Issue link: https://maltatoday.uberflip.com/i/1146457
maltatoday 11 | SUNDAY • 21 JULY 2019 CULTURE ENVIRONMENT LAW & PLANNING robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING THE Court of Appeal in its judgment of 12th July 2019 has confirmed that the Inferior Courts may adjudge on a right although not falling precisely within the original claim. This was declared by the Court of appeal in a case in the names of Walters et vs Demar Proper- ties et, decided by Judge Anthony Ellul. The case revolves around damages which resulted to the floor tiles of a property after the purchase of a tene- ment by the plaintiffs from the defend- ants. The property in question was purchased on 15th April 2013, at the time of which the property was in an advanced shell form state and in which the flooring of the property had already been completed by the defendants. To- wards April 2016, a defect in the floor- ing of the apartment was becoming apparent in several areas of the prop- erty as the flooring began to vault. The plaintiffs had not only consulted with an architect and a labourer to have a look at this damage for their assess- ment, but they also immediately con- tacted the defendants to have a look at it themselves with a view of finding an amicable solution. In the absence of an amiable agreement between the par- ties, the plaintiffs filed a judicial pro- test which was then followed by a civil case against the plaintiffs. By the time the civil case was filed by the plaintiffs, the severity of the damage grew further and in view of the urgent need of re- pairs, the plaintiffs carried out the nec- essary repairs at their own cost. In their request to the First Court, the plaintiffs had demanded that they be refunded for the expense which they had incurred to correct the bad work- manship carried out by the defendants prior to the sale of the said property. To this effect, the plaintiffs had requested the Court to liquidate damages to the tune of €8,517.74. During the course of proceedings be- fore the First Court, the architect and labourer which had assessed the dam- age testified and both confirmed that the damage which resulted in the tiles of most parts of the property was a re- sult of the wrong combination of tiles with its underlying sub-base mixture which was meant to hold it firm to the ground. As a result of this bad combi- nation, the effect of the local climate on the tiles was such that these did not have enough room to expand and the right conditions to stay in place but rather the tiles began to detach from the ground and vault. The defendants' main argument in countering the claim was anchored around the point that the actions which the plaintiffs could have pursued in such a situation were either the actio redhibitoria or the actio aestimatoria. The actio redhibitoria is an action to cancel a sale in consequence of defects in the thing sold. The goal of this action is to compel complete restitution to the seller of the thing sold, and to give the buyer back the amount paid. The actio aestimatoria is an action which com- pels the seller to reduce the contract price and reimburse the buyer such reduced sum, but not to cancel the sale. The defence also raised the plea that the case was time-barred since the action had to be instituted within one year from the date of the contract. The First Court, presided by Mag- istrate Caroline Farrugia Frendo, as- serted that that the claim made by the plaintiffs was in such a way that they were seeking a compensation for the urgent repairs which they had to do carry out as a result of the serious de- fects. The First Court pointed out that the one-year prescription period starts running upon the moment that the defect becomes apparent, and not from the contract. The Court thus re- jected this defence by noting that the plaintiffs had first noticed such defect around April 2016 and both the judi- cial protest and the civil action were filed by the end of that same year. The First Court also concluded that the ac- tion was in itself an action 'actio aesti- matoria' since the plaintiffs had proved that the resulting damage central to the case was indeed a hidden one and one which the ordinary man could not have easily verified at the time of purchase. Moreover, it was established that the defect was a grievous one and which implied that had the purchasers been aware of such defect, they would have reasonably paid less for the property. Furthermore, the First Court con- cluded that this was not the first in- stance that the Courts decided on cases of a similar nature and that this is done for the sake of practicality, in the sense that when a claim is made which does not exceed the Court's competence, it would be fairer to decide on the issue rather than imposing further costs on the plaintiff to simply have the case de- cided by a different Court. In its con- clusion, the First Court held that the monetary claim being sought was a realistic one and awarded the plaintiffs damages in the sum of €8,100. Aggrieved by such decision, the de- fendants filed an appeal basing their arguments on the same legal points raised in front of the First Court. The Court of Appeal quoted Article 213 of the Code of Organisation and Civ- il Procedure which dictates that in Courts of first instance in their inferior jurisdiciton, where the claim as stated in the application has not been made to appear, but nevertheless, another right has been made to appear although such other right does not fall precisely with- in the terms of the claim as originally framed, the court may adjudge upon such other right so made to appear on the same application. In simpler terms, this means that in front of the inferior Courts, the Courts may adjudge on a right, although not falling precisely within the original claim. In its conclusion therefore the Court of Appeal cemented the conclusion of the First Court. A right not falling precisely within original claim may be decided upon by Courts LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates AT issue was a planning application contemplating internal and external alterations to a ground floor tenement. The proposed designs included the re- placement of timber facade apertures with aluminium. The proposed devel- opment was, however, rejected by the Planning Commission after noting that the property in question was located in Triq Simpson (Marsa) within an urban conservation area. To support its deci- sion, the Commission held the follow- ing reasons of refusal: 1. The proposed design was incompatible with the urban design and environmental characteristics of the Urban Conservation Area since it would not maintain the visual integrity of the area. For this reason, the propos- al was deemed to be incompatible with Urban Objectives 2 and 4 of the Strate- gic Plan for Environment and Develop- ment; 2. The proposal was considered to run counter to the provisions of Good Practice Guidance G50 of the Development Control Design Policy, Guidance and Standards 2015 which specifies that 'aperture replacements should be in same design, proportions, colours and materials'; 3. The proposal was in breach of Urban Objective 3 of the Strategic Plan for Environment and Development which aims to protect and enhance the character and amenity of urban areas. 4. The Superintendent of Cul- tural Heritage and the Design Advisory Committee had objected to the pro- posal; As a reaction, applicant lodged an ap- peal against the decision before the En- vironment and Planning Review Tri- bunal, insisting that the permit should have been approved. In his appeal, ap- plicant (now, appellant) argued that his tenement was situated in a street char- acterised by 'existing commitments which make use of other materials oth- er than timber, including aluminium'. Furthermore, applicant contended that if aluminium is 'executed nicely', the interventions would not impinge on the visual integrity of the streetscape as had been alleged by the Authority. Reference was also made to a particu- lar permit whereby the Authority had granted permission to install two alu- minium balconies in the same street. On a separate note, appellant alleged that the Commission's decision was taken in the absence of his architect. According to appellant, this was in breach of the principle of fair hearing. Appellant explained that upon arriv- ing at the offices of the Authority, his architect was told that the case was scheduled to be heard the following Monday. At that point architect left the offices of the Authority, only to learn some time later that his application was determined (and refused) on that same day. The Authority acknowledged that there were other buildings in the same street 'which have changed their origi- nal timber and wrought iron apertures with more recent material such as alu- minium and open glass type apertures'. Nevertheless, it was pointed out that in applicant's case, the premises were located within an Urban Conservation Area. In its assessment, the Tribunal noted that the streetscape design was not uniform. In addition, the Tribunal ob- served that applicant's tenement was overlain by third property also having an aluminium closed balcony. Against this backdrop, the Tribunal ordered the Authority to issue the permit. Authority ordered to issue permit for installation of aluminium apertures