Issue link: https://maltatoday.uberflip.com/i/1070939
maltatoday 13 | SUNDAY • 13 JANUARY 2019 CULTURE ENVIRONMENT LAW & PLANNING THE Magistrates' Court presiding over by Magistrate Dr Gabriella Vella held the owner of a property respon- sible for damages caused by a fire be- cause the property did not have the necessary MEPA permits to park bus- es. This was held on 7 January 2019 in the case GasanMamo Limited kif surrogata fid-drittijiet ta' l-assigurati tagħha Angelo sive Lino Spiteri u Mary Spiteri skond il-liġi u skond il- polza ta' assigurazzjoni -v- Joseph Mifsud u b'Digriet ta' l-24 ta' Ġunju 2010 ġie kjamat in kawża Emanuel Mifsud u b'Digriet ta' l-24 ta' Ġunju 2010 Motor Insurance Pool ġià Om- nibus Pool intervjeniet fil-kawża in statu et terminis. The insurance company filed an ac- tion against Joseph Mifsud following a fire that broke out in February 2010 in Gzira where 3 buses were burnt, and the adjacent block of apartment were damaged also. The insurance compa- ny blamed Mifsud for illegally parking these buses without MEPA's approval. Mifsud defended the claim by say- ing that he was not involved in the fire and his own bus was burnt. He claimed that Emanuel Mifsud's bus was the cause of the blaze and that he should be called into suit. He held that there was another case with the same merits. Emanuel Mifsud, was then called in- to the suit, who claimed to have been invoked as a party without any legal basis, since he was not responsible for the damages caused. Magistrate Vella analysed the evi- dence brought before the Court and it was proved that in the field next to the block of flats there were 3 buses parked. The land was not covered with a development permit to have these buses parked and in fact there was an enforcement notice issued. On the day of the accident Joseph Mifsud's bus had problems to start, but eventu- ally the driver managed to start it and worked all day. It was parked at around 11.30 pm but at around 2.40 am some- one saw fire under the bus. The fire spread and destroyed the 3 buses and other objects and caused damage to the block of apartments, mainly on the façade and airconditioning units. Joseph Mifsud contends that the fire started from Emanuel Mifsud's bus and therefore, cannot be made to blame for the accident. On the other hand, Ema- nuel Mifsud argued that he is already subject to another court action and therefore, should not be part of this case. The Court commented that the case he referred to is Nathaniel Spi- teri -v- Emanuel Mifsud and from the outset the parties are different. The parties to the case are different and they were instituted against Emanuel Mifsud, since the other buses dam- aged belonged to the Nathaniel Spiteri. Since the merit of the case is different, Emanuel Mifsud cannot justify the fact that he cannot be a party to this ac- tion. Furthermore, the Court declared that Emanuel Mifsud was responsible for the damages caused to the block of apartment, because the fire that broke out on his bus, did cause the damages claimed and it seemed that the bus in question did have electrical prob- lems, when it could not start. Emanuel Mifsud knew of these problems but in- structed the driver to continue driving this bus. The Court further held that Ema- nuel Mifsud was not the only person at fault, but also Joseph Mifsud, be- cause as owner of the land where the buses were parked, was not covered by a permit, so much so that it was subject to enforcement proceedings. MEPA officials had spoken to Joseph and Emanuel Mifsud on this issue, but they both argued that they had an agreement with the Local Coun- cil. The inspectors saw them chang- ing the oil, but never saw petrol tanks on site. From this evidence the Court concluded that Joseph Mifsud was well aware of the illegality taking place on his property and therefore, should also contribute to the payment of damag- es caused to the block of apartments. The Court quoted from a judgement Charles Gauci et -v- Maria Borg Miz- zi et decided on 25 November 2004, which held that responsibility lies on persons who are imprudent or persons who do something not according to law. This is not limited to civil law, but any law. Joseph Mifsud tried to explain that he was forced to park the buses there, because the law prohibits buses to park on the road. Magistrate Vella did not accept this reasoning, since the property was being used illegally. The Court then ordered Joseph and Emanuel Mifsud to pay the insurance company €9236.70 Owner of land used without MEPA permit is responsible for damages LAW At issue was a proposal for the change of use of an established retail shop to a catering outlet. Although situated very close to the Hamrun Town Centre, the site where the premises are located is of- ficially designated as a residential area. In spite of a positive recommendation, the Commission refused the permit on the following grounds: 1. The proposal was found to run counter to Thematic Objective 10.6 of the Strategic Plan for Environment and Development and to the car parking standards set out in DC 15 as it failed to provide the required car parking spaces. For this reason, the proposal would give rise to unacceptable additional on-street car parking which would not be in the interests of the amenity of the area. 2. The proposed development would create a deleterious impact on the amenity of the Residential Area and of the existing adjoining uses, hence in conflict with SPED objectives TO 6.1, UO 3.5 and UO 4.2; 3. The proposed development was not compatible with the provisions of policy CG07 of the Central Malta Lo- cal Plan which specifies that catering es- tablishments are not acceptable within designated Residential Areas; 4. The proposal ran counter to the SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas. In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that permis- sion should have been issued. In his ap- peal, applicant made the following argu- ments: 1. The proposed outlet was much less than 75 square metres and was in- tended to serve the immediate commu- nity; 2. The Commission failed to take note that the site was zoned 'significantly close to the town centre and lies within a committed cluster of commercial/retail outlets'; 3. Policy FL-GNRL-I provides that the Authority may "consider justifi- able departures from policies which can be adequately justified from a planning perspective", in particular where prop- erties which lie within the Development Zone "and are already occupied by a considerable level of legitimate commit- ment whose nature may not necessarily be in line with local plan policies or on a site which is a legitimately established business outlet." The locality was, in fact, significantly committed with shops in the vicinity of the site, few metres away from the Hamrun Spartans football club. 4. Similar permits had been is- sued in the vicinity. 5. The applicant's residence lies exactly adjacent to the site in question; 6. The development would not cause 'a deleterious impact on the amen- ity of the surrounding area' since a 'fumeless chimney' was to be installed. Moreover, the system was certified by a warranted engineer. In reply, the Authority acknowledged that the building lies opposite to a foot- ball ground. Nevertheless, the case of- ficer insisted that the 'ground's ancillary catering activity' had an access from a different road. Moreover, the catering establishments referred to by appellant were situated in a different road. In con- clusion, it was note that the proposed de- velopment would require 'an additional three parking spaces in an already con- gested area which is suffering from spill over effects of the nearby town centre.' In its assessment, the Tribunal agreed with the Authority in that that the com- mercial outlets, though situated nearby, were located on a different road. For this reason, the Tribunal maintained that ap- plicant was wrong to assert that the zone was 'already occupied by a considerable level of legitimate commitment whose nature may not necessarily be in line with local plan policies or on a site which is a legitimately established business out- let' as required by policy. Against this background, the appeal was rejected. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING New catering outlet in Hamrun refused permission mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates