Issue link: https://maltatoday.uberflip.com/i/1201983
maltatoday | SUNDAY • 19 JANUARY 2020 17 LAW & PLANNING Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates SINCE the plea of res judicata is meant to stop an action from being decid- ed by a Court, it must be interpreted restrictively, such that in the case of doubt the judge should decide against this plea. This was held by the First Hall of the Civil Court in the case Joseph Zammit et. vs Reverendu Dun Karm Busuttil on the 8th of January 2020 presided by Mark Chetcuti. The Court heard the pleas by the plaintiff who had previously been in Court against the same Dun Karm Busuttil on an issue regarding the di- vision and assignment of a property. According to a judgement by the Civil Court on the 7th of July 2010, it was decided that the plaintiffs were debtors of the defendant and that the division of the property should take place. In the judgement on the 24th of May 2016, the Court ordered the plaintiffs Zammit to pay the tax expenses owed for the division, the expenses for the curators and other judicial expenses. The couple did not appeal from these decisions. In the new application, the plaintiffs complained that the contract of divi- sion was published without their pres- ence and that the shares of the parties were not equal. Therefore, they pleaded to the Court to revoke and annul the present divi- sion contract and to nominate a legal expert to value the property, in order for a new and fairer contract to be drafted. The defendant held that the case was already res judicata, and therefore that it had already been decided, and pleaded for the Court to reject the ap- plication by the couple. The Court explained that in line with article 730 of the Code of Organ- isation and Civil Procedure, the plea of res judicata has to be heard and decided on separately from the rest of the pleas as it is a preliminary plea. It was held that in order for the plea of res judicata to be accepted, it must be found that the present case has the same object (eadem res), the same parties (eadem personae) and the same merits (eadem causa petendi) as a judgement which has already been decided. All three elements must subsist in order for the plea to be accepted and for the new application to be rejected. By reference to the judgement Ra- bat Construction Ltd vs Cutajar Con- struction Company Ltd (2002) the Court explained that in relation to having the same object, the new case must incorporate that the requested object in the new case be identical to that in the preceding one. In relation to this the Court stated that in the previous judgement the court had established already that a debt was due to the defendant and es- tablished the amount of the debt due by the couple. The judgement also dealt with how the property was to be divided and technical experts have already valued the property, to which the couple put forward no appeal. In relation to the requirement of eadem personam, the Court noted that the parties in all three applica- tions were the same. Finally, in relation to the require- ment of eadem causa petendi, the Court held that what is being asked for in the plaintiffs' pleas is identi- cal to what the first two Courts had already decided on, which was, to establish how the property was to be divided. The Court could not, therefore, re-examine this plea since it had al- ready been decided and the couple had not appealed from that judge- ment either. The Court, therefore, concluded that there was nothing left to value that had not already been valued and divided, so much so that the First Court had ordered that the rest of the property which had not been decided on remain in common. Therefore the Court accepted the plea of res judicata and ordered all costs to be paid by the applicants. AT issue was a planning application which envisaged the sanctioning of various internal alterations to a groundf loor level maisonette which led to its subdivision into two one bedroom units. Furthermore, the proposal also en- visaged the change of use of another maisonette situated within the same block to an office. The site was locat- ed within the residential zone of Ba- har ic-Caghaq. Insofar as the proposed office was concerned, the case officer observed that it occupied an area of 54sq.m, hence considered acceptable in terms of policy CG 07 of the Central Mal- ta Local Plan, which policy allows for the introduction of new offices within residential areas so long as the rela- tive floorspace is less than 75sq.m. More so, applicant was exempt from adhering to the standard 'access for all requirements', also because the floor area was less than 75sq.m. Not- withstanding being small in size, the case officer also observed that the new dwellings conformed with the statutory floor area requirements (a dwelling is required to have a mini- mum floor area of 55sq.m so as to be considered habitable). In addition to this, the dwellings were found to en- joy adequate outlook. This being said, the officer was con- cerned with the fact that, in all, the site would have 17 apartments, four of which would occupy a floor area which was more than 55sq.m but less than 90sq.m. This meant that 23% of the units in the block were regarded as one bed- room units. The case officer underlined that ac- cording to Policy P32 of the Develop- ment Control Design Policy Guidance and Standards 2015, the maximum threshold for single-bedroom units was set at 20%. In this instance, the proposal was clearly in violation of the said thresh- old, although the difference was slight (namely, 23% compared to 20%). Against this background, the case officer moved on to recommend that the proposal should be rejected by the Commission. In reply, the architect entrusted with the planning application ac- knowledged that his proposal was not exactly in line with policy demands. However, the architect argued that if one had to examine 'the block as a whole', 20% of 17 units was equiv- alent to 3.4 units. Even then, the Commission was reminded that the maisonette that was supposed to be subdivided into two one bedroom common parts were actually three bedroom units. As a final point, the architect em- phasized that his client's application had to also be assessed in the context of being located in an area which is popular for 'renting flats to students studying in Sliema and the St Julian's area'. When the case was referred for a de- cision earlier this week, the Commis- sion analysed the proposed drawings, noting that 'there shall be no more than five units in the block'. The Commission held that, after all, this was 'compliant to Policy P32' and decided to remit the case to the Di- rectorate in order to be able to pre- pare the relative standard conditions. Meanwhile, a final decision shall be taken by the Commission on the 3rd February. Court outlines the essential elements needed for a judgement to be found "res judicata" Capping the number of one bedroom units LAW PLANNING Dr Robert Musumeci is an advocate and a perit having an interest in development planning law