construction works that were being carried out by the defendants in the surrounding properties. George Barun argued that the action was time barred by Article 2153 of the Civil Court. The same plea was raised by LayLay Co Limited. Michael Axis, the director of the company, who also pleaded that he was not the correct de- fendant, since the works were carried out on behalf of the company and not by him personally. The Magistrates' Court upheld that the action against Barun and Axisa were time barred, but not against Lay- Lay Co Limited and ordered the com- pany to pay for the repair works in the well, the outside door, damages on the walls and roof and the floor tiles. LayLay Co Limited appealed the judgement on the ground that the ac- tion was time barred, that the court expert's report was erroneous, the works listed were not the merit of the case neither was the value of these works. Another ground was that the court cannot give more than the plain- tiff requested. The Court of Appeal, presided over by Mr Justice Anthony Ellul dealt first with the plea whether the action was time barred. From he evidence produced the excavation works were completed in mid-2008. The Farrugias filed a judicial letter on January 2012, then the action was instituted in June 2012. The Plaintiffs pointed out that according to the technical expert ap- pointed by the court, the damages to the plaintiff's property was not caused solely by the excavation works car- ried. The damages caused took place because of works carried out between 2005 and 2011, which works had their toll on the property. According to Ar- ticle 2153 of the Civil Code, the pre- scriptive period is 2 years. The Magis- trates' Court held that Barun's works were completed by mid 2008 and this was confirmed by Liliana Farrugia's testimony. However, the same cannot be said of LayLay Co Limited, where the permits were issued in January 2005, but the works were completed in December 2011. Mr Justice Ellul pointed out that ac- cording to the pre-condition report issued by the architects of the defend- ant company, read "the whole prem- ises has been recently refurbished to a high standard of finish and no cracks were visible anywhere". The same ar- chitect in February 2008 made another report listing the damages found the plaintiffs' property. The second re- port took place after the excavation. The contractor who carried out the excavation had confirmed that works were still ongoing in February 2008 and was paid in June. As to the con- struction, the Farrugias noticed dam- ages to the floor tiles in 2010 and in 2011 rain water entered the premises in the hall. The company at the time accepted to do minor works for them. The Court expert in fact told the court that the fact that there were two de- velopments taking adjacent to the Far- rugia property increased the stress of the property and the load on the walls that caused the damages. Therefore, the only cause was not the excava- tion works, but also the construction, which was concluded later than 2008. The Court also considered emails sent by the defendant company confirming that it will repaid the well and garage door for the Farrugia. As to whether the technical expert conclusions were erroneous, the Court of Appeal held that the defendant company did not present any evidence showing this. The next ground of appeal was that the plaintiffs did not ask the court to award repairs of certain items, since the garage does not belong to the Far- rugias and the well is under the garage. The plaintiffs argued that their claim concerns the main door of their resi- dence and they had a right to use the well. However, the Court of Appeal did agree with the defendant company and excluded the front door and well from the list of repairs. As regard to the damages, the de- fendant company held that these were never quantified and therefore, the repairs can exceed the competency of the court. The plaintiffs argued that it was impossible the calculate since the damages continued to manifest itself during the case. The Court of Appeal held that in their application the plain- tiffs held that the damages should not exceed the competency of the Mag- istrates' Court of €11,413. In fact, the Magistrates Court did not quantify the damages, but held the company responsible for those damages. The Court of Appeal disagreed with this reasoning, as the court appointed ex- pert could have been asked to qualify the damages. The Magistrates' Court can condemn the defendant company to pay a maximum of €11,413. In fact, the Court of Appeal sent back the re- cords of the case back to the Magis- trates Court to calculate the quantum of damages. Court is limited to its competency LAW AT issue was a planning application for increasing the area of an old peo- ple's home which is currently under construction. The site is the one pre- viously occupied by the ex Imperial Hotel (in Sliema). At the outset of the said applica- tion, the Authority received a num- ber of objections alleging inter alia that the proposal incorporated a substation which was 'located ad- jacent to a third party' and which would create nuisance by reason of noise and vibration. It was further alleged that the sub- station would cause harm due to 'emitted electro-magnetic frequen- cies'. Notwithstanding these objections, the Planning Authority went on to approve the development after it found that the 'the height limitation within Urban Conservation Areas is based on a contextual approach' and in this case, the extensions would match the already existing floors. As to the alleged nuisance and as- sociated health hazards, the Author- ity observed that applicant had sub- mitted an engineer's report 'which certifies that mitigation measures will be adopted to ensure that noise emissions will not exceed 45dB(A)'. Following permit approval, the objectors filed an appeal to the En- vironment and Planning Review Tri- bunal, stating that the permit should be revoked. Moreover the objectors requested the Tribunal to suspend the works pending a final decision. In its assessment, the Tribunal made reference to Article 33 (1) of the Environment and Planning Re- view Tribunal Act, which provides that at the request of the appellant, the Tribunal may suspend through a partial decision, in whole or in part, the execution of any permit 'pending a decision being delivered by the said Tribunal, under those terms, condi- tions and other measures as it may deem fit'. In addition, the Tribunal con- sidered that it was empowered to suspend the execution of a permit once it is satisfied, after hearing all the parties, that the prejudice to be caused should works proceed ac- cording to permit, 'would be dispro- portionate when compared with the prejudice caused by the staying of the actual execution of the permit.' After hearing the parties, the Tri- bunal was convinced that the allega- tions put forward by the objectors could potentially give rise to a dis- proportionate prejudice should ap- plicant proceed with the works ap- proved in this permit. For this reason, the Tribunal acced- ed to objectors' request to suspend the permit until a final decision is delivered within three months. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Final decision on ex Imperial Hotel extension in three months mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates