MaltaToday previous editions

MALTATODAY 22 September 2019

Issue link: https://maltatoday.uberflip.com/i/1170309

Contents of this Issue

Navigation

Page 44 of 55

| SUNDAY • 22 SEPTEMBER 2019 maltatoday 13 CULTURE ENVIRONMENT LAW & PLANNING THE issuing of a garnishee order by a court, that does not have the authority to issue it due to a lack of competence to take cognizance of the matter, is in- valid. This was declared on 12 September 2019 by the First Hall Civil Court in the case of Dr Abigail Critien et. Vs Fair Trading Limited presided by Hon. Judge Joseph R. Micallef. The Court heard the plea by the de- fendant company that had a garnishee order issued against it by a lawyer and legal procurator, regarding certain outstanding payments found in the taxed bill of cost issued by the Court Registry due to them for services they had offered the company. The defendants held that the gar- nishee order should be revoked on the basis of three grounds. Firstly, they held that the title is not executable because they were not properly notified. Secondly, they held that the garnish- ee was issued by the wrong court on the grounds of incompetence to take cognizance of the matter. Lastly, they held that the plaintiffs did not have the required juridical interest to enable them to have a gar- nishee order issued in their favour. The garnishee order was for the sum of EUR4869.01 and five local banks were named garnishees. The Court firstly outlined the gener- al principles that are found in Article 281 of the Code of Organisation and Civil Procedure, which speaks about impugning an executive title such as a garnishee order. It stated that in such cases the Court must look at whether the garnishee has all the requisites required by law, and whether it was issued in an abu- sive manner. It reminded the parties that the Court cannot go into the merits of the case itself but must only consider the formal elements of the garnishee or- der in order to determine whether or not it should be revoked. This is due to the fact that it is the formal requirements that ensure that due process is followed and that make the order executable. It was explained that in the case of a precautionary warrant one can file a counter-warrant, but in this case the garnishee order was an executive title and not a precautionary warrant. The court firstly observed that prop- er notification is an issue of extreme importance and improper notification renders the order unexecutable. It, however, found that the order was notified to the right company address and picked up by a person competent to do so and passed on to the defend- ants, as is required by law. The Court then heard the reasoning of the defendant regarding the second claim, who held that the garnishee or- der was issued by a Court when it did not have the competence to take cog- nizance of the matter. This is because there is a distinction ratione valoris between the Court and the Court of Magistrates wherein the latter takes cognizance of claims not exceeding EUR15,000. The plaintiffs, however, held that this is not mentioned in the law and that the official letter with which the taxed bill of costs became an executive title was issued by the Civil Court and so it clearly had the competence to or- der its execution. The Court refused this argument. It was held that in line with Article 264(2) of Chapter 12 of the Laws of Malta, executive titles are executable by the court competent to take cogni- zance of the subject-matter thereof. Furthermore, the Court commented on the fact that the competence of the Court of Magistrates is exclusive and the fact that the official letter was sent out by the Civil Court does not bring with it the effect that the executive ti- tle is also issued by the Court. The Court, therefore, reversed the garnishee order, with costs against the plaintiff. Garnishee order must be issued by court competent to take cognizance of the matter LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a development planning application to demolish what ap- plicant described as 'a farm building constructed prior to 1978' and con- struct a dwelling instead. The build- ing in question was located in Bidnija, outside the development zone of St Paul's Bay. The Planning Commission ob- served that notwithstanding the proposal description, the 'farm' was nothing but a 19sq.m room. The Commission thus held that the pro- posal was not in line with policy NWRS3 of the North West Malta Local Plan which allowed re-de- velopment of existing buildings so long as the built footprint was not less than 50sq.m as identified in the 1968 aerial photos. On top of this, the Commission maintained that the proposed redevelopment failed to satisfy criterion 5(c) of policy 6.2C of the Rural Policy and Design Guid- ance (2014) for the existing building could not be considered as a disused farm building. The Commission also opined that the building in question was small in size, hence there being no negative visual impact so as to justify replacement. Finally, it was noted that the Veterinary Regula- tions Directorate could not verify whether the so-called 'farm' was ever used as such. In reply, applicant lodged an ap- peal against the decision before the Environment and Planning Review Tribunal. In his appeal, applicant (now, appellant) pointed out that 'upon further information gathered from the VRD, the farm had ceased being operational since 2002.' This implied that the farm was consid- ered to have been 'in disuse' after the year 2004. Applicant argued that according to Policy 6.2C of Rural Policy and Design Guidance (RPDG) 2014 on which the Commission's decision was premised, a farm build- ing which ceased operations prior to 2004 could be demolished and a new residence built instead, irrespective of the standing building area. Final- ly, the Tribunal was reminded that the proposed dwelling was to occupy an area of 200sq.m, hence within the limits set out by the said Policy 6.2C. For its part, the Authority stood firm with its position to refuse per- mission. While noting that appli- cant's building was located within a Category 2 Rural Settlement, the Authority reiterated that according to the Local Plan, re-development of existing buildings into new dwelling units could only take place when the existing external footprint was not less than 50sq.m. In the case under examination, there was no dispute that the current building covered an area of 19sq.m which was less than 50sq.m. In its assessment, the Tribunal im- mediately acknowledged that the building under examination was situated within a Category 2 Rural Settlement. Furthermore, the Tri- bunal saw that the existing building measured 19sq.m whereas in the Lo- cal Plan it was held that an existing building could be re-developed into a dwelling only when it occupied an area of at least 50sq.m. The Tribunal went further to note that once the proposal did not qualify in terms of the provisions of the Local Plan, ap- plicant could not rely on the Rural Policy, independent of the fact that it could work in his favour. Still, the Tribunal found that for re/develop- ment to qualify in terms of Policy 5.2C, 'a negative environment im- pact on the site and its surround- ings' had to subsist. Given the small size of the room, the Tribunal said that there was no concern with vis- ual impact. Against this background, the Commission's decision was con- firmed. Permit to convert 19sq.m room to ODZ dwelling denied

Articles in this issue

Links on this page

Archives of this issue

view archives of MaltaToday previous editions - MALTATODAY 22 September 2019