Issue link: https://maltatoday.uberflip.com/i/1188980
| SUNDAY • 1 DECEMBER 2019 maltatoday 15 WHERE the law states in Article 281 of the Code of Organisation and Civil Procedure that a warrant can be attacked for a "valid reason", it has been established that a warrant can only be attacked on the basis of a mistake or error in its form on the basis of this article. This was held by the First Hall Civ- il Court on the 22nd of November 2019 in the acts of the case Engerer et. Vs. Ebejer et. Presided by Hon. Judge Toni Abela. The Court heard the pleas by the defendants who were notified with a garnishee order against them by spouses Ebejer for the sum of EUR3,482.24. The parties had previously under- gone proceedings and the spouses Engerer won, and were given per- mission by the Court to perform works at the expense of the plain- tiffs, should they be in default. They held that the plaintiffs were asking for payment for the sum of works which went beyond what the Court had ordered in the sentence, and therefore the fees did justify an executive garnishee order. It was also held that in virtue of the sentence the repairs had to be done under the guidance of the technical expert, which did not occur. The Defendants, Ebejer, therefore asked the Court to revoke the garnishee order on the basis of Article 281 of the COCP. The plaintiffs held that the Court indeed authorised the spouses to perform the necessary works, in- cluding the changing of the roof, the placement of new membrane and repairs on the stairs since the plaintiffs were in default. They also argued that the sentence gave them no limits on expenses and that the technical expert was only to be involved if the repairs were going to be done by the spouses Ebejer. The Court decided that the de- fendants were requesting it to go into the merits of the case, which it could not do since this goes against the copious amounts of judgements explaining the function of the Arti- cle 281 of Chapter 12 of the Laws of Malta. It was explained that warrants can only be challenged on the basis of Article 281 if there is a defect in the form of the warrant or if it is execut- ed by the wrong Court. Quoting the case HSBC Malta vs Conchin (2011), the Court explained that the aim of the procedure in this Article was to challenge a defect in the form of the warrant itself which prejudices the client. Nonetheless, this does not mean that the merits of a warrant cannot be challenged, in fact the first few words of sub article 1 of the Article says that the article is without prej- udice to any other right given by the Code or any other law. However, in such cases the sworn application should be based on Ar- ticle 156 of Chapter 12. The Court concluded that it did not have the power to decide on the claims made by the defendant, Ebe- jer, for the reasons above. It was held that the warrant could only be examined on the basis of its formal elements which could not be challenged as there were no errors and the Court indeed had jurisdic- tion over the matter. The pleas were, therefore, rejected and the defendants were ordered to pay all legal costs. Court refuses to decide on the merits of an executive garnishee order LAW Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a development proposal to demolish an old townhouse and re- place it with a groundfloor shop and overlying dwellings. The site was located across Pretty Bay in B'Bugia. Once the Planning Commission saw that the build- ing qualified as a Grade 2 Scheduled Building, it decided to refuse permis- sion on the following basis: 1. The proposed demolition and modifications to the existing Grade 2 scheduled building 'visually altered' the existing streetscape resulting in the loss of historical value; 2. The proposed development was therefore not in the interest of the character of the area, hence in defi- ance of the Strategic Plan for Envi- ronment and Development; 3. The Superintendent of Cultural Heritage was objecting to the pro- posal. In turn, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that he should have been granted permission. In his appeal application, applicant (now, appellant) acknowledged that the Superintendent of Cultural Herit- age had objected to the proposal. Nevertheless, applicant pointed out that he had submitted new plans 're- taining the façade' which the Com- mission had not referred to the Su- perintendent of Cultural Heritage for reassessment. During the pendency of the appeal proceedings, applicant explained that he himself, had sought endorsement from the Superintendence, further to which the latter had signaled his no objection to the demolition of the internal walls and roofs subject to a number of conditions. Moreover, appellant pointed out that his site was sandwiched between two buildings of relatively recent ori- gin, insisting that his proposal only sought 'to harmonise with the adja- cent contemporary buildings'. In reply, the Authority reiterated its argument that 'the building in con- sideration was scheduled as a Grade 2 historical building'. It was recalled that the Superinten- dent had stressed about the impor- tance of preserving the visual integ- rity of the area. The Directorate also acknowledged that applicant was doing away with the demolition of the façade, however the proposal was still considered un- acceptable from a heritage point of view. In its assessment, the Tribunal ob- served that although the Commission had issued a refusal, it had directed applicant 'to submit fresh drawings to retain the street elevation and to obtain clearance from the Superin- tendent'. Meanwhile, the Tribunal noted that appellant had indeed secured a con- ditional no objection from the Super- intendent during the pendency of ap- peal proceedings. Against this background, the Tri- bunal ordered the Authority to issue permission. Permit issued after Superintendence of Cultural Heritage withdraws concerns LAW & PLANNING