Issue link: https://maltatoday.uberflip.com/i/1172208
| SUNDAY • 29 SEPTEMBER 2019 maltatoday 17 CULTURE ENVIRONMENT LAW & PLANNING THE First Hall of the Civil Court au- thorised the sale of a property, which is held in common with a number of heirs. Mr Justice Toni Abela decided this on 24 September 2019 in Alfred Rai- mondo, Anthony Raimondo, Ema- nuel Raimondo, Joseph Raimondo and Theresa Raimondo -v- Dr Ish- mael Psaila and PL Noel Scerri as curators of the unknown heirs of the deceased Carmen Thomas and James Thomas, Maria Stockes, Cris- tina Alison Rowlands and Laura Jane Thomas, for any interest they may have. In the sworn application, the Rai- mondo family explained they are co- owners of a property in Floriana. They became co-owners following the death of their mother Maria Rai- mondo. Among the heirs there was the plaintiff's sister Carmen Thomas, who died in 2001. The property was purchased by the plaintiff's parents in 1962. They had six children, the plaintiffs and Car- men Thomas. When the parents died, all the chil- dren were declared heirs and there- fore, had 1/6 of the property each. Carmen Thomas lived in the UK and had three children, who are parties to this action. None of the parties started ay ac- tion to divide the estate. The Plain- tiffs found a buyer for the property, who offered €110,000. A promise of sale was drawn up and all the plaintiffs signed, however, the defendants did not. The Plaintiffs therefore, asked the court to allow them continue with the sale of the property in terms of Article 495A of the Civil Code. The defendant did not reply to the action. Mr Justice Abela quoted from a previous judgement Dr Victor Buge- ja noe -v- Dr Benjamin Valenzia, de- cided on 2 June 2016, wherein it was held that the law gave a relatively simple procedure for co-ownership to be concluded. In another judgement George Camilleri pro et -v- Dr Joseph Ellis deiced on 9 January 2018, the Court held that the Court is bound to pro- tect the interest of the minority co- owners, especially when they are absent. The Court also has to keep in mind, the interest of the majority of the co- owners. There may be lack of com- munication between the parties or else there is no interest of some of the co-owners. The Court pointed out the defend- ants have a very small share of the property and therefore, cannot see that the sale of the property will cause them any prejudice. The fact that the defendants are absent or else represented by cura- tors, should not cause any difficulty. The Court then ordered that the plaintiffs were to sell the property in terms of the promise of sale agree- ment. Co-owners may force a sale of common property 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 planning application which envisaged the construction of a fodder store, the 'set-up' of a tem- porary parking for heavy vehicles at night time, the planning of olive trees as well as the sanctioning of an exist- ing boundary wall. The Planning Commission consid- ered that the site in question was lo- cated outside the development zone of Birzebbugia and turned down ap- plicant's request on the following grounds: 1. The parking of heavy vehicles ran counter to the Marsaxlokk Bay Local Plan Policies which hold that no development would be permitted outside the development zone, unless con- sidered to be essential; 2. The proposal failed the criteria listed in the Policy Guidance for open storage areas; 3. The applicant was already in possession of other structures which he could use for the pur- pose of a fodder store. Thus, the proposal was incompat- ible with Thematic Objective 1.10 of the Strategic Plan for Environment & Development which provides that rural de- velopment is to be allowed when it is considered to be le- gitimate or necessary; Following the said decision, ap- plicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that his applica- tion should have been granted per- mission. In his appeal application, applicant (now, appellant) put for- ward the following arguments: 1. He had told the Planning Com- mission that he was willing to amend the proposal so as to in- clude 'only permissible devel- opment on site'. Nevertheless, the said request was ignored by the Commission and the latter went on to reject the applica- tion; 2. Applicant was a building con- tractor who was in dire need of an area where to park his heavy vehicles at night time close to his residence that was 'con- structed legally on site'; In reply, the Authority reiterated its strong opposition to the appli- cation. The Tribunal was reminded that it was completely up to the Planning Commission as to wheth- er to grant the deferral. Moreover, it was alleged that the site featured various illegalities which included the construction of various rooms without prior authorisation as well as the dumping of scrap of construc- tion material. In addition, the Authority held that the presence of a residence does not give a right to having a parking area for heavy vehicles in a rural area. As a final point, the Authority held that in trying to amend his proposal, applicant was admitting that the Au- thority was correct in refusing his application. In its assessment, the Tribunal ob- served that applicant's intentions were to construct a fodder store, park his heavy vehicles next to his own residence and plant additional trees. The Tribunal noted that the Au- thority signalled no objection in rela- tion to the residence and the nearby structures which applicant indicated as having existed prior to 1978. It was further held that the land adjacent to applicant's dwelling con- sisted of a wide disturbed access. The Tribunal saw that the applicant's proposal was acceptable subject to the heavy vehicles being parked in the said 'disturbed' location. On the other hand, the Tribunal considered that the proposed fodder store was not justified. The Authority was ordered to issue the permit subject to the removal of another room which was found to be illegal, and rehabilitating the re- maining substantial part of the site with soil. Planning application 'trimmed' to what was legally established and environmentally compatible