Issue link: https://maltatoday.uberflip.com/i/1122280
maltatoday 17 | SUNDAY • 26 MAY 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning application which, prima facie, appeared not to be very straightforward. According to the proposed description on the application form, applicant sought to widen a gate and construct a me- ter room in an agricultural field situ- ated outside the development zone of Marsascala. Nevertheless, the Com- mission turned down the said appli- cation after it held that the site was characterised by a multitude of ille- galities. In this regard, the commis- sion made reference to the presence of 'several structures on site', 'the formation of passages' as well as ex- cavation works which allegedly were carried out without due authorisa- tion. In addition, the Commission ob- served that applicant had demolished a stretch of rubble walls, though these were protected under Legal Notice 160 of 1997 (which was eventually amended by virtue of Legal Notice 169 of 2004). In the said Legal Notice, traditional rubble walls are afforded protection due to their historical and architectural importance, their con- tribution to the character of rural ar- eas, their affording a habitat for flora and fauna, and their vital importance in the conservation of the soil and of water. More so, the proposal was found to be in breach of policy 2.9 of the Rural Policy & Design Guidance (RPDG) 2014 since the proposed gate was higher than what was permitted, namely 1.2 m. In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that permission should have been granted. In his application (rikors), applicant (now, appellant) submitted that the illegal developments men- tioned by the Authority, which in- cluded the formation of passages and the built structures, were located in third party property. Appellant clari- fied, however, that this third party property had a right of way over his field. As to the proposed gate, appli- cant contended that this was aligned 'with the exterior face of the rubble walls' and was thus considered to be visually acceptable. In reply, the Authority reiterated its previous concerns. The Tribunal was reminded that the unauthorised de- velopment could not be justified, all the more so since applicant's inten- tions to sanction the illegalities were not made known at the outset of the application as required by law. The case officer underlined that 'every proposed development (including that to be sanctioned) has to be men- tioned in the proposal and reflected on the proposed plans', failure which the application cannot be processed further. In its assessment, the Tribunal took cognizance of the arguments brought forward by appellant and the Plan- ning Authority. The Tribunal as- sessed that the site in question was characterised by a multitude of un- authoried works, not least a passage- way which was extended without a planning permit. The Tribunal made specific reference to Regulation 17 (1) of Legal Notice 162 of 2016, which states that 'when an application is submitted on a site which is subject to an enforcement notice, the Plan- ning Board may dismiss the applica- tion unless the illegal development is included for sanctioning and, or any payments due as a result of any en- forcement notice on site, are settled prior to the issue of the permission.' For this reason, the Tribunal held that the Authority was correct to dis- miss the planning application. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING When permission is requested on site with illegalities THE First Hall Civil Court in a par- tial judgement in the names of Odette Abela vs Josephine Cassar delivered by Honourable Judge Lawrence Mint- off on the 20th May 2019 decided that the institute of legacy is to be con- sidered as indivisible and therefore if there is disagreement on the part of one or more of the heirs as to whether the legatee should be admitted into possession of the property devolved upon the legatee, then the latter must proceed with filing an application in Court against all the heirs and not solely against that heir or heirs who would be objecting to the legatee be- ing admitted into possession of the property. Namely the plaintiff and the defend- ant in this case are sisters and the dispute revolved around a number of properties that had been bequeathed to the plaintiff under title of legacy by their parents Nazzareno and Ricca- rda sive Ludgarda Abela. By means of their will and testament their parents had instituted all their six children as their sole universal heirs, including the plaintiff and the defendant. How- ever, they had bequeathed a number of properties to the plaintiff under title of legacy. The other heirs and siblings of the parties had already agreed and admitted the plaintiff into possession of the properties, with the exception of one, by means of a deed recorded in the acts of Notary Dr Joelle Cortis dat- ed the 27th July 2018. Notwithstand- ing this, the defendant was refusing to appear on such a deed and in view of her sister's refusal, the plaintiff filed a case in Court requesting the Court to order her sister to admit her into the possession of the properties that had been bequeathed to her by their par- ents under title of legacy. In her sworn reply, the defendant amongst other pleas raised the pre- liminary plea that to ensure the integ- rity of the judgement and the proper administration of justice, the case had to be instituted against all of the heirs and not only against the defendant since the obligations of the heirs to- wards the legatees are indivisible and therefore there was the need to call upon the other siblings to join the suit. From her end, the plaintiff argued that the legacies bequeathed upon her by her parent were equivalent to a debt of their parents' estate and there- fore the obligation of the payment of the legacy was such as to give rise to the dispositions that regulate solidari- ty in the obligations and therefore any one of the debtors, or in this case the heirs, could be actioned in order to ef- fect the obligation. The Court held that the theory of the plaintiff, that the legal position of a legatee is equivalent to the position of a creditor of the estate, was true and it had been substantiated in previous judgements of our Courts as well as by legal jurists. This position is consid- ered as being as such since although the legatee would be considered as the owner of the property that would have been bequeathed upon him, his right remains uncertain and subject to con- testation until the legatee is admitted into possession of that property by the heirs. In a previous judgement in the names Rev. Father Franġisku Azzo- pardi noe v Maria Hilda sive Hilda Cauchi decided by the First Hall Civil Court on the 14th October 2004 it was held that until the heir releases the property of the legacy, the legatee may not obtain possession of the said property and therefore the legatee's right of ownership would be an ab- stract right in the sense that he would not have the right to exercise such right. With regards to the indivisibility of the obligations of the heirs, the Court referred to article 734(1) of the Civil Code which states that where no one of several heirs has been particularly charged by the testator with the pay- ment of the legacy, all the heirs shall be liable for the payment thereof, each in proportion to his share in the suc- cession. Moreover in terms of Article 940(1) of the Civil Code, in all cases, with re- spect to the creditors, each of the heirs shall be personally liable for the debts of the inheritance, in proportion to his share. However, notwithstanding the above, the Court agreed with the po- sition of the defendant that this state of indivisibility does not equate to the situation where the plaintiff would be able to choose to proceed with fil- ing a case against any one of the heirs since this might affect the position of the other heirs. Moreover, the Court held that in this case, although this judgement was limited to the defend- ant's preliminary plea, from the acts of the case it had resulted that in one section of their father's will there was a clause that stated that should any one of the heirs attack his will then that heir would have renounced to their right of heir or legatee and they would only have the right to receive the reserved portion. The defendant's siblings, including the plaintiff, had, in fact, attacked that will by means of a separate case which has become final, and therefore the defendant is argu- ing that they should not have admit- ted the plaintiff into possession of that property. In view of this, the Court whilst ac- knowledging that this judgement was not intended to go into the merits, the preliminary plea had not been raised in a vacuum and was closely linked to the other pleas raised by the defend- ant. Therefore, in an effort not to prejudice the integrity of the judge- ment and to avoid any further judicial proceedings between the parties, the Court ordered that the other heirs and siblings of the parties were to be called to join suit and the Court will resume to hear the case on the other pleas and merits raised by the parties. Legatee must request the release of the property from the heirs in solidum LAW mmifsud@mifsudadvocates.com.mt ASK CATHERINE Dr Catherine Mifsud is an associate at Mifsud & Mifsud Advocates