Issue link: https://maltatoday.uberflip.com/i/373141
45 maltatoday, SUNDAY, 31 AUGUST 2014 A planning application for the construction of a residential farmhouse in Bidnija was submitted in 2001 and eventually approved in 2005 before the Planning Appeals Board. In 2009, the same applicant requested the Malta Environment and Planning Authority to sanction a number of structural variations, which permit was eventually approved at appeal stage (before the Environment and Planning Tribunal) in 2013. Following the issue of the second permit, a neighbour (who was a registered objector according to law) appealed the 2005 decision, insisting that the said permit was issued illegally and hence should be withdrawn in terms of Article 77 of Chapter 504 of the Laws of Malta. To support his arguments, the appellant alleged that the original permit was issued on the pretext that applicant is a full time farmer tilling more than 20 tumoli of land, when in fact this appears not to be the case. Appellant further alleged that official receipts showing yearly vegetable production were issued on behalf of a third party, which go to suggest that applicant is not a genuine farmer as purported to be. It was also pointed out that the permit was issued on the pretext that "the site chosen and the height of the building proposed are such as to ensure that the open country views that are enjoyed between two existing properties when accessed from the adjacent street located at a higher level (namely, the building of the objector) will be still enjoyed even if the proposed development is built" when allegedly, the country views can no longer be enjoyed by appellant. On his part, applicant reacted by stating that the Tribunal has no jurisdiction to entertain objector's request since a request for revocation was never brought forward (and discussed) before the MEPA board. But even more so, applicant's lawyer highlighted that the original permit was issued in 2005 and the request for revocation in terms of Article 77 was made in August 2013, namely more than five years later than required by law. In addition, applicant noted that the said Article 77 cannot be invoked in relation to permits emanating from a decision of the Tribunal. On a separate note, applicant held without prejudice that Article 77 (of Chapter 504) applies for permits that were issued after 2010, while Article 39A (of Chapter 356 which preceded Chapter 504) which was in force when the 2005 permit was issued, reserved the right to appeal only to applicants and precluded third parties from submitting an appeal when a permit is revoked. In its assessment, the Tribunal concluded that as the law stands, any third party has the right to submit a request for the revocation of a permit. Nevertheless, the Tribunal observed that the appeal under examination was made in terms of Article 77, which expressly provides that requests for permit revocation must be made within five years from the issuance of such permit. In this case, the original permit was issued in 2005 while the neighbour submitted his appeal in 2013. Against this background, the Tribunal held that the appeal was lodged "fuori termine" and thus abstained from probing further into the merits surrounding the case. Robert Musumeci is an architect who also pursued a degree in law robert@rmperiti.com T he First Hall of the Civil Court did not allow a company to purchase a vessel held in Malta after it incurred a number of debts. This was decided by Mr Justice Mark Chetcuti on 25 August, 2014 in the case Malta Towage Limited -v- mv Irmak. Malta Towage Limited filed an application asking the court to authorise that mv Irmak be sold to Britannia Shipping Limited, which is registered in the UK. The applicant company explained it is owed €197,609 which represents the sum the ship was condemned to pay to the captain and the crew in a judgment dated 13 July, 2012. The company managed to find a purchaser for the vessel and is seeking the court's approval for the sale. They also produced two valuations of the vessel, one for €55,000 and the other €60,000. Cassar Ship Repair Limited and Mediterranean Trading Shipping Company Limited objected to this sale, since they are also owed money by the vessel. They also objected at not being notified of Malta Towage's application for the sale of the vessel. Mr Justice Chetcuti held that the private sale of the vessel was permitted on 10 June, 2014, however this was attacked by Mediterranean Shipping Company Limited on the ground that the assignment of the debt of the crew's wages to Malta Towage is not known since the sum was removed, however, the crew were owed €197,609.40. The assignment of the debt took place before Malta Towage had the valuations of the vessel. Furthermore, Mediterranean Shipping was not informed of the agreement of sale between Malta Towage and Britannia Shipping, which two companies share the same shareholder and director. The procedure is similar to that existing in the UK. The difference is that in Malta a judicial sale or an authorised private sale extinguishes any debts. This is not so in the UK. The court commented that in these proceedings the court is not a spectator and has to make sure that there are two valuations of the vessel and that the sale is in the interest of all the creditors and that the price is reasonable. This requires that the applicant company act openly and transparently in such a manner that the court will not suspect that this procedure is being used to escape justice. It is understandable that the applicant has to safeguard its own interest, but this must not be confused with doing away with its obligations to the court. This is what took place when the court had originally approved the private sale on 10 June, 2014. Malta Towage had failed to mention to the court then that its shareholder, Joseph O'Connor, was the same shareholder of the purchasing company, Britannia Shipping. Therefore, Mr O'Connor was selling the vessel to himself. The court further commented that this put in doubt Malta Towage's good faith, which allowed the same court to have reconsidered the other elements such as the valuations presented originally. The court held that the applicant company was to transport the vessel to a foreign port and therefore, one can reassess the expenses included in the valuation. The court also took note of the Mediterranean Trading's submission that the assignment of debt of the crew's wages took place before a valuation was given. The crew assigned the debt of €197,000 was assigned to Malta Towage for €50,000. The valuations before one deducts the towages expenses vary from €130,000 to €180,000. The court took into consideration that the price offered was €57,000 and that Malta Towage was not a creditor of the vessel until it bought the debt from the crew. Therefore, the court is no longer convinced that the sale is in the interest of the creditors and that the sale is reasonable. The court then moved to revoke the company's request for a private sale of the vessel. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Appeal was made in terms of Article 77 (Chap. 504), which expressly provides that requests for permit revocation must be made within five years The court commented that in these proceedings the court is not a spectator and has to make sure that there are two valuations of the vessel and that the sale is in the interest of all creditors Robert Musumeci MEPAwatch Request for revocation of Bidnija villa permit lodged "fuori termine" Court blocks private sale of arrested vessel