Issue link: https://maltatoday.uberflip.com/i/1213458
maltatoday | SUNDAY • 23 FEBRUARY 2020 15 LAW & PLANNING Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates WHERE an executive warrant does not rest on an executive title, such as in the case of an executive warrant after a ju- dicial sale by auction, then the provi- sions of Article 258 of the Code of Or- ganisation and Civil Procedure, do not apply and the warrant can be executed at any time without the giving of prior notice to the debtor or the asking for Court authorisation. This was held by the Court of Appeal presided by Hon. Judge Joseph Azzo- pardi, Hon. Judge Joseph R. Micallef and Hon. Judge Tonio Mallia in the case Bank of Valletta p.l.c vs. Saviour u Antoinette konjugi Micallef on the 18th of February 2020. The Court heard the pleas of the appellants who had a warrant of evic- tion from immovable property issued against them on the 7th of April 2010 by Bank of Valletta p.l.c. After losing the case before the First Court, they appealed based on the fact that they claimed that the executants of the warrant should have asked the First Court whether they could exe- cute the warrant ten years after it was issued. It was explained that the spouses had two properties sold by a judical sale by auction in favour of the bank for a debt owed. The bank had bought both properties 'animo compensandi' and obtained a warrant of eviction against the spouses in 2010, however it executed the war- rant on the 15th of October 2019. The spouses instituted proceedings to revoke the warrant on the basis of Article 258 which states that in the case of executive titles, after a certain period of time enforcement may only be made upon demand by application to the competent court. Nonetheless, the Court rejected the spouses' plea due to the fact that it was explained that Article 258 of the Code of Organisation and Civil Procedure speaks about the enforcement of ex- ecutive titles such as judgements and contracts whereas in this case the bank had executed a warrant on the basis of a judicial sale by auction which is not an executive title. The Bank pleaded before the Court of Appeal that the spouses' claim was vexatious and simply done to frustrate the process of justice. It was stated that for the past ten years the spouses had resisted the execution of the warrant by instituting a number of judicial proceedings to circumvent their eviction from the properties. The Court of Appeal held that in or- der for a warrant to be challenged, an examination of the form of the warrant had to be done, in that if the warrant has been executed in a manner which is in accordance with law then it can- not be attacked. This is because the Court cannot en- ter into the merits of the case itself and therefore the warrant can only be re- voked if it is issued by the wrong court or else is not drawn up in the form which is required by law. However in this case, the warrant issued by the bank was legally correct in this regard. It was also held that in such cases the Court can only revoke the warrant if it is illegal, but cannot suspend its effects. The suspension of the effects of a warrant must be pleaded in accord- ance with Article 156 of the COCP. The Court held that the spouses nec- essarily knew and were legally notified about the judicial sale by auction, so much so that they started proceedings to suspend the sale and lost. It was confirmed that the law does not require the creditor to inform the debtor on when they will be executing the warrant, and for this reason the warrant and its effects are legally jus- tified. Therefore the Court rejected the ap- peal with costs against the spouses Mi- callef. AT issue was a planning application for the construction of a rabbit farm hav- ing a footprint of circa 190sq.m and a height of 4 metres. The proposed draw- ings showed two rabbit units, an office, a food store, a kitchenette, a manure clamp and a generator room. A 0.5 metre passage was also to be provided along the periphery of the building. According to applicant, the farm would accommodate 55 female breed- ing rabbits. Applicant further submitted that, at the moment, he was 'helping out in running of a registered rabbit farm to gain experience'. Moreover, a declaration by the own- er of a rabbit slaughterhouse was submitted in order to pinpoint the location where 'applicant's produce' would be eventually slaughtered. Applicant's site was located outside the development zone of Zebbug. As expected, the case officer immediately observed that the site formed part of an Area of Agricultural Value as des- ignated in the North West Local Plan (NWLP). The case officer also held that by way of principle, no development was to be carried out in this area unless the proposed interventions were in- compatible with urban uses and no alternative solutions were available. Having said all this, any develop- ment in rural areas should be located away from protected areas and areas of high landscape sensitivity. Preferred locations include Areas of Containment or previously developed land or existing buildings. However so, the Environment & Re- sources Authority (ERA) noted that the proposal was exempt from the En- vironmental Impact Assessment Reg- ulations. After noting that ground disturbance in this area could uncover cultural heritage features that may necessitate amendments to the proposed draw- ings, the Superintendence for Cultur- al Heritage did not object to the pro- posed development if works were to be archaeologically monitored. On its part the Agriculture Advisory Committee (AAC) noted that the pro- posed waste management layout was in conformity with the current regu- lations (in this case, Subsidiary Legis- lation 549.66). Moreover, the AAC raised no con- cern with regard to the the take-up of agricultural land. Even so, the AAC was, however, not convinced that applicant had sufficient technical knowledge or experience in the sec- tor. Nevertheless, applicant submitted further information at a later stage to show his genuine intentions, follow- ing which the AAC withdrew its pre- vious objections. On the basis of these latest devel- opments and after having seen that the interventions were to be visually screened, the Planning Commission gave its approval to the proposed de- velopment. When a warrant does not rest on an executive title it can be executed any time and without prior Court authorisation Rabbit farm permitted after applicant satisfied AAC requests LAW PLANNING Dr Robert Musumeci is an advocate and a perit having an interest in development planning law