Issue link: https://maltatoday.uberflip.com/i/1091272
maltatoday 13 | SUNDAY • 10 MARCH 2019 CULTURE ENVIRONMENT LAW & PLANNING THE owner of a scheduled dwelling situated outside the development zone was served with an enforce- ment notice, making reference to the installation of photovoltaic panels without permit. Following receipt of the said no- tice, the dwelling owner lodged an appeal before the Environment and Planning Review Tribunal, claiming that the notice was null and void. In her appeal application (rikors), the dwelling owner submitted that, ac- cording to DNO (Development No- tification Order) legislation, there was no need to obtain a planning permit in order to install photo vol- taic panels on the roof of a dwelling. Furthermore, appellant maintained that the panels were installed af- ter she had obtained a government grant. Nevertheless, the Tribunal ruled that in the case of Grade 1 and Grade 2 Scheduled property and sites out- side the development boundaries (ODZ), PV panels were not allowed on the roof of the penthouses, stair- hoods and washrooms 'if the nega- tive visual impact of such services is considered to be excessive.' Conse- quently, appellant was wrong to as- sert that for the installation of PV panels, no permission was required. On the contrary, appellant was expected to submit a request to the Planning Authority for it to establish whether the resulting visual impact was 'excessive'. In other words, a permit would only be issued if the Authority is convinced that the visual impact was not excessive. In the absence of such permit, the installation of panels on Grade 1 and Grade 2 Scheduled property is considered in breach of Maltese planning legislation. Aggrieved by the Tribunal's deci- sion, plaintiff submitted an appeal before the Court of Appeal, insisting that the Tribunal's decision should be revoked on the following grounds: 1. The Tribunal had failed to prove that she owned the prop- erty in question; 2. The property in question was in possession of a third party. In its ruling, the Court observed that plaintiff had pointed out that the dwelling was in possession of a third party. At no point during the proceedings, however, had plaintiff demonstrated that she was not the owner of the dwelling. The Court reminded that accord- ing to law, the Executive Council may serve an enforcement notice on both the owner or occupier of any land, requiring 'any existing use or activity or any works to be discon- tinued or any building, plant, equip- ment or other thing whatsoever to be removed from any land, or re- quiring both such discontinuance and removal.' Against this background, it was ir- relevant whether the illegalities were committed by third parties since a property owner would be held re- sponsible nonetheless. The Court, however, went to ob- serve that plaintiff was not prevent- ed to institute separate proceedings against the 'third party offender', demanding compensation should it transpire that the latter was at fault. On this basis, the appeal was dis- missed. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Owner not in possession of property still responsible for planning illegalities EVIDENCE produced by one party, which does not convince the Court, does not mean that that evidence is false. This was held in a retrial de- cided on 4 March 2019 in Champalin Company Limited -v- Adrian Pillow before the Court of Appeal, presided by Mr Justice Mark Chetcuti. The case started before the Rent Regulation Board, then moved be- fore the Court of Appeal, when the latter confirmed a decision of the Board terminating a lease Adrian Pillow had agreed and ordering him to vacate the premises. The case concerned a promise of sale agreement that took place in December 1999, where Pillow was to be granted a perpetual emphy- teusis of a house in San Gwann. The promise of sale was to be extended every time when the ground-rent was to be paid. The promise was sale was never registered with the Inland Revenue Department. The exten- sions continued to 2007. In 2015 the claimant company filed a case asking the Rent Regulation Board to evict the defendant, Pillow. The grounds of the appeal that Pillow had filed were based on the fact that the promise of sale was not registered and therefore, was not ac- cording to law. Furthermore, the de- fendant complained that the Board did not take onboard the calcula- tions he had presented. As to the first ground of appeal, the defendant explained that clause 15 of the promise of sale agreement allowed for an automatic extension. According to Article 1233 of the Civil Code, the promise of sale has to be in writing, and the only written agreement took place in 2005. Apart from this the Tax on Document and Transfers Regulations, stipulates that the promise of sale agreements must be registered. Promise of Sale agreements done before December 2003, must have been registered all the same. The Board pointed out that the defendant testified that in 2007 the written receipt mentioned that he paid rent and therefore, there was a fresh arrangement where the defendant was now renting the premises. The Court of Appeal held that this was a logical conclusion since the receipt mentioned "rent" and this was backed by an explana- tion. The director of the claimant company held that he did not want to continue to extend the promise of sales agreement and if Pillow wanted to continue to occupy the premises, then he was going to rent it to him. Pillow argued that there was no written lease agreement as obliged by law. Although the defendant held that the Board did away with his calcula- tions, the Board did not find any evi- dence that he had actually paid more than what was being claimed. The defendant based his retrial on the fact that the judgements of the Rent Regulation Board and the Court of Appeal were based on false evidence presented by the claimant company in terms of Article 811(a) and (j) of the Code of Organisation and Civil Procedure. Furthermore, he stated that the Rent Regulated Board was not competent to decide on the validity of he promise of sale agreement. There also was a mistake of fact. Mr Justice Chetcuti held that an insufficient defence is never a good reason for one to present a retrial. If there was such a fraud, the defend- ant should have pointed this out to the Board or to the Court at the ap- propriate time. If the defendant did not manage to convince the Court, this is not fraud. As to the competence of the Board, the Court of Appeal held that the Rent Regulation Board did not de- cide on any issue concerning the promise of sale agreement. The de- fendant claimed as a defence that the promise of sale was valid and there- fore, could not at the same time state that the Board could not deal with the promise of sale issue. As regards whether there was any false evidence, the defendant failed to bring any evidence of this. In fact Article 811 of the code of Organi- sation and Civil Procedure allows three months to challenge a judg- ment, after another judgement es- tablishes that the evidence is false. Therefore, there is need of a judicial declaration that the evidence is false. The Court then moved to dismiss the retrial and confirmed the Court of Appeal judgement. Unconvincing evidence is not tantamount to fraud LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates