Issue link: https://maltatoday.uberflip.com/i/1531391
8 maltatoday | SUNDAY • 12 JANUARY 2025 OPINION & LAW Law Report THE Developer must bear the expenses for reconstructing a common party wall when the height proposed in the development can- not be supported by the common wall. This was held in the final judgment given in the acts of the warrant of prohibitory in- junction of Maria Dolores Bartolo and Fran- cis Publius Grixti vs Architect Christopher Tabone, Francesca Giovagnorio and Edward Borg on 6 January 2025. The Court was pre- sided over by Judge Henri Mizzi. The parties both own properties which are adjacent to one another in St Paul's Bay. The Defendant Francesca Giovagnorio obtained a planning authority permit to drop the roof of a first-floor maisonette and to build 5 addi- tional storeys including a penthouse, result- ing in seven storeys from street level. The plaintiffs expressed their concern that the developer was going to build on the existing common party wall and increase its height, when such wall is not strong enough to sup- port the additional weight of the additional storeys. On 5 December 2024, the plaintiffs present- ed a court application requesting the Court to stop the defendants from carrying out any construction works at the site. They claimed that the defendants are assuming that the ex- isting wall has concrete foundations when in fact the wall is old with an unstable founda- tion, and if the defendants continue with the construction works, the allowable bearing ca- pacity of the wall will be exceeded. In their re- ply, the defendants claimed that the element of irremediable damage was missing and that damage such as cracks can be fixed. The de- fendants also offered the plaintiffs' tenants temporary alternative accommodation until the construction works are completed. The parties agreed to appoint Professor Torpiano as the Court Expert to analyse the current state of the building, the common party wall between the properties, and the foundations of the same wall, to determine whether the method of construction which is being used by the defendants can cause damage to the plaintiffs' property and dan- ger, and if in the affirmative, what type of damage and danger and what measures can be taken to reduce the amount of damage and to avoid danger. In his report, Professor Torpiano stated that he is not convinced that the defendants can demonstrate, with a level of certainty that one would expect in current structural engi- neering, that the proposed building meets all the criteria of the required contemporary "standards". He also stated that it is difficult to minimize the damage that could happen from the deformation of the rock because the defendants do not own the underlying maisonette where the bottom part of the common party wall sits and therefore, they cannot make an intervention to strengthen or consolidate the rock. He concluded that there is a strong possibility of damage in the existing property that cannot be mitigated. During the final hearing, the plaintiff's lawyer made reference to Article 415 of the Civil Code, Chapter 16 of the Laws of Malta, which states that "Where the common wall is not in a condition to sustain the additional height, the person desiring to raise its height must have it entirely reconstructed at his ex- pense, and the additional thickness must be taken on his own side". He reiterated that the common party wall cannot support the additional weight that the defendants would like to add to it. However, the defendants said that they were ready to take measures such as adding lateral beams to minimize the risk of damage. In its decision, the Court said that the plain- tiff's right was proved prima facie and stated that stopping the defendants from increasing the height of the common party wall was the only way in which the plaintiffs' right to have Article 415 of the Civil Code observed can be protected. Therefore, it proceeded to uphold the warrant of prohibitory injunction and concluded that the defendants can only car- ry out works which do not involve the raising of the common party wall and those that are necessary for reasons of health, stability and removal. Developer to bear expenses for reconstructing a common party wall when the bearing capacity of the wall is exceeded JODIE DARMANIN Junior Associate Mifsud & Mifsud Advocates A year in review: Looking forward with determination IT has been one year since the Prime Minister entrusted me with the trans- port, infrastructure and public works portfolio. Looking back is a useful prism to look through if you want guidance. It can push us to look ahead with the belief that we can tackle any situation because we are now wiser. However, it can also cause frustration over failure to achieve what might have seemed like a promis- ing prospect. As a doer, the former ap- proach is the driving force behind every project that my ministry has taken on in the last year. It is imperative to acknowledge that 2024 prepared the groundwork for many successful aspirations and pro- jects. Most notably, we saw a collective in- itiative for the pedestrianisation of key town and village squares to promote communal spaces. The Vjal Kulħadd Scheme, which has now received 40 applications, is testament to this. The government provided the platform for NGOs and local councils to curate thriving green spaces that promote sus- tainable methods of transport. The will to promote sustainable uses of transport is also accentuated by the record 30% increase of passengers that made use of the ferries between Mal- ta's ports. Our vision is that the same Mediterranean Sea that envelopes Mal- ta is our best commodity and transport is certainly no exception. The public's continuous use of sea ferries confirms this belief. Comparatively, 2025 will see the am- plification of everything that com- menced last year. When it comes to pollution mitiga- tion, the short to medium term propos- als introduced in 2024 will be imple- mented over an 18-month period, with the first measures to be introduced in April. Additionally, works on the highly anticipated race track at Hal Far are ad- vancing at a fast pace. The maritime sector is an important economic pillar given Malta's strategic geographic position in the Mediterra- nean. The islands are an ideal hub for ship and yacht owners. Testament to this is the strength of the Maltese mar- itime flag – Malta has the largest ship register in the EU and the 6th largest in the world. This year, we aim to con- tinue ensuring that Malta remains the top choice the world over for prospec- tive yacht owners and continue imple- menting our vision for the superyacht industry. Additionally, the Maltese aircraft reg- ister has seen continuous growth over the last few years. In 2025, we will continue to ensure that Malta is the first jurisdiction of consideration for aviation companies looking to expand their operations or set their baseline in Malta. In the com- ing weeks, we will introduce an aviation project which will see a cargo compa- ny increase its operations in Malta and register a new large aircraft. It will also be the year for continued enforcement. More recently, a fifth of Y-plate vehicles that were not in com- pliance with regulations introduced in 2023 were ordered off the road. Cab hailing platforms are a crucial part of the economic cycle. They were certainly essential during the COV- ID-19 pandemic for people who need- ed extra income. However, systematic attempts by companies to evade regu- lations that equally, leave an impact on our infrastructure, will not be tolerated. We may be a small country but people require a collective effort to solve our problems, away from jocular and pug- nacious tactics that only serve to deter our final goals. As minister, I look back at 2024 with satisfaction for the foundations we laid. However, 2025 is the year to look for- ward to with determination, knowing that our goals are ambitious and in- tended to bring about change. Chris Bonett is minister for transport, infrastructure and public works Chris Bonett