Issue link: https://maltatoday.uberflip.com/i/1127413
maltatoday 13 | SUNDAY • 9 JUNE 2019 CULTURE ENVIRONMENT LAW & PLANNING AT issue was a planning applica- tion to sanction an agriculture store which, according to applicant, was built prior to 1994. The building in question was situated in Cirkewwa, outside the development zone of Mellieha. Following a thorough as- sessment, the Commission turned down applicant's request on the fol- lowing grounds: 1. The building was found to have being used as a dwelling and not an agricultural store as indicated by applicant in his proposal. Besides, the site featured a number of struc- tures which were not shown on the plans submitted by applicant's archi- tect; 2. Applicant was not a regis- tered farmer and his genuine inten- tions were thus being contested; 3. The buildings on site had been 'rendered and painted, fitted with large aluminium apertures, ex- ternal lighting and overlying water tanks'. Moreover, the buildings were not constructed of recyclable mate- rial as required by policy. As a result, the proposal was not in line with Ru- ral Objective 4 of the Strategic Plan for Environment and Development 2015, which policy objective seeks to protect and enhance the positive qualities of the landscape and the traditional components of the rural landscape. In reaction, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that permission should have been granted permission. In his prelimi- nary arguments, applicant (now, appellant) argued that the build- ings which were not shown on plans consisted of 'a pre-1994 farmhouse as visible on the 1994 aerial photo', which building was subsequently di- vided into two dwellings by the sib- lings after their parents passed away. While admitting that the building was extended without planning per- mission, appellant submitted that no such permission was required at the time. With regard to the unau- thorised concrete passageway and the aluminum apertures, appellant submitted that these issues could be 'easily resolved'. In reply, the Authority rebutted that, in his application, applicant had made specific reference to an agriculture store. To this end, appel- lant could not request the Authority to sanction a residence midway in the application process. The Tribu- nal was reminded that a planning proposal cannot be altered once an application was validated since material changes are not permitted thereafter. [Regulation 12(5) of the Development Planning (Procedure for Applications and their Determi- nation) Regulations, 2016]. Moreo- ver, the Authority observed that 'appellant was willing to submit a revised proposal at this stage and in- clude design issues that are material to the application' implying that 'the Authority was correct in refusing the application.' In its assessment, the Tribunal held that it was not convinced that the residence was legally established, adding that a planning application is required to 'divide a residence in two'. Moreover, the Tribunal ob- served that the site photos showed a situation which was not reflected on the submitted plans and the applica- tion could thus not be processed fur- ther. Either way, the Tribunal noted that appellant was in possession of only two tumoli of land and was not therefore entitled to build an agri- cultural store, let alone a residence. 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 ODZ buildings turned residence rejected permit THE First Hall of the Civil Courts held that all co-owners have a right to the key of common owned prop- erty, even though it may be the resi- dence of some of them. This was held in a judgement delivered by Mr Jus- tice Grazio Mercieca in Annuziata Galea, Georgina Caruana, Nazzarena Grima, John Galea, Grazio Caruana and Joseph Grima -v- Carmen sive Maria Borg and Emmanuel Borg. The judgement was delivered on 4 June 2019. In their application, the plaintiff asked the court to declare that they are co-owners of a property in St Paul's Bay and that the defendant should be ordered to hand over the keys of this property. The defendants defended the case by filing a statement of defence stat- ing that they are using the property according to an agreement they had with their parents to make use of the property without payment. Both par- ties are brothers and sisters. The evidence showed that the par- ties' parents had three wills. In the July 2011 will, the property was left to Emmanuel Borg, however, the mother renounced the inheritance in favour of his 11 children. In Septem- ber 2011 the will was changed to give Emmanuel Borg half of the undivided property. When the parents died the defendants still lived with their par- ents and it is still their residence until today. The defendant is not allowing access to the plaintiffs. The Court dealt first with whether there was an agreement between the defendant and the parents to use the property without any payment. The Court analysed the facts of the case to see whether there existed a com- modatum or loan for use in terms of Article 1824 of the Civil Code. A loan for use is when someone gives a moveable or immoveable thing to another to make use of it for some time or for a particular use and to be bound to return. This is different from usufruct and this does not con- stitute a real right, since the loan for use is given for temporary use, which is a personal right. This is a loan for use not as a loan for consumption. Mr Justice Mercieca gave the example of when a book is given to be read and it is to be returned. If money is lent, the money can be spent therefore, consumed, with an obligation that an equivalent amount is returned. Article 1824 of the Civil Code states: "Commodatum or loan for use, is a contract whereby one of the parties delivers a thing to the other, to be used by him, gratuitously, for a speci- fied time or purpose, subject to the obligation of the borrower to restore the thing itself." From this article of law there are two characteristics, the first being enjoyment and the second is to be used for a time or for a spe- cific use. The law does not speak of a definite time and therefore it may be given for the lifetime of the person given the loan of use. The Court held that it was sceptical that there existed any agreement be- tween the defendants and their par- ents on the use of the property. The Court held that when the de- fendants replied to a judicial letter the agreement was not mentioned. Furthermore, none of the witnesses mentioned this agreement. Another reason is that the mother of the par- ties renounced to the inheritance of her husband, having only her half of the property. If she wanted the defendants to use the property she would not have renounced the in- heritance. The Court held that even if there was an agreement, it could not have been constituted as a loan for use, since no time period was de- termined. According to Carmen Borg her parents accepted that she lives with them because she took care of them. A previous judgement of the Court of Appeal Antonio Vassallo vs Ed- ward Vassallo of 18th Mary 1964 shows it is normal for the children and parents to live together as one family but this is not a contract of loan for use, since the elements do not exist in such a situation. As to the key of the property, the Court agrees with the plaintiffs' re- quest. The defendants argued that if the plaintiffs would have a key there would be no privacy. However, Mr. Justice Mercieca said that this should have been listed as one of the pleas and it was not. The Court then moved to uphold the plaintiffs' request and declare them as a co-owner and ordered that they would have copies of the keys. Co-owners may be given the keys of the common property LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates