Issue link: https://maltatoday.uberflip.com/i/1516411
12 maltatoday | SUNDAY • 25 FEBRUARY 2024 LETTERS & LAW Letters to the Editor Law Report Hiding behind facades? ON the same day that the Planning Au- thority flaunted a circular (3/24) meant to design facades for Gozo's distinctive- ness, another circular was issued (2/24) delineating a process for converting building height limitations – previous- ly specified in terms of the number of floors – into overall heights measured in metres. Historically, Local Plans sanctioned be- tween 1995 and 2006 contained constraints on building heights articulated as the maxi- mum number of floors permissible for each urban block. Nevertheless, discrepancies in terminologies existed across different Local Plans. These plans were complemented by supplementary documents that provided interpretations and policy directives re- garding building heights in metres but still emphasised adherence to the allowable number of floors. In November 2015, a shift in approach occurred with the Development Control Design Policy Guidance and Standards, notably Policy P35, advocating for the regulation of building height in urban areas based on numerical dimensions of overall height and facade height measured in me- tres. Consequently, Annex 2, supporting Policy P35, was introduced to facilitate the conversion of building height limita- tions from the number of floors to overall heights in metres, entailing revisions to numeric dimensions for facade heights. This supplanted the previous Policy and Design Guidance from 2007. Subsequent interpretations and applications of these guidelines by various development man- agement institutions since 2015 were infor- mally established through practice. The proposed circular 2/24 now aims to formalise this conversion of building height from Local Plans approved between 1995 and 2006 into overall heights in metres, integrating these converted limitations into the Local Plans Interpretation Document as official guidance. This starkly contrasts with recent cel- ebrations by the Ministry for Gozo and Planning regarding victories in preserving globigerina facades. Instead, it underscores a disregard for the primary concern: street- scape fragmentation due to pencil develop- ment, rendering arguments based on a net amount of floors obsolete and potentially exacerbating the issue by allowing for greater density within confined spaces. Unfortunately, a significant overhaul of local plans seems off the table, with author- ities citing concerns of 'great injustice' and the protection of property rights. Prime Minister Robert Abela, for instance, has argued against such revisions, asserting that they would cause 'great injustice' and stating that the government 'cannot revoke people's property rights' In 2021, he told The Malta Independent that the local plans 'created rights for property owners and it is not as simple as saying that the govern- ment will change the local plan. Similarly, Opposition leader Bernard Grech has given conflicting information. During an inter- view on Times of Malta he emphasised the sanctity of existing property rights, stating that 'we cannot touch the rights that already exist', while at another point he stated that, 'we need to change the rules, we need to fix the rules, and we then need to enforce them.' However, it is essential to recognise that in Malta, the right to develop ultimately rests with the State, not individual land- owners, as explicitly outlined in the coun- try's Planning Act. This fundamental principle underscores the responsibility of policymakers to pri- oritise sustainable development practices and the collective well-being of communi- ties over individual interests. It highlights the imperative for policymakers to adopt a forward-thinking approach that fosters responsible development while preserving the essence of what makes Gozo truly spe- cial. Failure to address these pressing issues not only risks irreparable harm to Gozo's architectural, cultural and historical treas- ures but also undermines the long-term prosperity and quality of life for its resi- dents. Therefore, we call on all interested parties to act decisively to safeguard Gozo's unique heritage and pristine landscapes for future generations, ensuring a harmonious balance between development and envi- ronmental conservation. Għawdix NGO CONSUMER contracts which are unfair and in violation of consumer protection laws will be declared null and void. This was highlighted in the recent Court of Appeal decision in F(Advertising) Ltd vs Joseph Borg, delivered on 15 February, 2024. This judgment marks a significant development, underscoring the strength of consumer protection laws in Malta and the fundamental principles of good faith within Maltese contract law. Over the past few years, Maltese courts have been actively involved in resolving a series of disputes centred on property ad- vertising contracts. F(Advertising) Ltd, op- erating under the name Owners Best, is re- nowned for its promotion of properties for sale through various media channels such as their magazine, website, and television platform. However, their contractual prac- tices have faced repeated challenges, with courts consistently finding fault in their advertising services, deeming them unfair and in violation of Maltese consumer pro- tection legislation. The case at hand began when Owners Best was engaged by the defendant to ad- vertise and sell their property through the company's services. Notably, it emerged that the property owner had also enlisted the services of other estate agents concur- rently. Owners Best proposed two adver- tising options to the defendant: an 'exclu- sive' package, entailing sole advertisement with Owners Best for a fee of 3.5% of the property's price, and a 'non-exclusive' package, permitting the engagement of other recognised estate agents, subject to specific conditions. These conditions in- cluded timely notification to Owners Best and granting them the right to be present during the promise of sale, for a fee of 4% of the property's price. The defendant opted for the non-exclu- sive option, as they were already utilising the services of other estate agents. Subse- quently, the property was successfully sold through these alternative services, prompt- ing the defendant to contest the payment of the agreed percentage to Owners Best. The defendant argued that it would be un- fair to remunerate Owners Best when the sale did not result from their services. Both the initial court ruling and the sub- sequent Court of Appeal decision sided with the property owner, finding Owners Best's contracts to be unfair and in vio- lation of consumer protection laws. The courts particularly emphasised the dispro- portionate payment obligations imposed on the vendor. According to the contract, payment was due irrespective of the actu- al performance of the advertising services, which constituted a one-sided obligation. These terms are deemed 'prohibited,' par- ticularly those that required consumers to pay disproportionately high sums in breach of their obligations or which specify compensation for the trader without pro- viding similar compensation for the con- sumer. Moreover, the contract imposed an immediate and final commitment on the consumer upon signature, with conditions dependent solely on Owners Best's will. Furthermore, the courts found dispro- portionality in the contract terms, as the vendor could only be released from pay- ment obligations if the property was sold through listed estate agents, subject to spe- cific conditions. This imbalance was evi- dent given that the trader could non-per- form with impunity, while minor failures by the property-owner would result in breach of contract and liability for the contract sum. Such conditions were con- sistently deemed unjust by and were con- sidered disproportionately onerous by the courts, especially considering the severe consequences for the consumer's failure to comply. Several other courts have found that these types of contracts are misleading, and observed several grounds for arguing breach of good faith. Owners Best repre- sented itself as an estate agent, despite its true nature as an advertising company, with a price range for services identical to that of estate agents. Additionally, the payment was required on the day of the preliminary agreement, and an exhaustive list of recognized estate agents was provid- ed, creating a misleading impression that the consumer is engaging an estate agent. In opting for the 'open-deal', an ordinary consumer could reasonably assume that no fees would be incurred if the buyer was not introduced by the trader, as is custom- ary in estate-agent agreements. The recent Court of Appeal decision in F(Advertising) Ltd vs Joseph Borg affirms the development of Maltese consumer protection jurisprudence, confirming the principle that unfair consumer contracts are null and void. Such contracts, commonly known as standard form contracts, are required to comply with the Consumers Affairs Act and EU Law, which prohibit various terms and clauses which are deemed unfair. If these terms are present, and the object of the contract cannot be concluded without them, then the contract will be considered invalid and unenforceable. Despite Malta's legal tradition rooted in the theory that contracts legally and volun- tarily entered into are binding, where the annulment of a contract is an extraordi- nary occurrence, consumer protection has superseded this traditional notion of Mal- tese civil law. EU Law acknowledged that consumers, given their limited contractual involvement in standard form agreements, are the weaker party to consumer con- tracts. The aim of consumer protection legisla- tion is to create a level playing field. Unfair consumer contracts null and void JODIE DARMANIN Mifsud & Mifsud Advocates