Issue link: https://maltatoday.uberflip.com/i/1204548
maltatoday | SUNDAY • 26 JANUARY 2020 13 LAW & PLANNING Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates WHEN one signs an agreement that would be an indication that he or she would be agreeing to all the terms of the agreement. This was held by Magistrate Dr Brigitte Sultana on 21 January 2020 in J Zammit Limited -v- Sophie Bay Mawby. The plaintiff company filed an applica- tion wherein they asked that the defen- dant pay €7,719.32 which refers to the balance of the price of a car sold to her and storage fees. The defendant replied that this sum is not true because the car she bought was defective and she has actually given the car back. The Court pointed out that the plaintiff had declared that the defendant did pay the storage costs and the car and there- fore reduced the claim to a little over than €4,000. The Court analysed the evidence brought before it and saw that the de- fendant had purchased the vehicle in November 2015 and on the day signed the bills of exchange and a hire purchase agreement. She mentioned that the agreement was not explained to her, but the evidence showed that she had purchased another car from the plaintiff company on a previ- ous occasion and what she signed in 2015 was the same agreement. On this occasion, the agreement was explained. The defendant had instituted proceedings before the Consumer Claims Tribunal and from that judgement it transpired that the plaintiff company had carried out a full service and the defen- dant had gone on a test drive. On the day she took possession of the vehicle, it had to be pushed off the Gozo Ferry, as it failed to start. The plaintiff company reimbursed the repair expenses in Gozo, however, the car developed more problems and was taken to the plaintiff company. The com- pany repaired the car, but the defendant failed to pick it up. The plaintiff company claimed that the car required minor re- pairs. Magistrate Sultana held that the main defence of the defendant was that the ve- hicle was defective and therefore a basis of an actio rehabitoria, wherein the buy- er would file an action within six months asking the court to order that the vehicle be restored or else have the price paid refunded. This type of action cannot be used as a defence, but an action has to be instituted by the defendant. The Court quoted from a previous judgement Zammit Automobiles Ltd. vs Charles Bezzina, decided on 30 June 2003, which held that the buyer's remedy for a latent defect is by filing an action where- by the court will either order the return of the thing or the price refunded or else an action to keep the thing and receives a reduction of the price. This cannot be done by means of a plea in the statement of defence. In this case the Court pointed out that the defendant failed to file the action in terms of Article 1431 of the Civil Code. The defendant had six months to file these actions but only raised the issue when she was faced with the plaintiff company's claim for payment. The Court then held that the relation- ship between the parties is regulated by the hire purchase agreement of Novem- ber 2015. Clause 5 of the agreement regu- lates the risks and warranty which reads: "The Hirer agrees that he shall bear all risks relating to the Motor Vehicle as from delivery in accordance with the fore- going clauses … The Parties agree that the Motor Vehicle has been seen, tested and inspected by the Hirer and found to be to his complete satisfaction". Once the defendant signed this agree- ment, "she was in essence declaring that she had indeed agreed to all the clauses stated therein ……" The defendant concluded the purchase and bought the vehicle, which was ser- viced prior to the sale. The Court then moved to reject the defendant and ordered that she pays the balance due. AT issue was a planning application for the extension of a groundfloor ware- house. The proposed extension envis- ages a total floorspace of 238sq.m on both first and second floor (in the case of the second floor, the proposed exten- sion was to be receded from the front building alignment). In all, the total commercial area would occupy an area of 353sq.m. Incidentally, planning permission to use the ground floor as a garage and construct an over- lying floor was issued way back in 2005, however no construction appears to had been taken in hand. The premises in question are situated in a mixed-use area touching the Gudja boundaries. Any further development in the said area is regulated by Poli- cy SMGU 03 of the South Malta Local Plan, which policy allows further indus- trial activity and warehousing. This implies that no objections were envisaged in terms of the proposed use. Insofar as the proposed building height (9.4 metres), this was indeed considered to be less than what was permitted by policy (namely 10.5 metres). Hence, the proposal was deemed ac- ceptable also from this point of view. Moreover, a Fire Safety and Ventila- tion Report to show that the building was to be equipped with a reasonable level of safety features in the eventuality of a fire breakout was also submitted. Having said all this, the case officer had highlighted two particular points: First, the structure on the topmost level occupied a footprint of more than 36sq.m. This ran counter to Policy P39 of the the Development Control Design Policy, Guidance and Standards 2015 (DC15) which states that "In the case of properties having a street façade height up to 10.5 metres, a roof structure on- ly, not exceeding 36sq.m and an overall height of 3.4 metres measured external- ly, will be permitted having a setback in line with the provisions in Policy P35". Secondly, the officer noted that the aggregate commercial area was equiv- alent to 353sq.m, meaning that two parking spaces were required (based on the 1 per 150m² rule applicable for warehouses). Yet, the proposed draw- ings made no such provision. Against this background, the case officer recommended that planning permission should be denied since the proposed development would remove the existing parking spaces for the building, hence in conflict with The- matic Objective 10.6 of the Strategic Plan for Environment and Develop- ment Policy. Additionally, the propos- al ran counter to policy P39 of DC15 as explained above. When the case was referred to the Planning Commission for a decision, the latter however held that the case officer was wrong to assert that the proposal would result in a loss of park- ing. This was due to the fact that the 2005 permission was, in effect, never utilised. Consequently, it was pointless to argue that a parking area was being lost. More so, the Commission noted that the im- mediate area was characterised by oth- er commitments having receded floors with an area of more than 36sq.m. According to the Commission, this was a material consideration ought to be considered in its assessment. In the circumstances, applicant was directed to submit fresh drawings providing a parking area to accommodate two cars as required by policy. On his part, applicant adhered to this request and permission was issued ear- lier this week. When signing an agreement, you are bound by that agreement Material considerations come into play LAW PLANNING Dr Robert Musumeci is an advocate and a perit having an interest in development planning law