Issue link: https://maltatoday.uberflip.com/i/1088108
maltatoday 13 | SUNDAY • 3 MARCH 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application to demolish a building in order to pave way for a groundfloor maisonette and overlying three apartments together with a penthouse. The Planning Com- mission turned down applicant's re- quest after it felt that the façade con- tained 'vernacular features which are worthy of conservation'. On this basis, the Commission held that the pro- posed demolition was not in the inter- est of the character of the area, hence in conflict with Thematic 8.7 of the Stra- tegic Plan for Environment and Devel- opment Urban. As a reaction, applicant lodged an ap- peal before the Environment and Plan- ning Review Tribunal, insisting that permission should have been granted. In his appeal, applicant, now appellant brought forward the following argu- ments: 1. Should the façade be retained, the introduction of additional floors would look visually dispro- portionate; 2. The Superintendence of Cul- tural Heritage (SCH), who was consulted during the application process, made no mention of 'vernacular features'; 3. The proposed design was deemed to be more 'respectful' of the surrounding urban context. As a matter of fact, the new fa- çade would be constructed with stone masonry, employing 'stone mouldings around the door and under balconies together with a stone fascia at ground floor level'; 4. The Authority had issued a per- mit for the construction of a block of apartments which was located a few metres away; 5. Moreover, the Authority had not objected to the demolition of an old building, also situated in the immediate vicinity. In reply, the Authority reiterated its objection to the demolition of the fa- cade. Although the Superintendence of Cultural Heritage did not voice any concern, the Authority maintained that the existing facade was 'adorned by nu- merous vernacular features in terms of stone fascias, mouldings and corbels and also in terms of traditional wood- work for the and wrought iron work for the apertures.' The said features, ac- cording to the Authority, made a posi- tive contribution to the character of the building as well as the streetscape. It was further argued that any attempt to incorporate 'certain vernacular fea- tures' in a new design was not tanta- mount to 'adequate justification' for the entire demolition of the facade. As to the permissions mentioned by ap- pellant, the Authority held that these were not relevant. With regard to the recently constructed apartments, it was observed that the new complex occu- pied a previously vacant plot. On the other hand, the permit for the demoli- tion of the old building situated close to appellant's site, albeit issued, had not been utilised. For its part, the Tribunal felt that the façade was not worth retaining since the Authority had failed to demon- strate that the building in question was of outstanding architectural or histori- cal interest. But even so, the Tribunal opined that preserving the façade would not 'visually enhance' the imme- diate urban streetscape. Against this background, the Tribunal overturned the appealed decision and ordered he Authority to issue permission. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Authority failed to prove that building was of historic interest JUDICIAL letters filed in terms of Ar- ticle 166A of the Code of Organisation and Civil Procedure, may be addressed to corporate structures, but these must have a judicial personality. This was decided by the Magistrates' Court on 26 February 2019 in ALC Limited -v- Bonnici Bros Contractors Limited, MDM Costruzioni Generali Srl and BM Tunnel JV MDM Costruzioni Generali Srl and Bonnici Bros Contractors Limited, both formed a joint venture, BM Tun- nel JV, which filed an action, asking the Court to declare a judicial letter filed against them as null and void, and to rescind the executive title. ALC Limited replied by stating that the notification of the judicial letter was valid. Magistrate Dr Gabriella Vella, who presided over the proceedings and delivered the judgement saw that the main issue concerns the notification of a judicial letter filed in terms of Article 166A of the COCP, where the three en- tities were called upon to pay €7,840.49 for services ALC Limited had rendered to them. Both Bonnici Bros and BM Tunnel JV were notified, while the Ital- ian company was not. Bonnici Bros had filed a note stating that they do not owe this sum, but no such note was filed in the name of BM Tunnels JV. As a con- sequence, ALC Limited filed a garnish- ee order against BM Tunnels JV. MDM Construzione Generali Srl and Bonnici Bros, who run BM Tunnel JV filed an action under Article 166A(5) of the code of Organisation and Civil Procedure, asking the Court to declare the notification of the judicial letter and the garnishee order as null, since BM Tunnel JV has no separate legal and judicial personality. Furthermore, nothing is owed to ALC Limited. ALC reacted by saying by saying that the Bonnici Bros and MDM Constru- zioni General Srl have no judicial rela- tionship with this action. The Court quoted from the law, Ar- ticle 166A(5) of the Code of Organisa- tion and Civil Procedure states: "(5) Any executive title obtained ac- cording to the provisions of this article in the absence of any opposition on the part of the debtor shall be rescinded and declared null and void if upon a request by application in the Court of Magistrates (Malta) or in the Court of Magistrates (Gozo), as the case may be, it is filed by the debtor within twenty days from the first service upon him of any executive warrant or other judicial act based on the said title. The court is satisfied that: (i) the debtor was unaware of the said judicial letter because he was not duly notified; or (ii) the judicial letter did not contain the requirements laid down in sub-ar- ticles (1), (2) or (3): Provided that the said application shall be appointed for hearing within two weeks." The Italian company MDM Constru- zioni General Srl MDM), explained that it had created a joint venture with Bonnici Bros and called it BM Tunnel JV, however, it did not have a separate juridical personality from these two companies. As a result it could not have been served with any acts nor be notified of these acts. MDM Constru- zioni General Srl passed on a copy of the joint venture agreement. It is the Court which has to determine whether BM Tunnel JV has a separate juridical personality. Article 4 of the Companies Act states that commercial partnership are either partnerships en nom collec- tif or en commandite or a company. A company may be either private or public. Therefore, two persons or more may create a commercial vehicle, with a separate legal personality than the members of that entity. A joint ven- ture does not fall under Article 4 of the Companies Act and therefore does not have a separate legal personality. Article 181A of the Code of Organisa- tion and Civil Procedure deals with the written pleading filed against entities with a distinct legal personality and all is required is that the name of the en- tity is mentioned. Any entity which is not a distinct legal personality has to be referred to by its members. Therefore, the judicial letter filed by ALC Limited, should not have been directed to BM Tunnel JV. The notification to the joint venture was not a correct notification and therefore, could not become an executive title. The same judicial letter was served upon the two companies that formed the joint venture, but it still cannot be rendered as an executive title, since one was not notified, while the other contested the claim. Magistrate Vella, then moved to de- clare that the notification was not done according to law and therefore, did not become an executive title and the gar- nishee order was revoked. Judicial letters must be addressed to corporate structures with judicial personalities LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates