Issue link: https://maltatoday.uberflip.com/i/1085429
maltatoday 13 | SUNDAY • 24 FEBRUARY 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application to regularise the carrying out of un- authorised interventions together with an extension to a building used as a residence which was located out- side the development zone of Dingli. According to the Authority's official records, the building was however designated as a stable. Following a thorough assessment, the Environ- ment and Planning Commission had turned down applicant's request on the following grounds: • The proposal ran counter to criterion (5c) of Policy 6.2C since the redevelopment of pre 1978 structures into a new dwelling could be only per- mitted when the building was a disused livestock farms which had ceased its operations for at least 10 years; • An 'unauthorised greenhous- es structure' was detected on appli- cants' site and until such structure was removed, the application could not be assessed further; • There were no reasons from a planning point of view as to why the dwelling could not be located in an area designated for development or in an existing built-up area. In reaction, applicant lodged an ap- peal before the Environment and Plan- ning Review Tribunal, insisting that the permit should have been issued. In his appeal application (rikors), applicant (now, appellant) argued that, at pre- sent, the 'disused rooms were creating a negative impact on the surroundings and the area itself.' Appellant further noted that the existing buildings were not in use for a period exceeding 10 years. As for the 'illegal greenhouse', appellant countered that this was con- structed in the 1970s and financed by the Maltese Government. Consequent- ly, the Authority was wrong to allege that the greenhouse was illegal. In reply, the Authority reiterated that the residential use was not legally established since the building was of- ficially designated as a stable. The Au- thority went on to state that 'the site was never actually used as a poultry farm since all permit applications have only allowed the stabling of horses.' In addition, the building was located in an area of Ecological Importance and High Landscape Value. Besides, the zone was designated as a Special Area of Conservation, a Special Protection Area and Bird Sanctuary. Furthermore, it was observed that the building had no vernacular or historical features which could possibly justify its conver- sion to residential use. In its assessment, the Tribunal ob- served that it was not clear whether the building was ever used as a stable in line with the approved permit. What was certain, however, is that the build- ing had no permit to show that it could be used as a livestock farm. For this reason, applicant was in no position to claim that the building was a 'disused livestock farm' which could therefore be redeveloped into a dwelling as per criterion (5c) of Policy 6.2C. Against this background, the appeal was re- jected. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Conversion of stable to residence rejected THE Rent Regulation Board ordered a tenant to pay for the repairs of a house following a fire, after it was shown that he could have left the television on throughout the night and caused a short circuit. This was held in a judge- ment delivered on 14 February 2019 in Louis Apap Bologna and Bernadette Apap Bologna -v- Alexander Borg. In their application the Apap Bolo- gnas, explained that Louis Apap Bolo- gna's mother had given a house in St Julian's to Borg on a temporary em- phyteusis for 21 years. In March 2000, a lease agreement was signed in terms of Article 12(2) of Housing (Decontrol) Ordinance. The plaintiffs inherited the premises in 2003. In September 2010 a fire broke out in this premises and it became uninhabitable. Their architect recommended that the structure be de- molished. They asked the court to de- clare the defendant, as tenants, respon- sible for the damage to the property and order them to pay. The defendants held that the accident was not their fault and the landlords are responsible for the incident. The Board presided over by Dr Josette Demicoli went through the evidence produced. Louis Apap Bologna told the Board that he visited the house two days after the accident and was shocked with what he found. The staircase had collapsed, the walls were blackened and the doors were completely burned. This was corroborated by the police inspec- tor who also visited the house and as- sisted in the Magisterial enquiry. The report seemed to point at a short circuit as being the cause. The defendant explained that he was a tenant for over 37 years and lived with his family. He never had an accident of this nature. On the night of the ac- cident he smelt something burning and when he opened a door on the top floor smoke gushed out. He was helped out by climbing from the balcony. After the accident he engaged an engineer, who indicated that the TV could have been the cause. The TV was only two years old. Borg explained that he almost lost everything in the fire. The electrical en- gineer also testified that he visited the house and could not test the electrical system since it was burnt. It could have been a loose contact, which would not have tripped the circuit breaker. The fire seemed to have broken out in the living room. The engineer could not find any negligence from the tenant's end. The forensic expert also testified and held that this was an accident that start- ed near the TV, which spread to the kitchen area where there was combusti- ble material. The expert did notice from the debris that there were wires without installation and multiple sockets. The Court also appointed an expert, who established that there were damag- es to the property. Repair works can be carried out, which would cost €42,904. The Board in its decision made ref- erence to a previous judgement in the same names before the Court of Appeal which was based on Art 1571(1) of the Civil Code which states that when a thing is destroyed, the lease is terminat- ed. The Board in this first case had con- cluded that the fire was the defendant's fault, since it seemed that the TV was left on even at night. The Court of Ap- peal dealt solely with whether the prop- erty was totally destroyed or not. The Court of Appeal concluded that the property suffered damages but was not totally destroyed. This particular case is now based on Article 1562 of the Civil Code which establishes that the tenant is responsible for all damages caused by a fire, unless the fire was not his fault. The Board quoted from Victor Shaw et noe v John Aquilina noe decided by the Court of Appeal on 27th March 1996, which stated that the tenant must prove that he is not responsible for the damage, and that the incident took place due to an accident or was caused due to a defect of the building or the fire travelled from another property. The defendant filed a plea based on Articles 1032 and 1033 of the Civil Code, which states that everyone is responsible for their negligent actions. The legal interpretation of Simonds Farsons Cisk plc v Mark Gerald Nolan decided by the Court of Appeal held that it is presumed that the tenant is responsible for the property rented, but the presumption remains in place until the tenant proves that the event was not his fault. From the evidence produced, namely the experts' evidence, the defendant did not manage to prove that he was not re- sponsible for the fire, although the elec- trical system seemed to be adequate. The expert also pointed to the use of multiple plugs, which increase the risk of a fire. In the light of all this, the Board ordered the defendant to carry out the remedial works within 15 months and in the event that he fails to do these works, he is to pay the landlord €42,904. Tenant to pay for fire damage caused by TV LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates