Issue link: https://maltatoday.uberflip.com/i/298224
47 maltatoday, SUNDAY, 20 APRIL 2014 Opinion A 2012 planning application for the "construction of a swimming pool" in Bidnija was turned down by MEPA's Environment and Planning Commission after it held that the proposed layout is not in accordance with the provisions of the Development Control Policy - Swimming Pools Outside Development Zone (January 2000). The Commission underlined that the policy specifically aims to "contain" the spatial spread of development, minimise the take- up of land and limit the extent of visual intrusion. In this case, the Commission observed that the proposed swimming pool is located 20 metres away from applicant's residence, a distance that was deemed excessive. Applicant appealed said decision before the Environment and Planning Tribunal, insisting that despite the policy document (in this case, the Development Control Policy – Swimming Pools Outside Development Zone (January 2000)) stipulating that "swimming pools should be sited as close as possible to an existing building and limited in size", the policy fails to specify whether the "existing building" refers to applicant's own residence. But even so, the applicant observed that the distance from the neighbouring property totaled 6.5 metres, adding that such distance is in keeping with the scope of the policy. The Tribunal, on its part, upheld the view taken by the Authority, confirming that the swimming pool policy aims to limit fresh land being taken up. With the same reasoning, the Tribunal concluded that distance requirements were to be assessed in relation to applicant's residence within the owned site precincts, since a "long" distance is tantamount to additional land take up in order to accommodate pathways linking the residence with the pool area. On this basis, the Tribunal reiterated the Commission's decision. In turn, applicant appealed the Tribunal's decision before the Civil Courts, insisting inter alia that the Tribunal made a wrong application of the law since the policy does not state that pools must be necessarily located close to applicant's residence. In its assessment, the Court agreed with applicant, noting that the Tribunal's assertions were unfounded. The Court referred to the policy, which expressly provides that pools must be located "within the curtilage of existing building", "curtilage" being defined as "the open space situated within the common enclosure belonging to a dwelling house". The Court took exception to the conclusions reached by the Tribunal since the policy does not mention that the pool must be located adjacent to the residence. Consequently, for the above reasons, the Court said that the Tribunal's conclusions were anchored on a wrong application of the law. On this reasoning, the Court annulled the Tribunal's decision and ordered a fresh examination of the case under review. robert.musumeci@rmperiti.com Robert Musumeci MEPAwatch Tribunal's assertions legally unfounded since the ODZ pool policy does not stipulate any distance requirements I n the case Darren and Sharon Cuschieri et vs. Jane Muscat et, the First Hall Civil Court, presided over by Honourable Madame Justice Jacqueline Padovani Grima, on 9 April 2014, was faced with the decision as to whether the defendants were to appear on a deed of sale due to a particular clause that was included in the promise of sale agreement signed by the same parties a few months prior. In their sworn application, the plaintiffs stated that on 19 December, 2005, they had entered into a promise of sale agreement with Jane Muscat, who had bound herself to sell a property situated in Senglea and in return, the plaintiffs had paid the sum of one thousand Maltese Pounds as a deposit. The plaintiffs, on 24 May 2006, had summoned the defendant with a judicial letter to enter into the final deed of sale. Jane Muscat, however, did not appear on such deed and as a result, the plaintiffs asked the Court to order the defendant to appear on the final deed of sale and to appoint a Notary Public to publish such deed according to law. Jane Muscat, who had appeared on the promise of sale agreement in her name and on behalf of her sisters, on the other hand stated that the promise of sale agreement is not valid at law and therefore the pleas of the plaintiffs are legally and juridically unsustainable. The First Hall Civil Court, after listening to the evidence of the case, made reference to Article 1357 of the Civil Code, which holds that: "The effect of such promise shall cease on the lapse of the time agreed between the parties for the purpose or, failing any such agreement, on the lapse of three months from the day on which the sale could be carried out, unless the promisee calls upon the promisor, by means of a judicial intimation filed before the expiration of the period applicable as aforesaid, to carry out the same, and unless, in the event that the promisor fails to do so, the demand by sworn application for the carrying out of the promise is filed within thirty days from the expiration of the period aforesaid." From the facts of the case, it resulted that the promise of sale was valid for a period of three months, a period that had to be automatically extended for a further three months in the event that the final contract could not be finalised. The plaintiffs had sent a legal letter on 24 March 2006 and asked Jane Muscat to register her sisters with the Inland Revenue Department and provide their foreign income tax number to the Department as required by law. Jane Muscat replied to such letter and stated that the promise of sale was not valid and she sent a cheque of one thousand Maltese Pounds representing the deposit paid by the plaintiffs. The plaintiffs subsequently sent a judicial letter on 24 May 2006 and asked Jane Muscat to appear on the final deed of sale and to obtain the income tax number of her sisters, who were residing in the United Kingdom. Jane Muscat again refused to appear on the final deed and stated that the promise of sale had expired after three months, as an extension of such promise of sale was never registered with the relevant departments. Furthermore, the defendants also held that the judicial letter was submitted after the promise of sale had expired and Article 1357(2) of the Civil Code requires it to be submitted before the expiration of the period applicable. The Court noted that the Notary who registered the promise of sale did in fact fail to register the extension as required by Legal Notice 7 of 2004. The Court considered that even though the promise of sale held that the term of three months was automatically extendable, the Legal Notice aforementioned requires such extension to be notified with Commissioner of Inland Revenue. Judge Padovani Grima held that the Notary in the application filed with the Inland Revenue Department indicated that "the promise of sale is valid up to 19/03/2006" and therefore it clearly emerged that the intention of the parties was to sign a final deed of sale within three months. The Court said that the judicial letter had to be filed before the first three months expired, while the sworn application had to be filed before 30 April 2006. In view of this fact, the plaintiffs did not observe Article 1357(2) of the Civil Code and as a result the Court decided to reject the pleas of the plaintiffs. The defendant stated that the promise of sale agreement is not valid at law The defendants also held that the judicial letter was submitted after the promise of sale had expired and Article 1357(2) of the Civil Code requires it to be submitted before the expiration of the period applicable Court report Joseph Mizzi YOUR FIRST CLICK OF THE DAY www.maltatoday.com.mt Extension to a promise of sale agreement must be registered with Inland Revenue Tribunal's decision to refuse ODZ swimming pool based on a wrong application of the law